Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicants are :

( CARDINAL ) Mr PERSON ( also spelled PERSON ) , who was born in DATE ,

( CARDINAL ) PERSON ( also spelled Shokarova ) , who was born in DATE ,

( CARDINAL ) PERSON ( also spelled Shokarova ) , who was born in DATE , and

( CARDINAL ) PERSON .

The first and second applicants are the parents of PERSON ( also known as ORG PERSON ( also spelled PERSON and PERSON ) , who was born in DATE , and Mr Visita ( also spelled Visit ) PERSON , who was born in DATE . PERSON was married to the third applicant ; PERSON was married to the fourth applicant . At the material time the Shokkarovs were residing in the PERSON camp for internally displaced persons in GPE , ORG . At some point later they moved back to PERSON , GPE , where they are currently residing .

At TIME on DATE a group of policemen from the ORG district department of the interior ( ROVD ) in ORG arrived at the PERSON camp in CARDINAL vehicles . They arrested PERSON and took him away without any explanation .

DATE PERSON relatives came to the ORG ; the policemen told them that PERSON was detained in the police station .

On DATE PERSON was charged with the aggravated murder of CARDINAL officials from the LOC administration in GPE .

On DATE the ORG authorised PERSON detention on remand until DATE , stating that there was a risk of his absconding from the authorities .

At some point the first applicant retained a lawyer to represent his son ’s interests . On DATE and DATE , as well as on DATE , the lawyer requested that he be allowed to contact PERSON , but to no avail .

On DATE PERSON and his co - accused Mr V.B. were taken for the reconstruction of events to the site of the murder in the FAC district . They were in a car driven by Mr B. , an officer of ORG ( ORG ) . Near ORG ( also spelled ORG ) in the GPE district the car fell into a pit and exploded . PERSON and Mr PERSON died , whereas officer PERSON survived .

On DATE PERSON lawyer again requested the investigators to allow him to visit PERSON and was informed that his client had died .

On DATE the FAC district prosecutor ’s office ( the ORG prosecutor ’s office ) ordered a post - mortem examination of PERSON corpse . The applicants were not informed about this decision .

DATE and DATE an expert of the PERSON forensic bureau carried out the autopsy . According to the report , PERSON had died from blunt complex trauma to the head and chest , which had been probably inflicted on him in the car crash . The expert also stated that the body had burned and charred after the death .

On DATE PERSON lawyer informed the applicants about his client ’s death . On DATE in the PERSON town morgue the applicants collected a burnt and unidentifiable corpse without internal organs ; they were told that it was PERSON body .

On DATE the PERSON forensic bureau issued a death certificate stating that PERSON had died on DATE in ORG as a result of “ blunt complex trauma to the head and chest with subarachnoid haematoma , cerebral injury , cardiac rupture , incomplete separation of the lung , burning and charring of the corpse ” .

On DATE the GPE district prosecutor ’s office in GPE requested that the applicants collect PERSON body , which had been brought to the PERSON morgue by Mr I. , an investigator from the PERSON prosecutor ’s office , on DATE . On an unspecified date the applicants visited the PERSON morgue , examined the corpse and concluded that it was not that of PERSON .

On DATE the military prosecutor ’s office of military unit no . CARDINAL ( “ the military prosecutor ’s office ” ) instituted criminal proceedings against the ORG officer PERSON , who had driven the exploded car , under LAW § CARDINAL of LAW ( breach of rules on using a special vehicle causing CARDINAL or more deaths ) . The case was assigned no . DATE .

On DATE the military prosecutor ’s office found that officer PERSON had lost control of the vehicle because PERSON had hit him and discontinued the proceedings against the officer for lack of corpus delicti .

On DATE the applicants appealed against the decision of CARDINAL DATE to ORG , ORG in GPE and ORG . They stated that PERSON self - incriminating statements and the confession to the murders had been made as a result of torture being applied to him and that the circumstances of his death in the car crash had not been effectively investigated . The applicants requested the courts to overrule the decision to terminate the investigation into the death of PERSON , to order the investigative authorities to carry out an effective investigation of his ill - treatment and death and to provide them and their representatives with access to the criminal case file . From the documents submitted to the ORG it follows that all of the complaints were lodged by the first applicant , who provided the courts with his address at the PERSON camp in GPE .

On DATE the ORG representatives requested ORG , ORG in GPE and ORG to inform them of the outcome of the examination of the complaints they had lodged in DATE .

On DATE the ORG informed the ORG representatives of the following :

“ ... ORG is informing you that ORG complaint against the law - enforcement agencies was examined and rejected on DATE .

A copy of this decision was forwarded to the applicant ’s address on DATE under outgoing no . CARDINAL . ”

According to the applicants , they neither participated in the examination of their complaint on DATE nor received the copy of the court ’s decision , since on an unspecified date in the DATE they had had to leave the PERSON camp owing to the dismantling of the camp by the local authorities . Therefore , in DATE they had not resided at the address provided by them to ORG . The applicants did not submit to the ORG any document confirming the dismantling of the camp in DATE .

On DATE the ORG informed the applicant that

“ ... on DATE ORG left V.A. PERSON ’s complaint unexamined as the criminal case concerning [ the death of ] PERSON had been investigated by a prosecutor ’s office in GPE . It was recommended that the applicant apply to the court where the relevant prosecutor ’s office was situated . ”

The applicants did not appeal against the decisions of the Nadterechniy and ORG .

According to the applicants , no reply was received from ORG to their request of DATE . The outcome of these proceedings remained unknown as the applicants did not lodge any further requests with the court .

On DATE the Special Envoy of the NORP President in GPE for Rights and Freedoms ( “ the Envoy ” ) , on behalf of the applicants , requested the ORG prosecutor ’s office to inform him of the whereabouts of PERSON and PERSON and the grounds for their arrest . The letter stated that the CARDINAL brothers had been detained by officers of the Sunzhenskiy ROVD on DATE , that PERSON had been arrested in the PERSON camp and that Visita had been arrested later on the same date on the premises of the ROVD .

