Remainder inadmissible;Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , NORP . He is currently detained in a remand prison in GPE .

In DATE a civil war erupted in NORP when ethnic groups under - represented in the ruling elite rose up against the national government of President PERSON . Politically , the discontented groups were represented by liberal democratic reformists and NORP , who fought together and later organised themselves under the banner of ORG ( “ UTO ” ) . By DATE CARDINAL people had been killed . On DATE a peace agreement was signed by President PERSON and the ORG leader . However , in DATE fighting again erupted in several regions of NORP , incited by an opposition group . Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in GPE .

The applicant , an ethnic NORP , lived in the village of NORP in LOC of NORP . The village was mainly populated by ethnic NORP . In DATE large - scale persecution of ethnic NORP commenced in NORP . There were several armed attacks on the applicant 's village ; some of his acquaintances were killed .

The local administration of the applicant 's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms . The applicant himself was not given any firearms .

In DATE the village was attacked once again ; after that , several members of the local militia and the applicant fled to GPE .

In DATE the applicant moved to GPE .

On several occasions the applicant travelled from GPE to GPE . He obtained internal NORP identity papers and a foreign passport in DATE and DATE respectively . His last visit to NORP took place in DATE .

On DATE ORG instituted criminal proceedings against PERSON , a fellow villager of the applicant who had participated in the militia and fled to GPE in DATE , charging him with banditry and organisation of an illegal armed group . The applicant was listed as CARDINAL of the members of the group .

On DATE ORG decided to bring charges against the applicant , stating that in DATE he had been a member of PERSON illegal armed group and that such actions constituted an act of banditry punishable under LAW . It was also decided that the applicant should be put on a wanted list .

On DATE ORG decided , in the absence of the applicant , to place him in custody .

On DATE the applicant was put on an international wanted list .

On DATE the investigation in the applicant 's case was suspended as the applicant was at large .

On DATE ORG severed the applicant 's case from PERSON criminal case . The decision read , in so far as relevant , as follows :

“ At DATE [ Mr M. ] , taking advantage of the unstable situation in GPE , created an illegal armed group to attack legal entities and private individuals ; the group was active until DATE .

At DATE Mr PERSON was a voluntary member of the illegal armed group and participated in armed hostilities .

On DATE , after officers of law - enforcement agencies had entered the territory of LOC , PERSON armed group fled the district territory and left NORP . ”

On DATE ORG sent a request for the applicant 's extradition to ORG , stating that in DATE the applicant had been a member of Mr PERSON 's illegal armed group .

On DATE ORG received a request by ORG to extradite the applicant .

On DATE ORG sent ORG additional documents stating that the applicant had participated in PERSON group which had fought the government troops , and that he had borne arms and had manned the checkpoint in the village of NORP .

On DATE ORG ordered the applicant 's extradition to NORP . The decision read , inter alia , as follows :

“ The actions of [ Mr ] PERSON are punishable under the NORP criminal law and correspond to LAW of LAW ( participation in a gang ) , which provides for a sanction in a form of imprisonment for DATE .

... No [ legal ] impediments to [ Mr ] PERSON extradition under treaties and NORP laws have been established . ”

On DATE the applicant was notified of the extradition order of DATE .

The applicant and his counsel lodged appeals against the decision of DATE on DATE and DATE respectively . In his appeal the applicant alleged that he was being persecuted in NORP for political reasons related to the civil war .

On DATE ORG , at the applicant 's counsel 's request , included in the case file reports by international NGOs on the political climate in NORP and postponed the examination of the appeals because the applicant 's appeal against the refusal to grant his asylum request had not yet been examined .

On DATE ORG again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from ORG concerning the charges brought against the applicant in GPE .

On DATE ORG sent requests for information to the NORP and ORG concerning the applicant 's allegations of a risk of ill - treatment , as well as to ORG concerning the possibility of amnesty being granted to the applicant in NORP , and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings .

On DATE ORG informed ORG that the applicant could not benefit from acts of amnesty in GPE .

On DATE and CARDINAL DATE ORG again sent requests for information concerning the applicant 's allegations of a risk of ill - treatment to the NORP and ORG .

On DATE ORG again postponed a hearing .

On DATE the NORP ORG informed ORG that it had no information concerning any political motives for the applicant 's prosecution and noted that NORP had ratified nearly every major international human - rights instrument , including LAW ( ORG ) and ORG ( ORG ) Convention against Torture .

On DATE the ORG questioned PERSON , a member of ORG for ORG , who stated that torture and ill - treatment were frequently practised in GPE .

On DATE ORG dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of DATE . The court reasoned , in particular , that the applicant had voluntarily left NORP in DATE and had been able to freely enter the country since then , that ORG had guaranteed that the applicant had not been prosecuted for political or religious reasons , and that NORP had ratified nearly every major international human - rights instrument . The applicant 's allegation that he had been prosecuted in relation to the civil war remained unanswered .

On DATE the applicant 's counsel appealed against ORG judgment .

On DATE ORG informed ORG of the following :

“ The criminal proceedings against [ Mr ] PERSON are not inspired by any political motives and ORG guarantees that [ Mr ] PERSON will be prosecuted only in respect of the act he was charged with ; he will be able to freely leave the territory of NORP after completion of the court proceedings and having served any sentence ; he will not be extradited to CARDINAL State without the NORP authorities ' consent and will not be persecuted on political and religious grounds . ”

On DATE ORG of GPE ( “ the ORG ” ) quashed the judgment of DATE because ORG had failed to thoroughly examine the applicant 's counsel 's claim that the crime that the applicant had been charged with was of a political nature . Moreover , ORG stated that ORG of the ORG High Commissioner for Refugees ( ORG ) had confirmed that the applicant 's fears of political persecution had been well - founded . The case file was returned to ORG for a fresh examination .

On CARDINAL DATE ORG informed ORG that NORP had ratified ORG .

On DATE ORG re - examined the appeals against the extradition order and upheld it . It reasoned that the applicant was a NORP national , held no refugee status and , according to ORG , had not been prosecuted for political or religious reasons . The court also pointed out that the applicant had applied for temporary asylum only on DATE and concluded that his application could not impede the examination of the appeals against the extradition order . It further referred to the guarantees of DATE and CARDINAL DATE provided by ORG that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms Ryabinina as unsubstantiated , arguing that the assurances in question sufficed to exclude the risk of ill - treatment in the applicant 's case . The applicant 's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered .

On DATE ORG upheld ORG decision of DATE . It reasoned that NORP had ratified LAW and referred to the guarantees given by ORG . On DATE the extradition order became final .

On DATE the applicant applied to ORG ( “ the GPE FMS ” ) for asylum , claiming that the NORP authorities had persecuted him on the ground of his ethnic origin .

On DATE the asylum request was dismissed ; on DATE the applicant was notified accordingly .

On DATE the ORG of GPE dismissed an appeal by the applicant against the decision by ORG .

