Preliminary objection (non-exhaustion of domestic remedies) partially joined to merits and dismissed (Art. 3 and 13) and remainder dismissed;Preliminary objection (six-month period) dismissed (Art. 3 and 13);Preliminary objection (six-month period) allowed (art. 5-1 and 5-4 : detention in the SIZO);Preliminary objection (non-exhaustion of domestic remedies) dismissed (art. 5-4 : confinement in the hospital);Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

The applicant was born in DATE and lives in the city of ORG .

In DATE the applicant was diagnosed as suffering from schizophrenia . Since then the applicant has undergone outpatient treatment at ORG no . CARDINAL ( hereafter “ the FAC ” ) .

In DATE the applicant was convicted of theft and hooliganism and sentenced to DATE imprisonment suspended on probation .

On DATE the applicant was arrested and taken into police custody at ORG on suspicion of hooliganism and theft .

On DATE the police investigator assigned to the applicant ’s case charged him with hooliganism and theft . On DATE , considering that there were serious suspicions against the applicant , that he had a previous conviction for similar offences and was on probation and that there was a serious risk that the applicant would commit further offences or escape trial , the judge of ORG ( hereafter “ the ORG ” ) ordered the applicant ’s detention on remand .

On that same date the applicant was examined at ORG no . CARDINAL . He was found to be suffering from schizophrenia but fit for detention on remand .

On DATE the applicant was brought to the ORG trial ORG SIZO no . DATE ( hereafter “ the GPE ” ) from the police station . On his admission the applicant was received by the GPE medical department for observation and assessment . The prison psychiatrist diagnosed him as suffering from schizophrenia , but certified him fit for detention at the GPE .

NORP The applicant was admitted to a psychiatric ward of the medical wing of the GPE . On CARDINAL and DATE he was visited by a prison therapist who prescribed him cardiovascular and systemic medication .

On DATE the investigator asked ORG for information on whether the applicant had been known to be suffering from a mental disease . On DATE the ORG confirmed that the applicant had been under psychiatric treatment for schizophrenia DATE . Relying on this information , on CARDINAL DATE , the investigator ordered an inpatient forensic psychiatric examination of the applicant to determine his sanity at the time of the offence .

The applicant was transferred to ORG no . CARDINAL ( hereafter “ the Hospital ” ) , where he was examined from CARDINAL to CARDINAL DATE . On the latter date forensic experts drew up a report , which included the following findings :

“ ... Psychiatric status

The patient is available for verbal contact . However such contact is highly formal . Mimics and movements are spontaneous and incongruous . He can not understand or appreciate the purpose of the examination or the situation in general . The patient is restless , euphoric , fidgety , talkative but incoherent in his speech . .... The patient ... roars with laughter and grimaces , sticking his tongue out . ... Sometimes he starts asking in a whisper whether he will be released , but having received the answer , asks the same question again . ... If asked about his experience after the arrest , the patient becomes restless , somewhat confused , the expression on his face becomes blank . ... His memory and intelligence can not be tested for lack of productive contact ... Sometimes he becomes tense , restless and quarrelsome ....

Conclusion

Mr Kucheruk currently shows symptoms of acute personality disorder in the form of a reactive state of mind .

It is at present impossible to determine the question of his sanity at the time of the offences on account of the complexity of the clinical manifestations of his reactive state of mind , which could also point to another mental illness .

Mr PERSON ’s mental state requires compulsory inpatient psychiatric treatment . ”

NORP In DATE the applicant was transferred back to the GPE . On DATE he was examined by the prison psychiatrist . No medication was prescribed on that occasion .

On DATE the investigator requested compulsory psychiatric treatment for the applicant . On DATE the applicant ’s case - file was sent to ORG for approval . On DATE the investigator ’s request and the case - file were received by ORG .

On DATE ORG , following an adversarial trial in the presence of the applicant ’s lawyer , found him guilty of theft and hooliganism as charged . Referring to the experts’ report of CARDINAL DATE , the court found that the applicant ’s acute personality disorder made it impossible at that stage to determine his sanity at the time of the offences and , consequently , to consider the question of punishment . ORG made an order under LAW ( hereafter the CCrP ) committing the applicant for compulsory psychiatric treatment and suspended the criminal proceedings against him pending his recovery . The court also specified that :

“ Mr PERSON ’s preventive detention on remand is to be revoked upon his admission to the psychiatric establishment .

The judgment may be appealed against to ORG within DATE from its delivery . ”

On DATE the court order of DATE was sent to the GPE for implementation .

In the meantime , the applicant , who was held in an ordinary cell , started to show signs of personality disorder . At the subsequent inquiry the inmates with whom he shared a cell stated that the applicant had acted in a strange way , mumbling incoherently , suddenly yelling at them or starting a fight . On DATE the applicant assaulted CARDINAL of his cellmates . On DATE he was transferred to the medical wing of the GPE , where he shared a cell with other prisoners .

From DATE each new duty shift of the ORG guards was regularly informed of the possibility of violent outbursts on the applicant ’s part , and of the threat he posed to other detainees , the GPE staff and himself .

On DATE the prison psychiatrist examined the applicant , diagnosed him as suffering from schizophrenia and catatonic stupor and prescribed tranquilisers , analeptics ( drugs that stimulate the central nervous system ) and systemic drugs . On DATE the psychiatrist found that the applicant had recovered from the catatonic stupor , and prescribed a change in his medication .

On DATE the applicant became particularly agitated , moving erratically around the cell , waving his arms , bumping into the furniture and swearing at prison guards . At TIME CARDINAL prison guards on duty were called by the medical wing staff to deal with the applicant . Through the peephole they observed his erratic movements and , having classified them as an “ outrage ” ( буйство ) within the meaning of section CARDINAL of the Law “ on ORG ” , ordered the applicant to stand still , face the wall and put his hands behind his back . When the applicant failed to comply , the guards warned him that they were about to use force and entered the cell . The guards beat the applicant with truncheons , forced him to the floor and handcuffed him . Although a prison paramedic was called to attend to the applicant soon after the incident , there is no information that he received any treatment or medication for the injuries sustained during the struggle to restrain him .

In a report dated DATE and amended , it would appear , on DATE , the CARDINAL prison guards and the paramedic involved in the incident informed the Governor of the GPE about the circumstances of the use of special police equipment ( truncheons and handcuffs ) . In different handwriting it was added that the handcuffs were applied at TIME on DATE and removed at TIME on DATE . At the bottom of the page , below the signatures of the officers and the paramedic , it is indicated that “ distinct traces of the use of [ truncheons and handcuffs ] were found ” and that “ no other injuries ... could be detected ” . These notes were signed by a certain PERSON . , apparently a prison doctor or paramedic , and dated DATE .

On DATE the Governor ordered the applicant to be confined to a disciplinary cell for DATE for “ serious breach of prison rules ” . Before his transfer the applicant was examined by CARDINAL prison officers and a doctor , who indicated in their report that his shoulders and buttocks bore traces of injuries inflicted by truncheons . They concluded , however , that the applicant was fit to be detained in the disciplinary cell .

