5.  The applicant was born in 1951 and lives in Lublin. 6.  The applicant was a surgeon at the Hospital no. 4 in Lublin with thirty‑two years of practice and who started kidney‑transplant operations there. He was also an assistant professor at the Lublin Medical Academy. 7.  In 1998 the applicant was diagnosed with sleep apnoea (a sleep disorder characterised by pauses in breathing during sleep) and since then was required to use a respirator when asleep. 8.  At 6 a.m. on 1 June 2006 five armed plain‑clothes police officers came to the applicant’s flat to arrest him. According to the applicant, they were violently knocking on the door. They presented the prosecutor’s order for the applicant’s arrest. 9.  At about 8 a.m. the applicant was brought in handcuffs to his clinic. The event was seen by hospital staff and patients. The police searched the applicant’s locker. The applicant’s arrest was filmed by one of the police officers. Subsequently, the applicant was brought to the Lublin Regional Police Headquarters where he was questioned. He was informed of the bribe‑taking charges against him. 10.  After questioning, the applicant was taken to the Lublin Military Hospital for a medical check. Doctor O. issued a certificate that the applicant could be held in detention and recommended the use of the respirator. 11.  Subsequently, the applicant was brought to the Lublin‑Północ District Prosecutor. The prosecutor charged him with ten counts of accepting material benefits from his patients for medical treatment and/or making the provision of such treatment conditional upon receiving material benefits (Article 228 § 1 and Article 228 § 4 of the Criminal Code respectively). The charges related to the period between 1997 and 2004 and the impugned amounts ranged from 100 to 500 zlotys (approx. 25 to 125 euros). 12.  The applicant submitted that on 1 June he had been twice approached by police officers from the anti‑corruption unit and once three months later. According to the applicant, they promised him a beneficial treatment if he would confess and name other doctors engaged in corrupt practices. The applicant refused. 13.  On 1 June 2006 the Lublin District Court granted the prosecution’s request and remanded the applicant in custody until 1 September 2006. It found as follows:
“The prosecution’s request is well‑founded and should be granted. The evidence gathered so far in the proceedings points to a strong likelihood – within the meaning of Article 249 § 1 of the Code of Criminal Procedure – that the suspect committed the misdemeanours with which he was charged. [That likelihood] is shown by the depositions of the witnesses who described in an extensive and precise manner the circumstances concerning the acts imputed to the suspect.
The suspect is charged with commission of ten misdemeanours; in respect of each of those misdemeanours he is liable to a maximum sentence of at least 8 years’ imprisonment, and thus the need to apply detention on remand in order to ensure the proper conduct of the proceedings is justified by the severe penalty to which the suspect is liable. The real possibility that such a penalty would be imposed follow from the multitude of acts, their character and circumstances.
The reasons militating against the imposition of detention on remand specified in Article 259 of the Code of Criminal Procedure were not identified. The suspect does not have dependent children, and as regards his state of health, it transpires from his medical examination that he may be held in a “room for arrested persons” possessing a respirator and medication.” 14.  At about 6 p.m. on 1 June 2006 the applicant was taken to the Lublin Detention Centre. According to the applicant, he was put in a cell of 10 square meters with five other inmates. He was afraid that one of them could unplug his respirator. 15.  The applicant appealed against the detention order. He argued that the imposition of detention on remand could seriously jeopardise his life or health as he suffered from sleep apnoea. In the case of a power cut or the unplugging of the respirator by one of the co‑detainees the applicant would be exposed to a risk to his life. He also argued that the certificate issued by doctor O. concerned a short period of detention and did not attest that he could be held in detention for a period of three months. Secondly, he submitted that there were no concrete circumstances to substantiate the risk that he would obstruct the proper conduct of the proceedings if non‑custodial measures had been applied. On the contrary, the applicant was a surgeon enjoying good professional reputation and a law‑abiding citizen. 16.  On 20 June 2006 a group of doctors from the hospital no. 4 and the Lublin Medical Academy petitioned the Lublin District Prosecutor to release the applicant. The applicant did not submit any information about the follow‑up to this petition. 17.  On 22 June 2006 the Lublin Regional Court upheld the detention order of 1 June 2006. It found, inter alia, that:
“The suspect is charged, among others, with the offence specified in Article 228 § 4 of the Criminal Code in respect of which he is liable to a sentence exceeding eight years’ imprisonment. It should be noted that the circumstances concerning the significant social danger of the suspect’s acts, his base motives, the large number of acts and their character justify the supposition that the imposition of a severe penalty of imprisonment within the meaning of Article 258 § 2 of the Code of Criminal Procedure is a real possibility. By “the liability to severe penalty” in the light of this provision it should be understood that the fact of having charged a suspect with a crime or misdemeanour for which he is liable to a statutory maximum sentence of at least eight years’ imprisonment gives rise to a legal presumption that the likelihood of a severe sentence being imposed may prompt the suspect to undertake actions obstructing the proper conduct of the proceedings (decision of the Supreme Court of 29 August 2000, case no. II KZ 115/00, unreported).
In the light of the foregoing it is necessary to impose detention on remand in order to secure the proper conduct of the proceedings, and other more lenient preventive measures may have been insufficient at the present stage of the proceedings.” 18.  As regards the applicant’s state of health, the Regional Court found no reasons indicating that holding him in custody would seriously jeopardise his life or health. It noted that the applicant was provided with constant medical care in detention and that he could be detained in an appropriate medical establishment if his condition so required. 19.  According to the applicant, on 10 July 2006 he was chained and taken to a hospital for examination of his lungs. 20.  On 22 August 2006 the Lublin Regional Medical Chamber issued a guarantee for the applicant and requested the authorities to vary the preventive measure. No further information was provided by the applicant in this respect. 21.  On 28 August 2006 the Lublin District Court extended the applicant’s detention on remand until 1 December 2006. It found that the investigation could not have been concluded within the period of three months due to “particular circumstances of the case”, namely the need to hear evidence from a very large number of witnesses – patients treated by the applicant. On that ground it was justified under Article 263 § 2 of the Code of Criminal Procedure to prolong the applicant’s detention beyond the ordinary three‑month period. 22.  The District Court found that the initial reasons justifying the applicant’s detention, namely the reasonable suspicion of having committed the impugned offences and the real risk of a severe sentence being imposed were still valid. It noted that the evidence gathered so far in the case pointed to the reasonable suspicion that the applicant had committed the offences with which he had been charged. Furthermore, the character of the imputed acts, their number and legal classification indicated the severity of the penalty to which he was liable (eight or ten years’ imprisonment depending on the charge). In the court’s view, the significant social danger of the imputed acts and the manner in which the applicant had operated made the imposition of a severe penalty very likely. According to the court, other, non‑custodial, preventive measures would not have been sufficient to ensure the proper conduct of the proceedings since the applicant might unlawfully obstruct the proceedings if released, in particular as the investigation was still ongoing. 23.  The District Court held that the applicant’s release on health grounds was not called for. According to a medical certificate of 28 August 2006 he suffered from some ailments but could be treated in the prison. In addition, he was provided with medical care. 24.  The applicant’s lawyer appealed on 29 August 2006. He submitted that the acts imputed to the applicant could not have been considered as criminal offences but as acts of gratitude of customary nature. He underlined that the lower court’s finding that the applicant would obstruct the proceedings was entirely groundless and arbitrary supposition. In addition, the applicant’s personal circumstances before the commission of the imputed acts indicated that the penalty to be imposed on him would not have been severe. Furthermore, the lawyer argued that having regard to the applicant’s condition (sleep apnoea) his continued detention had serious negative implications for his health. In the alternative, the lawyer requested the court to impose non‑custodial preventive measures. 25.  On 31 August 2006 the Lublin Regional Court held a hearing to examine the applicant’s appeal. The adoption of a decision was postponed at the request of the applicant’s lawyer who wished to obtain information from the detention centre whether the applicant had been able to use the respirator and whether his illness might be treated in detention. The applicant was examined by a doctor of the Lublin Remand Centre on 22 September 2006. He was diagnosed, inter alia, with hypertension, sleep apnoea, hypertrophic cardiomyopathy (HCM) and cardiac dysrhythmia. The doctor found that the applicant’s general condition was relatively good and opined that he could be treated in detention. The medical certificate was received by the court on the same day. 26.  The court scheduled the next hearing for 28 September 2006. The hearing was adjourned since the court considered it necessary to obtain a forensic opinion from the Lublin Medical Academy as to whether the applicant’s illness could be treated in detention. On 16 October 2006 the Lublin Medical Academy informed the court that the requested opinion could not be prepared because the applicant was its employee. On 17 October the court requested the Poznań Medical Academy to prepare a forensic opinion. The request was repeated on 8 November 2006. The opinion was submitted on 15 November 2006. It stated that the applicant’s ailments were of chronic nature and that there was no possibility of a complete recovery. The opinion concluded that the applicant could be treated in detention. In view of his condition, it was necessary to ensure to the applicant frequent medical checks, in particular by a cardiologist and pulmonologist and the regular administration of prescribed drugs. Furthermore, he should be ensured the use of his respirator. 27.  The applicant submitted that the opinion of 15 November 2006 had been prepared solely on the basis of his medical records. He was not consulted or examined by doctors from the Poznań Medical Academy. 28.  On 23 November 2006 the Lublin Regional Court upheld the District Court’s decision. It concurred with the lower court that the basic condition for the applicant’s detention on remand, namely the reasonable suspicion of having committed the impugned offences, had been satisfied (Article 249 § 1 of the Code of Criminal Procedure). In addition, the particular condition set out in Article 258 § 2 of the Code of Criminal Procedure (severity of the likely penalty) had also been satisfied. In this respect, the Regional Court invoked the same elements as in its earlier decision which warranted the likelihood of a severe penalty being imposed on the applicant (see paragraph 17 above). It further noted that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed might induce the applicant to obstruct the proceedings. In this regard the court stated that:
“The court applying detention on remand is thus under no obligation to indicate that the suspect will surely undertake such actions [aimed at obstruction of the proceedings].”
