No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1982 and is currently detained in Gorodyshche prison.

On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke into the home of Mr N., a local businessman, which was located in the Pustomyty District. The applicant had four prior convictions for theft, burglary, robbery and carjacking. According to the findings of the domestic court that subsequently convicted the applicant, Mr N. had fought with the intruders and, unable to overcome his resistance otherwise, they had stabbed him to death. As a result of the attack Ms P., N.’s wife, sustained injuries of medium severity. Numerous valuables and documents were stolen, including some jewelry, a reserve officer’s card belonging to N. and certificates showing his achievements in sports.

On 1 December 2008 the Pustomyty District police instituted criminal proceedings in connection with the incident.

On 5 December 2008 V.S. was arrested and questioned. He stated that the applicant had stabbed N. in the course of the burglary. V.S. had hit Ms P., who had tried to come to N.’s rescue.

At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D., detectives from the Lviv Regional Police, located the applicant in Chervonograd and apprehended him in the street. According to the subsequent submissions of the applicant and the detectives to the domestic authorities, the applicant attempted to flee; in order to stop him from fleeing the detectives tripped him up, he fell on the asphalt pavement and was then handcuffed. According to the applicant, after he had been handcuffed the police officers continued to hit and kick him.

The applicant also claimed that following his arrest he had been illtreated by the police in order to extract his confession.

At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by the Pustomyty Police. According to a document provided by the Government, at the same time the applicant was admitted to the Lviv temporary detention facility (ізолятор тимчасового тримання, “the ITT”).

On the same day an investigator, K., asked a forensic medical expert to record any injuries on the applicant’s body and to provide an expert opinion as to when and how they had been inflicted.

On the same day the forensic medical expert, G. (referred to as Mr H. by the Government), issued a report stating that the applicant had the following injuries: a bruise on his forehead and, overlapping it, four long, deep, vertical parallel scratches; bruises on the bridge of his nose, his chin, wrists and neck; nine small bruises on the fingers of his right hand; and swelling of the back of his right hand. The bruises on his wrists were soft and pink in colour. The other bruises were covered in dry scabs. The expert classified the injuries as minor and expressed the opinion that they could have been inflicted on 30 November 2008. According to the report, the applicant explained to the expert that he had injured his face and hands when he fell trying to run away from the police.

At 2.30 p.m. on the same day K., the investigator from the Pustomyty Police, questioned the applicant as a suspect. The applicant stated that on 29 November 2008 he had agreed with V.S.’s proposal to burgle Mr N.’s home. The applicant had not taken a knife with him and had not seen V.S. or A.S. do so. Once they had broken into the house, the applicant switched off the television set N. had been watching, while V.S. and A.S. started punching N. Hearing N.’s screams, P. tried to enter the room, and the applicant hit and kicked her. Afterwards the applicant kicked N. three or four times. While the others continued hitting N., the applicant started looking for money, then took a knife from V.S. and cut some paintings out of their frames. He also took other valuables from the house.

At 9.22 p.m. on the same day, following the applicant’s complaint about his health, an ambulance was called to the ITT for the applicant. The ambulance staff noted that the applicant had bruises on his face and right hand, and was suffering from concussion, hypertension and an oedema.

On 8 December 2008 the applicant was charged with aggravated burglary and infliction of grievous bodily harm resulting in the death of the victim. Questioned on the same day as an accused, the applicant confirmed the account of events he had given on 6 December 2008 and added that he had seen V.S. hitting N. but not stabbing him. The applicant reiterated that he had not stabbed N. and had had no intention of murdering him. He had used the knife to cut paintings out of their frames. Prior to the burglary V.S. had promised that he would take it upon himself to force N. to give up the money.

On 9 December 2008 the applicant was examined by medical staff on his admission to the Lviv pre-trial detention centre (слідчий ізолятор, hereinafter “the SIZO”). According to a certificate issued by the SIZO on 20 January 2015, the applicant did not raise any complaints during that examination.

In the period from 5 February to 8 July 2009 the police took the applicant from the SIZO at least eight times in order to carry out investigative measures with him.

On 6 February 2009 Mr Ch. was appointed as the applicant’s defence counsel. On the same day the applicant was questioned in Ch.’s presence. The applicant confirmed the account of events he had given on 6 and 8 December 2008, including the statement that at N.’s house he had used the knife to cut paintings out of their frames, and added that there had been no plan to murder N. but simply to burgle his house. When he and his co-defendants had learned that N. would be home, the plan had been simply to tie him up.

According to the Government, on 6 February 2009 the applicant was familiarised with the medical expert’s report of 6 December 2008 and made no comments or requests.

On 18 March 2009, having examined the applicant as an inpatient, a panel of psychiatric experts issued a report concluding that the applicant was not suffering from a mental illness. In discussing the applicant’s mental health history the experts noted that in October 2008 he had been involved in a fight, suffered a blow to the head and had received outpatient treatment for the injury. On 17 April 2009 the applicant and his lawyer signed a statement confirming that they had examined the report and had no comments or requests to make.

On 7 May 2009 the applicant was questioned again in the presence of his lawyer. He reiterated his earlier statement. In the course of the questioning the investigator asked the applicant why he had not initially joined his co-defendants in attacking N. The applicant refused to answer.

In the course of the pre-trial investigation A.S. stated that it had been the applicant who had stabbed N. In the course of a confrontation between the applicant and A.S., the latter reaffirmed his statement. The applicant denied A.S.’s allegations but refused to testify.

P. stated that it had been V.S., and not the applicant, who had attacked and hit her.

Ms I.M. stated that on 1 December 2008 the applicant had given her a mobile phone and a silver chain which he had stolen from N. and P.

On 30 July 2009 the case against the applicant and his co-defendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of Appeal (“the Court of Appeal”), sitting as a trial court.

On 16 November 2009 the trial court informed the applicant that the question of whether an additional psychiatric examination should be ordered would be examined in the course of the trial.

The applicant pleaded guilty to the charge of theft of documents, guilty in part to the charge of aggravated burglary, and not guilty to the charge of murder. He refused to testify at length, but in response to a question stated that he had used a knife to cut the paintings out of their frames at the victims’ house. V.S. pleaded guilty to the charge of aggravated burglary and A.S. pleaded guilty to that charge in part. They largely reiterated the statements they had given during the pre-trial investigation concerning the applicant’s role in the crime, in particular stating that they had not stabbed N. and had seen the applicant, knife in hand and covered in blood, lead N., also covered in blood, to a safe to extract N.’s money. V.K. also stated that the applicant had told him that he had stabbed N.

Ms M.M. and Ms A.V. testified that late on the night of the murder the defendants had left the house where they had been staying together. A.S. had been carrying a knife. The defendants had then returned with various objects, including paintings and documents. M.M. testified that she had seen blood on the applicant’s clothes when he returned that night. A.V. also testified that when the applicant had returned, he had given her his clothes and had instructed her to burn them. However, she had left the clothes in the house.

Two other witnesses testified that on 5 December 2008 they had witnessed the owner of the house in question handing over to the police a bag of clothes which had been left there by the defendants. According to DNA expert reports, the applicant’s hair and blood possibly originating from the victims were found on the clothes in the bag.

