Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1962 and lives in Yerevan.

From 1997 to 1999 the applicant worked as the executive director of the Credit Service Bank (hereafter, the Bank).

On 19 March 2002 the prosecutor decided to institute criminal proceedings under paragraph 2 of Article 182 of the former Criminal Code (hereafter, the former CC) on account of abuse of official capacity by the former management of the Bank through embezzlement of funds entrusted to it in June 2001 by another company. It appears that at the material time the applicant worked as an advisor to the chamber of control of the Armenian parliament.

On 31 March 2003 the applicant was arrested on suspicion of largescale embezzlement, abuse of official capacity and official falsification under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC.

On 1 April 2003 the applicant was formally charged under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC with embezzlement through abuse of his official capacity and official falsification through preparation and use of false accounting documents during his office as the executive director of the Bank from 1997 to 1999, causing damage to the Bank and its clients. It appears that ten other persons were also charged with involvement in these or related crimes.

On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s application to have the applicant placed in pre-trial detention for a period of two months. The applicant alleged that during the hearing his lawyer had requested the court not to impose detention as a preventive measure, due to the applicant’s poor health. The applicant’s detention was subsequently extended by the District Court on two occasions until 31 August 2003.

On 2 April 2003 a group of nine members of the Armenian Parliament applied to the Prosecutor General requesting that the applicant’s detention be replaced by another preventive measure in view of, inter alia, the applicant’s poor health.

On 10 April 2003 the General Prosecutor’s Office addressed a letter to the Head of Staff of the Parliament, stating that the applicant’s release was not possible since he had committed a grave crime and had refused to return embezzled funds.

On 1 August 2003 a new Criminal Code (hereafter, the new CC) entered into force in Armenia.

On 11 August 2003 the charges against the applicant were adapted to the new CC and he was formally charged under Article 179 § 3 (1), Article 214 § 1 and Article 325 § 2 of the new CC.

On 14 November 2005 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 179 § 3 (1) and Article 325 § 1 of the new CC. In particular, the applicant was found to have executed a number of financial operations involving bonds and fixed assets, the proceeds of which he embezzled. The District Court sentenced the applicant to six years’ imprisonment without confiscation of property under Article 179 § 3 (1) and terminated the proceedings under Article 325 § 1 by applying a statute of limitations with reference to Article 35 § 1 (6) of the Code of Criminal Procedure (CCP).

On 29 November 2005 the applicant lodged an appeal.

On 10 April 2006 the Criminal and Military Court of Appeal decided to uphold the judgment of the District Court. The Court of Appeal found, inter alia, that:

“The first instance court, considering [the applicant’s] ... guilt in preparing and using false documents to be substantiated, rightly terminated the proceedings under Article 325 § 1 of [the CC] on the ground envisaged by Article 35 [§ 1] (6) of [the CCP].”

On 20 April 2006 the applicant lodged an appeal on points of law. In his appeal he argued, inter alia, that Article 325 of the new CC should not have been applied to his case because documents of commercial organisations could not be considered “official”. He should therefore have been penalised under Article 214 of the new CC instead.

On 1 June 2006 the Court of Cassation dismissed the applicant’s appeal. The Court of Cassation found, inter alia, that:

“Documents to which public authorities give legal significance are considered official. Official documents may be issued both by public authorities, their officials and bodies of local self-government, and by legal entities, commercial and other types of organisations. Such documents as credit or other financial documents drawn up by commercial banks can also be considered as [official documents], since they also have legal significance...”

On 3 April 2003 the applicant was transferred to Nubarashen detention facility.

On 4 April 2003 the applicant was examined at the facility’s medical unit and diagnosed as having a throat tumour. He also complained of a sore throat, loss of voice and chest pain.

On 28 April 2003 the applicant was examined by an external doctor who recommended that the applicant be examined by an otolaryngology specialist.

On 29 April 2003 the applicant was examined by an otolaryngology specialist who confirmed the diagnosis of a throat tumour. In order to determine the nature of the tumour, the doctor recommended: (a) a biopsy to be carried out; (b) computer tomography of the throat; and (c) further examination and treatment.

On 8 May 2003 the applicant, apparently in reaction to the medication that he was taking, showed symptoms of anaphylactic shock such as urticaria, coldness of extremities, severe shivering and a drop in blood pressure to 20/40 followed by loss of consciousness. First aid was provided by the detention facility’s medical unit and an ambulance was called. It appears that thereafter the applicant continued to experience symptoms of allergy such as face and body swelling, itching and blood pressure fluctuations.

On 20 May 2003 an external allergy specialist was called who diagnosed the applicant as suffering from Quincke’s oedema, pollinosis and an atypical form of bronchial asthma.

On 13 June 2003 the applicant’s condition drastically deteriorated. He experienced laboured breathing, facial swelling, drop in blood pressure to 50/20, swelling of extremities and Quincke’s oedema. First aid was provided.

On 10 July 2003 the applicant was examined by a psychiatrist. The applicant complained of low spirits, irritability, insomnia and tachycardia, as well as recurring headaches, chest pains and high blood pressure due to frequent emotional stress. From that day on the applicant remained under the psychiatrist’s regular supervision, during which it was found that the applicant was suffering from depression, fits of anger, irritability, insomnia, headaches, chest pains, tension and anxiety.

On 5 November 2003 the applicant was examined by prison doctor N., who noted his complaints of haemoptysis, hoarseness and a weakened swallowing reflex. The applicant was also observed to suffer increased pallor and significant weight loss. It appears that these symptoms continued from that day on.

On 10 January 2004 the applicant was examined by prison doctor N., who noted his complaints of skin rash and itching and shortness of breath, which were apparently caused by emotional stress. Medication was prescribed.

On 20 March 2004 the applicant complained to prison doctor N. of asthenia, hoarseness and a cough which turned into asphyxia.

The applicant alleges that on or around 27 April 2004 he was informed that he was going to be transferred from the detention facility’s medical unit to an ordinary cell. The applicant refused to be transferred, referring to his poor health, so he was moved to a punishment cell for three days. On the first night in the punishment cell he was not given blankets or bed linen. On the second night the applicant’s health deteriorated and he experienced laboured breathing, asphyxia attacks and high blood pressure. The applicant asked the guard to call the feldsher (doctor’s assistant). When the feldsher arrived, he was unable to enter the punishment cell because it was locked and the guard did not have the key. It took half an hour to find the key after the feldsher protested. On the morning of the third day the applicant was transferred back to the medical unit.