On DATE the ORG prosecutor ’s office replied to the Envoy as follows :

“ ... on DATE officers of the ORG , acting on instructions from the LOC prosecutor ’s office in GPE , arrested PERSON ( a.k.a . PERSON ) on suspicion of murdering PERSON . ... and took him to the PERSON . PERSON was taken to the ROVD together with PERSON . On DATE the CARDINAL men were handed over to the head of the investigative unit of the LOC district prosecutor ’s office PERSON and officers of the Nadterechniy ROVD who accompanied him . ”

DATE the authorities conducted a forensic examination of PERSON corpse and issued his death certificate ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the first applicant requested the ORG district prosecutor ’s office ( “ the ORG prosecutor ’s office ” ) and the GPE prosecutor ’s office to conduct an investigation into PERSON arrest and death .

On DATE the GPE prosecutor ’s office informed the first applicant of the following :

“ On DATE officers of the LOC department of ORG , together with officers of ORG , acting on the basis of information concerning the murder of the head of the LOC administration , arrested PERSON Shokkarov . On DATE he was charged [ with a crime punishable ] under LAW and LAW ; on DATE his detention was authorised by a court . ”

The letter further mentioned that PERSON had partly confessed to the murder and described the circumstances of his death in the car crash . It also informed the applicants that the criminal proceedings against the ORG officer PERSON had been terminated for lack of corpus delicti .

On DATE the ORG prosecutor ’s office informed the applicants that PERSON death had been investigated by the military prosecutor ’s office and that the applicants had already been informed of the outcome of that investigation .

On DATE the ORG prosecutor ’s office informed the ORG representatives that on DATE the ROVD police officers had arrested PERSON on the basis of a written instruction from the ORG prosecutor ’s office . The letter further stated that PERSON had also been arrested and that on DATE , DATE , the PERSON brothers had been handed over to the investigator from the PERSON prosecutor ’s office , Mr GPE , and the servicemen of FAC .

On DATE the ORG prosecutor ’s office informed the ORG representatives that the military prosecutor ’s office had terminated the criminal proceedings against the ORG officer PERSON for lack of corpus delicti .

On DATE the first applicant complained to the GPE prosecutor ’s office , the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) , ORG office and ORG office and requested to be provided with a copy of the decision of DATE concerning the termination of the criminal proceedings for lack of corpus delicti . He stated that PERSON confession to the murders had been obtained under duress , that several attempts by his lawyer to meet PERSON in detention had been futile and that the circumstances of his death in the car crash had been suspicious . The applicant further requested that this decision be overruled , that the investigation of PERSON death be continued and that he and the ORG representatives be provided with access to the criminal case file .

On DATE the applicants requested the ORG prosecutor ’s office to provide them with copies of documents relating to the investigation of PERSON death . On DATE they appealed against the decision to discontinue the criminal investigation into PERSON death ( see paragraph CARDINAL above ) .

On DATE the ORG prosecutor ’s office informed the ORG representatives that the criminal case had been joined with another criminal case and transferred to ORG on DATE .

On DATE the ORG prosecutor ’s office in ORG informed the applicants of the following :

“ ... based on the information received from the Sunzhenskiy ROVD and the statement obtained from CARDINAL of the participants [ in the arrest ] , it was established that on DATE , at the request of police officers from FAC who had arrived with the investigator of the LOC prosecutor ’s office Mr GPE and the head of the criminal search department of the Nadterechniy ROVD Mr S. , the officers of ORG had assisted them in arresting the PERSON brothers , who had been suspected of killing of the head of the FAC district administration .

After the arrest the PERSON brothers had been taken away by the officers of the Nadterechniy ROVD ... ”

The letter further stated that the applicants could obtain additional information about the detention from the investigator Mr PERSON and the head of the criminal search department of the Nadterechniy ROVD , Mr S.

According to the Government , at the material time LOC , the PERSON prosecutor ’s office and the FAC department of the ORG were situated next to each other in the same courtyard .

NORP On DATE the GPE district prosecutor ’s office in GPE ( “ the GPE prosecutor ’s office ” ) opened criminal case no . DATE in connection with the murder of CARDINAL officials from the LOC administration .

On DATE , in the course of the investigation in criminal case no . CARDINAL , the law - enforcement agencies arrested PERSON , who subsequently confessed to murdering the CARDINAL officials from the FAC district administration . The ORG stated that according to the detention record dated DATE , PERSON had been detained on DATE , and not on DATE .

On DATE PERSON was charged with the CARDINAL murders and on DATE ORG remanded him in custody .

On DATE the ORG officers PERSON were requested by the investigation to convey PERSON and his co - accused Mr PERSON to ORG for the reconstruction of the crime . The reconstruction had been requested by PERSON and his co - accused . In the vicinity of the village PERSON hit the driver in the back of the neck . The latter lost control of the vehicle , and the car fell into an open pit , turned over and exploded . As a result , the servicemen managed to get out of the car , but PERSON and Mr PERSON remained inside and died .

On DATE the ORG prosecutor ’s office terminated the criminal investigation in case no . DATE in respect of PERSON on account of his death .

On DATE the military prosecutor ’s office opened criminal case no . CARDINAL - CARDINALD against the ORG officer PERSON under LAW CARDINAL § CARDINAL of LAW ( breach of rules on using a special vehicle causing CARDINAL or more deaths ) .

On DATE the military prosecutor ’s office discontinued the criminal proceedings against the officer for lack of corpus delicti .

On DATE criminal case no . CARDINAL - CARDINALD was transferred to the ORG prosecutor ’s office , where it was assigned no . DATE . On DATE the criminal case file was joined with criminal case no . CARDINAL under the joined number DATE .

On DATE ORG refused to examine the applicants’ appeal against the decision of DATE for lack of territorial jurisdiction . The applicants failed to appeal against that decision .

The Government submitted that the applicants had not appealed against the decision of CARDINAL DATE to any of the courts in GPE .

On DATE , while the applicants , their relatives and other residents of the Satsita camp were waiting outside the ORG building for news of PERSON following his arrest , CARDINAL men in civilian clothes approached PERSON . They asked his relatives to wait for Visita just for TIME and took him through the gates into the courtyard of the ROVD . The applicants have not seen him ever since .