On 11 March 2010 the applicant asked the trial court to call G., the medical expert, as a witness, on the grounds that in her report of 6 December 2008 she had failed to specify exactly when the injuries had been inflicted on the applicant. In support of his request he stated that he had been ill-treated in the course of and following his arrest. The applicant also asked for I.Ku., an investigator from the Pustomyty Police to be called as a witness, arguing that his statements during the pre-trial investigation were untrue and had been dictated to him and given under pressure. He also asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv Regional Police to be called as witnesses, arguing that they had ill-treated him in the course of arrest and in the course of his initial interrogation, causing the injuries recorded in the medical expert’s report of 6 December 2008. The trial court refused those requests. According to the Government, the grounds for the refusal were that the trial court had in its possession the transcripts of the interviews with the police officers in question conducted during the pre-trial investigation. Moreover, the trial court considered that the applicant’s allegations of ill-treatment had already been examined within the framework of pre-investigation enquiries, in the course of which no corroboration of the applicant’s allegations had been found.

On 25 March 2010 the trial court convicted all three applicants of murder, of aggravated burglary, and of theft of documents. In respect of the conviction for murder the applicant was sentenced to life imprisonment with confiscation of all of his property, V.S. to thirteen years’ and A.S. to twelve years’ imprisonment. Additional prison sentences were imposed in respect of the other charges but because of the sentencing rules, the overall sentences imposed were the same as the sentences for murder.

The court found it established that the applicant and his two co-defendants, A.S. and V.S., had committed aggravated burglary of Mr N. and Ms P. While it was the applicant who had stabbed N. to death, all the defendants had used violence against N. to overcome his resistance and so were guilty of his murder. As evidence of the applicant’s guilt the court referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M., Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other witnesses who had described how the defendants had disposed of their clothing and of the objects taken from the victims’ house. The court also relied on physical and expert evidence. In reaching its finding that it had been the applicant who had stabbed N., the court referred to the testimony of his co-defendants, noting that it was consistent with P.’s testimony to the extent that all three had testified, contrary to the applicant, that it was V.S., and not the applicant, who had attacked P. The court also referred to the DNA expert evidence which had found blood, possibly originating from N., on the trousers worn by the applicant on the night of the murder and seized by the police at the house where the applicant had left them. The court also referred to the applicant’s admission during the pre-trial investigation that he had used the knife, that is the murder weapon, to cut paintings out of their frames.

On 18 January 2011 the Supreme Court upheld the applicant’s conviction and mitigated his sentence to fifteen years’ imprisonment.

On 12 July 2009 the applicant wrote to the head of the Security Service of Ukraine in the Lviv Region complaining that he had been illtreated in the course of his arrest and afterwards by the police. In particular, he stated that on the day of his arrest he had been going to a meeting with a certain Ms Z. when he had been approached by a stranger, who had turned out to be a police officer. Thinking that the stranger was trying to steal his phone, the applicant started running away. However, other officers tripped him up. He fell and the officers started kicking and punching him. The police officers continued to kick him once he was in their car and subsequently, in the place to which he was taken after his arrest.

On 24 July 2009 the Chervonograd prosecutor’s office and on 27 August 2009 the Pustomyty prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s complaint.

On 26 February 2010 the Lviv regional prosecutor’s office (“the LRPO”) quashed the decisions of 24 July and 27 August 2009 and remitted the case to the Chervonograd and Pustomyty prosecutors for further examination. The LRPO concluded that the pre-investigation enquiries had been incomplete. The LRPO indicated that the Chervonograd prosecutor’s office should undertake a number of additional measures to establish the circumstances of the incident, most notably: (i) interview Ms Z. whom the applicant had been going to meet when he had been arrested; (ii) identify the ambulance staff who had visited the applicant on 6 December 2008 and interview them; (iii) interview the forensic medical expert to find out whether the injuries observed by the expert on the applicant on 6 December 2008 were consistent with the applicant’s allegations of ill-treatment.

On 26 March 2010 the Chervonograd prosecutor’s office again refused to institute criminal proceedings against detectives I.Kot., V.Ye., I.G., R.M. of the Lviv Regional Police. The decision was based on the statements of the police detectives and the expert report of 6 December 2010. The detectives had stated that they had tripped up the applicant while he had been attempting to escape. The prosecutor’s office concluded that that fall explained the applicant’s injuries. On 28 March 2012 the Chervonograd Court upheld that decision, rejecting as unsubstantiated the applicant’s argument that his injuries had resulted from ill-treatment.

On 31 March 2010 the Pustomyty prosecutor’s office refused to institute criminal proceedings against the investigator I.Ku. and two other officers of the Pustomyty Police. The decision was based on the interviews with the officers. The prosecutor’s office also referred to the ITT records and an unspecified forensic medical expert report, according to which the applicant had had no injuries at the relevant time. The applicant was informed of that decision on 5 May 2011.

On an unspecified date the decision of 31 March 2010 was overruled.

On 18 May 2012 the Pustomyty prosecutor’s office again refused to institute criminal proceedings against the police officers of the Pustomyty Police and of the Lviv Regional Police for lack of corpus delicti in their actions. The decision was based on the statements of the officers, who had denied the applicant’s allegations.

On 20 June 2013 the Pustomyty District Court quashed the decision of 18 May 2012. The court found numerous omissions in the pre-investigation inquiry, in particular that the authorities had failed to explore under what circumstances an ambulance had been called for the applicant while he had been in the ITT; they had also failed to examine the records from the facilities where the applicant had been detained.

On 19 November 2012 a new Code of Criminal Procedure came into force. Under the new Code an investigation is commenced by creating an entry in the Unified Register of Pre-Trial Investigations (“the Register of Investigations”) (see paragraph 51 below).

On 15 March 2013 the Chervonograd Court granted the applicant’s claim and ordered the Chervonograd prosecutor’s office to create an entry in the Register of Investigations in order to investigate the applicant’s allegations of ill-treatment.

On 20 March 2013 the entry was created.

On 21 March 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation. On an unspecified date the Chervonograd Court overruled that decision.

On 2 July 2013 the Chervonograd prosecutor’s office reopened the investigation and the applicant was questioned. He insisted that he had been ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of his arrest and on the way to the Pustomyty police station, where his arrest had been recorded. The police detectives were interviewed and denied any ill-treatment, insisting that the applicant had been injured when he had fallen while trying to flee.

On 24 September 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation for lack of corpus delicti in the actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an earlier decision of July 2009 to refuse to institute criminal proceedings, according to which the applicant had fallen while trying to flee from the police. As a result, he had sustained concussion and bruises. The decision also referred to a number of pieces of evidence supporting that version of events, most notably the statements of the police officers and the medical expert’s report of 6 December 2008.

The decision of 24 September 2013 was upheld by the Chervonograd Court on 7 February 2014 and by the Court of Appeal on 11 March 2014.


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1965. On 27 March 2009 the Leningrad Regional Court convicted him of murder and sentenced him to thirteen years and six months’ imprisonment. Since January 2010 he has been serving the sentence in correctional colony no. IK-4, in Fornosovo, Leningrad Region.

According to the applicant, his eyesight began deteriorating in 2008. In September 2010 he complained about this to a resident colony doctor.

Eight months later the applicant was examined by an ophthalmologist, who visited the detention facility. The doctor diagnosed an “almost mature” cataract of the right eye and a focal cataract of the left eye. An in-depth medical examination in a hospital was recommended.

On 1 July 2011 the applicant was sent to a prison hospital for an examination by an ophthalmologist. The ophthalmologist confirmed the presence of cataracts on both eyes. He established that the patient had lost his vision in his right eye and prescribed cataract surgery. It was noted that owing to the lack of intraocular lenses in stock and the overcrowding of the facility, the surgery would have to be performed later, in a “planned manner”.

The applicant was sent back to the detention facility, the ophthalmologist having recommended that the applicant undergo another eye examination between January and March 2012.