On 20 May 2004 the applicant’s health deteriorated. According to his medical card, his allergy worsened at night and he fell into a collaptoid state. The applicant complained of a cough, itchy skin and nose, shortness of breath, asphyxia attacks, and swelling of the face and lips.

On 17 July 2004 a cardiologist was invited to examine the applicant, who complained of severe chest pain, headache and shortness of breath. His blood pressure rose to 180/100.

It appears that from August 2004 to January 2005 the applicant continued to show all of the above symptoms at regular medical checkups.

On 14 January and 23 February 2005 an ambulance was called as the applicant showed symptoms of stenocardia and hypertension. His blood pressure rose to 160/100.

On 27 January 2005 the applicant was examined by a specialist and was advised, inter alia, to undergo an endoscopic examination of the throat and biopsy of the tumour.

By a letter of 4 February 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had made numerous complaints about his health, including asthenia, loss of weight, voice hoarsening and haemoptysis. After an examination by specialists of the Ministry of Health, the applicant was diagnosed as having a throat tumour. The applicant therefore needed to be examined in a specialised clinic of the Ministry of Health.

On an unspecified date in April 2005 the applicant was examined by an external doctor who noted that, in order to reach a final diagnosis concerning the applicant’s throat tumour, he needed to undergo computer tomography or a magnetic resonance imaging (MRI) scan.

On 8 April 2005 prison doctor N. informed the District Court that the applicant was unable to participate in the hearing to take place on that date because he was suffering from Quincke’s oedema.

The Government alleged, which the applicant disputed, that in April 2005 the doctor suggested that the applicant be transferred to a specialised establishment for treatment, but the applicant refused.

On an unspecified date in May 2005 the applicant experienced a rash, skin and nose itch, cough and laboured breathing followed by asphyxia and loss of consciousness. His face and lips were swollen. An ambulance was called and first aid was provided. The diagnosis of Quincke’s oedema, pollinosis and an atypical form of bronchial asthma was confirmed.

On 16 May 2005 the applicant was provided with first aid after showing the following symptoms: severe headaches, dizziness, chest pain, shortness of breath and a disruption in coordination of movements. He further experienced persistent dizziness, facial swelling and excessive sweating. The applicant was diagnosed with hypertensive crisis and an acute disturbance of cerebral blood circulation of the vertebrobasilar area.

By a letter of 9 June 2005 the chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had recently been showing symptoms of hoarseness, haemoptysis and asthenia, and that it was impossible to conduct a proper examination at the detention facility’s medical unit. They requested the court to allow the applicant’s transfer to the Armenia Medical Centre in order to carry out a specialised examination, to clarify the diagnosis and to decide on further treatment. The District Court granted this permission.

On 10 June 2005 the applicant was examined by an otolaryngologist at the Armenia Medical Centre. A tumour on the vocal cords was diagnosed and he was advised to undergo surgical treatment and a biopsy of the tumour was recommended.

By a letter of 20 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that the applicant had been admitted for in-patient treatment at the detention facility’s medical unit with the following complaints: laboured breathing, asphyxia, haemoptysis, voice hoarsening, headache, dizziness and frequent loss of consciousness. Following a number of examinations the applicant was diagnosed as suffering from a throat tumour of unknown nature, allergy of unknown aetiology, Quincke’s oedema and fits of anaphylactic shock. According to the conclusions reached by the specialists of the Ministry of Health, the applicant needed to undergo specialised instrumental and histological examinations and surgery. Recently the fits of anaphylactic shock and loss of consciousness had become more frequent. The applicant was under permanent medical surveillance and was receiving symptomatic treatment.

By a letter of 22 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that it was not possible to carry out the required examinations and surgery for the applicant at the detention facility’s medical unit.

On 23 December 2005 the applicant’s lawyer filed an application with the Court of Appeal, requesting that the applicant be released for health reasons. Copies of the letters of 20 and 22 December 2005 were attached to this application. The applicant alleges that the Court of Appeal included this application in the case file without ruling on it.

At the hearing of 26 January 2006 the applicant’s lawyer filed another application similar to that of 23 December 2005. She further requested the court to summon the applicant’s prison doctor. A copy of the applicant’s medical record was attached to this application. It appears that the Court of Appeal decided to postpone the examination of this application in order to establish “certain essential circumstances”. The court further requested the applicant’s lawyer to submit a certified copy of the applicant’s medical record.

At the hearing of 27 January 2006 the applicant announced that he was unable to testify because of his inability to speak and that he would testify in writing. He requested the court to release him because of his poor health. It appears that the Court of Appeal again decided to postpone the examination of this request in order to establish certain essential circumstances.

At the hearing of 31 January 2006 prison doctor N. was examined in court. The doctor, at the outset, presented details of the diseases suffered by the applicant and the dynamics of their development. He further submitted that all possible treatment had been prescribed but, despite occasional improvements, the applicant’s condition continued to deteriorate. The antiallergy treatment had yielded no results. The applicant had been examined on numerous occasions by otolaryngology and oncology specialists who had unanimously concluded that the applicant needed examination and treatment in a specialised clinic. There was no possibility to carry out such treatment at the detention facility’s medical unit, so the applicant received symptomatic treatment. Shortness of breath and asphyxia attacks had become more frequent in December 2005 and January 2006 and were accompanied by coughing and haemoptysis leading to loss of consciousness. The applicant had been resuscitated on several occasions but the growth of the tumour could result in respiratory obstruction causing the applicant’s death, which could occur in a matter of 3 to 4 minutes. Doctor N. recommended the applicant’s immediate transfer to a specialised clinic in order to eliminate the risk of death. He further stated that not only Nubarashen detention facility’s medical unit but the entire penitentiary system lacked the necessary specialists and equipment to carry out a fullscale examination and treatment of the applicant.

At the same hearing the applicant’s lawyer filed an application requesting the applicant’s release, which was dismissed by the Court of Appeal. She further requested the court to examine the previously filed applications concerning the applicant’s state of health. It appears that the Court of Appeal again decided to postpone the examination of these applications, stating that the information at its disposal was not sufficient to resolve the question of detention.

It appears that during that period the applicant refused to be transferred to a specialised clinic. He alleged that his refusal was motivated by the fact that no assurances had been given to him that the required surgery would actually be performed, since another transfer to an outside clinic without such surgery would have been useless and would only have aggravated his condition.

On 6 February 2006 the applicant was transferred to the otolaryngology department of the Armenia Medical Centre because of a drastic deterioration in his health. The applicant underwent another examination and was diagnosed with chronic laryngotracheitis and malignisation of the tumour. An urgent in-patient examination and surgical treatment in a specialised clinic were recommended.

