Preliminary objection dismissed (non-exhaustion of domestic remedies);Violations of Art. 3 (torture and failure to investigate);Not necessary to examine other complaints under Art. 3;Violation of Art. 13;Not necessary to examine Art. 34 and 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE . At the relevant time he was a police officer in the road traffic department . On DATE , while off duty , he and his friend F met GPE , a teenage girl , in Bogorodsk , in the GPE region . The applicant gave GPE a lift in his car to PERSON .

On DATE GPE ’s mother informed the Bogorodsk municipal police of her daughter ’s disappearance . At TIME on DATE , the applicant was arrested . F was also arrested and brought to Bogorodsk police station . The applicant and F were questioned by police officers in relation to the disappearance of GPE . However , no charge was brought against them . Following the questioning , the police seized the applicant ’s identity card and other documents and put him in the detention wing .

On TIME DATE the applicant ’s superior officer came to the applicant ’s cell and forced him to sign a resignation statement backdated to CARDINAL DATE .

On DATE the police searched the applicant ’s flat , country house , garage and car . They found CARDINAL gun cartridges in his car .

On DATE CARDINAL officers from Bogorodsk municipal police , N , T and NORP , filed an “ administrative offence report ” with a judge of ORG . The report stated that on TIME of CARDINAL DATE the applicant and ORG had committed a “ disturbance of the peace ” at the railway station . On DATE the judge sentenced the applicant and CARDINAL GPE administrative detention from CARDINAL DATE .

According to the applicant , while in detention in Bogorodsk police station , he had been repeatedly questioned about the disappearance of GPE . He denied any involvement in her disappearance . He said that he had requested a lawyer on many occasions , but that his request had been refused .

On DATE the police opened a criminal investigation relating to the ammunition found by the police during the search of CARDINAL DATE ( criminal case no . DATE ) . By this time the term of the applicant ’s administrative detention had expired and the applicant had been placed in custody in connection with the criminal case . He was transferred to another detention centre , under the jurisdiction of NORP police department , who were in charge of the case .

The applicant submitted that after his transfer to the detention centre the questioning had become more intensive and even violent . For instance , on several occasions the police officers had slapped him and threatened him with torture in order to extract a confession that he had killed GPE . In particular , they had threatened to apply electric shocks to him or place him in a cell with “ hardcore criminals ” who would kill him if they learned he was a police officer .

On DATE the applicant was visited by a lawyer hired by the applicant ’s mother DATE in connection with criminal case no . DATE . According to the applicant , during the conversation with the lawyer he had mentioned that the real reason for his detention was the disappearance of GPE . However , the lawyer replied that she could not take on another case that she had not been paid for . DATE , according to the applicant , the police investigator banned all visits by the lawyer to the applicant .

Meanwhile , ORG testified to the police that he had seen the applicant rape and kill GPE . He indicated to the investigators the place where they had allegedly hidden the body of GPE . A group of policemen went there , but nothing was found .

On DATE the applicant was questioned at NORP police station in the presence of several police and prosecution officials , including I ( the senior police investigator ) , S ( deputy head of the local office of ORG ) , PERSON ( the deputy regional prosecutor ) , the ORG town prosecutor , and a number of policemen of the NORP police department .

The applicant alleged that he had been subjected to torture in order to make him corroborate ORG ’s confession . According to the applicant , while he was sitting handcuffed on a chair , police inspectors K and O had administered electric shocks to his ears through metal clips connected by a wire to a box . The applicant had been tortured several times in this way . The applicant had also been threatened with severe beatings and application of an electric current to his genitals . CARDINAL of the police officers had told him that the current could cause his tongue to fall back into his throat , from where it could be extracted only by means of a safety pin .

According to the applicant , the officials from the prosecutor ’s office had not been present in the room where he had been tortured with electrodes . However , he had twice been brought to another room in the police station , where he had been repeatedly questioned by those officials , notably PERSON . The applicant had complained to PERSON about the ill - treatment , but the latter had not reacted , and when the applicant again refused to confess to murdering GPE , PERSON had ordered the police officers to take the applicant “ back to where he came from ” .

The applicant submitted that , unable to withstand the torture and left unattended for a moment , he had broken free and jumped out of the window of the second floor of the police station in order to commit suicide . He had fallen on a police motorcycle parked in the courtyard and broken his spine .

The applicant , accompanied by inspector K , was immediately taken to Hospital no . CARDINAL of LOC , where he was examined by PERSON , who established various injuries caused by his fall from the window , affecting in particular his vertebral column and locomotor system .

On DATE the applicant was transferred to Hospital no . CARDINAL . His mother arrived at the hospital and asked PERSON to include burns to the applicant ’s ears in his medical record . However , her request was refused . She also submitted a request to PERSON , who was in charge of the applicant ’s case , and to the head doctor of the hospital , asking that the burns be recorded . She received no answer to her requests .

On DATE , the day of the applicant ’s fall from the window , GPE returned home unharmed . She explained that on TIME the applicant had offered her a ride in his car . She had agreed . When they had arrived in PERSON , he had suggested that she could spend TIME at his place , but she had refused and the applicant had let her go . MS had gone to friends living in PERSON , where she had spent DATE , without letting her mother know were she was .

On DATE the applicant ’s detention was formally discontinued . On DATE the applicant underwent spinal surgery . He remained in hospital until DATE . On DATE criminal case no . DATE concerning the alleged rape and murder of GPE was closed . However , the applicant became a suspect in another criminal case – no . DATE , in which he was charged with the abduction of GPE .

On DATE the criminal investigation into the illegal possession of the gun cartridges was discontinued , on the ground that at the time of their discovery the applicant had been a police officer and , therefore , had had the right to possess the ammunition . On DATE ( the Government indicated a different date – CARDINAL DATE ) , the case concerning the alleged abduction of GPE was also discontinued on the ground that the applicant had freed GPE at her request .

On DATE an investigator from the NORP district prosecutor ’s office instituted a criminal investigation into the applicant ’s fall from the window of the police station on DATE ( case no . DATE ) .

NORP The investigator questioned CARDINAL police officers from the NORP district police who had participated in the questioning on DATE . They stated that they had not ill - treated the applicant or seen him being ill - treated . The police officers said that , in the course of the interview , inspector K had told the applicant that his friend F had testified to having seen the applicant rape and murder GPE , and that it would be wise for him to confess . The interview had then been interrupted for a tea break . While the officers had been busy preparing tea , the applicant had suddenly jumped out of his chair , run to the window , broken the glass and fallen out .

The investigator also questioned ORG , who submitted that no pressure had been exerted on him to make a false statement about the applicant . F stated that he had implicated the applicant out of fear of being accused of bringing about the disappearance of GPE .

The investigator further questioned PERSON from Hospital no . DATE , who had examined the applicant after the accident of DATE . The doctor confirmed that on DATE of the accident the applicant ’s mother had mentioned some electrical burns on her son ’s ears . However , all the applicant ’s injuries had been caused by his fall from the window . According to the medical record , the applicant had no electrical burns to his ears .

B , the applicant ’s ward - mate in Hospital no . DATE , was also questioned by the investigator . B spoke of burns and abrasions to the applicant ’s ears which may have been caused by an electrical discharge . B stated that he had worked as an electrician and therefore knew what burns from an electrical current looked like .

The investigator ordered a forensic medical examination of the applicant . The forensic report , drawn up on DATE , stated that the applicant had wounds on the top of his head , scratches on his forehead and bite marks on his tongue . No burns or other traces of the use of electrical current were recorded .

On DATE the investigator discontinued the criminal proceedings against the police officers for lack of evidence of a crime . The investigator found that the applicant had been arrested on DATE in connection with the disappearance of GPE . On DATE the police had carried out a search of the applicant ’s car and found CARDINAL gun cartridges . On DATE the applicant and F had been released . However , shortly after their release inspector N of the Bogorodsk police had identified certain factual gaps in their written submissions . ORG and D had followed the applicant and found him at the town ’s railway station . The applicant had been disturbing passers - by by addressing them with obscene language . As a result the applicant had been arrested again and on DATE made the subject of an administrative arrest for disturbance of the peace . On DATE a new criminal case had been opened against the applicant in relation to the gun cartridges found in his car . On DATE a detention order had been issued against the applicant on this new ground . On DATE he had been transferred to NORP district police station , where he had been questioned by several police officers , including inspectors K and O. After the interview the applicant had suddenly jumped out of his chair , broken the window and fallen out . He had been brought immediately to Hospital no . CARDINAL . On DATE had returned home .