On DATE the first applicant requested the ORG prosecutor ’s office in ORG to institute an investigation into PERSON disappearance . On DATE the ORG prosecutor ’s office forwarded the request to the ORG prosecutor ’s office in GPE .

On DATE the first applicant complained about the abduction of PERSON and the death of PERSON to the GPE prosecutor ’s office . The complaint was received by the office on DATE .

On DATE the GPE prosecutor ’s office informed the applicants that the criminal proceedings concerning the death of PERSON had been terminated on DATE for lack of corpus delicti . The letter also stated that

“ ... PERSON , who had been detained with PERSON , was released by officers of ORG after a check ... ”

On DATE the ORG prosecutor ’s office dismissed the first applicant ’s complaint about the abduction of PERSON , stating that PERSON had been lawfully arrested in connection with criminal case no . TIME ( it appears that the investigators confused PERSON with his brother PERSON ) . They also noted that “ the military prosecutor ’s office had opened an investigation into PERSON death ” and that the applicant had been informed about its outcome .

On DATE the ORG prosecutor ’s office informed the ORG representatives that on DATE the ROVD police officers had arrested PERSON along with his brother PERSON and that on the same date , DATE , the PERSON brothers had been handed over to the investigator of the PERSON prosecutor ’s office , Mr GPE , and the servicemen of FAC from GPE , and that the subsequent whereabouts of the brothers were unknown to the ORG prosecutor ’s office ( see paragraph CARDINAL above ) .

On DATE the ORG prosecutor ’s office instituted an investigation into ORG disappearance under LAW ( kidnapping ) . The case was assigned no . DATE . The applicants were informed of the decision on DATE .

On DATE the ORG prosecutor ’s office granted the third applicant victim status in the criminal case . The decision stated that on DATE PERSON had been arrested along with his brother PERSON and taken to ORG and subsequently to the village of PERSON in the GPE district , and released DATE . However , PERSON had not returned home and had gone missing .

On DATE the GPE prosecutor ’s office informed the third applicant that an investigation into PERSON abduction was under way .

On an unspecified date the third applicant complained about the disappearance of PERSON to the PERSON district prosecutor ’s office in GPE . On DATE the office informed her that Visita had not been detained in the PERSON .

On DATE the third applicant complained to the Envoy about the abduction of PERSON . On DATE this complaint was forwarded to the GPE prosecutor ’s office and on DATE it was received by the ORG prosecutor ’s office .

On an unspecified date the PERSON forensic bureau informed the investigators that on DATE an investigator from the ORG prosecutor ’s office had brought PERSON corpse to the morgue and requested the third applicant to collect it . It appears that the investigator had been confused and instead of stating that the corpse belonged to PERSON he had stated that it had belonged to PERSON .

On DATE the ORG prosecutor ’s office opened criminal case no . DATE ( also referred to as no . MONEY ) under LAW § CARDINAL of LAW ( kidnapping ) in connection with the abduction of PERSON from ORG on DATE .

On DATE the investigators granted the third applicant victim status in the criminal case and questioned her . The applicant stated that on DATE her relative PERSON and another man had been taken from the camp in GPE by armed masked men to the ORG in Ingushetia . After that she , her husband Visita and other relatives had gone to the ROVD to find out the reasons for PERSON ’s arrest . Near the ROVD her husband Visita had been approached by CARDINAL men , who had come out of the ROVD building . They had taken Visita into the police station . The applicant had attempted to follow Visita , but she had been stopped at the entrance by the deputy head of the ROVD , Mr GPE , who had told her that Visita had been taken in for questioning and would be released shortly afterwards . The applicant had seen through a crack in the fence that her husband Visita and his brother PERSON had been put by police officers into a UAZ car and after that the car had driven away . After that the ROVD policemen had told her that Visita had been taken from ORG , in the Nadterechniy district , GPE , by representatives of ORG . On DATE after Visita ’s abduction , the applicant and her relatives had gone to PERSON , where the investigator of the PERSON prosecutor ’s office Mr PERSON had informed her , having been in touch with the local branch of the ORG , that on DATE after the arrest PERSON had been released from the ORG and apparently had gone home . After that the applicant had requested information concerning ORG whereabouts at FAC , where she had been informed that he had not been detained there .

On DATE the investigators forwarded a number of information requests to various law - enforcement agencies in GPE , PERSON , ORG and the PERSON region , asking for any information concerning PERSON whereabouts . No pertinent information was received as a result .

On DATE the investigators questioned the first applicant , who stated that on DATE officers of ORG had arrived in CARDINAL ORG vehicles and taken away his son PERSON . Immediately after that the applicant and his relatives had gone to the PERSON , where the head of the ROVD had told him that PERSON had been suspected of murdering an official from the LOC administration . DATE , when the applicant had returned to the ROVD , he had seen the third applicant , who had been crying and waiting next to the police station . She had told him that the police officers had taken away her husband Visita . CARDINAL of them , a certain “ ORG ” , had told her that the police would soon release her husband . At TIME on DATE , DATE , CARDINAL ORG cars had left the courtyard of the ROVD and driven away to an unknown destination . After that the head of the ROVD had told the applicant and his relatives that the PERSON brothers had been taken by investigator Mr PERSON from the PERSON prosecutor ’s office to the village of GPE in GPE . On DATE the applicant had been informed by ORG that he could bring food and warm clothing for his detained sons . The applicant had brought some food and passed it on to the ORG officers . DATE the third applicant had gone to PERSON , where she had been told that PERSON had been released DATE after the arrest and that PERSON had continued to be detained on suspicion of killing the official .

On an unspecified date ORG informed the investigators that it had not arrested or detained PERSON and that he had not been listed as a member of any illegal armed groups .

On DATE the investigators questioned the investigator of the ORG prosecutor ’s office Mr GPE , who stated he could not recall the relevant details of the criminal investigation owing to the passing of time , but stated that he had requested the local court to remand PERSON in custody and that he could not recall whether CARDINAL or both brothers had been detained .

