No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicant was born in 1956 and lives in Vilnius.

The applicant’s father, V.P., was a well-known writer in Lithuania. In September 2003 he published a book entitled “The Ship of Idiots” (Durnių laivas – hereinafter “the book”) in which he presented his memoirs of various events in the history of Lithuania, often using a satirical and mocking tone. Several passages in the book discussed the personality and activities of V.L.-Ž. (deceased at the time of publication). V.L.-Ž. had been a minister in the Provisional Government of Lithuania, which operated from June to August 1941, and his son V.L. had been a prominent Lithuanian politician since the 1980s. The book contained the following statements (hereinafter “the disputed statements”), in which V.L.-Ž. was referred to as “[L.] senior” or “the patriarch”:

“[V.L.] had to somehow cover for his father, who had for many years collaborated with the KGB ... Having worked as a spy, he was returned home by Moscow ...” ([L.] reikėjo kaip nors pridengti tėvą, ilgus metus bendradarbiavusį su KGB ... Jį kaip atidirbusį žvalgą namo sugrąžino Maskva ...)

“Some were already [trying to get familiar with] the new ‘patriarch’, Hitler’s ... friend, ... spy, ... copier of strategic maps, [L.] senior ...” (Kai kas jau vedžiojo už parankių naujai iškeptą „patriarchą“, Hitlerio ... draugą, ... žvalgą, ... strateginių žemėlapių kopijuotoją senąjį [L.] ...)

“[L.] senior ... told how in 1918 ... [they] had raised the flag in the castle tower ... [H]ow afterwards they had had to flee to Kaunas in order to escape from the Bolsheviks, how on the way they had been arrested [and] interrogated... (and, as far as I know, recruited).” (Senasis [L.] ... pasakojo, kaip 1918 metais ... pilies bokšte kėlė vėliavą, ... kaip jiems po to teko nuo bolševikų bėgti į Kauną, kaip pakeliui juos areštavo, tardė... (o kiek man žinoma, ir užverbavo).)

“The pharmacy was ejected onto the streets. Moreover, the pharmacists were sued because ‘the patriarch’ did not find on the veranda the six-metre oak bench which he had left there before the war.” (Vaistinę išmetė į gatvę. Dar daugiau, vaistininkai buvo paduoti į teismą todėl, kad patriarchas verandoje nerado šešių metrų ąžuolinio suolo, kurį buvo palikęs prieš karą.)

On the fourth page of the book it was stated that the author assumed full responsibility for the truthfulness of the facts presented in the book (autorius prisiima visą atsakomybę už knygoje išdėstytų faktų tikrumą).

After the book’s publication, V.L. lodged a complaint with the Prosecutor General’s Office (hereinafter “the prosecutor”), seeking the opening of a pre-trial investigation against V.P. for defamation of his late father. On 21 October 2003 the prosecutor opened the investigation.

During the investigation, the prosecutor asked various bodies about the activities of V.L.-Ž. described in the disputed statements. He received replies from the Central State Archives, the Genocide and Resistance Research Centre of Lithuania, the National Library of Lithuania, the Archives of Literature and Art, and the State Security Department. They all stated that they did not have any information indicating that V.L.-Ž. had collaborated with the Nazi or Soviet regimes or any information confirming any of the other parts of the disputed statements. The prosecutor also interviewed several individuals who had been quoted as sources in V.P.’s book but they all stated that they were unable to confirm the truthfulness of the events described in the disputed statements.

On 10 October 2005 the Vilnius City First District Court acquitted V.P. of defamation on the grounds that the offence could be committed only against a living person, whereas V.L.-Ž. was already dead when V.P.’s book had been published. The court noted that V.P.’s actions could have constituted the crime of contempt for the memory of a deceased person, but that charge had not been included in the indictment.

V.L., V.P. and the prosecutor all submitted appeals against that decision, and on 17 January 2006 the Vilnius Regional Court quashed it. The court found that the indictment had not complied with the relevant procedural requirements, and returned the case to the prosecutor.

On 9 August 2006 the prosecutor discontinued the pre-trial investigation. He considered that there was sufficient evidence to charge V.P. with contempt for the memory of a deceased person, but criminal prosecution for that offence had become time-barred.

In June 2007 V.L. lodged a civil claim against V.P. He asked the court to order V.P. to publicly retract the disputed statements and to award him 100,100 Lithuanian litai (LTL – approximately 29,000 euros (EUR)) in respect of non-pecuniary damage. V.L. submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father, as well as to his own honour and dignity.

V.P. disputed the claim, submitting that he had not intended to defame or insult anyone and that the disputed statements had been taken out of context. He contended that the book had been a product of literary creativity made up on the basis of his subjective memories, and that it had been written in figurative and exaggerated language which could be interpreted in many different ways. V.P. thus argued that the disputed statements should be regarded as value judgments and not as factual statements. He further submitted that, in any event, when writing the book he had relied on various historical sources and witness testimonies, as well as on his own personal experience – he provided a list of books and other publications which he had consulted, and described the circumstances in which he had found out about the events discussed in the disputed statements. Therefore, he argued that the disputed statements had been sufficiently accurate. Lastly, V.P. contended that both V.L.-Ž. and V.L. had been prominent politicians and public figures and therefore had to tolerate higher levels of criticism.

On 10 December 2008 V.P. died. The court adjourned the examination of the case until V.P.’s legal successors were identified. On 7 May 2009 the applicant and her two brothers, who had accepted their father’s inheritance, were issued with certificates of inheritance, stating that they had inherited their father’s estate in equal parts. On 23 July 2009 the court decided to continue with the examination of the case, replacing the defendant V.P. with the applicant and her brothers.

V.L. subsequently amended his claim and asked the court to declare that the disputed statements had been erroneous and insulting to the honour and dignity of himself and his late father (see paragraph 36 below), and to award him a symbolic sum of LTL 1 (approximately EUR 0.29) in respect of non-pecuniary damage.

At the court hearing on 9 December 2009, V.L. argued that the disputed statements amounted to statements of fact and not value judgments. He submitted that, in line with the domestic courts’ case-law, the burden was on the author to prove that those statements were factually accurate, but the evidence collected in both the civil and the criminal proceedings demonstrated that they did not have any factual basis.

The applicant and her brothers were represented by the same lawyer who had represented V.P. in the civil proceedings up until his death. They submitted essentially the same arguments that V.P. had submitted before (see paragraph 13 above). They also argued that an obligation to pay compensation for damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs. They furthermore submitted that the disputed statements had been based on their late father’s memories and subjective opinions, and so they should not be required to prove the truthfulness of those statements.

On 23 December 2009 the Vilnius Regional Court found in V.L.’s favour. It stated that, in line with the domestic law, in order to uphold the claim, four circumstances had to be established: firstly, that certain statements had been disseminated; secondly, that those statements had concerned the claimant (V.L.) and his late father (V.L.-Ž.); thirdly, that the statements had been insulting to the honour and dignity of V.L.-Ž. and V.L.; and fourthly, that the statements had been erroneous. The claimant (V.L.) had to prove that the first three circumstances had existed, whereas the defendants (the applicant and her brothers) had to prove that the fourth circumstance had not (see paragraph 34 below).

The Vilnius Regional Court observed that there was no dispute that statements had been disseminated and that they had referred to V.L.-Ž. and V.L. (see paragraph 5 above). However, the parties disagreed as to whether they had amounted to statements of fact or to value judgments. The court found that the disputed statements had been presented as factual statements about V.L.-Ž.: they had implied that certain events had actually occurred, for example, that V.L.-Ž. had been recruited by the Soviet forces and had collaborated with them, or that he had expressed support for Hitler’s ideology (see paragraph 5 above). Accordingly, the court held that those statements should have had a sufficient factual basis.

Seeking to determine whether the disputed statements had been factually accurate, the Vilnius Regional Court examined the evidence which had been collected in the criminal proceedings (see paragraph 8 above), as well as the sources indicated by V.P. himself in his written submissions to the court during the civil proceedings (see paragraph 13 above). The court found that none of those sources had been able to confirm any parts of the disputed statements to the standard of proof required in civil cases.

