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 1976 and lives in Nizhniy Novgorod. At the relevant time he was a police officer in the road traffic department. On 8 September 1998, while off duty, he and his friend F met MS, a teenage girl, in Bogorodsk, in the Nizhniy Novgorod region. The applicant gave MS a lift in his car to Nizhniy Novgorod.

On 10 September 1998 MS’s mother informed the Bogorodsk municipal police of her daughter’s disappearance. At 4 p.m. on the same day, 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 MS. 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 the evening of 10 September 1998 the applicant’s superior officer came to the applicant’s cell and forced him to sign a resignation statement backdated to 17 August 1998.

On 11 September 1998 the police searched the applicant’s flat, country house, garage and car. They found three gun cartridges in his car.

On 12 September 1998 three officers from Bogorodsk municipal police, N, T and D, filed an “administrative offence report” with a judge of Bogorodsk Town Court. The report stated that on the evening of 11 September 1998 the applicant and F had committed a “disturbance of the peace” at the railway station. On the same date the judge sentenced the applicant and F to five days’ administrative detention from 11 September 1998.

According to the applicant, while in detention in Bogorodsk police station, he had been repeatedly questioned about the disappearance of MS. 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 16 September 1998 the police opened a criminal investigation relating to the ammunition found by the police during the search of 11 September 1998 (criminal case no. 68205). 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 Leninskiy 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 MS. 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 17 September 1998 the applicant was visited by a lawyer hired by the applicant’s mother several days earlier in connection with criminal case no. 68205. According to the applicant, during the conversation with the lawyer he had mentioned that the real reason for his detention was the disappearance of MS. However, the lawyer replied that she could not take on another case that she had not been paid for. The next day, according to the applicant, the police investigator banned all visits by the lawyer to the applicant.

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

On 19 September 1998 the applicant was questioned at Leninskiy 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 the Ministry of the Interior), MR (the deputy regional prosecutor), the Bogorodsk town prosecutor, and a number of policemen of the Leninskiy police department.

The applicant alleged that he had been subjected to torture in order to make him corroborate F’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. One 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 MR. The applicant had complained to MR about the ill-treatment, but the latter had not reacted, and when the applicant again refused to confess to murdering MS, MR 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. 33 of Novgorod Region, where he was examined by Dr M, who established various injuries caused by his fall from the window, affecting in particular his vertebral column and locomotor system.

On the same day the applicant was transferred to Hospital no. 39. His mother arrived at the hospital and asked Dr K to include burns to the applicant’s ears in his medical record. However, her request was refused. She also submitted a request to Dr S, 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 19 September 1998, the day of the applicant’s fall from the window, MS returned home unharmed. She explained that on the night of 8 September 1998 the applicant had offered her a ride in his car. She had agreed. When they had arrived in Nizhniy Novgorod, he had suggested that she could spend the night at his place, but she had refused and the applicant had let her go. MS had gone to friends living in Nizhniy Novgorod, where she had spent several days, without letting her mother know were she was.

On 21 September 1998 the applicant’s detention was formally discontinued. On 22 September 1998 the applicant underwent spinal surgery. He remained in hospital until 3 February 1999. On 25 September 1998 criminal case no. 22346 concerning the alleged rape and murder of MS was closed. However, the applicant became a suspect in another criminal case – no. 22414, in which he was charged with the abduction of MS.

On 1 March 1999 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 1 March 2000 (the Government indicated a different date – 10 May 2000), the case concerning the alleged abduction of MS was also discontinued on the ground that the applicant had freed MS at her request.

On 21 September 1998 an investigator from the Leninskiy district prosecutor’s office instituted a criminal investigation into the applicant’s fall from the window of the police station on 19 September 1998 (case no. 68241).

The investigator questioned five police officers from the Leninskiy district police who had participated in the questioning on 19 September 1998. 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 MS, 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 F, 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 MS.

The investigator further questioned Dr K from Hospital no. 39, who had examined the applicant after the accident of 19 September 1998. The doctor confirmed that on the day 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. 39, 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 26 October 1998, 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 21 December 1998 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 10 September 1998 in connection with the disappearance of MS. On 11 September 1998 the police had carried out a search of the applicant’s car and found three gun cartridges. On the same day 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. Inspectors N 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 the next day made the subject of an administrative arrest for disturbance of the peace. On 16 September 1998 a new criminal case had been opened against the applicant in relation to the gun cartridges found in his car. On 19 September 1998 a detention order had been issued against the applicant on this new ground. On the same day he had been transferred to Leninskiy 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. 39. On the same day MS had returned home.

The investigator referred further to the testimonies of the police officers and Dr K, the medical records of Hospital no. 39 and the forensic medical report of 26 October 1998. He also referred to the opinion of a medical expert, S, 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 25 January 1999 the regional prosecutor’s office reopened the case and handed it to the same investigator for further investigation. On 25 February 1999 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 25 January 1999 had already been taken in 1998. Given the state of the applicant’s health, it was impossible to carry out new investigative measures, such as confrontations or forensic examinations.