The court found that the applicant’s continued detention on remand was necessary in order to secure the proper conduct of the proceedings and that no other preventive measures would have been sufficient at this stage of the proceedings. 29.  The Regional Court further found that the applicant’s state of health did not justify his release. It relied on a medical certificate of 22 September 2006 and the expert report of 15 November 2006. It further noted that the applicant could be detained in an appropriate medical establishment had his condition so required. 30.  On 29 November 2006 the Lublin District Court prolonged the applicant’s detention until 1 March 2007. It further held that the applicant would be released if he put up bail in the amount of PLN 30,000 (approx. EUR 7,500) by 13 December 2006. The court found that it was justified to prolong the applicant’s detention beyond the ordinary three‑month period. It noted that since August 2006 the prosecutor questioned several dozen of witnesses and as a result he charged the applicant with the commission of at least ten additional offences under Article 228 § 1 and Article 228 § 4 of the Criminal Code. It also noted that the case could develop further since the prosecutor had planned to question many more witnesses. 31.  The court found that the reasons justifying the applicant’s detention on remand were still valid. The evidence in the case supported the reasonable suspicion against the applicant. Furthermore, the number of charges (at least twenty at the time of the court’s decision) and other elements relied on by the court earlier indicated that the applicant was likely to be sentenced to a severe penalty. However, having regard to the fact that the most severe preventive measure had been already applied for nearly six months and that the prosecutor had carried out many investigatory acts, the court found that bail would be a sufficient measure to ensure the proper conduct of the proceedings at that stage. 32.  Lastly, relying on the medical certificate of 22 September 2006 and the expert report of 15 November 2006 the court found that the applicant’s state of health did militate against his detention on remand. 33.  The bail was paid and the applicant was released on 30 November 2006. 34.  On 7 December 2006 the Lublin Regional Court dismissed the prosecution’s appeal against the decision to release the applicant on bail. It agreed with the lower court that the particular condition set out in Article 258 § 2 of the Code of Criminal Procedure (severity of the likely penalty) had been satisfied in the applicant’s case. However, the fact of this condition being satisfied could not lead to automatic extension of detention on remand. In accordance with Article 257 § 1 of the Code of Criminal Procedure the application of the most severe preventive measure was limited to exceptional cases, namely those where there were grounds to assume that other measures would not have been sufficient to ensure the proper conduct of the proceedings. In the court’s view, at the current stage of the proceedings, the application of detention on remand was not appropriate since – in accordance with the principle of proportionality of the application of preventive measures – they should be applied in the manner that was commensurate to the existing risk to the proper conduct of the proceedings. The court found that in the present case there had been no grounds to consider that the applicant would have interfered with the proper conduct of the proceedings because of the severity of the likely penalty. The applicant made his statements in the case, was not previously convicted and had a permanent abode. It was incorrect on the part of the prosecutor to argue that the risk of obstructing the proceedings was justified by the fact that the case could have developed further and the related necessity to question more witnesses. The court emphasised that the severity of the likely penalty alone did not constitute a sufficient ground for application of detention on remand unless it was linked with a substantiated risk that a suspect might take actions obstructing the proper conduct of the proceedings with a view to avoiding the likely penalty. The evidence collected in the case did not provide any grounds for such an assumption. The court concluded that bail would be a sufficient preventive measure in the applicant’s case. 35.  The applicant submitted that during his detention he had been intimidated by the authorities in various ways. Apparently, his respirator was damaged by the prison guards during searches of the cell. He was made to wait five weeks in pain for a visit to a dentist. He was not provided with a cheap drug against his hypertension. For two weeks he was put in cell no. 60 with five smokers which was very difficult given his condition. Later, he was put in cell no. 38 which had been previously occupied by prisoners suffering from tuberculosis but had not been disinfected. In that cell there was a toilet annex which did not provide any privacy. 36.  According to the medical certificate of 1 December 2006 issued by a specialist in lung diseases the symptoms of the applicant’s sleep disorder intensified. He recommended that the applicant be treated in a specialised institute in Warsaw. 37.  In December 2006 and April 2007 the applicant was hospitalised and diagnosed with ischaemic heart disease. According to the medical certificate of 28 December 2006 the applicant had lost 26 kilograms in weight. Due to his condition following the release the applicant has been unable to practise as a doctor for a certain time.


5.  The applicant was born in 1962 and is currently serving a prison sentence. 6.  Between 4.25 and 5.30 p.m. on 27 July 2007 the police, in the presence of the applicant, searched his house and found drugs allegedly belonging to him. After the search the applicant was taken to the Leninskyy District Police Station of Sevastopol and questioned about the matter. He was not allowed to leave the police station. According to the Government, at an unspecified time on the same day the applicant was detained under Article 263 of the Minor Offences Code; no document concerning this has been made available to the Court. 7.  At 7 p.m. on 28 July 2007 an investigator drew up a detention record, pursuant to Article 115 of the Code of Criminal Procedure (“the CCP”), regarding the applicant, who was suspected of drug dealing committed on 27 July 2007. The applicant was then placed in the Sevastopol City Temporary Detention Centre (Севастопольський міський ізолятор тимчасового тримання, “the ITT”). 8.  According to the applicant, at the police station he was subjected to psychological pressure as a result of which he confessed to the possession of drugs and drug dealing. 9.  On 30 July 2007 he was charged with drug dealing. Subsequently, new charges were brought against him and joined to the case. In particular, he was charged with the illegal possession of drugs in May-July 2007 and during his detention in Simferopol Temporary Investigative Isolation Unit no. 15 (Сімферопольський слідчий ізолятор № 15, “the SIZO”). 10.  By a decision of 31 July 2007 the Leninskyy District Court of Sevastopol (“the District Court”) held that it was necessary to make further enquiries about the applicant and decided to remand him in custody for ten days. On the same date a lawyer of the applicant’s own choosing was given permission to take part in the proceedings. 11.  On 1 August 2007 the Tuberculosis Healthcare Centre in Sevastopol (“the TB Centre”) issued a certificate indicating that the applicant had been registered there since 2000 and was suffering from “chronic infiltrative tuberculosis (“TB”) of the left lung (degeneration phase: MBT+)”, that he had undergone in-patient medical treatment from 2 to 13 March 2007 and “from 16 April to 28 July 2007, when [he had been] discharged [from the TB Centre] for a violation of therapeutic regimen”, and that it was appropriate for him to be held in cells for persons suffering from an active form of TB. 12.  On 6 August 2007 the District Court remanded the applicant to the ITT pending his transfer to the SIZO, without any indication of how long he would stay there. It noted that the applicant had been convicted of drug‑related offences on several occasions, that he was suspected of having committed a serious crime, and that he had continued to engage in similar criminal activities after having served a prison sentence in October 2006. The court also took into account information obtained from the TB Centre about the applicant’s health condition. 13.  According to the applicant, on 9 August 2007 he appealed against the remand order, stating in particular that he was not fit enough to remain in detention owing to the TB. On 29 September 2007 he lodged a complaint with the Leninskyy District Prosecutors’ Office of Sevastopol alleging that from 27 to 28 July 2007 his detention had been unlawful. There is no information as to the outcome of the appeal and complaint or indication that the complaint was received by the authorities. 14.  On completion of the investigations the applicant’s case was referred for trial to the District Court, which, according to the applicant, held its first hearing in the case on 4 November 2007. According to the Government, this hearing was held on 1 November 2007. 15.  On 15 May 2008 the applicant was transferred to the SIZO, but was periodically held at the ITT. 16.  According to the applicant, on 17 June 2008 he lodged a complaint with the Leninskyy District Prosecutors’ Office and the District Court, again alleging that his detention from 27 to 28 July 2007 had been unlawful. No document concerning this has been made available to the Court. 17.  In a judgment of 24 October 2008 the court found the applicant guilty of the illegal possession of drugs and drug dealing, sentenced him to two years and six months’ imprisonment and ordered the confiscation of all his property. 18.  On 23 December 2008 the Sevastopol Court of Appeal (“the Court of Appeal”) quashed the judgment, finding that the first-instance court had not questioned the applicant on each of the charges against him, and it remitted the case to the latter court for fresh consideration. The Court of Appeal also ordered the applicant to remain in detention, without providing reasons or a time-limit for the continued detention. 19.  