Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

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

The applicant was born in 1979 and lives in Donetsk.

On 29 May 1997 the Donetsk Kirovskyy District Court (“the Kirovskyy Court”) found the applicant guilty of robbery and sentenced him to three years’ imprisonment.

On 18 July 1997 the Donetsk Regional Court of Appeal (“the Regional Court”) granted amnesty to the applicant.

On 26 September 1997 the same court, following an objection (протест) by its president, quashed the decision of 18 July 1997 and upheld the judgment of 29 May 1997 by a final decision. The applicant became aware of the Regional Court’s decision of 26 September 1997 only after his arrest in February 2003 (see paragraph 10 below).

In October 1997 the Kirovskyy Court sent its judgment to the local police with a view to ensuring its enforcement. As submitted by the applicant and eventually established by the domestic courts (see paragraph 12 below), he continued living at his permanent address. Although he was placed on a wanted list for a brief period in December 1997, neither during that period nor thereafter did the police try to contact him.

On 12 February 2003 the Kirovskyy police arrested the applicant at his home and brought him to Dzerzhynsk prison no. 2 to serve his sentence.

Following numerous unsuccessful complaints to the prosecution authorities, in March 2003 the applicant lodged a complaint with the Kirovskyy Court, stating that his arrest and detention had been unlawful and requesting to be released.

After several rounds of proceedings, on 23 March 2006 the Kirovskyy Court allowed the applicant’s claim and found the impugned actions of the police officers unlawful. The court found no evidence in the case file that the applicant had been informed of the court hearing and the final decision of 26 September 1997. He had been arrested more than five years later. By that time his sentence had become time-barred, a fact which the police had been obliged, but had failed, to check. As regards the applicant’s request for release, the Kirovskyy Court stated that the issue was no longer of relevance (see paragraph 14 below).

On 23 June 2006 the Regional Court upheld the above decision.

In the meantime, on 27 April 2005, the Dzerzhynskyy Local Court ordered the applicant’s release on parole. The applicant was released on 4 May 2005 once all the formalities had been completed.

In 2006 the applicant lodged a claim for damages against the Ministry of the Interior on account of his unlawful arrest and detention. He relied on the Compensation Act, under which a person could claim such compensation if the unlawfulness of his or her arrest and detention had been established by a judicial decision (see paragraph 26 below). The applicant referred in that connection to the court’s decision of 23 March 2006, in which his deprivation of liberty had been found to be unlawful (see paragraph 12 above).

On 3 April 2007 the Kirovskyy Court rejected his claim as unfounded. It noted the existence of the judicial decision referred to by the applicant without, however, commenting on it. The court observed that the applicant had appealed against neither the judgment of 29 May 1997 nor the ruling of 26 September 1997 (see paragraphs 6 and 8 above). It also observed that he had been released without any conclusion about his guilt. Having relied on the above considerations, the Kirovskyy Court concluded that the applicant had failed to prove that he had been deprived of his liberty unlawfully.

On 26 June 2007 the Regional Court upheld that decision.

On 22 August 2007 the applicant’s representative, G., appealed on points of law.

On 6 September 2007 the Supreme Court gave the applicant a deadline of 16 October 2007 to submit the power of attorney. Its ruling referred to the applicant’s case number as registered by the Supreme Court.

As confirmed by a postal acknowledgement of receipt, on 17 October 2007 the Supreme Court received a registered letter from the applicant’s representative, which had been dispatched on 12 October 2007 and which concerned the case under the number indicated in the ruling of 6 September 2007. According to the applicant, his representative had sent the requested authority form by the above-mentioned registered letter. According to the Government, the content of that letter and the documents enclosed, if any, could not be established in the absence of their detailed description on the acknowledgment of receipt.

On 30 October 2007 the Supreme Court returned the applicant’s appeal on points of law without examination. It held that, contrary to its instructions of 6 September 2007, he had failed to submit the power of attorney “within the set time-limit and before the delivery of the present ruling”.

On 9 November 2007 the Supreme Court sent its ruling to the applicant’s representative. According to the applicant, his representative received it on 24 November 2007.

On 3 December 2007 G. requested that the Supreme Court give reasons for the dismissal of the applicant’s appeal on points of law, since the ruling of 6 September 2007 had been complied with. There was no reply to that request.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr A.B., is a Swiss national who was born in 1965 and lives in Porrentruy. He is a journalist by profession.

On 15 October 2003 the applicant published in the weekly magazine L’Illustré an article entitled “Tragedy on the Lausanne Bridge – the reckless driver’s version – Questioning of the mad driver” (“Drame du Grand-Pont à Lausanne – la version du chauffard – l’interrogatoire du conducteur fou”). The article in question concerned a set of criminal proceedings against M.B., a motorist who had been remanded in custody after an incident on 8 July 2003 in which he had rammed his car into pedestrians, before throwing himself off the Lausanne Bridge (Grand-Pont). He had killed three of them and injured eight others. The incident had caused much emotion and controversy in Switzerland because of the extraordinary circumstances of the case. The article began as follows:

“Surname: B. First name: M. Born on 1 January 1966 in Tamanrasset (Algeria), son of B.B. and F.I., resident in Lausanne, holder of a category C licence, spouse of M.B. Profession: nursing assistant ... It is 8.15 p.m. on Tuesday 8 July 2003, in the austere premises of the Lausanne criminal investigation department. Six hours after his tragic headlong race along the Lausanne Bridge, resulting in three deaths and eight casualties, this reckless driver is alone for the first time, facing three investigators. Will he own up? In fact he doesn’t actually seem to realise what is happening, as if oblivious to the events and all the hubbub around him. The man who upset the whole of Lausanne this fine summer day is not very talkative. This Algerian citizen is withdrawn, introverted, inscrutable, indeed completely impenetrable. And yet the questions are flying from all sides. What were the reasons for this ‘accident’, one of the policemen rather clumsily writes, as if he had already formed his opinion. Four words in reply: ‘I do not know’.”