On 7 April 2012 the applicant complained about the quality of medical assistance he had received to the Federal Service for the Execution of Sentences in St Petersburg. His complaint was then referred to the medical unit of his detention facility, which dismissed it in a letter dated 25 April 2012, stating that the patient had been provided with medical assistance in full.

In May 2012 the applicant was seen by the head of the medical unit and put on a waiting list for admission to the ophthalmological department of the prison hospital for a medical examination and eye surgery.

On 24 October 2013 the applicant was seen by an ophthalmologist. The doctor endorsed the advice that the applicant had received on 1 July 2011 and confirmed that he needed cataract surgery.

On 14 January and 22 June 2014 the applicant underwent repeated eye examinations, which revealed that the cataract on his left eye was growing. The need for surgery was again noted. The surgery was performed in the prison hospital on 1 October 2014.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Síofra O’Leary

On 27 June 2006 a nineteen-year old woman, K., went to a party in Novy Sanzhary, a small town, and never returned home.

On 4 July 2006 her relatives reported her disappearance to the police.

Having questioned a number of witnesses, the police established that K. had left the party with her cousin R. and the applicant, one of his friends. At about 6 a.m. on 28 June 2006 K., R. and the applicant were seen drinking beer in a café. Several witnesses stated that while the applicant had been in the café he had carried a certain “pennant” of a mobile operator company. Shortly afterwards, a witness saw the applicant walking down a road with his arms around K. After that nobody saw K.

R. told the police that in the morning on 28 June 2006 he had left K. with the applicant and had gone to work.

On an unspecified date between 4 and 8 July 2006 the police questioned the applicant as a witness in connection with K.’s disappearance. During that questioning the applicant said that in the morning on 28 June 2006 he had left K. with two unknown men, had taken a taxi at a taxi stand and had gone home. Police officer I. brought the applicant to the taxi stand and asked the taxi drivers whether they had seen him on 28 June 2006. The taxi drivers did not recognise the applicant and the applicant could not indicate the car and the driver who had allegedly driven him on 28 June 2006. He also could not provide any details about the appearances of the car or the driver.

After the applicant’s questioning as a witness and the visit to the taxi stand (see paragraph 9 above), on 8 July 2006 the police detained the applicant for an “offence of minor public disorder” and placed him in a cell at the Novy Sanzhary Police Station. Before the Court and the trial court the applicant submitted that he had not committed any such offence and had been placed in the cell without any reasons. No further information about the nature of the offence in question was made available to the Court.

Before the Court the applicant stated that on 8 and 9 July 2006, while he had been kept in the cell, police officers had beaten him and threatened him urging him to “tell the truth” about K.’s disappearance. The material in the case file (namely, a copy of the applicant’s indictment) contains reference to the statements of police officers I. and F. saying that on 8 or 9 July 2006, while the applicant was in the cell at the Novy Sanzhary Police Station, they questioned him without a lawyer in connection with K’.s disappearance. On 10 July 2006 they questioned him again on the same issue without a lawyer and he confessed to K.’s murder, robbery and rape.

On 10 July 2006 during the questioning by I. and F. the applicant made a written statement saying that in the morning on 28 June 2006, after R. had left, he had decided to walk K. home. As he and K. had been walking down a road, he had tried to hug her but she had struck him in the groin. He had reacted by suddenly grabbing her by the neck with his two hands and holding her for several seconds. K. had fainted so he had let her go. After that he had dragged her body into some bushes, pulled down her knickers, bra and t-shirt and had raped her. After that he had taken 20 Ukrainian hryvnias (approximately 3 euros) from her wallet and had left. As he had been leaving, K. had been unconscious, but he had not known whether she had been dead or alive, he had had no intention to kill K. when he had grabbed her neck but he had realized that such actions could theoretically result in her death. I. and F. passed the applicant’s written confessions to investigator G. from the local prosecutor’s office.

Still on 10 July 2006 investigator G. opened a criminal case against the applicant for the rape, robbery and murder of K. and read him his procedural rights as a suspect, including his rights of defence. The applicant confirmed in writing that he understood his rights. G. also arrested the applicant on suspicion of murder, robbery and rape.

Some forty minutes later investigator G. carried out a reconstruction of events in the presence of the applicant, attesting witnesses B. and L., and a forensic medical expert, B. The applicant showed them the place where he had grabbed K. by the neck and her body lying in the bushes. The experts and the investigator inspected the crime scene and collected physical evidence. Investigator G. kept written minutes of the inspection of the crime scene. He noted that the corpse was heavily damaged from decay, worms and insects, it was lying face up with legs spread apart. K.’s bra, t-shirt and knickers were pulled down. Near the corpse the police found a pennant of a mobile operator company and K.’s open wallet.

On the same day after the reconstruction of events, investigator G. questioned the applicant in his capacity as a suspect without a lawyer being present. The applicant confirmed his previous statements.

In his application form the applicant stated that for the first time he had been allowed to see a lawyer on 22 August 2006. However, from the material in the case file, the authenticity of which the applicant did not dispute before the Court, it follows that on 11 July 2006 the investigator G. appointed lawyer V. to represent the applicant under the legal aid scheme and questioned the applicant in his presence. The applicant confirmed that he had strangled K. with both hands, taken 20 hryvnias from her wallet, put her body in the bushes, pulled down her clothes and raped her.

On 12 July 2006 S. was appointed as the applicant’s lawyer instead of V. at the request of the applicant’s father. The applicant confirmed in writing that he wished to have S. as his lawyer.

Later that day the police conducted a further reconstruction of events which the applicant, lawyer S., two attesting witnesses and two forensic medical experts took part in. The applicant confirmed that he had strangled K. with both hands, and that after she had fainted he had put her body in the bushes, taken 20 hryvnias from her wallet, pulled down her clothes and raped her. During the reconstruction, he told the medical experts that he had not been ill-treated by the investigative authorities.

On 14 July 2006 the applicant was questioned again without a lawyer. Before the questioning he noted in writing that he did not object to being questioned without a lawyer. He described the clothes he had worn on the day of the murder and said that after the murder the clothes had been washed. The police seized the clothes in question from the house of the applicant’s parents.

On 18 July 2006 the applicant was examined by a forensic medical expert, who observed no injuries and reported no complaints.

On the same date the investigator read the applicant his procedural rights as an accused, including his rights of defence. The applicant indicated that he wanted to have S. as his lawyer.

Later that day the applicant was charged with rape, robbery and murder. He was questioned in lawyer S.’s presence and confirmed having strangled K. with both hands, taken 20 hryvnias from her, put her body in the bushes, pulled down her clothes and raped her.

Forensic examinations conducted in July and August 2006 revealed that K. had died because she had been strangled by the neck on both sides. The forensic experts did not find on the corpse any forensic evidence (fingerprints, body fluids, genetic material, and the like) originating from the applicant. No such evidence was discovered on the crime scene either. The experts also found no forensic evidence of rape on the body because its soft tissues had been destroyed by decay and worms. However, in their report the forensic medical experts noted that the corpse’s position and the fact that the clothes on it had been displaced proved that K. had been raped.

On 9 September 2006 the applicant confirmed that he wished to have S. as his lawyer. Later that day he was questioned in S.’s presence and said that he had not intended to kill or rape K. He had only decided to rape her after she had fainted. He said that he had not taken 20 hryvnias from K.’s wallet. In fact, he had seen 20 hryvnias on the ground near her body, decided that they had fallen from his own pocket and had taken them. He also said that he had given his earlier statements voluntarily without being physically or psychologically coerced into doing so.