In 2009 the applicant’s representative unsuccessfully tried to institute administrative court proceedings against the trial court, mainly for its failure to try the applicant in due time. 20.  On 29 March 2010 the District Court ordered the Prosecutor’s Office of the Leninsky District to investigate the applicant’s complaints of psychological and physical pressure applied to him by unspecified police officers. On 31 March 2010 a prosecutor, having interviewed the police officers involved in the applicant’s arrest and having studied his detention documents, found the complaints unsubstantiated. 21.  In a judgment of 6 April 2010 the District Court convicted the applicant on four counts of drug dealing and running a centre for the production and use of illicit drugs, while striking off one count for want of proof of a crime. The applicant was sentenced to five years’ imprisonment and the confiscation of all his property was ordered. 22.  According to the parties’ last submissions, on 16 November 2010 the Court of Appeal upheld the first instance judgment. The applicant received a copy of the decision on 25 January 2011. There is no indication whether he appealed in cassation. 23.  According to the Government, during the criminal proceedings the courts and police heard fifteen witnesses and seven other suspects. Five forensic examinations were carried out. 24.  Out of the twenty-seven court hearings scheduled in the course of the proceedings, thirteen were held, while four were adjourned for unknown reasons, two were adjourned due to both witness’s failure to appear and the applicant’s convoy’s failure to bring him to the court, two were adjourned owing to the applicant’s convoy’s failure to bring him to the court, two were adjourned owing to the presiding judge’s sickness, and one each was adjourned owing to prosecutor’s vacation or his procedural request, the applicant’s studying the case file, both the presiding judge’s sickness and the applicant’s convoy’s failure to bring him to the court. 25.  During the proceedings, the trial court ordered the police to escort witnesses for the hearings on 14 November 2007, 30 September and 9 November 2009. On the last-mentioned date the court adopted a separate resolution (окрема постанова), finding that the ITT had failed to escort the applicant to the hearings on a number of occasions. The court also requested the city police and prosecutors to ensure the applicant’s escort to hearings. The applicant failed to lodge one of his appeals properly; it is unspecified how that delayed the proceedings. 26.  On 28 July 2007 the applicant informed the ITT that he had an active form of TB and was placed in a special cell. There is no indication whether the ITT had a medical practitioner on its staff. 27.  On 8 February 2008 the TB Centre confirmed the applicant’s diagnosis and specified that he required a prolonged course of chemotherapy. 28.  On 15 May 2008 the applicant was admitted to the TB ward of the SIZO and was prescribed “H, R, Z, E” (anti-TB drugs, see paragraph 57 below) and some “vitamins and hepatoprotectors”. 29.  On 9 March 2009 the applicant fell down and injured his left knee while being transported to the ITT. He complained about it to the ITT administration. A doctor confirmed the injury and recommended, without specifying the degree of urgency, that the applicant consult a phthisiatrician. 30.  When brought back from the ITT to the SIZO on 12 March 2009, the applicant was examined by the SIZO doctor, but raised no complaints about his health. According to a medical certificate of the SIZO doctor of 7 April 2010, "during the examination the applicant did not raise any complaints as he wished to get to his cell sooner". 31.  On 18 March 2009 he complained to the SIZO doctor of severe left knee pain. On 20 March 2009 the doctor performed an X-ray examination and concluded that the knee cap was broken and displaced. According to the applicant, the SIZO provided him with no medical treatment in respect of that injury. 32.  On 24 March 2009 he was examined by a doctor at the traumatology centre of Simferopol Town Hospital no. 6 (“the hospital”) and his knee was immobilised by a plaster cast. 33.  On 2 April 2009 the applicant complained to the ITT administration about the injury to his left knee and subsequently was seen by an ambulance doctor. 34.  According to the applicant, on 3 April 2009 the ITT ignored an ambulance referral for a medical examination of his knee and instead sent him to the SIZO. There is no indication he was advised such medical examination at the time. 35.  On 3 June 2009 an X-ray of the applicant’s left knee revealed a closed fracture of the left knee cap, with some positive developments. 36.  On 3 July 2009 the phthisiatrician of the TB Centre concluded that the applicant had “infiltrative TB of the upper part of the left lung (Category 4)”; it was recommended that he continue medical treatment for one and half month with “H, R, Z, E”. 37.  On 7 July 2009 the traumatologist, having examined an X-ray of the applicant’s knee, found a healed fracture of the left knee cap and a contracture of the knee. According to him, the applicant did not need a surgical operation. The applicant was prescribed “a course of exercise therapy, Fastum Gel, and massage”. On 9 July 2009 the applicant was again seen by the traumatologist, who noted that he had already been prescribed adequate treatment in respect of the injury. 38.  On 15 July 2009 the phthisiatrician found that the applicant had “infiltrative [TB] of the lungs (Category 4)” and recommended to continue taking “H, R, Z, E, and Levofloxacin”. The doctor indicated the appropriate dosage, frequency and duration for the drugs and also recommended some “vitamins and hepatoprotectors”. 39.  On 28 September 2009 a doctor examined the applicant’s left knee and found no grounds for outpatient treatment or hospitalisation. 40.  On 4 November 2009 a traumatologist examined the applicant and diagnosed him with a consolidated fracture of the left knee cap and a moderately expressed contracture of the left knee joint. He was prescribed medication and exercise therapy. 41.  On 2 June and 20 August 2010 the phthisiatrician at the TB Centre examined the applicant, finding “post-TB residual changes and fibrosis in the upper part of the lungs (Category 5.1)”. He recommended that the applicant undergo repeated courses of anti-relapse therapy, whose particulars were not given. According to the applicant, the doctor’s conclusions of 2 June 2010 were not reliable for unspecified reasons. 42.  On 20 August 2010 the applicant was discharged from the TB ward, which was unlawful, according to him, because he was still sick. 43.  On 1 and 21 October 2010 the applicant began a course of anti‑relapse therapy. He agreed to take the medication, yet questioned the effectiveness of the therapy. 44.  On 2 November 2010 a panel of doctors from the Crimea Medical Forensics Bureau, having studied the applicant’s medical records, including the one drawn up by the traumatologist on 26 October 2010, found that the left-knee fracture had healed, that there were no lasting residual effects of the injury, and concluded that the knee treatment provided by the Simferopol hospital had been timely and thorough. 45.  While detained at the ITT, the applicant asked for medical assistance on 30 July, 14 and 23 August and 5 September 2007, 9 March, 31 March and 28 September 2009, and 1 April 2010. On each occasion the ITT administration called the ambulance, whose doctor came to see the applicant. His chest was X-rayed on 8 February and 15 May 2008, 23 January, 3 June and 10 July 2009, and 3 and 18 February, 2 June and 20 August 2010. The applicant underwent sputum tests on 16, 17 and 19 May, 1 July, 28 November and 1 and 2 December 2008, 23 and 24 January, 24, 25, 26 March, 4 June, 26 and 27 August and 22 September 2009, and 17 February and 20 August 2010, all of which were negative. On 4 June 2009 he underwent urine and blood analyses. According to the Government, during his detention in the SIZO the applicant received a high calorie diet and he was provided with some additional food. The applicant submitted that his food was poor and that there was no evidence he received medication and special food. 46.  During his detention the applicant and his representatives lodged a number of complaints with the police, prosecutors, and courts alleging, inter alia, that the applicant was not receiving proper medical treatment. On 9 October 2009 the Sevastopol Prosecutor’s Office refused to institute criminal proceedings against the ITT duty officer in that regard. The applicant did not appeal. According to the Government, after June 2010 the applicant did not complaint about his state of health. According to the applicant, he complained but his complaints were not dealt with. 47.  After a number of inquiries, on 4 November 2010 the Zaliznychnyi District Prosecutor’s Office of Simferopol refused to institute criminal proceedings against the head and the physician of the SIZO medical unit, the SIZO governor, and the head traumatologist of the Simferopol hospital. Apparently, the applicant did not appeal against that decision. 48.  In 2010 the applicant’s mother instituted court proceedings against the prosecutors for their negligence in respect of her son’s TB infection. It appears that the proceedings are pending before an appellate court. 49.  Article 155 provides:
“Persons in respect of whom taking into custody is imposed as a preventive measure are kept in places of detention pending trial, i.e., pre-trial detention centres [SIZOs]. In some cases, these persons may be kept in places for detained persons [ITT] ... for not more than three days. If transportation of remanded persons to the pre-trial detention centre ... is impossible within this time-limit because of the long distance or lack of appropriate roads, they may be kept in places for detained persons for up to ten days.” 50.  Section 17 of the Act provides that persons suffering from tuberculosis who are detained in pre-trial detention centres (SIZOs) must receive appropriate treatment in the medical units of these detention centres. 51.  According to the order, there are five main and five sub-categories for the recording of those who have TB or may be affected by it. For instance, patients with chronic TB of various localisation, with or without discharge of bacteria, fall into Category 4. Patients with residual changes of various localisation after the TB is cured fall into Category 5.1. 52.  Under section 6.1, TB treatment is to be administered in specialised anti-TB institutions and to consist of two phases: main chemotherapy and rehabilitation. The main chemotherapy course, an extended, uninterrupted course of treatment, consists of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (isoniazid, rifampicin, streptomycin, pyrazinamide and ethambutol or “H, R, S, Z, E”). 53.  Under section 6.6.1, to obtain maximal results, medical or surgical treatment of pulmonary TB is to be implemented in conjunction with individualized hygiene plan and regime (complete bed rest, part-time bed rest or a training regime). Treatment is to be followed by rehabilitation, including curative exercise, massage and physiotherapy. 54.  According to section 6.6.2., the diet of a patient with TB infection must take into account his living and working conditions, general state of the organism, its reactivity, nature of any injury, and complications from other organs. The diet should be balanced, yet rich in proteins, minerals, and vitamins, in particular the C, E and B groups. The intake of carbohydrates should be within the norms, or lower if the patient is overweight. 55.  According to section 6.7, pulmonary TB patients of all categories are to be regularly monitored. For instance, Category 4 patients are to be monitored using the following tests: sputum every month for six months, then every two months; sensitivity to the anti-TB drugs and X-ray – at the beginning and once every six months afterwards. The patients with Category 5.1 TB should undergo X-ray at least every six months during the first year of monitoring. 56.  Regular mandatory examinations to determine the effectiveness of the TB treatment and timely registration of side effects and their treatment as set out in Table 15 of the Protocol should be carried out. 57.  According to the Table 15, if such anti-TB drugs as isoniazid, rifampin, pyrazinamide, and ethambutol (“H, R, Z, E”) are administered, examinations and interviews of the patient, plus biochemical and common blood analysis, should be undertaken. The patient should also be examined by a neuropathist and ophthalmologist. 58.  The pertinent parts of the Rules read as follows:
“... Scope and application 10.1  The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
Health care 40.4  Medical services in prison shall seek to detect and treat physical ... illnesses or defects from which prisoners may suffer. 40.5  All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel 41.2  Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. 41.3  Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly. ...
Duties of the medical practitioner 42.1  The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ... 42.3  When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ...
b.  diagnosing physical ... illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ...
f.  isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment; 43.1  The medical practitioner shall have the care of the physical ... health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ...
Health care provision 46.1  Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison. 46.2  Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” 59.  The pertinent parts of the Report read as follows:
“... Only the prisons setting has seen some progress in terms of decreased TB prevalence, TB notification rates, and TB mortality (although combined [Ministry of Health/ Sector Development Program]’s figures for mortality show an increase of 13% since 2003). These achievements are a result of progress made over the last five years to improve nourishment of inmates, increase drug supply and laboratory reagents, and provide better overall conditions in prisons (as a result of reductions made in the number of inmates). Also, severely ill patients have been released from the prison setting ... However, [Multiple Drug Resistant TB] in prisons is extremely high, at roughly 20% ... It is evident that since ... 1999, the reported cases of ... TB ... have seen a steady increase until 2006 with subsequent gradual decline as a result of steps taken by Government, including to double/quadruple the TB budget in 2006/2007/2008 vis à vis 2003/2004/2005 budgets. However, it should be noted that TB incidence in Ukraine remains one of the highest in the ECA region and is five times higher than the EU average ... The project did expand the laboratory network in the civil and the prison settings and with additional support from international and local donors and partners, as well as through Government own efforts, this network will be further improved.” 60.  The domestic law pertinent to the issue of the lawfulness of the applicant’s detention is summarised in the judgments in the cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts)); Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008); and Gavazhuk v. Ukraine (no. 17650/02, § 46, 18 February 2010). 61.  Other domestic and international material concerning conditions of detention and treatment of TB infection in detention facilities can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-51, 28 March 2006, and Yakovenko v. Ukraine (no. 15825/06, §§ 53-54, 25 October 2007).


5.  The first applicant, Mr David Raban, is an Israeli and Dutch citizen, who was born in 1957 and lives in Yehud, Israel. The second and third applicants are his children, Ela Raban, born in 2003, and Ilan Matzliah Raban, born in 2004. They currently live in Romania with A.R., their mother. 6.  The first applicant and A.R. got married in 2002 in Cyprus. The two had already lived together as a couple in Israel for six months before the wedding. In 2003 and 2004 respectively, their two children, Ela and Ilan Matzliah, were born in Israel. Their last place of residence in Israel was Bat Hefer. 7.  In 2006, as explained by the applicant, the couple, who had joint custody of the children, agreed that the mother and the two children would visit the mother's family in Romania for six months. On 27 April 2006, the mother and the children left for Romania; according to their roundtrip airline tickets, they were scheduled to be back on 24 October 2006.
However, they never returned to Israel; on 3 November 2006, A.R.'s mother informed the first applicant that A.R. and the children would remain in Romania. 8.  Subsequently, the first applicant filed for the return of his children, under the Hague Convention (proceedings described under no. 1 below), while A.R. filed for divorce and custody of the children with the Romanian courts (proceedings described under no. 2 below). 9.  On 8 November 2006 the first applicant filed a request for the return of his children under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Israeli Ministry of Justice to the Romanian Ministry of Justice (“the Ministry”). The first applicant claimed that his wife was wrongfully retaining their children in Romania, without his consent.
On 14 February 2007 the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Fourth Precinct. 10.  On the basis of the evidence adduced in the case, which included a “psychological evaluation of the children”, the District Court found on 11 October 2007 that the retention of the children in Romania was illegal under Article 3 of the Hague Convention, as at the time of the retention the father had lawful custody rights. It also held that the allegations of A.R. according to which the first applicant had agreed that the children should remain in Romania as his financial situation in Israel was precarious, confirmed by the witness M.-A. T., who stated that neither the applicant, nor A.R. had a job in Israel, were however unsubstantiated, as the first applicant had proved that he had made attempts to rent a house for the family, had enrolled the children in a local kindergarten and was regularly in contact with the children by phone.
The defence raised by A.R. under Article 13 § 1 b) of the Hague Convention was also dismissed by the court; it considered that the “state of insecurity” invoked and the “general threat of terrorist attacks” arising in Israel had not proved to be an obstacle to the family living in Israel for more than five years prior to the children's removal, and could not be regarded as having developed to a dangerous degree at that time. The court ordered that the children be returned to their habitual residence in Israel no later than three weeks after the judgment became final. 11.  A.R. filed an appeal against this decision, which was allowed by the Bucharest Court of Appeal in a final judgment of 7 January 2008. Out of the panel of three judges, Judge M.H. gave a dissenting opinion, favouring the reasoning of the first-instance court.
The majority's decision was based on two conclusions: firstly, that Article 3 of the Hague Convention was not applicable to the case, in so far as the children, Romanian citizens, had left Israel and remained in Romania upon the agreement of the parents; secondly, that in any event, the exception provided for by Article 13 1 b) of the Convention was substantiated, as it had been proved that, if returned to Israel, the children would risk exposure to physical or psychological harm. 12.  The appellate court thus found that the children had left Israel and remained in Romania with the consent of their father, due to the worsening of his financial situation. The agreement between the parents was for the children to stay in Romania until the first applicant's financial situation improved –in that respect, even the fact that they had bought roundtrip tickets, which were cheaper than one-way tickets, only underlined the financial difficulties the family was undergoing; however, as time passed, the evidence showed that this situation had kept worsening, since the first applicant had sold the house where they had lived as a family, after the departure of A.R. with the children, and gone to live with his mother. Also, the first applicant had not produced any evidence to support his claim that he had sent money to his children.
The court further held that the first applicant had not proved that he had maintained contact with his children; in the file there was only evidence of one visit paid by the first applicant to his children, on 3 October 2007; the phone calls allegedly made by the first applicant to his children in Romania had been made from the house of the first applicant's mother, which was interpreted as meaning that the conversations had been between the children and their paternal grandmother.