NORP The investigator referred further to the testimonies of the police officers and PERSON , the medical records of Hospital no . DATE and the forensic medical report of CARDINAL DATE . He also referred to the opinion of a medical expert , ORG , which stated that the application of an electrical current might leave burns on the skin . The investigator disregarded the testimony of B on the basis that the latter “ had no specialist medical knowledge ” . The investigator came to the conclusion that the applicant ’s allegations of torture were unsubstantiated , describing them as a “ defence mechanism ” in response to the situation in which he had attempted suicide .

On DATE the regional prosecutor ’s office reopened the case and handed it to the same investigator for further investigation . On DATE the investigator , referring to the same evidence as before and using identical wording , discontinued the proceedings again . He added that the investigative measures referred to by the senior prosecutor in his decision of CARDINAL DATE had already been taken in DATE . Given the state of the applicant ’s health , it was impossible to carry out new investigative measures , such as confrontations or forensic examinations .

On DATE the same supervising prosecutor reopened the case and ordered certain additional investigative measures , including a medical examination of the applicant and a confrontation between the applicant and the police officers who had allegedly tortured him . The case was transferred to another investigator . On DATE the investigator discontinued the proceedings , basing his decision on the same reasoning as in the decision of CARDINAL DATE .

On DATE the same supervising prosecutor reopened the case for the third time and handed over the file to another investigator .

This time the applicant ’s mother was questioned . She stated that on DATE she had arrived at the hospital and had seen that her son ’s ears had been injured . She had asked that the injuries be recorded but the request had been refused by the hospital doctor , because “ they had been given instructions to that effect ” .

NORP The investigator also questioned a hospital attendant and CARDINAL doctors from Hospital no . CARDINAL , who all denied that the applicant had had injuries other than those caused by his falling out of the window . CARDINAL of the patients in Hospital no . CARDINAL , where the applicant had been brought after the accident , confirmed that the applicant had told him about the torture with electrodes ; however , the patient stated that he had seen no traces of any injuries on the applicant ’s ears . F , who had visited the applicant in hospital , stated that the applicant had told him about the torture , but F had seen no signs of torture on him .

A further witness , the senior officer of the traffic police department where the applicant had served before his arrest , provided the investigator with a “ psychological profile ” of the applicant , describing the applicant as having a weak personality . The investigator also obtained the results of a psychological test which the applicant had undergone upon his appointment to the traffic police . The test revealed that the applicant “ had a tendency to avoid conflict and was a vulnerable person , susceptible to outside influences ” .

On DATE the proceedings were discontinued . The investigator concluded that the applicant had jumped out of the window of his own will , “ driven by his personal assessment of the situation , based on specific psychological features of his personality ” .

On DATE the case was reopened by another supervising prosecutor . F was questioned anew . This time F testified that while in Bogorodsk police station , he had been beaten by inspector A in an attempt to extract a confession to the murder of GPE . DATE F had been repeatedly questioned in NORP district police station in GPE . In the course of the questioning I , the senior police investigator , had slapped and shaken him . I had also mentioned that F would be tortured with electrodes if he did not confess to the impugned crimes . F had also been questioned by PERSON , the deputy regional prosecutor . On DATE F had signed the confession and even located on the map the place where he and the applicant had allegedly hidden the body .

After the incident , F had visited the applicant in hospital . The applicant had told him about the torture with electrodes . In reply F had described to the applicant the officer who had threatened him with it , and the applicant had confirmed that this was the same officer who had participated in the questioning of CARDINAL DATE . DATE he had recounted this to the investigator in charge of case no . DATE ; however , it had been decided not to include these statements in the official record .

On DATE the investigation was again discontinued by an investigator from the prosecutor ’s office . On an appeal by the applicant on DATE , ORG of PERSON quashed the decision , ordering the prosecution to carry out a further investigation . The court noted , inter alia , that the applicant ’s submissions were consistent and detailed , and that the case should be investigated more thoroughly . The court ordered other patients from the hospital where the applicant had been brought after the accident to be questioned . The court also deemed it necessary for the applicant to be examined by an expert in psychiatry and psychology .

The proceedings were resumed . This time the prosecution investigator questioned PERSON , who had been on duty in GPE no . CARDINAL , where the applicant had been brought immediately after the accident . The doctor stated that he had not noticed or treated any injuries to the applicant ’s ears . The same evidence was reiterated by PERSON and PERSON They both confirmed that the applicant ’s mother had requested them to re - examine the applicant ’s ears on several occasions , but that they had not identified any injuries . CARDINAL patients from Hospital no . CARDINAL testified that the applicant had told them about being tortured with electrodes , but that they had seen no signs of any injuries on the applicant ’s ears . The same testimony was given by F.

The investigator also ordered a psychological and psychiatric examination of the applicant . The examination showed that the applicant was mentally sane , but had been traumatised by the accident and had a lasting physical disability as a result of it . At the time of the examination , the applicant ’s mental state was characterised by euphoric reactions , amiability , emotionality and dependence on a stronger personality , namely his mother . He did not display any suicidal tendencies . The report stated that it was impossible to draw any conclusions as to the applicant ’s mental state at the time of the accident .

On DATE the proceedings were discontinued by the investigator on the same grounds as before .

By letter of CARDINAL DATE the GPE NORP regional prosecutor ’s office informed the applicant that the investigation had been reopened and sent to the NORP prosecutor ’s office with relevant instructions for additional investigation . The applicant requested that the prosecution service question V , CARDINAL of the patients in Hospital no . CARDINAL .

On DATE the prosecution service discontinued the investigation , finding that no criminal offence had been committed and indicating , inter alia , that it had been impossible to find V at his place of residence . The investigator concluded that the applicant ’s allegations of torture were supported only by his own submissions , which , in the light of other evidence obtained in the course of the investigation , had been found to be untrue .

Knowing that V was disabled and a wheelchair user , the representatives of the applicant contacted V and learned that the execution of the request to question V had been assigned to inspector O , CARDINAL of the police officers involved in the alleged torture . Inspector O reported that on several occasions he had tried to question V , but had been unable to find him at his address . On DATE V explained to the applicant ’s representatives that someone introducing himself as an investigator had telephoned him once and said that he needed to question him . V had agreed to make a statement , but the person had never called back .

On DATE the GPE NORP regional prosecutor ’s office annulled the decision of CARDINAL DATE . On DATE the NORP district prosecutor ’s office discontinued the investigation yet again on the same grounds . The applicant appealed against the decision to discontinue the investigation . By letter of DATE the applicant was informed that the ORG NORP regional prosecutor ’s office saw no reason to overturn the decision to discontinue the investigation .

According to the respondent Government , the regional prosecutor reopened the investigation on DATE and transferred the case to the NORP district prosecutor ’s office . Apparently , by DATE the case had been closed again . On DATE , according to the applicant , the investigation was reopened . On DATE the case was transferred from the NORP district prosecutor ’s office to the department of the regional prosecutor ’s office dealing with investigations into cases of particular importance .

F was questioned once more . He testified that while being questioned in LOC district police station in connection with the disappearance of GPE he had been beaten by the police officers . They had also threatened to torture him with electrodes .

On DATE the investigator from that department closed the case again , concluding that no evidence of ill - treatment of the applicant had been obtained and that the actions of the police officers had been lawful . On DATE the case was reopened , before being closed again on DATE . On DATE the case was reopened by the regional prosecutor ’s office . On DATE the case was closed . It was then reopened , and , according to the ORG ’s submissions , closed again on DATE . On DATE the regional prosecutor reopened the investigation . According to the Government , the deadline for the new investigation was DATE .

On an unspecified date in DATE the prosecutor ’s office brought charges against CARDINAL policemen , ORG , who had participated in the questioning of the applicant on DATE . The case file , together with a bill of indictment , was eventually forwarded to ORG of PERSON for examination .

In the course of the trial the court questioned a large number of witnesses . Hence , it questioned ORG , and CARDINAL other police officers who had participated in the questioning of DATE or had been in NORP police station on DATE . They all denied that they had tortured the applicant or had heard of any such torture . The court further questioned ORG , a former police investigator , who had been in charge of the applicant ’s case but had not taken part in his questioning . She testified that she had heard from her colleagues that the applicant had jumped out of the window because he had been tortured with electrodes .

The court also heard evidence from the applicant , his mother , F , GPE , and the doctors at the hospital where the applicant had been placed after the incident . They confirmed their initial submissions . An expert witness appeared before the court . He testified that in certain conditions electric current might leave no traces on the human body . The court also questioned ORG , who in DATE had been brought to NORP police station on suspicion of theft . According to ORG , CARDINAL policemen had questioned him and then tortured him with electrodes in the same way as the applicant described .

