Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Legal assistance of own choosing;Article 6 - Right to a fair trial);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 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 1975 and lives in Murmansk.

On 23 December 2003 the Murmansk regional prosecutor’s office initiated criminal proceedings against the applicant, who was suspected of leadership of a criminal armed gang. According to the authorities, the applicant, as the leader of the gang, had planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion, in Murmansk and Moscow.

On 23 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone, number ...-15. The surveillance authorisation read in its entirety as follows:

“[The police] are investigating [a case] against a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. [M.] and [Z.] are members of that gang. According to intelligence information, these people are planning to commit aggravated extortion from Murmansk businessmen. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-15, registered as belonging to [M.].

In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure]

decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-15.”

On 24 and 25 December 2003 the police intercepted the applicant’s conversations with an accomplice, M.

On 25 December 2003 two of the applicant’s accomplices, M. and S., were arrested. The applicant went into hiding.

On the same day, 25 December 2003, at the applicant’s request his brother retained G. as the applicant’s legal representative. The legal services agreement stated that G. was to consult and defend the applicant while his name was on the police’s wanted persons list in connection with charges that were not yet known to him. If the applicant were to be arrested by the police, an additional agreement would be signed between G. and the applicant. There is no evidence that the police or the investigator were informed about that agreement.

On 26 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone number ...-49. The surveillance authorisation read in its entirety as follows:

“[The police] have intelligence information about a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-49.

decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-49.”

On 26 and 27 December 2003 the police intercepted conversations between the applicant and G.

On 27 December 2003 the applicant was arrested.

On 28 December 2003 G. informed the investigator that he was the applicant’s defence counsel by virtue of instruction no. 1062 of the Murmansk Regional Bar Association (“the Bar Association”). He was formally admitted (допущен) as counsel for the applicant.

On 5 January 2004 the applicant was charged with aggravated robbery, assault, kidnapping and extortion, committed by an organised criminal group. S. and M. were also charged with the same criminal offences.

At the beginning of August 2004 the investigator informed G. that his presence was required during investigative procedures involving the applicant. On 23 August 2004 the investigator was informed by the Bar Association that G. was on annual leave until 4 October 2004.

On 24 August 2004 the investigator appointed legal aid counsel for the applicant, noting that he had refused to choose replacement counsel and had insisted on being represented by G.

On 30 August 2004 the investigator decided to remove G. as counsel for the applicant, finding that it was necessary to question him about his telephone conversations with the applicant on 26 and 27 December 2003. He noted that at the time, G. had not yet been the applicant’s counsel. However, well aware that the applicant had committed serious criminal offences, G. had advised him what to do. In particular, he had told the applicant that money was needed, which could possibly mean that G. had intended to bribe a police official. He had also informed him about the course of the criminal proceedings, which had become known to him as at the time he had been representing the applicant’s accomplices, S. and M. When the police had tried to force the applicant’s door, the applicant had summoned G., who had said that he could not come and offered to send another lawyer. He had then advised the applicant to try to avoid arrest and, if that was not possible, to destroy his telephone and the SIM card, and to remain silent when questioned. In the investigator’s opinion, by giving such advice, G. had been trying to hide his connections with the applicant and his knowledge of the criminal offences committed by him. Given that at the material time G. had not been formally admitted as the applicant’s counsel, he should be considered as having advised him in his capacity as a simple citizen. He should therefore be called as a witness in the criminal proceedings against the applicant.

On 11 October 2004 the criminal case against the applicant and his accomplices was transferred to the Murmansk Regional Court for trial. The criminal case file comprised twelve volumes; five criminal cases were joined into one criminal case against the applicant and his accomplices.

A preliminary hearing was held on 21 and 22 October 2004.

The trial started on 3 November 2004. The applicant asked the court for permission for his brother, a civil lawyer working at a company which sold car spare parts, to act as his defence counsel. The court rejected his request, stating that the applicant’s brother was not qualified to participate as defence counsel in criminal proceedings, that he did not have the relevant practical experience, and that the applicant was already represented by legal aid counsel.

On 4 November 2004 the applicant requested that legal aid counsel assigned to his case be removed for failure to provide adequate legal assistance. The court rejected his request. The applicant then requested that AM. be admitted as his defence counsel instead of the legal aid lawyer. The judge granted that request and AM. represented the applicant throughout the remainder of the criminal proceedings. The trial was adjourned until 15 November 2004 to let AM. study the case file.

On 15 November 2004 the hearing was again postponed, until 22 November 2004, owing to the failure of one of the co-accused to appear due to illness.

Further hearings were held between 22 November and 9 December 2004.

On 22 November 2004 the applicant challenged the admissibility as evidence of transcripts of his telephone conversations with G. on 26 and 27 December 2003. He argued that G. had been his counsel as from 25 December 2003, as confirmed by the legal services agreement of that date and by relevant payment invoices. The conversations in question were therefore protected by legal professional privilege and their transcripts could not be used in evidence in criminal proceedings.

On 30 November 2004 the Murmansk Regional Court found that the legal services agreement of 25 December 2003 stated that G. was to provide the applicant with legal assistance in the framework of criminal proceedings, without clearly identifying the criminal proceedings to which it related. The investigator had not been informed about that agreement. G. had not been formally admitted as the applicant’s counsel in the present criminal proceedings until 28 December 2003 when he had shown the investigator the relevant instruction by the Bar Association. The Regional Court found it relevant that during the conversations intercepted by the police, G. had advised the applicant to remain in hiding and to destroy the evidence. Moreover, having been present, as their counsel, at S.’s and M.’s questioning after their arrest, G. had informed the applicant about their statements to the investigator. When summoned by the applicant to assist him at the time of his arrest, he had refused to come and had offered to send another lawyer. That gave reasons to doubt that G. had been representing the applicant at the time in the present criminal proceedings. The investigator had subsequently removed G. as counsel for the applicant. G. had not, however, been called to testify against the applicant in breach of legal professional privilege. Given that the applicant’s conversations with G. intercepted by the police contained information about the applicant’s criminal activities, they were not subject to legal professional privilege and their transcripts were admissible as evidence.

On 9 December 2004 the court ordered a graphological expert report and for that reason adjourned the trial until 5 April 2005.

On 4 April 2005 the applicant lodged an action before the Oktyabrskiy District Court of Murmansk, challenging the investigator’s decision of 30 August 2004 to remove G. as his counsel. On 6 June 2005 the Oktyabrskiy District Court dismissed that complaint as inadmissible, finding that it could not be examined once the investigation had been completed. The applicant could raise the complaint before the trial court.

Meanwhile, further hearings were held on 5, 25 and 27 April and 5 and 12 May 2005.

On 19 May 2005 the court ordered a complex psychological expert examination of one of the co-accused and adjourned the trial pending the expert examination report. A further complex psychological examination was ordered on 4 July 2005 and the trial was again adjourned until 7 October 2005.

On 7 October 2005 the trial was adjourned because the court ordered that two prosecution witnesses who had testified against S. and who were detained in Moscow be transported to Murmansk for a crossexamination.

The trial remained adjourned between 7 October 2005 and 6 March 2006 while awaiting the transfer of the prosecution witnesses, who at the time were on trial in a criminal case in Moscow. They were transferred to Murmansk on 3 March 2006, after their conviction of 7 October 2005 had been upheld on appeal on 26 December 2005.

On 29 December 2005 the applicant challenged the admissibility as evidence of the transcripts of his telephone conversations with M. on 24 and 25 December 2003 and with G. on 26 and 27 December 2003. He claimed, in particular, that the transcripts had been obtained unlawfully.

The trial was resumed on 6 March 2006. Hearings were held on 16 March, 6, 7, 13 and 20 April 2006.

During the trial the court examined numerous pieces of evidence, including three expert reports and the statements of six victims and twentyfour witnesses from Murmansk and Moscow.

On 12 May 2006 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment. It relied on the transcripts of the applicant’s telephone conversations with G. and M., among other evidence, observing that the interception of the applicant’s telephone communications had been authorised by a court. Having analysed the transcripts of the applicant’s telephone conversations with G., it held as follows:

“The lawyer had not been formally admitted to provide legal assistance to [the applicant] at the time [when the interception had taken place]. His actions were considered by the investigator to be unlawful and served as a basis for the decision to remove [G.] as counsel for [the applicant] and for considering the question of opening criminal proceedings [against G.]. The court does not have any reason to believe that the information obtained as a result of [intercepting the applicant’s] telephone communications with [G.] cannot be used as evidence, given that the information in question has not become known to [G.] as a result of providing legal assistance to [the applicant].”