At the hearing of 8 February 2006 the applicant was unable to finish his testimony because of his inability to speak and the hearing was adjourned.

By a letter of 9 February 2006 the chief of Nubarashen detention facility informed the head of the Criminal Executive Department of the Ministry of Justice that, based on the results of the relevant medical examinations, the conclusions of specialists and the progressive nature of the applicant’s disease, he needed to undergo urgent surgery in a specialised clinic, as the tumour was growing and could cause respiratory obstruction.

At the hearing of 15 February 2006 the applicant’s lawyer filed another application with the Court of Appeal seeking to have the applicant released because of his poor health. A certified copy of the applicant’s medical record and a copy of the results of the examination of 6 February 2006 were attached to this application. The Court of Appeal dismissed this application on the ground that the examination of the case was in its final stage and there were no relevant documents, such as an expert opinion, justifying the need to carry out the applicant’s urgent examination and treatment in a specialised clinic.

By a letter of 27 February 2006 the chief of Nubarashen detention facility and the head of its medical unit informed the Court of Appeal that the applicant had been examined by specialists at the Armenia Medical Centre and it had been established that his throat tumour had grown and that he was in need of urgent surgery. They requested the applicant’s transfer to the Medical Centre for surgery. The Court of Appeal granted this request.

On 2 March 2006 the head of the detention facility’s medical unit informed the Court of Appeal that the applicant was unable to participate in the hearing to take place on that date because he was suffering from fits of asphyxia.

On 4 March 2006 the applicant was transferred to the Armenia Medical Centre. He was diagnosed as having “a vocal cord tumour (C-R?), first degree stenosis and, as accompanying pathologies, nasal septum deviation and chronic hypertrophic rhinitis”. The applicant was advised to undergo two operations. The first operation was scheduled for 14 March 2006 but was postponed upon the applicant’s request, as he wished to participate in a court hearing in his case.

On 18 March 2006 the applicant was examined by a psychiatrist who diagnosed him as suffering from reactive depression accompanied by a phobic syndrome. It appears that the applicant showed symptoms of suicidal thoughts. Administration of tranquillisers was recommended.

On 23 March 2006 the applicant underwent his first operation. Partial excision of the mucous membrane of the nasal septum and a doublesided inferior and right-side medial conchotomy were performed. The doctors noted that the applicant’s mental condition prevented the second operation being carried out and advised that it be performed after the applicant’s general condition had stabilised.

On 3 April 2006 the applicant was again examined by a psychiatrist, who diagnosed him as suffering from a severe form of depression without mental symptoms. The psychiatrist recommended that treatment be continued and the applicant be kept under strict supervision to prevent possible suicide attempts.

On 5 April 2006 the applicant’s lawyer filed an application with the Court of Appeal requesting the applicant’s release on, inter alia, health grounds. The applicant alleges that the Court of Appeal postponed the examination of this request without giving any reasons.

On 25 April 2006 the applicant underwent his second operation which involved the removal of polyps on the vocal cords. The operation went smoothly but complications, including inflammation of the vocal cords, adhesions and haemorrhage, occurred in the post-operative period.

On 26 May 2006 the applicant’s condition had improved, and he was discharged from the Armenia Medical Centre and transferred back to the detention facility’s medical unit.

On 23 June 2006 the applicant was released on parole.


CASE OF KUNIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

By a judgment of the Zenica Cantonal Court of 5 February 2007, three judgments of the Tešanj Municipal Court of 30 July 2008, 31 March 2008 and 15 May 2009 and a judgment of the Zenica Municipal Court of 26 April 2007, which became final on 5 February 2007, 18 August 2008, 23 March 2009, 25 June 2010 and 27 March 2008, respectively, the Zenica-Doboj Canton (Zeničko-dobojski kanton; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants different sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs.

The writs of execution issued on 2 March 2007, 5 April 2010, 2 March 2010, 14 December 2010 and 24 June 2008, respectively, by the Zenica Municipal Court and the Tešanj Municipal Court, were transferred to the competent bank and were listed among the charges on the debtor’s account.

On several occasions thereafter the bank informed the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent.

On 12 July 2008 the first applicant, Mr Suljo Kunić, complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).

On 12 October 2011 (decision no. AP 2110/08) the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in Mr Suljo Kunić’s and ten other cases on account of the prolonged non-enforcement of the final judgments in the appellants’ favour. It ordered the government of the Zenica-Doboj Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time.

The relevant part of the decision reads as follows:

“39. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account.

The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1’ ...

The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina ... The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ... In 2010 and 2011 the amount of funds for that purpose in the budget of the Zenica-Doboj Canton was 100,000 convertible marks.

The court finds that the crux of the problem in the present case is that the Zenica-Doboj Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the Zenica-Doboj Canton would ensure the respect of its obligations from Article 6 §1 and Article 1 of Protocol No. 1 to the Convention.

The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims...

In order to comply with its positive obligation, the government of the Zenica-Doboj Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

... The current situation does not give any guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enforced within a reasonable time.”

On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 and eight other decisions on the same matter in cases concerning various individual appellants (see paragraph 15 below) had not been enforced.

The final judgments in the applicants’ favour have not yet been enforced.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1977 and prior to his arrest his permanent address had been in Svitlovodsk, Kirovograd Region.

On an unspecified date prior to his arrest the applicant had been diagnosed with hepatitis C (“HCV”).

On 26 June 2014 the applicant was arrested on suspicion of committing a drug-related offence and on 7 July 2014 placed in Kirovograd Remand Prison no. 14 (“the prison”).

On 27 June 2014 the Svitlovodsk Court remanded the applicant in custody. The applicant appealed, arguing in particular that he was suffering from HCV. On 14 July 2014 the Kirovograd Regional Court of Appeal upheld the detention order.

The applicant’s pre-trial detention was subsequently extended until his conviction.

On 24 March 2015 the Svitlovodsk Court convicted the applicant of the unlawful purchase, possession and transportation of drugs and sentenced him to three years’ imprisonment.

On 13 October 2015 the Kirovograd Regional Court of Appeal amended the applicant’s sentence and released him on probation.

On 8 July 2014 the prison governor sent a letter to the Svitlovodsk Central Hospital. According to the letter, the applicant had informed the prison authorities that he had been diagnosed with HCV in 2013 in Svitlovodsk but that he had not provided any more detailed information in this respect. The governor asked the hospital to confirm whether the applicant had indeed been examined for HCV and if so, what the results of the examination had been. The prison received no reply.