The article continued with a summary of the questions put by the police officers and the investigating judge and M.B.’s replies. It also mentioned that M.B. had been “charged with premeditated murder (assassinat) and, in the alternative, with murder (meurtre), grievous bodily harm, endangering life and serious traffic offences”, and that he “show[ed] no remorse”. The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. It ended with the following paragraph:

“From his prison cell, M.B. now spends his time sending letters to the investigating judge ...: on being taken into custody he asked for his watch to be returned and requested a cup for his coffee, some dried fruit and chocolate. On 11 July, three days after the events, he even asked to be temporarily released for ‘a few days’. ‘I would like to phone my big brother in Algeria’, he subsequently begged. He finally announced on 11 August that he had come to a ‘final decision’: he dismissed his lawyer, Mr M.B., on grounds of ‘lack of trust’. Two days later, another letter: could the judge send him ‘the directory of the Bar Association of the Canton of Vaud’ to help him find a different defence lawyer? However, with all the recurrent lies and omissions, the mixture of naivety and arrogance, amnesia and sheer madness characterising all these statements, surely M.B. is doing all in his power to make himself impossible to defend?”

The article also included a brief summary entitled “He lost his marbles ...” (“Il a perdu la boule...”), and statements from M.B.’s wife and GP.

M.B. did not lodge any complaint against the applicant. However, criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre. An unknown person had then brought the copy to the offices of the magazine which had published the impugned article.

By an order of 23 June 2004 the Lausanne investigating judge sentenced the applicant to one month’s imprisonment, suspended for one year.

Following an application by the applicant to have the decision set aside, the Lausanne Police Court, by a judgment of 22 September 2005, replaced the prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 euros (EUR)).

The applicant lodged an appeal on points of law. His appeal was dismissed on 30 January 2006 by the Criminal Court of Cassation of the Canton of Vaud.

The applicant applied to the Federal Court, which on 29 April 2008 dismissed his public-law appeal and his appeal on grounds of nullity. The decision was served on the applicant on 9 May 2008. The relevant passages from the decision are as follows:

“7. In short, the applicant submits that his conviction for a breach of Article 293 of the Criminal Code is contrary to federal law. He does not challenge the fact that the information which he published falls within the ambit of Article 293 of the Criminal Code. He does, on the other hand, submit, under an interpretation of Articles 293 and 32 of the Criminal Code in the light of the principles inferred from Article 10 ECHR by the European Court of Human Rights, that having received that information in good faith without any unlawful dealings he had the duty as a professional journalist, under Article 32 of the Criminal Code, to publish them owing to what he sees as the obvious interest of the so-called ‘Lausanne Bridge’ case to the general public in French-speaking Switzerland.

7.1 In accordance with Article 293 of the Criminal Code (Publication of secret official deliberations), anyone who, without being entitled to do so, makes public all or part of the proceedings of an investigation or the deliberations of an authority which are secret by law or by virtue of a decision taken by that authority, acting within its powers, will be punished by a fine (paragraph 1). Complicity in such acts is also punishable (see paragraph 2). The court may decide not to impose any penalties if the secret thus made public is of minor importance (see paragraph 3).

According to case-law, this provision proceeds from a formal conception of secrecy. It is sufficient that the proceedings, deliberations or investigations in question have been declared secret by law or under a decision taken by the authority, or in other words that there has been an intention to keep them from becoming public, regardless of the type of classification selected (for example, top secret or confidential). On the other hand, strict secrecy presupposes that the holder of the specific information wishes to keep it secret, that there is a legitimate interest at stake, and that the information is known or accessible only to a select group of persons (see ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa, p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of this Article on 1 April 1998 (RO 1998 852 856; FF 1996 IV 533). That rule concerns not secrets in the substantive sense but rather instances of futile, petty or excessive concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the application of paragraph 3, the court must therefore first of all examine the reasons for classifying the information as secret. It must, however, do so with restraint, without interfering with the discretionary power wielded by the authority which declared the information secret. It is sufficient that this declaration should nonetheless appear tenable vis-à-vis the content of the proceedings, investigations or deliberations in issue. Moreover, the journalists’ viewpoint on the interest in publishing the information is irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment of 10 December 2007, the European Court of Human Rights confirmed that this formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did not prevent the Federal Court from determining whether the interference in issue was compatible with Article 10 ECHR, by assessing, in the context of its examination of Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given piece of information as secret, on the one hand, and weighing up the interests at stake, on the other (see Stoll v. Switzerland, cited above, §§ 138 and 139).

7.2 In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation.

In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see paragraph 1). The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non-public decisions and investigative measures (see paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis anyone who does not have access to the case file: the judges and judicial staff (save in cases where disclosure would facilitate the investigation or is justified on public-order, administrative or judicial grounds; see Article 185 CPP/VD), and also the parties, their friends and relatives, their lawyers, the latter’s associates, consultants and staff, and any experts and witnesses. However, disclosure to friends or relatives by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the law provides for a range of exceptions. As an exception to Article 185, the cantonal investigating judge and, with the latter’s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [Conseil d’Etat] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly where public cooperation is required to shed light on an offence, in cases which are particularly serious or are already known to the general public, or where erroneous information must be corrected or the general public reassured (see Article 185b paragraph 1 CPP/VD).

The present case therefore concerns secrecy imposed by the law rather than by an official decision.

7.3 As a general rule, the reason for the confidentiality of judicial investigations, which applies to most sets of cantonal criminal proceedings, is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed. Nevertheless, the interests of the accused must not be disregarded either, particularly vis-à-vis the presumption of innocence and, more broadly, the accused’s personal relations and interests (see Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005, § 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez, Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as the need to protect the opinion-forming process and the decision-making process within a State authority, as protected, precisely, by Article 293 of the Criminal Code (see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has already had occasion to deem such a purpose legitimate in itself. The aim is to guarantee the authority and impartiality of the judiciary in accordance with the wording of Article 10 (2) ECHR, which also mentions the protection of the reputation or rights of others (see Weber v. Switzerland, judgment of 22 May 1990, § 45, and Dupuis and Others v. France, judgment of 7 June 2007, § 32).