DATE . On DATE ( in the documents submitted the date was also indicated as DATE ) the investigators questioned police officer PERSON FAC , who stated that PERSON had not been brought to the ROVD and that the police had not conducted any checks in respect of him .

On DATE and DATE or DATE the investigators questioned Mr PERSON . and PERSON . T. , both of whom had been officers of ORG at the material time . Their statements were similar to the CARDINAL given by officer PERSON

On DATE ( in the documents submitted the date was also indicated as DATE ) the investigators examined the registration log of detainees in the Nadterechniy ROVD for the period between CARDINAL October CARDINAL and DATE . As a result , it was established that during this period PERSON had not been detained in the ROVD .

On DATE the investigators suspended the investigation in the criminal case owing to the failure to identify those responsible for PERSON abduction . The third applicant was informed of that decision .

On DATE the decision to suspend the investigation was overruled by the supervising prosecutor and the proceedings in the criminal case were resumed .

On DATE the Nadterechniy ROVD informed the investigators that they had not arrested or detained the PERSON brothers .

On DATE the Nadterechniy department of the ORG informed the investigators that no special operations had been conducted against the PERSON brothers in PERSON .

NORP Despite specific request by ORG did not disclose most of the contents of the criminal case files opened in connection with the death of PERSON and the abduction of PERSON . The Government provided copies of documents from the criminal case files running to CARDINAL pages ; the vast majority of the documents concerned third persons and only a few were relevant to the applicants’ complaints . The Government stated that the investigation was in progress and that disclosure of the other documents would be in violation of LAW , since the file contained information concerning witnesses or other participants in criminal proceedings .

DATE . For a summary of the relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Alvina Gyulumyan;András Baka;Christos Rozakis;Elisabet Fura;Georg Ress;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Snejana Botoucharova

The applicant was born in DATE and lives in GPE ( GPE ) .

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

On DATE CARDINAL plain - clothes policemen observed the applicant on CARDINAL different occasions take a tiny plastic bag ( a socalled “ bubble ” ) out of his mouth and hand it over to another person in exchange for money . Believing that these bags contained drugs , the police officers went to arrest the applicant , whereupon he swallowed another bubble he still had in his mouth .

NORP The police officers did not find any drugs on the applicant . Since further delay might have frustrated the conduct of the investigation , the public prosecutor ordered that emetics ( Brechmittel ) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag ( Exkorporation ) .

The applicant was taken to a hospital in LOC . According to the Government , the doctor who was to administer the emetics questioned the applicant about his medical history ( a procedure known as obtaining an anamnesis ) . This was disputed by the applicant , who claimed that he had not been questioned by a doctor . As the applicant refused to take the medication necessary to provoke vomiting , he was held down and immobilised by QUANTITY police officers . The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose . In addition , the doctor injected him with apomorphine , another emetic that is a derivative of morphine . As a result , the applicant regurgitated one bubble containing QUANTITY of cocaine . TIME after being arrested and taken to the hospital , the applicant was examined by a doctor and declared fit for detention .

When visited by the police in his cell TIME after being given the emetics , the applicant , who was found not to speak NORP , said in broken LANGUAGE that he was too tired to make a statement about the alleged offence .

Pursuant to an arrest warrant that had been issued by ORG , the applicant was remanded in custody on DATE .

The applicant maintained that for DATE following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for DATE because of wounds he had received when the tube was inserted . This was disputed by the Government , who stressed that the applicant had failed to submit a medical report to prove his allegation .

DATE after the administration of the emetics , the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach . He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid . The medical report did not expressly associate this condition with the forced administration of the emetics .

The applicant was released from prison on DATE . He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics . He did not submit any documents to confirm that he had received medical treatment . The Government , for their part , maintained that the applicant had not received any medical treatment .

In his submissions dated DATE to ORG , the applicant , who was represented by counsel throughout the proceedings , objected to the use at his trial of the evidence obtained through the administration of emetics , a method he considered to be illegal . By using force to provoke the regurgitation of the bubble of cocaine , the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties ( ORG ) . The administration of toxic substances was prohibited by LAW ( see paragraph CARDINAL below ) . His bodily functions had been manipulated , since bodily activity had been provoked by suppressing the control reactions of the brain and the body . In any event , administering emetics was a disproportionate measure and therefore not authorised by LAW ( see paragraphs CARDINAL and CARDINAL below ) . It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally . The applicant further argued that the only other method authorised by LAW would have been irrigation of the stomach .

On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE imprisonment , suspended , and probation . It rejected the defence ’s argument that the administration of emetics under LAW was a disproportionate means of recovering a bubble containing just QUANTITY of cocaine .

NORP The applicant appealed against the judgment .

On CARDINAL DATE ORG upheld the applicant ’s conviction but reduced the length of the suspended prison sentence to DATE . It further ordered the forfeiture ( PERSON ) of MONEY that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of CARDINAL drug bubbles .

ORG found that the evidence obtained following the public prosecutor ’s order to provoke the regurgitation of the bubble of cocaine was admissible . The measure had been carried out because further delay might have frustrated the conduct of the investigation . Pursuant to LAW , the administration of the substances in question , even if effected against the suspect ’s will , was legal . The procedure had been necessary to secure evidence of drug trafficking . It had been carried out by a doctor and in compliance with the rules of medical science . The defendant ’s health had not been put at risk and the principle of proportionality had been adhered to .

NORP The applicant appealed against this judgment on points of law . He argued in particular that LAW did not authorise the administration of emetics , as it did not permit the administration of life - threatening substances by dangerous methods . Furthermore , Article CARDINALa prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction . He further submitted that the impugned measure had violated ORG and CARDINAL of LAW ( Grundgesetz – see paragraphs CARDINAL - CARDINAL below ) , and disregarded in particular the right to respect for human dignity .

On DATE ORG dismissed the applicant ’s appeal . It found that ORG judgment did not contain any error of law that was detrimental to the accused .