On 6 August, 27 November and 3 December 2014 and on 9 January and 4 June 2015 the applicant consulted the prison doctor, complaining in particular of discomfort in the hypochondrium (below the lower ribs), on the right-hand side. According to the applicant’s medical record, the applicant claimed to be suffering from HCV, but the doctor noted that there were no documents to support this diagnosis. The applicant asked for a medical certificate, to be provided to the courts examining his criminal case. According to three separate reports signed by three prison employees, during three of those consultations – those of 6 August and 27 November 2014 and 4 June 2015 – the applicant was offered an opportunity to undergo a “blood test” (it is unspecified of which type) to verify whether he had HCV but refused without giving any reasons. The applicant denied the latter allegation.

On 13 August 2014 the prison’s medical unit issued a certificate stating that the applicant, according to his own statement, was suffering from HCV and that during his stay in the prison he had consulted the prison doctor on several occasions in this connection and received treatment for his symptoms.

On 3 December 2014 the prison governor informed the applicant’s lawyer that on 6 August and 27 November 2014 the applicant had consulted the prison doctor concerning his HCV and had been prescribed treatment for his symptoms. The governor went on to state that it was planned that a consultation would be arranged with an infectious diseases specialist who would be able to order the necessary examinations and prescribe treatment for the applicant.

On 3 March 2015 a blood test, apparently an HCV antibody test, came up positive. On the same day an ultrasound examination showed that the applicant’s liver had undergone diffuse changes.

On 8 June 2015 the head of the prison’s medical unit issued a certificate which stated that the applicant’s health had worsened in the previous two months and that he was suffering from fatigue, nausea, and weight loss. The certificate also stated that in order to ascertain the state of his health the applicant needed to be examined by an infectious diseases specialist of the Kirovograd Central City Hospital (“the City Hospital”).

On 19 June 2015 the acting President of the Section, upon the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that they should present the applicant urgently for medical examination by a specialised doctor of the City Hospital; secure for the applicant immediately, by appropriate means, treatment to his state of health; and inform the Court by 17 July 2015 about the applicant’s state of health and the measures undertaken.

From 6 until 9 July 2015 the applicant underwent an in-patient examination at the City Hospital in the course of which a number of blood tests and an ultrasound examination were conducted and the applicant was examined by a number of specialists.

On 9 July 2015 the hospital issued an opinion according to which the applicant was suffering from сhronic HCV “in an inactive phase” and liver impairment. He was prescribed hepatoprotectors (Carsil and Ursohol). It was recommended that he undergo additional blood tests, namely the polymerase chain reaction (PCR) test for HCV, and, within ten days, another general blood test and a biochemical blood test. The applicant was to remain under the supervision of a gastroenterologist and an infectious diseases specialist.

On 14 July 2015 the Government informed the Court about the applicant’s examination at the City Hospital.

On 19 August 2015 the applicant complained to the Court that the recommendations of the City Hospital doctors were not being followed. On 26 August 2015 the Court invited the Government to comment on those allegations.

On 1 September 2015 the applicant started to be treated with hepatoprotector medicine. On 3 September 2015 he underwent general and biochemical blood tests which, according to the Government, revealed no abnormality. On 15 September 2015 he was consulted by a gastroenterologist and an infectious diseases specialist, who confirmed the diagnosis of inactive chronic hepatitis.

On 15 September 2015 the Government informed the Court of the measures taken from 1 to 15 September 2015.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicants, a married couple, were born in 1952 and 1954 respectively and live in Piliscsaba.

On 7 December 2001 the first applicant was deliberately shot by one of his colleagues and suffered serious injuries making him disabled.

On an unspecified date in 2004, the first applicant and his family (including his wife, the second applicant) brought an action in damages against the first applicant’s employer. On 14 June 2005 the president of the Pest County Labour Court ordered the priority treatment of the case.

On 19 January 2006 the Pest County Labour Court found for the applicants in an interim judgment establishing the well-foundedness of the legal basis of the claim. The first instance interim judgment was upheld by the Pest County Court on 5 January 2007.

The exact compensation amount to be paid by the employer was decided by a judgment of the Pest County Labour Court on 9 November 2010. The decision was upheld and partly amended by the final judgment of the Pest County Court adopted on 4 May 2011.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant was born in 1972. He is currently serving a prison sentence in Świnoujście Remand Centre.

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

In 2005 the applicant suffered an acoustic shock. He was subsequently diagnosed as having a severe hearing impairment. An audiometric test carried out on 20 July 2005 confirmed 10 decibels hearing loss (dB HL) in his left ear and 80 dB HL in his right ear. Medical treatment he underwent in the Szczecin Military Hospital from 10 to 19 August 2005 did not result in an improvement of his condition. He was released from the hospital and further outpatient treatment was recommended.

Subsequent laryngological and surgical treatment and further consultations with a psychiatrist, neurologist and optician resulted in successive decisions to postpone the start of a seven-year prison sentence imposed on him by the Świnoujście District Court on 15 May 2003. On 15 September 2005 the court postponed the start of his sentence until 15 March 2006 on health grounds (ref. no. VI Ko 199/05). Having regard to the applicant’s medical records, it was of the view that serving the sentence would have been too harsh on him. On 25 May 2006 the court extended the period of postponement (ref. no. VI K 94/06), referring to the applicant’s need to have further treatment.

He started his sentence on 10 July 2006.

The applicant was subsequently deprived of his liberty in a number of detention facilities, namely:

- Świnoujście Remand Centre (from 10 July to 24 October 2006, 27 February to 21 March 2007, 18 July to 17 August 2007, 9 to 19 February 2010 and 18 November 2010 to 10 June 2011);

- Szczecin Remand Centre (from 24 October to 6 December 2006 and 17 January to 1 February 2007);

- Bydgoszcz Remand Centre (from 6 to 28 December 2006);

- Koronowo Prison (from 28 December 2006 to 17 January 2007);

- Goleniów Prison (from 1 to 27 February 2007, 27 March to 18 July 2007, 17 August to 4 September 2008, 3 November 2008 to 5 February 2009 and 19 February to 18 November 2010);

- Katowice Remand Centre (from 5 to 17 September 2008);

- Nowy Wiśnicz Prison (from 17 September 2008 to 28 October 2008);

- Łódź Remand Centre (from 29 October to 3 November 2008);

- Nowogard Prison (from 10 June to 10 November 2011).

The applicant was examined by doctors of various prisons – twice in 2006, on four occasions in 2007 and on nine occasions in 2008. The courts twice postponed the date on which he was to start serving his prison sentence.