Furthermore, in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge, this evidence can validly be classified secret, by prohibiting public access to it, as provided by the legislation of the Canton of Vaud. This is the inescapable conclusion as regards the records of interviews of the accused, as it would be inadmissible to allow such documents to be discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court. It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge, which letters focused on practical problems and criticisms of his lawyer (see Police Court judgment, point 4, p. 7). We might point out here that it appears from the impugned publication – which the cantonal authorities did not reproduce in full in their decisions, although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects (letters of 11 July 2003), for a change of cell (letter of 7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003). Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee’s personality which might be drawn during the criminal proceedings from such correspondence, the detainee, whose liberty is considerably restricted, even in respect of everyday acts relating to his private, or indeed intimate, life, can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person under examination (see Article 13 of the Constitution).

It follows that in the instant case the information published by the appellant, in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge, cannot be described as a secret of minor importance for the purposes of Article 293, paragraph 3, of the Criminal Code. Nonetheless, the impugned publication fulfilled the conditions set out in Article 293, paragraph 1, of the Criminal Code.

7.4 Moreover, the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons (the investigating judge and the parties to the proceedings). Furthermore, the investigating court was desirous to keep them secret, with not only a legitimate interest in doing so but an obligation under the Cantonal Code of Criminal Procedure, the justification for which was mentioned above (see point 7.3 above).

7.5 Therefore, the only remaining point at issue is the existence of justification.

In short, the appellant submits that he had the professional duty (under former Article 32 of the Criminal Code) as a journalist to publish the information in question because of the public interest for the population of French-speaking Switzerland of the ‘Lausanne Bridge’ case, which he describes as self-evident. He considers that in the light of European case-law, the basic point is that publication is justified in principle unless there is a pressing social need to maintain secrecy. From the standpoint of good faith, Article 32 should apply to journalists who have nothing to do with the indiscretion committed by a third person and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication. Lastly, he contends that the mode of publication is not a relevant criterion.

8.1 As regards the former point, the cantonal court found that while the accident of 8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a great deal of public emotion, it had nevertheless, in legal terms, been simply a road accident with fatal consequences, and did not in itself entail any obvious public interest. It was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation (see judgment appealed against, point 2, p. 9).

It is true that the ‘Lausanne Bridge case’ attracted extensive media coverage (see Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment appealed against, point B, p. 2)). However, this circumstance alone, alongside the unusual nature of the accident, is insufficient to substantiate a major public interest in publishing the confidential information in question. Unless it can be justified per se, the public interest triggered by media coverage of events cannot constitute a public interest in the disclosure of classified information, because that would mean that it would be sufficient to prompt public interest in a certain event in order subsequently to justify the publication of confidential information to fuel that interest. Furthermore, such a public interest is manifestly lacking as regards the letters published. As we have seen above (see point 7.3 above), these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release, for access to personal effects, to change cells and to use the telephone. This type of information provides no relevant insights into the accident or the circumstances surrounding it. It relates to the private, or indeed intimate, life of the person in custody, and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism. The same applies to the appellant’s requests to the investigating judge in relation to his choice of defence lawyer. Nor is it clear, as regards the records of his interviews, what political question or matter of public interest would have arisen or been worth debating in the public sphere, and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population. This finding of fact, which the appellant has not disputed in his public-law appeal, is binding on this court (see section 277 bis of the Federal Criminal Procedure Act). That being the case, the appellant fails to demonstrate the ‘obvious’ interest to the general public of the information published, and the cantonal court cannot be criticised for having concluded that at the very most, such an interest involved satisfying an unhealthy curiosity.

8.2 The other two factors relied upon by the appellant concern his behaviour (good faith in access to information and mode of publication).

8.2.1 It should first of all be noted that Article 293 of the Criminal Code punishes only the disclosure of information, irrespective of how the perpetrator obtained it. Moreover, even under Article 10 ECHR, the European Court does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities. The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law (see Stoll v. Switzerland, cited above, § 144, and Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I). This point is well-established in the present case (see section B above).

8.2.2 On the other hand, the mode of publication can play a more important role in the context of safeguarding freedom of expression. While the European Court of Human Rights reiterates that neither it, nor the domestic courts for that matter, should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists, in weighing up the interests at stake it nevertheless takes account of the content, vocabulary and format of the publication, and of the headings and sub-headings (whether chosen by the journalist or the editors), and the accuracy of the information (see Stoll v. Switzerland, cited above, §§ 146 et seq., esp. 146, 147 and 149).

In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not, as he claims, to inform the general public about the State’s conduct of the criminal investigation. The headline of the article (‘Questioning of the mad driver’, ‘the reckless driver’s version’) already lacked objectivity. It suggested that the case had already been tried in the author’s view, in the sense that the fatalities on the Lausanne Bridge had been caused not by an ordinary motorist but by a ‘mad driver’, a man ‘oblivious to the events and all the hubbub around him’; The journalist concluded by wondering whether the driver was not doing his best to ‘make himself impossible to defend’. The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed. That court cannot be criticised on that account.

8.3 The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings. He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘pressing social need’.

However, the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings, particularly during the trial, which is generally subject to the publicity principle, does not undermine the justification for keeping judicial investigations confidential, because the primary aim is to protect the opinion-forming and decision-making processes on the part not only of the trial court but also of the investigating authority, until the completion of this secret phase of proceedings. Moreover, far from being neutral and comprehensive, the publication in issue included comments and assessments which presented the information in issue in a particular light, without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts.

8.4 Lastly, the appellant did not explicitly criticise the amount of the fine imposed on him. Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck (former Article 49, point 4, in conjunction with former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the angle of weighing up the interest in the interference, we might simply note that the fine imposed, the amount of which took into account a previous conviction dating back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-year probationary period, for coercion and defamation), does not exceed half the amount of the appellant’s monthly income at the material time (see Police Court judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the time of the first-instance judgment led to any significant drop in his earnings. It should also be pointed out that at CHF 4,000 the amount of the fine is below the statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code (as in force until 31 December 2006), and that this maximum amount, set by the legislature more than thirty years ago, was not revised before the entry into force of the new general section of the Criminal Code, which now sets a figure of CHF 10,000 (see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007). Furthermore, the sanction for the offence with which the appellant is charged did not prevent him from expressing his views, since it was imposed after the article had been published (see Stoll v. Switzerland, cited above, § 156). That being the case, it is unclear, in view of the nature of the offence charged (the least serious in the classification set out in the Swiss Criminal Code), the amount of the fine and the time of its imposition, how it could be regarded as a form of censorship.