Hence, the agreement between the spouses regarding the children remaining in Romania proved to be real and such an agreement could by no means be regarded as breaching Article 3 of the Hague Convention. 13.  Moreover, the evidence in the file showed that the two children had integrated into the Romanian community successfully – they had good results at kindergarten and positive psychological evaluations – arguments which supported a dismissal of the first applicant's action. The court also held that “the evaluation of the children carried out by the General Department for Social Assistance and Child Protection in the presence of a counsellor revealed that no assessment could be made of the possible effects of the separation of the father from his children, insofar as there was insufficient information with regard to the father-children relationship”. 14.  The defence under Article 13 § 1 b) of the Hague Convention, namely, that there was a grave risk of exposing the children to intolerable physical harm if returned to Israel, was also allowed. The court based their reasoning, inter alia, on “the reports produced by Amnesty International”, which stated according to the court, that Bat Hefer was located in a conflict area, where citizens feared for their safety. At the same time, the court based its reasoning on travel advice issued in January 2008 by the US State Department, in which warnings were allegedly made about “potential conflicts which could arise between the Israelis and the Palestinians”, and “signs of possible terrorist attacks in the area” were referred to.
In a dissenting opinion to the judgment, Judge H.M. underlined that the above-mentioned documents “did not actually refer specifically to Bat Hefer, but to other regions of Israel”. 15.  The applicant was never given a copy of the above-mentioned reports. In a certificate issued by the Ministry of Justice on 29 May 2008 to the applicant it was mentioned that neither the Amnesty International reports, nor the US State Department release were to be found in the domestic case file. 16.  On 6 March 2007, A.R. filed for divorce, custody of the children and maintenance before the Bucharest District Court of the Fourth Precinct. 17.  On 24 September 2008 the first applicant (defendant), represented by an appointed lawyer, presented his observations in reply to A.R.'s claims. He contended that the Romanian courts did not have general jurisdiction in such proceedings, in so far as the marriage was registered in Cyprus, the defendant was an Israeli and Dutch citizen, the couple's children were Israeli citizens, and the last marital home had been in Israel.
He also lodged counterclaims asking the courts to either grant him full custody of the two children, or to order their return to their habitual residence in Israel.
 18.  On 18 November 2008, the court rejected the first applicant's plea regarding the lack of jurisdiction, considering that “the Romanian courts did have full jurisdiction in such cases, pursuant to Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility”. 19.  In its judgment of 19 December 2008, the district court granted A.R a divorce on the grounds of exclusive fault by the first applicant.
Based on the conclusions of a social enquiry report on the children's concrete situation, which held that they were well taken care of and benefited from a good standard of living, and taking into consideration their ages (5 and 4, at that time), the court awarded custody of the children to the mother. The court found that it was in their best interest to remain with their mother, her care and presence being a psychological factor which was absolutely essential for their intellectual, moral and physical development.
In the absence of any proof regarding the first applicant's employment and/or income, the court referred to the national minimum wage scale and ordered him to pay monthly maintenance in the amount of 90 RON in respect of each child, starting on 6 March 2007 and until they reached the age of majority.
Neither the first applicant, nor A.R. have lodged any appeals against this judgment, which thus became final and enforceable.


6.  The applicant was born in 1988 and is currently serving a prison sentence in Geguti no. 8 Prison. 7.  On 8 March 2006 the applicant was arrested in connection with a robbery. 8.  On 16 October 2006 the Kaspi District Court convicted him and three others of conspiracy to commit robbery. The conviction was based on various evidence, including the statements of the victim, who had identified the applicant and the other accused as the perpetrators during the trial. The applicant was sentenced to six years in prison. 9.  As disclosed by the transcript of the trial, the victim, a person of Azerbaijani origin who had difficulty in speaking Georgian, was assisted by an interpreter. The lawyers of the accused, including that of the applicant, extensively examined the victim and other witnesses for the prosecution. 10.  On 8 November 2006 the applicant appealed against the conviction of 16 October 2006, calling into question the lower court’s assessment of the evidence and accusing the investigating authority of procedural omissions. He stated, in particular, that the victim’s incriminating statements lacked credibility, in so far as the victim had been examined at the investigation stage without the assistance of an interpreter. 11.  On 25 May 2007 the Tbilisi Court of Appeal, replying to all his major arguments, dismissed the applicant’s appeal of 8 November 2006. As regards the complaint concerning the victim’s statements, the court noted that the conviction had been based on the statements given during the trial, rather than on those obtained at the investigation stage. Having reviewed those statements, the appellate court confirmed their credibility. 12.  The decision of 25 May 2007 dismissing the applicant’s appeal was finally upheld by the Supreme Court of Georgia on 17 January 2008. 13.  According to the case file, prior to the initiation of the criminal proceedings against the applicant and his consequent detention, he had had no major medical problems and was in good health. Notably, he had been a member of a wrestling club in Gori and, as his coach confirmed, had been in excellent physical condition and been considered a promising sportsman at that time. 14.  The case file also contains a document dated 4 November 2008 from the Gori tuberculosis hospital, stating that the applicant had never been registered as a patient there. 15.  Subsequent to his arrest on 8 March 2006, the applicant was placed in Tbilisi no. 5 Prison, where he allegedly shared a cell with prisoners infected with pulmonary tuberculosis (“TB”). 16.  On 29 February 2008, the applicant was transferred to Geguti no. 8 Prison, where his state of health began to deteriorate from late May 2008. His symptoms were fever and a cough. 17.  On 18 June 2008, pursuant to a complaint of 17 June 2008 from the applicant’s mother, a medical expert examined the applicant, diagnosing him with TB. On the same day he was transferred to Ksani Prison, where prisoners with TB were housed. 18.  As disclosed by the circumstances of the case, on 7 July 2008 a medical expert of Ksani TB Prison issued an opinion which confirmed that the applicant’s right lung had been affected by TB, with a positive sputum culture, and that the disease was at the stage of disaggregation; the applicant was occasionally coughing up blood. The opinion further disclosed that the applicant had started receiving anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for detection and cure of TB recommended by the World Health Organisation) on 26 June 2008. Notably, he had been prescribed with daily dosages of such conventional antibiotics as isoniazid (300 mg), ethambutol (1,100 mg), rifampicin, pyrazinamide (1,600 mg) and streptomycin (1 gr). 19.  On 2 July 2008 the prison authorities arranged for the applicant’s sputum culture and sensibility to be tested by the National Centre for Tubercular and Lung Diseases. The results of those tests, issued on 2 September 2008, showed that the sputum culture was already negative. It was also established that the applicant’s TB bacterium maintained sensitivity with respect to the administered antibiotic drugs, which confirmed the suitability of the ongoing treatment. 20.  On 19 September 2008 the prison authority arranged for another round of specific bacteriological tests (smear, culture and susceptibility), the results of which, issued on 22 September 2008, disclosed that the applicant’s treatment was continuing to show promising results. 21.  On 26 February 2009 the applicant’s treatment was completed, and on the following day he was transferred from Ksani TB Prison to Geguti no. 8 Prison. The termination of the treatment was based on the opinion of the doctor who had been monitoring the applicant since 26 June 2008, as well as on the results of laboratory tests of the applicant’s sputum, dated 18 February 2008, which confirmed that TB bacilli were no longer present in the applicant’s lungs. 22.  The applicant’s medical file further discloses that during the whole period of his treatment, from 26 June 2008 until 26 February 2009, his intake of antibiotics had been closely monitored by medical personnel with the appropriate training. 23.  On 19 April 2010 the prison authorities arranged for an X-ray examination of the applicant’s thorax, the results of which confirmed that there were no new tubercular signs in the applicant’s lungs, thus excluding the risk of relapse.