The Vilnius Regional Court next examined whether the disputed statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. As for the first three statements (see paragraph 5 above), it considered that, in the historical context of Lithuania, the allegations of collaboration with the Soviet security services or of support for Nazi ideology had clearly been insulting not only to V.L.-Ž. but also to his family, including V.L., who had been a prominent politician himself. As for the fourth statement (see paragraph 5 above), it considered that allegations of ejecting the pharmacy owners onto the streets and suing them for a wooden bench – an item of movable property of low value – had created the impression of V.L.-Ž. as someone with low moral standards and a lack of respect for others, and that that statement had therefore been insulting as well, not only to V.L.-Ž. himself, but also to his family.

The court dismissed the defendants’ objection that the case concerned the personal obligations of their father. It held that the domestic law provided several different remedies for victims of defamation in publications (see paragraph 36 below). On the one hand, the victim could ask the court to order the author of the work to retract the disputed statements, which would be a personal obligation on the part of the author which could not be transferred to his or her heirs. On the other hand, the victim could ask the court to declare that the disputed statements were erroneous and defamatory (insulting to the victim’s honour and dignity), in other words to request an objective assessment of those statements. Such an assessment could be made without the involvement of the author and would thus not constitute a personal obligation on the part of the author. Accordingly, the court held that, since V.L. had made the latter request (see paragraph 15 above), domestic law permitted the transfer of civil liability to the author’s heirs.

As a result, the Vilnius Regional Court upheld one part of V.L.’s claim and declared that the disputed statements had been erroneous and insulting to his and his late father’s honour and dignity. It dismissed V.L.’s claim for compensation in respect of non-pecuniary damage as timebarred.

The applicant and her brothers lodged an appeal against the decision of the Vilnius Regional Court, presenting essentially the same arguments as before (see paragraphs 13 and 17 above).

On 13 August 2010 the Court of Appeal upheld that decision in its entirety. It firstly stated that the key difference between statements of fact and value judgments was that the truthfulness of the former could be verified and proved, whereas the latter expressed a subjective view to which the criteria of truthfulness or accuracy did not apply. The court held that, notwithstanding the fact that the book had been based on the author’s memories, the disputed statements had not been limited to expressing a subjective view on any persons or events, but alleged that certain actions had been taken and certain events had occurred. In the court’s view, the average reader, even when reading the disputed statements as part of the entire book and not “out of context” (see paragraph 13 above), would perceive them as statements of fact and not as value judgments.

The Court of Appeal agreed with the defendants that V.L.-Ž. and V.L. had been public figures and therefore had to tolerate greater levels of criticism. It observed that, in line with the case-law of the domestic courts, dissemination of factually inaccurate statements about a public figure did not attract civil liability when such statements concerned that person’s public activities and when their author had acted in good faith, seeking to inform society about such activities (see paragraph 35 below). Nonetheless, the Court of Appeal stated that this could not justify dissemination of falsehoods which were insulting to a person’s honour and dignity, even when they concerned a public figure. It held that, in the case at hand, the first-instance court had thoroughly examined the evidence collected during the criminal proceedings and the sources indicated by the author himself (see paragraph 20 above), and had reached the conclusion that, on the balance of probabilities, the events described in the disputed statements “were more likely not to have happened than to have happened”. The Court of Appeal also examined additional sources referred to in the defendants’ appeal, but found that they did not contain any information which would enable it to reach a different conclusion than that reached by the firstinstance court. It therefore held that the factual accuracy of the disputed statements had not been proved. The Court of Appeal also upheld the firstinstance court’s conclusion that those statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraph 21 above).

Lastly the Court of Appeal dismissed the defendants’ argument that they had been obliged to prove the truthfulness of their father’s memories and subjective opinions. It observed that the disputed statements had been found to constitute statements of fact and not value judgments and it had therefore been necessary to prove their factual accuracy and not the reasons why the author might have held certain opinions. The court stated that the factual accuracy of the disputed statements could be proved by anyone and not only by their author, and that the applicant and her brothers had been able to rely on the material collected during the criminal proceedings and on the submissions made by their father in the civil proceedings, as well as to submit new evidence themselves. The Court of Appeal also observed that the applicant and her brothers had accepted their father’s inheritance (see paragraph 14 above), which included the rights to reprint the book and to receive royalties from it. The court considered that if the author’s heirs had been exempted from the liabilities arising from the book, then the claimant, V.L., would have been denied any possibility to defend his rights against the erroneous and insulting statements published therein.

Consequently, the Court of Appeal upheld the firstinstance decision declaring the disputed statements erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L.

The applicant and her brothers submitted an appeal on points of law, presenting essentially the same arguments as before (see paragraphs 13 and 17 above).

On 14 March 2011 the Supreme Court dismissed that appeal. It underlined the importance of striking a fair balance between the right to freedom of expression and the right to respect for honour and dignity, but stated that the right to freedom of expression did not extend to the deliberate dissemination of falsehoods with the aim of humiliating, insulting or otherwise causing harm to others, even if directed at public figures. The Supreme Court observed that the lower courts had established that the disputed statements had been erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraphs 21 and 26 above); it therefore ruled that the dissemination of those statements could not be justified by the exercise of the right to freedom of expression.

The Supreme Court also reiterated that the claim submitted by V.L. did not constitute a personal obligation of the author of the book and could therefore be transferred to his heirs. It stated that the applicant and her brothers had accepted their father’s inheritance, which included certain rights to the book (see paragraph 14 above). Accordingly, once the court had declared that the disputed statements in the book had been erroneous and insulting to the honour and dignity of others, the author’s legal successors had the obligation to ensure that those statements would no longer be disseminated.


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1960 and lives in Zejtun.

By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre-trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage.

Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer.

On 30 April 2009 the Executive Police were authorised by the duty Magistrate to execute a search and arrest warrant relative to residence F.

On 1 May 2009 the search was carried out and it yielded the discovery of five bags of heroin (925.26 grams, 35 % purity), 755 euros (EUR) in two separate bundles, electrical weighing scales and a number of plastic bags with the corners missing.

On 2 May 2009 Mr Dimech was arrested and, after being cautioned about his right to remain silent, was questioned in the absence of legal assistance on suspicion of drug trafficking. He made a statement in which he admitted to certain facts but denied others. In a nutshell he explained that the 800 grams of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed, and that he had known that he would be given the drug as a guarantee when he lent the money. He admitted that he had hidden the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it. He denied, however, that the drugs were his and also denied that he ever used or sold drugs. His signed statement also indicated that he had made the statement voluntarily, without threats or promises, that it was the truth and that he did not want to change anything in it.

A magisterial inquiry (under Maltese law known as an inquiry relating to the in genere) was held on 13 May 2009 and the Inquiring Magistrate drew up the procès verbal. On 20 May 2009 the applicant was arraigned in court and the procès verbal as well as his statement referred to above were produced as evidence against him. During the committal proceedings the Court of Magistrates as a Court of Criminal Inquiry also collected further evidence including witness testimony and documentary evidence.

On 8 July 2010 a bill of indictment was issued against the applicant by the Attorney General.

During the criminal proceedings the applicant requested the Criminal Court to refer his complaint regarding the lack of legal assistance during the investigation and questioning to the constitutional jurisdictions. On an unspecified date the court granted the request and referred the case.

The applicant claimed a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and questioning.

By a judgment of 10 January 2012 the Civil Court (First Hall) in its constitutional competence, opting to take cognisance of the case on the merits despite the fact that the proceedings were still pending, found a violation of the applicant’s right to a fair trial in so far as he had not been assisted by a lawyer when making a statement to the police before he had been charged, and ordered that the Criminal Court take note of this breach in considering all the evidence. It noted that the voluntary nature of the statement, together with the caution as to the right to remain silent, did not suffice to make up for such a failing, when it could not be said what the applicant would have done had he been assisted by a lawyer.