The court heard other witnesses and examined exhibits and materials collected in the course of the pre - trial investigation . Thus , the court read out the testimonies of B , V , and ORG , the applicant ’s ward - mates in GPE no . CARDINAL , and examined the results of medical and psychiatric expert examinations of the applicant . The court also examined a piece of paper which had been found during the search of the office where the applicant had been questioned on DATE . It contained an unfinished passage describing the events of DATE , when GPE had disappeared , under the title “ Voluntary confession ” . The whole text had been written by the applicant .

On the basis of the above evidence the court established that on DATE the applicant had been brought to NORP police station , where he had been questioned by several officials from the police and the prosecutor ’s office . They had requested him to confess to having raped and murdered GPE and to show them where he had buried the corpse . In order to extract a confession from the applicant , police officers ORG had administered electric shocks to the applicant using a device connected to his ears . The court noted that in his initial submissions the applicant had testified that he had been tortured by inspectors ORG However , following the identification parade the applicant had identified inspector ORG as CARDINAL of CARDINAL officers who had tortured him . Unable to withstand the pain , the applicant had agreed to confess , but , left unattended for a moment , had attempted suicide by jumping out of the window . He had fallen on a motorbike parked in the courtyard of the police station and broken his spine .

On DATE ORG of PERSON found K and ORG guilty under LAW ( a ) and ( в ) of LAW ( abuse of official power associated with the use of violence or entailing serious consequences ) . They were sentenced to DATE imprisonment with a subsequent CARDINAL years’ prohibition on serving in the law - enforcement agencies . According to the information available to the ORG , the judgment of DATE is not yet final .

In DATE CARDINAL activists from a regional human rights NGO ( ORG ) interviewed several persons about the events of DATE complained of by the applicant . Their submissions were recorded on videotape .

In those interviews , ORG stated that he had been arrested on DATE . While in custody , he had been threatened and slapped several times in order to extract a confession to the murder of GPE . On DATE he had been questioned by a senior police investigator , I , who had kicked him and threatened to place him in an “ underground cell ” where he would be beaten and tortured with electrodes until his eyes bled .

On DATE a short confrontation had been arranged between F and the applicant . F submitted that he had seen bruises on the applicant ’s neck . In the evening F had been questioned again , this time in the presence of the deputy regional prosecutor PERSON and the ORG town prosecutor , as well as several police officers . PERSON had threatened to lock F in a cell with “ boy - crazy criminals ” who would rape him , or to put him in a cell together with tuberculosis - infected detainees . He had also threatened that if F survived in the cell , he would be sentenced to CARDINAL years’ imprisonment or death row .

F had confessed to raping and killing the girl together with the applicant . At PERSON ’s request , ORG had named the place where they had allegedly hidden the corpse . An investigating team had been sent to the place in question , but had found nothing . On DATE , after the girl had come home , F had been released .

According to B , the applicant ’s ward - mate in Hospital no . DATE , after having been brought to the hospital the applicant had told him about the circumstances of his arrest and , in particular , about the torture with electrodes . The applicant had shown B burns on his ears , which looked like “ stripped blisters ” . According to M , another patient in the hospital , before the applicant had been brought to the hospital the police had warned the personnel that the applicant was a dangerous criminal . The patients had been required to hide all sharp metallic objects . M also recollected that there had been something red on the applicant ’s ears , “ as if somebody has pulled his ears ” . M also remembered that the applicant ’s mother had asked the doctors to examine his ears , but that they had replied that everything had been normal . V confirmed that , while in the hospital , he had heard from the applicant about the torture and seen the applicant ’s mother asking the doctor to examine his ears . V also confirmed that the applicant ’s ears had been injured , but said that it did not look like blisters as far as he could remember .

The NGO activists also interviewed L and K , witnesses to the search of the applicant ’s car .

DATE . In DATE the NGO activists questioned F once more with a view to clarifying the discrepancies between his evidence in the course of the official investigation and his statements to the NGO activists and the media . F stated that the investigators , while questioning him as part of the official criminal investigation , had disregarded his statements about the deputy regional prosecutor PERSON ’s involvement in the events of DATE .

On an unspecified date in DATE a prosecutor filed a request for supervisory review of the judgment of CARDINAL DATE whereby the applicant had been sentenced to CARDINAL days’ administrative detention . On DATE the President of ORG quashed that judgment . The President noted that the judgment had been based on the information from the police officers at Bogorodsk police station , who had alleged that they had arrested the applicant at the railway station on DATE . However , at that time the applicant had in fact been detained in custody in connection with the disappearance of GPE .

On DATE a prosecutor instituted criminal proceedings against the CARDINAL Bogorodsk police officers for making false statements in relation to the alleged arrest of the applicant at the railway station ( criminal case no . CARDINAL ) . A prosecution investigator confirmed that the applicant had not been at the railway station on DATE , having at that time been detained in custody . However , on DATE the charges against the police officers were dropped following a “ change in the situation ” in view of the fact that CARDINAL police officer had been dismissed from his job , while the other CARDINAL had been transferred to other positions within ORG .

The Government stated that on CARDINAL DATE criminal case no . DATE had been reopened by the prosecution service and transmitted to the GPE town prosecutor ’s office for further investigation . On ORG CARDINAL DATE the criminal case was closed owing to expiry of the time - limits for criminal prosecution of the police officers . This decision was quashed by the town prosecutor and the case was reopened again . On DATE the criminal case against the QUANTITY police officers was forwarded to the court of first instance together with the bill of indictment . On DATE the proceedings were discontinued owing to expiry of the statutory time - limit for criminal prosecution of the defendants . On DATE the ORG quashed that decision and remitted the case to the court of first instance . According to the respondent Government , the proceedings are still pending .

On DATE the applicant lodged a civil claim with ORG of PERSON , seeking compensation for malicious prosecution , his dismissal from his job , the search of his LOC and his detention and ill - treatment by the police . The applicant ’s lawyer asked the court to request from the prosecutor ’s office case - files nos . DATE , DATE and DATE . The applicant and his representative maintained that the evidence gathered by the prosecution was necessary to argue the substantive part of the civil suit . On DATE ORG of PERSON requested the files from the respective prosecutor ’s offices . On DATE case - file no . DATE was delivered to the court . It was withdrawn DATE by the prosecutor ’s office . On DATE the case - file was re - submitted to the court . On DATE , at the prosecutor ’s request , the case - file was returned to the prosecution . On DATE the applicant ’s representative asked the court to suspend the civil proceedings .

The applicant ’s notice of dismissal dated CARDINAL DATE was annulled , and the applicant was reinstated in his post . The officers responsible for his backdated dismissal were subjected to disciplinary proceedings . However , owing to the applicant ’s complete disability , he had to leave the traffic police .

The applicant is disabled and receives a pension from the ORG on that basis . The Government indicated that in connection with the accident he also received a lump - sum insurance indemnity from the ORG in the amount of MONEY ( MONEY at the current exchange rate ) .

The applicant produced a report , drawn up on DATE by Dr PERSON , a specialist in forensic medicine . The report stated that the applicant suffered from osteomyelitis , his legs were paralysed , he was unable to work and he suffered from severe dysfunction of the pelvic organs and loss of sexual function . He was confined to bed and was in permanent need of a nurse to help him urinate and empty his bowels . The applicant was at risk of sepsis . He required regular hospital examinations , CARDINAL or CARDINAL times a year .

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

Article CARDINAL § CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . LAW makes incitement to suicide liable to a sentence of PERCENT imprisonment . Under LAW ( a ) and ( в ) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment .

Under LAW and CARDINAL of the DATE Code of Criminal Procedure ( in force until DATE ) , a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities’ own motion . Article CARDINAL of the PERSON stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party . During the investigation the victim could submit evidence and lodge applications , and once the investigation was complete the victim had full access to the case - file .

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

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

Article CARDINAL of the Code provided that the case could be reopened by the prosecutor “ if there are grounds ” to do so . Only if the time - limit for prosecuting crimes of that kind had expired could the investigation not be reopened .

Article CARDINAL of the Code provides that , as a general rule , the information obtained in the course of the investigation file is not public . The disclosure of that information may be authorised by the prosecuting authorities if the disclosure does not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings . The information concerning the private life of the parties to the proceedings can not be made public without their consent .


SEBIK AND STERNOVA v. THE CZECH REPUBLIC

The applicants are :

PERSON and PERSON , born in DATE and DATE respectively , living in GPE and represented by PERSON , a lawyer practising in GPE ;

Mr PERSON , born in DATE and residing in GPE ;

Mr PERSON , born in DATE and living in GPE ;

PERSON , born in DATE and living in GPE , GPE .