Whilst in the disciplinary cell the applicant was locked up for TIME each day . Although the disciplinary cell was visited DATE by a physician and psychiatrist , no treatment or medication was administered to him as , according to the medical records , he refused to accept them . The entries made by the prison physician in the applicant ’s medical record for CARDINAL , DATE and DATE state :

“ DATE ... [ the applicant ] lurched towards me , stretching out his handcuffed hands ...

DATE ... [ the applicant ] was moving quickly around the cell , bending down and trying to pull his legs between his handcuffed hands ... banging his head against the wall trying to free himself from the handcuffs ...

DATE ... [ the applicant ] is trying to remove the handcuffs , rolling on the floor ” .

The applicant ’s detention in the disciplinary cell continued until his discharge from the GPE on DATE .

On DATE the applicant was transferred to the Hospital for compulsory treatment pursuant to ORG judgment of DATE .

On DATE , following a fresh assessment of the applicant ’s mental condition , the psychiatric commission of the ORG recommended that his psychiatric treatment should continue .

On DATE , having regard to the experts’ report of CARDINAL DATE and the oral submissions of the doctor in attendance at ORG , ORG allowed the petition of the chief psychiatrist of ORG and ordered an extension of the applicant ’s compulsory psychiatric treatment pending his recovery .

On DATE the applicant ’s mother filed a petition with ORG ( hereafter “ the Moskovskyy Court ” ) under LAW ( hereafter “ the CCivP ” ) seeking to have her son declared incapable by reason of mental disorder .

On DATE the psychiatric commission of the Hospital recommended that the applicant ’s compulsory treatment be discontinued .

On DATE ORG ordered a forensic psychiatric examination of the applicant under LAW CCivP in order to determine his sanity .

On DATE ORG lifted the compulsory treatment order . It also indicated that criminal proceedings against the applicant should be resumed and a forensic psychiatric examination ordered to determine his sanity at the time of the offence .

On DATE the pre - trial investigation against the applicant was resumed .

On DATE the ORG received ORG ruling of DATE .

On DATE the investigator requested ORG to authorise the applicant ’s inpatient psychiatric examination under LAW ORG , which request was granted on DATE .

Both forensic examinations ordered by the Moskovskyy and ORG were completed on DATE . The psychiatric experts concluded that the applicant ’s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour .

On DATE the applicant was discharged from the ORG and handed over to his mother .

On DATE ORG terminated the criminal proceedings against the applicant in view of his lack of criminal liability .

On DATE ORG allowed the mother ’s petition and declared the applicant legally incapacitated .

Upon the applicant ’s admission to ORG on DATE his mother was informed of his whereabouts . PERSON stated that when she visited him the following day she saw that he was badly injured and could hardly move or talk . The only words he allegedly managed to utter were “ [ they ] beat [ me ] severely ” ( cильно били ) .

On DATE the applicant ’s mother filed a criminal complaint against the prison guards for ill - treatment of her son .

On DATE the applicant ’s mother and a human rights activist from a local non - governmental organisation visited the applicant in his ward . They drew up a document attesting that the applicant had an injury on his head behind the left ear , several bruises on the face and forehead and deep cuts around his wrists .

On an unspecified date the Governor of the ORG opened a criminal investigation into the applicant ’s mother ’s complaint . On DATE written statements were taken from CARDINAL of the inmates who had shared an ordinary cell with the applicant , from his CARDINAL cellmates in the medical wing who witnessed the incident of DATE , from CARDINAL prison guards involved in that incident and from a prison paramedic . The inmates and the prison guards briefly outlined the events of DATE as they are described above in DATE . The paramedic wrote that he had been called to attend to the applicant after the latter had been immobilised by the guards . He had observed truncheon marks on the applicant ’s shoulder blades and buttocks and marks on his wrists made by handcuffs .

As part of the inquiry , on DATE the Governor of the ORG ordered that medical evidence be obtained . On DATE the applicant was examined by an expert from ORG . The expert ’s report stated the following :

“ Examination

PERSON has a QUANTITY oblong abrasion with a thick scab on the outer part of his right wrist . The wound is horizontal . Similar abrasions are observed on the inner part of the right wrist and the outer and inner parts of the left wrist , as well as on the left elbow , the right occipital area and the inner - rear and frontal parts of the left thigh . These injuries measure from QUANTITY . to QUANTITY . ...

Conclusion

According to the medical documents provided [ by the Governor of the GPE ] it is established that PERSON bore bruises and abrasions which had been inflicted by blunt solid objects .

When PERSON was examined on PERSON he had abrasions on his head , right foot , arms and left thigh . He also had bruises on the left eye and the left shoulder . All these injuries were inflicted by blunt solid objects . The bruises were DATE and the abrasions DATE ...

Having regard to the description of the injuries in medical documents [ drawn up by the ORG staff ] , as well as the entries for CARDINAL and DATE , where the injuries are not described at all , and the nature of the injuries ( indicating the use of truncheons and handcuffs ) , it is impossible to draw any conclusions about the time of the injuries .

Mr PERSON ’s injuries could have been inflicted by special equipment ( truncheons and handcuffs ) . ”

On DATE the Governor of the GPE decided not to bring criminal proceedings against the guards involved in the incident , finding no wrongdoing on their part . He relied in this conclusion on the written statements made by the inmates and prison officers and the forensic report of DATE . On an unknown date the prison supervision department of ORG confirmed this decision .

On DATE the applicant ’s mother received a letter from the Governor of the ORG in which he informed her that no criminal investigation in respect of the accused prison officers was to be opened , without , however , indicating the date of the relevant decision or providing a copy . In his letter the Governor also expressed the opinion that the truncheons and handcuffs had been used by the guards in accordance with the relevant regulations , to protect the GPE staff and the applicant himself from his uncontrolled and aggressive behaviour .

On DATE ORG ( hereafter “ the Department ” ) informed the applicant ’s mother that an additional internal inquiry , undertaken , apparently , on her request , had revealed no wrongdoing on the part of the GPE guards .

By a letter of DATE the Head of the Department informed the applicant ’s mother that her further complaints were unsubstantiated . He referred in this connection to the inquiry carried out by the Governor of the GPE , which had culminated in his decision of DATE . This was the first mention of the date of the Governor ’s decision in any official correspondence with the applicant ’s mother . On DATE she requested a copy of the final report and access to the case - file . On DATE the Head of the ORG rejected this request . On DATE he rejected her second request for access to the file .

On DATE the applicant ’s mother challenged the Governor ’s decision of CARDINAL DATE before a court . On CARDINAL DATE the ORG of Kharkiv ( hereafter “ the ORG ” ) , having heard the prosecutor , rejected her complaint as unsubstantiated . The applicant ’s mother appealed .

In the course of the appeal proceedings , on DATE , the applicant ’s lawyer was , for the first time , given access to the case - file .

On DATE the ORG of Appeal quashed the decision of ORG on the grounds that it had been taken in the complainant ’s absence , and remitted the case for fresh consideration .