8.5 It follows from the foregoing that the appellant disclosed a secret within the meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on any justifying factor in his favour. The decision appealed against does not violate federal law as interpreted in the light of the provisions of the Convention relied upon by the appellant.”


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1957 and lives in Kyiv.

On 26 December 2009 the applicant’s twenty-five-year-old son, K., was arrested by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery.

On 27 December 2009 K. underwent a medical examination, which did not reveal any injuries.

On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial.

On 30 December 2009 K. was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”).

On 22 March 2010 he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office (“the Shevchenkivskyy Prosecutor’s Office”).

At 9.30 a.m. on 10 April 2010 K. was admitted to Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, rupture of the spleen, retroperitoneal haematoma, a closed chest injury, laceration (tissue rupture) of the right lung, left-sided pneumonia, post-traumatic anaemia, and fourth-degree haemorrhagic shock (the most serious on a scale of one to four, entailing critical blood loss of over 40%).

On 10 and 12 April 2010 K. underwent surgery twice in respect of the above-mentioned injuries and his spleen was removed.

On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the SIZO on 8 April 2010.

On 23 April 2010 the Shevchenkivskyy Prosecutor’s Office refused to institute criminal proceedings against police officers in respect of K.’s ill-treatment for lack of corpus delicti in respect of their actions.

On 28 April 2010 K. was discharged from hospital and placed in the SIZO’s medical unit, where he remained until 18 June 2010.

On 3 June 2010 the Kyiv City Police Department completed the internal investigation in respect of the applicant’s complaint regarding the alleged ill-treatment of her son and found it to be without any basis.

On 8 June 2010 the newspaper “Segodnya”, issued in the Kyiv region, published an article under the headline “A bad [police] station” («Нехороший участок») about the alleged ill-treatment of the applicant’s son in the Shevchenkivskyy police station in spring 2010. The author relied, in particular, on the statements of one of K.’s cell-mates. A similar article titled “Another incident in the Shevchenkivskyy police station” («Новое ЧП в Шевченковском РУВД») appeared in the internet media outlet “Levyy Bereg”.

On 10 June 2010 the Shevchenkivskyy Prosecutor’s Office overruled its decision of 23 April 2010 and decided that further investigation was required. More specifically, K. had to be questioned as to who exactly had subjected him to ill-treatment in the SIZO in April 2010.

On 10 June 2010 the investigator also questioned the applicant’s son. K. contended that on 26 December 2009, when he was arrested, police officers had hit him in the stomach. He further stated that the investigator dealing with his case had also hit him in the stomach once in March 2010. According to K., these two beatings had necessitated his urgent medical treatment on 10 April 2010. K. said that he did not understand why his mother had stated that he had been subjected to ill-treatment on 8 April 2010 (see paragraph 13 above).

On 21 June 2010 the investigator who was in charge of K.’s criminal case was also questioned. He denied ever having seen K. in March 2010, let alone having physically assaulted him.

On 8 July 2010 the Shevchenkivskyy Prosecutor’s Office once again refused to institute criminal proceedings against the police officers in question, having found no evidence of criminal conduct. The decision not to prosecute noted that K. had not complained of any ill-treatment during his detention, and that his medical examination on 27 December 2009 had not revealed any injuries (see paragraph 7 above). Following his hospitalisation on 10 April 2010, K. had mentioned to a doctor that he had been physically assaulted some three days earlier, and the doctor had then stated to the investigator that K.’s injuries had been sustained no more than two days before his admission to hospital. According to his medical file, K.’s injuries had originated from blows to his back with blunt objects one to twelve hours prior to his admission to hospital (that is, during the night of 9 to 10 April 2010). On the basis of the above information, the Shevchenkivskyy Prosecutor’s Office concluded that the allegation regarding K.’s illtreatment was unsubstantiated.

On 3 August 2010 an official of the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s Office”), to which the investigation had been transferred meanwhile for an unknown reason, also questioned K. This time, he stated that he had only been ill-treated on 26 December 2009, but never thereafter.

On 25 August 2010 eleven inmates with whom K. had shared a cell in the SIZO were also questioned. They said that he had felt unwell on the night of 9 to 10 April 2010, and that an ambulance had been called for him on the morning of 10 April 2010. They also submitted that nobody had been violent towards him or had put him under any psychological pressure.

On 9 September 2010 the SIZO’s medical assistant (фельдшер), who had been on duty at the time of the events, was questioned as part of the investigation. He stated that he had been called to cell no. 36, where K. had been held, at 8.45 a.m. on 10 April 2010. K. had complained of weakness, vertigo and blurred vision. He had not alleged any ill-treatment and a visual examination had not revealed any injuries. He had had low blood pressure. The medical assistant said that he had provided K. with the necessary medical assistance and had reported the matter to the doctor on duty. The doctor on duty at the time of the events made a similar statement.

On 22 October 2010 an official from the Kyiv Prosecutor’s Office questioned the ambulance paramedics who had been called to assist K. They did not remember the circumstances.

On 4 November 2010 the Kyiv Prosecutor’s Office questioned K. again. He stated that Shevchenkivskyy police officers had physically assaulted him following his arrest on 26 December 2009. He considered that the sudden deterioration in his health on 10 April 2010 had been the consequence of that ill-treatment.

From 8 November 2010 to 28 January 2011 a forensic medical expert evaluation of K.’s medical file was carried out, with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been. The expert concluded that K. had sustained an insignificant spleen trauma about a month prior to undergoing surgery, on around 10 March 2010. More specifically, he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally. However, about twelve hours before surgery (at about 4 a.m. on 10 April 2010) K. had sustained a serious non-penetrating stomach injury resulting from a blow to the left side of his back with a blunt object. As a result, he had sustained a haemoperitoneum, a partial rupture of the diaphragm and trauma of the spleen.

On 29 December 2010 the applicant’s son signed a form of authority, authorising Mr Zarutskyy (the lawyer who represented the applicant before the Court – see paragraph 2 above) to represent him in proceedings before the Court. He did not, however, lodge an application with the Court on that occasion. According to the applicant, her son did intend to lodge an application regarding both his ill-treatment and the investigation into that allegation.