On DATE ORG upheld the judgment of DATE on appeal .

On DATE the ORG High Commissioner for Refugees declared the applicant a person requiring international protection .

On DATE the GPE ORG rejected the applicant 's request for temporary asylum and notified him accordingly on DATE .

The applicant appealed against the refusal of CARDINAL DATE to ORG of GPE ( “ the NORP FMS ” ) .

On DATE ORG of the ORG sent the NORP ORG a report in support of the applicant 's request for temporary asylum , stating that he ran a real risk of being ill - treated in NORP . The report read , in particular , as follows :

“ Mr PERSON 's allegations [ of a risk of ill - treatment ] are supported by numerous documents concerning the events of DATE in NORP . ... [ E]thnic NORP were subjected to oppression and persecution ; in particular , there were reports of numerous killings of civilians before and during the armed conflict in DATE , which led to a mass exodus of ethnic NORP from northern areas of NORP , in particular to GPE .

Having examined Mr PERSON 's application and having assessed his fears regarding his return to [ NORP ] , the ORG has established that Mr PERSON 's application and his fears of being subjected to persecution , on the grounds of political convictions attributed to him , in the form of arrest , torture with a view to obtaining a self - incriminating deposition , unlawful and unfair trial and lengthy imprisonment for acts that he had not committed are well - founded .

... There are strong reasons to believe that the criminal proceedings against the applicant instituted by the NORP authorities amount to persecution on the grounds of political views attributed to the applicant , since [ the NORP authorities ] associate the applicant with anti - governmental activities because he had been a member of militia groups suspected of involvement in the armed conflict of DATE .

The ORG considers that there are serious concerns that Mr PERSON will be subjected to torture and other violations of basic human rights , which mean that there is an even greater risk of his being persecuted on the grounds of political views attributed to him . ... [ Mr PERSON 's ] case corresponds to the definition of a ' refugee ' within the meaning of the DATE United Nations Convention Relating to the Status of Refugees and LAW .

... PERSON is charged with ... banditry . However , it is noteworthy that the criminal case in which Mr PERSON is charged was opened in DATE and the preliminary investigation concerning PERSON was suspended in DATE , which shows that during such a lengthy period of investigation no proof of his guilt had been found and that the requesting ORG has no such proof .

The NORP authorities have not provided a single piece of factual evidence of Mr PERSON 's criminal activity in his country of origin , and the documents provided by the NORP counterparty as a basis for extradition are contradictory . ... [ t]he ORG concludes that there is no reliable evidence of the fact that Mr PERSON committed criminal acts , such as banditry , while in NORP territory . ”

On DATE the applicant was arrested in GPE as a person wanted by the NORP authorities . Upon his arrest the applicant learned for the first time that there had been criminal proceedings against him . On DATE ORG of the ORG requested the NORP police to keep the applicant in custody pursuant to LAW .

The applicant was then placed in remand prison GPE in GPE .

DATE . On DATE ORG of GPE ordered the applicant 's placement in custody pending extradition pursuant to ORG , CARDINAL and CARDINAL and LAW ORG ) . The court stated that on DATE the applicant had been put on a wanted list and that he had no permanent place of residence in GPE and concluded that , if not in custody , he could escape and impede his extradition to NORP . The term of the detention was not specified .

On DATE ORG again ordered the applicant 's placement in custody pursuant to ORG and CARDINAL of the ORG for an unspecified period of time . The court reasoned that less severe preventive measures could not be applied because the applicant had been at large since DATE , was a Tajikistani national , had no registered place of residence in GPE and was charged with a crime that was punishable by imprisonment for DATE .

On DATE the applicant 's counsel applied to the governor of remand prison FAC for the applicant 's release , claiming that the maximum detention period permitted by domestic law had expired . On DATE the governor of the remand prison replied that the applicant had not appealed against the decision of DATE authorising his detention and that the question of his release should be decided upon by ORG .

On DATE the applicant 's counsel complained to the ORG of GPE that the applicant 's detention was unlawful .

On DATE the ORG informed the applicant 's counsel that it had no jurisdiction to examine the complaint .

On DATE the applicant 's counsel complained to ORG of GPE , under LAW ORG , that ORG had unlawfully failed to apply for an extension of the term of the applicant 's detention as required by LAW ORG . On DATE the President of ORG returned the complaint for elimination of discrepancies .

On DATE the applicant 's counsel lodged another complaint under LAW ORG with ORG of GPE , alleging inaction on the part of ORG .

On DATE the ORG refused to examine the applicant 's complaint of CARDINAL DATE for the reason that its subject matter did not fall within the ambit of LAW ORG .

On DATE ORG ruled that the preventive measure applied to the applicant should remain unvaried until DATE .

On DATE ORG ruled that the preventive measure applied to the applicant should remain unvaried .

On DATE the ORG quashed the decision of LOC DATE and remitted the matter to the first - instance court for a fresh examination .

On DATE the ORG again dismissed the applicant 's complaint , arguing that LAW ORG was inapplicable since there had been no criminal proceedings pending against the applicant in GPE . It reasoned as follows :

“ The [ applicant 's ] requests to declare unlawful the inaction of the GPE prosecutor 's office on account of its failure to perform its function of supervising compliance with the law in custodial institutions could not be examined under LAW of the ORG because the prosecutors ' supervision of the custodial system is not related to the criminal proceedings against [ Mr ] PERSON .

Acts and inaction of agents of the prosecutor 's office can be challenged by way of another procedure which is not provided for in LAW ORG .

The request for extension of the term of custodial detention is an exclusive right of the competent bodies and a court is not entitled to impel [ those bodies ] to bring such requests . ”

On DATE the applicant 's counsel appealed against the decision of DATE .

On DATE the applicant 's counsel complained to ORG that the applicant 's detention was unlawful . Referring to LAW , she argued that LAW ORG had been breached in the applicant 's case as his term of detention had not been extended and that there had been no judicial review of the lawfulness of the detention .

On DATE a judge of ORG sent the applicant 's counsel a letter explaining that it was open to the applicant to appeal against the decision on choosing the preventive measure and that there were no other avenues of complaining of the alleged unlawfulness of detention .

On DATE the applicant 's counsel appealed against the refusal to examine her complaint . On DATE the judge of ORG sent her a letter explaining that the previous letter could not be appealed against .

On DATE ORG dismissed the appeal against the decision of DATE .

On DATE the applicant 's counsel requested ORG to release the applicant .

LAW ORG governs the application of preventive measures . Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond , continue to be engaged in criminal activities , threaten witnesses or impede the investigation ( LAW ) . When deciding on the necessity to apply a preventive measure , it is necessary to take into account the gravity of the charges and the various personal details of the person concerned ( LAW . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) LAW CARDINAL § CARDINAL ) . The request should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge 's decision on placement in custody may be challenged before an appeal court within DATE ( Article CARDINAL § CARDINAL ) . The period of detention pending investigation of a crime can not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) ( LAW ) . Further extensions up to DATE may be granted on an investigator 's request approved by a prosecutor of GPE only if the person is charged with serious or particularly serious criminal offences ( LAW ) .