Witnesses questioned during the pre-trial investigation stated that the pennant found on the crime scene looked exactly as the one which they had seen on the applicant in the morning on 28 June 2006 (see paragraph 7 above). The applicant did not deny that it was the same pennant.

On 19 September 2006 the investigator granted the applicant’s request to have his mother appointed as his representative.

On the same day the applicant was informed that the pre-trial investigation was completed and the indictment was drafted. The applicant was allowed to study the case file with S. and his mother.

On 28 September 2006 the case was sent for trial to the Poltava Regional Court of Appeal.

On 16 November 2006, during a court hearing at which lawyer S. was present, the applicant stated that after K. had kicked him in the groin he had suddenly struck her on the neck with one hand. She had fainted and he had put her body in the bushes and left. He denied having strangled K. with his two hands, robbed her, pulled down K.’s clothes, and raped her. He submitted that the police had detained him several days before 10 July 2006, kept him in a cell and ill-treated him until he agreed to confess to the murder, robbery, and rape.

The court ordered the prosecution authorities to conduct a preinvestigation inquiry into the applicant’s allegation of ill-treatment.

On 5 February 2007 the Novi Sanzhary prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint of illtreatment after questioning F. and I., who denied that they had subjected him to any pressure. Copies of the written minutes of the questioning of F. and I. are not available to the Court.

The applicant requested the Poltava Regional Court of Appeal to send his case for additional investigation on the ground that his right to defence had been restricted on 10 July 2006 when he had been questioned without a lawyer. On 23 October 2007 the Poltava Regional Court of Appeal rejected that request noting that although the applicant’s right to legal assistance had indeed been restricted on 10 July 2006, the situation had been remedied because starting from 11 July 2006 the applicant had been represented by a lawyer and confirmed his self-incriminating statements in his presence.

The court questioned F. and I. and the attesting witnesses present during the reconstruction of events on 10 July 2006. They all denied that the applicant had been coerced. The forensic experts who had examined K.’s body were questioned by the court; they refuted the applicant’s claim that he had struck the victim once on the neck. They said that her injuries proved that she had died because she had been strangled by the neck on both sides, in the exact same way the applicant had described during the pre-trial investigation.

Being questioned at a court hearing in the presence of a lawyer the applicant stated that he had involuntarily killed K. by striking her with one hand, he had not strangled, robbed or raped her. According to him, the police had pulled down K.’s clothes, put her body face up and spread her legs because they wanted to accuse the applicant of her rape.

On 20 November 2007 the Poltava Regional Court of Appeal convicted the applicant of robbery, rape, and murder of K. and sentenced him to fourteen and a half years’ imprisonment. The court found that the applicant had wanted to rob and rape K. and had strangled her in order to supress her resistance. The court referred to the statement which the applicant had made in the presence of his lawyer, the minutes of the inspection of the crime scene on 10 July 2006, the results of the forensic examination of K.’s body and other material evidence found on the crime scene, forensic expert’s statements made before the court, and statements of witnesses who on 28 June 2006 had first seen the applicant with R. and K. and then later with K. alone walking down the road. The court also noted that the pennant which the applicant had with him when he had been in the café (see paragraph 7 above) had been later found on the crime scene. The court also referred to the statements of witnesses who had seen that on 27 June 2006 K. had with her a note of 20 hryvnias. The conclusion that K. had been raped was made having regard to the position of K.’s body when it had been discovered by the police and the fact that her clothes had been pulled down. In its reasoning the court did not refer to the clothes which the applicant described on 14 July 2006 (see paragraph 19 above) as an evidence of his guilt. However, in the operative part of the judgment the court ordered the police to return the clothes to the applicant’s mother. As to the applicant’s allegation of ill-treatment, the court dismissed this as unsubstantiated referring to the prosecutor’s decision of 5 February 2007.

The applicant appealed to the Supreme Court. He complained, in particular, that the trial court had relied on his confessions extracted under duress and without a lawyer.

On 27 March 2008 the Supreme Court upheld the judgment of 20 November 2007. It noted, in particular, that when convicting the applicant the trial court had mainly relied on the statements which he had made in the presence of the lawyer S. on 9 September 2006.

In a letter to the Court in September 2009, the applicant described the conditions of his detention in Poltava SIZO. He stated that he had been held there since 27 August 2006 in a cell measuring approximately 15 square metres with three other inmates. The window had been covered by a plastic sheet making it impossible to open. Because of this no fresh air had entered the cell and in summer, the temperature would sometimes reach 45oC. He had never been allowed to leave the cell. The food had been inadequate.

The applicant submitted photos of a building which he claimed was Poltava SIZO. The windows appear to have bottom-hinged shutters made of transparent plastic. On the photographs the shutters are open, and there are several tens of centimetres of space between the window and shutter and the shutter and wall.

The Government submitted that during his detention in the SIZO, the applicant had been held in various cells and it was unclear which of them he had been referring to in his letter to the Court. From 29 December 2008 to 26 January 2009 he had been detained with three other detainees in cell no. 135, which measured 10.34 square metres. He had therefore enjoyed 2.6 square metres of personal space. From 26 January 2009 to 12 March 2010 he had been detained with three other inmates in cell no. 24, which measured 12.42 square metres. The space allocation for one person had therefore been 3.1 square metres. Both cells were equipped with four beds. The SIZO windows could be opened and had not been blocked with plastic sheets. The food the applicant had received met the standard set by domestic law. The Government did not deny that the applicant had been unable to leave the cells he had been held in.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in 1957 and lives in Kocaeli.

Following a dispute with a private third party, the applicant initiated compensation proceedings.

On 12 March 2009 the Tuzla Civil Court of General Jurisdiction granted the applicant compensation, amounting to 386,464.75 Turkish liras (TRY) (approximately 174,000 euros (EUR)). In the operative part of the judgment, the court indicated that the defendant party had to pay TRY 16,000 (approximately EUR 7,400) for court fees pursuant to the Law on Charges. The court registry accordingly sent a payment order to the defendant party. However, no payment was made.

On 18 May 2009 the applicant submitted a petition to the registry of the first instance court, requesting that the judgment be served on her in order to commence enforcement proceedings. On the same day, the court rejected the request on the ground that it was impossible under Section 28(1) (a) of the Law on Charges (Law no. 492) to serve a copy of the judgment unless the court costs that should have been born by the defendant party had been discharged.

At the time when the application was introduced, the applicant had therefore been unable to bring enforcement proceedings in order to have the above-mentioned judgment executed unless she herself was willing to pay the court fees that the defendant party had failed to pay.

Following the introduction of the present application with the Court, the domestic legislation was amended (see paragraphs 11-13 below), and subsequently the judgment in question was served on the applicant. In the absence of an appeal, the judgment became final on 17 October 2012. On 5 March 2013 the applicant initiated enforcement proceedings against her debtor. On 10 April 2013 the applicant further requested the enforcement office to place a lien on the debtor’s property. According to the documents in the file, as of 14 April 2017 the debt, which is still not enforced, amounts to TRY 812,648.94 (approximately EUR 193,500) including the initial amount of compensation awarded by the domestic court plus interest running at statutory rate.


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Georges Ravarani

The first and second applicants were born in 1981 and 1971 respectively and live in Jurbarkas. They are wife and husband.

On 15 May 2009 the first applicant, who was nine months pregnant and already past her due date, was admitted to the obstetrics and gynaecology ward of Jurbarkas Hospital.

On the morning of 20 May 2009 she was given medication in order to induce labour, but the medication was subsequently discontinued and she was given sedatives. In the late afternoon her waters broke. The doctors noticed that the heartbeat of the foetus was weak and decided to perform a Caesarean section. Following the surgery, the first applicant gave birth to a daughter. The newborn baby was in a serious condition, so she was taken to a hospital in Kaunas for intensive care.