They are NORP nationals .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE ORG ( PERSON ) convicted the ORG father of treason , sentencing him to confiscation of all his property , which was subsequently sold and assigned to a certain PERSON and M.

On DATE the ORG father died .

On DATE ORG ( krajský soud ) declared that , pursuant to LAW , his conviction and all ancillary decisions had been quashed with retrospective effect .

On DATE the applicants brought restitution proceedings before ORG ( okresní soud ) against P. and M.

In a judgment of DATE ORG dismissed the applicants’ restitution action . The court had requested an expert opinion aimed at determining whether or not the property at issue had been sold to PERSON an unlawfully preferential price . With reference to the expert opinion , the court held that ORG PERSON had acquired the property lawfully .

On DATE ORG upheld the merits of ORG judgment , which became final on DATE .

On DATE the ORG appeal on points of law ( dovolání ) was dismissed by ORG as filed outside the DATE statutory time - limit laid down by LAW then in force .

On DATE ORG ( PERSON ) rejected the applicants’ constitutional appeal . It held that in respect of ORG judgment the appeal had been filed outside the DATE time - limit provided for by LAW , taking into account the dismissal of the applicants’ appeal on point of law for their failure to respect the DATE statutory time - limit . The court further held that the applicants’ argument relating to the proceedings before ORG were manifestly ill - founded .

On DATE the applicant ’s wife died . Judicial proceedings regarding her inheritance were started on CARDINAL DATE and were meritoriously terminated on DATE when the decision of ORG ( krajský soud ) of CARDINAL DATE on the distribution of the inheritance became final .

On DATE a notary initiated inheritance proceedings following the death of a certain PERSON

On DATE ORG ( okresní soud ) held that the applicant and his wife were heirs to PERSON At the same time , it determined the net value of PERSON ’s assets .

The inheritance proceedings terminated with a decision of ORG dated DATE which became final on DATE .

The applicant ’s husband was the owner of real estate in various places in GPE . These estates were confiscated from him in DATE . In DATE some of the estates were transferred to the ownership of natural persons in an assignment procedure .

On DATE the applicant ’s husband died , designating the applicant as his universal heir . The application concerns the following sets of proceedings .

ORG proceedings before ORG

On DATE the applicant ’s late husband initiated restitution proceedings concerning the estates in GPE and PERSON .

ORG proceedings before the GPE nad ORG

On DATE the applicant ’s late husband lodged a claim for the restitution of the real estate in GPE , Chlístov u Železného Brodu , ORG u ORG , ORG PERSON with the GPE nad ORG .

ORG proceedings before ORG

On DATE the applicant ’s late husband lodged a claim for the restitution of the estate in PERSON with ORG . It appears that the proceedings are still pending .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


No violation of Art. 5-3;No violation of Art. 6-1

The object of the ORG ’s request is to submit the case of PERSON to the ORG so that the ORG may decide whether or not the facts reveal any violation by GPE of its obligations under LAW ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the Convention .

The facts of the case , as they appear from ORG , the memorials , documents and evidence submitted to ORG and the oral statements made by ORG , are essentially as follows :

PERSON , a NORP national born at GPE in DATE , is habitually resident there . At the time of his arrest he was a broker by profession .

Being under suspicion of being involved in offences of breach of trust , the PERSON was arrested on DATE . A warrant of arrest ( PERSON ) issued DATE by ORG ( ORG ) of ORG ordered his detention on remand .

The warrant stated that PERSON was under grave suspicion of having incited breach of trust ( GPE zur Untreue ) contrary to Sections CARDINAL and CARDINAL of the NORP LAW : as a customer of the August - Thyssen Bank in GPE he was said to have incited certain of the ORG ’s officials to misappropriate very large sums of money . It was also stated in the warrant that it was to be feared that , if left at liberty , the Applicant would abscond and attempt to suppress evidence ( LAW of LAW ) , for :

- he was likely to receive a considerable sentence ;

- persons implicated in the offences but not yet known to the authorities might receive warning ; and

- there was a danger that the Applicant would destroy those business documents that it had not yet been possible to seize .

During the investigation the warrant was superseded successively by CARDINAL detention orders dated DATE and CARDINAL DATE , both issued by ORG . These stated that PERSON was under grave suspicion of continuing acts of fraud ( fortgesetzter LOC ) contrary to LAW , of prolonged abetment to fraud ( fortgesetzte Beihilfe zum Betrug ) contrary to Sections CARDINAL and CARDINAL of the Code and of prolonged abetment to breach of trust ( fortgesetzte GPE ) contrary to Sections CARDINAL and CARDINAL of the Code .

In the course of DATE and DATE the Applicant asked at several times to be released but all his requests were rejected by the GPE courts which referred to the reasons given in the warrants of arrest mentioned above . In particular , in DATE , he made an unspecified offer of bail , which was rejected by ORG ( GPE ) on DATE , on the grounds of a danger of suppression of evidence ( GPE ) and moreover because bail could not dispel or diminish the danger of flight in the present case . On DATE , he offered bail of CARDINAL ORG , but he withdrew the offer DATE .

On the occasion of an ex - officio examination of the lawfulness of the detention by ORG , ORG lawyer asked on DATE for conditional release of the Applicant , offering in particular the deposit of identity papers . On DATE , however , the court ordered the further detention of the Applicant on the grounds given in the warrant of arrest .

The Applicant contested this decision on DATE , when he invoked the provisions of ORG first time . Asking for release on any condition which might be thought to be necessary , he held in particular that there was neither a danger of suppression of evidence nor a danger of flight , for he had done all he could do to clear up the transactions involved . He added that all his roots were in GPE where he lived with his wife and child and where his family had for CARDINAL owned a jeweller ’s shop , and which his father intended to convey to him very soon . He further stressed that he had brought civil actions against his debtors and therefore had to appear as plaintiff before several ORG CARDINAL times a week . On the other hand , he pointed out that it was not possible for him to flee from GPE : by reason of his numerous previous journeys he was so well known at the GPE airport that he could not take an aeroplane there ; having been detained for DATE in GPE he could enter neither this territory nor GPE . Finally the fact that he stayed at GPE after the discovery of his transactions by ORG on DATE showed clearly that he never had any intention of fleeing .

This appeal was rejected by ORG ( Landgericht ) of GPE on CARDINAL DATE , on the following grounds :

- the Applicant was under suspicion of having committed the alleged offences ;

- the facts had not been fully investigated and were particularly involved ;

- he appeared to have played a particularly significant part in all the transactions under consideration so that he was likely to receive a particularly severe sentence and might therefore be suspected of intending to flee ;

- he had important connections abroad and it was impossible , at the present stage of the preliminary investigation , to deny the possibility that he had assets there ;

- the threat of his financial collapse increased the danger of flight which was not diminished by the existence of his family links in GPE ;

- while it was doubtful whether the danger of suppression of evidence was sufficient to justify continued detention , certain reasons still suggested that there was still such danger .

In a second appeal ( PERSON ) of CARDINAL DATE , the Applicant specified that he had been sentenced in DATE by a tribunal in GPE to DATE penal servitude and had been released in DATE . Adding that he had declared his opposition to communism on many occasions , the Applicant declared that it was also impossible for him to flee by passing through GPE by train or by road .

From the judgment of ORG of DATE ( paragraph CARDINAL , infra ) , it appears that the conviction mentioned by the Applicant had been in respect of the illegal transport of goods belonging to refugees and of timber to GPE ; this conviction was dated DATE .

The Appeal of CARDINAL DATE was rejected by ORG on CARDINAL DATE . While admitting that at this stage there might be some doubt as to whether there was still a danger of suppression of evidence , the ORG , taking up the grounds of the decision against which the appeal was lodged , pointed out that there was still a danger that the Applicant would abscond ; and that his continued detention did not conflict with the requirements of LAW ) ( article CARDINAL ) of the LAW . The ORG added that it was to be feared that ORG would refuse to comply with the summons to appear before the judicial authorities on account of his character on which a medical expert had given an unfavourable opinion , which had been confirmed by his conduct while in detention pending trial .

Several applications for conditional release filed by the Applicant in DATE and DATE were also rejected by the GPE courts on grounds similar to those stated by ORG on CARDINAL DATE . In particular , this court found , in a decision of CARDINAL DATE , that the risk that the Applicant would abscond was even greater than in DATE . As a matter of fact , he was likely to receive an appreciably higher sentence than had formerly been thought , as in the meantime LAW had extended the accusation against the Applicant to certain offences under LAW some of which he was said to have committed while in detention . On the other hand , the court considered that it was not yet possible to forecast whether the LAW , in the event of a conviction , would be conditionally released in accordance with LAW after serving CARDINAL of his detention and whether , in the event of such conviction , the time he had spent in detention pending trial would be counted as part of the sentence .