The applicant appealed against the conviction, claiming that the Regional Court had erred in its assessment of the evidence, that the transcripts of his telephone conversations with his co-defendant M. and counsel G. had been unlawfully used as evidence in the criminal proceedings, that G. had been unlawfully removed as counsel from his case, and that the authorities had refused to allow his brother to act as his legal representative.

On 18 December 2006 the Supreme Court of the Russian Federation upheld the conviction. It held, in particular, that the transcripts of the applicant’s telephone conversations with M. and G. had been correctly admitted as evidence. It further observed that the applicant’s allegations of violations of his right to defence during the preliminary investigation had been examined by the first-instance court and had been rejected as unsubstantiated.

The applicant was arrested on 27 December 2003.

On 29 December 2003 the Murmansk Regional Court remanded the applicant in custody. It held that he was suspected of particularly serious offences, did not have a permanent job, and that his assertions that he owned a family business were unconvincing. There were therefore sufficient reasons to believe that he might abscond, obstruct the course of justice, and continue his criminal activities.

On 24 February and 18 June 2004 the Regional Court ordered extensions of the applicant’s detention, citing the need for further investigation, the gravity of the charges and the risks of the applicant absconding, putting pressure on witnesses and obstructing the course of justice. There were no factors relating to the applicant’s character, state of health, family or other circumstances which would warrant release. The applicant did not appeal against those extension orders.

On 11 October 2004 the criminal case file was transferred to the Regional Court for trial. On 22 October 2004 the Regional Court ordered the applicant’s and his co-defendants’ detention during trial, referring to the gravity of the charges and the lack of permanent employment “at the time of the commission of the crimes”. It considered that the grounds which had served as the basis for the preventive measure remained valid. The applicant did not appeal.

On 5 April, 4 July, 7 October and 29 December 2005 and 7 April 2006 the Regional Court extended the applicant’s and his codefendants’ detention, finding that the grounds which had served as the basis for the preventive measure remained valid and that there were therefore no reasons to change it. The trial could not proceed for objective reasons as it was necessary to wait for the results of a psychological expert examination of S. and for the transfer for questioning of two prosecution witnesses against S.

The applicant appealed against the above extension orders to the Supreme Court. He submitted that he had been permanently residing in Murmansk, that he had been working in the family business, that he had no previous convictions and that he had no intention of absconding from the authorities. The authorities had failed to substantiate their allegations that he might abscond or continue with his criminal activity. As regards the risk that he might put pressure on witnesses, it was no longer relevant as all the witnesses had already been questioned by the trial court. According to the applicant, the extension of his detention had been based solely on the gravity of the charges against him. The trial had been adjourned for reasons which were not related to his personal situation, but in order to carry out expert psychological examinations of one of the co-accused and to ensure the transfer from Moscow of two prosecution witnesses who were to give evidence against that same co-accused. He asked to be released on bail or on his father’s personal guarantee.

On 11 August, 9 November and 15 December 2005 and 30 March 2006 the Supreme Court upheld the above extension orders on appeal, referring to the gravity of the charges and the risks of the applicant absconding or putting pressure on witnesses. The fact that the witnesses had already been questioned was irrelevant because the applicant might still put pressure on them or otherwise obstruct the trial.

The applicant was held as follows: in remand prison no. IZ-51/1 (SIZO-1) in Murmansk from 30 December 2003 to 21 May 2006; in correctional facility no. IK-16 in Murmashi, Murmansk Region, in a special wing with the material conditions of detention of a remand prison (ПФРСИ – помещение, функционирующее в режиме следственного изолятора) from 21 May to 9 October 2006; in remand prison no. IZ-35/2 in Vologda from 12 to 17 October 2006; and in remand prison no. IZ-77/3 in Moscow from 18 October 2006 to 24 January 2007.

The Government submitted that it was impossible to provide original documentation concerning the conditions of the applicant’s detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk because all the official records had been destroyed after the expiry of the statutory period for their storage. In respect of that detention facility they submitted only statements and reports prepared by the prison authorities in 2010. They also submitted copies of the prison population register for the entire periods of the applicant’s detention in correctional facility no. IK-16 in Murmashi and in remand prison no. IZ-35/2 in Vologda, and selected pages from the prison population register for the period of detention in remand prison no. IZ-77/3 in Moscow.

The Government submitted the following information about the applicant’s detention, which was based on the above-mentioned documents:

The Government asserted that in all the cells where the applicant had been detained between 2003 and 2007, the number of inmates had not exceeded the number of beds and that at all times while in detention the applicant had been provided with an individual sleeping place. At the same time, the Government submitted as follows:

“... during the applicant’s detention the sanitary norm for space per inmate was not always complied with. However, it happened only occasionally ... and the prosecutor’s office demanded that these infractions be eliminated ...”

Relying on the statements and reports prepared by the prison authorities in 2010, the Government further submitted that the applicant had been provided with bed sheets and cutlery. The cells were cleaned daily by the inmates and the administration of the penal institutions carried out a sanitary treatment of the premises every month.

All cells were equipped with wash basins supplying cold water; hot water was available for personal and household needs. In addition, the inmates were allowed to use their own kettles and water heaters.

At all times in all the remand prisons, the applicant and the other inmates were allowed to take a fifteen-minute shower once a week; their linen was changed weekly.

The applicant and other inmates were allowed to take one hour’s daily exercise in specially equipped yards.

According to the applicant, remand prison no. IZ-51/1 (SIZO-1) in Murmansk had been severely overcrowded and the space available to him had been below the domestic standards. The applicant contested the accuracy of the data submitted by the Government about the designated number of bunk beds within the cells. For instance, in cell no. 423 the actual number of bunk beds had been eight and not three as submitted by the Government, as could be seen from the photographs he had submitted to the Court. Cell no. 406 had seven sleeping bunks and housed up to nine inmates.

In reply to the applicant’s complaints about poor conditions of detention, the Murmansk regional prosecutor’s office stated, on 14 November 2005, as follows:

“... the applicant’s complaints ... that the conditions of detention in SIZO-1 were not fully compatible with the sanitary regulations prescribed by the Federal Law on pretrial detention ... that the minimum individual space prescribed by the Law (4 sq. m per person) was not always complied with, that the premises needed repair, that the walls in some of the cells were stained with mould and crumbling, that the plumbing was often out of order, that not all the cells were equipped with a sufficient number of shelves and TV sets, that broken glass in the windows was not replaced promptly and that there were no refrigerators – [all these complaints] reflect the reality.

These deficiencies were noted by the prosecutor’s office during their inspection of SIZO-1.”

On 25 April 2006 the Murmansk regional prosecutor’s office stated:

“... in 2005-06 the number of detainees in SIZO-1 frequently exceeded the prescribed limits. For these reasons it was not always possible to comply with the sanitary regulations (4 sq. m per inmate). For the same reasons the requirements concerning the separate detention of different categories of detainees were sometimes not complied with ...”

As regards correctional facility no. IK-16 in Murmashi, the applicant stated that during his stay there he had been detained in inadequate conditions. The cells had been overcrowded. The space available to him throughout the detention period had been below the domestic standards. In particular, he had shared a cell measuring 20 sq. m with five other detainees.

On 28 September 2006 the applicant complained to the Murmansk Regional Department for the Execution of Sentences of inadequate conditions of detention in IK-16. In particular, he complained of poor nutrition, overcrowding, a lack of newspapers and television sets, and of the authorities’ refusal to make copies of documents at inmates’ requests. He received no reply.

Furthermore, as regards remand prison no. IZ-35/2 in Vologda, the applicant stated that the quality of the food in the prison had been extremely poor. He had been detained with thirty-six other detainees in a cell measuring 50 sq. m. The cell had been infested with cockroaches, bedbugs and rats. The detainees had slept on bunk beds.

Lastly, as regards remand prison no. IZ-77/3 in Moscow, according to the applicant, he had been held in cell 434, which measured 13 sq. m, with seven other detainees. The inmates had slept on bunk beds. There had been a table measuring 1 m by 0.3 m but no benches or chairs to sit on. The cell had been swarming with insects. The inmates had been allowed to take exercise only in groups.