On DATE ORG found , without giving any details , that the inquiry was flawed . It reopened the case and handed it to the Governor of the GPE for further investigation .

On DATE the Governor , referring to the same evidence as before , discontinued the criminal proceedings again . His final report indicated , inter alia , that :

“ ... PERSON arrived at the [ GPE ] with a medical certificate , issued by the city hospital no . CARDINAL on DATE , according to which he was fit to be detained in a GPE . ... On the basis of this information Mr PERSON was placed in a psychiatric ward of the medical wing .

On DATE Mr PERSON was examined by [ the prison psychiatrist ] who diagnosed him as suffering from schizophrenia . At the time of the examination his mental condition was satisfactory and he did not need any active treatment . ”

As to the applicant ’s conduct after the incident of DATE and his transfer from the ordinary cell to the medical wing , the Governor stated that :

“ On DATE Mr PERSON was examined by [ the prison psychiatrist ] , who found him suffering from schizophrenia and catatonic stupor and prescribed the relevant medication .

On DATE the patient recovered from the catatonic stupor ... but continued to have tense relations with his cellmates .

Accordingly , based on general information about Mr PERSON ’s behaviour , the officers on duty were warned daily about his possible violent outbursts against his cellmates or the PERSON staff . ”

The report of CARDINAL DATE further states that , following the incident of DATE , the applicant was placed in the disciplinary cell for serious breach of prison rules . Having regard to the applicant ’s mental condition , the paramedic who examined him after the incident had recommended keeping him handcuffed .

As regards the time of the applicant ’s discharge to ORG , the Governor indicated that :

“ The [ ORG judgment of DATE ] did not contain any provision for immediate execution . It set out a DATE time limit for appeal ; therefore the term provided by LAW for execution of this judgment was complied with as the applicant was transferred to the [ Hospital ] on DATE . ”

On DATE ORG , acting on a complaint lodged by the applicant ’s lawyer , quashed that decision and ordered further investigations , pointing out the following irregularities :

failure to take account of the submissions of the applicant ’s mother concerning the applicant ’s state of health in DATE ;

failure to measure the lawfulness and reasonableness of the PERSON conduct against the legal principle prohibiting degrading treatment ;

failure to determine whether the applicant ’s misbehaviour constituted a breach of prison rules that warranted his placement in a disciplinary cell ;

failure to consider the proportionality of the force used ;

the fact that the investigation was conducted by the Governor of the GPE , a person whose impartiality was highly doubtful .

The case - file was transmitted to ORG for additional investigations . In a final report of CARDINAL DATE a prosecutor of the prison supervision department of ORG came to a similar conclusion to that reached by the Governor of the GPE , that the applicant was fit for detention in the GPE and the prison officers concerned acted properly on the basis of the orders they were given and the relevant regulations . The prosecutor referred to the evidence collected by the Governor ’s investigation and the statements of the prison psychiatrist that certain drugs should normally be used to pacify mentally ill patients , and when no drugs were available , special equipment could be used to immobilise such patients . The prosecutor further agreed with the Governor ’s finding that the applicant ’s conduct constituted a flagrant violation of prison rules and warranted his detention in the disciplinary cell . The applicant ’s mother appealed .

On DATE ORG ( hereafter “ the ORG ” ) quashed that report and ordered further investigations as the authorities had failed to follow the instructions of ORG .

On DATE a senior prosecutor of the prison supervision department of ORG , following additional investigation , decided not to bring any charges against the prison officials . His final report repeated , in substance , the findings in the report of DATE that the applicant had been fit to be detained in the GPE and that there had been no wrongdoing on the part of the prison authorities . The senior prosecutor stated , inter alia , that the applicant ’s detention after DATE had been based on a letter from the Head of ORG of ORG that the applicant ’s case - file had been sent to ORG for approval . As to the applicant ’s DATE confinement in the disciplinary cell , he considered that “ the severity of the punishment imposed was fully in keeping with the nature of the offence committed ” . He further considered that the applicant had been held in the GPE until DATE because of the DATE time - limit for entry into force of the judgment of DATE . Although the forensic report of CARDINAL DATE recorded the use of handcuffs by the prison guards , the investigation did not establish whether or not , DATE , the applicant was handcuffed all the time . The senior prosecutor concluded that there was no evidence that the prison officers had acted in bad faith or in violation of the relevant laws and regulations when restraining the applicant with truncheons and handcuffs , putting him in a disciplinary cell and holding him in the GPE until DATE .

On DATE the applicant ’s mother challenged that report before ORG , where the proceedings are still pending .

The relevant extracts from the LAW read as follows :

“ LAW

Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ...

Article CARDINAL

Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ... ”

The text of LAW and ORG and CARDINAL of LAW of DATE can be found in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , CARDINAL DATE ) .

LAW provides :

“ Excess of authority or official powers , that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which cause any significant damage to the legally protected rights and interests of individual citizens , state and public interests or those of legal entities shall be punishable .... ”

Article CARDINAL of the Code prescribes liability for official negligence :

“ Neglect of official duty , that is failure to perform , or improper performance , by an official of his or her official duties due to negligence , where it causes any significant damage to the legally protected rights and interests of individual citizens , state and public interests or those of legal entities , shall be punishable ... ”

The relevant provisions of the ORG regulating the conduct of pretrial investigation proceedings are summarised in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL and DATE , DATE ) ,

Article CARDINAL enumerates the bodies responsible for inquiries . Normally these functions are discharged by the police . However , paragraph CARDINAL of Article CARDINAL also vests this power in the governors of prisons and pre - trial detention centres , who conduct inquiries into offences committed by prison officials involving infringements of prison rules .

Articles CARDINAL ( purpose of and grounds for taking preventive measures ) , CARDINAL ( list of preventive measures ) , CARDINAL ( circumstances that should be taken into account in choosing a preventive measure ) and CARDINAL ( time - limits for holding in custody ) of the ORG are to be found in the GPE v. GPE judgment ( no . CARDINAL/CARDINAL , § CARDINAL , ORG DATE ) .

LAW CCrP insofar as relevant provides as follows :

“ Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of DATE imprisonment ...

Persons against whom a detention on remand order is issued shall be held in pre - trial detention centres . ”

DATE . Article CARDINAL of the CCrP insofar as relevant provides :

“ In a case received from the prosecutor [ with the bill of indictment ] , the judge in a preliminary hearing shall resolve the following questions :

... CARDINAL ) whether there are any reasons to change , terminate or apply a preventive measure . ”

Article CARDINAL of the ORG reads as follows :

“ A preparatory hearing shall be held within DATE or , in complex cases , DATE of receipt of the case - file by the court . ”

Article CARDINAL of the ORG provides :

“ If forensic medical or psychiatric examination necessitates long - term monitoring or assessment of the suspect , the court , on the investigator ’s request and with the prosecutor ’s authorisation , may order the suspect ’s commitment to the relevant medical institution . ”

Article CARDINAL of the ORG provides :

“ An appeal may be lodged against :

... CARDINAL ) a court order concerning the application of ... compulsory medical treatment . ”

According to LAW CCrP :

“ An appeal against a judgment , ruling or order of a first instance court ... may be filed within DATE of its adoption ... ”

Article CARDINAL of the CCrP reads as follows :

“ The court order or ruling shall become final and enforceable upon the expiry of the time - limit for appeal . ”

Articles CARDINAL ( FAC for the application of measures of compulsory medical treatment ) and CARDINAL ( Termination or modification of the applicable compulsory measures of medical treatment ) of the CCrP are set out in the PERSON judgment ( cited above , § DATE ) .