Both the Attorney General and the applicant appealed to the Constitutional Court. By a judgment of 26 April 2013 the Constitutional Court took cognisance of the merits of the case despite the fact that the proceedings were still pending, and reversed the first-instance judgment. Reiterating its previous findings in other domestic judgments, it noted that the right to legal assistance was not meant to be a formality which, if not complied with, gave the accused a means to defend himself. That right served as a guarantee that every statement made by a person during questioning was made freely, in full knowledge of the right to remain silent, and without threats or promises, violence or other abuse. A breach of the right to a fair trial as a result of a lack of legal assistance during questioning occurred when a statement was taken abusively and without the guarantees of legitimacy, and not solely because of the lack of legal assistance. It followed that the sole fact that the applicant had made a statement, including both admissions of guilt and denials, in the absence of a lawyer could not ipso facto entail a violation of Article 6 of the Convention. In the Constitutional Court’s view, other circumstances such as the particular vulnerability of the individual being questioned had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial. The Constitutional Court could not agree with the first-instance court that Article 6 of the Convention provided for the right to a lawyer without any consideration of the age, maturity and tainted criminal record of the accused as well as the nature of the accusations against him. A correct interpretation of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) had to be made in the light of the circumstances of that case, where Mr Salduz had indeed been in a vulnerable position when he had made the statement. The ratio of the right was precisely that, and not to allow a guilty person to go scot-free because of the failure to comply with a formality which lacked any real or grave consequences. The same exceptional and extreme circumstances had been present in other cases decided by the ECtHR such as Panovits v. Cyprus (no. 4268/04, 11 December 2008) and Płonka v. Poland (no. 20310/02, 31 March 2009), and cases decided by the domestic Constitutional Court such as The Police vs Alvin Privitera of 11 April 2011 and The Police vs Esron Pullicino of 12 April 2011. Even in the Salduz case the Court had held that such a violation arose only if the fairness of the trial was compromised. The Court had stated in that context that “Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions” (§ 50). This, according to the Constitutional Court, was probably the reason why the Grand Chamber had not embraced the more categorical approach suggested by Judge Bratza in his concurring opinion.

The Constitutional Court considered that in the present case the applicant had admitted that he had not been pressured into making the statement, and thus there had been nothing illicit and abusive in the taking of such a statement. It followed that the element of vulnerability found in the Salduz case was missing. Moreover, it had not been shown that the applicant had suffered prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial.

In the absence of any such violation, no remedy was required, nor was there any need for the court to examine the appeal entered by the applicant.

The applicant’s trial by jury was due to start on 23 October 2013.

On 20 September 2013 the applicant filed an application with the Criminal Court requesting it to suspend the trial by jury on the basis of a new set of constitutional proceedings which he had lodged (alleging a violation of Article 7) and on the basis of the proceedings pending before this Court.

On 23 September 2013 the Criminal Court acceded to the request.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1977, and lived until his arrest in the town of Krasnyy Sulin, Rostov Region. He died in a prison tuberculosis hospital in Rostov-on-Don.

On 27 March 2007 the applicant was arrested on suspicion of having been involved in drug trafficking. He was remanded in custody.

Two days later the Krasnyy Sulin Town Court of the Rostov Region authorised the applicant’s detention, having noted the gravity of the charges against him and the possibility of his absconding and reoffending in the light of the fact that he had not been living at his registered address in Krasnyy Sulin at the time of his arrest. The court also noted that the fact that the applicant was suffering from tuberculosis did not negate the indicated risks.

The applicant’s case was joined to the case of Ms P., his alleged accomplice. The two defendants were to stand trial together before the Town Court.

On several occasions the Town Court extended the detention of the two defendants, each time using similar wording, citing the gravity of the charges and the lack of any change in the circumstances and risks which had initially warranted their detention.

On 6 September 2007 the medical authorities informed the Town Court that the applicant’s state of health did not allow him to attend court hearings. On the same day the proceedings were stayed until his recovery.

On 29 October 2007, after receiving notice of the applicant’s expected discharge from a prison hospital, the Town Court resumed the proceedings and scheduled a hearing for 26 November 2007.

Two days later the head of the prison hospital informed the Town Court that the applicant’s medical condition warranted further treatment in the hospital. The date of his discharge was unclear.

On 26 November 2007 the Town Court again stayed the proceedings until the applicant’s recovery and collectively extended his and Ms P.’s detention for three months, until 29 February 2008, employing the same reasoning as on the previous occasions. The detention order contained no detailed assessment of the accuseds’ individual circumstances.

In January 2008 the prison hospital informed the Town Court that the applicant was receiving treatment and that it was impossible to predict the date of his discharge.

It appears that at some point the proceedings against Ms P. were disjoined from those of the applicant.

The Town Court continued regularly extending the applicant’s detention, citing the gravity of the charges and the risks of his absconding or reoffending.

In April and May 2008 the Town Court and the prison hospital exchanged correspondence concerning the applicant’s state of health. The medical authorities stated that the patient was unable to attend owing to a risk of his spreading tuberculosis.

Towards the end of August 2008 the Town Court asked the medical authorities to allow a hearing on the hospital premises. The head of the prison hospital agreed and on 12 September 2008 the proceedings resumed.

On 25 September 2008 the Town Court found the applicant guilty of two counts of the production and attempted sale of opium and sentenced him to six years’ imprisonment.

On 27 January 2009 the Rostov Regional Court quashed the judgment on appeal and remitted the case for fresh consideration, ordering that the applicant remain in custody.

In the course of the new round of proceedings the Town Court, on a number of occasions, authorised the applicant’s continued detention. Each time the gravity of the charges and the risks of his re-offending and absconding served as the reason for the extension. The extension orders were formulated in the same standard manner. The applicant did not attend the hearings as his tuberculosis remained contagious. The orders were upheld on appeal.

On 14 May 2009 the Town Court decided to stay the proceedings until the applicant’s recovery. The applicant appealed.

The proceedings were resumed less than a month later at the request of the applicant. The hearings were to be held on the hospital premises.

On 23 June 2009 the Town Court found the applicant guilty of drug trafficking and sentenced him to four years’ imprisonment.

On 14 July 2009 the Regional Court upheld the most recent detention order, stating as follows:

“The [case-file] materials ... show that the preventive measure was imposed [on the applicant] in conformity with the [the applicant’s] personality.

[The Town Court] came to the correct conclusion that the circumstances that had [indicated the necessity for] the applicant’s detention had not changed. Its conclusion that no other preventive measure might be applied to [the applicant] could not be disputed.”

On 25 August 2009 the Rostov Regional Court upheld the applicant’s conviction.

In 2006, prior to his arrest, the applicant was diagnosed with advanced tuberculosis, pleurisy, and inflammation of the tissue layers lining the lungs and inner chest wall. He was treated in the Rostov Regional State Tuberculosis Hospital.

Following his arrest on 27 March 2007, the applicant was admitted to remand prison no. IZ-61/3 in Novocherkassk. During the admission procedure the applicant informed the prison authorities that he was suffering from tuberculosis. A chest X-ray examination on 9 April 2007 revealed that both his lungs were damaged by an active, advanced form of tuberculosis and that the right lung was partially collapsed on account of the presence of air in the thorax. The condition was further complicated by pleurisy. A course of drugs, dietary nutrition and the drainage of fluid from the pleural cavity were prescribed.

The parties disagreed on whether the applicant had received the prescribed treatment. While a report by the detention authorities in April 2010 stated that he had been given the treatment in full, the applicant’s medical file did not contain any information confirming that he had complied with the course of drug treatment.

On 8 August 2007 the applicant’s health deteriorated and he was taken by ambulance to the prison tuberculosis hospital in Rostov-on-Don. The applicant was regularly examined by doctors, underwent various medical tests and received treatment for tuberculosis. His right lung was drained after the insertion of a chest tube.

On 9 January 2008 a drug susceptibility test was performed. It revealed that the applicant’s tuberculosis was resistant to five drugs, including those which had been given to him in the hospital. Several days later his drug treatment was amended and the illness was brought under control.

On 3 June 2008 pulmonary surgery was prescribed by the head of the hospital’s surgical unit.

According to a medical report of 28 April 2010 submitted by the Government, three days later the applicant’s health worsened and it was no longer possible to perform the prescribed operation. The applicant’s medical file does not contain any records regarding the deterioration of his health during that three-day period.

Regular chest X-ray examinations carried out in the subsequent period revealed the development of complications and showed no improvement in the course of the disease. The applicant was recommended a non-surgical course of treatment.

The applicant’s medical file shows that at the beginning of January 2009 he several times refused to follow a round of drug therapy. On 30 January 2009 he consulted a psychologist and a psychiatrist on this matter.