In February 2011 K.’s lawyer challenged the refusal to institute criminal proceedings of 8 July 2010 (see paragraph 21 above) with the Kyiv Prosecutor’s Office and before the Shevchenkivskyy Court. He submitted, in particular, that the origin of K.’s injuries while he had been under the authorities’ control had never been explained.

On 10 March 2011 the Kyiv Prosecutor’s Office, relying on the findings of the forensic medical expert report of 28 January 2011 (see paragraph 26 above), opened a criminal case in respect of unidentified individuals who had caused K. grievous bodily harm. The investigation was entrusted to the Shevchenkivskyy Police Department.

On 7 July 2011 the Shevchenkivskyy Court quashed the decision of the Shevchenkivskyy Prosecutor’s Office of 8 July 2010 and remitted the case for additional investigation.

Between 31 May and 25 August 2011 another forensic medical expert evaluation was carried out. It confirmed the findings of the earlier expert report of 28 January 2011 (see paragraph 27 above), but added that a fall could not be ruled out as a possible cause of the injuries.

On 26 August 2011 the Shevchenkivskyy Prosecutor’s Office issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions.

On 30 September 2011 K. was assigned victim status in the criminal investigation launched on 10 March 2011. On the same date the investigator of the Shevchenkivskyy Police Department questioned him. K. maintained his earlier version of events, namely that his ill-treatment had consisted of the following two episodes: Shevchenkivskyy police officers physically assaulting him following his arrest on 26 December 2009, and the investigator in charge hitting him once in the stomach at the end of March 2010.

On 30 September 2011 the SIZO administration sent to the investigator the list of the staff members who had been on duty during the night of 9 to 10 April 2010. As regards the list of K.’s cell-mates at the time, the administration informed the investigator that no records were kept in that regard.

On 7 November 2011 K., who had been transferred from the SIZO to a civilian hospital and who was suffering from HIV, tuberculosis and a number of concomitant diseases, died (see paragraphs 43-51 below).

On an unspecified date in November 2011 the applicant was granted status as K.’s successor in the criminal investigation into his ill-treatment. She was represented by the same lawyer who had earlier represented K.

On 9 December 2011 the Chief of the Shevchenkivskyy Police Department informed the applicant’s lawyer that the investigation, which had been initiated on 10 March 2011 (see paragraph 30 above), was ongoing.

On 30 March 2012 the applicant enquired with the Shevchenkivskyy Police Department about the progress of the investigation.

On 31 July 2012 the Kyiv City Investigation Department informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry.

It is not clear whether any investigative measures were implemented between 2012 and 2014.

On 7 March 2014 the investigator of the Shevchenkivskyy Police Department made an entry in the Unified Register of Pre-Trial Investigations about the assault on K. causing grievous bodily harm. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012.

Between 14 and 17 May, and 18 and 23 June 2010, when he was a detainee in the SIZO, K. was examined at the Kyiv City AIDS Centre at his request. He tested positive for HIV on both occasions.

According to the information submitted by the Government, between 24 June 2010 and 20 April 2011 K.’s health remained stable and he did not seek medical assistance.

On 20 April 2011 K. had his lungs X-rayed and was diagnosed, for the first time, with tuberculosis of the right lung. It was unclear how advanced the tuberculosis was. According to the Government, he was prescribed preventive treatment for two to three months.

On 23 May 2011 K.’s lawyer enquired with the management of the SIZO about his client’s condition. He asked, in particular, for clarification as to whether K. had been diagnosed with tuberculosis while in detention, and requested copies of the relevant documents.

On 8 June 2011 the SIZO deputy governor and the chief of the medical unit replied that, following a planned X-ray that day, K. had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the SIZO’s medical unit for treatment. In another letter (dated 28 November 2011) from the SIZO management to the applicant’s lawyer (see also paragraph 52 below), it was stated that on 8 June 2011 K. was also diagnosed as having HIV, chronic gastritis, hepatitis in remission and a drug addiction. In addition, he was classed as being in recovery following the removal of his spleen.

According to an extract from K.’s medical records, he was examined repeatedly by the SIZO’s doctors between June and October 2011. Each record begins with the statement that K.’s complaints remained the same, without specifying of what he complained. The records of 28 July and 9 September 2011 further note that K. complained of weakness. Furthermore, it was recorded that K. had complained of periodic coughing with purulent sputum during his examinations on 7 July and 15 October 2011. From 18 October 2011 onwards a deterioration in K.’s health was noted. On 20 October 2011 an ambulance was called for him.

As indicated in the letter sent by the SIZO management on 28 November 2011 in reply to the applicant’s lawyer’s inquiry of 13 October 2011, K. had an X-ray which revealed that the treatment of his tuberculosis was evolving positively. A decision was made to continue that treatment.

On 20 October 2011 K. was taken to Kyiv City Hospital no. 5, where the following diagnoses were made: infiltrative tuberculosis of the right lung, HIV in an unclear phase, meningitis caused by HIV, chronic hepatitis and gastritis in remission. K. was also classed as being in recovery following the removal of his spleen.

On 7 November 2011 K. died in the hospital.

In a letter of 28 November 2011 to the applicant’s lawyer the SIZO management noted that they had previously asked the Kyiv City Court of Appeal, which was dealing with the criminal case against K., to either accelerate the examination of that case or release K. on health grounds. However, they had not received any reply.

On 8 November 2011 the investigator of the Svyatoshynskyy District Police Department inspected K.’s body in the hospital. According to the report on “the inspection of the scene of the incident”, there was no indication of a violent death.

On the same date, the applicant asked the police to transfer the body to a mortuary, with a view to establishing the cause of death.

According to K.’s death certificate, which was issued on 10 November 2011, his death had been caused by acute heart failure, HIV and multiple concomitant illnesses.

The autopsy report, which was also issued on 10 November 2011, specified that the immediate causes of death had been a brain tumour, pulmonary and heart failure resulting from “express autointoxication following cryptococcal meningoencephalitis, macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction”. The report also noted that K. had had “shock kidneys”, cachexia, oropharyngeal candidiasis, and albuminous degeneration of the tissues of the kidneys, cardiac muscle and liver.

The applicant made a complaint to the prosecuting authorities regarding her son’s premature death and requested an investigation.