Article CARDINAL provides as follows :

“ An appeal or cassation appeal or an appellate or cassation petition by the prosecutor ( апеляційне чи касаційне подання прокурора ) against a ruling or resolution adopted by a judge or a court in the manner laid down by this LAW , shall be entered in the ordinary manner . ”

DATE . According to LAW CCrP :

“ Pre - trial investigation in cases concerning illegal acts committed by persons who are not criminally responsible or who bear only limited criminal responsibility , as well as in cases concerning offences committed by persons who become mentally ill after the events in question but before the imposition of the sentence , shall be conducted by the investigating authorities pursuant to the rules set out in ORG CARDINAL and CARDINAL of the present Code .

Following the completion of the pre - trial investigation , if the alleged offender is found to have no , or limited , criminal responsibility , the investigator shall draw up a ruling requesting the court to commit the person for compulsory medical treatment ... This ruling shall be sent to the prosecutor . ”

“ Having received a case with the ruling under LAW , the prosecutor :

CARDINAL ) NORP if he agrees with the ruling , shall confirm it and transmit the case to the court ;

CARDINAL ) NORP if he finds that the ... collected evidence is insufficient to reach a conclusion as to the mental condition of the accused or that the collected evidence is insufficient to prove that the illegal act was committed by the person concerned , shall return the case - file to the investigator with written instructions for further inquires . ”

Article CARDINAL of the CCrP insofar as relevant provides :

“ If the judge or the president of the relevant court who received the case - file with the request for compulsory medical treatment agrees with the investigator ’s ruling , he or she shall send the case directly for trial .

The trial in such cases shall be held in open hearing , with the obligatory participation of the prosecutor and defence lawyer , in accordance with rules laid down in LAW and CARDINAL [ Articles CARDINAL - CARDINAL ] of this Code . ”

According to LAW CCrP :

“ When it is established that a [ mentally ill ] person has committed an illegal act or a person became mentally ill after committing an offence ... the court shall commit him or her for compulsory medical measures , indicating exactly what measure should be applied . ”

Article CARDINAL of the ORG provides in its relevant part :

“ The court must suspend its examination of a case if ... it is impossible to hear the case before other civil , criminal or administrative proceedings have been terminated . ”

Article CARDINAL of the ORG provides that close relatives of a mentally ill person , associations , a prosecutor or a local board of tutorship may apply to the court with a view to declaring that person incapable by reason of mental disorder .

According to Article CARDINAL of the ORG a petition filed under LAW should include evidence of the mental disorder which prevents the person concerned from understanding his or her actions and conducting his or her affairs .

Article CARDINAL of the ORG empowers the court to order forensic psychiatric examination of the person concerned . In exceptional cases , when the person overtly avoids examination , the court may order his or her compulsory psychiatric examination .

Section CARDINAL of the LAW provides that :

“ Detained persons shall be held in ordinary cells . In exceptional circumstances ... and for medical reasons , following a reasoned decision of the relevant investigating authority or governor of the relevant pre - trial detention facility , a detainee may be placed in solitary confinement . ”

Section CARDINAL of the Act sets out rules governing the use of force by prison guards . Officers in pre - trial detention facilities are entitled to use physical force , police equipment and firearms against the inmates . The use of force should be preceded by a warning if the circumstances so allow . If the use of force can not be avoided , it should not exceed the level necessary for fulfilment by the officers of their duties and should be carried out so as to inflict as little injury as possible . Prison officers are entitled to use force and special equipment , including unarmed combat , handcuffs , truncheons etc . , with a view to putting an end to physical resistance , violence , outrage ( буйство ) and opposition to the lawful directions of the administration of the detention facility when other means of achieving a legitimate objective prove ineffective .

Special police equipment and firearms must not be used on women with visible signs of pregnancy , elderly persons , persons with visible signs of invalidity or underage persons , except in the event of an assault by a group of these persons which is dangerous for the lives of the prison officers or others .

A governor has the power to place a prisoner in a disciplinary cell where this is necessary to put an end to physical resistance , violence , outrage and opposition to the lawful directions of the administration .

The choice of the means to be used and the time and intensity of their use depends on the circumstances , the nature of the wrongdoing and the personal characteristics of the perpetrator .

An officer who uses force or special equipment must immediately report it to his direct supervisor and the relevant prosecutor . All persons against whom the above means have been used should be immediately examined by a medical practitioner .

The relevant provisions of the LAW are quoted in the case of PERSON ( cited above , § CARDINAL ) .

Paragraph CARDINAL of the ORG enumerates the cases when special means may be used , including when they are necessary for putting an end to resistance to police officers or other persons carrying out official public order duties .

Paragraph CARDINAL of the ORG provides that decisions to use special means must be taken by an official responsible for maintening public order or by the head of the particular operation . A person taking such a decision must immediately inform his or her superiors in writing .

Paragraph CARDINAL of the ORG obliges the police officers who applied the special means to ensure immediate medical assistance to the victims .

Paragraph CARDINAL of the ORG prohibits the application of rubber truncheons to the head , neck , collar area , stomach and genitalia .

According to LAW no . CARDINAL/CARDINAL psychiatric establishments are obliged to inform the relevant local police department of the imminent release of mentally ill persons .

The relevant extracts from Decree no . CARDINAL of ORG of DATE on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts ( approved by ORG , ORG and ORG ) are set out in PERSON ( cited above , § DATE ) .

The relevant extracts from the ORG on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts ( adopted by Decree No . CARDINAL of ORG ) are also quoted in the case of PERSON ( cited above , § DATE ) .

According to LAW , force , as an element of excess of power , can be both physical and psychological . Physical force may involve , inter alia , unlawful deprivation of liberty and inflicting blows .

Section CARDINAL of the ORG provides that illegal actions constituting an excess of power fall within the scope of criminal law when they are “ painful or abusive ” , and ORG has declared that such actions are to be interpreted as “ painful or abusive ” when they inflict physical pain or moral suffering on the victim . These actions can involve , inter alia , the unlawful use of special police equipment such as truncheons and handcuffs .

The DATE Resolution was valid at the material time . In DATE it was replaced by ORG no . CARDINAL of DATE .

NORP In both Resolutions ( DATE and DATE - Sections CARDINAL and CARDINAL respectively ) ORG , interpreting domestic law regulating the types of compulsory measures of a medical character , stated that a court which orders compulsory treatment of a person against whom a preventive measure had been taken should simultaneously order the discontinuation of the preventive measure from the moment of the person ’s admission to a psychiatric institution .