On 5 June 2009 a tuberculosis specialist established that the applicant’s infection was spreading and that his overall condition had worsened to the extent that surgical intervention was no longer possible. The applicant started undergoing new, multi-drug therapy under the close supervision of doctors. On 3 December 2009 and 12 February 2010 the doctors confirmed that the applicant could not undergo the prescribed pulmonary surgery due to the continuing deterioration in his health.

On 29 October 2010 a medical panel concluded that the applicant’s condition warranted his early release from detention.

On 10 November 2010 the Town Court ordered the applicant’s release on health grounds.

Four days later he died in detention of tuberculosis.


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

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicants, daughter and mother, were born in 1949 and 1921, respectively, and live in Ajdovščina.

On 2 February 1989 the Ajdovščina Municipality Land Consolidation Commission (hereinafter “the Commission”) adopted a land consolidation programme concerning, inter alia, land owned by the first applicant’s legal predecessor and a separate piece of land owned by the second applicant.

On 4 March 1989 the first applicant’s legal predecessor and the second applicant appealed against the Commission’s decision before the Slovenian Surveying and Mapping Authority (“the Authority”), arguing that they had not been duly compensated for the plots which they had owned and which had been transferred to the land consolidation programme.

On 6 November 1990 the Commission amended the land consolidation programme by assigning the second applicant a different plot of land. The second applicant appealed against the decision.

On 21 December 1990 the first applicant’s predecessor lodged an appeal for the failure of the Authority to adopt a decision within the prescribed time-limit.

On 1 February 1991 the Authority granted the first applicant’s legal predecessor’s appeal, remitting the case to the Commission for further consideration. The Authority found that the operative part of the decision lacked clarity and that the Commission had misapplied the law.

On 28 June 1994 the Convention became operational in respect of Slovenia.

On 16 November 1994 the Authority granted the second applicant’s appeal against the decision of 6 November 1990, finding that the operative part of the decision was inconsistent with its reasoning. The case was remitted to the Commission for further consideration.

On 15 December 1994, 15 March 1996, 24 April 1996 and 20 February 1997 the first applicant’s predecessor and the second applicant lodged informal motions before the Commission, asking that the proceedings be expedited.

On 10 April 1997 – the Commission having failed to undertake further examination of their cases – the first applicant’s legal predecessor and the second applicant each lodged a separate appeal with the Ministry of Agriculture, Forestry and Food (“the Ministry”) alleging that the Commission had failed to adopt a decision within the prescribed time-limit. Moreover, on 30 June 1997 they both appealed to the Ministry to expedite the resolution of their respective land consolidation decisions.

On 25 September 1997 – the Ministry not having responded to their appeal – the first applicant’s legal predecessor and the second applicant brought an action before the Administrative Court for the failure of the Ministry to adopt a decision within the prescribed time-limit.

On 24 September 1999 the Administrative Court allowed those actions and ordered the Ministry to decide on the matter at issue within thirty days from the date on which its judgment became final.

Meanwhile, on 16 August 1999 the Ajdovščina Administrative Unit (previously the Commission, hereinafter “the Administrative Unit”), which had acquired competence to decide on matters of land consolidation, adopted new decisions on the land at issue.

On 23 September 1999 the first applicant’s legal predecessor and the second applicant appealed before the Ministry against those decisions.

On 25 August 2000 their appeals were allowed by the Ministry, which again assigned them different plots of land to compensate them for the loss of their original plots.

On 10 November 2000 the first applicant’s legal predecessor and the second applicant brought actions for judicial review (administrative action) before the Administrative Court against the Ministry’s decisions of 25 August 2000 on the grounds that the Ministry had failed to properly consider the criteria applicable to the land consolidation programme and had thereby violated their right to equality before the law.

On 23 January 2001 the first applicant’s legal predecessor died and the first applicant inherited a part of his land including plots subject to land consolidation proceedings. She then intervened in the proceedings as the heir.

On 11 April 2003 and 9 May 2003, respectively, the Administrative Court allowed the applicants’ actions for judicial review and annulled the Ministry’s decisions of 25 August 2000 on the grounds that the applicants had not been acquainted with the expert opinion on which the Ministry had based its decisions and that no reasons had been provided for the dismissal of the objections to the distribution of land. The Administrative Court remitted the cases to the Ministry for further consideration.

On 15 May 2007 the Ministry adopted new decisions concerning the distribution of land in respect of the first and second applicant.

On 17 June 2007 the applicants each brought another action for judicial review (administrative action) against those new decisions before the Administrative Court.

On 11 February 2008 and 3 March 2009 the applicants each lodged an informal motion before the Administrative Court to expedite the resolution of their action.

On 19 June 2009 and 23 October 2009, respectively, the Administrative Court allowed the first and second applicants’ actions for judicial review, annulling the Ministry’s decisions of 15 May 2007, and again remitted the cases to the Ministry for further consideration.

On 23 November 2009 and 10 May 2010 the first and second applicants lodged informal motions before the Ministry, asking that the proceedings be expedited. Moreover, three other similar motions were lodged before the Ministry by the first applicant on 27 August 2012, 4 December 2012 and 27 January 2013.

On 5 April 2013 the Ministry issued a decision annulling the Administrative Unit’s decision of 16 August 1999 (see paragraph 17 above) and remitted the cases to it.

On 20 May 2014 and 2 June 2014 the Administrative Unit scheduled oral hearings for 12 June 2014 and 19 June 2014, respectively. Prior to the hearings, the first applicant informed the Administrative Unit that she was unable to participate in the hearing due to medical treatment and that the second applicant could not participate as she was seriously ill and bedridden.

On 28 August 2014 the Administrative Unit held an oral hearing regarding the applicants’ cases. Land survey and agriculture experts were appointed to consider the first applicant’s requests regarding the land and an agriculture expert was appointed in connection with the second applicant’s requests.

The land consolidation proceedings were still pending on the date of the Government’s last communication with the Court.


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

The applicant was born in 1966 and lives in Magadan.

On 28 January 2003 the Magadan City Court awarded 30,000 Russian roubles as compensation for unlawful conviction of the applicant. The decision of the court came into force on 16 February 2003.

The applicant obtained the respective writ of execution on 5 March 2003. In September 2007 the applicant sought in domestic courts issuance of a duplicate of the writ of execution which according to him had been stolen in 2004 from his office. On 13 September 2007 a national court refused to issue the duplicate because the term for submission of this document for the execution had expired under Article 14 of the Russian Federal Law on Enforcement Proceedings.

On 27 September 2007 the applicant addressed the Ministry of Finance of the Russian Federation with a request to execute the judgment of 2003. The Ministry of Finance replied that the execution is not possible without submission of the writ of execution.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1983. His present place of residence is unknown.

On 5 October 2005 the applicant was found guilty of fraud and sentenced to two years’ restriction of liberty.

In March 2007 criminal proceedings were instituted against him on suspicion of robbery, theft and illegal drug dealing committed in 2005 and 2007. The applicant was detained as a suspect within this set of proceedings from 8 to 23 March 2007 and from 10 September 2007 to 21 October 2008. During the remaining period of the pre-trial investigation he was bound by an undertaking not to leave his town of residence.

On 21 October 2009 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) found the applicant guilty as charged and sentenced him to four years’ imprisonment, which also absorbed the outstanding part of the sentence of 5 October 2005 (see paragraph 6 above).

On 9 April 2010 the Kyiv City Court of Appeal upheld that judgment.

The case file contains no further information about the aforementioned proceedings.

On 3 July 2009 Mr B. lodged a complaint with the police to the effect that the applicant had robbed him of a mobile phone on 22 June 2009 (the applicant had then been at liberty subject to an undertaking not to leave his town of residence – see paragraph 7 above).

On 3 July 2009, at about 7 p.m., the applicant was summoned to the Shevchenkivskyy District Police Station no. 2 (ТВМ-2 Шевченківського РУ ГУМВС у м. Києві) by a telephone call. According to him, he could not refuse given that he was bound by the undertaking not to leave the town, which also implied his obligation to obey any police summonses. As the applicant further submitted, he was arrested in the police station upon his arrival there without any explanation. According to the report of the police officer involved, the latter had “invited [the applicant] to the police station on suspicion of having committed the criminal offence alleged by [Mr B.]”.