4.  The applicants were born in 1961, 1959 and 1964 respectively. 5.  In the course of a police operation against an illegal armed organisation, namely the TKEP (the Communist Labour Party of Turkey), the police arrested and detained Mr Ayhan in police custody on 5 May 1993. The applicant had fake identity papers on him at the time of the arrest. 6.  He was subsequently brought before a judge who remanded him in custody on 19 May 1993. 7.  By an indictment dated 30 July 1993, the public prosecutor initiated criminal proceedings against the applicant and other accused before the Istanbul State Security Court, accusing the applicant, inter alia, of participation in activities which undermined the constitutional order of the State. These included aggravated theft from various jewellery shops and involvement in the killing of Mr Y.I. and Mr M.Ö in 1990 and 1991 respectively. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code. 8.  In the course of the proceedings before the Istanbul State Security Court, the latter considered the applicant’s detention at the end of each hearing of its own motion and each time it ordered continued detention with reference to the nature of the offence, the state of the evidence and the content of the case file. At the hearing held on 28 January 1997, the applicant requested to be released for the first time. The court ordered the continuation of his detention, having regard to the nature of the offences with which he was charged and the state of the evidence. Thereafter until 30 May 2000 the applicant did not specifically request release. However, the court continued of its own motion to examine the applicant’s detention and ordered it to be continued on the same grounds as before. Between the hearings held on 30 May 2000 and 24 February 2004, the court considered the applicant’s detention regularly, either of its own motion or at the request of the applicant, and each time it ordered his continued detention, having regard to the nature of the offence, the state of the evidence and the content of the case file. 9.  On 24 February 2004 the Istanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment. This judgment was upheld by the Court of Cassation on 4 October 2004. 10.  On 10 February 1994 the second applicant, Mr Akkurt, and the third applicant, Mr Töre, were arrested and taken into custody on suspicion of involvement in the activities of the above-mentioned organisation. They were remanded in custody on 24 February 1994. 11.  By an indictment dated 17 May 1994, the public prosecutor initiated criminal proceedings against the applicants and other accused before the Istanbul State Security Court, accusing the applicants, inter alia, of involvement in activities which undermined the constitutional order of the State. These included aggravated theft from various jewellery shops. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code. 12.  In the course of the proceedings before the Istanbul State Security Court, the latter considered the applicants’ detention at the end of each hearing of its own motion, and each time it ordered their continued detention with reference to the nature of the offence, the state of the evidence and the content of the case file. At a hearing held on 5 August 1998, the applicants requested to be released for the first time. The court ordered the continuation of their detention, having regard to the nature of the offence and the length of their detention. Thereafter until 4 November 2002 the court considered the applicants’ detention regularly, either of its own motion or at the request of the applicants, and each time it ordered their continued detention, having regard to the nature of the offence, the state of the evidence and the content of the case file. On 4 November 2002 the applicants, at their request, were released pending trial. The court took note, in determining their request for release, of the length of time the applicants had already spent in detention and the state of the evidence. 13.  On 27 December 2006 the Istanbul Assize Court convicted the applicants as charged and sentenced them to life imprisonment. Their appeal against this decision is apparently pending before the Court of Cassation.


6.  The applicant was born in 1970 and lives in Tbilisi. 7.  The applicant worked as an officer at a regional branch of the Customs Department (hereafter “the old customs office” of “the Department”), an agency of the Ministry of Finance.  Due to the structural reorganisation of the Department on 30 June 1995, he was released by an administrative order of 5 August 1995, together with some other people. This order noted that the discharged officers were to be transferred to another, newly established regional customs office (“the new customs office”). 8.  On 5 August 1995 the applicant requested the Department's authorisation to take up his duties at the new customs office. No reply was forthcoming. For the next six years, he complained on numerous occasions before various governmental agencies about the inability to continue his service. 9. In a letter of 21 March 2001, the Department informed the applicant that, after its reorganisation on 30 June 1995, staff had been significantly reduced and, in so far as he had continuously been absent from the old customs office without authorisation, the administration had decided not to employ him any longer. The lawfulness of such a decision, the letter noted, was assured by the provisions of the Labour Code (“the LC”), the sole legislative act which regulated civil servants' labour disputes at that time. The applicant was invited to visit the Department's human resources office, in order to obtain the order for his dismissal and the work log. 10.  On 23 May 2001 the applicant sued the Department for unfair dismissal, requesting reinstatement to his position and compensation for loss of salary. 11.  In a first instance judgment of 22 November 2001, the Isani-Samgori District Court in Tbilisi found in the applicant's favour. However, in an appellate decision of 15 April 2002, the Tbilisi Regional Court rejected his action as time-barred. The appellate court first noted that, in so far as the Civil Service Act of 31 October 1997 had not been enacted at the time of the applicant's dismissal, only the provisions of the LC had been applicable to the dispute. Given the fact that the applicant had continuously been complaining before various authorities, except for the courts, about his inability to pursue his duties as a customs officer, the appellate court found that he had been well aware of the alleged breach of his rights since his dismissal took effect in 1995. In such circumstances, it concluded that the applicant had failed to comply with the one-month time-limit for lodging an employment action, as required by Article 204 § 1 of the LC. 12.  In May 2002 the applicant lodged a cassation claim, in which he called into question the appellate court's assessment of the circumstances of the case and certain evidence. It appears from the case file that the respondent Department did not submit any reply to that claim. 13.  On 12 June 2002 the Civil Affairs Chamber of the Supreme Court of Georgia (“the Chamber”) at an oral hearing attended by the applicant, started the examination of the case but, due to the absence of the Department's representative, adjourned it. The Chamber also decided to dispense with an oral hearing in the further proceedings. 14.  On 13 June 2002 the applicant, complaining about the absence of an oral hearing, requested the President of the Supreme Court to change the Chamber's composition. In a decision of 18 June 2002, the Chamber dismissed this request as unsubstantiated. 15.  In a decision of 19 June 2002, adopted under the written procedure, the Chamber dismissed the applicant's cassation claim. Having confirmed the appellate court's interpretation of the LC, it stated that it lacked jurisdiction to inquire into matters of fact, in so far as the applicant had not raised any “additional and well-founded cassation argument” (Article 407 § 2 of the Code of Civil Procedure).


5.  The applicants were born in 1955 and 1961 respectively. They are farmers residing at Ginsenberg, Styria. 6.  On 8 June 1972 the Graz District Agricultural Authority (Agrarbezirksbehörde, "the District Authority") opened the Mooskirchen land consolidation proceedings (Zusammenlegungsverfahren) which also concerned the applicants’ land. 7.  On 16 November 1984 the District Authority adopted the consolidation scheme (Zusammenlegungsplan) and on 10 December 1984 the parties to the proceedings were notified. 8.  Subsequently, on 20 December 1984 K. and A., the applicants’ predecessors (the first applicant’s parents), lodged an appeal, alleging that they had not been duly compensated. 9.  On 19 September 1990 the Regional Agricultural Panel (Landes-agrarsenat) dismissed their appeal as unfounded. By decision of 25 February 1991 the Constitutional Court refused to deal with the case for lack of prospect of success and upon the applicants’ predecessors’ request remitted the case to the Administrative Court. 10.  Thereupon K. and A. lodged a complaint with the Administrative Court, which, on 21 September 1995, quashed the decision of 19 September 1990 for failure to comply with procedural rules and remitted the case back to the Regional Agricultural Panel. 11.  Since the Regional Agricultural Panel failed to decide within a reasonable time K. and the first applicant on 12 January 1998 lodged a request for transfer of jurisdiction (Devolutionsantrag). 12.  On 1 April 1998 the Supreme Land Reform Board (Oberster Agrarsenat) granted the request and assumed competence. By decision of 3 May 2000 it granted the appeal of 20 December 1984 and remitted the case to the District Authority. 13.  As the District Authority failed to take a decision within the statutory period of six months, K. and the two applicants on 16 January 2001 lodged another request for the transfer of jurisdiction (Devolutionsantrag). 14.  Having granted the request the Regional Agricultural Panel issued a new consolidation scheme on 26 September 2001. Subsequently the applicants lodged another appeal. 15.  On 4 December 2002 the Supreme Land Reform Board dismissed the applicants’ appeal. Hence the applicants, on 29 January 2003, lodged a complaint with the Constitutional Court. 16.  On 30 September 2004 the Constitutional Court dealt with the applicants’ complaint. It found that the proceedings had lasted an unreasonably long time and that this constituted a violation of Article 6 of the Convention in this respect. However, it held also that for this reason alone it could not quash the impugned decision and dismissed the complaint. Upon the applicants’ request it referred the case to the Administrative Court. 17.  On 24 February 2005 the Administrative Court, upholding the lower-instance decisions, dismissed the applicants’ complaint. It found that the consolidation proceedings were in conformity with the regulations as set out under the consolidation scheme and that the applicants had been duly compensated. As regards plot no. 278a which had initially been of inferior value it noted that in the meantime measures for improving its value by constructing an appropriate drainage system had been adopted. The decision was served on the applicants’ counsel on 18 March 2005. 18.  On 8 May 2006 the applicants lodged public liability proceedings with a view to receiving reimbursement of the remaining difference between the compensation which had been granted by the Supreme Land Reform Board on 3 May 2005 and the amount claimed by them. According to the applicants’ allegations the proceedings are still pending before the Graz Regional Court. 19.  In a different set of proceedings, on 8 January 2003 the applicants lodged a request for compensation under Section 27 § 9 of the Land Consolidation Act (Zusammenlegungsgesetz). They claimed loss of profits because for a period of some twenty-five years, the time of the provisional transfer of land, they had to cultivate land, in particular plot no. 278a, which was of inferior value and yielded less than their original plots. 20.  On 25 May 2005 the Regional Agricultural Panel granted the applicants 4,282 Euros (EUR), rejecting any further requests. It found that it could not grant compensation for the period before the entering into force of Section 27 § 9 of the Land Consolidation Act in 1995. Thereupon the applicants appealed. On 7 December 2005 the Supreme Land Reform Board dismissed the applicants’ appeal. 21.  On 1 March 2007 the Constitutional Court quashed the Supreme Land Reform Board’s decision and referred the case to the subordinate authorities. It found that from the object and purpose of the amendment of the Land Consolidation Act of 1995 it was evident that this amendment should also extend to compensation claims concerning losses incurred in years before that act had entered into force. 22.  On 18 June 2007 the Supreme Land Reform Board partly granted the applicants’ appeal and awarded them EUR 21,719.17.