The applicant lodged a complaint with ORG . He reiterated that the administration of emetics was a disproportionate measure under LAW .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible under the principle of subsidiarity .

It considered that the administration of emetics , including apomorphine , a morphine derivative , raised serious constitutional issues with respect to the right to physical integrity ( LAW see paragraph CARDINAL below ) and to the principle of proportionality which the criminal courts had not yet addressed .

The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal ( alle prozessualen GPE ) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in LAW , first sentence , of LAW ( um eine PERSON und ORG . CARDINAL Abs . CARDINAL PERSON ) .

It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by LAW or the principle against self - incrimination guaranteed by LAW read in conjunction with LAW .

Article CARDINAL § CARDINAL of LAW reads as follows :

“ The dignity of human beings is inviolable . All public authorities have a duty to respect and protect it . ”

Article CARDINAL , in so far as relevant , provides :

“ CARDINAL . Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ] .

Every person shall have the right to life and physical integrity . ... ”

Article CARDINALa of the Code of Criminal Procedure , in so far as relevant , reads as follows :

“ CARDINAL . A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings . To this end , blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused ’s consent , provided that there is no risk of damage to his health .

Power to make such an order shall be vested in the judge and , in cases in which delay would jeopardise the success of the examination , in the public prosecutor ’s office and officials assisting it ... ”

Article CARDINALa of the Code of Criminal Procedure on prohibited methods of interrogation ( verbotene Vernehmungsmethoden ) provides :

“ CARDINAL . NORP The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill - treatment , induced fatigue , physical interference , the administration of drugs , torment , deception or hypnosis . Coercion may be used only in so far as it is permitted by the law on criminal procedure . Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited .

Measures which impair the accused ’s memory or ability to understand and accept a given situation [ Einsichtsfähigkeit ] shall not be permitted .

The prohibition under sub - paragraphs CARDINAL and CARDINAL shall apply even if the accused has consented [ to the proposed measure ] . Statements obtained in breach of this prohibition shall not be used [ in evidence ] , even if the accused has agreed to their use . ”

NORP criminal courts and legal writers disagree as to whether LAW of LAW authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest .

The view taken by the majority of the NORP courts of appeal ( see , inter alia , the decision of ORG of DATE , ORG - RR CARDINAL , p. CARDINAL , and the judgment of ORG of DATE , PERSON DATE , pp . CARDINAL - CARDINAL ) is that LAW can serve as a legal basis for the administration of emetics in such circumstances .

For example , in its judgment cited above , ORG had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused . It found :

“ Pursuant to LAW , first sentence , of LAW , a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings . ...

( a ) Contrary to the view taken by the appellant , legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision ( see PERSON , ORG , CARDINALnd edition , § CARDINAL ; GPE in ORG , ORG , CARDINALth edition , § CARDINAL ; PERSON , ORG , CARDINALth edition , § § CARDINAL , DATE ; see , with regard to LAW , PERSON , SKStPO , Article CARDINALa , § CARDINAL and NStZ DATE , pp . CARDINAL - CARDINAL , and PERSON , NJW DATE , pp . CARDINAL et seq . ; contrast ORG , ORG , p. CARDINAL with note by GPE , StV DATE , p. CARDINAL ) .

This intrusion also does not violate human dignity protected by LAW or the principle against self - incrimination contained in LAW read in conjunction with LAW . Pursuant to LAW , third sentence , of LAW , interferences with these basic rights are permitted if they have a statutory basis . ORG has already found on several occasions that , as a statutory provision enacted by ORG , Article CARDINALa of the Code of Criminal Procedure meets this requirement ... Furthermore , it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either ( see ORG , StV DATE , p. DATE the decision in the present case ) . It did not , therefore , find it necessary to discuss in detail the opinion expressed by the GPE ( ORG ( ORG DATE , pp . DATE ) which is occasionally shared by legal writers ( see GPE , StV DATE , pp . CARDINAL - CARDINAL ) , ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to , namely regurgitate . ORG does not share the [ ORG ’s ] view either , as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘ involuntary bodily ORG . ...

( e ) ... this ORG does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force . That point is not in issue in the present case ... ORG ... stated that [ on the facts of ] the case decided by the GPE ( ORG it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure . It did , however , expressly and convincingly demonstrate that the facts of the present case were different . ”

In its judgment of DATE , however , the GPE ( ORG held that LAW did not authorise the administration of emetics . The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine . The court found :

“ The forced administration of emetics was not covered by LAW . Even Article CARDINALa does not justify the administration of an emetic by force . Firstly , the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision . It is true that searching for foreign objects may be justified by LAW ... However , the emetic was used not to search for foreign objects , but to retrieve objects – whose presence was at least probable – in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles CARDINAL , CARDINAL et seq . of LAW than to a physical examination ... – although those provisions do not , on the face of it , include forcible interference with a person ’s physical integrity as a possible measure . ...

Secondly , an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [ ORG ] , since its purpose is to force the accused actively to do something that he is unwilling to do , namely regurgitate . This is neither permitted under LAW nor compatible with the position of the accused in criminal proceedings . ...

Consequently , the conduct of the prosecuting authorities constitutes unlawful interference with the accused ’s physical integrity ( LAW , first sentence , of LAW ) . ...

The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused ’s general personality rights ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . ...

The prohibition on obtaining the evidence [ in that manner ] ... ”

According to many legal writers , LAW authorises the administration of emetics to suspected drug dealers in order to obtain evidence ( see also the authors cited above at paragraph CARDINAL ) . This view is taken , for example , by PERSON ( NStZ DATE , pp . CARDINAL - CARDINAL and PERSON zur GPE und zum Gerichtsverfassungsgesetz , PERSON , Article CARDINALa StPO , § DATE ) and by PERSON and PERSON ( ORG , CARDINALth edition , Article CARDINALa , § DATE administration of emetics permitted for the investigation of serious offences ) .