It appears that the applicant was held in the police station overnight (see, in particular, paragraph 27 below). The case file contains his written explanations to the police dated 3 July 2009 regarding the events of 22 June 2009. He admitted that he had met Mr B., but denied his involvement in the robbery.

On 4 July 2009 a criminal case was opened against the applicant on suspicion of having robbed Mr B.

On the same day, at 2.15 p.m., the police issued a report, according to which the applicant had been apprehended at 2 p.m. on 4 July 2009 in the premises of the police station on suspicion of having committed a crime. The applicant signed the report with a comment that he had nothing to say. He also signed extracts from the Constitution and the legislation on pre-trial detention as regards his procedural rights, as well as a waiver of his right to legal assistance.

On 4 July 2009 the applicant was questioned as a suspect and denied that he was guilty.

On 7 July 2009 the investigator applied to the Shevchenkivskyy Court for an order remanding the applicant in custody pending trial, stating as reasons the applicant’s previous criminal record and the severity of the alleged offence, which was punishable with imprisonment for up to six years. The investigator considered that if the applicant remained at liberty, there was a risk that he would abscond or hinder the investigation.

On the same date, having upheld the investigator’s reasoning, the Shevchenkivskyy Court remanded the applicant in custody for two months.

On 31 August 2009 the court extended the applicant’s pre-trial detention to three months, having taken into account “the volume of investigative measures still to be undertaken”.

From 25 August to 22 September 2009 the applicant was held in the Kyiv City Centre of Forensic Psychiatric Expert Examinations with the aim of clarifying whether he could be held criminally liable.

On 19 October 2009 the Shevchenkivskyy Court opened the trial. It dismissed the applicant’s request for the custodial preventive measure to be replaced by an undertaking not to abscond.

On 26 July 2010 the court remitted the case for additional pre-trial investigation.

On 14 February 2011 the Shevchenkivskyy Court held a preliminary hearing. It upheld the custodial preventive measure in respect of the applicant.

On 6 March 2012 the court convicted the applicant as charged and sentenced him to six years’ imprisonment.

The Court has not been made aware of any further developments in these domestic proceedings.

The applicant alleged that, following his arrest on 3 July 2009, he had been “severely beaten” by the police. The applicant did not provide any factual details of his alleged ill-treatment or of any injuries sustained.

According to the applicant, on the morning on 4 July 2009 his mother had received a phone call from a person who had been detained in the same police station and released that morning. The applicant had asked him to pass a message to her stating that he was detained there and that he had been questioned and ill-treated by the police.

As further submitted by the applicant, his mother had contacted the police station in order to verify that information, but was told that her son was not there. She had therefore complained to the police and the prosecution authorities about his disappearance.

According to the Government, on 4 July 2009 the police had notified the applicant’s mother about his arrest and invited her to come to collect his belongings, which she did. She also signed a receipt to that effect.

On 8 July 2009 the applicant was taken to the Kyiv Pre-Trial Detention Centre (the SIZO) (Київський слідчий ізолятор). His medical examination, which was carried out on the same day, did not reveal any injuries, and the applicant did not mention to the doctors that he had been ill-treated. His only complaint was about epigastric pain (see also paragraph 51 below).

On 13 July 2009 the applicant’s mother complained to the police and to the prosecution authorities about the alleged ill-treatment of her son in police custody. She also stated that he suffered from a number of contagious diseases and could not therefore be held in detention.

On 25 July 2009 the applicant underwent surgery for acute appendicitis and peritonitis.

On 28 July and 2 August 2009 the applicant’s mother complained to the prosecution authorities that the need for surgery on her son had been the direct consequence of his alleged ill-treatment on 3 July 2009.

On 5 August 2009 the Investigative Unit of the Kyiv Main Police Department (СУ ГУМВС України в місті Києві) completed its internal inquiry into the matter. As noted in the inquiry report, on 4 July 2009 the applicant’s mother had signed a receipt confirming that she had collected her son’s belongings from the police station. She had therefore been aware of his arrest. Furthermore, there was no evidence that any coercion had been used on the applicant. Accordingly, his allegation of ill-treatment was found to be without basis.

On 16 August 2009 the SIZO doctors, acting on the instruction of the prosecution authorities, examined the applicant to establish if there were any traces of the alleged ill-treatment. None was discovered.

On 21 August 2009 the Shevchenkivskyy District Prosecutor’s Office refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment considering it unfounded since there was no evidence of any criminal behaviour by the police in relation to him.

On 27 August, 5 and 21 October and 2 November 2009 the prosecutor sent letters to the applicant’s mother informing her of the aforementioned decision. According to the applicant, none of those letters reached his mother.

The applicant was detained in the SIZO from 8 July 2009 to 2 July 2012.

Without specifying in which cells he had been held and for how long, the applicant described his cells as severely overcrowded, poorly ventilated and damp.

According to the information provided by the Government, the applicant was held in the following cells:

- cell no. 341, measuring 13.2 sq. m (shared by 6 detainees);

- cell no. 14, measuring 31.6 sq. m (shared by 24 detainees);

- cell no. 101, measuring 60.9 sq. m (shared by 38 detainees);

- cell no. 260, measuring 21 sq. m (shared by 2 detainees);

- cell no. 277, measuring 29.9 sq. m (shared by 5 detainees);

- cell no. 270, measuring 27.6 sq. m (shared by 4 detainees);

- cell no. 273, measuring 24.6 sq. m (shared by 4 detainees);

- cell no. 33, measuring 51.8 sq. m (shared by 8 detainees);

- cell no. 85, measuring 20.8 sq. m (shared by 10 detainees);

- cell no. 331, measuring 12.7 sq. m (shared by 6 detainees);

- cell no. 18, measuring 9.1 sq. m (shared by 4 detainees);

- cell no. 142, measuring 9.4 sq. m (shared by 3 detainees);

- cell no. 74, measuring 9.5 sq. m (shared by 4 detainees); and

- cell no. 274, measuring 20.0 sq. m (shared by 4 detainees).

According to the Government, the conditions in those cells were adequate and they were equipped with the requisite furnishings and facilities. The windows and the ventilation system allowed fresh air to circulate and a satisfactory level of natural and artificial lighting was provided.

On 23 May 2011 the SIZO governor informed the prosecutor of the Kyiv City Prosecutor’s Office in charge of the supervision of lawfulness in prisons that during the period from 1 February to 1 April 2011 the applicant had changed cells five times. Specifically, on 1 February 2011 he was placed in cell no. 33, on 23 February 2011 in cell no. 101, on 5 March 2011 in cell no. 101 again (apparently after a stay in the medical unit), on 11 March 2011 in cell no. 260, and on 1 April 2011 in cell no. 33. The SIZO governor explained those transfers by the fact that the applicant had often been held in the SIZO medical unit, given his poor state of health.

On four occasions the applicant was placed in a disciplinary cell for keeping prohibited items (in three cases a mobile telephone and in one case cash): on 14 July 2010, 22 October 2011, 12 December 2011 and 29 February 2012. On each occasion he was held in a disciplinary cell for one day, with the exception of 14 July 2010, when he was placed there for two days. In every case a medical specialist of the SIZO confirmed that the measure in question was compatible with the applicant’s state of health.

On 14 July 2011 the applicant’s mother complained to the Prosecutor General’s Office that on 8 July 2011 the SIZO administration had administered emetics to the applicant in order to establish whether any drugs were present in his body. She submitted that it had been an unjustified, humiliating and dangerous measure.

On 17 August 2011 the Kyiv Regional Office of the State Prison Department (Управління Державного департаменту України з питань виконання покарань в м. Києві та Київській області) informed the prosecution authorities, in response to the complaints by the applicant’s mother, that the applicant was under the close scrutiny of medical specialists on account of a number of illnesses and that his numerous medical examinations had not revealed any injuries. Furthermore, the applicant had never complained to any authorities or doctors of having been ill-treated during his detention. He had also given a written refusal to make any comment about his mother’s complaints.

On 25 October 2011 the applicant’s lawyer complained to the SIZO governor that her client had been unjustifiably incarcerated, and that on 13 and 19 October 2011 he had been beaten by persons wearing masks.