The relevant provisions of the first and second DATE reports are set out in the GPE judgment ( cited above , § § DATE ) .

The relevant extracts from ORG . R ( CARDINAL ) CARDINAL on ORG ( adopted by ORG on DATE at the FAC meeting of ORG ) read as follows :

“ Medical services

CARDINAL . At every institution there shall be available the services of CARDINAL qualified general practitioner . The medical services should be organised in close relation with the general heath administration of the community or nation . They shall include a psychiatric service for the diagnosis and , in proper cases , the treatment of states of mental abnormality .

Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals . Where hospital facilities are provided in an institution , their equipment , furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners , and there shall be staff of suitably trained officers .

CARDINAL . NORP The medical officer shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with hospital standards , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .

NORP The medical officer shall report to the director whenever it is considered that a prisoner ’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment .

Discipline and punishment

CARDINAL . Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer , after examination , certifies in writing that the prisoner is fit to sustain it .

Instruments of restraint

The use of chains and irons shall be prohibited . Handcuffs , restraint - jackets and other body restraints shall never be applied as a punishment . They shall not be used except in the following circumstances :

a. if necessary , as a precaution against escape during a transfer , provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise ;

b. on medical grounds , by direction and under the supervision of the medical officer ;

c. by order of the director , if other methods of control fail , in order to protect a prisoner from self - injury , injury to others or to prevent serious damage to property ; in such instances the director shall at once consult the medical officer and report to the higher administrative authority .

NORP The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation . Such instruments must not be applied for any longer time than is strictly necessary .

Insane and mentally abnormal prisoners

CARDINAL . Persons who are found to be insane should not be detained in prisons and arrangements shall be made to remove them to appropriate establishments for the mentally ill as soon as possible .

Specialised institutions or sections under medical management should be available for the observation and treatment of prisoners suffering gravely from any other mental disease or abnormality .

NORP The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all prisoners who are in need of such treatment . ”

The relevant extracts from ORG [ ORG ( DATE ) CARDINAL ] on a visit to GPE from DATE read as follows :

“ The ORG would point out that all mentally ill prisoners , including those serving life sentences , should be cared for and receive treatment in a hospital facility adequately equipped and with qualified staff . Forcing such prisoners to stay in prison , where they can not receive appropriate treatment for lack of suitable facilities or because such a facility refuses to accept them , is an unacceptable state of affairs . The transfer of mentally ill prisoners to an appropriate psychiatric facility should be considered a high priority . ”


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

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

On DATE , CARDINAL DATE and DATE respectively , ORG declared CARDINAL companies , allegedly directly or indirectly administered by the applicant , insolvent .

In connection with these facts , the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in ORG . At a hearing on DATE , the presiding judge of ORG questioned a witness , PERSON , who had been the official receiver in the insolvencies of the above - mentioned companies . The presiding judge asked him whether he had been previously involved , as a victim , in criminal proceedings . PERSON answered that he recently had , because someone had fired shots at the door of his house , probably as an act of intimidation . The witness added that the outcome of those proceedings was that the applicant 's son had been found guilty and had been sentenced to DATE imprisonment .

In fact , the presiding judge of ORG had also presided over the criminal proceedings against the applicant 's son , which had ended on DATE .

On DATE the applicant filed a request with ORG for the presiding judge of ORG to be removed from hearing his case ( ricusazione ) . The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions ( Article CARDINAL para . CARDINAL ( c ) of LAW ) or , in the alternative , that he had stated his opinion on the facts of the case before the end of the proceedings ( LAW para . CARDINAL ( b ) of the same Code ) .

On DATE ORG rejected the applicant 's request as manifestly ill - founded . The applicant appealed against that decision to ORG . On DATE the latter court rejected the applicant 's appeal .

On DATE ORG found the applicant guilty of fraudulent insolvency and sentenced him to DATE imprisonment and DATE disqualification from civic office .

On DATE the applicant lodged an appeal against the above decision with ORG .

When lodging the appeal with ORG , the applicant did not explicitly refer to the alleged lack of impartiality of the first - instance judge . Before the ORG , he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of ORG rejecting it and that , in any event , in NORP law the issue of the alleged partiality of a first - instance judge was not a ground on which ORG could set aside a first - instance judgment .

According to the latest information provided by the Government , on DATE the proceedings in ORG were still pending because priority had been accorded to other proceedings . According to the Government , the first hearing should take place at DATE .


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

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .

The NORP Government ( “ the Government ” ) were represented by their Agent , Mr PERSON , succeeded by Ms J. Chrzanowska , of ORG .

On DATE the applicant filed an application with ORG ( ORG ) ( “ LAW ” ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

On DATE ORG issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY ( ORG ) .

On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance .

The applicant appealed against the respective decisions divesting her of the right to an early - retirement pension .

On DATE ORG ( PERSON ) dismissed the appeal .

The applicant further appealed against the first - instance judgment .

On DATE the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal . This decision was served on the applicant on DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

NORP Out of all applications lodged with the Court , CARDINAL applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

CARDINAL applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In CARDINAL applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE , no . CARDINAL/CARDINAL , § DATE , DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in the town of GPE Novgorod .

DATE the first applicant had the status of witness in a murder case conducted jointly by the police and the prosecution .

It appears that these authorities repeatedly summoned her to give evidence to LOC ( ORG районное управление внутренних дел DATE “ the police station ” ) .

It also appears that at some point during the investigation suspect PERSON stated that the first applicant had been in receipt of the murdered person 's belongings .

According to the first applicant , investigator PERSON . summoned her to appear on DATE at TIME The Government submitted that the first applicant was summoned by policeman PERSON and not by investigator PERSON .

The applicants submitted the following account of events . The Government did not make any specific comments in this respect .

The first applicant arrived at the police station on time and was questioned . The interrogation was initially conducted by policemen PERSON . and PERSON and took place at office no . CARDINAL of the police station .

The policemen requested the first applicant to acknowledge that she had received property belonging to the murdered person . When the first applicant refused to do so , they started shouting and threatened to bring criminal proceedings against her . They took her soccer scarf and administered several blows with the scarf to her face .

Then PERSON left the office and PERSON . stayed there with the first applicant in private . He locked the door from the inside and went on with physical and psychological coercion . PERSON . fettered the first applicant 's hands with thumbcuffs and administered blows to her head and cheeks . He raped her using a condom and then forced her to perform oral sex with him .

Kh . was interrupted by noise in the corridor and knocking on the door . The first applicant was allowed to go to the lavatory and tidy herself up .

At TIME the first applicant was confronted with suspect PERSON In his presence , she yet again denied her involvement in the murder .

Thereafter Kh . and PERSON fettered the first applicant 's thumbs and repeatedly hit her in the stomach . They put a gas mask over the first applicant 's face and made her suffocate by shutting off access to air . Kh . and PERSON also ran electricity through wires connected to the first applicant 's earrings . The above actions were coupled with attempts to obtain a confession .