From 9 to 12 October 2006 the applicant was transferred by train from Murmansk to Vologda. He was given no food. He received his first meal on 13 October 2006.

On 17 and 18 October 2006 the applicant was transferred by train from Vologda to Moscow.

From 24 January to 9 February 2007, on the way from Moscow to Murmansk, between St Petersburg and Murmansk, the applicant was transported in cramped conditions in a compartment with up to sixteen other inmates, some of whom were suffering from tuberculosis.

As regards the conditions of the applicant’s transportation between Murmansk and Vologda from 9 to 12 October 2006, the applicant was transported in a compartment with other inmates, none of whom were suffering from tuberculosis. He was transferred from Vologda railway station to the local remand prison IZ35/2 in a special vehicle separately from other inmates.

When the applicant was transferred from Vologda railway station to Moscow on 17 and 18 October 2006, he was not transported with inmates who were suffering from tuberculosis.

When the applicant was transferred from Moscow to Murmansk between 24 January and 9 February 2007, he was transported first alone in the railway compartment, then from St Petersburg onwards he was transported with other inmates, none of whom were suffering from tuberculosis.

During the transfers the applicant was duly provided with dry food rations; he was given permission to use hot water and the toilet.

The applicant did not lodge any complaints about the conditions of his transportation between Murmansk and Moscow. He did not apply for medical assistance, nor did he complain about the state of his health.

In their submission the Government neither specified the number of inmates transported with the applicant, nor the size of the compartments in which they had travelled. Nor did they submit any copies of documents regarding that part of the applicant’s complaints, including the distribution of dry rations for the trip.


RITCHIE AND OTHERS v. THE UNITED KINGDOM

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The 16 applicants are the widows and children of seven fishermen who died at sea in 1974 whilst fishing in Scottish waters in their trawler called the Trident. A list of the applicants is set out in the attached appendix.

The Trident was built in 1971-3 and handed over to its owners, Mr David Tait and Mr Alexander Ritchie (the latter of whom died in the accident), on 31 March 1973. The construction of the ship was financed by a loan from the White Fish Authority, a public authority established to reorganise, develop and regulate the white fish industry. Although the contract required that the Trident should meet the stability standards recommended by the Inter-Governmental Maritime Consultative Organisation (IMCO) and that on completion it should undergo an inclining test to establish this, no such test was carried out.

From 31 March 1973 onwards, the Trident was engaged in group fishing in all weathers off Scotland. Later in 1973 the captain of another trawler, the Silver Lining, which had been built by the same firm with a similar, but not identical, design to the Trident, reported his concerns about the “rolling” motion of his vessel to the White Fish Authority. He was issued with a stability booklet by the White Fish Authority advising that further ballast be used to improve stability, as was the captain of the Trident.

On 3 October 1974 Trident disappeared without having given any distress signal. An exhaustive search was carried out of the area where, based on the last radio contact, it was assumed that it had run into trouble, but no trace of the crew or any wreckage, save for a quantity of fish boxes and a few other loose articles, were found.

Following the loss of the Trident, the Silver Lining was withdrawn from service and given a stability test. It was found to be fractionally below the minimum stability recommendations and modifications were made to its structure before it was returned to fishing.

A formal investigation under the Merchant Shipping Act 1894 into the loss of the Trident was held by a sheriff and two assessors in June 1975, with the report published on 12 September 1975. The Department of Trade; the White Fish Authority, the liquidator of the company which had built the Trident, the ship’s designer, Mr Tait (the part-owner), and the personal representatives of Mr Ritchie and the other deceased crew members were parties to the investigation and legally represented. The court proceeded on the basis that the Trident had been lost in an area where, at the time in question, there had been no significant weather problems. It concluded that the lack of any distress call indicated that the Trident must have foundered suddenly, probably as a result of a large and unexpected wave depositing a heavy weight of water on deck. The inquiry considered whether any other factor might have contributed to the casualty and identified inadequate stability as the only likely cause. Evidence was taken from the parties and other witnesses, including experts, based on what was known about the stability of the Trident’s sister ship (the Silver Lining) and of hypotheses about the amount of fuel and ballast likely to have been carried by the Trident at the time of the accident. Having reviewed all the evidence, the court reached the conclusion that:

“reliance cannot be placed on the soundness of the design of the Trident; that she was probably of inadequate stability; that the last radio conversations with her indicated that in her then state of loading and in the prevailing weather conditions, her deficiencies were showing up markedly; that in all the circumstances it would be unrealistic to conclude that her loss was due solely to the action of the sea; and finally, that inadequate stability is the factor most likely to underlie her foundering in conditions which would not normally have overwhelmed a ship of her size.

In the course of the Inquiry, attempts were made to suggest that one or others of the parties should be held responsible for the loss of Trident. None of these cases was established. In particular, the Court is entirely satisfied that no case was made out against Mr Tait, part owner of the vessel. His experience of Trident at sea gave him no reason to suppose her at risk ... An attack was also made on the White Fish Authority, but this was based on an erroneous view of their interest and function (no doubt encouraged by the terms of their letters). Lastly, the builders ... were criticised for their failure to carry out an inclining test. While this undoubtedly led to great difficulty at the Inquiry in investigating the characteristics of Trident, no attempt was made in evidence to show that at the time in question it, or any aspect of the design of Trident, involved ‘wrongful neglect’. The Court cannot embark on this subject without evidence.

The problem of standards of stability of trawlers generally is under active consideration and it is understood that the design of Trident and Silver Lining will be the subject of detailed tests. This Inquiry can contribute nothing new to these studies.”

On receiving the results of the formal investigation the applicants took legal advice as to whether it would be possible to bring civil proceedings for damages for negligence against any person. In 1977 the son of one of the crew members who died on the Trident applied for legal aid to bring a case against the Department of Trade, but his application was refused.

As part of the investigation into the loss of the Trident, the National Maritime Institute (NMI) was requested by the Department of Trade to carry out experiments with models in an effort to discover whether there were any obvious hydrodynamic reasons for the casualty. The experiments were carried out in a water tank with a wave-maker using two model boats, one of which was similar in design to the Trident and the other of which was different in that it had a round stern. The results of the tests were published in the NMI report, dated 22 October 1976. It found that once circling manoeuvres were attempted in breaking waves of modest severity, the model similar to the Trident was immediately at risk of capsize whereas the comparison model did not capsize. The report concluded that the Trident-type vessel had insufficient stability at rest and that even boats of this type constructed to comply with the IMCO minimum standards (see paragraph 3 above) were at risk of capsize. The applicants were not made aware of the NMI report at the time it was published.

In June 2001 amateur divers found the Trident intact on the seabed. The Marine Accident Investigation Branch of the Department of Transport commissioned a video survey by a remotely operated vehicle. The survey was completed early in August 2001.

On 28 March 2002 the Secretary of State ordered a rehearing of the formal investigation into the loss of the Trident, as required under section 269(1) of the Merchant Shipping Act 1995 where new and important evidence which could not be produced at the original investigation was discovered. The applicants were invited to become parties to the investigation and the Department of Transport agreed to make public funds available to cover their reasonable and necessarily incurred legal costs and expenses, including representation by solicitors and counsel, and by a QC from February 2010. A preliminary hearing at Aberdeen Sheriff Court was held in 2002 and a Joint Panel of Experts (JPE) appointed to assist the court. The JPE consisted of independent technical experts appointed by the Advocate General for Scotland and others appointed by the persons who had indicated their intention to appear as parties to the investigation, namely Mr Tait, the Trident’s designer, the Seafish Industry Authority (which had taken over the responsibilities of the White Fish Authority) and the applicants.

For the purposes of the investigation, a detailed underwater survey was undertaken in June 2006, which involved cutting open some parts of the wreck. The applicants had requested that the Trident be lifted so as to enable an inclining test for stability to be carried out, to preserve the evidence and to recover the remains of the crew, but the request was refused by the Department of Transport. It was planned to use a video camera mounted on a remotely operated vehicle to film inside the wreck, but problems with the equipment rendered this impossible, with the result that no information was obtained as to the settings of the various controls on board or the existence and position of any human remains. In addition to the underwater survey, an independent expert report on the wind and sea conditions operative at the site of the wreck on the day in question was prepared and the Maritime Research Institute in the Netherlands was asked to carry out physical scale model tank tests and computer simulations to attempt to determine what caused the ship to capsize.