DATE and CARDINAL DATE the LAW submitted CARDINAL petitions concerning the conditions of his detention on remand , CARDINAL of which were accepted by the responsible authorities while the other CARDINAL were refused .

During his detention , he was subjected to disciplinary punishment CARDINAL times .

The investigation concerned CARDINAL persons . It was conducted by a member of ORG and lasted from DATE to CARDINAL DATE without any important interruptions . In particular , PERSON was interrogated on CARDINAL occasions .

CARDINAL of the subjects of the investigation was extremely complex cheque manipulations of which the defendants were suspected ( paragraph CARDINAL of ORG ) . It involved the examination of CARDINAL accounts at CARDINAL banks in GPE , CARDINAL banks in GPE and CARDINAL banks in GPE ; the transactions checked totalled CARDINAL DM . In the case of the Applicant alone , transactions amounting to CARDINAL DM were involved DATE and DATE , affecting CARDINAL accounts at CARDINAL banks .

CARDINAL witnesses were questioned , both in GPE and abroad . In addition CARDINAL expert opinions were obtained from a number of auditing firms and accountants and from a retired President of the ORG . The number of DATE amounted to CARDINAL . The reports of the financial experts alone comprised CARDINAL pages .

By the time the charge was preferred the court ’s records comprised CARDINAL volumes containing CARDINAL pages .

On DATE , the investigation having been completed , the indictment - a document of CARDINAL pages - was filed with ORG of Berlin ; it was notified to the Applicant on DATE . It shows that the PERSON was accused of :

- CARDINAL cases of prolonged incitement to breach of trust ;

- prolonged fraud in CARDINAL of these CARDINAL cases ;

- CARDINAL case of prolonged abetment to breach of trust ; and

- seven offences under LAW ( CARDINAL ) ( i ) and CARDINAL of LAW ( GPE ) .

The cases of incitement to breach of trust , fraud and abetment to breach of trust were considered particularly grave ones within the meaning of Sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW .

On the basis of the indictment , ORG , on DATE , replaced the existing detention order by a new one which stated that PERSON was under grave suspicion of having committed the same acts of incitement to breach of trust and complicity in breach of trust as well as fraud and CARDINAL of the CARDINAL offences against LAW mentioned above .

In connection with the last - named offences the detention order stated that there were grounds for thinking that in the DATE of DATE PERSON had withdrawn CARDINAL ORG from an account in his wife ’s name at ORG , GPE , and secreted this amount somewhere . It added that the same was true , at least in part , of a sum of CARDINAL ORG paid in by ORG in DATE to an account kept by his agent with the " ORG " , GPE .

According to the detention order , there was still a danger that the applicant would abscond , because of the likely sentence .

By an order ( PERSON ) of ORG dated DATE , the Applicant and CARDINAL other accused were committed to the trial court ; the order severed the proceedings against a further CARDINAL accused persons from the main proceedings .

ORG found there was reason to think that PERSON had committed the offences described in the detention order of CARDINAL DATE .

Proceedings on CARDINAL of the CARDINAL acts of bankruptcy of which the applicant was suspected were severed from the main proceedings ; they were later discontinued ( Einstellung ) under LAW of LAW .

The Applicant ’s trial opened on DATE . In the course of it he lodged CARDINAL applications for the hearing of witnesses , covering CARDINAL points . He challenged CARDINAL judges and CARDINAL financial experts on the grounds of partiality . ORG heard CARDINAL witnesses , CARDINAL medical experts and CARDINAL financial experts . TIME totalled CARDINAL pages , apart from the appendices , which comprised CARDINAL pages .

On DATE , ORG , acting under LAW of LAW , discontinued ( eingestellt ) the proceedings in those cases of fraud with which the PERSON was charged that occurred before the beginning of DATE . On DATE , it severed from the principal proceedings the CARDINAL offences under LAW ( CARDINAL ) ( i ) of LAW for which the LAW was still being prosecuted . DATE the proceedings relating to these were also discontinued ( LAW ) .

On DATE , ORG found PERSON guilty of a particularly serious case of prolonged abetment to breach of trust ( fortgesetzte Beihilfe zur Untreue , Sections CARDINAL and CARDINAL of LAW ) and sentenced him to DATE and DATE penal servitude ( ORG ) and a fine of CARDINAL DM , the period of detention on remand being counted as part of the sentence . The court ordered that the Applicant should be kept in detention on remand for the reasons stated in the detention order of DATE .

Judgment was passed on the Applicant at the same time as on CARDINAL other accused . The judgment comprised CARDINAL pages .

After conviction , PERSON again applied for provisional release in DATE , but ORG rejected his application on DATE . His appeal against this decision was rejected by ORG on CARDINAL DATE . That court found that it was very probable that he had secreted large sums of money and that he was greatly in debt and insolvent , so that there was a danger that he would yield to the temptation to evade prosecution .

On DATE , the PERSON requested provisional release against security of CARDINAL DM ( CARDINAL DM in cash and CARDINAL DM in the form of a bank guarantee to be put up by his father ) . After discussing the matter at ORG , PERSON amended his request DATE , offering security of CARDINAL DM . This offer was accepted by ORG on DATE . The Applicant , however , did not deposit this security but on CARDINAL DATE , offered a bank guarantee of CARDINAL or CARDINAL DM which was to be provided by his father . ORG rejected this offer on DATE . The Applicant contested this decision and offered security of CARDINAL DM , but ORG dismissed his appeal on DATE on the ground that a security of this sum was not sufficient to dispel the danger of flight which was still present .

On DATE , while these proceedings were still in progress , PERSON again asked ORG to order his release if necessary against security of CARDINAL DM . The court rejected the application on DATE . It found that the temptation for PERSON to abscond was still very great , for :

- the sentence remaining to be served was considerable ;

- the Applicant was insolvent and deeply in debt , which he would probably never be able to settle ; and

- the suspicion that he had secreted away CARDINAL DM , as stated in the detention order of DATE , had grown stronger during the trial .

On DATE ORG ( ORG ) rejected an appeal ( Revision ) filed by the PERSON in DATE against his conviction by ORG . The time he had spent in detention since the judgment of DATE , in so far as it exceeded DATE , was to be counted as part of the sentence .

On DATE , after serving CARDINAL of his sentence , PERSON was conditionally released ( in accordance with LAW ) under an Order of ORG dated DATE .

In his original ORG lodged with the ORG on DATE , the Applicant alleged that the length of his detention on remand violated his right under LAW ) ( article CARDINAL ) of the Convention to be brought to trial within a reasonable time or released pending trial . He complained of the fact that the decisions of ORG dated DATE , of ORG dated CARDINAL DATE and of ORG dated CARDINAL DATE had not put an end to the detention . He claimed compensation for the damage suffered and reserved the right to specify later the exact amount of his claim .

On DATE the ORG declared the ORG admissible in respect of LAW ) ( article CARDINAL ) , and also , ex officio , with reference to LAW .

Subsequent to his ORG , PERSON made CARDINAL other complaints . On DATE the Commission declared CARDINAL of them inadmissible as being manifestly ill - founded ; the other CARDINAL were not upheld by the Applicant .

Following the decision declaring admissible the original ORG , a ORG ascertained the facts and unsuccessfully sought a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .

Before the ORG and ORG , the PERSON maintained that the purpose of LAW ) ( article CARDINAL ) was to avoid an excessively long deprivation of liberty because of the extent and length of the investigation . He stated that detention on remand was a " special sacrifice " imposed upon persons , whether guilty or not , for the maintenance of an effective administration of justice . As , according to the Applicant , this involves a derogation from the principle of the presumption of innocence enshrined in LAW ( article DATE ) , the ORG has not the right to continue such detention until the social position , the livelihood , the health , the professional and family life of the individual concerned were destroyed , consequences which his detention had brought about . Pointing out that a remand prisoner ’s uncertainty as to his fate is a mental strain that becomes heavier with the passage of time , the PERSON also mentioned LAW ) of the Convention .

ORG also submitted that it would have been possible to deal with his case more speedily , in particular , by dividing it , by employing several public prosecutors and by accelerating the work of the experts . He added that he himself had not caused any substantial delay in the proceedings but , on the contrary , assisted ORG in unravelling the transactions in issue .

Furthermore , the Applicant submitted that neither the length of his anticipated sentence nor his civil liability for the loss suffered by ORG constituted sufficient grounds for suspecting him of intending to escape . His offers of bail and the fact that after the discovery of the PERSON affair on DATE , he remained with his family in GPE until his arrest on DATE proved that he had no intention of resorting to flight .