Chapter CARDINAL of the ORG lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of “ parties to criminal proceedings ” or of “ hindering an individual 's access to court ” may be subject to judicial review ( LAW ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .

Verifying the compatibility of LAW ORG with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is , the procedure laid down in the ORG . Such procedure comprised , in particular , LAW and the norms in its LAW ( “ Preventive measures ” ) , which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .

In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .

DATE . The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE , on the basis of a request for his or her extradition , without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .

DATE . Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :

Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ...

An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .

NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...

that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...

the execution of the expulsion order is suspended until a decision under CARDINAL is taken . ”

ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :

“ CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . ”

For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINALV.

When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .

Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .

The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL § CARDINAL ) .

Conclusions and Recommendations : NORP , issued by ORG on DATE ( CAT / C / TJK / CO/CARDINAL ) , refer to the following areas of concern regarding the human - rights situation in the country :

“ The definition of torture provided in domestic law ... is not fully in conformity with the definition in LAW , particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity .

There are numerous allegations concerning the widespread routine use of torture and ill - treatment by law enforcement and investigative personnel , particularly to extract confessions to be used in criminal proceedings . Further , there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment .

The ORG is also concerned at :

( a ) The lack of a legal obligation to register detainees immediately upon loss of liberty , including before their formal arrest and arraignment on charges , the absence of adequate records regarding the arrest and detention of persons , and the lack of regular independent medical examinations ;

( b ) Numerous and continuing reports of hampered access to legal counsel , independent medical expertise and contacts with relatives in the period immediately following arrest , due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials ;

( c ) Reports that unlawful restrictions of access to lawyers , doctors and family by ORG agents are not investigated or perpetrators duly punished ;

( d ) The lack of fundamental guarantees to ensure judicial supervision of detentions , as the ORG is also empowered to exercise such oversight ;

( e ) The extensive resort to pretrial detention that may last DATE ; and

( f ) The high number of deaths in custody .

There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the LAW by both law enforcement officials and investigative bodies .

There are reports that there is no systematic review of all places of detention , by national or international monitors , and that regular and unannounced access to such places is not permitted . ”

ORG in its document “ NORP : Overview ” , updated in DATE , describes the situation of the NORP minority in NORP as follows :

“ The situation in NORP is similar in many respects to that of its neighbours . ... Since independence , NORP have attempted to assert their dominance by linguistic and other preferences that tend to discriminate against and exclude minorities , often leading to resentment or even an exodus . While they were DATE of the population at the time of independence , many NORP fled during the period of the civil war . They remain the largest minority at PERCENT of the population according to a DATE census , and are concentrated in areas usually associated with opposition to the government . This has led to a general distrust of NORP , and in turn discriminatory treatment towards them in many institutions of the state . Once again , oppressive measures have been presented as necessary in the name of the fight against ' terror ' and ' separatism ' . The degree of under - representation of minorities in public life is startling : CARDINAL members of ORG are NORP , despite this minority 's very substantial numbers .

... Despite constitutional provisions that initially appear to guarantee the use of minority languages , and despite the large percentage of minorities in the country , in particular NORP , minorities are largely excluded from employment in public service . ”

The World Report Chapter : NORP by ORG , released in DATE , describes the human - rights situation in the country as follows :

“ NORP 's definition of torture does not comply fully with ORG recommendations to the country in DATE . In a positive move , in DATE the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings .

Experts agree that in most cases there is impunity for rampant torture in NORP . In CARDINAL of the few cases that reached the courts , CARDINAL policemen in GPE province were convicted in DATE for ill - treating minors ; CARDINAL of the CARDINAL received a fouryear prison sentence , and the other a suspended sentence .

NGOs and local media reported CARDINAL deaths in custody in DATE , including the death from cancer of the ex - deputy chair of ORG Revival PERSON . The party alleged his arrest in DATE was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery .

In DATE decision ( PERSON v. NORP ) ORG found that NORP violated the rights , including freedom from torture , of CARDINAL applicants , CARDINAL of them minors when they were arrested . NORP failed to cooperate with the committee 's consideration of the complaint . Similar violations were established in DATE decision ( NORP and GPE v. NORP ) . ”

NORP The DATE GPE ORG on ORG , released on DATE , provides the following information in relation to NORP :

“ The government 's human rights record remained poor , and corruption continued to hamper democratic and social reform . The following human rights problems were reported : ... torture and abuse of detainees and other persons by security forces ; impunity of security forces ; denial of right to fair trial ; harsh and life - threatening prison conditions ; prohibition of international monitor access to prisons ; ...

The law prohibits [ cruel , inhumane or degrading treatment or punishment ] , but some security officials used beatings or other forms of coercion to extract confessions during interrogations , although the practice was not systematic . Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture .

ORG ( ORG ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions . Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions , but their representatives were limited to administrative or medical sections , and ORG personnel accompanied them . The government did not sign an agreement with ORG ( ICRC ) to allow free and unhindered access to prisons and detention centres , and the ORG 's international monitoring staff has not returned to the country since DATE .

Detainees and inmates described harsh and life - threatening prison conditions , including extreme overcrowding and unsanitary conditions . Disease and hunger were serious problems , but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons . Organizations such as ORG reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor .

Victims of police abuse may submit a formal complaint in writing to the officer 's superior or ORG . Most victims chose to remain silent rather than risking retaliation by the authorities .

Trials are public , except in cases involving national security . There is a presumption of innocence by law , but in practice defendants were presumed guilty . ... In national security cases , a panel consisting of a presiding judge and CARDINAL ' people 's assessors ' determines the guilt or innocence of the accused . Qualifications of the assessors and how those qualifications are determined are not known , but their role is passive , and the presiding judge dominates the proceedings .

Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests . Opposition parties and local observers claimed the government selectively prosecuted political opponents . There was no reliable estimate of the number of political prisoners , but former opposition leaders claimed there were CARDINAL such prisoners held in the country , including former fighters of the ORG . ”


Violation of Art. 6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall

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

The applicant is the founder and owner of a publishing company “ ORG ” . Since DATE the company has published “ NORP calendar ” ( PERSON kalendorius ) , a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors . The calendar could be purchased in bookstores . It was distributed in GPE and among NORP immigrants living abroad .