A first draft of the JPE report was submitted on 14 May 2009 and a final draft was agreed by the JPE on 4 September 2009. The expert instructed by the applicants disagreed with some of the JPE’s findings and filed a separate report.

A copy of the NMI report (see paragraph 9 above), which had not previously been provided to the families of the Trident’s crew, was sent to the applicants’ solicitor on 13 May 2004. Further copies were provided to the JPE in 2006 and lodged by the Advocate General for Scotland as part of the court file in September 2009. Also in September 2009, the applicants lodged their written submission, in which they alleged that the Trident was built in breach of IMCO recommendations on stability and that an inclining test which would have discovered this was not undertaken (see paragraph 3 above). The applicants further alleged that the Trident’s designer, its partowner and the White Fish Authority were at fault.

The substantive court hearing commenced on 19 October 2009 before the Sheriff Principal of Grampian, Highland and Islands and two assessors with backgrounds in the fishing industry. The investigation sat for a total of 55 days over four sessions, with the final session taking place on 14 July 2010. Following the first session, the applicants changed their legal representatives. The NMI report came to the attention of the applicants themselves for the first time when one of them saw it in the internet file of material for the reopened formal investigation shortly before the start of the third session on 25 May 2010. On that date, the applicants challenged the view taken by their legal representatives that the NMI report was unimportant and did not need to be brought to the court’s attention. The applicants’ counsel then withdrew from the case and the applicants addressed the court directly. They expressed the view that the NMI report provided the complete answer as to why the Trident sank and that the reopened formal investigation had, in consequence, been a waste of time and money. The applicants then withdrew from the hearing. They subsequently lodged a letter with the court, urging the sheriff principal to take the NMI report into account and to find that the Trident had capsized because of a structural lack of stability.

In June 2010 the applicants lodged a freedom of information request with the Department of Trade and discovered that the first draft of the NMI report, together with a file of data used to prepare it, entitled “intact stability in relation to the Trident”, had been destroyed in February 2005 as part of a routine exercise to dispose of old documents.

The report of the rehearing of the formal investigation was published on 21 February 2011. The sheriff observed that the position of the wreck showed that the Trident was lost some eleven nautical miles south-east of the position estimated at the original formal investigation, and nearly an hour later. The prevailing sea and wind conditions were, therefore, different from what had previously been assumed; in particular, the evidence suggested that the waves were much higher. During the tank tests, the model designed to replicate the Trident capsized suddenly on a number of occasions when it encountered a deep trough followed by a large wave. Both the tank tests and the computer simulations indicated that the Trident had “specific seakeeping characteristics” that resulted in a measurable and significant probability of capsize in the prevailing weather conditions.

Based on the JPE report and the evidence taken during the hearing, the sheriff took the view that the Trident had complied with most, but not all, of the IMCO stability criteria (see paragraph 2 above). In any event, even if it had fully complied with these criteria, this would not have affected the outcome. In particular, in order to counteract the strong capsizing forces, a righting mechanism far greater than that required for compliance with the IMCO recommendations would have been needed. What had happened to the Trident on the day of her loss was not reasonably foreseeable to anyone in the light of the knowledge and understanding of the construction of seagoing vessels available at the time and still was not fully understood. The accident could not be attributed to the fault or omission of any person. The sheriff added that, while he could understand the disappointment of the family members who might have expected the JPE to identify precisely what it was about the Trident that caused her to capsize, he could also understand why the JPE did not embark on such a study, given that “even now the precise considerations that bear upon the dynamic stability of a vessel at sea appear not to be fully understood, and much high level research needs to be done before this gap in understanding can be filled”.

The sheriff observed that, in the course of preparing his written reasons, he had noticed that the figures used by the NMI report and the JPE respectively, in relation to the Trident’s metacentric height (the measurement of the initial static stability of a floating body), were significantly different and that he could not find any explanation for this. He then continued by expressing the view that NMI report was of no assistance in explaining the loss of the Trident, since the manner in which the waves were generated in the NMI tank test was crude and haphazard in comparison with the methodology used in the tests carried out under the oversight of the JPE and since the NMI’s conclusions were based on visual observations rather than precise measurements. Finally, the tests carried out for the rehearing of the formal investigation were designed to mirror exactly the conditions which obtained when the Trident was lost, including in particular the sea state, the vessel’s loading condition, speed and course relative to the direction of the waves. By contrast, in the NMI tests the vessel was seen capsizing several times when carrying out circling manoeuvres, which was not what the Trident was doing when it was lost.

The Merchant Shipping Act 1995 did not provide for any appeal against the sheriff’s findings.

In 2011 the applicants approached a number of solicitors to ask whether they would be prepared to act for them on a no-win no-fee basis in a civil claim against the persons they considered at fault for the capsize of the Trident (see paragraph 14 above). None of the solicitors approached by the families were prepared to take on the case.

The applicants sought legal advice as regards grounds of challenge by way of judicial review in respect of the proceedings before the sheriff and his findings. In advice dated 28 February 2011, senior counsel concluded that it might be possible to found an argument based on the absence of material evidence before the sheriff and the absence of opportunity for the applicants properly to present their case as a result of failures by their legal team, but underlined that he needed more information about the underlying facts before he could give a more definite assessment. Additional advice was sought. The counsel instructed on this occasion expressed the view that it might be possible to challenge the rehearing of the formal investigation on the ground that the sheriff did not give adequate reasons for his conclusions. She identified two issues, the absence of an incline test on completion of the Trident and the fact that the NMI and JPE reports used different measurements of metacentric height to calculate the initial static stability of the Trident, as relevant considerations which the sheriff should have addressed. Counsel concluded, however, that “it may well be that the relevant court may not find these matters sufficiently persuasive to grant a review”.

In May 2011 the first applicant sought legal aid to bring an application for judicial review of the findings of the investigation. This application was refused on 25 July 2011 on the ground that counsel’s opinion did not adequately address the issue of prospects of success or the practical benefit to the applicant in seeking judicial review. The applicant appealed against this decision in September 2011. Her application was again refused on 22 December 2011, on the following grounds:

“The test of reasonableness is not met. The letter from the Office of the Solicitor to the Advocate General for Scotland dated 30 June 2011 advises that the total cost of the investigative process and the re-hearing of the formal investigation including the legal and technical costs of all the parties throughout the process of the joint panel of experts and during the course of the re-hearing of the formal investigation cost approximately £6m all funded by the Department of Transport. It is not known what the position is likely to be in relation to further costs in the event of the judicial review being successful and the matter being referred back for further investigation and reporting.

It is not known whether funding will be made available to the applicant. The legal costs of a judicial review are not insubstantial. £30,000 has been mentioned by the applicant’s solicitors. It is not satisfactorily demonstrated that a privately funded person of modest means would reasonably be advised to pursue this matter further.

It is suggested on review that in the event of eventual success the applicant will then have the opportunity of pursuing avenues of compensation for her losses. The applicant is 71 years of age. She was 34 years old when her father and husband died. There is no indication about the possible value of any claim she may have in the event that it is eventually determined that any individual or body is at fault. It is not possible to assess whether the potential costs involved in bringing any future claim to a conclusion from the present position can be justified.

It should be noted that even if the two principal grounds for judicial review are eventually addressed (the tribunal’s failure to address itself to the failure of the White Fish Authority to ensure that an incline test was conducted on the Trident and the failure of the formal investigation to consider the discrepancy in various figures relating to the stability of the Trident) there is nothing to demonstrate that had the Trident been constructed in a manner compliant with best practice at the time the accident would not have occurred.”


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

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention. In application no. 31497/14, the applicant also raised other complaints under the provisions of the Convention.


Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1978. When lodging his application he was detained in Rosdorf prison, Lower Saxony (Niedersachsen).

By a judgment of 25 April 2008 (file no. 63 Js 1244/07) the Göttingen Regional Court convicted the applicant of two counts of aggravated robbery in conjunction with aggravated extortion by means of coercion, committed jointly with further perpetrators (gemeinschaftlicher schwerer Raub in Tateinheit mit schwerer räuberischer Erpressung), and imposed an accumulated prison sentence (Gesamtfreiheitsstrafe) of nine years and six months.

The crimes were committed in Kassel on 14 October 2006 and in Göttingen on 3 February 2007 respectively.