A considerable number of legal writers , however , take the view that LAW , Article CARDINALa in particular , does not permit the administration of emetics . This opinion is held , for example , by PERSON DATE , pp . CARDINAL , and KritV DATE , pp . CARDINAL - CARDINAL ) , who considers that Article CARDINALa does not authorise a search – as opposed to an examination – of the interior of a defendant ’s body . Vetter ( NORP des § CARDINALa ORG – PERSON am PERSON der Brechmittelvergabe i m strafrechtlichen ORG , Neuried DATE , pp . DATE , CARDINAL ) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science , disproportionate and liable to damage the defendant ’s health .

Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view . While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment , others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out .

The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons , it may nevertheless serve to prevent a possibly life - threatening intoxication . As the packaging of drugs swallowed on arrest is often unreliable , it is preferable from a medical standpoint for emetics to be administered . This measure poses very few risks , whereas there is a danger of death if the drugs are allowed to pass through the body naturally . Drugs can be extracted from the stomach up to TIME , in some cases CARDINAL , after being swallowed . Administering emetics is a safe and fast method ( the emetic usually takes effect within TIME ) of retrieving evidence of a drugs offence , as it is rare for them not to work . Even though the forcible introduction of a tube through the nose can cause pain , it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat ( see , inter alia , PERSON , PERSON , PERSON , PERSON and PERSON , “ ORG – Erfahrungen i m LOC ” , Kriminalistik CARDINAL/CARDINAL , pp . CARDINAL - CARDINAL ) .

The emetic ipecacuanha syrup has a high margin of safety . ORG to be expected merely take the form of drowsiness , diarrhoea and prolonged vomiting . Rare , more serious complications include ORG syndrome or aspiration pneumonia . These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics , notably that the patient is fully alert and conscious , are not observed ( see , for example , PERSON , PERSON , PERSON , PERSON and PERSON , cited above , pp . CARDINAL - CARDINAL , and ORG and ORG , “ Position Paper : Ipecac Syrup ” , ORG , ORG , vol . DATE , no . DATE , pp . CARDINAL , in particular , p. CARDINAL ) .

Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks . Even though it is desirable for drugs to be eliminated from the suspect ’s body as quickly as possible , the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences . Furthermore , if the tube is badly positioned liquid may enter the lungs and cause choking . Forced regurgitation also involves a danger of vomit being inhaled , which can lead to choking or a lung infection . The administration of emetics can not therefore be medically justified without the consent of the person concerned , and , without this consent , this method of securing evidence will be incompatible with the ethics of the medical profession , as has been illustrated in particular by the death of a suspect following such treatment ( see , inter alia , PERSON , PERSON and PERSON , PERSON , DATE , pp . DATE ; ORG of ORG , report dated DATE in response to ORG request to assess the dangers involved in the forcible administration of emetics ; and the resolution adopted by the CARDINALth German Medical Conference , Activity Report of ORG , point CARDINAL ) .

There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the NORP Länder . Since DATE , CARDINAL of the CARDINAL Länder ( GPE , GPE , GPE , GPE and GPE ) have used this measure on a regular basis . Whereas some ORG discontinued its use following the death of a suspect , others are still resorting to it . In the vast majority of cases in which emetics have been used , the suspects chose to swallow the emetic themselves , after being informed that it would otherwise be administered forcibly . In other ORG , emetics are not forcibly administered , partly because , on the basis of medical advice , it is regarded as a disproportionate and dangerous measure , and partly because it is not considered a necessary means of combating drugs offences .

There have been CARDINAL fatalities in GPE as a result of the forcible administration of ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach . In DATE a NORP national died in GPE . According to the investigation , he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics . He was found to have been suffering from an undetected heart condition . In DATE a ORG national died in GPE . The investigation into the cause of his death has not yet been completed . The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs . Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect ’s stomach and against the emergency doctor called to attend to him .

As a consequence of the fatality in GPE , the Head of ORG ( Leitender Oberstaatsanwalt ) has ordered the forcible administration of emetics to be discontinued in GPE for the time being . Pending the outcome of the investigation , a new procedure has been set up by the Senators for ORG and the ORG . Under this procedure , a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body . The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health . Otherwise , he is detained in a specially equipped cell until the drug packages are passed naturally .

The Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment , as adopted by ORG on DATE ( resolution CARDINAL ) , provides :

“ For the purposes of this Convention , the term ‘ torture’ means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions . ”

“ ORG shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings , except against a person accused of torture as evidence that the statement was made . ”

“ ORG shall undertake to prevent in any territory under its jurisdiction other acts of cruel , inhuman or degrading treatment or punishment which do not amount to torture as defined in DATE , when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . In particular , the obligations contained in LAW , DATE , DATE and CARDINAL shall apply with the substitution for references to torture of references to other forms of cruel , inhuman or degrading treatment or punishment . ”

In GPE v. GPE ( CARDINAL GPE CARDINAL ( DATE ) ) , ORG reversed the petitioner ’s conviction for unlawful possession of drugs . On the basis of information that the petitioner was selling narcotics , CARDINAL state officers entered his home and forced their way into his bedroom . They unsuccessfully attempted to extract by force drug capsules which the petitioner had been observed to put into his mouth . The officers then took him to a hospital , where an emetic was forced through a tube into his stomach against his will . He regurgitated CARDINAL capsules which were found to contain morphine . These were admitted in evidence in the face of his objection . ORG held on DATE that the conviction had been obtained by methods in violation of ORG in LAW .

Mr Justice PERSON , delivering the opinion of the ORG , found :

“ Applying these general considerations to the circumstances of the present case , we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically . This is conduct that shocks the conscience . Illegally breaking into the privacy of the petitioner , the struggle to open his mouth and remove what was there , the forcible extraction of his stomach ’s contents DATE this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities . They are methods too close to the rack and the screw to permit of constitutional differentiation .

It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained . This was not true even before the series of recent cases enforced the constitutional principle that the GPE may not base convictions upon confessions , however much verified , obtained by coercion . ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this ORG to hold that in order to convict a man the police can not extract by force what is in his mind but can extract what is in his stomach .

