9.  On 12 December 1995 the Ivano-Frankivsk Regional Court (oблacний суд) convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. 10.  On 22 February 1996 the Supreme Court (Верхoвний суд) upheld the judgment of the first-instance court. The applicant was transferred by the authorities responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (Адміністрація слідчого ізолятору Управління міністерства внутрішніх справ) to one of the cells intended for persons awaiting execution of the death sentence. 11.  A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11pп/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Ukrainian Constitution. As a result, death sentences were commuted to life imprisonment by Law no. 1483-III of 22 February 2000. 12.  On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant’s death sentence to life imprisonment. 13.  The facts of the case concerning the conditions of the applicant’s detention in Ivano-Frankivsk Prison and the events during his time there are disputed. 14.  The facts as presented by the applicant are set out in paragraphs 17 to 23 below. The facts as presented by the Government are set out in paragraphs 24 to 30. 15.  A description of the material submitted to the Commission and to the Court will be found in paragraphs 31 to 58 below. 16.  The Commission, in order to establish the facts in the light of the dispute over the conditions of the applicant’s detention and the events which occurred in Ivano-Frankivsk Prison, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at a hearing conducted at the Ministry of Justice in Kyiv on 23 and 26 November 1998, and in Ivano-Frankivsk on 24 and 25 November 1998. The Commission’s assessment of the evidence and its findings of fact are summarised in paragraphs 59 to 75 below. 17.  On 12 December 1995 the Ivano-Frankivsk Regional Court convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. After the first-instance judgment, he was placed in a separate cell. He was not allowed to write to his family, nor could he be visited by his lawyer. He applied several times for permission to meet his lawyer. 18.  On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. On a decision of the authorities responsible for the isolation block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting execution of the death sentence. On 30 March 1996 the applicant’s lawyer applied to see the applicant in order to give him the Supreme Court’s decision in the case. The prison governor did not grant him permission to do so. 19.   Conditions of detention of persons sentenced to death were governed by the Pre-Trial Detention Act 1993 (“the Act”) and by an instruction of 20 April 1998 (“the Instruction”), whose content remained top secret. Under the terms of the Instruction, exercise in the open air, watching television, buying newspapers and receiving food parcels from relatives were prohibited. The Instruction therefore prevented the applicant from enjoying the rights guaranteed by the Act. 20.  In a reply by the deputy head of the Ivano-Frankivsk Directorate of the Ministry of the Interior to a complaint by the applicant’s father concerning the conditions of the applicant’s detention, reference was made to the Instruction. Moreover, according to information received by the applicant’s father from the deputy governor of the prison, it appeared that the Act did not apply to him. Had the Act been applicable to the applicant, he would have been entitled under sections 9(1) and 13 to take daily exercise in the open air, to receive parcels twice a month and to watch television. However, this was strictly prohibited between 1995 and 1998. Up to September 1997 the applicant was also prohibited from sending and receiving letters. It was only then that the deputy governor of the prison orally informed the applicant’s mother that he could send and receive letters. Moreover, his father was refused permission to visit him on 29 May 1995 and 10 June and 31 July 1996 without any explanation from the prison authorities. From July 1996 onwards, instead of monthly visits which would last up to two hours, the applicant’s father had been allowed to visit the applicant only once every three months for not more than one hour. 21.  As regards visits from a priest, the applicant’s father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and those responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for the applicant to be allowed to receive a visit from a priest. 22.  The applicant finally stated that he had complained several times about the conditions in which he was being held. He had also unsuccessfully applied to the prison authorities for permission to lodge an application with the European Commission of Human Rights. 23.  In a letter to the Commission of 6 March 1998, the applicant’s father stated that on 4 March 1998 he had seen his son, who had told him about a check-up carried out by a commission from the Ministry of the Interior in mid-February 1998. After the commission had left, the applicant had been transferred to a cell that was worse equipped and dirty. The window in the cell had been fully shuttered. The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly, which had caused an unbearable smell. Moreover, the applicant had been given only 25 cl of hot water to prepare tea and milk. All his dishes had been removed. His Bible had been taken away. He had not been allowed to read periodicals and his notebook and calendar had been confiscated. 24.  