The Regional Court found it established that in the evening of 14 October 2006 the applicant, acting jointly with an unidentified accomplice and according to a previously agreed plan, entered by force into an apartment in Kassel and robbed its occupants. The men were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash in there. They had passed by the apartment in the early evening in order to make sure that no clients were present. Shortly afterwards they rang at the door of the apartment which was attended by its tenant Ms L. After having overpowered L. by force the applicant threatened her with a gas pistol that resembled a real gun ordering her to keep silent. He then went to the kitchen where he found the further occupant of the apartment Ms I., a Lithuanian national who lived and worked there as a prostitute. Pointing his gas pistol at I. he forced her to hand over her mobile phone. While his accomplice was watching over the two women, the applicant searched the apartment for valuables and found five further mobile phones as well as 100 euros (EUR) in I.’s purse. The applicant then threatened to shoot the women should they not disclose where they were keeping any additional money. As a result of his threat L. handed over a further EUR 1,000 which she had kept in the pocket of her jacket. The men then left the apartment with their loot. Later that evening an acquaintance of L. whom she had told about the incident called the police which came to the apartment.

As regards the events on 3 February 2007, the Regional Court established that the applicant, acting jointly with several accomplices, two of whom were the applicant’s co-accused in the proceedings before the court, robbed another apartment located in Göttingen. The men acted according to a plan previously set up among the gang. At the relevant time the apartment was occupied by Ms O. and Ms P., two Latvian nationals who were illegally staying in Germany and working in the apartment as prostitutes. O. and P. were friends of L., one of the victims of the crime committed in Kassel on 14 October 2006, and they had both worked for some time as prostitutes in the Kassel apartment rented by L. before moving to Göttingen.

In the evening of 2 February 2007, the day before the crime, one of the applicant’s co-accused together with accomplice R. passed by O. and P.’s apartment in Göttingen with a view to verifying whether the two women were its only occupants and whether it contained any valuables. R. was an acquaintance of O. and P. whom they got to know through their friend L. when they had stayed in her apartment in Kassel. Hence, the unsuspecting women did not object to the men entering the apartment. Following their visit the two men reported to the residual members of the criminal gang that they had spotted a safe in the apartment’s kitchen.

On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P.’s apartment pretending to be potential clients while one of the co-accused was waiting in a car parked close to the apartment building and the other co-accused in front of the house. Once inside the apartment B. produced a knife that he had carried along in his jacket. P., trying to escape from the perpetrators, jumped from the apartment’s balcony located approximately two meters off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when passers-by appeared nearby on the street. He then called the co-accused waiting in front of the women’s apartment on his mobile phone and gave him an account of the events. He agreed with the latter on a meeting point where the co-accused were supposed to pick him up with the car once accomplice B. would have left the crime scene and have joined them. In the meantime inside the apartment, B. after having overpowered O. threatened to kill her with his knife should she not disclose where the women kept their money or should she refuse to open the safe for him. Fearing for her life O. opened the safe from which B. removed EUR 300 and also handed over the contents of her wallet in the amount of EUR 250. B. left the apartment at around 8.30 p.m. taking the money and P.’s mobile phone as well as the apartments’ landline phone with him and joined the coaccused. The co-accused and B. then picked up the applicant at the agreed meeting point with their car.

At approximately 9.30 p.m. P. rejoined O. at the apartment. The women called their friend L. in Kassel and gave her a brief account of the events. The next day they also told their neighbour E. about the crime. Later that day the women, afraid of remaining alone in the Göttingen apartment, drove to Kassel where they stayed a few days with their friend L. Following short subsequent stays in Frankfurt am Main and back in Göttingen they returned to Latvia in February 2007.

The Regional Court based its finding of facts regarding the first crime committed in Kassel on 14 October 2006 on the statements made by the victims L. and I. on the occasion of their police interrogations as well as in the course of the subsequent trial. Both witnesses had identified the applicant without any hesitation as the perpetrator who had carried the gun when presented with his photo on the occasion of their police interviews and later when confronted with him personally at trial. The Regional Court found L. and I.’s testimonies to be consistent and credible and noted that they were supported by the statements of the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigations and who had all been heard as witnesses during the trial.

As regards the establishment of facts in relation to the second crime committed in Göttingen the Regional Court relied in particular on pre-trial statements made by the victims O. and P. in the course of police interrogations in the period from 15 to 18 February 2007 and before an investigating judge on 19 February 2007.

By a decision of 21 February 2008 the Regional Court, dismissing a related objection by the defence, ordered that the records of O. and P.’s interrogations by the police and the investigating judge be read out at the trial and be admitted as evidence in the proceedings in accordance with Article 251 (1) and (2) of the German Code of Criminal Procedure (see Relevant domestic law below). The said article provides for such possibility in the event insurmountable impediments make it impossible to hear a witness in the foreseeable future. The Regional Court pointed out in this context that it had not been possible to hear the witnesses in the course of the trial since they had returned to their home country Latvia shortly after their interrogations at the investigative stage and all attempts to enable their examination at the main hearing had been to no avail.

The Regional Court specified that O. and P. had been summoned to appear before the Regional Court on 24 August 2007, the third day of the trial. However, they both had refused to attend the hearing relying on medical certificates dated 9 August 2007 that indicated their unstable posttraumatic emotional and psychological condition. Consequently, on 29 August 2007 the court had sent letters to both witnesses asking under what conditions they would be ready to testify at trial. While an acknowledgement of receipt had been returned for both letters, no response had been obtained from P. O. for her part had informed the Regional Court in writing that due to the fact that she was still traumatised by the crime, she would neither accept to appear at the trial in person nor would she agree to be examined by means of an audio-visual transmission. O. had further mentioned that she had nothing to add to her statements made in the course of the interviews before the police and the investigating judge in February 2007.

The Regional Court nevertheless requested legal assistance from the Latvian authorities and asked for the witnesses to be heard by a court in Latvia and the hearing to be transmitted by voice and image (audiovisuelle Vernehmung). However, a witness hearing scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before by the presiding Latvian judge on the ground that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorders as a consequence of the crime and that a further confrontation with the events in Göttingen would risk aggravating their condition. The witnesses had further claimed that following threats by the accused they feared possible acts of revenge.

The Regional Court informed their Latvian counterpart by a letter dated 21 February 2008 that according to the standards of German law of criminal procedure the reasons advanced by the witnesses were not sufficiently substantiated to justify their refusal to testify. The court suggested to the competent Latvian judge to have the witnesses examined by a public medical officer (Amtsarzt) and, alternatively, to coerce them to attend the hearing.

As the letter remained unanswered, the Regional Court considered that it did not dispose of any further legal means to enforce a hearing of O. and P. Having further regard to the fact that the recently renewed medical certificates indicated that the witnesses’ state of health would not change any time soon, the Regional Court concluded that it was impossible to have the witnesses examined in the foreseeable future. Pointing out that courts were under an obligation to conduct proceedings involving the deprivation of liberty expeditiously and in view of the fact that the accused had already been held in custody for a considerable period of time, the court was of the opinion that it could not be justified to further delay the proceedings.

Consequently, a further objection against the introduction of the witnesses’ pre-trial statements by counsel of one of the co-accused was rejected by the Regional Court and the records of the witnesses’ police interrogations and interviews with the investigative judge were read out during a hearing on 26 February 2008.

In its judgment running to some 152 pages, the Regional Court pointed out that in assessing the available evidence it had been aware of the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies. It had further taken into account that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses of the crime in Göttingen at any stage of the proceedings. At the time of the last pre-trial interrogation of O. and P. on 19 February 2007, the applicant had not been informed about the preliminary criminal proceedings initiated against him with a view to not putting the investigations at risk. No warrant for his arrest had yet been issued and he had not been represented by counsel. The investigating judge had excluded the applicant from the hearing in accordance with Article 168 (c) of the Code of Criminal Procedure since he had been concerned that the witnesses would be afraid of telling the truth in the presence of the accused. The Regional Court further emphasised that at the investigative stage there had been no indication that O. and P. who had testified on several occasions before the police and then before the investigating judge would refuse to repeat their statements at a subsequent trial.