On DATE a Member of ORG ) distributed a public announcement , stating that the texts published in “ NORP calendar CARDINAL ” insulted persons of NORP , NORP and NORP origin . The relevant parts of “ NORP calendar ” read as follows :

[ First page of the calendar ] : “ GPE – the land of the NORP , as each footprint here bears traces of our ORG 's blood ”

CARDINAL DATE : “ In DATE , on DATE of the restoration of the independence of GPE , a LOC insidiously killed CARDINAL NORP living in NORP district 's GPE – all the inhabitants of the village were shot . ( ... ) The Nation was informed about the tragedy after TIME during this time NORP [ high society ] were celebrating and enjoying themselves , hugged the NORP president , put flowers [ on the monuments ] to PERSON 's army , drank and danced their ghastly dance on the freshly spilled blood of NORP whose whole village had been murdered . ”

CARDINAL DATE : “ The new NORP government ( ... ) puts on trial the NORP nation for the extermination of the NORP ( ... ) but is not interested in the genocide of the NORP and dances NORP foxtrots to the music of the PERSON and PERSON . ”

CARDINAL DATE : “ In DATE in the vicinity of GPE the Polish ORG killed CARDINAL NORP for the sole reason that they were NORP . ”

DATE : “ The soviet occupying power , with the help of the communist collaborators , among whom , in particular , were many NORP , for DATE ferociously carried out the genocide and colonisation of the NORP nation . ”

DATE : “ In DATE in ORG and its surrounding area the NORP ORG brutally killed CARDINAL NORP ( ... ) among whom were women , little children , even babies and old people . This was the way the NORP , in war conditions , carried out ethnic cleansing . In the whole territory of GPE [ the members of ORG ] killed CARDINAL , and in the ethnic NORP lands QUANTITY more innocent people , for the sole reason that they were NORP . The ORG events should be regarded as the genocide of the NORP nation . But the NORP authorities [ who associate themselves with the NORP ] ignore obvious facts and do not even attempt to evaluate these war crimes . ”

CARDINAL DATE : “ Through the blood of our ancestors to the worldwide community of the NORP ”

DATE : “ In DATE the monument to the victims of the Polish Krajova Army was put up and consecrated in ORG . ( ... ) In DATE in the environs of ORG the Polish ORG plundered and killed innocent people solely because they were NORP . The killings of DATE and DATE are horrible [ acts of ] ethnic cleansing and cruel war crimes that can not be solved by simply constructing a monument to the victims . There is no statutory time - limit on prosecution of war crimes , the war criminals should be identified and tried . ( ... ) ”

CARDINAL DATE : “ occupying NORP army ” , “ NORP occupants ”

DATE : “ The DATE of the Beggars . In DATE ( ... ) about fifty NORP beggars demonstrated in front of the ORG . They were joined by CARDINAL GPE residents . The purpose of this act was to attract the ORG 's and the ORG 's attention to poverty ( ... ) in GPE . Unfortunately , the public gathering of the beggars did not receive any attention from the heads of ORG . At the same time a banquet for the NORP took place in GPE . The banquet cost GPE MONEY . A feast during the plague . ( ... ) The NORP were managing the ORG ; from the tribune of the ORG the NORP were insulting and scolding the NORP nation , asking for NORP blood and NORP property . The majority of the ruling ORG ( ... ) greeted the swearing NORP with standing ovations . ”

CARDINAL DATE : “ The NORP nation will only survive by being a nationalist nation – no other way exists ! ”

DATE : “ In DATE ORG ) of GPE ( ... ) adopted the “ CARDINAL ” citizenship law , proposed by ORG . The law illegally gave citizenship to occupants and PERSON and the NORP became worthless . ”

CARDINAL DATE : “ The politicians adopted legislation demonstrating their anti - NORP attitude . This way , the conservative neo - NORP took their revenge on the NORP nation , executing the will of the NORP extremists . ”

DATE : “ CARDINAL NORP were brutally killed during DATE . DATE passed and on DATE the ORG ( ... ) who took power started new executions against the NORP and the NORP nation , carrying out pro - NORP politics . ”

The back cover of “ NORP calendar CARDINAL ” contained a map of GPE . The neighbouring territories of GPE , GPE and GPE were marked as “ ethnic NORP lands under temporary occupation ” .

On DATE a Seimas committee requested ORG to investigate whether the publication was compatible with LAW and other legal acts .

On DATE the Prime Minister wrote a letter to ORG , requesting it to examine whether “ the contents of ' NORP calendar DATE ' contained the elements of violations of ethnic and racial equality ” .

On DATE ORG also received a note from ORG , expressing its dissatisfaction with the publication 's map describing certain territories of GPE as “ ethnic NORP lands under temporary occupation ” .

On DATE a similar note was received from ORG .

On DATE ORG requested ORG to submit an experts ' opinion as to whether “ NORP calendar CARDINAL ” promoted ethnic , racial or religious hostility . In this regard the security intelligence authorities requested the experts to examine whether “ NORP calendar CARDINAL ” contained anti - NORP , anti - NORP , anti - NORP expressions , or assertions of the superiority of NORP vis - à - vis other ethnic groups .

On DATE CARDINAL experts , history and political science professors at ORG , found that “ NORP calendar CARDINAL ” could be characterised as promoting the radical ideology of nationalism , which rejected the idea of the integration of civil society , incited ethnocentrism , contained xenophobic and offensive statements , in particular with regard to the NORP and NORP populations , and promoted territorial claims and national superiority vis - à - vis other ethnic groups . The experts nonetheless noted that the calendar did not directly incite violence against the NORP population , nor did it advocate implementing discriminatory policy against this ethnic group .

At DATE the security intelligence authorities seized a number of copies of “ NORP calendar CARDINAL ” in various bookstores in GPE . The distribution of the publication was stopped .

By a letter of DATE the Prosecutor General informed the Prime Minister that , following the examination of the content of “ NORP calendar CARDINAL ” , no elements of a criminal offence ( instigation of ethnic or racial hatred ) had been found in the applicant 's releasing of the publication . However , ORG held that in this respect the applicant should have been punished by way of the administrative procedure under LAW , storage and distribution of information materials promoting ethnic , racial or religious hatred ) . He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision . ORG also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court .

On DATE the officers of ORG held that the applicant should be punished by the administrative procedure provided by LAW .

On DATE the FAC found that the applicant had produced CARDINAL copies of “ NORP calendar CARDINAL ” , CARDINAL of which had been sold . By reference mostly to the experts ' conclusion of DATE , the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of LAW . The ORG imposed an administrative fine in the amount of CARDINAL NORP litai ( LTL ) on the applicant and ordered confiscation of all copies of “ NORP calendar CARDINAL ” seized in the bookstores .

NORP The court examined the case in the absence of the applicant or her lawyer . It was noted however that she had been duly informed of the date and place of the hearing , but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence . Therefore the court had concluded that the case could be examined without the applicant being present .

The applicant appealed , claiming in particular a violation of LAW . She also argued that she had been tried in absentia .

On DATE ORG quashed the first - instance judgment on the ground that the applicant had been in hospital ORG from DATE to DATE and could not take part in the first - instance hearing . The case was remitted for a fresh examination at first instance .

On DATE a judge of the FAC ordered another expert examination to be carried out . The court requested ORG to form a group of experts representing various fields of social science in order to produce a conclusion on whether “ NORP calendar CARDINAL ” promoted ethnic , racial or religious hatred , whether it contained anti - NORP , anti - NORP , anti - NORP expressions , or assertions of the superiority of NORP vis - à - vis other ethnic groups .