The Government stated that the legal status and conditions of detention of persons sentenced to death were governed by the Act and the Code of Criminal Procedure. Pursuant to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 sq. m and had a bed, a table, a radio, sufficient natural and electric light, heating, running water and a toilet. 25.  The applicant was provided with three meals a day, standard clothing and footwear as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with the legislation on health protection. 26.  According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other persons not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be allowed by the head of the Central Directorate of the Ministry of the Interior, the head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. According to section 12 of the Act, visits by defence counsel were allowed without any limits as to their number and length. 27.  On 13 December 1995, after the first-instance judgment, the applicant’s parents and lawyer received permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996. The applicant’s lawyer visited him on 21 December 1995 and on 7 January 1996. During the period from 22 February 1996 to 29 December 1997, the parents applied to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to visit the applicant on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November and 25 December 1996, and on 3 and 20 June and 19 September 1997. They were granted permission for visits on 24 February, 5 March, 5 April, 4 May, 2 July, 4 October and 4 December 1996, and on 4 March, 4 June, 4 September and 4 December 1997. 28.  The applicant’s lawyer applied for permission to visit the applicant on 25 April, 11 November, and 18 and 19 December 1996. Permission was granted for a first visit on 7 May 1996 and on the other occasions as requested. 29.  Persons sentenced to death were allowed to send an unlimited number of letters. During the period 1995-98 the applicant sent thirty-one letters: twenty-four letters related to his criminal case and seven letters were to his relatives. The applicant applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives on 17 September 1997. Thereafter he sent letters to his parents on 19 and 26 November and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 30.  The Government further submitted that the Prosecutor-General had conducted a thorough investigation into the applicant’s and his parents’ complaints concerning the application of illegal methods of investigation in the applicant’s case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant, his parents, his representative and his defence counsel were received on 11 March, 8 April, 13, 14 and 29 May, 24 July, 11 September and 25 October 1996, and on 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996, and on 28 and 31 March and 20 May 1997. On 31 July 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section 12 of the Act. 31.  In a letter of 26 May 1998 the prison governor replied to a complaint lodged by the applicant’s father on 10 May 1998 informing him that persons sentenced to death were allowed to send twelve letters a year. He also stated that the applicant was aware of his rights and obligations. 32.  In a letter of 10 August 1998 the Ivano-Frankivsk regional prosecutor informed the applicant’s father that visits and correspondence of persons sentenced to death were governed by the Instruction and not by the Act to which the applicant’s father had referred in his complaint. 33.  In a written complaint of 4 September 1998 addressed to the regional prosecutor the applicant’s parents stated, inter alia, that they had not seen the applicant for three months, that since 5 July 1998 they had not received any letters from him, that on 2 September 1998 they had become aware that the applicant had been beaten and humiliated, that Mr Ivashko, the deputy governor of the prison, had intervened during their visit on 2 September 1998 when the applicant had spoken about his conditions of detention, and that, for a period of one year and six months, the applicant had been denied the possibility of a visit from a priest, despite his requests. 34.  In a letter of 10 September 1998 the regional prosecutor informed the applicant’s father that the applicant’s visits and correspondence were governed by the national legislation and that the prison administration had acted within the limits of this legislation. 35.  On 10 September 1998 the Ivano-Frankivsk deputy regional prosecutor sent a report to the Prosecutor-General. The report concerned the findings of the investigation carried out following the complaint by the applicant’s father about allegedly unlawful acts by the prison authorities in respect of the applicant’s correspondence and visits. The report concluded that the investigation had not established any violation of the applicant’s rights by the prison authorities. 36.  On 11 September 1998 the applicant’s father sent a complaint to Mr Shtanko, the head of the State Department for the Execution of Sentences, to which the latter replied on 12 October 1998. The allegations he raised were similar to those in his complaint to the regional prosecutor of 4 September 1998. Mr Shtanko replied that the applicant had been placed in solitary confinement because he had broken the rules. Furthermore, an investigation had not established that any physical force had been used against the applicant or that the prison authorities had humiliated him or restricted his rights, as was confirmed by the applicant himself. The applicant’s father was also informed that visits, including visits by a priest, could be allowed by the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior. 37.  