On 9 November 2011 the head of the SIZO medical unit replied that the applicant’s allegations were unfounded and that he had not made any complaints himself.

In 2004 the applicant was diagnosed with tuberculosis for the first time.

In May 2007 he tested HIV-positive. In November 2007 his condition was assessed as clinical stage 3 HIV and AIDS. He was registered for monitoring in the AIDS Centre at the place of his residence.

The applicant also suffers from chronic viral hepatitis B and C.

On 8 July 2009, upon his arrival at the SIZO, the applicant underwent a medical examination and X-ray, which revealed post-tuberculosis residual lung changes. His height and weight were recorded as 180 cm and 74 kg respectively. The applicant complained of epigastric pain. He also informed the doctors of his past medical history of viral hepatitis B and C, and his HIV-positive status (see also paragraph 30 above).

On 15 July 2009 the applicant was examined by two tuberculosis specialists, who confirmed the diagnosis of post-tuberculosis residual changes in the right lung and recommended further medical supervision.

On 25 July 2009 the applicant was taken from the SIZO to the emergency hospital, where he underwent surgery in respect of acute appendicitis and peritonitis. The case file does not contain any information as to whether anything had led up to that emergency. Nor did the applicant submit any factual details in that regard, apart from his broadly-couched allegation, in reply to the Government’s observations, that the emergency had been a result of his ill-treatment (see paragraph 99 below).

According to the information provided by the Government, from 30 July to 6 November 2009 the applicant was given in-patient post-surgery medical treatment in the SIZO medical unit. The applicant contested this information as untruthful, referring to the fact that from 25 August to 22 September 2009 he had been undergoing forensic psychiatric expert examination in the Kyiv City Psychiatric Hospital (see also paragraph 20 above). The case file contains an extract from the applicant’s medical file held in the SIZO, according to which he received in-patient treatment in the SIZO medical unit from 30 July to 25 August 2009.

On 9 October 2009 the applicant was X-rayed. Following the discovery of a focal shadow on the right lung, it was recommended that he consult a specialist.

On 16 October 2009 a tuberculosis specialist examined the applicant and found that he had focal tuberculosis of the upper lobe of the right lung at an unclear stage of development. The doctor prescribed a trial chemotherapy regimen consisting of isoniazid, pyrazinamide, rifampicin and ethambutol.

On 13 November 2009 the applicant again underwent chest X-rays, which showed focal tuberculosis of the upper lobe of the right lung in the consolidation stage. The radiologist recommended that the applicant consult a tuberculosis specialist.

On 17 November 2009 the applicant was invited to undergo another X-ray, but he refused.

On 23 and 25 November and on 9 December 2009, at the applicant’s request, a dentist examined him. The diagnosis was chronic multiple complicated caries related to poor dental hygiene, as well as tongue candidiasis. The applicant was provided with some medication, ointment and vitamins, and had the decayed tooth roots removed.

On 9 December 2009 the applicant was also examined by a specialist in infectious diseases and underwent a CD4 test. Its result was 618 cells/cu. mm.

On 1 April 2010 the applicant underwent X-rays, the findings of which were the same as on 13 November 2009.

On 6 June 2010 the applicant was X-rayed again, with no pathological indications having been revealed.

On 29 November 2010 the applicant was due to undergo X-rays, but was unable to because he was not feeling well.

On 23 December 2010 a radiologist recommended (it is not known in what circumstances) that the applicant consult a tuberculosis specialist.

On 18 March 2011 the applicant underwent further X-rays. He was diagnosed with pneumonia triggered by tuberculosis, post-tuberculosis residual changes in the form of focal consolidations in the lower lobe of the left lung, and bronchitis. The radiologist recommended that the applicant consult a tuberculosis specialist.

Although the applicant’s medical file shows that he underwent in-patient treatment for pneumonia in the SIZO medical unit from 11 to 30 March 2011, on 15 August 2012 the State Prison Department informed the Agent of the Government, who was collecting information for the purpose of preparing observations for submissions to the Court, that this information “had turned out to be unconfirmed”.

On 24 March 2011 the applicant again underwent a CD4 test. Its result was 898 cells/cu. mm.

On 11 April 2011 another such test was undertaken, which showed the CD4 count as 836 cells/cu. mm.

On 21 April 2011 the applicant underwent another X-ray, which revealed post-tuberculosis focal consolidations in the lower lobe of the right lung. It was recommended that the applicant consult a tuberculosis specialist.

Following a complaint from the applicant’s mother regarding the failure to administer antiretroviral therapy to her son, on 26 April 2011 the SIZO administration informed her that the applicant was undergoing treatment for tuberculosis and that a consultation by an infectious diseases specialist was needed to decide about antiretroviral therapy.

On 29 April 2011 the applicant was examined by a tuberculosis specialist, who found that he had no active-phase tuberculosis and that his general state of health was good.

On 16 August 2011 the applicant’s X-rays showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage.

On 21 August 2011 the applicant was examined by a tuberculosis specialist, who prescribed him seasonal relapse prevention therapy with two antibacterial drugs (ethambutol and rifampicin) for ninety days, starting on 10 October 2011 and also a special diet. According to the applicant, this prescription was not implemented in practice.

On 8 November 2011 the applicant complained of moderate general weakness and heaviness in the right hypochondrium and was examined again by the tuberculosis specialist. As a result, his ninety-day relapse prevention therapy was slightly modified.

On 22 November 2011 the tuberculosis specialist examined the applicant again, with no dynamics noted. The doctor recommended continuation of the treatment and a repeated CD4 test. It is not clear whether that test was carried out.

On 6 January 2012 the applicant underwent X-rays which showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage.

On the same date the applicant was examined by two tuberculosis specialists, who diagnosed a recurrence of tuberculosis. They recommended a drug susceptibility test and prescribed isoniazid, rifampicin and ethambutol.

On 14 May 2012 the applicant had his chest X-rayed. There was a limited fibrosis in the right lung and a suspected ring-shaped shadow on the left lung. The applicant was diagnosed with infiltrative tuberculosis of the upper lobes of both lungs.

On 25 May 2012 he was examined by a tuberculosis specialist, who prescribed continuation of the treatment of 6 January 2012.

On 5 July 2012 the applicant was transferred to the Zhovtnevska prison no. 17 (Жовтневська виправна колонія № 17) in the Kharkiv region – where there was a hospital specialising in tuberculosis – for the purposes of serving his sentence.

According to the applicant, during his detention in the SIZO his weight dropped from 87 kg to 52 kg. He had previously indicated his height as 188 cm. The entry in his medical file in the Zhovtnevska prison upon his arrival there stated his height as 180 cm and his weight as still 74 kg (see also paragraph 51 above).

On an unspecified date following the applicant’s transfer to the Zhovtnevska prison (before 28 September 2012 – see paragraph 84 below) his drug susceptibility was tested. It revealed that the applicant was infected with strains of tuberculosis resistant to two of the first-line drugs with which he had been treated before.

On 7 September 2012 he was examined by an infectious diseases specialist, who diagnosed him with chronic persistent hepatitis in the remission stage.

On 28 September 2012 the applicant was examined by the Head of the Phthisiology and Pneumonology Department of the Kharkiv Medical Academy of Post-Graduation Studies, who prescribed an individual scheme of chemotherapy for him, given his resistance to certain drugs.

On 30 September 2012 the applicant underwent a CD4 test. Its result was 469 cells/cu. mm.

On 5 October 2012 an infectious diseases doctor from the Kharkiv Regional AIDS Centre examined the applicant and diagnosed tuberculosis, oropharyngeal candidiasis and chronic viral hepatitis.

Also on 5 October 2012 the applicant was examined by a tuberculosis specialist from the Kharkiv Medical Academy, who reported positive developments as a result of the treatment and recommended its continuation.

According to the extract from the applicant’s medical file issued by the Zhovtnevska prison administration, the applicant was released from detention on 26 October 2012 on the ground of poor health. It was recommended that he register for monitoring in the local AIDS centre and that he continue his treatment for tuberculosis in the place of his residence.

None of the parties has submitted to the Court any details as to the circumstances of and the reasons for the applicant’s release. The applicant noted summarily that he “was transferred for treatment in [his] place of residence as his treatment [in detention] had not been successful.”