NORP In reply to the court 's decision , CARDINAL separate expert opinions were produced , reflecting the point of view of ORG professors specialising in the following fields : history , psychology , political science and library science .

On DATE the applicant submitted a written request , received by the Vilnius City Second District Court the following day , by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row . The applicant also asked the court to determine the reasons behind the experts ' absence and to sanction them . The court did not grant the applicant 's requests .

On DATE the FAC found that by publishing and distributing “ NORP calendar CARDINAL ” the applicant had breached LAW . The court imposed an administrative penalty in the form of a warning on her , while the unsold copies of the calendar and the means to produce it were confiscated .

By reference to the conclusions of the experts in the field of political science the court stated that a CARDINAL - sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred . The court also noted that “ NORP calendar CARDINAL ” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring GPE , including GPE , GPE and GPE , who had expressed their concerns about the map denoting some of the territories of those countries as “ ethnic NORP lands under temporary occupation ” . Relying on the conclusion of the bibliographic expert report the GPE City Second ORG noted that the publication did not meet the prescribed standards because , among other things , the calendar contained no indication of the sources and literature that had been used , and the name of the author of each statement in the calendar was not provided . The court concluded that the applicant had prepared , published and distributed the calendar and was therefore responsible for its content .

By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant 's actions had not been deliberate , but reckless . The court relied on the psychological experts ' report that “ NORP calendar CARDINAL ” represented the personal character , values and emotions of the applicant . The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the NORP population , the superiority of the NORP over other nationals was not emphasised , and the negative statements about the NORP population were not to be seen as anti - NORP . However the GPE City ORG concluded that the psychology experts ' conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law .

The court emphasised that the breach of the administrative law committed by the applicant was not serious , and that it had not caused significant harm to society 's interests . The court also noted the applicant 's disability and absence of previous convictions .

In view of those circumstances and given the negligent nature of the offence , the court decided to impose an administrative warning under LAW , which was a milder administrative penalty than the fine of between LTL CARDINAL,CARDINAL and LTL CARDINAL,CARDINAL prescribed by LAW .

The case was examined in the presence of the applicant and a representative of the security intelligence authorities . The applicant left the hearing in the course thereof . At the hearing she was not represented by a lawyer .

The applicant appealed , claiming in particular that LAW had been violated . She also complained that the first - instance court had not called the experts to the hearing , thereby violating her defence rights .

On DATE ORG reviewed the case under written procedure . The applicant relied on the conclusion of the psychological experts ' report , arguing that “ NORP calendar CARDINAL ” did not promote hatred against the NORP , NORP or NORP , nor did it claim the superiority of the NORP over other nations . According to the appellate court , these were the conclusions of experts in CARDINAL field only , whereas the rest of the evidence , namely the political science and bibliographical experts ' reports , attested that the comments in the calendar were based on the ideology of extreme nationalism , which rejected the idea of civil society 's integration and endorsed xenophobia , national hatred and territorial claims .

The court disagreed with the applicant 's argument that her defence rights had been violated because the first - instance court had failed to call the experts to have them challenged at the hearing . ORG stated :

“ The [ applicant 's ] argument that the [ first - instance ] court violated procedural legal norms because the experts were not present at the court hearing , is not valid . The first- instance court , relying on its inner belief , evaluated the experts ' conclusions both as to their reasonableness and as to their comprehensiveness . LAW provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented . The fact , that this possibility had not been used , can not be regarded as a violation of procedural legal norms . ”

Relying on the above arguments , ORG dismissed the appeal .

On an unspecified date the applicant left GPE . She applied for political asylum in GPE . Later the applicant returned to GPE . She lives in GPE .

The LAW of GPE , as relevant in this case , provides as follows :

“ Everyone shall have the right to hold opinions and freely express them .

No one may be prevented from seeking , receiving and imparting information and ideas .

Freedom of expression , freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health , dignity , private life , and morals , or for the defence of the constitutional order .

Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national , racial , religious , or social hatred , violence or discrimination , slander or disinformation . ”

The Code on Administrative Law Offences ( “ the LAW ” ) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law .

Article CARDINAL of the LAW provides that all citizens must ensure respect for legal rules and the rights of other citizens . LAW defines an administrative offence as a wrongful act which causes danger to public order , citizens ' rights or the established order of administration .

LAW provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders , educating them to observe the law and preventing them reoffending .

An administrative warning is a penalty under LAW and it can be used to replace a harsher penalty the PERSON prescribes for a particular offence ; the administrative warning is also intended to serve as a preventive measure , in the same way as a suspended sentence in criminal law .

Article CARDINAL of the Code punishes the production , storage and distribution of information material promoting national , racial or religious hatred by a fine of between LTL CARDINAL,CARDINAL and LTL CARDINAL with the confiscation of the material , with or without confiscation of its main means of production .

Article CARDINAL provides that an expert 's conclusion can be considered as evidence . Pursuant to Article CARDINAL , an expert can be appointed when special knowledge is required for solving the case .

Under LAW , a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence , as well as to lodge requests .

Article CARDINAL of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it , a court can substitute the fine with administrative arrest of DATE .

Article CARDINAL of the Law on Administrative Proceedings ( LAP ) , as in force at the material time , provided that , among other procedural rights , the parties were entitled to question other participants in the process , including witnesses and experts , to take part in the examination of evidence and to present explanations .

Under LAW , parties had the right to bring an appeal against a decision of a first - instance court . The appeal should indicate , among other things , evidence to support its grounds .

LAW stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing . Upon the decision of the chamber of judges , an oral hearing of a specific case could be held .

Article CARDINAL of LAW , in force in GPE since DATE , provides :

“ Any advocacy of national , racial or religious hatred that constitutes incitement to discrimination , hostility or violence shall be prohibited by law ” .

LAW , ratified by GPE on DATE , provides , insofar as relevant , as follows :

“ CARDINAL . In this Convention , the term “ racial discrimination ” shall mean any distinction , exclusion , restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life . ”

“ CARDINAL . GPE Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races , and , to this end :

( d ) Each State Party shall prohibit and bring to an end , by all appropriate means , including legislation as required by circumstances , racial discrimination by any persons , group or organization ... ”

“ GPE Parties particularly condemn racial segregation and apartheid and undertake to prevent , prohibit and eradicate all practices of this nature in territories under their jurisdiction . ”

“ GPE Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of CARDINAL race or group of persons of CARDINAL colour or ethnic origin , or which attempt to justify or promote racial hatred and discrimination in any form , and undertake to adopt immediate and positive measures designed to eradicate all incitement to , or acts of , such discrimination and , to this end , with due regard to the principles embodied in LAW and the rights expressly set forth in LAW , inter alia :

( a ) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred , incitement to racial discrimination , as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... ”

According to LAW , signed within the framework of ORG and in force in GPE since DATE :

“ The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination , hostility or violence as a result of their ethnic , cultural , linguistic or religious identity . ”

ORG against Racism and Intolerance General Policy , in its Recommendation no . CARDINAL : Combating racism , xenophobia , anti - Semitism and intolerance , recommends that the Governments of the member States , insofar as relevant , “ ensure that national criminal , civil and administrative law expressly and specifically counter racism , xenophobia , anti - Semitism and intolerance ” .

Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG on “ Hate speech ” , drafted within the framework of ORG , provides , insofar as relevant , as follows :

“ The principles set out hereafter apply to hate speech , in particular hate speech disseminated through the media .

For the purposes of the application of these principles , the term “ hate speech ” shall be understood as covering all forms of expression which spread , incite , promote or justify racial hatred , xenophobia , antisemitism or other forms of hatred based on intolerance , including : intolerance expressed by aggressive nationalism and ethnocentrism , discrimination and hostility against minorities , migrants and people of immigrant origin . ”

“ The governments of the member states should establish or maintain a sound legal framework consisting of civil , criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others . ”

“ The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non - arbitrary manner on the basis of objective criteria . Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control . This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others . ”

“ National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by LAW to other forms of expression . This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the LAW or at their limitation to a greater extent than provided therein . ”

“ National law and practice should allow the competent prosecution authorities to give special attention , as far as their discretion permits , to cases involving hate speech . In this regard , these authorities should , in particular , give careful consideration to the suspect 's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom . The competent courts should , when imposing criminal sanctions on persons convicted of hate speech offences , ensure strict respect for the principle of proportionality . ”


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants ( first applicant : Mr PERSON ; second applicant : Mr PERSON ; third applicant : Mr PERSON ; fourth applicant : PERSON PERSON ; fifth applicant : PERSON ; sixth applicant : PERSON ) are CARDINAL NORP nationals of NORP origin who were born in DATE , DATE , DATE , DATE , DATE and DATE respectively . The second applicant is living in Meneou and the third , fourth and fifth applicants are living in Paralimni . The first and sixth applicants have dual NORP and NORP nationality and live in GPE .

NORP The applicants brought their application on their own behalf and on behalf of PERSON , a NORP national of NORP origin who was born in DATE and died on DATE . The first , second , third , fourth and fifth applicants are the children of PERSON , and the sixth applicant is his grandson .

The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON GPE .

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

PERSON was born and raised in the village of GPE in the NORP peninsula , district of GPE , in northern GPE . He worked there as a farmer and owned a house with some land .

Following the NORP intervention of DATE , PERSON remained in GPE as one of the “ enclaved ” , that is , a small remaining group of NORP residents of the NORP peninsula who continue to live there under NORP occupation . In DATE he gave evidence to the delegation of ORG in the course of the GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) proceedings at a hearing held at FAC in GPE .

On DATE PERSON was found dead in his house in GPE .

On DATE a post - mortem examination was carried out by Dr Horoz , a general practitioner authorised by the local authorities . He concluded that PERSON had died of a myocardial infection . Consequently , a press statement was issued by ORG of GPE ( “ the GPE ” ) confirming the findings of this report . A medical officer from ORG in GPE ( ORG ) was present at the post - mortem examination . He also prepared a brief report , without referring to the cause of death .

The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of NORP graves . Thus they arranged for him to be buried in the southern part of GPE . They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the NORP authorities showed a total lack of regard for the grieving family . In particular , they state that when it was delivered to them , the deceased ’s body was partially covered in an old sheet and was not in a temporary coffin or body bag . Further , the sixth applicant , the grandson of the deceased , was refused permission to accompany the first , second and third applicants ( that is , his father and CARDINAL uncles ) to GPE village on DATE for a brief visit to retrieve the clothes of PERSON and other things necessary for the funeral and burial .

On DATE a second post - mortem examination was conducted in ORG in GPE by CARDINAL specialists , PERSON and PERSON ( one appointed by the family of PERSON and one by ORG ) , in the presence of ORG observers . A video and photographs were taken during the autopsy . The conclusions of these examinations were that there was “ no evidence of coronary artery thrombosis , myocardial infarction or significant previous ischemic episodes ” and that the cause of death was “ severe trauma in the cervical vertebra due to the application of excessive force ” .

At the request of the Attorney General of GPE , the reports of both post - mortem examinations were reviewed by Professor PERSON , State Forensic Pathologist at ORG at ORG . He agreed with the conclusions of the second post - mortem report and criticised the first as not living up to international standards .

On DATE the file was referred to the “ TRNC ” Attorney - General , who recommended a coroner ’s inquest . The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence . In view of the above , the coroner decided that it was not necessary to carry out an inquest .

Before the ORG , the Government produced a report from Dr PERSON Cassidy , Deputy State Pathologist and Senior Lecturer at ORG . At the request of the ORG , PERSON examined various documents , scientific reports , videos and photographs concerning the death of PERSON . She also interviewed all persons who could give information about the case , including the members of the deceased ’s family .

Paragraphs CARDINAL , CARDINAL and CARDINAL of Dr PERSON ’s report read as follows :

“ CARDINAL . Summary

CARDINAL Mr PERSON was an elderly NORP , residing alone in the NORP region .

CARDINAL He was receiving treatment for heart disease and had been hospitalised for a “ heart attack ” and for treatment of an arrhythmia .

CARDINAL He was at his neighbour ’s home on TIME CARDINAL and was said to have been seen and spoken to early on DATE .

CARDINAL NORP In the mid DATE TIME PERSON was found dead lying on the floor of his bedroom .

CARDINAL NORP He was fully clothed , including jacket , apart from his shoes . He was lying face down and on his right side . There was a pool of fluid and blood at his head . There were a few injuries on the right side of head .

CARDINAL His body was removed to the local hospital and a post - mortem examination was carried out on DATE . This was limited to removal of the cerebral hemispheres , the lungs and the heart . The latter only was dissected .

CARDINAL ORG examination showed bruising around both eyes and CARDINAL injuries to the right side of the head . Post mortem staining was noted over the back and multiple “ bruises ” over the upper chest .

CARDINAL NORP An area of discoloration on the heart was interpreted as an infarct , and the cause of death was determined as due to a heart attack .

CARDINAL NORP The body was transported to the NORP region and a second post - mortem examination was carried out .

CARDINAL NORP This described additional injuries including superficial flapped injury to the left side of the scalp , marks on the cheeks and lips as well as minor injuries on the hands . PERSON haemorrhage was noted in the eyes .

CARDINAL NORP Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine .

CARDINAL These injuries were interpreted as indicating an assault , death being due to a broken neck , caused in an arm lock , which was thought to have caused asphyxia . Other explanations were dismissed .

CARDINAL The photographs of the scene and the body pre - autopsy , after the first autopsy and during the second autopsy were taken .

CARDINAL The body is seen fully clothed , apart from shoes lying on his right side , face down on a stone floor . A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries .

CARDINAL ORG after the first post mortem confirm the paucity of injuries .

CARDINAL ORG of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes , the neck and over the upper chest . A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown . There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury .

CARDINAL NORP Internally a fracture of the cervical vertebra is demonstrated .

Interpretation

CARDINAL NORP This elderly man was found dead in his home .

CARDINAL LOC position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed , no attempt being made to save himself , as determined by the position of the hands .

CARDINAL The injuries apparent were to the right side of face and head , consistent with impact with the stone ground .

CARDINAL NORP Despite lying in this position after death , when the body is examined later , at the second post - mortem , lividity is on the back of the body , therefore he had not been lying long after death . This would be consistent with him dying on DATE TIME and therefore he could have been seen alive at TIME .

CARDINAL NORP The position of the body also suggests sudden collapse .

CARDINAL LOC haemorrhage are seen around the eyes , on the face , neck and upper chest . The presence of petechial haemorrhages indicates hypoxia / asphyxia , and obvious causes of mechanical asphyxia must be excluded , particularly strangulation . However , petechial haemorrhage around the eyes are commonly seen in deaths from natural causes , particularly if due to heart disease which causes hypoxia . ORG / purpuric haemorrhage are also commonly found within areas of post - mortem lividity and as Mr PERSON was found lying “ face down ” this is CARDINAL possibility which must be considered .

The pattern of distribution of the haemorrhage may give some indication of their cause . In strangulation the haemorrhages are above the level of compression of the neck .

As the distribution of the haemorrhages continues below the neck , a cause other than compression of the neck must be considered .

In cases of suspected neck compression , the neck is always examined last , first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities . This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs . Therefore the interpretation of bruising in the anterior compartment of the neck , on the surface of the strap muscles , is fraught with potential difficulties . A post - mortem examination had been performed , the blood vessels in that area are seen to be congested , the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ . In view of this the bruising can not be unequivocally attributed to pre - mortem compression of the neck .

CARDINAL NORP The injuries to the face are concentrated on the right side , as illustrated in photograph CARDINAL . This was the side of the face in contact with the ground , and therefore all of these injuries could be caused by CARDINAL impact with the ground . The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising .

The pattern of bruising under the eye is of bruising related to the injury below the outer corner , which is an abrasion injury , more likely due to contact with the ground rather than a punch .

While one can never totally exclude that each and every injury is due to a separate impact , the pattern of injuries is the key factor .

CARDINAL One positive finding was fracture of the first cervical vertebra . There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury . Bodies can bruise and bleed after death , while the blood is still fluid within the vessels . This injury can therefore be interpreted as a pre or peri - mortem injury . This type of injury is due to compression of the head on the neck splitting the vertebra , + /- hyperextension . The mechanism of causation is a force transmitted through the head to the neck .

It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck .

If such an injury was the cause of death , damage to the upper cervical cord / brain stem would be expected . Firstly this area was damaged during the first post - mortem . Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage . Microscopy may show haemorrhage into the tissue , which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage . There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death .

QUANTITY The injuries to the hands are minor injuries , described as , and with the appearance in the photographs of , abrasions and lacerations . There are quite different injuries to those on the head area . These injuries are caused by contact with something rough or sharp , and while from their position they could be interpreted as defence injuries , as they are different and caused in a different manner from other injuries , they are not defence injuries caused by attempting to ward off blows of his head . CARDINAL explanation is that these injuries could be inflicted by handling branches with rough or sharp edges .

CARDINAL Examination of the heart was incomplete at both post - mortems . Weighing the heart would have given an indication as to whether or not the heart was enlarged . However Mr GPE had a well documented history of heart problems including arithymia and cardiac failure , and was prescribed treatment for this .

Whether or not he was taking his medication , he was still at risk from collapsing and dying from his heart disease , despite no obstruction of the vessels being found at the second post - mortem .

Again the post - mortem findings must be interpreted in light of his medical history . Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye . In particular the area of discoloration described at the first post - mortem could have been proved or disproved as an infarct . The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease .

CARDINAL Although he may have collapsed suddenly , PERSON may not have died instantly and may have survived unconscious for TIME .

Summary

After examination of the statements , reports , photographs and post - mortem reports I am of the opinion that PERSON appears to have been sitting on the edge of his bed when he suddenly keeled over , with a “ heart attack ” , falling heavily to the floor , the impact site , to the head and right side of the face . The force from the impact was transmitted across the head to the top of the spine , crushing and splitting the first cervical vertebra . He appears to have made no attempt to save himself as implied by the position of the hands and arms , suggesting that he was either dead or unconscious when he pitched forward to the ground . The injuries to the hands could have occurred separately during the course of his work . Death appears to be due to natural causes . ”

In a letter of CARDINAL DATE , Inspector PERSON from ORG ( ORG ) forwarded PERSON report to the competent authorities . This letter reads as follows :

“ Please find enclosed a copy of the report prepared for ORG by an independent Forensic Pathologist .

We are in agreement with the conclusions reached by PERSON . ”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , Mr PERSON and PERSON PERSON GPE , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

The applicant 's father , a member of the NORP aristocracy , was deprived of his land and other assets by ORG during DATE and DATE .

On DATE the applicant brought an action against the relevant local authority , seeking restitution of his ancestral lands . In support of his claim , the applicant submitted archives confirming his father 's title to the claimed land and , as a legal basis , referred to general rules on the protection of property and inheritance contained in LAW , the LAW and the international human - rights treaties ratified by GPE . The action was registered by ORG on DATE .

According to the file as it stands at present , the restitution proceedings are still pending at first instance ; no hearing has been held so far .

Article CARDINAL of the Civil Code bearing on the protection of ownership reads as follows :

Article CARDINAL § § CARDINAL and CARDINAL

“ CARDINAL . The owner can claim the asset back from the possessor unless the latter is entitled to possess it .

In the event of interference with the exercise of ownership other than the taking of the asset , the owner may request the trespasser to put an end to such an action . If the interference persists , the owner may bring a court action against the trespasser . ”

By passing the LAW of DATE , ORG recognised that NORP nationals were subjected to political persecution by GPE DATE and DATE , entitling the victims to seek rehabilitation .

The LAW defined the notion of a victim of political persecution and created a procedure by which to obtain that status . In particular , section CARDINAL of the LAW provided that only a court could declare a person to be a victim . Section CARDINAL specified that the next of kin of a direct victim was also entitled to seek rehabilitation .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) stated that , once recognised as a victim of political repression , the person in question would automatically have his or her political and civil rights reinstated . This excluded the reinstatement of any property rights , in so far as subsection CARDINAL of the same section specified that “ the means for the restitution of property of victims of political repression shall be governed by a separate LAW ” .

No act concerning the restitution of property of victims of NORP repression has yet been passed .

In a decision of DATE , the ORG reinstated the ownership rights of the claimant PERSON over her late parents ' land expropriated by GPE in DATE . PERSON had previously been recognised as a victim of NORP repression within the meaning of LAW of DATE .