On 31 August 2005 the applicant was provided with a medical prescription (zlecenie lekarskie) for a hearing aid for his right ear. Subsequently, on unspecified dates the competent court twice postponed the start of his prison sentence (see paragraph 7 above). While at liberty, he did not use a hearing aid and did not take any steps to obtain one.

On 22 June 2006 the applicant underwent another audiometric test, which gave similar results to the test on 20 July 2005 (see paragraph 6 above). At that time he had 75 dB hearing loss in his right ear. A subsequent medical certificate drawn up on 13 December 2006 demonstrated that his hearing had become worse, increasing to 80 dB hearing loss in his right ear and 30 dB hearing loss in his left ear.

On 31 March 2007 a laryngologist examined the applicant. He was informed that under Article 115 § 2 of the Code of Execution of Criminal Sentences, he could obtain a hearing aid at his own expense. Subsequently, he took steps to obtain a hearing aid without the help of the prison service. It appears that to that end he contacted the Institute of Physiology and Hearing Pathology (Instytut Fizjologii i Patologii Słuchu) in Warsaw and had a medical appointment scheduled for 13 August 2007; however, he could not attend it as he was imprisoned at the time.

On 30 May 2007 he was registered for social insurance purposes as a person suffering from a moderate disability (umiarkowany stopień niepelnosprawności).

On 5 July 2007 the applicant requested the Penal Division of the Szczecin Regional Court (hereinafter “the penal court”) to grant him shortterm prison leave to attend the medical appointment scheduled for 13 August 2007 (see paragraph 13 above) and further medical check-ups at liberty. He did not make a formal request to attend the relevant hearing. He requested that a lawyer be appointed under the legal aid scheme to represent him before the court. He submitted that he did not feel mentally fit to argue his own case and that he had been undergoing psychiatric treatment for years.

On an unspecified date in August 2007 the court dismissed his request for legal aid.

On 16 November 2007 the Szczecin Regional Court informed the applicant that his application for prison leave would be examined at a hearing scheduled for 20 November 2007.

The hearing was held as planned, without him being present. The court dismissed his request for leave. It considered, with reference to the medical certificate, that his hearing impairment could be treated in prison, that his detention had not put his life directly at risk within the meaning of Article 150 § 2 of the Code of Execution of Criminal Sentences, and that the legal requirements for granting him leave had not been met.

The applicant appealed, submitting that he had been deprived of the right to argue his case before the court either in person or through a legal aid lawyer. He requested to be present at the appeal hearing.

On 17 January 2008 he was informed that an appeal hearing had been scheduled for 31 January 2008. On that date the Szczecin Court of Appeal dismissed his appeal. He was not present at the hearing.

In its decision, the penal court referred to a medical certificate issued by a prison doctor on 7 August 2007. The court was of the view that, in the light of that certificate, the applicant’s condition could be successfully accommodated by the prison health care system. The court did not address the issue of the procedural shortcomings which had allegedly been committed by the Regional Court.

The applicant applied to the Polish Association of the Deaf to be provided with a hearing aid. The replacement hearing aid (zastępczy aparat słuchowy) was issued to him on 8 April 2008. He was entitled to use it until he was able to buy his own device, with the possibility of a partial refund by the National Health Fund.

The applicant secured a new date for a specialist medical consultation at the Institute of Physiology and Hearing Pathology on 7 April 2008, but he could not attend.

On 8 July 2008 the Szczecin Regional Court dismissed another request for prison leave on medical grounds. The court relied on the same reasoning and on the same 2007 medical certificate as in its January 2008 decision (see paragraph 21 above). The applicant appealed.

On 30 September 2008 the Szczecin Court of Appeal quashed the decision. On 8 October 2008 the applicant was granted legal aid for the purposes of his request for leave. Meanwhile, he was transferred to another prison in a different court circuit. Eventually, on 3 February 2009 the Szczecin Regional Court granted him six months’ leave to allow him to obtain a hearing aid. He left prison on 5 February 2009.

During his leave, he asked the State Fund for the Rehabilitation of Disabled Persons (Państwowy Fundusz Rehabilitacji Osób Niepelnosprawnych) and other organisations to finance the purchase of his hearing aid.

On 8 May 2009 the applicant was presented with an invoice from a private company that made hearing devices. The cost of a hearing aid fitted to his purposes was 1,888 Polish zlotys (PLN) (approximately 500 euros (EUR)). He did not collect the hearing aid from the shop during his prison leave, because he could not afford to pay for it.

By a letter dated 12 May 2009 the Świnoujście Family Assistance Centre (Miejski Ośrodek Pomocy Rodzinie) informed him that they could not finance his hearing aid.

On 25 August 2009 the Szczecin Regional Court extended his leave for another six months until 5 February 2010 (ref. no. V Kow 1521/09), as he had not managed to obtain a hearing aid within the period of leave previously granted to him. Subsequently, he obtained a left ear hearing aid. The total price of the aid with an ear insert was PLN 2,498 (approximately EUR 630). PLN 610 (approximately EUR 154) was refunded by the National Health Fund, while PLN 900 (approximately EUR 227) was refunded by the State Fund for the Rehabilitation of Disabled Persons. He paid approximately PLN 1,000 (approximately EUR 252) from his own means.

The applicant failed to report back to Goleniów Prison at the end of his leave. He was arrested by the police and taken back there on 9 February 2010.

Once back in prison, he asked the prison authorities to provide him with a right ear hearing aid. They refused, referring to the principle that only people in employment were entitled to two hearing aids, including persons at liberty.

On 15 December 2010 a laryngologist issued an opinion that he should also be provided with a right ear hearing aid.

Subsequently, on 14 January 2011 the applicant applied to the Szczecin Regional Court for further prison leave (ref. no. V Kow 139/11). He raised the issue of his hearing impairment. He submitted that he planned to undergo ear surgery and urological surgery. He was granted legal aid for the purposes of the proceedings. On 10 March 2011 the Szczecin Regional Court assigned a lawyer to represent him under the legal aid scheme.

On 5 April 2011 the Szczecin Regional Court refused his request for prison leave. The court referred to a medical certificate dated 1 March 2011, which indicated that he had been examined by laryngologists on several occasions, that he was suffering from hearing problems but had been using a hearing aid, that the certificate of 5 December 2010 had not recommended that it was absolutely necessary for him to also have a hearing aid for his right ear, and, lastly, that during the previous period of leave, he had committed another criminal offence and had not returned to prison on the due date.

The applicant was represented by the legal aid lawyer.