On 1 December 1999 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 24 February 2000 the investigator discontinued the proceedings, basing his decision on the same reasoning as in the decision of 21 December 1998.

On 10 March 2000 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 19 September 1998 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”.

The investigator also questioned a hospital attendant and four doctors from Hospital no. 39, who all denied that the applicant had had injuries other than those caused by his falling out of the window. One of the patients in Hospital no. 39, 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 21 July 2000 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 10 November 2000 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 MS. Between 16 and 19 September 1998 F had been repeatedly questioned in Leninskiy district police station in Nizhniy Novgorod. 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 MR, the deputy regional prosecutor. On 18 September 1998 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 19 September 1998. Later that year he had recounted this to the investigator in charge of case no. 68241; however, it had been decided not to include these statements in the official record.

On 29 December 2000 the investigation was again discontinued by an investigator from the prosecutor’s office. On an appeal by the applicant on 27 March 2001, the Nizhegorodskiy District Court of Nizhniy Novgorod 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 Dr M, who had been on duty in Hospital no. 33, 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 Dr K and Dr S. 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. Five patients from Hospital no. 39 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 19 May 2001 the proceedings were discontinued by the investigator on the same grounds as before.

By letter of 5 August 2002 the Nizhniy Novgorod regional prosecutor’s office informed the applicant that the investigation had been reopened and sent to the Leninskiy prosecutor’s office with relevant instructions for additional investigation. The applicant requested that the prosecution service question V, one of the patients in Hospital no. 39.

On 5 September 2002 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, one 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 26 September 2002 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 28 October 2002 the Nizhniy Novgorod regional prosecutor’s office annulled the decision of 5 September 2002. On 28 November 2002 the Leninskiy 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 24 July 2003 the applicant was informed that the Nizhniy Novgorod 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 6 November 2003 and transferred the case to the Leninskiy district prosecutor’s office. Apparently, by the end of December 2003 the case had been closed again. On 19 January 2004, according to the applicant, the investigation was reopened. On 26 January 2004 the case was transferred from the Leninskiy 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 Leninskiy district police station in connection with the disappearance of MS he had been beaten by the police officers. They had also threatened to torture him with electrodes.

On 19 February 2004 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 4 March 2004 the case was reopened, before being closed again on 4 July 2004. On 3 August 2004 the case was reopened by the regional prosecutor’s office. On 6 September 2004 the case was closed. It was then reopened, and, according to the Government’s submissions, closed again on 20 October 2004. On 22 November 2004 the regional prosecutor reopened the investigation. According to the Government, the deadline for the new investigation was 2 April 2005.

On an unspecified date in 2005 the prosecutor’s office brought charges against two policemen, K and SM, who had participated in the questioning of the applicant on 19 September 1998. The case file, together with a bill of indictment, was eventually forwarded to the Leninskiy District Court of Nizhniy Novgorod for examination.

In the course of the trial the court questioned a large number of witnesses. Hence, it questioned K, SM, and fifteen other police officers who had participated in the questioning of 19 September 1998 or had been in Leninskiy police station on that day. They all denied that they had tortured the applicant or had heard of any such torture. The court further questioned VK, 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, MS, 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 VZ, who in August 1998 had been brought to Leninskiy police station on suspicion of theft. According to VZ, two 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 S, the applicant’s ward-mates in Hospital no. 39, 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 19 September 1998. It contained an unfinished passage describing the events of 10 September 1998, when MS 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 19 September 1998 the applicant had been brought to Leninskiy 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 MS and to show them where he had buried the corpse. In order to extract a confession from the applicant, police officers K and SM 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 K and O. However, following the identification parade the applicant had identified inspector SM as one of two 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 30 November 2005 the Leninskiy District Court of Nizhniy Novgorod found K and SM guilty under Article 286 § 3 (a) and (в) of the Criminal Code (abuse of official power associated with the use of violence or entailing serious consequences). They were sentenced to four years’ imprisonment with a subsequent three years’ prohibition on serving in the law-enforcement agencies. According to the information available to the Court, the judgment of 30 November 2005 is not yet final.

In the summer of 1999 two activists from a regional human rights NGO (Nizhniy Novgorod Committee against Torture) interviewed several persons about the events of September 1998 complained of by the applicant. Their submissions were recorded on videotape.

In those interviews, F stated that he had been arrested on 10 September 1998. While in custody, he had been threatened and slapped several times in order to extract a confession to the murder of MS. On 17 September 1998 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 18 September 1998 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 MR and the Bogorodsk town prosecutor, as well as several police officers. MR 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 25 years’ imprisonment or death row.

F had confessed to raping and killing the girl together with the applicant. At MR’s request, F 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 20 September 1998, after the girl had come home, F had been released.

According to B, the applicant’s ward-mate in Hospital no. 39, 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.

In December 2000 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 MR’s involvement in the events of September 1998.