The Regional Court held that notwithstanding the resulting restrictions for the defence, the trial as a whole had been fair and had complied with the requirements of Article 6 § 3 (d) of the Convention. The court was thus not prevented from admitting O. and P.’s pre-trial statements as evidence in the proceedings. It had made considerable efforts to enable a direct examination of O. and P. by the accused and counsel for the defence at trial. Moreover, once the witnesses had proved to be unavailable the Regional Court had ensured that a maximum of further witnesses who had been in contact with O. and P. in relation to the events at issue could be heard at trial. Finally, the court had taken several items of evidence as corroborating O. and P.’s pre-trial testimonies into account when assessing their evidentiary value.

In the Regional Court’s opinion the records of O. and P.’s interrogations at the investigative stage showed that they had given detailed and coherent descriptions of the circumstances of the crime. Minor contradictions in their statements could be explained by their concern not to disclose their illegal residence status and activities to the authorities and by the psychological strain they had been subject to during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why the witnesses had not pressed charges immediately after the events and why the police had only been informed of the crime on 12 February 2007 by their friend L. As regards O. and P.’s’ failure to identify the applicant when confronted with several photos of potential suspects during the police interrogations, the court observed that the witnesses’ attention during the incident had been focussed on the further perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that the witnesses, as opposed to the defence’s allegations, had not testified with a view to incriminating him.

In the court’s opinion the fact that the detailed description of the events in the witnesses’ pre-trial statements were consistent with the account they had given the morning after the crime to their neighbour E., who had been heard as a witness during the trial, was a further strong indication for their credibility and the veracity of their statements. This witness had further testified that on the evening of 3 February 2007 at around 9.30 p.m. another neighbour, an elderly woman who got scared when she heard noise coming from O. and P.’s apartment, had called on her and asked her to accompany her to the women’s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours were ringing the bell.

The Regional Court further observed that O. and P.’s description of the events also coincided with their friend L.’s recollection of her conversations with O. and P. following the crime as reproduced during L.’s witness hearing at trial. In addition, the police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at trial that they had found the witnesses to be credible.

The Regional Court noted that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at trial or by means of an audio-visual examination, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully.

In this context it had been of relevance that O. and P.’s testimonies as well as the statements of the further witnesses at trial had been supported by further significant and admissible evidence such as data obtained through tapping of the applicant’s and the co-accused’s mobile phones and by means of a satellite-based global positioning system (“GPS”). Such information had been gathered within the scope of police surveillance measures carried out at the relevant time in relation to preliminary criminal proceedings initiated against the accused on suspicion of racketeering and extortion (Schutzgelderpressung) in the Göttingen drug scene. The link between the evidence obtained in the course of such separate investigations and the crime at issue could only be made after O. and P. had reported the incident of 3 February 2007 to the police. It followed from the recordings of two mobile phone conversations between one of the co-accused and the applicant in the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims’ apartment accompanied by B. and that he had jumped from the balcony in order to chase one of the escaping victims whom he failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time-frame in which the robbery in issue had occurred.

Finally, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity in this respect, their own statements at trial had at least confirmed that one of the co-accused together with R. had visited the apartment at Göttingen on the evening before the crime and that the applicant and B. had been present in the apartment at the time of the incident the following day. The applicant had testified that he and B. had come to the apartment with a view to making use of the women’s services as prostitutes. He further had conceded that he had followed P. when she escaped over the balcony and explained that he had done so in order to prevent her from calling the neighbours or the police since he had been afraid of getting problems in view of his criminal record and the problems he had previously had with prostitutes on a similar occasion in Kassel.

In the court’s view the body of evidence taken together gave a coherent and complete overall picture of the events that supported the version provided by witnesses O. and P. and refuted the contradictory statements made by the applicant and the co-accused in the course of the trial.

Counsel for the applicant lodged an appeal on points of law against the judgment of the Göttingen Regional Court in which he complained that the applicant had not been able to examine the only direct witnesses of the crime committed in Göttingen at any stage of the proceedings in breach of Article 6 §§ 1 and 3 (d) of the Convention. He argued that such inability had been imputable to the domestic authorities. According to the Federal Court of Justice’s case-law counsel had to be appointed for an unrepresented accused if the key witnesses for the prosecution were to testify before an investigating judge and the accused was excluded from this hearing. However, at the time of the witness hearing the applicant had not even been informed about the preliminary proceedings instituted against him and the public prosecution authorities had not requested that defence counsel be appointed for him. Consequently, O. and P.’s testimonies ought to have been excluded from the trial.

By written submissions dated 9 September 2008 the Federal Public Prosecutor General (Generalbundesanwalt) moved that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings pursuant to Article 349 (2) of the Code of Criminal Procedure (see Relevant domestic law below). The Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (“Totalausfall des Fragerechts”), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence. The Regional Court had assessed the contents of the records of the witnesses’ testimonies read out at trial particularly carefully and critically. Furthermore, it had not made their statements the sole or decisive basis of the applicant’s conviction but had taken further significant evidence into account. In view of the various layers of corroborating evidence the applicant had had ample opportunities to put into question the credibility of the two main witnesses and to effectively defend himself. The Federal Prosecutor, endorsing the Regional Court’s related arguments, further pointed out that there was nothing to demonstrate that the restrictions to the defence’s right to examine the witnesses had been imputable to the domestic authorities.

By written submissions of 28 September 2008 the applicant replied to the Federal Prosecutor’s observations and requested the Federal Court of Justice to hold a hearing in the appeal proceedings.

By a decision of 30 October 2008 the Federal Court of Justice, referring to 349 (2) of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded.

By written submissions of 17 November 2008 the applicant complained of a violation of his right to be heard (Anhörungsrüge) on the ground that no hearing had been held in the appeal proceedings and that the Federal Court of Justice’s decision rejecting his appeal did not provide any reasons.

In its decision of 9 December 2008 rejecting the applicant’s complaint the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 (2) of the Code of Criminal Procedure implied a reference to the respective reasoning provided by the Prosecutor General.

By a decision of 8 October 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Federal Court of Justice dated 30 October and 9 December 2008 for examination without providing reasons.

It follows from the applicant’s submissions that he has meanwhile left prison and returned to his native country Georgia.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

Egidijus Kūris;Nebojša Vučinić;Paul Lemmens

The applicant was born in 1961 and lives in İzmir.

On 15 May 2001, the applicant had cardiac surgery in Ege University Hospital in İzmir and her heart valve was replaced by a mechanical valve. The applicant was insured by the Retired Civil Servants’ Fund (emekli sandığı) and all her medical expenses were covered by the insurance.

Following the operation, the applicant’s heart condition did not improve and she suffered physiologically as a result of a disturbing noise coming from the mechanical heart valve.

In 2003, the applicant found out from the press that the type of mechanical valve used in her operation was banned by the Ministry of Health because of serious production defects.

Being convinced that she was subjected to negligence, the applicant decided to bring compensation proceedings against the Ministry of Health, the Retired Civil Servant’s Fund, the Ege University Hospital and the doctors who operated on her.

In October 2003, the applicant applied to the İzmir Administrative Court and requested 250,000,000,000 Turkish liras (TRL) (approximately 153,000 euros (EUR)). The applicant requested legal aid for the court fees and submitted a certificate attesting to her indigence. On 5 November 2004 the İzmir Administrative Court, without giving any specific reason, decided that the applicant did not fulfil the prerequisite to be eligible for legal aid which was required under Article 465 of the Code of Civil Procedure (CCP). On 21 December 2004 and 17 February 2005 respectively, the applicant was notified that she had to pay TRL 3,364,900,00 (approximately EUR 20,600) in court fees within one month in order for the proceedings to continue, and that failure to do so would result in the discontinuation of the proceedings.

The applicant failed to pay the court fees. On 20 April 2005 the İzmir Administrative Court decided to discontinue the proceedings.


CASE OF LISOVAIA v. THE REPUBLIC OF MOLDOVA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);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 home)

The applicant was born in 1984 and lives in Chisinau.

At the material time, the applicant was a student and was undertaking an unpaid internship at a law firm.

On 23 October 2008 criminal proceedings were initiated against T., a lawyer with whom the applicant worked, on charges of trading in influence. In particular, T. was accused of receiving 10,500 euros (EUR) from D. to pass on to the judges examining a criminal case against a relative of D.’s in order to obtain his acquittal or a more lenient sentence. The applicant had no procedural standing in those proceedings.