It appears that eventually the first applicant admitted having received the property in question and agreed to write her confession down on paper . Since the first applicant was in an agitated state and failed to write properly , she had to try twice . The confession was addressed to a local district prosecutor .

Kh . and PERSON then suggested that the first applicant 's mother should bring the notebook containing the phone numbers and addresses of the applicant 's friends and acquaintances .

The first applicant called her mother and at TIME the latter and the second applicant came to the police station and brought the required notebook . The first applicant 's mother and the second applicant stayed in a lobby near office no . DATE .

At TIME , an investigator from a local prosecutor 's office , came to office no . CARDINAL . He learned from the first applicant that she was a NORP GPE soccer fan and started to insult her and administer blows to her head with the second applicant 's own scarf , requiring her to curse this club .

Some time later Kh . brought the first applicant to office no . CARDINAL of the prosecutor 's office for LOC of the city of GPE PERSON ( PERSON района г. PERSON – “ the local prosecutor 's office ” ) which was situated in the same building as the police station .

Zh . , an investigator of the local prosecutor 's office , interrogated the first applicant in connection with her confession .

NORP In order to put additional pressure on her the investigators simultaneously arrested and detained her mother . It appears that the first applicant 's mother spent TIME in detention .

According to the second applicant , around TIME investigator PERSON was in the lobby and saw the second applicant . S. rudely demanded the second applicant to leave the building , kicked him on the hip , pushed him towards the exit , then caught up with him and forced him into office no . DATE in which there were CARDINAL unidentified policemen .

Then PERSON locked the door from the inside , hit the second applicant in his trunk several times and dealt a few blows to the second applicant 's head and trunk with his own ORG soccer scarf .

S. brought the second applicant to office no . CARDINAL and , in presence of PERSON . and investigator PERSON , went on beating the second applicant , requiring him to curse the CSKA GPE soccer club . When the second applicant refused , PERSON put the scarf around his neck and started to suffocate the applicant , simultaneously hitting him on the trunk . The second applicant eventually capitulated .

Thereafter M. , Zh . and PERSON . sent the second applicant to a nearby shop to buy alcohol , cigarettes and food and upon his return he was expelled from the building .

Around TIME , PERSON came to office no . CARDINAL in which investigator Zh . was finalising the interrogation of the first applicant . They did not let the first applicant out after the questioning was over and started to drink alcohol . According to the first applicant , her requests to leave were denied .

Upon her request , the first applicant was escorted to the lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist .

She returned to office no . CARDINAL and for TIME she was raped by PERSON . , PERSON It appears that they used condoms and that following the rape they cleaned the place with wipes . It appears that PERSON . had left the office upon the first applicant 's return from the lavatory and had not taken part in the rape .

At TIME left and during TIME Zh . and PERSON went on raping the first applicant . Around TIME they released her .

At TIME the first applicant reached the place of her acquaintance ORG . Shortly later she was joined by ORG and ORG . After a talk , ORG called the first applicant 's parents and told them that GPE and GPE would follow the first applicant to a hospital .

At TIME on DATE they arrived at hospital no . DATE and the first applicant told an assistant nurse that she had been raped in the police station . The nurse and the doctor did not examine the applicant and advised her to address herself to a bureau of forensic examination . The applicant refused because the bureau was located too close to the police station . She was then advised to go to a bureau in a different district . It does not appear that the first applicant did so .

It appears that on DATE the first applicant applied to the prosecutor 's office alleging that she had been tortured and raped . The GPE prosecutor 's office ( прокуратура г. PERSON ) opened a criminal case in this connection and carried out an investigation . The second applicant had the status of crime victim in this case .

On DATE Kh . , Zh . , PERSON were charged with commission of crimes punishable under LAW , CARDINAL and CARDINAL of LAW .

On DATE the bill of indictment was signed and the case against Kh . , Zh . , PERSON transferred to LOC of the city of GPE PERSON ( PERSON районный суд г. PERSON – “ the ORG ” ) for trial .

The bill of indictment stated that PERSON . was accused of having tortured and raped the first applicant , ill - treated the second applicant , abused the office and discredited the authority ( see the episodes described in paragraphs CARDINAL , DATE , DATE and CARDINAL - CARDINAL above ) . Zh . was charged with having raped and sexually abused the first applicant , abused the office and discredited the authority ( see paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL ) . As to S. , he was accused of having ill - treated the first and second applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL and DATE ) , raped and sexually abused the first applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL ) . PERSON was charged with having raped and sexually abused the first applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL ) . The alleged criminal acts of the accused were characterised under Articles CARDINAL - CARDINAL , CARDINAL ( b ) , CARDINAL - CARDINAL , CARDINAL ( b ) and CARDINAL ( a , b ) , respectively , of LAW .

It appears that the accused denied their involvement in the crimes in question , kept silent and refused to give urine or sperm for examination .

NORP The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicants , who had identified the alleged offenders and gave a very detailed account of events .

The bill also referred to the statements of witness PERSON , who heard the screams of PERSON . and moans of the first applicant and then saw that the first applicant was tear - stained and demoralised . B. also cited the statement of PERSON . who had allegedly said that the first applicant had “ cracked ” and admitted everything .

There were also statements of witnesses ORG , ORG and GPE , the assistance nurse and the doctor , the parents of the first applicant , the mother of the second applicant and an employee of the shop who had sold the food and alcohol to the second applicant ( see paragraph CARDINAL above ) .

The other evidence also included the items obtained through searches carried out on the premises of the police station and the prosecutor 's office , the first applicant 's handwritten statement of a self - incriminating character which had been described by an expert as having been written by “ a shaking hand ” ( see paragraph CARDINAL ) , the medical confirmation of the first applicant 's attempts to cut her veins ( see paragraph CARDINAL ) , the report of the forensic examinations and other evidence . It appears that several other people who had previously been prosecuted and whose criminal cases had been dealt with by the accused gave evidence confirming that the accused had used torturing devices , such as a gas mask , electric wires and a fettering device .

According to forensic examination no . CARDINAL of DATE , the clothes that PERSON . had worn on DATE bore traces of cells of vaginal epithelium of the same antigen group as the first applicant 's . The investigation also established that PERSON . and his spouse had a different antigen group .

During the search carried out at the LOC on DATE the investigative authority discovered CARDINAL used condoms , CARDINAL in the yard of the police station and the other on the cornice under the window of office no . CARDINAL of the prosecutor 's office .

It appears that CARDINAL of the discovered condoms was suitable for forensic examination . The genomic examination revealed the presence of vaginal cells belonging , with a probability of PERCENT , to the first applicant and spermatozoids and cells of male urethra .

The same search also led to the discovery of CARDINAL wipes in the yard of the police station bearing traces of sperm .

Furthermore , the forensic examination established that the first applicant 's clothes which she had allegedly worn on DATE bore traces of sperm .

DATE . During a preliminary examination of the case on DATE counsel for the accused pointed to various procedural defects in the investigation and applied to have the case remitted for additional investigation .