The applicant appealed and requested to be taken from prison to the appeal hearing. On 9 June 2011 the Szczecin Court of Appeal refused to allow his request. It was of the view that he had failed to refer to any circumstances that would justify his attendance in person, that the decision was to be taken on the basis of documents in his medical file, and that he was represented by a legal aid lawyer.

On the same date the court dismissed his appeal. It noted that it was not in dispute that he suffered from various ailments which necessitated medical care, but it was possible to provide treatment to him in prison. The court referred to a medical certificate and his laryngological consultations, none of which confirmed that he was in danger of becoming deaf. There was no need for him to be provided with a right ear hearing aid.

On 5 May 2011 the applicant was consulted by a laryngologist. The doctor was of the view that his very significant hearing loss made the use of a hearing aid for his right ear pointless. Furthermore, it was possible that the right ear hearing aid would interfere with the left ear hearing aid he had been using. The laryngologist did not recommend that he be provided with a hearing aid for his right ear.

As the laryngologists’ opinions dated 15 December 2010 and 5 May 2011 were contradictory, another consultation was arranged on 29 August 2011 at the laryngological ward of the Pomeranian Medical University in Szczecin. Medication was prescribed as a result of this consultation. The conclusions of the opinion of 15 December 2010 as to the necessity of the applicant being fitted with a hearing aid for his right ear were confirmed.

On 30 August 2011 the applicant made another request to have a hearing aid provided by the penal authorities. The following day, after considering this oral request, the authorities decided to wait for the court’s decision as to the applicant’s possible prison leave.

On 8 November 2011 the Szczecin Regional Court granted six months’ prison leave to the applicant (ref. no. V Kow 2435/11 pr). He submitted, in support of his request, that because of his disability he had found it difficult to communicate with his fellow inmates and the prison guards, which had resulted in people being aggressive and intolerant towards him. He had been insulted and humiliated. Moreover, he could not attend the education classes offered in prison or fully engage in religious practices.

The court noted that the applicant was serving a six-year prison sentence. He suffered progressive hearing loss, atrophy of the hearing nerves, myopia, and hyperglyceridemia. He was afraid of losing his hearing and wanted to be treated. He had used a hearing aid since 2008, but his hearing had deteriorated. His hearing loss had caused him to have anxiety attacks and depressive thoughts. A detailed diagnosis of his hearing problems and surgical treatment, if necessary, was not possible within the confines of a prison.

On 10 November 2011 the applicant was provided with a right ear hearing aid paid for by the detention facility.

On 20 December 2012 a doctor working for the social insurance authorities declared the applicant partially unfit to work for the period ending 31 December 2013.

On 26 February 2013 the penal court granted the applicant further leave for the purposes of his medical treatment.

On 22 March 2013 he had an ear implant fitted during an operation in a civil hospital in Kajetany specialising in treating hearing disorders. In June 2013 the hospital scheduled twelve visits at three-month intervals, with the treatment ending on 20 March 2015, with a view to him having a clinical follow-up after each operation. On 26 September 2013 he attended a follow-up appointment at that hospital.

On 8 November 2013 he returned to prison to serve the remainder of his sentence. He submitted that the prison administration had not allowed him to attend a follow-up appointment scheduled for 27 November 2013.

The applicant tried to institute criminal proceedings against the prison staff, alleging that they had failed to provide him with appropriate medical care.

On 14 August 2008 the Goleniów District Court dismissed an interlocutory appeal by the applicant against a decision by the Goleniów District Prosecutor on 30 June 2008 (Ds. 505/08) refusing to open an inquiry into his allegations that the Goleniów Prison doctor had put him directly at risk of severe health damage by refusing to authorise his diagnostic hearing tests and by failing to provide him with a hearing aid.

The prosecution authorities had found that the applicant had undergone medical tests in 2006. Since then, he had been under continuous medical care in prison. He was not considered to be at risk of suffering any damage to his health. It was also noted that the State was under an obligation to provide prisoners with only basic health care, and not to grant their (often excessive) wishes to receive specialist medical services and undergo unnecessary medical procedures.

On 10 March 2008 the Świnoujście District Court dismissed an appeal by the applicant against a decision taken by the District Prosecutor on 9 June 2007 (Ds. 656/07) discontinuing an investigation against the staff of the Świnoujście Remand Centre who had allegedly put his life at risk by interrupting the medical treatment prescribed to him by the remand centre psychiatrist. It was established that the applicant’s psychiatric treatment had been temporarily interrupted because he had been moved to a smaller remand centre where, for reasons unspecified in the decision, his treatment could not be continued. However, this did not amount to a criminal offence. It was further held that a hearing aid was not absolutely necessary for the applicant. His hearing impairment made his detention more difficult, but it did not render it impossible or too harsh on him.

By a letter dated 17 August 2007 the Szczecin Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that complaints he had lodged on 27 July and 3 August 2008 concerning the administration of his medication, adequacy of his medical care and failure to provide him with a hearing aid had been declared illfounded. It was established that (in the morning) a prison nurse and (in the evening) a prison guard administered psychotropic drugs to the applicant on prescription. He had received three injections, whereas the fourth injection, which he had asked for, was not required. The prison laryngologist had not considered it necessary for him to use a hearing aid. Accordingly, he had been informed that the device would not be financed by the prison health care system.

By a letter dated 30 June 2008 the governor of Goleniów Prison informed the applicant that his complaint regarding the alleged irregularities in the administration of his medication had been considered ill-founded, as he had received it in a manner consistent with his prescription.

After lodging his application with the Court, on 14 July 1008 the applicant instituted a civil action against the State Treasury representing Goleniów Prison (ref. no. I C 757/08). Originally, his allegations concerned power cuts in the detention facility, being forced to take sleeping pills at 6.30 p.m., the supposed presence of asbestos in the prison buildings, limited possibilities of employment, overcrowding and the lack of common space. During a hearing on 30 November 2011 the applicant stated that he was also claiming compensation for health damage he had sustained as a result of his irreversible hearing loss as well as the overall poor prison conditions.

The applicant’s claim concerned the period 1 February 2007 to 5 February 2009.

On 29 October 2009 an expert opinion prepared by a laryngologist was submitted to the court. The doctor stated that there was no doubt as to the applicant’s very significant hearing loss in his right ear, whereas an evaluation of the hearing loss in his left ear was more difficult and had not led to unequivocal results. The expert had regard to audiograms made on 13 December 2006, 16 July 2008, 29 August 2008, 8 December 2008, 12 February 2009 and 19 October 2009 and to a number of documents in the applicant’s medical records. There were discrepancies between results of different audiograms, as the applicant had over that time been examined by various people and with various apparatus. The applicant’s emotional state could also have had an impact on the results. Some results indicated a deterioration of his hearing, whereas other suggested an improvement from 2006 to 2009. It was noted that the applicant had been using a hearing aid since 4 April 2008.