On an unspecified date in 1998 a prosecutor filed a request for supervisory review of the judgment of 12 September 1998 whereby the applicant had been sentenced to five days’ administrative detention. On 2 December 1998 the President of the Nizhniy Novgorod Regional Court 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 11 September 1998. However, at that time the applicant had in fact been detained in custody in connection with the disappearance of MS.

On 23 March 2000 a prosecutor instituted criminal proceedings against the three Bogorodsk police officers for making false statements in relation to the alleged arrest of the applicant at the railway station (criminal case no. 310503). A prosecution investigator confirmed that the applicant had not been at the railway station on 11 September 1998, having at that time been detained in custody. However, on 3 November 2000 the charges against the police officers were dropped following a “change in the situation” in view of the fact that one police officer had been dismissed from his job, while the other two had been transferred to other positions within the Ministry of the Interior.

The Government stated that on 25 May 2001 criminal case no. 310503 had been reopened by the prosecution service and transmitted to the Pavlovsk town prosecutor’s office for further investigation. On 20 October 2002 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 1 April 2004 the criminal case against the three police officers was forwarded to the court of first instance together with the bill of indictment. On 27 April 2004 the proceedings were discontinued owing to expiry of the statutory time-limit for criminal prosecution of the defendants. On 19 November 2004 the Nizhniy Novgorod Regional Court quashed that decision and remitted the case to the court of first instance. According to the respondent Government, the proceedings are still pending.

On 19 December 2001 the applicant lodged a civil claim with the Leninskiy District Court of Nizhniy Novgorod, seeking compensation for malicious prosecution, his dismissal from his job, the search of his premises 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. 68241, 310503 and 68341. 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 22 April 2002 the Leninskiy District Court of Nizhniy Novgorod requested the files from the respective prosecutor’s offices. On 6 July 2002 case-file no. 68241 was delivered to the court. It was withdrawn three days later by the prosecutor’s office. On 27 July 2002 the case-file was re-submitted to the court. On 1 August 2002, at the prosecutor’s request, the case-file was returned to the prosecution. On 23 October 2002 the applicant’s representative asked the court to suspend the civil proceedings.

The applicant’s notice of dismissal dated 17 August 1998 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 State on that basis. The Government indicated that in connection with the accident he also received a lump-sum insurance indemnity from the State in the amount of 60,302 Russian roubles (about 1,740 euros at the current exchange rate).

The applicant produced a report, drawn up on 29 November 2004 by Dr L. Magnutova, 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, at least two or three times a year.

The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that nonpecuniary damage shall be compensated irrespective of any award for pecuniary damage.

Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Article 110 of the Code makes incitement to suicide liable to a sentence of up to five years’ imprisonment. Under Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment.

Under Articles 108 and 125 of the 1960 Code of Criminal Procedure (in force until 2002), 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 53 of the Code 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 210 and 211 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 one investigator to another, or the reopening of the proceedings.

Under Article 209 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 210 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 161 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 cannot be made public without their consent.


SEBIK AND STERNOVA v. THE CZECH REPUBLIC

The applicants are:

Mr Jaroslav Šebík and Ms Jana Šternová, born in 1946 and 1949 respectively, living in Zlín and represented by V. Jablonský, a lawyer practising in Prague;

Mr Josef Krejčí, born in 1928 and residing in Čachtice;

Mr Jiří Beran, born in 1945 and living in Prague;

Ms Johanna Kammerlander, born in 1947 and living in Vienna, Austria.

They are Czech nationals.

The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

On 18 October 1950 the Supreme Court (Nejvyšší soud) convicted the applicants’ father of treason, sentencing him to confiscation of all his property, which was subsequently sold and assigned to a certain P. and M.

On 12 December 1988 the applicants’ father died.

On 19 September 1990 the Brno Regional Court (krajský soud) declared that, pursuant to the Judicial Rehabilitation Act, his conviction and all ancillary decisions had been quashed with retrospective effect.

On 31 October 1995 the applicants brought restitution proceedings before the Zlín District Court (okresní soud) against P. and M.

In a judgment of 10 November 1999 the District Court 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 P. and M. at an unlawfully preferential price. With reference to the expert opinion, the court held that P. and M. had acquired the property lawfully.

On 14 August 2001 the Regional Court upheld the merits of the District Court’s judgment, which became final on 6 November 2001.

On 11 June 2002 the applicants’ appeal on points of law (dovolání) was dismissed by the Supreme Court as filed outside the one-month statutory time-limit laid down by Article 240 § 1 of the Code of Civil Procedure then in force.

On 5 December 2002 the Constitutional Court (Ústavní soud) rejected the applicants’ constitutional appeal. It held that in respect of the Regional Court’s judgment the appeal had been filed outside the sixty-day time-limit provided for by the Constitutional Court Act, taking into account the dismissal of the applicants’ appeal on point of law for their failure to respect the one-month statutory time-limit. The court further held that the applicants’ argument relating to the proceedings before the Supreme Court were manifestly ill-founded.