On 22 May 2009 the baby died. The applicants decided not to have an autopsy performed on her body – according to them, they were informed by doctors that an autopsy was not necessary. The Government contested this and submitted that the applicants had been informed that an autopsy had been necessary but refused it nonetheless.

Following the baby’s death, Jurbarkas Hospital conducted an internal inquiry into the medical services provided to the first applicant. The inquiry report, issued on 16 June 2009, found that some erroneous entries had been made in the first applicant’s medical file, the assessment of her and the baby’s condition had probably been inadequate, and certain actions to resuscitate the baby had been taken too late.

At the applicants’ request, the Ministry of Healthcare also conducted an inquiry into the medical services provided to them at Jurbarkas Hospital. A provisional report, issued on 22 June 2009, found that the first applicant’s labour had not been induced in compliance with the relevant rules, the condition of the foetus had not been properly monitored, there had been shortcomings in the resuscitation of the baby, and one of the doctors (R.B.) had not been properly qualified to provide obstetric services. The report issued a series of recommendations to the hospital, and also suggested that the State Inspectorate for Medical Inquiries conduct a more in-depth inspection of the medical services at Jurbarkas Hospital.

The State Inspectorate for Medical Inquiries issued its report on 26 August 2009, in which it identified several shortcomings in the work of doctors who had provided care to the first applicant, and concluded that the medical services had been inadequate.

Subsequently, doctor R.B. was dismissed from Jurbarkas Hospital, and the hospital stopped providing obstetric services, citing a lack of qualified medical personnel. V.K., a gynaecologist, and three other doctors were officially reprimanded for having provided inadequate medical services to the first applicant and V.K. was later dismissed at her own request.

On 22 June 2009 the applicants asked the Jurbarkas district prosecutor (hereinafter “the prosecutor”) to open a pre-trial investigation into the medical negligence at Jurbarkas Hospital which had led to their newborn daughter’s death. The pre-trial investigation was opened on the same day and carried out by the Jurbarkas police. In July and August 2009 the applicants were interviewed and granted victim status in the investigation.

On 7 August 2009 a court-appointed doctor delivered a specialist opinion (specialisto išvada) that the applicants’ daughter’s death had resulted from asphyxia during birth and meconium aspiration syndrome.

In August and September 2009 the police interviewed the doctors who had provided medical services to the first applicant, and obtained various documents from Jurbarkas Hospital.

In September 2009 the applicants asked the prosecutor to exhume their daughter’s body so that an autopsy could be performed and the cause of her death could be more precisely determined. However, the prosecutor denied their request, relying on an opinion from medical experts that performing an autopsy more than three months after the baby’s death would not give any results because of the significant post-mortem changes to the body during that time.

In October 2009 the police asked four court-appointed doctors for a specialist opinion on the causes of the baby’s death and the actions of the doctors at Jurbarkas Hospital. The applicants also submitted questions and their questions were forwarded to the specialists. The opinion, delivered on 5 May 2010, stated that no causal link between the doctors’ actions and the death could be established, and that it was not possible to determine whether the death could have been avoided because an autopsy of the body had not been performed. Subsequently, the applicants asked the police to order another opinion from specialists, and they submitted additional questions. On 10 February 2011 three other court-appointed doctors provided answers to the applicants’ questions. Their overall conclusions were the same as those of the previous specialists.

On 4 March 2011 the prosecutor discontinued the pretrial investigation on the grounds that no causal link between the actions of the doctors at Jurbarkas Hospital and the baby’s death had been established. On 24 March 2011 a senior prosecutor upheld that decision, but on 2 May 2011 the Jurbarkas District Court upheld a complaint submitted by the applicants and reopened the pre-trial investigation. The court found that the two specialist opinions (see paragraph 17 above) had not answered some of the questions submitted because certain medical data had not been made available. It also found that the investigation had not established why an autopsy had not been performed (see paragraph 8 above). Therefore, the court ordered the prosecutor to ask additional questions of some of the witnesses and order a comprehensive forensic examination.

On 2 June 2011 the prosecutor asked the court to order a forensic examination of the causes of the baby’s death and the causal link between the doctors’ actions and the death. The applicants submitted a list of additional questions to be forwarded to the forensic expert. On 27 June 2011 the Jurbarkas District Court ordered the examination, but that order included only the prosecutor’s questions and did not provide any reasons as to why the applicants’ questions had not been included. The applicants appealed against it, but on 14 October 2011 the Kaunas Regional Court dismissed their appeal on the grounds that deciding which questions to forward to the expert was the lower court’s prerogative.

On 25 October 2011 the applicants again submitted their questions to the prosecutor and asked for an additional forensic examination. On 5 December 2011 the Jurbarkas District Court ordered an additional forensic examination, and that order included the applicants’ questions. However, the court’s order was only forwarded to the forensic expert on 5 February 2013.

On 29 January 2013 a court-appointed forensic expert delivered the answers to the prosecutor’s questions (see paragraph 19 above). The expert found that the cause of the baby’s death had been determined correctly, the medical services provided to the first applicant had been adequate, and there was no causal link between the doctors’ actions and the death.

On 13 February 2013 the applicants submitted a complaint to the Prosecutor General, stating that the pre-trial investigation was being conducted inefficiently and with undue delays. They complained, in particular, that the court’s decision of 5 December 2011 to order an additional forensic examination (see paragraph 20 above) had not been forwarded to the expert until 5 February 2013, one year and two months after it had been issued. The Prosecutor General’s Office conducted an official inquiry, which on 18 June 2013 concluded that Jurbarkas prosecutors had committed disciplinary violations, and that the pre-trial investigation had not been properly conducted and supervised. The inquiry found that the Jurbarkas district prosecutor’s office had been reorganised in 2012, which was the likely reason for the above-mentioned shortcomings. No individuals were penalised.

On 25 June 2013 a court-appointed forensic expert delivered the answers to the applicants’ questions (see paragraph 20 above). Among other things, the expert found that some of the doctors’ actions had not been in line with the relevant requirements, but there was no direct causal link between their actions and the applicants’ daughter’s death.

On 5 July 2013 the prosecutor discontinued the investigation on the grounds that no causal link between the actions of the doctors at Jurbarkas Hospital and the applicants’ daughter’s death had been established (see paragraphs 17, 21 and 23 above). The applicants appealed against that decision, and on 4 November 2013 a senior prosecutor reopened the pretrial investigation and assigned it to a different police department. The senior prosecutor considered that, following the decision to discontinue the investigation, new relevant circumstances had emerged, although he did not specify what those circumstances were.

On 28 February 2014 V.K., the gynaecologist, was served with a notice that, under Article 229 of the Criminal Code, she was suspected of having failed to perform her official duties (see paragraph 37 below). On 8 April 2014 the case was referred to the Jurbarkas District Court for examination on the merits.

On 28 April 2014 the Jurbarkas District Court held an oral hearing. V.K. was not present and her lawyer informed the court that she had been admitted to hospital, although no medical certificate was submitted. The court adjourned the case until 12 May 2014.

On 12 May 2014 V.K. was again not present, and the court received a medical certificate confirming her hospitalisation until 14 May 2014. The court decided to adjourn the case and proposed three alternative dates: 13 May, 16 May and 19 May 2014. V.K.’s lawyer stated that V.K. would not be well enough by 13 May, and that on the later dates he would be unable to represent her. The court adjourned the case until 25 June 2014.