5.  The applicant was born in 1966 and lives in Pabianice. 6.  On 11 April 1994 the applicant's wife filed an action for divorce, dated 8 April 1994, with the Łódź Regional Court. She submitted that the parties had married in 1989, that the marriage had not been a happy one from the beginning, that the applicant was unworthy of any trust, that he had been battering her and that he was generally unable to fulfil the role of husband and father. She claimed maintenance for their daughter X. and custody of the child. 7.  On 14 April 1994 she requested the Pabianice District Prosecutor to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter X. The minutes of her deposition read:
“We have been married since 1989. In 1990 our daughter X. was born.
In April 1994, after a conversation I had with the child, I started to think that my husband could have been, for some time, sexually abusing her, of which I hereby inform the prosecuting authorities. I would like to stress that after I had acquired this information I moved out of our apartment to my sister's place ... It will be for several days only and afterwards I will move in with my parents in W. It seems to me to be a good decision as the child should be, at least for some time, separated from her father. At the same time, I realise that it would be nearly impossible to conduct any interview with my child, regard being had to her age...” 8.  In an undated subsequent opinion, apparently prepared on the basis of a psychological examination of the child carried out on 14 April 1994 in the presence of her mother and maternal grandmother, E.K., a psychologist, described the child's stage of development and concluded:
“On 14 April 1994 an attempt was made to obtain from X. an account of the events concerned in the case. This attempt failed insofar as it was aimed at obtaining a verbal statement. It can, however, serve as a basis for a description of the child's psychological situation. (...) I think that any further attempt to interview X. would not make any sense. Moreover, it would be detrimental to her development. A child of this age is unable to make any confabulations, without there being a concrete factual basis for what she says. (...) Information obtained from third parties and observation of the child seem to suggest that it is likely that she has been a victim of sexual abuse:
- inflammation of sexual organs (medical records);
-secrets shared with her father rewarded by sweets or toys in order to remain unknown to other persons and to the mother; ...
-reluctance to have sexual organs washed;
-pains in the legs, bruises on the legs;
-bizarre play and behaviour.
The fact that so many such manifestations occur makes it possible to consider that the charges may be truthful.
In my view the child's father should be interviewed. It is also recommended that the child be examined once again, not before September.” 9.  Later on, the child was interviewed by E.K. on 9 January 1995. Her mother was not present during the examination. X. was also requested to make drawings representing her family and to play with dolls representing herself, her father and her mother. 10.  In an opinion dated 17 January 1995, E.K. explained various techniques she had used during this meeting, suited to the child's age. She stated that during the second meeting the child had evoked events which seemed to suggest that she had been sexually abused by her father; that, given her age, there was no possibility that she was talking about things which in reality had not happened; that the drawings she had made constituted a spontaneous form of communication which could not, given her age, have been suggested to her by other persons; that these drawings suggested that she had been sexually abused by her father, possibly also by anal intercourse as she had clearly referred to anal pain in connection with “playing” with her father. 11.  The psychologist stressed that under no circumstances should the issue be raised with the child, who should be excluded entirely from the proceedings in order to safeguard her well-being and development. She noted that the child was more relaxed and confident than in April 1994, when she had realised that the “secrets” her father shared with her had been regarded as evil by other members of the family. 12.  On 31 March 1995 a bill of indictment was laid against the applicant in the Łódź Regional Court. He was charged with having sexually abused his daughter from 1992 until April 1994.
The prosecution referred to interviews conducted during the investigations with the applicant, his parents, his wife, her parents and her sister and her aunt K.M.
Further, reference was made to: X.'s medical records, police information on the applicant, the opinions prepared by E.K. (referred to above), a psychiatric opinion on the applicant (prepared by N.G. and M.G.-L.), drawings made by X., an expert opinion dated 28 November 1994, prepared by J.B., a sexologist, on the applicant's sexual profile, another report about the applicant's mental health prepared by psychiatrists M.L. and D.J., dated 1 March 1996, and an opinion of a psychologist on the applicant's personality, dated 1 March 1995 and prepared by E.W. 13.  On an unspecified later date the court instituted the proceedings. 14.  On 9 February 1996 an expert opinion, prepared by J.K., a specialist in surgery with considerable experience of working with battered and abused children, was submitted to the court. He prepared it on the basis of his analysis of X.'s medical records, but without interviewing either X. or other persons. He concluded that the symptoms which X. had manifested could have been caused by sexual abuse, but that such symptoms could also have been caused by other physiological factors. He was of the view that, in any event, no evidence pointed with certainty to sexual abuse by her father. 15.  By a decision of 25 April 1996 the court called further expert witnesses: M.K., a psychologist, and another psychologist working for a Diagnostic Centre in Łódź. 16.  In its decision of 24 May 1996 the court observed that doubts had arisen, in the light of J.K.'s opinion, as to whether an expert opinion of a sexologist on the applicant's personality and which had already been prepared for the purposes of the investigation had been sufficient and clear. The court noted J.K's professional experience in an non-governmental organisation helping children, victims of cruelty and sexual abuse. It therefore ordered that another expert opinion be submitted on whether the applicant was suffering from any sexual disturbances, and if this was the case, how they might relate to the charges against him. It appointed a sexologist, Dr A.B., as an expert. 17.  On 12 July 1996 A.B. examined the applicant and on an unspecified later date submitted his opinion to the court. 18.  On 5 March 1997 another expert opinion was submitted to the court in which the procedure for examination as well as the adequacy and soundness of the method used by the psychologist E.K. were assessed. Its conclusion was that there were no grounds for doubting the thoroughness and soundness of the opinion. 19.  On 6 November 1997 the Łódź Regional Court convicted the applicant of having sexually abused X. and sentenced him to four years' imprisonment.
The court first recalled the circumstances of the applicant's marriage and the difficulties that had arisen between the spouses. It further established that the applicant's wife, having considered their situation and having discussed the issue with her sister I.K., decided, on 8 April 1994, to petition for divorce. On the same day she had sought legal advice and agreed with the lawyer that a divorce petition would be prepared. In the evening she had surprised the applicant caressing X. in a manner which shocked her as it seemed that he had been touching the child's sexual organs. She had not reacted immediately, but left the apartment with her daughter on the next day and moved in with her sister. On the same day she had talked with X. about her father's conduct and her suspicions of sexual abuse had been confirmed. On 14 April 1994 she had requested the prosecutor to institute an investigation and had been interviewed on the same day. 20.  On 14 April 1994 the psychologist E.K. had met with X., but an attempt to obtain verbal confirmation of the charges of sexual abuse failed. The expert had only established that the convergence of various manifestations in the child's behaviour was sufficient to suppose that sexual abuse could have occurred. 21.  As shown by the expert opinion of 17 January 1995, a further attempt by the psychologist to interview the child had been successful. The psychological tests had allowed the specialist to conclude that the girl's genitals had been touched and manipulated by her father and that this had happened on numerous occasions.
The court further referred to an expert opinion of Dr J.B, who had concluded that the applicant had a normal heterosexual drive and that he had a low self-esteem. The latter factor, in the expert's view, could have explained why he might have sought sexual experience with X. instead of normal adult sex. 22.  The court recalled that it had decided not to interview X., having regard to the unequivocal opinion of the psychologist that it would not serve any useful purpose and would be harmful to her, and given that other evidence at its disposal was sufficient to give a ruling in the case. 23.  The court considered that the expert opinions of E.K. were of decisive importance for its judgment. In particular, her second opinion of January 1995 in which she had categorically stated that X. had been sexually abused sufficed to conclude that the applicant was guilty. In that connection, the court recalled that already X's first contact with E.K. in April 1994 had given cause to believe that this had indeed been the case, even though the child had not wanted to talk at that time. Further, the examination carried out in January 1995 had confirmed these suspicions, the more so as the child at that time had been more relaxed and confident. 24.  The court also referred to an expert opinion in which the methods used by E.K. were assessed by two further specialists as methodologically sound and appropriate to the situation and to the child's age. They had not found any grounds on which to challenge its validity.