On 18 December 1985 the applicant’s wife died. Judicial proceedings regarding her inheritance were started on 7 February 1986 and were meritoriously terminated on 23 June 2003 when the decision of the Prague Regional Court (krajský soud) of 28 May 2003 on the distribution of the inheritance became final.

On 11 January 1993 a notary initiated inheritance proceedings following the death of a certain A.K.

On 28 April 1994 the Písek District Court (okresní soud) held that the applicant and his wife were heirs to A.K. At the same time, it determined the net value of A.K.’s assets.

The inheritance proceedings terminated with a decision of the District Court dated 30 June 2003 which became final on 9 July 2003.

The applicant’s husband was the owner of real estate in various places in the Czech Republic. These estates were confiscated from him in 1945. In 1949 some of the estates were transferred to the ownership of natural persons in an assignment procedure.

On 6 February 2000 the applicant’s husband died, designating the applicant as his universal heir. The application concerns the following sets of proceedings.

Restitution proceedings before the Semily Land Office

On 10 March 1992 the applicant’s late husband initiated restitution proceedings concerning the estates in Daliměřice and Bukovina.

Restitution proceedings before the Jablonec nad Nisou Land Office

On 14 July 1992 the applicant’s late husband lodged a claim for the restitution of the real estate in Besedice, Chlístov u Železného Brodu, Jenišovice u Jablonce nad Nisou, Koberovy, Líšný, Vranové, Vrát and Železný Brod with the Jablonec nad Nisou Land Office.

Restitution proceedings before the Liberec Land Office

On 23 November 1992 the applicant’s late husband lodged a claim for the restitution of the estate in Žďárek u Sychrova with the Liberec Land Office. 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 Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


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

The object of the Commission’s request is to submit the case of Karl-Heinz Wemhoff to the Court so that the Court may decide whether or not the facts reveal any violation by the Federal Republic of Germany of its obligations under Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention.

The facts of the case, as they appear from the Commission’s Report, the memorials, documents and evidence submitted to the Court and the oral statements made by the Commission and the Government, are essentially as follows:

K. H. Wemhoff, a German national born at Berlin in 1927, 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 Applicant was arrested on 9 November 1961. A warrant of arrest (Haftbefehl) issued the next day by the District Court (Amtsgericht) of Berlin-Tiergarten ordered his detention on remand.

The warrant stated that Wemhoff was under grave suspicion of having incited breach of trust (Anstiftung zur Untreue) contrary to Sections 266 and 48 of the German Criminal Code: as a customer of the August-Thyssen Bank in Berlin he was said to have incited certain of the Bank’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 (Section 112 of the German Code of Criminal Procedure), 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 two detention orders dated 28 December 1961 and 8 January 1962, both issued by the District Court. These stated that Wemhoff was under grave suspicion of continuing acts of fraud (fortgesetzter Betrug) contrary to Section 263 of the Criminal Code, of prolonged abetment to fraud (fortgesetzte Beihilfe zum Betrug) contrary to Sections 263 and 49 of the Code and of prolonged abetment to breach of trust (fortgesetzte Beihilfe zur Untreue) contrary to Sections 266 and 49 of the Code.

In the course of 1961 and 1962 the Applicant asked at several times to be released but all his requests were rejected by the Berlin courts which referred to the reasons given in the warrants of arrest mentioned above. In particular, in May 1962, he made an unspecified offer of bail, which was rejected by the Court of Appeal (Kammergericht) on 25 June 1962, on the grounds of a danger of suppression of evidence (Verdunkelungsgefahr) and moreover because bail could not dispel or diminish the danger of flight in the present case. On 8 August 1962, he offered bail of 200,000 DM, but he withdrew the offer two days later.

On the occasion of an ex-officio examination of the lawfulness of the detention by the District Court, Wemhoff’s lawyer asked on 20 March 1963 for conditional release of the Applicant, offering in particular the deposit of identity papers. On the same day, 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 16 April 1963, when he invoked the provisions of the Convention for the 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 West Berlin where he lived with his wife and child and where his family had for one hundred and twenty years 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 District Courts at least five times a week. On the other hand, he pointed out that it was not possible for him to flee from West Berlin: by reason of his numerous previous journeys he was so well known at the Berlin airport that he could not take an aeroplane there; having been detained for several years in the Soviet Occupied Zone he could enter neither this territory nor East Berlin. Finally the fact that he stayed at Berlin after the discovery of his transactions by the Thyssen Bank on 27 October 1961 showed clearly that he never had any intention of fleeing.

This appeal was rejected by the Regional Court (Landgericht) of Berlin on 3 May 1963, 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 Berlin;

- 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 (weitere Beschwerde) of 16 May 1963, the Applicant specified that he had been sentenced in 1953 by a tribunal in East Germany to ten years penal servitude and had been released in November 1957. 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 the Soviet Occupied Zone by train or by road.