On 23 June 2014 the applicants applied to the court to reclassify the charges against V.K. as negligent homicide in violation of special conduct security rules under Article 132 § 3 of the Criminal Code (see paragraph 38 below). The court adjourned the case until 14 July 2014 in order to give the accused enough time to acquaint herself with the case file.

On 14 July 2014 the Jurbarkas District Court terminated the case on the basis that it was time-barred. It held that V.K. had been charged with a crime of negligence, and the five-year statutory limitation period had ended on 21 May 2014 (see paragraphs 8 above and 39 below). The court also dismissed the application to reclassify the charges and noted that, in any event, reclassification would not alter the statutory limitation period.

The applicants appealed against that judgment. They submitted that, in line with the Criminal Code, the statutory limitation period must have been suspended while the examination of the case had been adjourned owing to V.K.’s illness (see paragraph 40 below).

On 6 November 2014 the Kaunas Regional Court dismissed the applicants’ appeal and upheld the judgment of the first-instance court. It firstly held that the legal provision cited by the applicants had been adopted after the alleged offence had been committed, and that at the time the alleged offence had been committed domestic law had not provided for suspension of the statutory limitation period during the adjournment of a case (see paragraphs 39-40 below). The court further held that, in any event, the examination of the case had been adjourned for an important reason V.K.’s hospitalisation – so there were no grounds for suspending the statutory limitation period.

On 24 February 2015 the Supreme Court refused to examine a cassation appeal lodged by the applicants, on the grounds that it did not raise any important legal questions.

The Government in their observations informed the Court that on 15 September 2011 the applicants instituted civil proceedings against Jurbarkas Hospital, claiming compensation in respect of pecuniary and nonpecuniary damage caused by inadequate medical services provided to the first applicant and their newborn daughter. They revised their claim in December 2011 and August 2013. The applicants claimed a total of 600,000 Lithuanian litai (LTL – approximately 173,770 euros (EUR)) in respect of non-pecuniary damage and a total of LTL 16,295 (approximately EUR 4,720) in respect of pecuniary damage, consisting of funeral expenses and the second applicant’s lost earnings during his time off work after their daughter’s death.

On 26 November 2014 the Kaunas Regional Court granted the applicants’ claim in part. Relying on the available inquiry reports, as well as the specialist opinions and results of the forensic examinations delivered in the criminal proceedings (see paragraphs 9, 10, 11, 17, 21 and 23 above), the court held that the doctors at Jurbarkas Hospital had breached their duty of care and that their actions “had contributed” (turėjo įtakos) to the death of the applicants’ daughter, so there were grounds for the hospital incurring civil liability. However, the court considered that the doctors’ actions had not been premeditated or grossly negligent, so the applicants’ claim in respect of non-pecuniary damage was granted in part, and they were awarded a total of LTL 80,000 (approximately EUR 23,170) under that head. They were also awarded a total of LTL 6,716 (approximately EUR 1,945) in respect of pecuniary damage, on the basis of the documents in the court’s possession.

The applicants and the hospital appealed against that judgment, but on 17 September 2015 the Court of Appeal upheld the lower court’s findings. The hospital transferred the awarded amount to the applicants’ bank accounts in November and December 2015.


CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1972 and lives in Barcelos.

On 16 November 2010 the High Council of the Judiciary (Conselho Superior da Magistratura, “the HCJ”) instituted disciplinary proceedings against the applicant, who at the time was a judge at the Vila Nova de Famalicão Court of First Instance (disciplinary case no. 333/10).

On 13 March 2011 the judicial inspector F.M.J., who was in charge of the disciplinary proceedings, made his submissions, proposing that the applicant be ordered to pay twenty day-fines for having called another judicial inspector, Judge H.G., a “liar” during a telephone conversation, in breach of her duty of propriety. He also found that she had accused H.G., who was responsible for conducting her performance appraisal, of “inertia and lack of diligence”.

On 29 March 2011 the applicant submitted a request to the HCJ for Judge F.M.J. to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had allegedly insulted.

On an unspecified date the applicant filed her pleadings, submitting that the disciplinary proceedings should be declared null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard.

On 10 April 2011 Judge F.M.J. requested leave from the HCJ to withdraw from the case, saying that he was the applicant’s “sworn enemy” following the accusations she had made against him in the context of her request for him to withdraw.

On an unspecified date the HCJ granted Judge F.M.J.’s request and replaced him with a different inspector, Judge A.V.N.

In his final report dated 23 September 2011 the newly appointed inspector Judge A.V.N. proposed that the applicant be ordered to pay fifteen day-fines for acting in breach of her duty of propriety.

During the proceedings a witness called by the applicant gave evidence. He stated that he had been present during the conversation in question and that the applicant had not made the alleged remarks.

In a decision of 10 January 2012 the HCJ, sitting in plenary, ordered the applicant to pay twenty day-fines, corresponding to twenty days without pay, for acting in breach of her duty of propriety. The HCJ found that it was not appropriate to suspend the fine in the applicant’s case.

The formation of the HCJ which made the order against the applicant comprised fifteen members, of whom six were judges and nine were nonjudicial members.

Four of the non-judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish in the present case, solely on the basis of H.G.’s statement, that the applicant had called him a “liar”, and finding that the remarks referring to his “inertia” and “lack of diligence” came within the scope of the applicant’s freedom of expression.

On an unspecified date the applicant lodged an appeal on points of law with the Judicial Division of the Supreme Court of Justice (Secção de Contencioso do Supremo Tribunal de Justiça), requesting a review of the establishment of the facts. In support of her request the applicant argued that the penalty imposed on her had been disproportionate.

On 21 March 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the HCJ’s decision, finding in particular that

(i) there was no doubt as to how the rules of European law were to be interpreted, with the result that the request to seek a preliminary ruling from the Court of Justice of the European Union should be rejected;

(ii) the Supreme Court of Justice’s task was not to review the facts of the case but simply to verify whether the establishment of the facts had been reasonable;

(iii) the applicant had made use of false testimony, a fact that should count against her in determining the penalty to be imposed;

(iv) the administrative authority handling the case had not been required to assess whether the fine should be suspended since the present case did not involve a custodial sentence;

(v) the accusations of “inertia” and “lack of diligence” which the applicant had made against the judicial inspector H.G. had insulted him, falling short of the minimum ethical standards expected from a judge, and had not come within the scope of freedom of expression.

A second set of disciplinary proceedings (case no. 179/11) was opened against the applicant for use of false testimony in the earlier proceedings.

On 26 May 2011 the judicial inspector, Judge A.D.P.R., filed submissions against the applicant, accusing her of breaching her duty of loyalty. He did not propose any specific penalty.

On 14 July 2011 A.D.P.R. submitted his final report, proposing that the applicant be suspended from her duties for sixty days.

On 19 July 2011 the applicant raised a plea of nullity with the judicial inspector in respect of this report, complaining that the penalty in question had not been proposed directly in his submissions. By order of 31 August 2011 A.D.P.R. rejected the applicant’s plea.

By a decision of 11 October 2011 the HCJ, sitting in plenary, ordered that the applicant be suspended from her duties for 100 days for acting in breach of her duty of honesty. The HCJ considered that the applicant had given false testimony by asking a witness whom she had called in disciplinary case no. 330/10 to make false statements concerning the allegations against her. The HCJ established the facts taking into account the applicant’s mobile phone records, which had been obtained with her consent at the request of the judicial inspector F.M.J.

The HCJ’s decision of 11 October 2011 was taken unanimously, with twelve of its seventeen members present. Of these, seven were judges, including the President of the HCJ, and five were non-judicial members.