The court further observed that in 1995 the girl had been treated for problems of foecal incontinence. In June 1995 a medical test had been carried out which showed that the muscular tension of her sphincter was too low for a child of her age. The court had heard the expert witness Dr A.D., who was of the view that damage to the child's sphincter might have been caused by anal penetration. The court observed that his medical findings corresponded to the conclusions made by E.K. in her opinion of January 1995 that the child could have been the victim of anal penetration. 25.  The court referred to the opinion and testimony of Dr J.K. and was of the view that this opinion was merely of a theoretical character because he had not examined the child. Hence, his conclusions in which he had disagreed with the conclusions of certain other experts previously prepared in the case were not of decisive importance. 26.  The court further noted that the members of the applicant's wife's family had been questioned in the proceedings, but that their testimony had been very emotional. As they had been interpreting all of the information about the applicant as pointing to his guilt, the court did not consider their testimony to be wholly credible. 27.  The court concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt. 28.  The applicant appealed, arguing that the finding of his guilt had primarily been based on the opinions prepared by E.K. Having regard to these opinions, the court had refused to take further evidence which would have cast light on the real circumstances of the case. The court had ignored evidence pointing to the applicant's innocence and, on the whole, had failed to take evidence which would have allowed the facts of the case to be established in a full and convincing manner.
It was further submitted that the applicant had been effectively deprived of his defence rights. The authorities had decided, in the child's interest, not to interview X. As a result, its role had been limited to the assessment of the opinions submitted by E.K. and of her oral testimony. This had led to a situation in which the accused had been convicted on the basis of E.K.'s reports. Neither the prosecutor nor the court had ever seen the child. The court could not, therefore, form an opinion on the veracity of the charges. 29.  On 12 March 1998 the Łódź Court of Appeal dismissed the appeal and upheld the impugned judgment. It first observed that the applicant's submission that the lower instance had failed to hear further evidence was incorrect. 30.  It disagreed with the applicant's submission that the refusal to interview X. had deprived him of his defence rights. The applicant, who had been represented by a lawyer, had made full use of his defence rights and had put to the court numerous arguments in his defence. 31.  The appellate court recalled that the first-instance court had concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt, even in the absence of any oral testimony given by X. This conclusion of the first-instance court had met with the approval of the appellate court, despite the fact that it had been motivated in a rather succinct manner. Neither the prosecution nor the applicant had made a formal request to have X. interviewed by the court, and the attempt to obtain verbal testimony from her during the investigations had failed. Hence, such testimony should be regarded as “testimony impossible to obtain” within the meaning of the Code of Criminal Procedure. 32.  It was further noted that the validity and soundness of the opinions prepared by E.K. were not open to doubt. The first-instance court had taken specific steps in order to have their probative value assessed by other experts. Further, E.K.'s conclusions had also been assessed by the first‑instance court in the light of other evidence at its disposal. The appellate court referred to the evidence given by A.D., which corroborated the conclusions reached by E.K. The submissions made by A.D. had corresponded to other available evidence. The first-instance court had also taken into consideration the conclusions made by the experts who had examined the applicant.
The appellate court concluded that the assessment of the evidence had been thorough and logical and that there were no grounds on which to find that the first‑instance court had reached unreasonable or arbitrary conclusions. 33.  On 22 February 2001 the Supreme Court dismissed the applicant's cassation appeal as being manifestly ill‑founded.
On 2 March 2001 this judgment was served on the applicant.


5.  The applicant was born in 1972 and lives in Skopje. 6.  The applicant worked as a waiter in a bar in Skopje. At 3.50 a.m. on 6 January 2002, R.D., a police reservist, fired a shot in the bar hitting the applicant in the chest. According to a medical certificate of 12 September 2002 issued by Skopje Clinical Centre , the applicant was urgently admitted in a “serious condition” (тешка општа состојба). The injuries sustained were described as follows: broken right clavicle and four broken ribs, injury to the subclavian artery, internal haemorrhaging and seizure of the brachial plexus nerves. His right arm was paralysed. The conclusion was that the applicant had sustained serious bodily injury with life-threatening damage and lasting consequences (витална загрозеност и трајни последици). He was operated on twice, the second time in April 2002 in the Clinical Centre of Belgrade, Serbia. 7.  On 27 March 2003 the Skopje Court of First Instance (“the trial court”) convicted R.D. in absentia of “serious crimes against public security” (тешки дела против општата сигурност). He was sentenced to two years’ imprisonment. After the court had heard oral evidence from R.D., the applicant and six witnesses and examined other material evidence, it found that R.D., while intoxicated, had unintentionally pulled the trigger of his service gun and shot the applicant, who had been at a distance of one metre. The applicant was advised to pursue his compensation claim by means of a separate civil action. The decision became final on 8 May 2003. 8.  R.D. started serving his sentence on 6 June 2008. On 23 June 2008 the trial court reopened the proceedings, at R.D.’s request. On 12 March 2009 the trial court found R.D. guilty again and sentenced him to two years’ imprisonment, suspended for four years. No information was provided as to whether that decision was the subject of an appeal or became final. 9.  On 11 November 2002 the applicant, represented by Mr P. Šilegov, brought a civil action against the Ministry of the Interior (“the Ministry”) seeking compensation for pecuniary and non-pecuniary loss related to the injury sustained as a result of R.D.’s action. He claimed that the State should be held responsible, given that R.D., instead of being on duty in a police station, had shot him in the bar. He had used his service gun and had been in uniform. He claimed 28,000,000 Macedonian denars (MKD) in respect of non-pecuniary damage and MKD 208,480 for pecuniary damage (expenses related to his medical treatment).[1] 10.  After five adjournments, the Skopje Court of First Instance dismissed the applicant’s claim on 12 December 2003, finding that the Ministry lacked the requisite capacity to be sued for the damage caused by R.D., who, being a police reservist, was regarded a State official. The court established that between 7.30 p.m. on 5 January 2002 and 7.30 a.m. on 6 January 2002 R.D. had been on duty in a police station in Skopje. He had been assigned to stand guard (службена задача – стража) between midnight and 1 a.m. and between 6 a.m. and 7 a.m. on 6 January 2002. After 1 a.m. on 6 January 2002, instead of returning to the police station, R.D. had gone to the bar on his own initiative, without informing his superior or the latter’s replacement. He had been in uniform and had been carrying his service gun. In the bar, in the presence of other customers and under the influence of alcohol, he had pulled the gun out and shot the applicant, who had been in front of him at a distance of about 1.5 metres. The court found that the applicant had suffered damage as a result of R.D.’s action. However, in order for the Ministry to be held responsible under section 157 of the Obligations Act (see paragraph 19 below), the court said that
“... certain conditions need to be met: the damage must be caused by an official (овластено службено лице), it must be sustained by a physical or legal person and, in particular, it has to be caused by an official in the performance of his or her duties. It also has to result from an unlawful action. The defendant (the State) will be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties. An action will be regarded as carried out in the performance of a duty if it is part of the duties (функција) of the official. It is a a harmful action taken within working hours, in the official capacity of the person concerned and as part of his official duties. Damage may be caused outside official duties, but there must be a causal link with the performance of the duty or the duty itself ... in the present case, R.D. was not in the bar in an official capacity ... so the damage was not caused in connection with the performance of the Ministry’s duties, even though it was caused at a time when R.D. was supposed to be on duty. At the critical time and place R.D. was not acting in an official capacity but as a private person, despite the fact that it was within working hours; he was in uniform and used his service gun. R.D. is responsible for the action taken and damage caused. There is no causal link between his action and his duty ...
The fact that [R.D.] was in uniform and used his service gun does not mean, in itself, that he was acting in an official capacity. R.D. did not use the gun in connection with the performance of his duties, but as a customer in the bar ...
At the time when the damage occurred, R.D., as a police reservist, was an adult and trained in the use of the gun. The defendant, as the owner of the gun, is relieved, under section 163(2) of the Obligations Act, from responsibility, given that the damage occurred solely as a result of an unforeseeable action by its agent whose consequences could neither have been prevented nor removed.” 11.  The court concluded that the applicant remained entitled to claim compensation from R.D. under section 141 of the Obligations Act (see paragraph 16 below). 12.  On 3 March 2004 the applicant appealed, arguing that the Ministry was to be held responsible for R.D.’s actions, as he had acted while on duty, had been in uniform and had fired his service gun. In his submission, the Ministry’s responsibility derived from section 103 of the Employment Act (see paragraph 20 below) under which the Ministry could claim reimbursement from R.D. Lastly, he submitted that he had suffered irreparable damage as a result of the incident, as his right arm had become permanently paralysed. 13.  On 27 April 2004 the Skopje Court of Appeal dismissed the applicant’s appeal, finding no grounds on which to depart from the lower court’s finding that R.D.’s actions in the bar were not related to his official duties as a police officer. It went on to find that when R.D. shot the applicant he had not been acting as a police officer and had not been performing official duties. There was accordingly no responsibility on the part of the Ministry. The court confirmed the applicant’s entitlement to claim compensation from R.D. 14.  On 21 July 2004 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court, arguing, inter alia, that the Court of Appeal had not addressed his arguments regarding the Ministry’s responsibility under the Employment Act. 15.  On 31 May 2006 the Supreme Court dismissed the applicant’s appeal on points of law, reiterating the reasons given by the lower courts.