The expert found that the applicant’s hearing without a hearing aid was “socially efficient” (wydolne społecznie), while with the aid it was good. He found that there were no grounds on which to establish that the applicant’s hearing had deteriorated as a consequence of his detention. He emphasised that usage of a hearing aid had no influence on the possibility of further deterioration as it neither cured nor prevented hearing loss; it only made the applicant’s social functioning more comfortable.

On 22 September 2010 the expert was questioned by the court, and upheld his conclusions.

On 29 December 2010 the Szczecin Regional Court was provided with an expert opinion by a psychiatrist concerning the applicant’s mental health. It was stated that it was not possible to carry out a full assessment without access to his medical records stored in the hospitals where he had been treated previously or without prior psychological tests. The applicant apparently suffered from various personality problems.

During the hearing on 30 November 2011 (see paragraph 51 above) the psychiatrist was questioned.

On 14 March 2012 the Szczecin Regional Court dismissed the applicant’s compensation claim, finding that there was no evidence to show that he had been attacked or ill-treated because of his bad hearing; that the medical reports had certified that he could have some difficulties following conversations held in a noisy room between a number of people; that his hearing was socially efficient; that there was no evidence to show that it had deteriorated during and because of his detention; that a hearing aid could assist him in everyday life but could not be regarded as treatment of his condition; and that the refusals to provide him with a hearing aid at the public’s expense did not result in the deterioration of his hearing, nor could be seen as humiliating or debasing treatment.

The court had regard to the applicant’s medical records, his correspondence with the Association of the Deaf, certain documents in the applicant’s prison records, the laryngologist’s opinion referred to above, and the testimony given by the prison laryngologist, E.P., the psychologist, the psychiatrist, the laryngologists and three other witnesses.

The applicant appealed.

On 29 June 2012 the Szczecin Court of Appeal dismissed his appeal, fully sharing the findings and conclusions of the first-instance court.

The provisions pertaining to medical care in detention facilities, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Sławomir Musial v. Poland (no. 28300/06, §§ 48-61, 20 January 2009), and Kaprykowski v. Poland (no. 23052/05, §§ 36-39, 3 February 2009). In particular, Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:

“1. A sentenced person shall receive medical care, medication and sanitary items free of charge.

Medical care is provided, primarily, by health care establishments for persons serving prison sentences.

Health care establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular:

1) to provide immediate medical care because of a risk to the life or health of a sentenced person;

2) to provide specialist medical examinations, treatment or rehabilitation to a sentenced person;

3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in ... the sentence ...”

On the basis of Article 115 § 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności). The Ordinance was in force from 17 December 2003 until 11 July 2010.

Health care establishments for persons deprived of their liberty provided, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services (paragraph 1.1).

A person deprived of his or her liberty was subjected to preliminary and periodical medical examinations and check-ups (paragraph 2), and had to undergo preliminary medical examinations, such as a review of his or her medical history and a physical examination as soon as he or she was admitted to a detention establishment (paragraph 3). Moreover, no later than fourteen days from the admission date, a person deprived of his or her liberty had to have a chest X-ray and a dental examination.

Prison doctors were authorised to prescribe medical tests other than those mentioned above, if it was justified in the light of the health of the person deprived of his or her liberty (paragraph 3.5). Those tests, however, were not mandatory and could only be performed with a prisoner’s consent.

The Ordinance of 31 October 2003 was replaced by a largely similar text, the Ordinance of 23 December 2010, on the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości z dnia 23 grudnia 2010 r. w sprawie udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności), which entered into force on 3 January 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1978 and lives in Forráskút. At the time of lodging the application, he was detained at Márianosztra Prison.

On 29 January 2014 the applicant was convicted of possession of narcotics and sentenced to five years’ imprisonment. On appeal, on 14 October 2014 the Budapest Court of Appeal upheld the judgment.

The applicant began serving his sentence at Szeged Prison on 15 January 2015 and was transferred to Márianosztra Prison on 26 January 2015. He was released on parole on 8 September 2015.

While the applicant was held at Szeged Prison, the per capita space available to him was about 3.2 sq. m; the gross ground surface of the cell was 16 sq. m for five occupants but included the in-cell sanitary facility. He was allowed to spend one hour per day in the open air and could take part in various sports and other activities, thus reducing the time spent in the cell. He was provided with basic standard meals and was able to take a shower twice a week.

At Márianosztra Prison, the per capita cell space available to the applicant was about 2.67 sq. m; the gross ground surface of the cell was 8 sq. m for three occupants but included the in-cell sanitary facility. Only between 26 and 29 January and 11 and 15 May 2015 he was held in a cell where a wall separated the toilet from the rest of the space. He could take a shower twice a week and pursue certain free-time activities. At his request, he was provided with vegetarian meals but very often consisting only of soya beans.

The applicant submitted that he suffered from epilepsy and a personality disorder. In his own submissions he stated that prior to his conviction he had cultivated and consumed cannabis partly because it alleviated his symptoms.

As regards the medical care in prison, the Government submitted that, during the first examination at Szeged Prison, the applicant had stated that he suffered from epilepsy without presenting any relevant documentation. The doctor referred him for a psychiatric examination, which took place on 22 January 2015; but the applicant refused the treatment prescribed by the specialist.

During his first medical examination at Márianosztra Prison, the doctor noted that the applicant’s aptitude for work could be assessed only after external medical records concerning his illness had been obtained.

The applicant suffered an epileptic seizure on 24 April 2015, whilst in his cell. Following medication, his condition improved but he refused the neurological examination recommended by the doctor and any further treatment. He suffered further fits on 4 May and 8 July 2015, following which a neurologist prescribed him anti-epileptic drugs, but he agreed to take them only after suffering yet another seizure.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1982 and lives in the Krasnoyarsk region.

At the material time the applicant was a police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region.

On 31 July 2008 a certain Mr P. complained to the internal security department of the Department of the Interior of the Krasnoyarsk Region (“the internal security department”) that the applicant had extorted money from him. In particular, the applicant had asked for money in exchange for assisting him, through his contacts in the regional government, in obtaining a licence for the retail sale of alcoholic beverages. Mr P. gave the internal security department a recording he had made of his telephone conversation with the applicant earlier the same day. During that conversation the applicant had asked Mr P. to bring him money before 2 August 2008.