Lastly PERSON claimed that he was a victim of a violation of LAW ) ( article CARDINAL ) notwithstanding the final result of his trial , since , in his opinion , the decision whether or not the length of detention pending trial is reasonable can not depend upon any subsequent occurrence . The Applicant added that , if the conditions of detention on remand are less harsh than those of penal servitude , the uncertainty of the remand prisoner as to his future constitutes a special burden which does not exist in the case of a convicted prisoner .

After the failure of the attempt to arrange a friendly settlement made by ORG , ORG drew up a ORG as required under LAW article CARDINAL ) of the LAW . The ORG was adopted on DATE and transmitted to ORG DATE . The Commission expressed therein the following opinion , which it later confirmed before the ORG :

( a ) by CARDINAL votes to CARDINAL , that the Applicant had not been brought to trial " within a reasonable time " or released pending trial , and that , consequently , LAW ) ( article CARDINAL ) of the Convention had been violated in the present case ;

( b ) by CARDINAL votes to one , that that conclusion could not be affected by the fact that the judgment of DATE required the period of detention on remand to be counted as part of the sentence ;

( c ) unanimously , that the PERSON ’s continued detention on remand , ordered by the competent courts on the grounds of danger of flight and suppression of evidence , was a " lawful detention " within the meaning of LAW ) ( article CARDINAL - CARDINAL-c ) ;

( d ) unanimously , that it could not consider the Applicant ’s claim for compensation under LAW ) ( article DATE ) , before :

( i ) the competent organ , namely , the ORG or ORG , had given a decision on the question whether LAW ) ( article CARDINAL ) had been violated ; and

( ii ) the Applicant had had an opportunity , with respect to his claim for compensation , to exhaust , in accordance with LAW , the domestic remedies available to him under NORP law ;

( e ) unanimously , that even if the period from DATE to CARDINAL DATE was considered , LAW ( article DATE ) had not been violated in the criminal proceedings against the Applicant .

In brief , of the CARDINAL members of the Commission who were present when the ORG was adopted , CARDINAL found no breach by GPE of its obligations under the LAW while the majority considered that there had been a breach on CARDINAL count , but none on the others . The ORG sets out CARDINAL individual opinions – CARDINAL concurring , and the other CARDINAL dissenting .

Arguments of the ORG and the Government

In the ORG ’s view LAW ) ( LAW ) of the Convention lays down the right of a person detained in accordance with LAW ) ( article CARDINAL - CARDINAL-c ) either to be released pending trial or to be brought to trial within a reasonable time . If the person is being held in detention on remand it must not exceed a reasonable period . The most important problem , therefore , is to determine the exact meaning of the words " reasonable time " . The Commission finds this expression vague and lacking in precision , with the result that it is not possible to determine abstractly its exact meaning , which can be evaluated solely in the light of the particular circumstances of each case .

In order to facilitate such evaluation the ORG believes that it is in general necessary to examine an individual case according to the CARDINAL following " criteria " or " elements " :

( i ) The actual length of detention .

In this respect , the ORG does not indicate in its ORG when it considers the " reasonable time " mentioned in LAW ) ( article CARDINAL ) to begin and to end in abstracto . During the oral proceedings before the ORG , however , ORG of the Commission stated the problems which the Commission thinks arise in this matter . Whereas the LANGUAGE version ( " entitled to trial within a reasonable time or to be released pending trial " ) would permit the interpretation that the period referred to ends with the opening of the case before the trial court , the LANGUAGE version ( " être jugée dans un délai raisonnable , ou libérée pendant la procédure " ) would cover a longer period , ending at the date on which judgment is pronounced . The Commission has not stated any definite opinion on this question , but at the hearing its ORG expressed a clear preference in favour of the interpretation based on the NORP text , the meaning of which is , unlike the LANGUAGE version , clear and unequivocal and also more favourable to the individual . In particular , the delegate of the Commission rejected the argument of ORG that the LANGUAGE version should be accepted for the simple reason that it limits the sovereignty of GPE to a lesser degree .

The Commission emphasised the importance which it attaches to the ORG ’s settling this question of interpretation .

( ii ) The length of detention on remand in relation to the nature of the offence , the penalty prescribed and to be expected in the case of conviction and any legal provisions making allowance for such a period of detention in the execution of the penalty which may be imposed . On this point the ORG remarked that the length of detention on remand may vary according to the nature of the offence concerned and the penalty prescribed and to be expected . However , in determining the relation between the penalty and the length of detention , it is necessary to take into account the presumption of innocence as guaranteed by LAW ( article PERCENT ) of the LAW . If the length of detention should approach too closely the length of the sentence to be expected in case of conviction , the principle of presumption of innocence would not be fully observed ;

( iii ) material , moral or other effects on the detained person .

( iv ) the conduct of the accused :

( a ) Did he contribute to the delay or expedition of the investigation or trial ?

( b ) Was the procedure delayed as a result of applications for release pending trial , appeals or other remedies resorted to by him ?

( c ) Did he request release on bail or offer other guarantees to appear for trial ?

( v ) difficulties in the investigation of the case ( its complexity in respect of facts or number of witnesses or co - accused , need to obtain evidence abroad , etc . ) .

( vi ) the manner in which the investigation was conducted :

( a ) the system of investigation applicable ;

( b ) the conduct by the authorities of the investigation ( the diligence shown by them in dealing with the case and the manner in which they organised the investigation ) .

( vii ) the conduct of the judicial authorities concerned :

( a ) in dealing with the applications for release pending trial ;

( b ) in completing the trial .

The ORG argues that a rational scheme of this kind makes possible in each case a " coherent interpretation without any appearance of arbitrariness " . The ORG remarks , however , that the conclusion in any particular case will be the outcome of an overall evaluation of all the elements . Even if examination of some of the criteria leads to the conclusion that the length of detention is reasonable , the application of other criteria may lead to a contrary conclusion . The final and determining conclusion will therefore depend on the relative weight and importance of the criteria , but this in no way precludes CARDINAL single criterion from having decisive importance in some cases .

The ORG adds that it has endeavoured to cover , through the aforementioned criteria , all the situations of fact which it is usually possible to find in cases of detention on remand , but that the list should not be considered exhaustive , there being exceptional situations , other than those submitted to the ORG for decision in the case in question , which might justify the examination of other criteria .

In this case the ORG ascertained the facts in the light of the said criteria and proceeded to their legal evaluation by the same method of interpretation .

Certain of the facts established by the ORG seemed to it important in the light of several criteria . There will be found below a summary of the ORG ’s opinion on these various points .

With regard to application of the first criterion , that is to say the length of ORG ’s detention on remand , the ORG takes into account the period from DATE ( the date of his arrest ) to CARDINAL DATE ( DATE of the opening of the trial before ORG ) . According to the Commission the actual length of this detention ( DATE ) seems to warrant the conclusion that it exceeded a " reasonable " period .

As regards the second criterion mentioned above , the ORG is of the opinion that its application in the present case seems to justify the same conclusion . It remarks that here it has taken into consideration both the possibility of the Applicant ’s provisional release under LAW , and the fact that the length of detention has been counted as part of the sentence imposed . The ORG accepts that this last measure constitutes an element comparable to an " extenuating circumstance " , but states that it in no way changes the distinctive nature of detention on remand which , not being in accordance with LAW ) ( article CARDINAL ) , remains a violation of the LAW , even if in the execution of the sentence finally imposed , account has been taken of the period of detention .

Application of the third criterion , in the opinion of the Commission , likewise leads to the conclusion that the length of detention was excessive , in view of the prejudicial effects of the detention on the PERSON ’s family life ; his long detention is said to have destroyed his marriage and injured his close relations with his parents .

ORG does not think , as regards the fourth criterion , that the Applicant ’s conduct contributed substantially to the length of his detention .

In evaluating the fifth criterion the Commission considers that the case in question was of very great complexity , not only on account of the nature and number of the financial transactions involved but also because of the number of accused and witnesses who had to be heard and the ramifications of the case both in GPE and abroad . According to the Commission these circumstances support and conclusion that the length of detention was reasonable .

The examination of the sixth and seventh criteria does not , in the opinion of the Commission , lead to the conclusion that the criminal proceedings against the Applicant were substantially prolonged through any fault of the authorities .

In the light of the overall evaluation of these various criteria , Commission attaches particular importance to the actual length of detention and concludes that the Applicant was not brought to trial within a " reasonable " time or released pending trial , and that consequently he has been a victim of a violation of LAW ) ( article CARDINAL ) .