On an unspecified date the applicant appealed to the Judicial Division of the Supreme Court of Justice against the decision of 11 October 2011. She disputed the facts, alleging that

(i) she had not been given a hearing on the subject of the proposed disciplinary penalty, as it had not been specified in the submissions;

(ii) the HCJ had altered the legal classification of the acts she had allegedly committed and the circumstances of her involvement in the disciplinary offence;

(iii) the Supreme Court of Justice had omitted to give reasons for its decision not to suspend enforcement of the penalty imposed;

(iv) the penalty imposed had been disproportionate.

In a judgment of 26 June 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the decision of 11 October 2011 on the grounds that

(i) it had limited power to review the facts in so far as the appeal was an application to set aside rather than a full appeal on fact and law, regard being had to Article 3 § 1 of the Administrative Courts Code;

(ii) adequate reference had been made to the proposed penalty in the judicial inspector’s final report, of which the applicant had also been duly informed;

(iii) it had been open to the HCJ to increase the proposed penalty on the grounds that the applicant’s defence related to the facts of the case rather than the proposed penalty;

(iv) with regard to the legal reclassification of the facts, the applicant’s rights had been safeguarded since the HCJ, without altering the facts, had adopted a different legal interpretation of the duties that had been breached;

(v) the HCJ, which was in charge of the disciplinary proceedings, had not been required to assess whether the applicant’s suspension from duty should be suspended, since no possible custodial sentence had been at stake in the proceedings and the HCJ had enjoyed a degree of discretion in that regard;

(vi) the penalty did not appear disproportionate;

(vii) in view of the false testimony given by one witness in an attempt to protect the applicant, the HCJ had been entitled, in imposing a penalty, to take into consideration the fact that the applicant had had recourse to a third party in order to tamper with the evidence in the file.

A third set of disciplinary proceedings was instituted against the applicant (case no. 269/11) for allegedly asking the judicial inspector, Judge F.M.J., in the course of a private conversation, not to take disciplinary action against the witness who had given evidence on her behalf in the first set of disciplinary proceedings.

On 21 December 2011 the judicial inspector, Judge A.D.P.R, submitted his final report, proposing that the applicant be dismissed from her post for acting in breach of her duty of honesty.

In her pleadings the applicant admitted having had a private conversation with the judicial inspector, but denied having made such a request to him.

In a decision of 10 April 2012 the HCJ, sitting in plenary, ordered that the applicant be suspended from duty for 180 days for acting in breach of her duties of loyalty and propriety.

The decision of 10 April 2012 was taken with fourteen of the seventeen members of the HCJ present. Of these, eight, including the President, were judges and six were non-judicial members. One of the judges issued a dissenting opinion to the effect that the facts as established, given their seriousness, warranted a penalty of early retirement or dismissal under section 95 of the Status of Judges Act (see paragraph 38 below).

On an unspecified date the applicant appealed against that decision to the Judicial Division of the Supreme Court of Justice, requesting that a public hearing be held so that she could call a witness and present some documents. She complained of the legal reclassification of the facts, the fact that no reasons had been given for the refusal to suspend the penalty, and the disproportionate nature of her suspension from duty.

In a judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the judgment of 10 April 2012, finding

(i) that the applicant’s request for a public hearing should be refused on the ground that it was not the task of the Judicial Division to review the establishment of the facts. Instead, its task was confined by law to verifying that the HCJ had complied with the principles and rules governing the examination of evidence, and in particular that its decision regarding the establishment of the facts had been coherent and reasonable;

(ii) that the applicant had produced lengthy pleadings, making it unnecessary to hear legal arguments in oral proceedings;

(iii) that the request for evidence to be taken from the witness had been aimed at establishing the content of the draft decision in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision;

(iv) that the documents submitted by the applicant had exceeded the scope of the disciplinary proceedings;

(v) that the HCJ had considerable discretion regarding issues relating to the law on the determination of the disciplinary offence, which was defined in broad terms in the Status of Judges Act, and that the Supreme Court of Justice could alter that legal classification only in the event of a manifest or gross error concerning the seriousness in disciplinary terms of the applicant’s conduct;

(vi) that the Supreme Court of Justice could likewise not review the penalty imposed, but could only determine whether it had been appropriate to the offence and proportionate to it;

(vii) that the Supreme Court of Justice was not required to rule on the refusal to suspend the disciplinary penalty imposed, as the proceedings did not fall within the sphere of criminal law and no custodial sentence had been applied.

In its judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice found as follows:

“Whether or not a public hearing should be held at an individual’s request in connection with a special administrative action to set aside an administrative act depends on the extent of the Supreme Court of Justice’s powers of review as regards the establishment of the facts. It is clear that a hearing devoted to the production of evidence and discussion of the facts would be useful and meaningful only if the Supreme Court had unlimited jurisdiction to review all the facts established by the impugned decision. If that were the case the Supreme Court of Justice would form its own opinion regarding the evidence and would examine new evidence, going well beyond a review of lawfulness.

However, as is clear from the uniform case-law of the Judicial Division, this option is not available in the light of the Status of Judges Act.”

On 30 September 2014 the High Council of the Judiciary, sitting in plenary, after grouping together the penalties imposed on the applicant (cúmulo jurídico das penas disciplinares aplicadas) in the three sets of disciplinary proceedings referred to above, unanimously imposed a single penalty of 240 days’ suspension from duty.

The decision of 30 September 2014 was final and was taken with twelve of the seventeen members of the HCJ present. Of these, seven, including the President of the HCJ, were judges and five were non-judicial members. The disciplinary penalty of 240 days’ suspension from duty imposed on the applicant was enforced by the national authorities.


CASE OF DUBSKÁ AND KREJZOVÁ v. THE CZECH REPUBLIC

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The first applicant, Ms Šárka Dubská, was born in 1985 and lives in Jilemnice. The second applicant, Ms Alexandra Krejzová, was born in 1980 and lives in Prague.

The first applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not wish. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that she would take the child into her care.

In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth.

On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office (krajský úřad) asking for help in finding a midwife.

On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility that a public health-insurance company might cover costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births.

In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221/2010 and not in a private home.

Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011.

On 1 July 2011 she lodged a constitutional appeal (ústavní stížnost) claiming that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life.

On 28 February 2012 the Constitutional Court (Ústavní soud) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under section 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of the Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached to the decision their separate opinions, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births.

The second applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State.

According to the applicant, before deciding to give birth at home, she had visited several hospitals which had all refused her requests to deliver the baby without any medical intervention that was not strictly required by the situation. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation lasting for two hours.

At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a willing midwife because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help find a solution to her situation.

In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries with the City of Prague (Město Praha) which, acting as a regional office, registered and issued authorisations to health professionals.

On 29 November 2011 the applicant’s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance.

On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births.

On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlabí, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth and before leaving the maternity hospital the remains of the child’s umbilical cord had been cut off despite her wishes to the contrary.

In its bulletin no. 2/2007 of February 2007 the Ministry of Health published a practice guideline which stated:

“Conducting a delivery in the Czech Republic is regarded as a healthcare provision that is provided only in a healthcare institution. Each healthcare institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation.”

The Czech Medical Chamber (Česká lékařská komora) considers a home birth to be a procedure non lege artis because of the dangers associated therewith.

Almost all births in the Czech Republic currently take place in hospital, with only about 0.2% to 0.3% of births happening at home.

In reaction to what has been perceived as an attempt to criminalise midwifery in some central and eastern European countries – in particular in Hungary – the President of the International Confederation of Midwives and the President of the International Federation of Gynecology and Obstetrics issued a joint statement on 6 March 2012 in which they declared: “There is strong evidence that out of hospital birth supported by a registered midwife is safe, and a preferred experience for many mothers. Women should not be denied this choice because of the lack of an adequate regulatory framework that makes it possible for midwives to practice their profession in any place that women choose to give birth.”