On 30 October 2008 the police lodged with an investigating judge a request for a warrant to search the applicant’s apartment. The request was granted; the decision to issue the warrant read as follows:

“The criminal investigation against T. was initiated on 23 October 2008 ... In the course of the investigation it has been established that from March until September 2008, T. extorted and received from D. in several instalments the amount of EUR 10,500, [to be given to] the judges who examined D.’s relative’s case, in order to obtain his acquittal or a more lenient sentence.

On 24 October 2008 T. was caught in flagrante receiving 3,800 US dollars (USD) from D., allegedly for influencing the prosecutor not to appeal against the [subsequent] judgment [acquitting the accused].

The evidence in the file and the material obtained through the operational investigation allow the well-founded assumption that at [the applicant’s] home, situated at [address], can be found EUR 10,500 received from D. and relevant documents,

Decides

To order a search of [the applicant’s] residence, situated at [address], with the aim of finding and seizing EUR 10,500 received from D. and documents concerning the criminal case.”

On the same day, a prosecutor lodged a request with the Buiucani District Court for a warrant to be issued for the search of the applicant’s apartment. His request took the form of a verbatim copy of the police decision. Also on the same day the Buiucani district investigating judge issued a decision authorising the search. The decision read as follows:

“The present criminal proceedings were initiated on 23 October 2008 ... against T.

After hearing the prosecutor and examining the material, and taking in consideration the fact that that material had been obtained in [a manner] in compliance with the law, the court finds that the request for the authorisation of the search is well founded and should be upheld.

On the basis of Articles 41, 125, 301, 305 and 306 of the Code of Criminal Procedure, the court:

Grants the prosecutor’s request.

Authorises a search of [the applicant’s] residence, situated at [address].

[Declares that] the decision is final.”

On 10 December 2008 the police searched the applicant’s apartment in the presence of her elderly mother [but not the applicant]. They did not find anything.

On 21 August 2009 the applicant lodged a request for access to the evidence which had been presented to the judge to justify the search. On 3 September 2009 the Buiucani district investigating judge replied that the case file was held at the [premises of] the investigating authority and that access could only be granted pursuant to the law.

It appears from the material in the case file that the criminal proceedings against T. ended with the latter’s acquittal.


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms E.B., is a Polish national, who was born in 1976 and lives in London. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Stephen Fidler, a solicitor advocate practising in London. The Government were represented by their agent, Ms R. Tomlinson, of the Foreign and Commonwealth Office. Observations on the merits were received from the respondent Government and the applicant and third party observations were received from the AIRE Centre and Fair Trials International.

The applicant entered the United Kingdom in 2007. At the time, she had two children: A., born in 1993; and B., born in 1999. She subsequently gave birth to a third child, C., born in 2008.

On 16 July 2009 a European Arrest Warrant (“EAW”) was issued in respect of the applicant in light of a conviction in Poland for three counts of insult, one of assault and one of threatening behavior for which she had been sentenced to eighteen months’ imprisonment. She appealed against her proposed surrender to Poland, arguing that the surrender would lead to her separation from her children.

In November 2009, B. and C. were placed in foster care. The applicant enjoyed supervised access to them four times a week.

The applicant subsequently became pregnant.

On 11 June 2010 the District Judge ordered the applicant’s surrender to Poland. The judge found it “troubling” that there was no material before the court from social services as to what arrangements had been put in place for the care of any of the applicant’s children in the event of her extradition. He accepted that her extradition would engage Article 8, noting that the main issue was proportionality. He referred to the strong public interest in honouring extradition agreements and the need for exceptional Article 8 grounds in order to outweigh that interest. The applicant’s family unit was “already fragmented with two children in care” and there was a “high probability” that the unborn child would be taken into care for the same reasons as the other two, namely the applicant’s poor emotional state and inability to look after them. This was likely to occur regardless of whether or not she was extradited. Given the applicant’s already fragmented family life and the principle that she should face the consequences of her proven misconduct in Poland, the judge concluded that there was no proper basis for discharging her from the extradition proceedings.

The applicant appealed to the High Court.

In August 2010 she gave birth to her fourth child, D., and started breastfeeding him. She was subsequently placed in a residential unit with D., and B. and C. joined them in September and October respectively. At the time, A. was accommodated by the local authority in semiindependent accommodation.

Social services subsequently provided an update of the circumstances of the applicant and her children to the High Court. They explained that the applicant was undergoing a parenting assessment which would determine whether her children could remain with her or not. If the applicant completed the assessment successfully and remained in the United Kingdom, then an ongoing care plan and support package would be put in place for her to continue looking after her children in the community. If the applicant were extradited to Poland, her three youngest children would be taken into foster care while the local authority liaised with the Polish authorities with a view to finding a longer-term care arrangement for the children in Poland.

On 21 October 2010 the High Court dismissed the applicant’s appeal against her surrender. The judge found that the applicant’s situation was, in itself, no bar to extradition. He concluded that the evidence before the court did not support a conclusion that irretrievable damage, either to the applicant or her baby, would result from the applicant’s extradition. The judge expressed the hope that every opportunity would be taken by those responsible to ensure that the applicant’s arrival in Poland, and that of her baby, would be as painless as possible.

On 28 October 2010, the applicant lodged an application before this Court and requested an interim measure to prevent her extradition.

On 2 November 2010, the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited until further notice.

On 22 February 2011 the application was communicated to the respondent Government for observations.

By letter dated 17 November 2011, the applicant’s legal representatives informed the Court that B., C. and D. had been placed in local authority care. Care proceedings were commenced in respect of all three children.

In November 2011 the applicant gave birth to a fifth child, E. The child was immediately placed in local authority care and care proceedings were commenced.

By letter dated 15 March 2012, the applicant’s legal representatives informed the Court that a final care order had been made in respect of B.

By letter dated 30 May 2013, the applicant’s legal representatives informed the Court that final care and placement orders had been made in respect of C., D. and E. The applicant’s consent had been dispensed with.

Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which include all the member states of the European Union which operate the European Arrest Warrant system. Poland is therefore a Category 1 territory.

Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge.

If the judge at the extradition hearing orders the person’s extradition, Section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1983 and lives in Izmayil.

On 28 November 2012 the applicant was arrested by the police on suspicion of having murdered Mr S. earlier the same day.

On 30 November 2012 the investigating judge of the Reni Local Court of the Odessa Region ordered the applicant’s pre-trial detention until 27 January 2013.

On 25 January 2013 the investigating judge extended the applicant’s pre-trial detention until 27 February 2013.

On 26 February 2013 the indictment in the applicant’s case was approved.

On 27 February 2013 the indictment and the criminal case file were forwarded by the prosecutor to the court.

On 28 February 2013 the applicant’s lawyer requested the Head of the Izmail SIZO to release the applicant immediately given that the period of detention ordered by the court had expired on 27 February. By a letter of the same day, the Head of the Izmail SIZO replied to the applicant’s lawyer that, under the Code of Criminal Procedure, after the forwarding of the criminal case file to the trial court it was for that court to decide on the applicant’s continued detention.

The same day the lawyer complained to the prosecutor about the failure of the prison authorities to release the applicant. In reply to that letter, the Odessa Regional Prosecutor’s Office informed the applicant’s lawyer that the applicant’s pre-trial detention had been extended in January 2013 until 27 February 2013 and that on the latter date the criminal case file against the applicant had been forwarded to the trial court; the prosecutor’s office therefore considered that the applicant’s rights and interests had not been violated.

On 11 March 2013 the lawyer submitted a request to the investigating judge for the applicant’s release. He noted that the applicant’s pre-trial detention ordered by the judge had expired on 27 February 2013 and that no decision had been taken on the applicant’s continued detention.

On 14 March 2013 the investigating judge rejected the above request. With reference to Article 331 § 3 of the Code of Criminal Procedure (“the CCP”), the judge noted that on the last date of the applicant’s pre-trial detention, that is, on 27 February 2013, his criminal case had been referred to the trial court, which had two months to decide on his continued detention. The judge concluded that there had been no grounds for the applicant’s release on 28 February 2013.

On 25 March 2013 the Odessa Regional Court of Appeal upheld the decision of 14 March 2013.

On 15 April 2013 the Izmayil Local Court of the Odessa Region held a preliminary hearing in which it ordered the applicant’s continued detention.

On 5 November 2013 the applicant was found guilty of murder and sentenced to eleven years’ imprisonment.