On 16 November 2011 the Svyatoshynskyy District Police Department refused to open a criminal investigation into the matter, having concluded that there was no indication of a criminal offence.

On 23 December 2011 the Svyatoshynskyy District Prosecutor’s Office overruled that decision on the grounds that it was based on a superficial investigation.

On 31 December 2011 the investigator once again refused to open a criminal case in relation to K.’s death. Relying on the scene inspection report of 8 November 2011 and the death certificate of 10 November 2011 (see paragraphs 53 and 55 above), he considered that there was no third-party involvement in the death.

On 16 July 2012 the applicant complained to the General Prosecutor’s Office about the ineffectiveness of the investigation. In particular, she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed. She noted that there had been no medical monitoring or treatment of K. as regards his HIV. Furthermore, while the HIV diagnosis presupposed a high risk of tuberculosis, K. had not had an X-ray until almost a year after he had tested positive for HIV. The applicant also complained that the intervals between the X-ray sessions had been unreasonably long. Thus, after his X-ray on 6 June 2011 K. had subsequently not had an X-ray until 13 October 2011, whereas a repeat X-ray should have been performed within a two-month time period. Furthermore, although K.’s treatment for tuberculosis had been unsuccessful, it had been continued, and his resistance to the medications prescribed had never been verified. Lastly, the applicant complained that the authorities had not provided her with all the information concerning her son’s health while he had still been alive, despite the numerous inquiries made by her lawyer. In particular, she had only found out about her son’s HIV after his death.

On 20 July 2012 the General Prosecutor’s Office forwarded the above complaint to the Kyiv Prosecutor’s Office.

On 15 August 2012 the Svyatoshynskyy Prosecutor’s Office wrote to the applicant saying that her complaint concerning her son’s death and the allegedly inadequate medical care he had received had already been investigated. As a result, it had been decided on 31 December 2011 that there were no grounds for opening a criminal case (see paragraph 60 above). It remained open to the applicant to challenge that decision.

There is no information in the case file about any subsequent developments.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant was born in 1952. At the time of lodging his application, he was detained in Berlin Tegel Prison. He now lives in Berlin.

On 1 October 1998 the Berlin Regional Court convicted the applicant of dangerous assault. It sentenced him to six years and six months’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 36 below). The court found that the applicant had stalked his former girlfriend, terrorised her and her family with telephone calls, sudden appearances and threats against their life and limb, had finally waylaid his former girlfriend in front of her workplace and had stabbed her twice in the neck with a pair of scissors with the intention of killing her. He had stopped short of stabbing his victim to death. Endorsing the findings psychiatric expert A. had set out in his report, the court was of the view that the applicant had acted with diminished criminal responsibility as he had been in a state of affective excitement and suffered from a neurasthenic syndrome at the time of the offence. The court found that the applicant, who had previously been convicted in 1975, 1977, 1981, 1983 and 1988 of comparable offences including dangerous and sexual assault and rape, committed mostly against former girlfriends at the end of their relationship with him, had a propensity to commit serious violent offences and was dangerous to the public.

The applicant served his full term of imprisonment, which ended on 27 February 2005, essentially in Berlin Tegel Prison.

The applicant was not released at the end of his prison sentence but remained in factual preventive detention without a formal decision of the competent courts for the execution of the preventive detention order under Article 67c of the Criminal Code (see paragraph 36 below), because the proceedings were delayed.

On 15 June 2007 the Berlin Court of Appeal decided that the applicant’s further preventive detention without a court decision ordering its execution was unlawful, and ordered its interruption. The applicant was released on that day.

On 9 July 2007 the Berlin Regional Court ordered the execution of the applicant’s preventive detention in accordance with Article 67c § 1 of the Criminal Code as it was not reasonable to expect that the applicant would commit no further unlawful acts if released. It took note, in this context, of the view expressed by psychotherapy expert B., who had considered that the applicant’s impulsive and offensive behaviour in the hearings in June 2007 had confirmed the finding in his report dated 15 September 2005 that the applicant was still dangerous to the public.

The applicant appealed against the decision. He remained at liberty while the appeal was pending.

While he was at liberty, he found a flat and a job and voluntarily started psychotherapy treatment with a female psychologist, So. He regularly attended weekly therapy sessions with So. and did not commit any criminal offences while at liberty.

On 27 May 2008 the Berlin Court of Appeal upheld the Berlin Regional Court’s decision. Just like the Regional Court, it based its decision on a medical expert opinion drawn up previously by psychotherapy expert B. and psychologist S. Expert B. had examined the applicant on four occasions between February and September 2005. S. had performed psychological tests with the applicant in March 2005. Both experts had issued their common written medical report on 15 September 2005 and had supplemented it with a further medical statement answering the questions of counsel representing the applicant on 20 April 2006. The original report was moreover based on the examination of the applicant’s prison files and a large number of investigation files, as well as on an interview with one of his fellow prison inmates.

In their written report, the experts came to the conclusion that the applicant suffered from a narcissistic and antisocial personality disorder. They were of the view that there was a very high risk that the applicant would reoffend because of his personality structure and could be expected to commit serious criminal offences mainly directed against potential female victims’ physical and sexual integrity. The applicant had continually committed new offences while on probation, so that his probation had been revoked on five occasions. He had mostly committed crimes against the physical and sexual integrity of women and usually at the end of his relationships, when he had been unable to accept that his girlfriend had left him. Therapeutic treatment had not been successful so far.

The court endorsed the findings of the psychiatric experts. It ruled that although the applicant had not committed any offences during his year at liberty, and although he had voluntarily and regularly undergone psychological treatment during that year, there was no reason to believe that he would abstain from reoffending. In the past the applicant had already abstained from committing further offences for longer periods. Situations similar to those in which the applicant had previously committed offences, especially against the physical and sexual integrity of his female partners, at the end of relationships, were likely to arise and to escalate again just as in the past.

On 30 May 2008 the applicant returned voluntarily to Berlin Tegel Prison for the continuation of his preventive detention.

On 2 September 2008 the Federal Constitutional Court declined to consider the constitutional complaint lodged by the applicant against the Regional Court’s and the Court of Appeal’s decision on the execution of the preventive detention order (file no. 2 BvR 1612/08).