From the judgment of the Regional Court of 7 April 1965 (paragraph 12, 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 West Berlin; this conviction was dated 7 March 1953.

The Appeal of 16 May 1963 was rejected by the Court of Appeal on 5 August 1963. While admitting that at this stage there might be some doubt as to whether there was still a danger of suppression of evidence, the Court, 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 Article 5 (3) (art. 5-3) of the Convention. The Court added that it was to be feared that Wemhoff 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 1963 and 1964 were also rejected by the Berlin courts on grounds similar to those stated by the Court of Appeal on 5 August 1963. In particular, this court found, in a decision of 22 June 1964, that the risk that the Applicant would abscond was even greater than in August 1963. As a matter of fact, he was likely to receive an appreciably higher sentence than had formerly been thought, as in the meantime the Public Prosecution had extended the accusation against the Applicant to certain offences under the Bankruptcy Code 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 Applicant, in the event of a conviction, would be conditionally released in accordance with Section 26 of the Criminal Code after serving two-thirds 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.

Between 13 November 1961 and 3 November 1964 the Applicant submitted 41 petitions concerning the conditions of his detention on remand, 16 of which were accepted by the responsible authorities while the other 25 were refused.

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

The investigation concerned 13 persons. It was conducted by a member of the Berlin Public Prosecutor’s Office and lasted from 9 November 1961 to 24 February 1964 without any important interruptions. In particular, Wemhoff was interrogated on about 40 occasions.

One of the subjects of the investigation was extremely complex cheque manipulations of which the defendants were suspected (paragraph 57 of the Commission’s Report). It involved the examination of 169 accounts at 13 banks in Berlin, 35 banks in West Germany and 8 banks in Switzerland; the transactions checked totalled 776 million DM. In the case of the Applicant alone, transactions amounting to 284.2 million DM were involved between 1 August 1960 and 27 October 1961, affecting 53 accounts at 26 banks.

Several dozen witnesses were questioned, both in the Federal Republic and abroad. In addition some 15 expert opinions were obtained from a number of auditing firms and accountants and from a retired President of the Deutsche Bundesbank. The number of workdays amounted to 6,000. The reports of the financial experts alone comprised 1,500 pages.

By the time the charge was preferred the court’s records comprised 45 volumes containing some 10,000 pages.

On 23 April 1964, the investigation having been completed, the indictment - a document of 855 pages - was filed with the Regional Court of Berlin; it was notified to the Applicant on 2 May 1964. It shows that the Applicant was accused of:

- two cases of prolonged incitement to breach of trust;

- prolonged fraud in one of these two cases;

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

- seven offences under Sections 239 (1) (i) and 241 of the Bankruptcy Act (Konkursordnung).

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 266 (2) and 263 (4) of the German Criminal Code.

On the basis of the indictment, the Regional Criminal Court, on 7 July 1964, replaced the existing detention order by a new one which stated that Wemhoff 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 two of the seven offences against the Bankruptcy Act mentioned above.

In connection with the last-named offences the detention order stated that there were grounds for thinking that in the autumn of 1961 Wemhoff had withdrawn 100,000 DM from an account in his wife’s name at the Banque Commerciale SA, Geneva, and secreted this amount somewhere. It added that the same was true, at least in part, of a sum of 140,000 DM paid in by Wemhoff in the spring of 1962 to an account kept by his agent with the "Papenberg-Bank", Berlin.

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

By an order (Eröffnungsbeschluss) of the Regional Court dated 17 July 1964, the Applicant and eight other accused were committed to the trial court; the order severed the proceedings against a further four accused persons from the main proceedings.

The Regional Court found there was reason to think that Wemhoff had committed the offences described in the detention order of 7 July 1964.

Proceedings on five of the seven acts of bankruptcy of which the applicant was suspected were severed from the main proceedings; they were later discontinued (Einstellung) under Section 154 of the German Code of Criminal Procedure.

The Applicant’s trial opened on 9 November 1964. In the course of it he lodged 117 applications for the hearing of witnesses, covering 230 points. He challenged three judges and four financial experts on the grounds of partiality. The Regional Court heard 97 witnesses, three medical experts and four financial experts. The minutes of the hearing totalled nearly 1,000 pages, apart from the appendices, which comprised about 600 pages.

On 15 February 1965, the Regional Court, acting under Section 154 of the German Code of Criminal Procedure, discontinued (eingestellt) the proceedings in those cases of fraud with which the Applicant was charged that occurred before the beginning of June 1961. On 22 February 1965, it severed from the principal proceedings the two offences under Section 239 (1) (i) of the Bankruptcy Act for which the Applicant was still being prosecuted. Some months later the proceedings relating to these were also discontinued (Section 154 of the Code of Criminal Procedure).

On 7 April 1965, the Regional Court found Wemhoff guilty of a particularly serious case of prolonged abetment to breach of trust (fortgesetzte Beihilfe zur Untreue, Sections 266 and 49 of the Criminal Code) and sentenced him to six years and six months penal servitude (Zuchthaus) and a fine of 500 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 7 July 1964.