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1952. At the time of lodging his application, he had been placed in a supervised residential facility in Springe (Germany). He was subsequently released.

Following five convictions for offences including burglary and dangerous assault, in 1977 the Hildesheim Regional Court convicted the applicant of committing offences while in a drunken state. It sentenced him to one year’s imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 35 below). The court found that the applicant’s criminal responsibility had been diminished at the time of the acts, owing to infantile brain damage combined with drunkenness. He was detained in psychiatric hospitals in Göttingen and Moringen from December 1977 to October 1980.

In 1981 the Göttingen Regional Court quashed the judgment of the Hildesheim Regional Court of 1977. It convicted the applicant of intentionally committing offences while in a drunken state and sentenced him to one year and eight months’ imprisonment, without ordering his detention in a psychiatric hospital. The court, having regard to the findings of a psychiatric expert and the results of a re-examination of the applicant’s brain by new technical means, found that he did not suffer and had never suffered from a pathological mental disorder. He had therefore not acted with diminished criminal responsibility. The court considered that the applicant did not have infantile brain damage, and although he had an abnormal personality, he was neither a psychopath nor an alcoholic.

On 11 December 1984 the Hildesheim Regional Court convicted the applicant of seven counts of dangerous assault, four counts of assault, coercion and two counts of attempted coercion. All these offences had been committed between 6 December 1982 and 1 May 1984. The court sentenced him to six years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraphs 28-29 below).

The Hildesheim Regional Court found that the applicant had attacked his victims in a violent manner. The victims had been almost exclusively male and had included schoolchildren. Some had been acquaintances, but others had not been known to the applicant – people in bars or those who had been randomly chosen on the street. He had either punched his victims in the face, kicked them in the face when they had fallen to the ground or set an Alsatian dog on them, which had significantly injured the victims by biting them, sometimes on the stomach and neck. He had attacked two homeless people whom he did not know with a knife. They had been sleeping in an abandoned building. He had injured the hand, lip, chest and thigh of one and the back and finger of another. Objectively, his victims had not provoked any conflict.

The Hildesheim Regional Court, having consulted a psychiatric expert and a psychological expert, found that the applicant had acted with full criminal responsibility at the time most of his offences had been committed, despite his prior consumption of alcohol. Only in relation to two of his offences could diminished criminal responsibility as a result of alcohol intoxication not be excluded as a relevant consideration (Article 21 of the Criminal Code, see paragraph 34 below). However, the consumption of alcohol had not been the cause of his offences. He did not suffer from any other pathological mental disorder within the meaning of Article 21 of the Criminal Code. His personality differed from that of the majority of the population in that he lacked empathy and saw himself as a strong and dominating man, without that difference being of a pathological nature. He had a propensity to commit serious violent offences against others, where the victims were significantly injured.

On 7 May 1990, having fully served his term of imprisonment, the applicant was placed in preventive detention for the first time, initially mainly in Salinenmoor Prison. In view of another prison sentence he had served, by 7 August 2000 he had spent ten years in preventive detention. On the same day, the Lüneburg Regional Court ordered that his preventive detention should continue.

On 2 May 2001 the Hildesheim District Court convicted the applicant of assault, finding that he had slapped his daughter in the face while under the influence of alcohol while on home leave from detention, and sentenced him to four months’ imprisonment. The applicant served that sentence in 2002.

On 25 August 2003 the applicant was transferred to the detoxification department of Moringen Hospital. By a decision of 18 April 2005 the Göttingen Regional Court then ordered further preventive detention in a psychiatric hospital (Article 63 of the Criminal Code) rather than in a detoxification facility, as his rehabilitation could be better promoted there. The applicant was then transferred to the psychiatric department of Moringen Hospital.

The order for the applicant’s continued preventive detention in a psychiatric hospital was subsequently extended. In March 2011 he was authorised to reside provisionally (Probewohnen) in Friedland Castle in Northeim, a supervised residential facility.

On 19 July 2011 the Göttingen Regional Court again ordered the applicant’s continued preventive detention in a psychiatric hospital, under Article 67d § 3 of the Criminal Code (see paragraph 31 below).

The Regional Court considered that the stricter criteria set out by the Federal Constitutional Court in its judgment of 4 May 2011 regarding preventive detention beyond the former ten-year time-limit during the transitional period lasting until 31 May 2013 (see paragraph 39 below) were met in the applicant’s case.

The Regional Court found that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 36 below), which was the cause of his previous offences. Following its own critical review, it endorsed the conclusions about the applicant’s mental condition which S., an experienced and reliable expert in the field of forensic psychiatry, had drawn in his report dated 26 May 2010 and supplemented on 24 April 2011. The expert had completed his report on the basis of case files, as the applicant had refused an examination. S. had stated that, just as at the time of his offences, the applicant still suffered from a dissocial personality disorder with marked psychopathic elements, as defined by the relevant tool for the classification of diseases, the ICD-10 (International Statistical Classification of Diseases and Related Health Problems in its current, revised version). This diagnosis had further been confirmed by the applicant’s treating doctors at Moringen Hospital.

Furthermore, the Regional Court considered that there was a high risk that the applicant, owing to specific circumstances relating to his character and conduct, would commit the most serious violent crimes if released from preventive detention. As had been confirmed by S., there was a danger that he would again threaten the lives of others by attacking them, for instance by kicking his victims in the head or setting a dog on them and inciting it to bite them on the neck and face. That risk was particularly high when the applicant – whom the expert had concluded abused alcohol without being addicted, as defined by the ICD-10 – was drunk. Owing to his dissocial personality disorder, the applicant had hardly any inhibitions with regard to injuring others, as he lacked empathy. As he did not question his own perception of a situation, a misinterpreted situation could lead to his using unlimited force against randomly chosen victims who objectively had not provoked any conflict by their conduct.

The Regional Court further considered that the applicant’s preventive detention was still proportionate. At that time, there was no residential accommodation outside of preventive detention where his conduct could be closely monitored. In view of his conduct, it was already unclear whether he would be permitted to continue residing in his current residential facility in Friedland Castle. Having regard to the high risk that the applicant would commit the most serious violent offences upon his release, his preventive detention for a period of more than twenty years was not unreasonable.

The Regional Court confirmed that the applicant’s rehabilitation could still be better promoted by detention in a psychiatric hospital than by placement in a preventive detention facility (Article 67a §§ 1 and 2 of the Criminal Code, see paragraph 32 below). Even though there had been no substantial change in his disorder, there had been some positive development in that he had started residing provisionally in a supervised residential facility.

On 19 September 2011 the Braunschweig Court of Appeal, endorsing the reasons given by the Göttingen Regional Court, dismissed the applicant’s appeal as ill-founded.

On 24 October 2011 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his continued preventive detention in a psychiatric hospital breached his constitutional right to liberty. He argued that the strict criteria for continued preventive detention set out by the Federal Constitutional Court in its leading judgment of 4 May 2011 were not met. Having regard to the fact that his offences – committed under the influence of alcohol – dated back twenty-seven years, that he had not drunk alcohol since then, and that the conditions of his detention had been extensively relaxed, the experts and the courts had not convincingly shown that there was a risk that he would commit a serious violent offence again if released. Moreover, it had not been found by the experts or the domestic courts that his alleged mental disorder had caused the offences in question, nor that he was or had ever been an alcoholic.

On 18 July 2012, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2270/11). The decision was served on the applicant’s counsel on 26 July 2012.

From March 2011 to August 2012 the applicant was authorised to reside provisionally in Friedland Castle in Northeim, a supervised residential facility. He received regular visits from staff members from Moringen Hospital. Three times a week he was allowed to go shopping in Moringen for two hours, and once a week he was allowed to go to Northeim for half a day under escort. The applicant continued his work therapy in Moringen Hospital. He no longer received any specific treatment for his mental condition or the alcohol abuse with which he had been diagnosed. The aim of his stay in the supervised residential facility was to enable him to cope with the requirements of everyday life by drawing on his own resources.

In August 2012 the applicant had to return to Moringen Hospital following conflict with the staff at Friedland Castle. From October 2012 onwards he resided provisionally in Gestorf Castle, a supervised residential facility in Springe, with conditions of detention comparable to those in Friedland Castle.

In accordance with the Göttingen Regional Court’s decision of 10 July 2014 to terminate his preventive detention, the applicant was released on 15 September 2014.