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Eduardo González Nájera, is a Spanish national who was born in 1974. He is currently serving a prison sentence in Logroño. He was represented before the Court by Mr E.J. Mateo Ayala and Mr C. Fuertes Iglesias, lawyers practising in Zaragoza.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 15 October 2008, within the space of three hours, the mother and the father of two different five-year-old girls separately contacted the Logroño National Police Headquarters on account of suspicions that their children had been sexually abused by the applicant, who was their psychomotor development teacher. They reported that their children had told them that the applicant had introduced his hand through their underwear and had touched their pubic region and their genitals while they were doing physical exercises.

On 16 October 2008 the applicant was arrested. In his statement to the police, in which he was assisted by counsel, the applicant denied the accusations. On that same day, parents of three other girls in the same school class reported similar facts to the police.

On 17 October 2008 the applicant was brought before an investigating judge. In his statement to the judge the applicant confirmed his statement to the police. He was released on remand subject to certain conditions. A non-molestation order was issued against him for the protection of the minors. The applicant appointed counsel and a legal representative for his defence and representation before the courts.

On 23 and 24 October 2008 the parents of two other under-age girls contacted the police to report incidents involving their children similar to those reported by the above-mentioned parents. Their daughters had told them that the applicant had touched their genitals.

On 27 October 2008 the investigating judge requested that the forensic psycho-social team in the Logroño courts perform an examination of the first five alleged under-age victims and of the applicant. On 20 November 2008 the examination of the minors was extended to include the last two girls whose parents had made a criminal complaint. The report on the minors was prepared by a forensic social worker and a forensic social psychologist. Their interviews with the minors were all video-recorded. The report on the applicant was prepared by a different forensic psychologist.

On 9 and 23 February 2009 the psychological reports were submitted in writing to the investigating judge. They were added to the case file. The applicant was provided with a copy of the report on the minors.

On 28 May 2009 the applicant made a request to the investigating judge that the forensic psycho-social team who had interviewed the minors submit all notes and documents which had been put at their disposal by the school personnel and cited in the report. The investigating judge requested those notes and documents from the members of the forensic psycho-social team with a view to providing the applicant with them.

On 24 July 2009 the forensic psycho-social team informed the investigating judge that they had not kept notes of the interviews. All information deemed important had been included in the final report and the notes destroyed.

On 11 September 2009 the investigating judge brought the investigative stage of the proceedings to a close and made the case file available to the parties with a view to holding a public hearing. The applicant did not appeal against that decision. The public prosecutor accused the applicant of six counts of child abuse. The private prosecutor accused him of seven counts of child abuse. In his statement of defence the applicant denied the charges.

On 5 October 2010 a public hearing took place before the Logroño criminal judge no. 2. The applicant was defended by counsel of his own choice. The applicant, the parents and the alleged victims’ two school tutors were questioned. The video-recording of the forensic experts’ interview with the minors was played in its entirety and the members of the forensic psycho-social team were questioned in relation to the report they had produced. They confirmed the contents of their report. The alleged under-age victims were not questioned at the hearing since none of the parties to the proceedings had so requested.

On 2 November 2010 the Logroño criminal judge no. 2 sentenced the applicant to twelve years’ imprisonment as a principal on six counts of sexual abuse of children. He was acquitted of one count of sexually abusing a child. The judge found that on 13 October 2008 the applicant, driven by an impulse to satisfy his lustful desires, had asked for volunteers to lead their classmates in the exercises; that he had selected multiple volunteers, including the six female victims, taking them away from the group in turn; that he had brought the under-age victims close to him and that whilst practising the exercises he had touched their genitals, concealing his actions behind the minors’ smocks.

In reaching this conclusion the judge relied mainly on the statements given by the under-age victims to the two members of the forensic psycho-social team. Those interviews had been video-recorded and played in their entirety at the hearing. The judge emphasised that two of the seven minors interviewed had repeated in a spontaneous fashion what they had previously said to their parents and that the other four had given their account of the facts after the experts had asked them whether anything particular had happened in the psychomotor development class on the specific date of the events. The answers provided by these six minors were consistent with regard to both the circumstantial evidence and the way in which the events had taken place. The seventh child who had been interviewed had not given an account of the events.

The judge further relied on the expert psycho-social report on the minors, the findings of which the two authors had confirmed at the hearing. The experts were available for cross-examination at the hearing. According to them, the reliability of the alleged victims’ accounts ranged from “indeterminate” to “most probably reliable” on a scale consisting of five different values of credibility: reliable, most probably reliable, indeterminate, probably not reliable and not reliable. The report contained a detailed assessment of each alleged victim’s statement, of its consistency with other statements, and of the reasons supporting their conclusions. The judge also relied on hearsay evidence given by some of the minors’ parents and the tutors of the two classes to which the minors concerned belonged.

The judge rejected the applicant’s submission that he should be acquitted for lack of direct evidence against him. The applicant had argued that he had not examined the minors either in the investigative stage of the proceedings or at the hearing and that therefore the minors’ pre-trial statements should not be admitted as valid evidence against him because he had not been present during their examination.

The judge conceded that the minors had not been cross-examined by the applicant or his counsel either at the investigative stage of the proceedings or at the hearing. This fact, however, did not prevent the minors’ statements being admitted as evidence against the applicant. The judge pointed out that neither of the parties to the proceedings had requested that the children attend the hearing as witnesses. She further referred to domestic case-law and to international instruments regulating children’s rights, stating that in sex-related criminal cases involving minors it was possible to dispense with their cross-examination in open court if it was deemed inappropriate having regard to the victims’ young age or its probably adverse psychological impact, and that their statements could be submitted at the hearing through other means.

In this connection, the judge emphasised that in the present case an expert report had been prepared by a forensic psycho-social team whose members had confirmed its contents in open court; that for the preparation of that report the experts had conducted a series of interviews with the minors; that the report had been passed on to the applicant during the investigative stage of the proceedings; and that those interviews had all been video-recorded and played at the trial. The applicant had been able to prepare his defence and challenge the truthfulness of the minors’ statements, submit evidence in his favour, and cast doubt on the accuracy or scientific value of the expert report. The fact that the full content of the interviews had not been transposed into the final expert report was irrelevant in so far as the video-recording of the interviews had been viewed in its entirety in open court.

The applicant appealed against the first-instance judgment before the La Rioja Audiencia Provincial. He invoked his rights to be presumed innocent and to a fair hearing.

On 2 May 2011 the La Rioja Audiencia Provincial upheld the applicant’s conviction. The appellate court emphasised that the applicant had requested the production of the evidence requested by the public and private prosecutors, who had asked that the interviews conducted with the minors be viewed and that the experts who had conducted those interviews be questioned in open court. The prosecutors had not requested that the minors be questioned and neither had the applicant. The court considered that in admitting those statements in evidence, the first-instance judge had struck a proper balance between the protection of the minors from secondary victimisation and the applicant’s right to defence. The applicant’s right had been respected in so far as the video-recording of the interviews had been played in its entirety at the hearing and the members of the psycho-social team had been available for cross-examination by the applicant.

The appellate court emphasised that the statements given by the six under-age victims were consistent and that they were corroborated by hearsay evidence, by the expert report and by the statements made at the hearing by the experts who had prepared the report. As regards the expert report, the court pointed out that the applicant had been provided with a copy immediately after it was produced and that he had not raised any objection to or submitted an appeal against the investigating judge’s decision to request its production and inclusion in the case file. The members of the psycho-social team had confirmed its contents at the hearing. The court praised the report for its completeness and accuracy and emphasised that its findings were based on a renowned scientific method called Statement Validity Assessment (SVA), of which the core component was a criteria-based content analysis (CBCA) of the credibility of accounts. It was also pointed out that the applicant had failed to submit any evidence that raised doubts as to the reliability of the report.

On 28 June 2011 the applicant lodged an amparo appeal with the Constitutional Court, invoking his constitutional rights to a fair hearing and to be presumed innocent. He argued that he could not be blamed for not having requested the cross-examination of the minors at the hearing in so far as it was incumbent on the prosecution to prove him guilty and therefore to request the production at the hearing of all the evidence against him. This failure on the part of the prosecutors had prevented him from cross-examining the alleged victims, thereby breaching his right to a fair hearing. The applicant further argued that the only direct evidence on the basis of which the courts had found him guilty consisted of the statements given by the minors to the experts at the investigative stage of the proceedings but contended that those statements should have been excluded from the evidential material as they had been obtained in breach of his right to defence. The interviews with the minors had been conducted without his being present. The exclusion of that evidence would result in his acquittal of all the alleged offences for lack of sufficient evidence to override his right to be presumed innocent. The evidence against him was in any case insufficient to prove him guilty.