On 23 October 1998 the applicant’s parents submitted a request to the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor that a commission of independent doctors be set up in order to examine the applicant’s state of health. They alleged that the inmates of the prison had been tortured, which resulted in a suicide attempt by one of them or an attempt on his life. On 3 November 1998 the applicant’s parents were informed by the prison governor that their request had been refused on the grounds that there had been no sign of torture or of the use of any other physical violence against the applicant and that his state of health was satisfactory. 38.  On 23 and 24 October 1998 the applicant’s parents sent a letter to Mrs Leni Fischer, then President of the Parliamentary Assembly of the Council of Europe. They complained of torture inflicted on the applicant and one of his fellow inmates, Mr Kuznetsov, which had resulted in a suicide attempt by the latter, and alleged that they had been taken to hospital and that Mr Kuznetsov had been paralysed. The parents further complained that they had been prevented from seeing the applicant. 39.  In a letter of 26 October 1998 the applicant’s parents informed the Commission that “in establishment BI 304/199 in Ivano-Frankivsk there [had] been an attempt to execute the unjustly condemned M. Kuznetsov and B. Poltoratskiy illegally, and [that] the Government [had] tried to conceal the fact”. 40.  A handwritten medical report issued on 28 October 1998 was signed by the applicant. The report stated that the applicant did not show any signs of having been beaten and that his state of health was satisfactory. 41.  In a handwritten statement of 28 October 1998 the applicant said that he had been treated properly by the prison authorities, that no physical violence had been employed, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. 42.  The Regional Directorate for the Execution of Sentences of the Ministry of the Interior issued a report on 29 October 1998 in response to the applicant’s father’s complaint about alleged torture and his request for a commission of independent doctors to examine the applicant’s state of health. The report stated that on 28 October 1998 the applicant had been examined by the prison doctors who had found no signs of physical injury. It also stated that the applicant denied that he had been tortured. 43.  In a letter of 30 October 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated. A medical examination of the applicant had not shown any signs of torture. Accordingly, there was no reason to set up a medical commission to investigate the allegations. 44.  A letter of 2 November 1998 from the deputy regional prosecutor to the Prosecutor-General reported on the findings of the investigation carried out in connection with the applicant’s father’s complaint about restrictions on the applicant’s correspondence and visits, the interference by the prison authorities during the applicant’s parents’ visit on 2 September 1998 and the physical torture inflicted on the applicant. The letter said that, as regards the restriction on the applicant’s correspondence and visits, the father had wrongly relied on the Act, which did not apply to that category of prisoners, that the interference by a prison official had been justified, and that on 25 September 1998 the applicant had undergone a thorough medical examination which had not established any physical injuries. Finally, it explained that the applicant had been placed in solitary confinement on 26 August 1998 because he had broken the prison rules by refusing to let himself be examined by a prison warder upon his return from a daily walk outside the cell. 45.  In a letter of 20 November 1998 the deputy regional prosecutor replied to the applicant’s mother’s complaint about the physical torture allegedly inflicted on the applicant and to her request for a medical examination of the applicant. He stated that on 28 October 1998 the applicant had undergone a medical examination which had established that the allegations were unsubstantiated. The medical report had been confirmed and signed by the applicant. 46.  In a letter of 23 November 1998 the regional prosecutor informed the applicant’s father that his allegations about illegal acts on the part of the prison authorities had been found to be unsubstantiated. 47.  In a letter of 30 November 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s representative, Mr Voskoboynikov, that he could not be granted permission to visit the applicant as the latter had already had a visit from his relatives that month. 48.  In a letter of 8 December 1998 from the State Department for the Execution of Sentences the applicant’s father was informed that a thorough investigation had proved that his complaint about an illegal attempt to execute his son was unsubstantiated and that his son’s state of health was satisfactory. 49.  On 22 December 1998 the applicant requested permission from the head of the Regional Directorate of the Ministry of the Interior to see a priest. His request was granted and he saw a priest on 26 December 1998. 50.  In a letter of 15 February 1999 the prison governor informed the applicant’s father that his complaint of 22 January 1999 had been examined. He stated that persons sentenced to death were allowed to receive two parcels a year but no food parcels. 51.  