On 20 March 2012 the Ministry of Health set up an expert committee on obstetrics with the objective of studying the issue of home births. There were representatives of care recipients, midwives, physicians’ associations, the Ministry of Health, the Government’s Commissioner for Human Rights and public health-insurance companies. The representatives of the physicians’ associations boycotted the meetings, declaring that the current state of affairs was satisfactory and that, in their view, there was no need to change anything. Subsequently, the Minister of Health removed the representatives of care recipients, midwives and the Government’s Commissioner for Human Rights, with the argument that only by changing the committee’s composition in this way would it be possible for it to agree on certain conclusions.

On 18 January 2013 the Governmental Council for Equal Opportunities for Women and Men (Rada vlády pro rovné příležitosti žen a mužů), an advisory body to the Government, recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery. It also recommended the prevention of discrimination against midwives by permitting them to practise their profession in full through their inclusion in the public health-insurance system. The Council also referred to the recommendations of the Committee on the Elimination of Discrimination against Women (see paragraph 56 below), which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women, to support its position that women should have a choice of where to give birth.

In its bulletin no. 8/2013 published on 9 December 2013, which replaced the previous practice guideline of 2007 (see paragraph 22 above), the Ministry of Health described the procedure for providers of healthcare services when discharging newborns into their own social environment. It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than seventy-two hours after birth. The new procedure allows for the discharge of the newborn from the maternity hospital less than seventy-two hours after the birth at the request of the newborn’s legal representative, provided that the latter:

“(a) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn, or a written statement declaring his or her disagreement with the provision of the medical services, or alternatively such agreement or disagreement has been entered in the newborn’s medical documentation ...;

(b) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before seventy-two hours have elapsed since the birth ...;

(c) has been duly informed that – in the interests of the subsequent healthy development of the newborn – the Czech specialist medical associations recommend:

that a clinical examination be conducted within twenty-four hours of the discharge of the newborn ...;

that a blood sample be taken within forty-eight to seventy-two hours following the birth for the purposes of screening for hereditary metabolic malfunctions ...”

In the event that the newborn is hospitalised without the agreement of the legal representative in order to be given medical treatment necessary to save the child’s life or to prevent serious damage to the child’s health, the hospital should proceed in accordance with sections 38 and 40 of the Medical Services Act (Law no. 372/2011). This practice guideline came into force on 1 January 2014.

According to estimated data provided by the World Health Organisation in a 2000 report, the Czech Republic was among the countries with the lowest perinatal mortality rate, which is defined as the number of stillbirths and deaths in the first week of life. The rate for the Czech Republic was 0.4%. In other European countries the figures ranged from 0.5% in Sweden and Italy to 5.8% in Azerbaijan. In most European countries the figures were below 1%. According to the report, perinatal mortality is an important indicator of maternal care and maternal health and nutrition; it also reflects the quality of available obstetric and paediatric care, comparing different countries. The report recommended that, if possible, all foetuses and infants weighing at least 500g at birth, whether alive or dead, should be included in the statistics. The reported data regarding stillbirths were not adjusted to this effect in the study.

According to the European Perinatal Health Report on the health and care of pregnant women and babies in Europe in 2010, issued in 2013 within the framework of the activities of the Euro-Peristat Project, the Czech Republic was amongst the countries with the lowest mortality rate amongst newborns in the first twenty-seven days of their life. The rate was 0.17%. The data for other included countries, mostly European Union (EU) member States, ranged from 0.12% for Iceland to 0.55% for Romania. However, if only statistics relating to babies born after twenty-four weeks of pregnancy were taken into account, the Czech Republic, with a rate of 0.16%, moved closer to the average of 0.2%. The report noted that the wide variation in gestational age-specific neonatal mortality rates at twenty-two to twenty-three weeks suggested that not all births and deaths very early in the neonatal period were systematically included. Consequently, the report considered the data including only babies born after twenty-four weeks of gestation more reliable.

The applicants pointed out that the above sets of data were not easily comparable across countries owing to the different definitions used. The majority of European countries set a weight limit of 500 g for counting live births and stillborn children. In the Czech Republic, however, the practice until April 2012 had been that a birth was registered for statistical purposes only if the child weighed at least 1,000 g.

The Government stated that Czech maternity hospitals offered highquality services during delivery that fully respected the rights and wishes of mothers. For their part, the applicants submitted testimonies from numerous mothers who had given birth in maternity hospitals during recent years and who pointed to practices that were – in their view – unacceptable, including the following: medical intervention during delivery without the consent of the mothers and sometimes against their explicitly expressed will, such as artificial rupture of membranes; episiotomy; intravenous infusion of medication for the mother; performing the Kristeller manoeuvre (pushing with the fist or forearm the top of the uterus coinciding with a contraction and pushing by the mother during the second stage of labour); performing Caesarean section without sufficient medical justification; using techniques and medication to speed up the delivery; separation of mothers from their babies for several hours after delivery, ignoring the mother’s wishes to have immediate contact with the baby after delivery; routinely placing healthy babies in incubators; administering treatment to babies against the express wishes of the mother; and forcing the mother and baby to stay in hospital for seventy-two hours after delivery even when they were both healthy. There had also been complaints of arrogant, intimidating, disrespectful and patronising behaviour on the part of the hospital staff and of a lack of privacy.

It appears that no midwife has been prosecuted in the Czech Republic for attending home births per se. Several of them have been prosecuted for alleged malpractice in connection with a delivery at home, however. The applicants referred to the cases of Ms Š. and Ms K., who are both well-known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries.

On 27 March 2013 the Prague 6 District Court (obvodní soud) found Ms Š. guilty of negligently causing the death of a baby who was stillborn. She was sentenced to two years’ imprisonment, suspended for five years, and prohibited from practising the occupation of midwife for three years. The culpability of Ms Š. was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home. She had thus given flawed advice to the mother-to-be without actually examining her. The conviction was upheld on appeal on 29 May 2013, although the sentence was changed to fifteen months’ imprisonment, suspended for thirty months, and two years’ prohibition on practising as a midwife. An appeal on points of law is pending.

On 21 September 2011 the Prague 3 District Court found Ms K. guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery. The baby died several days later. She was sentenced to two years’ imprisonment, suspended for five years, prohibited from practising as a midwife for five years, and ordered to pay 2,700,000 Czech korunas (CZK) (equivalent to 105,000 euros (EUR)) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter’s death. According to the court, the malpractice on the part of Ms K. consisted in the fact that she had not followed the standard procedures for deliveries as laid down by the Czech Medical Chamber (Česká lékařská komora) and her conduct had thus been “non lege artis”. The criminal complaint was not lodged by the parents but by a hospital.

On 24 July 2013 the Constitutional Court quashed all the judgments in the case against Ms K. on account of a violation of her right to a fair trial. It considered the conclusions of the ordinary courts as to Ms K.’s guilt to have been too subjective and not supported by the evidence beyond any reasonable doubt, thereby violating the principle of the presumption of innocence. It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny. It held that – on the basis of the expert opinion – the courts had applied very strict liability to the conduct of Ms K. in a situation where it had not been clear how she could have prevented the baby’s death. Moreover, it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia. To foresee every possible complication during delivery and be able to react to it immediately, as was required of Ms K., would ultimately lead de facto to an absolute prohibition of home births. In that context the Constitutional Court noted:

“... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital.”