Judgment was passed on the Applicant at the same time as on six other accused. The judgment comprised 292 pages.

After conviction, Wemhoff again applied for provisional release in April 1965, but the Regional Court rejected his application on 30 April 1965. His appeal against this decision was rejected by the Court of Appeal on 17 May 1965. 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 16 August 1965, the Applicant requested provisional release against security of 50,000 DM (20,000 DM in cash and 30,000 DM in the form of a bank guarantee to be put up by his father). After discussing the matter at the Public Prosecutor’s Office, Wemhoff amended his request two days later, offering security of 100,000 DM. This offer was accepted by the Regional Court on 19 August 1965. The Applicant, however, did not deposit this security but on 30 August 1965, offered a bank guarantee of 25,000 or 50,000 DM which was to be provided by his father. The Regional Court rejected this offer on 6 September 1965. The Applicant contested this decision and offered security of 25,000 DM, but the Court of Appeal dismissed his appeal on 29 October 1965 on the ground that a security of this sum was not sufficient to dispel the danger of flight which was still present.

On 19 October 1965, while these proceedings were still in progress, Wemhoff again asked the Regional Court to order his release if necessary against security of 10,000 DM. The court rejected the application on 1 December 1965. It found that the temptation for Wemhoff 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 200,000 DM, as stated in the detention order of 7 July 1964, had grown stronger during the trial.

On 17 December 1965 the Federal Court (Bundesgerichtshof) rejected an appeal (Revision) filed by the Applicant in July 1965 against his conviction by the Regional Court. The time he had spent in detention since the judgment of 7 April, in so far as it exceeded three months, was to be counted as part of the sentence.

On 8 November 1966, after serving two-thirds of his sentence, Wemhoff was conditionally released (in accordance with Section 26 of the Criminal Code) under an Order of the Regional Court dated 20 October 1966.

In his original Application lodged with the Commission on 9 January 1964, the Applicant alleged that the length of his detention on remand violated his right under Article 5 (3) (art. 5-3) 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 the District Court dated 20 March 1963, of the Regional Court dated 3 May 1963 and of the Court of Appeal dated 5 August 1963 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 2 July 1964 the Commission declared the Application admissible in respect of Article 5 (3) (art. 5-3), and also, ex officio, with reference to Article 6 (1) (art. 6-1).

Subsequent to his Application, Wemhoff made three other complaints. On 28 September 1964 the Commission declared one of them inadmissible as being manifestly ill-founded; the other two were not upheld by the Applicant.

Following the decision declaring admissible the original Application, a Sub-Commission ascertained the facts and unsuccessfully sought a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29).

Before the Commission and the Sub-Commission, the Applicant maintained that the purpose of Article 5 (3) (art. 5-3) 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 Article 6 (2) (art. 6-2), the State 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 Applicant also mentioned Article 3 (art. 3) of the Convention.

Wemhoff 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 the Public Prosecutor’s Office 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 the Thyssen Bank constituted sufficient grounds for suspecting him of intending to escape. His offers of bail and the fact that after the discovery of the Thyssen affair on 17 October 1961, he remained with his family in Berlin until his arrest on 9 November proved that he had no intention of resorting to flight.

Lastly Wemhoff claimed that he was a victim of a violation of Article 5 (3) (art. 5-3) notwithstanding the final result of his trial, since, in his opinion, the decision whether or not the length of detention pending trial is reasonable cannot 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 the Sub-Commission, the plenary Commission drew up a Report as required under Article 31 (art. 31) of the Convention. The Report was adopted on 1 April 1966 and transmitted to the Committee of Ministers of the Council of Europe on 17 August 1966. The Commission expressed therein the following opinion, which it later confirmed before the Court:

(a) by seven votes to three, that the Applicant had not been brought to trial "within a reasonable time" or released pending trial, and that, consequently, Article 5 (3) (art. 5-3) of the Convention had been violated in the present case;

(b) by nine votes to one, that that conclusion could not be affected by the fact that the judgment of 7 April 1965 required the period of detention on remand to be counted as part of the sentence;

(c) unanimously, that the Applicant’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 Article 5 (1) (c) (art. 5-1-c);

(d) unanimously, that it could not consider the Applicant’s claim for compensation under Article 5 (5) (art. 5-5), before:

(i) the competent organ, namely, the Court or the Committee of Ministers, had given a decision on the question whether Article 5 (3) (art. 5-3) had been violated; and

(ii) the Applicant had had an opportunity, with respect to his claim for compensation, to exhaust, in accordance with Article 26 (art. 26) of the Convention, the domestic remedies available to him under German law;

(e) unanimously, that even if the period from 9 November 1961 to 17 December 1965 was considered, Article 6 (1) (art. 6-1) had not been violated in the criminal proceedings against the Applicant.