In a decision of 5 March 1999 the Senior Prosecutor rejected a criminal complaint by the applicant’s parents against the deputy regional prosecutor. He refused to institute criminal proceedings against the latter on the ground that there was no evidence of his having committed an offence. He stated, inter alia, that the Act did not apply to the conditions of detention of death-row prisoners. These were governed by the Instruction, which was covered by the rules on State secrecy. 52.  According to the prison records, the applicant’s parents applied to visit the applicant on 19 September 1997, and on 4 March, 8 April, 19 June, 22 July, 2 November and 1 December 1998. Permission was given on 7 October 1997, and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which took place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and on 4 January 1999. The request of 19 June 1998 was not granted. 53.  According to the prison records, the applicant sent letters to his parents on 17 September, 19 and 26 November, and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from them and other persons on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January (two letters), 6, 10, 17 and 23 February, 6, 14 and 16 March, 6, 17, 20, 27 and 29 April, 14 May, 1, 8 and 30 June, 1, 20 and 30 July, 20 August (two letters), 29 September, 10, 22 (two letters) and 27 October, 4, 13, 20, 26 and 30 November, 4, 17 and 21 December 1998. 54.  In an undated document Mr Y.M. Pavlyuk, the deputy head of the isolation block, declared that during the period between 11 September 1997 and 18 December 1998, neither the applicant nor his parents had asked for permission for the applicant to see a priest. He further declared that during the said period no member of the clergy had asked for such permission. He signed the declaration. 55.  According to the applicant’s medical card, the applicant was X-rayed and blood-tested on 23 April 1998. On 25 September, 1 and 28 October, 9, 19 and 27 November, 3, 10, 17 and 24 December 1998 the applicant was seen by a prison psychiatrist. 56.  In a written request of 2 May 2000 to the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior, Mr Boyko, the applicant’s father, in his capacity as his legal representative, asked for a confidential meeting with the applicant in order to discuss issues concerning his application pending before the European Court of Human Rights. On 23 May 2000, following a further request lodged on 15 May 2000, he was granted permission for a normal visit on 5 June 2000. 57.  On 16 May 2000 the applicant’s father complained to the Deputy Minister of the Interior that his request of 2 May 2000 for a confidential meeting had remained unanswered. 58.  In a letter of 14 July 2000 the deputy head of the State Department for the Execution of Sentences, Mr V.A. Lyovochkin, replied that Mr Boyko had given the applicant’s father permission to visit the applicant on 5 June 2000 and that the visit had taken place as scheduled. He added that in accordance with Article 40 of the Correctional Labour Code, a lawyer could be given permission for a confidential meeting with his client on presentation of his licence and identity card. 59.  Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and took oral evidence from the following witnesses: the applicant; the applicant’s parents; Mr Bronislav S. Stichinskiy, Deputy Minister of Justice; Mr Drishchenko, Deputy Prosecutor-General; Mr Ivan V. Shtanko, Deputy Minister of the Interior; Mr Petro A. Yaremkiv, the governor of Ivano-Frankivsk Prison; Mr Bogdan V. Kachur, prison doctor; Mr Stanislav V. Prokhnitskiy, medical assistant; Mr Yuriy M. Pindus, assistant to the prison governor, who was on duty on 3 September 1998; Mr Fedir O. Savchuk, assistant to the prison governor, who was on duty during the night of 2 to 3 September 1998; Mr Igor P. Ivashko, the deputy governor of the prison; Mr Yaroslav M. Pavlyuk, the deputy head of the isolation block; Mr Valentin M. Nabiulin, the head of the Department for Supervision of Isolation Blocks and Prisons of the Directorate for the Execution of Sentences; Mr Oleksand V. Kmyta, the deputy head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior; and Mr Anatoliy O. Boyko, the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior.
The Commission’s findings may be summarised as follows. 60.  The applicant gave evidence before the delegates that he had been beaten on 2 September 1998 after the visit from his parents on the same day. During that visit, he had said to his parents that he had been beaten and called a beast. The applicant’s parents stated before the delegates that they had been told by their son on 2 September 1998 that he had been beaten and humiliated. The Commission observed, however, that the applicant denied before the delegates that he had been beaten before 2 September 1998. It considered, therefore, that it had not been established that the applicant had been beaten before 2 September 1998. 61.  As to the events on 2 September 1998, the applicant stated before the delegates that, after the visit from his parents on that date, he had been taken to the “cinema room” where four persons, including Mr Pavlyuk, the deputy head of the isolation block on duty, were waiting for him with clubs. He had been asked three times to tell everything, but had refused and had been struck on his legs, hips, back and chest. He had returned to his cell and had written until the morning on four sheets of paper which had been included in a file. 62.  