On DATE ORG granted the application and remitted the case for additional investigation .

The court ruled that the investigative authorities had committed serious breaches of domestic procedure during the investigation which had infringed the rights of the accused and rendered most of the evidence in the case inadmissible .

In particular , the decision noted numerous inaccuracies and deficiencies in the handling of the case , including disregard of a special procedure for opening an investigation in respect of prosecution officers and the fact that Kh . , Zh . , PERSON had not enjoyed the procedural status of accused persons until DATE , which meant that almost all investigative actions ( searches , interrogations , identification parades , expert examinations , etc . ) prior to that date had been carried out in breach of their defence rights and rendered the respective evidence inadmissible .

The decision of ORG of DATE was upheld on the prosecutor 's appeal by ORG ( ORG – “ the Regional Court ” ) on DATE .

On an unspecified date in DATE the first applicant 's counsel brought an appeal against the decisions of DATE and CARDINAL October CARDINAL to the ORG of ORG , requesting that they be re - examined by way of supervisory review .

On DATE counsel lodged a similar appeal with ORG of GPE ( MONEY – “ the ORG ” ) .

Having examined the case file , on DATE the ORG of ORG declined the applicants ' request for re - examination of the decisions by way of supervisory review .

It appears that a similar decision was taken by ORG on DATE .

On DATE ORG ( NORP областная прокуратура ) examined the case , found that the charges were essentially based on the first applicant 's incoherent and inconclusive submissions , that the evidence in the case taken as a whole was inconsistent , and concluded that no strong evidence against the accused had been collected during the investigation .

It also had regard to the conclusions in the court decisions of CARDINAL DATE and DATE and noted that “ the repetitive breaches of law and , in particular , the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects – investigators of the prosecutor 's office – created no judicial perspective [ for the case ] since it appeared impossible to remedy the breaches committed during the investigation ” . For these reasons it was decided to discontinue the criminal proceedings . The decision stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor 's office .

By a letter of DATE ( No . CARDINAL - CARDINAL - CARDINAL ) ORG office responded to the first applicant 's appeal against the decision of DATE fully deferring to its reasons and conclusions . The letter did not mention the possibility of appeal against the decision in a court .

According to the ORG , the investigation in this case was repeatedly resumed and discontinued .

On DATE ORG annulled its decision of DATE to discontinue the criminal proceedings and submitted the case for additional investigation . It mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision .

On DATE the local prosecution office terminated the investigation in the criminal case , referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials .

It appears that this decision was subsequently annulled , but on DATE the local prosecutor 's office again terminated the proceedings on the ground of lack of evidence of a crime .

On DATE the first applicant 's counsel challenged the decision of DATE before ORG . In a judgment of DATE ORG upheld the decision , fully deferring to its reasons . The judgment was upheld on appeal on DATE by ORG .

On DATE ORG office yet again decided to resume the proceedings in the case .

According to the applicant , on DATE the proceedings were yet again closed .

DATE . The Government submitted that on CARDINAL DATE the proceedings in the case had been resumed . This decision was appealed against by the accused . On DATE ORG quashed the decision to resume the proceedings as unlawful . ORG upheld ORG decision on DATE . Thereafter the Deputy Prosecutor General lodged a supervisory review request in respect of the decisions of CARDINAL DATE and DATE .

On DATE ORG , sitting as a supervisory review instance , examined and rejected the prosecutor 's request , but noted that the decision of DATE had been adopted by an unlawful composition of judges and remitted the case to ORG for a fresh examination on appeal .

NORP The outcome of these proceedings remains unclear , but no further steps appear to have been taken in respect of the criminal case against the policemen and investigators .

Article CARDINAL § § CARDINAL and CARDINAL ( b ) of LAW of GPE punishes the offence of rape committed by a group , whether or not organised and with or without prior conspiracy , with imprisonment DATE .

Article CARDINAL § § CARDINAL and CARDINAL ( b ) punishes forced sexual acts committed by a group , whether or not organised and with or without prior conspiracy , with DATE of imprisonment .

Article CARDINAL § CARDINAL ( a , b ) punishes abuse of office committed with use of force or threat to use force , with or without the use of arms or other special devices with imprisonment DATE .

“ A witness shall be called for interrogation by a written notice served on him personally or , in his absence , on an adult member of his family ...

The notice shall contain the name of the person called as a witness , indicating where , before whom , on what date and at what time he is required to appear and the consequences of failure to appear . A witness may also be called by means of telephone or cable . ”

“ The interrogation of a witness shall be conducted at the place of the investigation . An investigator may decide to interrogate a witness at the location of that witness . ”

Under Articles CARDINAL and CARDINAL of LAW , a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities ' own motion . LAW stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party . During the investigation the victim could submit evidence and lodge applications , and once the investigation was complete the victim had full access to the case file .

Under Articles CARDINAL and CARDINAL of the Code , a prosecutor was responsible for overall supervision of the investigation . In particular , the prosecutor could order a specific investigative measure to be carried out , the transfer of the case from CARDINAL investigator to another , or the reopening of the proceedings .

DATE . Under LAW , the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime . Such a decision was subject to appeal to the senior prosecutors or the court . The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete .

Article CARDINAL of the Code provided that the case could be reopened by the prosecutor “ if there were grounds ” to do so . The only exception to this rule was for cases where the time - limit for prosecuting crimes of that kind had expired .

LAW provided that , as a general rule , the information obtained in the course of the investigation was not public . The disclosure of that information might be authorised by the prosecuting authorities if disclosure did not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings . The information concerning the private life of the parties to the proceedings could not be made public without their consent .

Section CARDINAL of ORG . CARDINAL of ORG of DATE sets out a special procedure for bringing administrative and criminal proceedings against officials of the prosecution authorities . In particular , the officials who have the right to initiate such proceedings are exhaustively listed .

The Civil Code of GPE , which entered into force on DATE , provides for compensation for damage caused by an act or failure to act on the part of the ORG ( Article CARDINAL ) . Articles CARDINAL and CARDINAL - FAC of the Civil Code provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated for irrespective of any award for pecuniary damage .


The applicants , PERSON and PERSON , are “ permanently resident non - citizens ” of GPE , born in DATE and DATE respectively and living in GPE ( GPE ) . They were represented before the ORG by Mr PERSON PERSON , a lawyer practising in GPE .

In DATE the NORP ORG sold to a certain O.A.R. a plot of land CARDINAL sq . m in area with a semi - detached DATE house , located in PERSON ( in the suburbs of GPE ) . After O.A.R. ’s death in DATE , the property passed to his daughter , GPE

In DATE fear of NORP persecution forced GPE to go into exile in the LOC and abandon her property . The house was also considerably damaged during DATE .

In a decision of CARDINAL DATE the executive committee of ORG granted the right to use the above - mentioned land to Colonel PERSON ( the applicants’ father ) and Lieutenant Colonel PERSON , and calculated the actual value of the building on it . On DATE Mr S. and PERSON purchased the house by paying the tax authorities the sum of MONEY . In DATE and B. rebuilt the house .