On 11 March 2013 the Constitutional Court dismissed the applicant’s amparo appeal. It stated that the first issue raised by the applicant concerned the potential restrictions which could be placed on the right to defence of a person charged with sexual offences vis-à-vis his alleged victims, taking into account the undesirable emotional and psychological impact that cross-examination in open court might have on the latter.

The Constitutional Court reiterated that as a general rule defendants should be afforded the opportunity to cross-examine their victims in open court. However, this rule allowed for certain exceptions. Making copious citations from the Court’s case-law, the Constitutional Court referred to the special nature of criminal proceedings concerning sexual offences, which often represented an ordeal for the victims, and to the fact that this aspect was even more clearly apparent in cases involving minors. The courts were allowed to take measures for the purpose of protecting under-age victims, including the possibility of dispensing with their cross-examination. This measure should nonetheless be reconciled with the adequate and effective exercise of the rights of the defence. Courts were thus required to implement safeguards compensating defendants for the disadvantage of having been prevented from cross-examining the direct witnesses to the offences in open court.

The Constitutional Court went on to state that in sex-related offences the only direct evidence was frequently the victim’s own statement, the other evidence normally being hearsay evidence or expert evidence assessing the credibility of the victim’s account. In this connection, the legal debate usually turned on the legal safeguards surrounding the examination of the minor and the manner in which his or her statements could be used as evidence at the hearing. The Constitutional Court stated that in cases such as the instant one the constitutional standard of review coincided with the standard established by the Court in the case of A.S. v. Finland (no. 40156/07, § 56, 28 September 2010), according to which:

“the suspected person shall be informed of the hearing of the child, he or she shall be given an opportunity to observe that hearing, either as it is being conducted or later from an audiovisual recording, and to have questions put to the child, either directly or indirectly, in the course of the first hearing or on a later occasion.”

Turning to the instant case, the Constitutional Court stated that the under-age girls had not been questioned by the police or the public prosecutor or the investigating judge. They had been examined by a social worker and a psychologist from the forensic psycho-social team from whom the investigating judge had commissioned a report. The relevant legislation provided for that possibility, which had been accepted as a constitutionally valid option by the Constitutional Court in a previous judgment. The court emphasised that ‒ given the young age of the minors, all of whom were below the age of six at the material time ‒ their examination by experts was advisable not only in order to prevent additional unnecessary damage but also to reinforce the reliability of their statements.

The Constitutional Court stated that the investigating judge had made the psycho-social report available to the parties, including the applicant’s counsel, shortly after its production by the experts. However, the applicant had limited himself to requesting some additional documents (see paragraph 9 above) three months later. He had not requested that a fresh examination of the minors be conducted in his presence. The legislation by no means prevented such a course of action but the applicant had not availed himself of that possibility. In his subsequent statement of defence, the applicant had not requested the cross-examination of the alleged victims in open court, which reinforced the inference that his rights had been duly respected at the pre-trial stage of the proceedings. The applicant’s failure to request the victims’ cross-examination meant that the judicial authorities dealing with his case did not have to decide whether or not the applicant should have been given the opportunity to have his alleged victims cross-examined. In fact, the domestic authorities had not obstructed or in any way prevented such an examination since they had not been confronted with the issue to begin with.

In the light of the foregoing, the Constitutional Court considered that the applicant’s right to adversarial proceedings had not been restricted to an unacceptable extent. Its finding might have been different had the judicial authorities prevented the applicant from examining the under-age victims despite his having so requested (the Constitutional Court cited S.N. v. Sweden, no. 34209/96, § 49-50, ECHR 2002V; B. v. Finland, no. 17122/02, § 44, 24 April 2007; and Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005II) or if the applicant had not been able to challenge effectively the examination conducted by the experts owing to a lack of sufficient information or some legal impediment.

As regards the assessment of the evidence conducted by the judicial authorities, the Constitutional Court emphasised from the outset that its role was not that of a court of third instance and that in cases such as the instant one it would intervene only if it could not be concluded ‒ or could be concluded only arbitrarily ‒ from the evidential material in the case file, which should have been obtained with due respect for the defendant’s fundamental rights, that the defendant was guilty.

In this connection, the Constitutional Court stated that the only direct evidence on which the trial courts had based the applicant’s conviction comprised the incriminating statements given by the minors at the investigative stage of the proceedings, the video-recording of which had been viewed in its entirety at the hearing. The admission of those statements as evidence had been lawful and, from a constitutional standpoint, they could be considered sufficient evidence to override the applicant’s right to be presumed innocent. The hearsay evidence provided by parents and experts had served exclusively as corroborating evidence. This complaint was dismissed.

The Constitutional Court’s judgment was served on 21 March 2013.

Article 24 of the Constitution provides:

“1. Every person has the right to the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended.

Likewise, every person has the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence; to refrain from self-incriminating statements; not to declare himself or herself guilty; and to be presumed innocent.

The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.”

The relevant provisions of the Code of Criminal Procedure are as follows:

Adult witnesses shall take an oath or promise to state all they know in reply to the questions put to them, the judge being obliged to inform them in clear and understandable language of their duty to tell the truth and of the possibility of their being held liable for false statements in a criminal case.

Minors may give a statement to experts, always in the presence of the public prosecutor. The person exercising parental responsibilities, protection or guardianship over the minor may be present unless he or she is an accused party, or if the judge, as an exceptional measure and through a reasoned decision, decides otherwise. The judge may instruct that the statement be video-recorded.”

Statements from under-age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused. The use of appropriate technological mechanisms shall be allowed for that purpose.”

“The only evidence that shall be produced [at the hearing] is that proposed by the parties; the only witnesses who shall be examined are those included in the lists submitted [by the parties].”

“In the event that any evidence cannot be produced during the hearing, on account of circumstances outside the parties’ control, a record of the relevant investigation shall be read out if this is so requested by any of the parties.”

The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, which entered into force in respect of Spain on 1 December 2010, provides in Chapter VII, concerning investigation, prosecution and procedural law:

“1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.

Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate ...

Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

“1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by ...

g. ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.”

“1. Each Party shall take the necessary legislative or other measures to ensure that:

a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;

b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;

c. interviews with the child are carried out by professionals trained for this purpose;

d. the same persons, if possible and where appropriate, conduct all interviews with the child;

e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings ...

Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.”

“2. Each Party shall take the necessary legislative or other measures to ensure, according to the rules provided by its internal law, that:

a. the judge may order the hearing to take place without the presence of the public;

b. the victim may be heard in the courtroom without being present, notably through the use of appropriate communication technologies.”

The Framework Decision of 15 March 2001 of the Council of the European Union on the standing of victims in criminal proceedings (2001/220/JHA) provided:

“2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.”

“Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence.

Each Member State shall take appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings.”

“4. Each Member State shall ensure that, where there is a need to protect victims - particularly those most vulnerable - from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles.”

The Directive of 25 October 2012 of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, provides:

“(66) This Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, it seeks to promote the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non-discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial.”

“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:

(b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;

“1. Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation ...

For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.”

“1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.

The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1):

(a) interviews with the victim being carried out in premises designed or adapted for that purpose;

(b) interviews with the victim being carried out by or through professionals trained for that purpose;

(c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice;

(d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.

The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings:

(a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;

(b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

(c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and

(d) measures allowing a hearing to take place without the presence of the public.”

“1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child:

(a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;”

In a judgment of 16 June 2005 (Case C-105/03 Pupino [2005] ECRI5285) the Court of Justice of the European Union held:

“59. The Framework Decision must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected (...)

In the light of all the above considerations, the answer to the question must be that Articles 2, 3 and 8(4) of the Framework Decision must be interpreted as meaning that the national court must be able to authorise young children, who, as in this case, claim to have been victims of maltreatment, to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection, for example outside the trial and before it takes place. The national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision.”