The applicant further stated that he had been beaten on 10, 14 and 22 September 1998. One day, during a technical search of his cell, he had been taken out and ordered to get undressed so that his clothes could be checked. When he was naked, he had been beaten. He had been ordered to lie down on the floor with his face to the ground and his hands behind his head. He mentioned the name of K.Y. Hrevnin to the delegates. 63.  The Commission considered that the applicant’s account contained a number of details and elements which it would not have expected to find in a fabricated story. It noted, however, that there was no record of any occurrence connected to the ill-treatment described by the applicant. The Commission accepted that the applicant may have been afraid to complain or to write to anyone, as he said. However, it accepted this argument with difficulty, having regard to the fact that he had not been scared when he had told his parents on 2 September 1998 that he had been beaten. Moreover, the prison psychiatrist saw him on 25 September 1998 and had not recorded any problems regarding his state of health or any injuries. The Commission added that the medical report of 28 October 1998, which the applicant had signed, concluded that he did not show any signs of having been beaten and that his state of health was satisfactory. 64.  The Commission further noted that the applicant had signed a written statement on 28 October 1998 to the effect that he had been treated properly by the prison authorities, that no physical violence had been used against him, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. It took into account the fact that, before the delegates, the applicant had denied the contents of his statement, and pointed out that the practice of the prison authorities to require an inmate to confirm in writing that he had been treated properly by prison officers gave rise to suspicion. 65.  As to the applicant’s parents’ submission before the delegates that, after the alleged beatings and torture on 2 September 1998, he had been transferred to Chukopovskiy Psycho-Neurological Hospital early in the morning of 3 September 1998 and had been placed in the intensive care unit where he had been given a blood transfusion, the Commission observed that, although the applicant had maintained that he had been beaten after his parents’ visit on 2 September 1998, he had denied that he had been transferred to hospital. This was corroborated by the statements of the prison doctor, the medical assistant, the governor’s assistant on duty at the time and the deputy governor, all of whom had been heard by the delegates. In addition, there was no documentary evidence proving that the applicant had been taken to hospital on the aforesaid date. The Commission did not consider the parents’ evidence on this point convincing or reliable. 66.  The Commission found that there was no medical or other material evidence establishing that the applicant had sustained injury as a result of ill-treatment by prison officers in Ivano-Frankivsk Prison, as he had alleged. It had regard to the fact that the applicant had denied that he had been beaten before 2 September 1998 and had been transferred to hospital after that date, and that the absence of any use of force by prison officers on 2, 10, 14 and 22 September 1998 had been supported by the oral statements of the witnesses heard by its delegates. The Commission therefore found it impossible to establish, beyond reasonable doubt, that the applicant had been subjected to ill-treatment in prison as he had alleged. 67.  The applicant’s parents sent a complaint to the regional prosecutor on 4 September 1998, claiming, inter alia, that they had become aware that the applicant had been beaten and humiliated by prison officers. They made similar allegations to the head of the State Department for the Execution of Sentences on 11 September 1998. On 12 October 1998 the latter informed the applicant’s father that the investigation had not established that any physical force had been used against his son or that the prison authorities had humiliated him or restricted his rights. He also stated that this finding had been confirmed in writing by the applicant himself. 68.  On 23 October 1998 the applicant’s parents requested the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor to set up an independent medical commission in order to examine the applicant’s state of health. They alleged that the prison’s inmates had been tortured, resulting in a suicide attempt by one of them, Mr Kuznetsov, or in an attempt on his life. On 30 October 1998 the applicant’s mother was informed by the deputy head of the Regional Directorate of the Ministry of the Interior that her complaint concerning the alleged torture of the applicant had been examined and found to be unsubstantiated and a medical examination of the applicant had not revealed any signs of torture. There was, accordingly, no reason to set up a medical commission to investigate her allegations. On 3 November 1998 the prison governor informed the applicant’s parents that their request had been refused on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his state of health was satisfactory. In a letter of 20 November 1998 to the applicant’s parents, the deputy regional prosecutor confirmed that on 28 October 1998 the applicant had undergone a medical examination which had established that the parents’ allegations were unsubstantiated. Moreover, on 2 November 1998 the deputy regional prosecutor sent a letter to the Prosecutor-General which reported on the results of the investigation carried out in connection with, inter alia, the allegations that the applicant had been physically tortured. The letter confirmed that on 25 September 1998 the applicant had undergone a thorough medical examination which had not revealed any physical injury. 