On 20 December 2012 an application (no. 12132/09) lodged with this Court in this context was declared inadmissible by a Single Judge in a procedure pursuant to Article 27 of the Convention.

On 12 October 2009 the Berlin Regional Court decided in its first periodic review proceedings, in accordance with Articles 67d § 2 and 67e §§ 1 and 2 of the Criminal Code in their then relevant version (see paragraph 36 below), that the applicant’s preventive detention was to continue. It found that it was not reasonable to expect the applicant to commit no further unlawful acts on his release.

The court heard the prison authorities which, in their written statement of 6 March 2009, submitted that the applicant was not willing to work on his problems and refused any therapeutic treatment in the detention centre. The court also heard the applicant on 25 September 2009. It further based its decision to extend the applicant’s preventive detention on the opinion of psychotherapy expert B. and psychologist S. of 15 September 2005, supplemented on 20 April 2006 (see paragraph 13 above). It had regard to the fact that the applicant had been convicted fifteen times since 1971, including ten convictions for violent crimes.

The Regional Court further dismissed the applicant’s request for a new psychiatric expert opinion. It found that Article 454 § 2, read in conjunction with Article 463 § 3 of the Code of Criminal Procedure (see paragraph 37 below), only required a new psychiatric expert report as a basis for a periodic review decision if the court was considering releasing a detainee from preventive detention on probation, in order to ensure that he was no longer a danger to the public. The court held that, in accordance with the case-law of the Federal Constitutional Court (see decision of 3 February 2003, file no. 2 BvR 1512/02) and of the Constitutional Court of Berlin (see decision of 4 March 2009, file no. VerfGH 104/07) it was otherwise within the discretion of the court assessing the need to extend the preventive detention order to decide whether a new expert opinion was necessary. As a rule, an expert opinion would be necessary if the detainee suffered from psychiatric anomalies that demanded a psychiatric expert’s assessment in order to be able to predict the danger he represented for the public. Otherwise, a new psychiatric expert report was generally not necessary unless special new circumstances demanded a new examination of the detainee.

The court found that, in accordance with the legal standards described, there was no necessity to seek a new expert opinion. It referred to the arguments given in the Court of Appeal’s decision of 27 May 2008, adding that there had been no significant changes since then. The applicant had refused to undergo therapeutic treatment within the detention centre since he had been returned to preventive detention. His age of 57 years did not warrant a different conclusion as regards the danger he represented in the circumstances of his case. The written expert opinion of B. and S. of 15 September 2005, supplemented on 20 April 2006 and explained by B. at two hearings, lasting a total of six hours, before the Regional Court in June 2007, was therefore still recent enough.

The court was, however, of the view that the applicant should be allowed to continue his therapy with the external psychologist So., which he had not been authorised to pursue since his renewed preventive detention. The prison authorities should allow him to continue and organise escorted short-term leave for therapy sessions with his psychologist outside the detention centre.

On 24 March 2010 the Berlin Court of Appeal dismissed the applicant’s appeal. The court considered that releasing the applicant on probation on the condition that he underwent therapeutic treatment outside the detention centre would be irresponsible. There were no convincing and verifiable indications that the applicant had tackled his offences or the flaws in his character that had led to them. The year he had spent at liberty during the interruption of his preventive detention did not prove otherwise, although he had not reoffended during that period of time. The applicant had already abstained from committing offences for longer periods of time in the past, but had nevertheless repeatedly committed serious offences against the physical integrity of his female partners when they had ended their relationship with him. Having regard also to the personality disorders leading to his dangerousness, the period of one year at liberty was therefore too short to prove that the applicant was no longer dangerous. In this regard, the court referred to the reasoning in its decision of 27 May 2008 and the expert opinion of B. and S. on which that decision was based (see paragraphs 13-15 above).

The court further recognised that the applicant had voluntarily undergone psychological treatment once per week with the psychologist So. while at liberty. However, it considered that there was no proof of the success of this treatment. Instead, the impulsive and offensive way in which the applicant treated other people, notably those working in the detention centre, showed that his attitude and his character had not changed and that he was still unwilling to cooperate.

Moreover the court found that, although the prison authorities had, without giving proper reasons, refused to grant the applicant escorted shortterm leave from prison, especially short-term leave for the purpose of meeting his external therapist So., such deficiencies in the execution of the preventive detention did not justify the applicant’s release. The court recognised that prison leave was necessary in order to enable the applicant, in the long run, to prove his capacity to live at liberty again without committing further offences. However, the court was of the view that, even if the applicant had been granted the necessary leave since his readmission into preventive detention, the period passed since then would have been too short to prove that he was no longer dangerous. Therefore, the continuation of the applicant’s detention was not yet excessive.

The Court of Appeal was moreover of the view that the Regional Court’s decision not to commission a new medical expert opinion was lawful and did not breach its duty to establish the relevant facts. As explained above, a new psychiatric expert would not be confronted with a significantly different situation to the one B. and S. had found when they prepared their expert report. The applicant’s refusal to cooperate and to accept further psychological treatment within the detention centre showed that the therapy with So. had not significantly changed his character and behaviour.

On 16 June 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decisions of the Berlin Regional Court and the Berlin Court of Appeal, in which the applicant had alleged breaches of his constitutional rights to liberty and to a fair trial (file no. 2 BvR 903/10).

On 24 March 2010, upon the applicant’s appeal, the Berlin Court of Appeal, in a separate decision, quashed the prison authorities’ and the Regional Court’s decision refusing the applicant short-term leave to continue his psychotherapy treatment with So. as from October 2008. The court ordered the prison authorities to grant the applicant escorted shortterm leave at least every second week in order to undergo further psychotherapy treatment with the external psychologist, So.

The applicant was enabled to attend psychotherapy sessions with So. until his relationship of trust with the psychologist came to an end in September/October 2010. On 9 December 2010 the Berlin prison authorities thereupon suspended the applicant’s prison leave, finding that the applicant had repeatedly threatened So. On 29 April 2011 the Berlin Court of Appeal upheld that decision. It found that there was a risk that the applicant would use the prison leave to commit further offences, seeing that his dispute with So. resembled the situation arising in the applicant’s past relationships with women prior to his committing serious offences against them.