Police officers invited Mr P. to take part in an “operative experiment” (“оперативный эксперимент”), to which he consented. On the same day the head of the internal security department ordered an operative experiment in respect of the applicant with the use of audio and video recording devices.

On the same day, 31 July 2008, the head of the internal security department also ordered the interception of the applicant’s telephone communications without judicial authorisation by reference to section 8(3) of the of the Operational-Search Activities Act (hereafter “the OSAA”). The decision read in its entirety as follows:

“[The internal security department] has received operative information that [the applicant], a senior police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region, is extorting money in the amount of 200,000 roubles from [P.], the director of limited liability company [the company name], for assisting him in obtaining a licence for the retail sale of alcoholic beverages. At the request of the police officer the money must be delivered in the period from 31 July to 2 August 2008; the exact time and place for delivering the money is to be agreed in advance by telephone [telephone number] given by [the applicant].

[The applicant’s] actions contain elements of a criminal offence under Article 290 § 2 of the Criminal Code [bribe-taking] ...

It is necessary to perform the operational-search measure ‘interception of telephone communications’ with the aims of documenting [the applicant’s] criminal activities in a thorough and objective way, collecting evidence and uncovering other participants in criminal offences.”

On 1 August 2008 the acting head of the internal security department sent a letter to the deputy President of the Tsentralnyy District Court of Krasnoyarsk, informing her that on 31 July and 1 August 2008 the applicant’s telephone had been tapped in accordance with the urgent procedure provided for by section 8(3) of the OSAA. He then repeated verbatim the decision of 31 July 2008 ordering the interception of the applicant’s telephone communications.

On the same day, 1 August 2008, after the police had intercepted the applicant’s telephone conversation with Mr P. in which the two men had arranged to meet later that day, Mr P. was provided with a video camera, a radio transmitter and the necessary amount of money in banknotes marked with a special substance. The applicant and Mr P. met in the applicant’s car, where Mr P. left the marked money. Immediately after Mr P. had left, the applicant was arrested by the police, his car was searched and the money was seized.

On 18 August 2008 the Investigations Committee of the Krasnoyarsk Region opened criminal proceedings against the applicant on suspicion of attempted fraud, an offence under Article 159 of the Criminal Code, in connection with the aforementioned incident. The applicant was suspected of attempted fraudulent appropriation of the funds of a private company in the amount of 200,000 Russian roubles.

On 28 October 2008, in reply to a request from the applicant for an expert examination of the recordings of his telephone conversations and the video recordings of his meeting with Mr P., the investigator in charge of the case held, in so far as relevant, as follows:

“... [the applicant’s] guilt for the criminal offence under Article 159 § 3 ... is completely proven by the preponderance of evidence collected.”

Identical statements were made by the investigator in his decisions of 7 November and 12 December 2008 and 1 April 2009 rejecting various complaints lodged by the applicant.

In reply to the applicant’s complaints that his telephone had been tapped unlawfully without judicial authorisation, the investigator stated, in his decisions of 7 November and 12 December 2008, that section 8(3) of the OSAA permitted the interception of telephone communications without judicial authorisation in urgent cases, provided that a court was notified within twenty-four hours of its commencement and judicial authorisation was obtained within forty-eight hours, failing which it had to be discontinued. Interception of the applicant’s telephone communications had been ordered by the head of the internal security department because at the time there had been sufficient reasons to believe that the applicant was involved in a serious criminal offence punishable under Article 290 § 2 of the Russian Criminal Code. The District Court had been notified of the interception the next day, and on the same day, that is, before the expiry of the forty-eight-hour time-limit, the interception had been discontinued; hence, there had been no reason for seeking judicial authorisation. The interception of the applicant’s telephone communications had therefore been lawful.

During the trial the applicant challenged the admissibility of all the items of evidence obtained as a result of the “operative experiment” and the interception of his telephone communications. He argued, in particular, that the police had had insufficient grounds for carrying out the surveillance measures and that they had not obtained a judicial authorisation to intercept his telephone communications.

On 7 December 2009 the Tsentralnyy District Court declared the audio and video recordings admissible as evidence. It held, in so far as relevant, as follows:

“... [the applicant] argues that the operative experiment and other operational-search measures were unlawful because such measures are permissible only with the aim of suppressing, preventing and investigating criminal offences of medium severity or more serious criminal offences. I suppose that at the time when the police made the decision to carry out the operative experiment and other operational-search measures against [the applicant] they had information that he had committed criminal offences classified as serious or especially serious under the law (abuse of power, bribetaking).

In the court’s opinion, for ordering operational-search measures it is sufficient that there be some elements of a criminal offence, rather than the entire corpus delicti, permitting [the police] to make a preliminary rather than definitive classification of the offence ...

The court is not convinced by [the applicant’s] arguments that the interception of his telephone communications was unlawful because the case file does not contain a judicial decision authorising this operational-search measure. The operational-search measure against [the applicant] was carried out in conditions of urgency.

Section 8(3) of the OSAA provides that a judge must be informed within twentyfour hours of the commencement of operational-search activities in conditions of urgency and that judicial authorisation must be obtained within forty-eight hours, failing which the activities must be discontinued.

The court agrees with [the applicant] that the case file does not contain a judicial decision authorising operational-search measures. At the same time it notes that a judge was informed about the operational-search measures within twenty-four hours and the measures were discontinued within forty-eight hours of their commencement, as required by section 8(3) of the OSAA. No judicial refusal of authorisation was received. It therefore finds that no breaches of legal provisions governing operationalsearch measures were committed in the present case ...”

On 22 December 2009 the District Court convicted the applicant as charged, sentenced him to two years and two months’ imprisonment, and stripped him of his rank in the police. The court based its judgment on the statements of numerous witnesses, material evidence, expert opinions, and the audio and video recordings made on 31 July and 1 August 2008. It found that the recordings were authentic and had been obtained in accordance with the procedure prescribed by law, repeating the reasoning set out in the decision of 7 December 2009 on the admissibility of evidence.

In his appeal submissions the applicant complained, among other things, that the District Court had relied on unlawfully obtained evidence, in particular on recordings of his telephone conversations made without judicial authorisation. He also contested the authenticity of the recordings.

On 8 April 2010 the Krasnoyarsk Regional Court upheld the applicant’s conviction on appeal, adhering to the reasoning of the trial court. It found, in particular, that the audio and video recordings had been correctly declared admissible as evidence and found authentic.