To attempt in this case to distinguish what lawyers call ‘ real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions . Use of involuntary verbal confessions in ORG criminal trials is constitutionally obnoxious not only because of their unreliability . They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true . Coerced confessions offend the community ’s sense of fair play and decency . So here , to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us , would be to afford brutality the cloak of law . Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society . ”

In State of GPE v. PERSON ( DATE WL CARDINAL ( ORG . CARDINAL Dist . ) ) , ORG held on DATE that the pumping of the defendant ’s stomach in the face of his objections was not an unreasonable search and seizure . The defendant was observed engaging in a hand - to - hand transaction typical of drug dealing . When police officers ordered the defendant to their vehicle , he put something in his mouth and ran off . In the opinion of the court , flushing out the defendant ’s stomach by gastric lavage by a physician in a hospital setting was not an unreasonable measure , even though the defendant violently objected to the procedure and had to be sedated . Swallowing the cocaine , which had been seen in the defendant ’s mouth , put his life in jeopardy and he was destroying evidence .

Mr Justice PERSON , delivering ORG opinion , found :

“ CARDINAL . PERSON directs us to NORP v. GPE , CARDINAL GPE DATE ) , ... CARDINAL of the prominent cases on intrusive searches .

Rochin is not dispositive , however . After ORG decided PERSON v. GPE , CARDINAL GPE CARDINAL ( DATE ) , CARDINAL ORG . DATE , CARDINAL ORG CARDINAL , in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision . ORG noted that ‘ LAW proper function is to constrain , not against all intrusions as such , but against intrusions which are not justified in the circumstances , or which are made in an improper manner’ . ... Finding no LAW violation , the ORG set forth several criteria to be considered in determining the reasonableness of an intrusive search : CARDINAL ) the government must have a clear indication that incriminating evidence will be found ; CARDINAL ) the police officers must have a warrant , or , there must be exigent circumstances , such as the imminent destruction of evidence , to excuse the warrant requirement ; and CARDINAL ) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner .

Applying the PERSON factors to the facts of this case , it is apparent that the pumping of Williams’ stomach was a lawful search and seizure . First , the officers observed PERSON in an area known for illegal drug activity engage in a hand - to - hand transaction indicative of drug activity . When he saw the officers , he put whatever was in his hand in his mouth and then ran away . This behavior was a ‘ clear indication’ to the officers that PERSON had secreted drugs in his mouth . Moreover , it was reasonable for the officers to conclude that Williams’ life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it . Furthermore , PERSON was destroying the evidence necessary to convict him of drug possession . Accordingly , this case falls within the exigent circumstances exception to the warrant requirement .

Finally , it is apparent that the method and manner of the search were not unreasonable . The facts indicate that a physician administered Williams’ medical treatment in a hospital setting , according to accepted medical procedures ...

In PERSON , ORG expressed an acceptance of a search conducted in a reasonable manner by a physician . The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening .

Assuming that [ a defendant ] swallowed the cocaine , if the drugs were packaged in such a way as to be impervious to intestinal processes , the physician would certainly be in a position to pump the stomach of the [ defendant ] , which is a reasonable medical procedure less traumatic than the forced emetic in DATE . Again , this is the kind of conduct that PERSON finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision . ”

The Government submitted a survey based on information obtained from the governments of the member ORG via their Agents or , if the government concerned had not provided information , from ORG in the country concerned . According to the survey , emetics are forcibly administered to suspected drug dealers in practice in CARDINAL countries ( GPE , GPE , “ the former GPE ” and GPE ) . In CARDINAL countries emetics are not used against a suspect ’s will to retrieve drug bubbles that have been swallowed ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . In CARDINAL countries ( GPE , GPE and GPE ) there is a legal basis for the use of emetics , but no information was supplied as to whether this measure is applied in practice . No information with respect to the use of emetics in practice was obtained from CARDINAL member GPE ( GPE , GPE , GPE , GPE , GPE and GPE ) .

The applicant partly contested the ORG ’s findings . He noted that the ORG had said that CARDINAL countries other than GPE ( GPE , “ the former GPE ” and GPE ) permitted the administration of emetics to suspected drug dealers and used the measure in practice . However , he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused ’s will in those member GPE . With respect to GPE in particular , the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal . As regards the administration of emetics in GPE , GPE and GPE , he contested the existence of any legal basis for such a measure in those countries , irrespective of the position in practice . Consequently , GPE was the only ORG which was proven to actually resort to the impugned measure . In all the other member GPE the authorities waited for the drugs to pass through the body naturally .

Other materials before the ORG confirm the parties’ findings that emetics are not forcibly administered in practice in GPE examined ( GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) . In these GPE , the authorities wait for the drugs to pass through the body naturally . Use is routinely made of special toilets to recover and clean drugs that have been swallowed . The materials further indicated that in GPE special toilets ( so - called LAW toilets ) are generally used in order to recover ingested drugs . However , during its visit to GPE in DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) witnessed the administration of an emetic ( brine ) to a detainee in GPE police headquarters ( see the ORG report on its visit to GPE in DATE , § DATE ) . With respect to GPE , it has not been confirmed whether emetics are administered by force in practice .


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

By a judgment of DATE ORG dismissed the applicant ’s appeal against a second - instance administrative decision of DATE by which the second - instance authority had refused to acknowledge that the applicant ’s ailment was of an occupational character .

This judgment was served on the applicant on DATE .

On DATE the applicant requested to be granted legal aid .

On an unspecified date ORG refused to assign a lawyer to the case . Subsequently , on DATE it allowed the applicant ’s request after ORG had instructed it that it had no right to refuse .

On DATE the lawyer assigned to the case had effective access to the case - file . On DATE the lawyer lodged a cassation appeal together with a request for retrospective leave to appeal out of time with ORG .

By a decision of CARDINAL DATE that court rejected the cassation appeal . It noted that the DATE time - limit for lodging a request for leave to appeal out of time had started , at the latest and if counted in a manner most advantageous to the applicant , on DATE when the legal - aid lawyer had had an opportunity to have effective access to the case file . In the present case that time - limit had started to run on DATE , while the request had been lodged with the court on DATE . It had therefore to be rejected for failure to comply with the time - limit .