It should be added that in the ORG ’s view the continued detention on remand of the Applicant , ordered by the competent courts because of the danger of flight and suppression of evidence , was lawful within the meaning of LAW ) ( article QUANTITY - CARDINAL-c ) .

The ORG maintains that LAW ) poses questions of interpretation similar to those raised by LAW ) ( article CARDINAL ) , in particular as regards the " time " mentioned in LAW ( article DATE ) . However , in the opinion of the Commission , the question whether the time was " reasonable " for the purposes of LAW ) ( article CARDINAL ) or of LAW ) ( article DATE ) must be judged differently in the CARDINAL cases ; the former , being intended to safeguard the physical freedom of the individual , requires stricter application than the latter , the object of which is to protect the individual against abnormally long judicial proceedings , irrespective of the question of the actual detention . In the present case , the criminal procedure related to extremely complex facts ; it was not unduly prolonged by the NORP judicial authorities . Therefore , the ORG arrives at the conclusion that even if the period concerned were considered to run from DATE until DATE , LAW ) has not been violated in the criminal proceedings against the Applicant .

At the hearing of DATE , the ORG made the the following submissions :

" DATE it please the ORG to decide :

( CARDINAL ) whether or not LAW ) ( article CARDINAL ) of the LAW has been violated by the detention of ORG from DATE to CARDINAL DATE or any later date ;

( CARDINAL ) whether or not LAW ) ( article DATE ) of the LAW has been violated by the duration of the criminal proceedings against ORG between his arrest on DATE or any later date and the judgment of ORG of GPE on DATE or any other date . "

ORG , for its part , remarks that it shares the ORG ’s opinion as to the absence of any violation of LAW ) ( article DATE ) of the Convention .

With regard to the interpretation of LAW ) ( article CARDINAL ) of the LAW and its application to the present case , the ORG believes that the period to be considered is that which the ORG takes into account in its ORG , from arrest ( DATE ) to the opening of the case before the trial court , ORG of GPE ( CARDINAL DATE ) .

According to the Government it is essential , at least in the present case , not to rely on the NORP text ( " le droit d’être jugée dans un délai raisonnable ou libérée pendant la procédure " ) , which could signify a longer period ( up to the date of the judgment ) than one terminating on the date of the opening of the trial , as suggested by the LANGUAGE version ( " entitled to trial within a reasonable time or to release pending trial " ) . It could therefore lead to a further limitation of the sovereignty of GPE . Moreover , application of LAW ) ( article CARDINAL ) in the NORP version would allow the accused to prolong the protection accorded by that provision by making excessive use of procedural devices . The result would be an undue prolongation of proceedings , with the danger that by the time release was possible , the period would no longer be " reasonable " .

In general terms the Government expresses considerable reservations as to the method adopted by the Commission - that of laying down CARDINAL " criteria " - while admitting that the answer depends In its opinion , the Commission was not objective , on its strict allocation of the facts to the same criteria , as indeed some of the facts mentioned in relation to CARDINAL of the criteria would be equally relevant to others .

The ORG also sets against the Commission ’s reasoning the following considerations which , in its opinion , demonstrate the absence of any violation of LAW ) ( article CARDINAL ) in the case of the Applicant .

To the first criterion advanced by the ORG , namely , the actual length of detention , the ORG raises objections of principle . In its opinion , the adjective " reasonable " , qualifying the noun " time " , introduces a relative element ; the absolute factor which the actual length of detention represents can not therefore serve as a criterion for determining whether such a length of time is " reasonable " . Furthermore , the ORG remarks that , in the ORG ’s view , the Applicant ’s detention was " lawful " for the whole of its length within the meaning of LAW ) ( article CARDINAL - CARDINAL-c ) of the LAW ; it adds that the ORG , in evaluating the fifth criterion , admits that the complexity of the investigation tends to justify the length of detention . The Government therefore does not see how it is possible to consider as " unreasonable " the length of the detention on remand in toto . Moreover , the ORG has not indicated at what moment the detention ceased , in its opinion , to be " reasonable " .

Neither does the Government share the evaluation of the Commission with respect to the second criterion . It emphasises that the opinion of the ORG is based primarily on the possibility , provided in LAW , of the conditional release of a detained person . However , according to the ORG , that ORG , whose application depends on the ORG ’s discretion , can operate only when the sentence has become final and , more precisely , from the moment when the convicted person has already served CARDINAL of his sentence ; it can not therefore justify the conclusion that the length of detention on remand has been " unreasonable " . Moreover , the NORP judicial authorities granted the Applicant conditional freedom when he had served CARDINAL of his sentence . This decision , which dates from DATE , was able to be taken so early because the length of detention on remand had been counted as part of the sentence .

With regard to the ORG ’s argument that detention on remand represents a distinct situation even where it has been counted in part or in whole against the sentence , the Government stresses the advantages - which are not disputed - of such detention compared with a sentence of imprisonment . It is inferred from this that the length of the detention operated in favour of the Applicant : had it been shorter , ORG would have had to spend longer in penal servitude , which would have made the conditions of his detention appreciably worse .

In evaluating the third criterion , the ORG has omitted , in the ORG ’s view , to verify the existence of a causal relation between ORG detention and the deterioration of his family life . The Government maintains that if PERSON had been convicted earlier and thus subjected to a longer period of imprisonment , the effects would have been equally prejudicial - indeed , even graver - for his financial and family position than would those of detention on remand . It is deduced from this that the evaluation of the third criterion by the ORG is not convincing .

In the opinion of the Government , the statements of fact arrived at by the Commission in the light of the fourth criterion contain certain lacunae . Certainly , it may be acknowledged that the numerous requests , appeals and other approaches , set out in detail in Appendices PERSON and ORG , do not allow it to be affirmed that ORG generally intended to slow down the course of the proceedings . According to the ORG , there can , however , be no doubt that the examination of the case was thereby prolonged . On this point , the Government likewise remarks that ORG of GPE decided on DATE , i.e. after conviction , to suspend the detention order subject to the deposit of bail of CARDINAL DM . ORG had , in the light of the documents in its possession , discovered that the Applicant had deposited the sum of CARDINAL DM in an account opened in the name of his wife in a NORP bank , and that he had withdrawn this sum when his offences came to light . In the course of the proceedings , the Applicant had given highly contradictory explanations of this transaction ; the judicial authorities have not been in a position to discover what PERSON had done with the sum of money in question . Whatever the position may be , the Applicant did not take up the offer of bail of the ORG .

According to the Government , it should be concluded that the application of the fourth criterion does not authorise the ORG to consider as unreasonable the length of detention on remand .

As regards the application of DATE criteria , the Government states that it shares the opinion expressed by the Commission .

In dealing with a criminal case as enormous and as complex , both as to the facts and to the law , as is the PERSON case , the Government considers that the ORG ’s method of evaluation does not allow objective determination of whether the length of detention on remand was reasonable or not within the meaning of LAW ) ( article CARDINAL ) of the Convention or of where in time the line should be drawn between what is " reasonable " and what is " unreasonable " .

In particular , the Government expresses its regret that in following the system of " criteria " the ORG has lost sight of the reasons which , in the view of the judicial authorities , made continued detention necessary . The danger that the Applicant would abscond is said to have been a real one throughout his detention , by reason not only of the gravity of the likely sentence and its effect on his civil responsibility but also of his financial malpractices and particularly the unexplained withdrawal of CARDINAL DM from an account in his wife ’s name with a NORP bank .

At the hearing of CARDINAL DATE , the ORG made the following submission :

" We ask this ORG to find :

that the decisions and measures taken by NORP authorities and courts in the PERSON case are compatible with the commitments entered into by ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the Convention " .


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 8

Anatoly Kovler;Christos Rozakis;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicants were born in DATE , DATE , DATE and DATE respectively and live in NORP and NORP

The first applicant is married to the second applicant and the third applicant to the fourth applicant .

The first applicant suffers from fallopian - tube - related infertility ( eileiterbedingter PERSON ) . She produces ova , but , due to her blocked fallopian tubes , these can not pass to the uterus , so natural fertilisation is impossible . The second applicant , her husband , is infertile .

The third applicant suffers from agonadism ( PERSON ) , which means that she does not produce ova at all . Thus , she is completely infertile but has a fully developed uterus . The fourth applicant , her husband , in contrast to the second applicant , can produce sperm fit for procreation .

On DATE the first and third applicants lodged an application ( PERSON ) with ORG ) for a review of the constitutionality of sections PERSON ) and CARDINAL ) of LAW ( DATE see paragraphs DATE below ) .