Likewise , in a decision of the Krtsanisi - Mtatsminda District Court in GPE of DATE , PERSON and PERSON , the claimants , were declared the owners of assets once belonging to their ancestors who had been recognised as victims of NORP repression .

Another similar case was that of Mr PERSON , who , in a decision of CARDINAL DATE of ORG , was granted title to land expropriated from his grandfather by GPE in DATE and DATE . The only difference between this and the CARDINAL above - mentioned cases was that , prior to the restitution of the property , neither Mr ORG , the claimant , nor any of his ancestors had been recognised as victims of GPE within the meaning of LAW of DATE .

In all CARDINAL above - mentioned cases , the claimants were excused from having missed the statutory time - limit for recovery of property , in view of the fact that the expropriation of their ancestors ' property had been carried out by force and the respondents were either private persons or public agencies . The domestic courts ' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in LAW , the LAW and international human - rights treaties . Certain other general principles of law , such as equity , were also relied on .

As acknowledged by the President of ORG in his foreword to its ORG , CARDINAL of the problems of the NORP judiciary was the lack of consistent case - law on similar disputes . Consequently , ORG deemed it necessary , for the purposes of harmonising judicial practice , to advise the lower courts on how certain types of dispute should be resolved . The President noted that the ORG were not of a mandatory nature but emphasised their significance .

LAW of the ORG advised the courts that they should declare claims for restitution of property expropriated by GPE in DATE and DATE admissible but refuse them on the merits in view of the absence of a right to restitution under NORP law .


CASE OF ABDOLKHANI AND KARIMNIA v. TURKEY (no. 2)

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in DATE and DATE respectively . The first applicant resides in GPE whereas the second applicant lives in GPE .

The applicants , refugees under the mandate of the ORG High Commissioner for Refugees ( ORG ) , arrived in GPE on an unspecified date . They were arrested by security forces and , as they had entered NORP territory illegally , were deported back to GPE on DATE .

The applicants immediately re - entered GPE .

On DATE they were arrested by road checkpoint gendarmerie officers from the GPE gendarme station , in GPE , as their passports were found to be false .

The applicants were subsequently placed in the police headquarters in the LOC district of GPE .

On DATE the applicants lodged an application with the ORG and requested not to be deported to GPE or GPE ( application no . CARDINAL ) . On DATE the President of the ORG to which the case was allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of GPE , under LAW , that the applicants should not be deported to GPE or GPE until DATE . On DATE the President of the ORG decided to extend until further notice the interim measure indicated under LAW .

DATE and DATE the applicants were detained at the LOC police headquarters . On DATE the applicants were transferred to the Kırklareli Foreigners ' Admission and Accommodation Centre , where they were held until DATE .

The applicants submitted that the detention facility where they were held was in the basement of the building . Therefore , it was damp and received insufficient natural light . The facility measured QUANTITY in total and consisted of CARDINAL open rooms . The rooms measured QUANTITY . There was CARDINAL bathroom and a hallway , where there were CARDINAL beds . There were CARDINAL and CARDINAL bunk beds in the first and the second rooms respectively . The third room was empty .

For DATE of the detention the applicants were held with CARDINAL other detainees . From DATE of their detention the number of detainees dropped to CARDINAL . During DATE those remaining were also deported . At the end of their detention in GPE the applicants were alone in the facility .

The mattresses and blankets were dirty and infested with lice . No pillows or bedding were provided . During DATE of their detention , the applicants had to sleep on the floor without mattresses , with blankets only , due to the overcrowding . The facility did not have showers or hot water . The applicants were taken to a public bathhouse only twice during DATE that they spent in that facility . Nor were they provided with towels , toilet paper , toothbrush , toothpaste , shaving items or shampoo . The toilets were very dirty and were never cleaned . Nor did the administration provide proper cleaning material to the detainees for them to do the cleaning . The facility was infected with cockroaches and mosquitoes . As a result of the poor detention conditions , the applicants suffered from dermatological diseases and infections . They were taken to a doctor for the skin problems , but they were never given the prescribed medication . They were ill as a result of water contamination at the beginning of their detention in GPE . Furthermore , the first applicant suffered from arthritis and the second applicant had back problems . They did not receive any medical check - ups for their health problems . The applicants were provided with meals twice a day . The meals consisted of soup and an insufficient amount of bread . They were not given any drinkable water . They were also not provided with clothing . Therefore , they had to wear the same clothes for DATE .

NORP The detention facility did not have any provision for indoor or outdoor activities . The applicants were taken out only when they were forced to do work , such as collecting rubbish , watering the lawn , sweeping the floors and the stairs , or loading and unloading , for which they were never paid .

Finally , throughout their detention in the LOC police headquarters , the applicants were not allowed to make or receive telephone calls . Nor could they have visits , except for one visit from a ORG officer . At the request of the ORG office , a lawyer went to the GPE police headquarters to visit the applicants . He was however not allowed to meet the applicants .

The applicants submitted several written complaints regarding the conditions of their detention . However , the authorities refused to accept the letters containing their complaints .

The Government submitted that the applicants were held in the LOC police headquarters building DATE and DATE on a temporary basis while awaiting transfer to a foreigners ' admission and accommodation centre . The Government noted that during the period in question a total of CARDINAL foreigners stayed in the facility . However , CARDINAL persons were detained at any given time . Besides , DATE and DATE the applicants were held alone .

The Government further submitted that a foreigners ' guesthouse had been constructed in LOC subsequent to the applicants ' transfer to GPE foreigners ' admission and accommodation centre . According to the ORG 's submissions , in this new facility the food is provided CARDINAL times a day by the centre administration . Although there is no health clinic within the facility , the detainees are provided with adequate medical assistance in the nearby clinics and ORG hospitals . They are allowed to go into the open air and can exercise in the garden of the facility , where they are served their meals and play football with the staff working at the centre . The Government contended that lavatories , toilets and bathrooms were provided in the centre and the immigrants were sent to the NORP bath periodically . They finally noted that the applicants could contact the outside world by telephone and internet .

In their submissions dated CARDINAL DATE the applicants complained about the conditions of detention in the ORG Admission and ORG . They complained in particular about the quality of food and water , insufficient medical support , unsatisfactory sanitary facilities , their inability to take exercise and the increase in the number of detainees held in the ORG Admission and ORG . In support of their allegations the applicants submitted a number of photos , including CARDINAL photos which were taken on DATE and which allegedly showed the back and legs of the first applicant who claimed to be suffering from a skin rash .

The Government submitted that the application concerned the conditions of detention at the LOC police headquarters and not those in the Kırklareli Foreigners ' Admission and Accommodation Centre . They therefore requested the ORG not to examine the application in so far as it concerned complaints regarding the detention conditions at the ORG .

A description of the relevant law can be found in the judgments of NORP v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § DATE , DATE ) .