NORP The lawyer appealed . On DATE ORG upheld the contested decision and shared the legal view expressed by the regional court .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legallyaided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant caselaw of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legalaid lawyer ( I FZ CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ) .


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

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

ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .

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

On DATE ORG of the ORG opened a criminal investigation of the activities of PERSON . PERSON . , the director of the said company , testified that PERSON was de facto in charge of the company ’s activities .

NORP The investigator established that Mr NORP had visited a certain law office on several occasions , and asked the court to authorise a search of its LOC in order to seize the company ’s financial documents and stamps .

On DATE the GPE ORG granted the investigator ’s request . The court order referred to a search of a law office located in a block of flats . Neither the applicant ’s name nor specific flats owned by him were indicated . The applicant ’s flats were searched DATE on the basis of the court order .

On DATE the applicant complained to the court . He sought to have the search declared unlawful .

On DATE ORG dismissed the applicant ’s complaint . The court found that the search had been carried out in accordance with the applicable provisions of the rules of criminal procedure . The applicant appealed , alleging that the court had erred in matters of law .

On DATE ORG upheld the decision of CARDINAL November CARDINAL on appeal . The court dismissed the applicant ’s allegations as unsubstantiated and found no violation of any applicable law . The court noted that the search had been subject to prior judicial approval and had been conducted by authorised persons .

On DATE the ORG of ORG quashed , by way of supervisory review , the decisions of DATE and DATE and remitted the matter for fresh consideration .

On DATE ORG allowed the applicant ’s claim and found the search of the applicant ’s flats to be in contravention of LAW of LAW of GPE . The court established that the order of DATE had not authorised a search of the applicant ’s flats . It also accepted the applicant ’s argument that police officer PERSON , who had conducted the search of the flats , had not been authorised to do so .

On DATE ORG upheld the decision of CARDINAL DATE on appeal .

The LAW of the Russian Federation establishes that the home is inviolable . No one shall enter a dwelling against the will of those living there , unless otherwise established by a federal law or in accordance with a court order ( LAW ) .


Violation of Art. 3 (substantive aspect)

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicants were born in DATE and DATE respectively .

On DATE a large group of demonstrators , including the applicants , gathered in FAC in front of ORG in GPE to attend the reading out of a statement to the press in protest against the NATO summit which was being held in GPE on DATE . The demonstration was organised by KESK ( ORG – ORG ) . A large group of police officers , all wearing helmets and gas masks and equipped with the necessary material , was also deployed to the area . CARDINAL demonstrators took part in the demonstration and slogans were chanted against ORG . After the statement was read out by the representative of KESK , the demonstrators started to disperse . A small group of demonstrators , carrying the flags of their non - governmental organisation PERSON LOC ) , walked towards the police officers who had blocked FAC to prevent the group from approaching FAC . The demonstrators attacked the police officers with sticks and stones and the police officers used tear gas and truncheons to disperse the group . Some of the nearby shops and vehicles were damaged during the incident . According to the incident report , QUANTITY police officers were wounded during the incident .

The applicants , who had listened to the press statement , were arrested during this incident . According to the applicants , they were beaten and insulted during and after their arrest . DATE , they were taken to ORG for a medical examination . According to the applicants , the doctor examined them in the presence of the police officers . A copy of the medical report is not included in the case file .

On DATE the applicants were taken to ORG for a further medical examination . The doctor who examined the applicants concluded that both of them were unfit to work for DATE . The following findings were noted in the medical report :

– PERSON : Large bruises on the back of the upper left arm , bruises on the back , bruises on the shoulders and on the waist , bruises on the right shoulder , bruises on the left gluteal region , tenderness of the left leg .

– GPE Kurtuluş Öngel : Several bruises on the back of the left shoulder , bruise on the upper side of the right shoulder blade , bruises on the left and right sides of the back , a bleeding wound on the left elbow , a bruise on the right knee , bruises on the left knee . The doctor also noted that the applicant had a nose bleed .

DATE , the applicants were released upon the order of ORG .

On DATE the applicants filed a petition with the ORG public prosecutor against the police officers who had carried out their arrest . In their petition , the applicants complained , inter alia , that their arrest had been unlawful and that the police officers had used excessive force during and after the arrest .

On DATE the ORG public prosecutor issued a decision of non - prosecution in respect of the police officers who had been on duty at the relevant time . In his decision , the public prosecutor considered that the force used by the security forces had been in line with LAW no . DATE on the Duties and Powers of the Police and had not been excessive . In the public prosecutor ’s opinion , the injuries sustained by the applicants had been caused by a use of force which was proportionate . In delivering this decision , the public prosecutor had regard to the fact that after the press statement had been read out , a group of CARDINAL people had not dispersed and had attacked the police officers with sticks and stones , also causing damage to nearby shops and vehicles . In the public prosecutor ’s opinion , the force used by the police had therefore been proportionate .

On DATE the applicants filed an objection against the public prosecutor ’s decision .

On DATE ORG dismissed the applicants’ objection .

In the meantime , on DATE , the ORG public prosecutor filed a bill of indictment against DATE accused , including the applicants , with ORG and accused them under LAW no . CARDINAL of taking part in an illegal demonstration without prior authorisation and of not dispersing despite the police ORG warning . QUANTITY police officers , who had been wounded during the incident , joined the proceedings as intervening parties .

On DATE ORG acquitted the applicants of the charges against them . In delivering its decision , ORG had regard to a video recording of the incident , to witness statements and to the submissions of the intervening parties . The court found it established that the applicants were not amongst the demonstrators who had been carrying “ Halkevleri ” flags and had attacked the police officers . The court accordingly stated that there was no evidence in the file to support a finding that the applicants had violated PERSON no . CARDINAL or resisted the police officers as alleged .

Article CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :

“ The police may use firearms :

( a ) In self defence , ... ;

( h ) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . ”

“ In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary , threat of attack or an attack , the police may use force to subdue these actions .

Use of force refers to the use of bodily force , physical force and all types of weapons specified in the law and may gradually increase according to the nature and level of resistance or attack with a view to restoring calm .

In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force . ”