In brief, of the ten members of the Commission who were present when the Report was adopted, three found no breach by the Federal Republic of Germany of its obligations under the Convention while the majority considered that there had been a breach on one count, but none on the others. The Report sets out four individual opinions – one concurring, and the other three dissenting.

Arguments of the Commission and the Government

In the Commission’s view Article 5 (3) (art. 5-3) of the Convention lays down the right of a person detained in accordance with Article 5 (1) (c) (art. 5-1-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 Commission believes that it is in general necessary to examine an individual case according to the seven following "criteria" or "elements":

(i) The actual length of detention.

In this respect, the Commission does not indicate in its Report when it considers the "reasonable time" mentioned in Article 5 (3) (art. 5-3) to begin and to end in abstracto. During the oral proceedings before the Court, however, the Principal Delegate of the Commission stated the problems which the Commission thinks arise in this matter. Whereas the English 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 French 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 Principal Delegate expressed a clear preference in favour of the interpretation based on the French text, the meaning of which is, unlike the English version, clear and unequivocal and also more favourable to the individual. In particular, the delegate of the Commission rejected the argument of the German Government that the English version should be accepted for the simple reason that it limits the sovereignty of States to a lesser degree.

The Commission emphasised the importance which it attaches to the Court’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 Commission 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 Article 6 (2) (art. 6-2) of the Convention. 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 Commission argues that a rational scheme of this kind makes possible in each case a "coherent interpretation without any appearance of arbitrariness". The Commission 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 one single criterion from having decisive importance in some cases.

The Commission 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 Court for decision in the case in question, which might justify the examination of other criteria.

In this case the Commission 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 Commission seemed to it important in the light of several criteria. There will be found below a summary of the Commission’s opinion on these various points.

With regard to application of the first criterion, that is to say the length of Wemhoff’s detention on remand, the Commission takes into account the period from 9 November 1961 (the date of his arrest) to 9 November 1964 (the date of the opening of the trial before the Regional Court). According to the Commission the actual length of this detention (three years) seems to warrant the conclusion that it exceeded a "reasonable" period.

As regards the second criterion mentioned above, the Commission 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 Section 26 of the Criminal Code, and the fact that the length of detention has been counted as part of the sentence imposed. The Commission 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 Article 5 (3) (art. 5-3), remains a violation of the Convention, 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 Applicant’s family life; his long detention is said to have destroyed his marriage and injured his close relations with his parents.

The Commission 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 Germany 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 Article 5 (3) (art. 5-3).

It should be added that in the Commission’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 Article 5 (1) (c) (art. 5-1-c).

The Commission maintains that Article 6 (1) (art. 6-1) poses questions of interpretation similar to those raised by Article 5 (3) (art. 5-3), in particular as regards the "time" mentioned in Article 6 (1) (art. 6-1). However, in the opinion of the Commission, the question whether the time was "reasonable" for the purposes of Article 5 (3) (art. 5-3) or of Article 6 (1) (art. 6-1) must be judged differently in the two 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 German judicial authorities. Therefore, the Commission arrives at the conclusion that even if the period concerned were considered to run from 9 November 1961 until 17 December 1965, Article 6 (1) (art. 6-1) has not been violated in the criminal proceedings against the Applicant.

At the hearing of 9 January 1968, the Commission made the the following submissions:

"May it please the Court to decide:

(1) whether or not Article 5 (3) (art. 5-3) of the Convention has been violated by the detention of Wemhoff from 9 November 1961 to 9 November 1964 or any later date;

(2) whether or not Article 6 (1) (art. 6-1) of the Convention has been violated by the duration of the criminal proceedings against Wemhoff between his arrest on 9 November 1961 or any later date and the judgment of the Regional Court of Berlin on 7 April 1965 or any other date."

The German Government, for its part, remarks that it shares the Commission’s opinion as to the absence of any violation of Article 6 (1) (art. 6-1) of the Convention.

With regard to the interpretation of Article 5 (3) (art. 5-3) of the Convention and its application to the present case, the Government believes that the period to be considered is that which the Commission takes into account in its Report, from arrest (9 November 1961) to the opening of the case before the trial court, the Regional Court of Berlin (9 November 1964).

According to the Government it is essential, at least in the present case, not to rely on the French 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 English 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 the Contracting States. Moreover, application of Article 5 (3) (art. 5-3) in the French 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 seven "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 one of the criteria would be equally relevant to others.

The Government also sets against the Commission’s reasoning the following considerations which, in its opinion, demonstrate the absence of any violation of Article 5 (3) (art. 5-3) in the case of the Applicant.