The applicant’s subsequent requests to be granted access to treatment with the external psychiatric expert Dr P. in a Berlin clinic were turned down by the prison authorities, confirmed by the Regional Court. The Berlin Court of Appeal quashed these decisions on 3 November 2011 and 4 May 2012 and ordered the prison authorities to reconsider the applicant’s requests in view of the court’s findings. In its decision of 4 May 2012 the Court of Appeal found that, as it had explained in its decision of 24 March 2010, the applicant could not be obliged to undergo therapy in prison. The applicant resumed external psychotherapy in September 2012.

On 22 May 2012 the Berlin Regional Court issued its decision in the fresh periodic review proceedings. It held that the execution of the preventive detention was to be suspended on probation as from 20 November 2013, ordered the applicant’s probationary supervision for five years and ruled, inter alia, that the applicant was to avoid any contact with his former external psychologist So. and her family, as he had started to stalk her and threaten her with e-mails and telephone calls.

The court, endorsing the findings in a new external psychiatric expert opinion issued by P., held that although the probability that the applicant would reoffend at liberty was still high, it would be possible to release the applicant on probation after a preliminary period of about one year if the pre-operational phase was mastered by the applicant without further problems. As the prison authorities had ignored and boycotted the court’s orders to grant the applicant access to external psychological treatment for years in a way the court had never seen before and which it found to be unconstitutional, the applicant’s interest in being at liberty now outweighed the public interest.

On 12 October 2012 the Court of Appeal upheld that decision on appeal. It found that the applicant’s immediate release was not to be ordered owing to the danger he represented. Referring to a report drawn up by expert D. in 2010, it stressed in that context that the fact that the applicant had not reoffended while at liberty in 2007/2008 was not conclusive of his not representing a danger. The applicant had previously committed offences in the context of relationships with women. However, he had not had such a relationship during the time he was at liberty. Furthermore, he did not have a right to choose freely his therapist.

The applicant was released on parole on 20 November 2013.


CASE OF MANOLE AND "ROMANIAN FARMERS DIRECT" v. ROMANIA

Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);No violation of Article 11 - Freedom of assembly and association

Iulia Motoc;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

Mr Benieamin Manole, the first applicant, was born in 1956 and lives in Priponesti, Galaţi county.

By decision of 15 January 2006 the first applicant, a farmer, and forty-eight other persons meeting in constituent assembly decided to form a trade union entitled “Agricultural trade union Romanian Farmers Direct”. The first applicant was elected President of the new trade union.

On 23 January 2006 the first applicant applied to the Tecuci District Court seeking the registration of the trade union which he represented, with a view to conferring legal personality on it. He enclosed with his request the statutes of the trade union and the relevant authority form presented to him by the Constituent Assembly, as notarised on 27 January 2006.

According to those statutes, the applicant trade union’s main purpose was to defend the interests of its members, that is to say farmers and persons providing services for farmers, including transport facilities. The first applicant described that purpose as follows:

“The Romanian Farmers Direct trade union emerged from the desire to help Romanian farmers move on from subsistence farming to agriculture as practised in the European Union, where the production of rural farms is directed towards the market rather than self-sufficiency, as is currently the case in our country, [in order to] provide farmers with a decent standard of living.

Our trade union has set itself the aim of organising local centres (three or four adjacent municipalities) in all the counties of Romania with a view to providing legal information, accountancy advice and judicial assistance to individual farmers ....

We believe that it would be advantageous if as many farmers as possible could come together to think and act in unison in order to ensure the success of our agricultural activities ....”

By judgment of 27 January 2006 the district court, sitting in single-judge formation (Judge N.M.), declared the request for registration of the trade union inadmissible on the grounds that only employees (persoanele încadrate în muncă) and civil servants could set up trade unions.

On appeal on points of law lodged by the applicant trade union, represented by the first applicant, that judgment was quashed by decision of Galaţi County Court on 21 March 2006. That court held that the action had been wrongly declared inadmissible and that the district court should have examined the merits of the case.

By judgment of 12 April 2006 the Tecuci District Court, sitting in the same single-judge formation, rejected the request as ill-founded on the grounds that under Law No. 54/2003 on trade unions (Legea sindicatelor), farmers could not set up trade unions but could only join pre-existing unions.

The applicant trade union lodged an appeal on points of law, submitting, first of all, that the court which had tried the case after invalidation had been the same which had delivered the invalidated judgment of 27 January 2006, and secondly, that Article 40 of the Constitution guaranteeing trade union rights had been infringed.

By decision of 30 May 2006 the county court accepted the applicant trade union’s appeal on points of law insofar as it concerned the make-up of the first-instance trial court, and, assessing the merits of the case, rejected the trade union’s application for the registration of the trade union. In doing so the court observed that only employees holding a contract of employment and civil servants could set up trade unions, to the exclusion of farmers and other self-employed persons, who could only join pre-existing trade unions.

By a handwritten authority form dated 12 November 2006, the first applicant, acting in his own name and on behalf of the applicant trade union – in his capacity as the latter’s representative – appointed Mrs G. Perin counsel to represent them before the Court. That authority was signed by both the first applicant and Mrs G. Perin.

The authority may be translated as follows:

“I, the undersigned Manole Benieamin, born on 18 March 1956 in the municipality of ..., in my capacity as President of the farmers’ trade union ‘Romanian Farmers Direct’ and as legal representative of that trade union, appoint as counsel to defend our case before the European Court of Human Rights Ms Giulia Perin, a lawyer practising in Padua, Italy.”


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1969 and lives in Trlić.

The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison.

In the period from 25 August 2009 to 22 September 2009 and from 4 November 2009 to 12 November 2009 he was held in the closed section: for two days in cell 4, measuring 18.75 square metres (not including a separate 2.44 square metre sanitary facility) shared with two to four other inmates and with 3.26 to 5.4 square metres of personal space and for thirtysix days in cell 2 measuring 16.18 square metres (not including a separate 1.7 square metre sanitary facility) shared with two to four other inmates and with 2.9 to 4.8 square metres of personal space.

In the period between 23 September 2009 and 3 November 2009 he was held in the semi-open section for forty-two days in cell 137, measuring 17.94 square metres (not including a separate 1.75 square metre sanitary facility) shared with two to four other inmates and with 3.2 to 5.4 square metres of personal space.

As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.