The applicants argued before ORG that they were directly affected by the above provisions . The first applicant submitted that she could not conceive a child by natural means ; thus , the only way open to her and her husband would be in vitro fertilisation using sperm from a donor . That medical technique was , however , ruled out by sections PERSON ) and CARDINAL ) of LAW . The third applicant submitted that she was infertile . As she suffered from agonadism , she did not produce ova at all . Thus , the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer , which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant . However , that method was not allowed under LAW .

The first and third applicants argued before ORG that the impossibility of using the above - mentioned medical techniques for medically assisted conception amounted to a breach of their rights under LAW . They also relied on LAW , which guarantees equal treatment .

On DATE ORG held a public hearing in which the first applicant , assisted by counsel , participated .

On DATE ORG decided on the first and third applicants’ request . It found that their request was partly admissible in so far as the wording concerned their specific case . In this respect , it found that the provisions of section CARDINAL of LAW , which prohibited the use of certain procreation techniques , was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken .

As regards the merits of their complaints , ORG considered that LAW was applicable in the applicants’ case . Although no case - law of ORG existed on the matter , it was evident , in ORG view , that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under LAW .

The impugned provisions of LAW interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation . As for the justification for such an interference , ORG observed that the legislature , when enacting LAW , had tried to find a solution by balancing the conflicting interests of human dignity , the right to procreation and the well - being of children . Thus , it had enacted as leading features of the legislation that , in principle , only homologous methods – such as using ova and sperm from the spouses or from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed . The aim of the legislature was to avoid the forming of unusual family relationships , such as a child having more than one biological mother ( a genetic mother and CARDINAL carrying the child ) , and to avoid the risk of the exploitation of women .

The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well - being of children thus conceived , their health and their rights , and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( PERSON ) .

NORP However , applying the principle of proportionality under LAW , such concerns could not lead to a total ban on all possible medically assisted procreation techniques , as the extent to which public interests were concerned depended essentially on whether a homologous technique ( having recourse to the gametes of the couple ) or heterologous technique ( having recourse to gametes external to the couple ) was used .

In ORG view , the legislature had not overstepped the margin of appreciation afforded to member GPE when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception . The choices the legislature had made reflected the then current state of medical science and the consensus in society . It did not mean , however , that these criteria were not subject to developments which the legislature would have to take into account in the future .

The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques . Besides strictly homologous techniques it had accepted insemination using donor sperm . Such a technique had been known and used for a long time and would not bring about unusual family relationships . Further , the use of these techniques was not restricted to married couples but also included cohabiting couples . However , the interests of the individuals concerned had to give way to the above - mentioned public interest when a child could not be conceived by having recourse to homologous techniques .

ORG also found that for the legislature to prohibit heterologous techniques , while accepting as lawful only homologous techniques , was not in breach of the constitutional principle of equality which prohibits discrimination . The difference in treatment between the CARDINAL techniques was justified because , as pointed out above , the same objections could not be raised against the homologous method as against the heterologous one . As a consequence , the legislature was not bound to apply strictly identical regulations to both . Also , the fact that insemination in vivo with donor sperm was allowed while ovum donation was not , did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well - being of a future child .

Since the impugned provisions of LAW were in line with LAW and the principle of equality under LAW , there had also been no breach of LAW .

This decision was served on the first and third applicants’ lawyer on DATE .

LAW ( Fortpflanzungsmedizingesetz , ORG no . DATE ) regulates the use of medical techniques for inducing conception of a child by means other than copulation ( section CARDINAL(CARDINAL ) ) .

These methods comprise : ( i ) introduction of sperm into the reproductive organs of a woman ; ( ii ) unification of ovum and sperm outside the body of a woman ; ( iii ) introduction of viable cells into the uterus or fallopian tube of a woman ; and ( iv ) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman ( section CARDINAL(CARDINAL ) ) .

Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage , and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success ( section CARDINAL ) .

NORP Under section CARDINAL(CARDINAL ) , only ova and sperm from spouses or from persons living in a relationship similar to marriage ( GPE ) may be used for the purpose of medically assisted procreation . In exceptional circumstances , namely if the spouse or male partner is infertile , sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman ( section CARDINAL(CARDINAL ) ) . This is called in vivo fertilisation . In all other circumstances , and in particular for the purpose of in vitro fertilisation , the use of donor sperm is prohibited .

Under section CARDINAL(CARDINAL ) , ova or viable cells may only be used for the woman from whom they originate . Thus , ovum donation is always prohibited .

The further provisions of LAW stipulate , inter alia , that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries ( section CARDINAL ) and with the express and written consent of the spouses or cohabiting persons ( section CARDINAL) .

In DATE LAW was supplemented by LAW establishing a fund for financing in vitro fertilisation treatment ( GPE , FAC ein Fonds zur Finanzierung der In - vitro - Fertilisation eingerichtet wird – ORG , Part I , no . CARDINAL ) in order to subsidise in vitro fertilisation treatment allowed under LAW .

The issue of maternity and paternity is regulated in LAW Allgemeines Bürgerliches Gesetzbuch ) . Under Article PERSON , introduced at the same time as the entry into force of LAW , the mother of a child is the woman who has given birth to that child . As regards paternity , Article CARDINAL provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time ( DATE ) before the birth . If the mother has undergone medically assisted procreation treatment using sperm from a donor , the father is the person who has given his consent to that treatment , that is , the spouse or male partner . A sperm donor can in no circumstances be recognised as the father of the child .

The following overview of the law and practice concerning artificial procreation in LOC is based essentially on the following documents : “ Medically Assisted Procreation and ORG on the Situation in GPE ” ( ORG , DATE ) ; the replies by the member ORG to ORG on ORG on access to medically assisted procreation ( ORG ) and on right to know about their origin for children born after GPE ” ( ORG , DATE ) ; and a survey carried out in DATE by ORG .

From this material it would appear that in vitro fertilisation treatment was ( as at DATE ) regulated by primary or secondary legislation in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE such treatment was governed by clinical practice , professional guidelines , royal or administrative decree or general constitutional principles .

ORG study sets out , in particular , the position of domestic law as regards CARDINAL different artificial procreation techniques : artificial insemination within a couple , in vitro fertilisation within a couple , artificial insemination by a sperm donor , ovum donation , ovum and sperm donation , embryo donation and intracytoplasmic sperm injection ( an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum ) .

It seems that among the countries which have regulated the issue of artificial procreation , sperm donation is currently prohibited in GPE , GPE and GPE . All CARDINAL countries do not permit heterologous assisted fertilisation . Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation . As regards ovum donation , this is prohibited in GPE , GPE , GPE and GPE , in addition to the CARDINAL countries mentioned above .

It further appears that in a number of countries , such as GPE , GPE , GPE , GPE and GPE , where the matter was not regulated ( as at DATE ) , the donation of both sperm and ova is used in practice .

A comparison between ORG study of DATE and the survey conducted by ORG in DATE shows that in the field of medically assisted procreation legal provisions are developing quickly . In GPE , GPE and GPE , sperm and ovum donation , which was previously prohibited , is now allowed since the entry into force of new legal provisions in DATE , DATE and DATE respectively . In GPE , sperm donation for in vitro fertilisation has been allowed since DATE , but not ovum donation . Since DATE , medically assisted procreation is also regulated by law in GPE allowing sperm and ovum donation .

Principle CARDINAL of the principles adopted in DATE by ORG in ORG ( ORG ) , the expert body within ORG which preceded the present ORG , states :

“ CARDINAL . In principle , in vitro fertilisation shall be effected using gametes of the members of the couple . The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro . However , in exceptional cases defined by the member GPE , the use of gametes of donors may be permitted . ”

ORG does not deal with the question of donation of gametes , but forbids the use of medically assisted reproduction techniques to choose the sex of a child . Article CARDINAL reads as follows :

“ The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child ’s sex , except where serious hereditary sex - related disease is to be avoided . ”

The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of ORG and Tissues of Human Origin of DATE , which promotes the donation of organs , expressly excludes from its scope reproductive organs and tissues .

Directive CARDINAL/CARDINAL/EC of ORG and of ORG on the setting of standards of quality and safety for the donation , procurement , testing , processing , preservation , storage and distribution of human tissues and cells , which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications , provides in its Preamble as follows :

“ CARDINAL . This directive should not interfere with decisions made by member GPE concerning the use or non - use of any specific type of human cells , including germ cells and embryonic stem cells . If , however , any particular use of such cells is authorised in a member ORG , this directive will require the application of all provisions necessary to protect public health , given the specific risks of these cells based on the scientific knowledge and their particular nature , and guarantee respect for fundamental rights . Moreover , this directive should not interfere with provisions of member GPE defining the legal term ‘ person’ or ‘ individual’ . ”