To the first criterion advanced by the Commission, namely, the actual length of detention, the Government 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 cannot therefore serve as a criterion for determining whether such a length of time is "reasonable". Furthermore, the Government remarks that, in the Commission’s view, the Applicant’s detention was "lawful" for the whole of its length within the meaning of Article 5 (1) (c) (art. 5-1-c) of the Convention; it adds that the Commission, 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 Commission 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 Commission is based primarily on the possibility, provided in Section 26 of the Criminal Code, of the conditional release of a detained person. However, according to the Government, that Section, whose application depends on the Court’s discretion, can operate only when the sentence has become final and, more precisely, from the moment when the convicted person has already served two-thirds of his sentence; it cannot therefore justify the conclusion that the length of detention on remand has been "unreasonable". Moreover, the German judicial authorities granted the Applicant conditional freedom when he had served two-thirds of his sentence. This decision, which dates from 20 October 1966, 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 Commission’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, Wemhoff 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 Commission has omitted, in the Government’s view, to verify the existence of a causal relation between Wemhoff’s detention and the deterioration of his family life. The Government maintains that if Wemhoff 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 Commission 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 VIII and IX of the Commission’s Report, do not allow it to be affirmed that Wemhoff generally intended to slow down the course of the proceedings. According to the Government, there can, however, be no doubt that the examination of the case was thereby prolonged. On this point, the Government likewise remarks that the Regional Court of Berlin decided on 19 August 1965, i.e. after conviction, to suspend the detention order subject to the deposit of bail of 100,000 DM. The Court had, in the light of the documents in its possession, discovered that the Applicant had deposited the sum of 100,000 DM in an account opened in the name of his wife in a Swiss 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 Wemhoff 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 Court.

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

As regards the application of the fifth, sixth and seventh 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 Wemhoff case, the Government considers that the Commission’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 Article 5 (3) (art. 5-3) 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 Commission 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 100,000 DM from an account in his wife’s name with a Swiss bank.

At the hearing of 9 January 1968, the Government made the following submission:

"We ask this Court to find:

that the decisions and measures taken by German authorities and courts in the Wemhoff case are compatible with the commitments entered into by the Federal Republic under Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) 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 1966, 1962, 1971 and 1971 respectively and live in L. and R.

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 Sterilität). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile.

The third applicant suffers from agonadism (Gonadendysgenesie), 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 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz – see paragraphs 27-34 below).

The applicants argued before the Constitutional Court 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 3(1) and 3(2) of the Artificial Procreation Act. 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 the Artificial Procreation Act.

The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Austrian Federal Constitution, which guarantees equal treatment.

On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated.

On 14 October 1999 the Constitutional Court 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 3 of the Artificial Procreation Act, 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, the Constitutional Court considered that Article 8 of the Convention was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s 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 Article 8.

The impugned provisions of the Artificial Procreation Act 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, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, 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 one 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 (Zuchtauswahl).

However, applying the principle of proportionality under Article 8 § 2 of the Convention, 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 the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member States 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.

The Constitutional Court 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 two 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 the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention.

This decision was served on the first and third applicants’ lawyer on 8 November 1999.

The Artificial Procreation Act (Fortpflanzungsmedizingesetz, Federal Law Gazette no. 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)).

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 1(2)).

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 2).

Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage (Lebensgefährten) 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 3(2)). 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 3(3), 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 the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8).

In 1999 the Artificial Procreation Act was supplemented by a Federal Act establishing a fund for financing in vitro fertilisation treatment (Bundesgesetz, mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisation eingerichtet wird – Federal Law Gazette, Part I, no. 180/1999) in order to subsidise in vitro fertilisation treatment allowed under the Artificial Procreation Act.

The issue of maternity and paternity is regulated in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). Under Article 137b, introduced at the same time as the entry into force of the Artificial Procreation Act, the mother of a child is the woman who has given birth to that child. As regards paternity, Article 163 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 (180 to 300 days) 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 Europe is based essentially on the following documents: “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” (Council of Europe, 1998); the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on access to medically assisted procreation (MAP) and on right to know about their origin for children born after MAP” (Council of Europe, 2005); and a survey carried out in 2007 by the International Federation of Fertility Societies.

From this material it would appear that in vitro fertilisation treatment was (as at 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Ireland, Lithuania, Malta, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.

The Council of Europe study sets out, in particular, the position of domestic law as regards seven 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 Italy, Lithuania and Turkey. All three 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 Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above.

It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (as at 2007), the donation of both sperm and ova is used in practice.

A comparison between the Council of Europe study of 1998 and the survey conducted by the International Federation of Fertility Societies in 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden, sperm and ovum donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway, sperm donation for in vitro fertilisation has been allowed since 2003, but not ovum donation. Since 2007, medically assisted procreation is also regulated by law in Finland allowing sperm and ovum donation.

Principle 11 of the principles adopted in 1989 by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics, states:

“1. 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 States, the use of gametes of donors may be permitted.”

The Council of Europe Convention on Human Rights and Biomedicine of 1997 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 14 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 Organs and Tissues of Human Origin of 2002, which promotes the donation of organs, expressly excludes from its scope reproductive organs and tissues.

Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 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:

“12. This directive should not interfere with decisions made by member States 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 State, 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 States defining the legal term ‘person’ or ‘individual’.”