In a decision of CARDINAL DATE the municipal authorities granted PERSON definitive right to use the land . However , on DATE those authorities divided the land into CARDINAL parts , CARDINAL of which were allocated to PERSON the third of which was placed in public ownership .

On DATE the municipality ’s executive council divided the house into CARDINAL parts and registered them as CARDINAL separate properties with different numbers . The title to CARDINAL of the parts was granted to the heirs of PERSON , who had died DATE ; title to the other CARDINAL was granted to PERSON ’s former wife .

In DATE the applicants were recognised as the heirs to equal portions of their ORG estate .

On DATE after GPE had regained its independence , ORG padome ) enacted the PERSON on the Return of Real Estate to ORG ( NORP “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” ) .

On DATE , in response to an application by O.A.R. ’s grandson , ORG restored ownership of the land in issue to ORG That decision did not , however , cover the buildings erected on the land .

In DATE A.R. asked ORG to set aside all the decisions taken in relation to the semi - detached house during the NORP period and recognise him as the legitimate owner .

In a judgment of DATE delivered after adversarial proceedings ORG allowed PERSON ’s application . The ORG noted first of all that although the house in issue had never been formally expropriated , it was covered by section CARDINAL of the PERSON on the Return of Real Estate to ORG , which excluded property abandoned for fear of persecution from the category of res nullius ( the property of nobody ) . The taking of possession of the property by the NORP local authorities in DATE had therefore been arbitrary and illegal , especially as it had not been based on any judicial decision . Furthermore , ORG pointed out that section CARDINAL of the aforementioned law precluded the return of items of property sold to private individuals acting in good faith by means of contracts certified by a notary . However , it noted that there had been no such contract in the instant case . Lastly , ORG rejected the ORG argument that the disputed house had been completely rebuilt by their father and was in fact a new item of property . In that connection , the ORG considered on the basis of the evidence produced that the repairs carried out ( the replacement of doors , windows and roofing and repairs to some of the walls ) were not sufficient to warrant the assertion that the initial building no longer existed and that PERSON had built a new house . Consequently , ORG declared the decision of CARDINAL DATE and all subsequent measures relating to the building null and void and ordered that it be returned to A.R.

The applicants appealed against that judgment to ORG of ORG , which , in a judgment delivered on DATE following adversarial proceedings , dismissed PERSON ’s application on the ground that the documents he had submitted were not sufficient to prove O.A.R. ’s title to the disputed house .

In a judgment of CARDINAL March CARDINAL ORG , ruling on an appeal on points of law lodged by PERSON , quashed the aforementioned judgment and remitted the case to ORG . According to ORG , as a building was in principle an adjunct to the land on which it was built , the house in question should , in the absence of any evidence to the contrary , have been considered to have belonged to the owner of the land , namely O.A.R.

In a judgment of CARDINAL DATE ORG of ORG allowed PERSON ’s application . Having established that the semi - detached house had indisputably belonged to O.A.R. , ORG ruled as follows :

“ ... Section CARDINAL of the PERSON on the Return of Real Estate to the Legitimate Owners provides that an item of property abandoned by its owner following the events of the Second World War , particularly in order to avoid persecution or other adverse consequences , can not be classed as res nullius .

It appears from the documents in the case file that in DATE , after the death of his grandmother , the appellant and his family left GPE to escape potential oppression .

The case file does not contain any information attesting to the legal basis for the taking of possession of the property by the executive committee ... . No judgment was adopted regarding a res nullius . ...

... [ T]he ORG considers that by taking possession of the disputed property without paying any compensation and by making use of it subsequently , the municipality infringed the rights of the legitimate owner and adopted a policy of administrative arbitrariness .

Under section CARDINAL of the PERSON on the Return of Real Estate to ORG , no court order can be made for the return of items of property acquired against payment by natural persons acting in good faith and on the basis of contracts certified by a notary .

The file does not contain any evidence that the property came into the ownership of [ S. ] and [ B. ] on the basis of an official conveyance certified by a notary . ...

That being so , ORG considers that [ B. ] and [ S. ] can not be regarded as purchasers acting in good faith within the meaning of section CARDINAL of the PERSON on the Return of Real Estate to ORG . ...

Since [ S. ] can not be deemed to have purchased the house in good faith , ORG considers the certificate of succession to the estate issued to PERSON [ and ] PERSON ... to be null and void ... ”

The applicants appealed on points of law against the above judgment cited above to ORG of ORG . In a judgment of DATE ORG , ruling as an extended bench of CARDINAL judges , rejected that appeal , upholding the reasons given by ORG .

The relevant provisions of the PERSON of DATE on the Return of ORG to ORG ( NORP “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” ) provide as follows :

“ Title to immovable property of which the ORG or legal persons took possession without paying compensation during the period DATE , as part of a policy which infringed the rights of owners and was tainted by administrative arbitrariness , shall be restored to the former owners or their heirs irrespective of their present nationality . ”

“ The property rights of former owners or their heirs who have lodged an application shall be restored by a court order in accordance with the provisions of LAW . ... ”

“ ... [ T]he courts may declare null and void measures taken by administrative authorities putting an end to or restricting a lawful right to property . ”

“ Immovable property that has come into the ownership of natural persons acting in good faith against payment and on the basis of contracts certified by a notary may not be returned ...

In this case , the former owner ( or his heir ) has the right to demand from the vendor who acquired the property compensation up to the price laid down in the contract of sale ; compensation corresponding to the real value of the property must be paid as provided by law . ... ”

“ Immovable property which had to be abandoned by its owner following the military operations of the Second World War , particularly in order to avoid potential repression or other adverse consequences , may not be regarded as res nullius . ... ”

“ Where the immovable property eligible to be claimed by means of a judicial remedy has not survived ... , former owners ( or their heirs ) are entitled to compensation as provided by law .

Immovable property which , after DATE , has been rebuilt in such a way that most of it ( CARDINAL percent ) amounts to a new building , shall also be considered not to have survived in substance . Where the construction or reconstruction has been carried out in breach of the requirements of a law or regulation or by an occupier acting in bad faith , that fact may not be relied on to dismiss an application for restitution of the property . ”

In a judgment of DATE ( case no . SKC-CARDINAL ) ORG held that a decision taken by the municipal authorities in DATE whereby a private individual was granted title to an expropriated house provided that he paid a sum to the tax authorities corresponding to the value of the building was equivalent to a “ contract certified by a notary ” within the meaning of section CARDINAL of the PERSON .

The relevant provisions of the NORP Civil Code ( Latvijas PERSON ) read as follows :

“ The claimant must prove that he has title . For this purpose , it is sufficient for him to show that he genuinely acquired that title in a legal manner ; it is subsequently for the defendant to prove that the claimant is no longer the owner .

Where the claimant maintains that he acquired the property from a third party through delivery or inheritance , he must prove that his predecessor was the owner . ”

“ The defendant may have the application dismissed if he proves that he has title to the property or the right to possess it on the basis of a right in rem or a right in personam which the claimant must respect . ”