69.  The Commission noted that on 8 December 1998 the applicant’s father had received a letter from the State Department for the Execution of Sentences stating that a thorough investigation had proved that his complaint about an attempt to execute his son was unsubstantiated and that the latter’s state of health was satisfactory. The domestic investigation had then ended on 5 March 1999 with a decision by the Senior Prosecutor on the applicant’s parents’ criminal complaint against the regional prosecutor. The Senior Prosecutor had refused to institute criminal proceedings on the ground that no criminal offence had been established. 70.  The Commission found that there were no contemporaneous records giving details of any investigation which the domestic authorities had carried out into the applicant’s parents’ allegations of the events in September 1998. It had not seen a single document proving that an investigation had been carried out by any domestic authorities other than those directly involved in the facts of which the applicant’s parents complained. Moreover, the medical report of 28 October 1998 had been drafted almost two months after the applicant’s alleged ill-treatment and the applicant had not been seen by the prison doctor or prison psychiatrist between 23 April and 25 September 1998. 71.  The Commission found that the eight death-row inmates at Ivano-Frankivsk Prison, including the applicant, were being kept in single cells without the opportunity to communicate with other inmates. The applicant’s cell measured 2 x 5 x 3 m. There was an open toilet, a washbasin with a cold-water tap, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. The applicant had some books, newspapers, a chess set, a stock of soap and toilet paper, some fruit and other food. During the delegates’ visit on 24 and 25 November 1998, the cell had been overheated, particularly in comparison with other rooms in the prison. The light was on twenty-four hours a day and the central radio was switched off at night. The inmates were frequently observed by prison warders through a spy hole in the door of the cell, which deprived them of any kind of privacy. The cell was freshly painted, from which the inference might be drawn that conditions had been worse prior to the delegates’ visit. The Commission accepted the applicant’s evidence that between 24 February and 24 March 1998 there had been no tap or washbasin in his cell, but only a small pipe on the wall near the toilet, that the water supply could only be turned on from the corridor, that the walls were covered with faeces and that the bucket for flushing the toilet had been taken away. The Commission found the applicant’s evidence – which was not contested by the Government – persuasive. 72.  The Commission also accepted the applicant’s evidence that, until May 1998, the window in his cell had been shuttered and that he had not been allowed to take daily outdoor walks. 73.  Concerning the applicant’s parents’ requests to visit him, the Commission found that, apart from the parents’ request of 19 June 1998, all had been granted. The parents had applied to visit their son on 19 September 1997 and on 4 March, 8 April, 22 July, 2 November and 1 December 1998. Permission had been given on 7 October 1997 and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which had taken place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and 4 January 1999. The Commission noted that the parents’ requests to visit the applicant had mostly been granted for a date two or three months after the request had been made. Moreover, two warders had been present during the visits, who were authorised to interrupt the conversation if they considered that the parents or the applicant had said anything “untrue”. 74.  Regarding the applicant’s correspondence, the Commission noted that the applicant had applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send a letter to his relatives on 17 September 1997. Thereafter he had sent letters to his parents on 19 and 26 November 1997, 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He had received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 75.  The Commission could not establish with sufficient clarity whether the applicant or his parents had asked for permission for a priest to come to see the applicant. It nevertheless found that while the applicant had seen a priest on 26 December 1998 following his request of 22 December 1998, there had been no regular visits to inmates by any chaplain.


5.  The applicant company is a limited liability company established under Austrian law with its registered office in Innsbruck. 6.  It publishes Bezirksblatt, Lokalausgabe Hall/Rum (“the Bezirksblatt”), a weekly newspaper distributed free of charge in a region of Tyrol. One edition of the newspaper had 17,440 copies circulated. 7.  In January 2006 approximately 300 copies of an anonymous letter were sent out, many of them to members of the supervisory board of the tourism association for Hall and Wattens, two towns in Tyrol. The letter, written in the form of a survey, concerned C.M. and J.M, referred to as “M&M” on account of the initial letter of their surname. 8.  C.M. was at the time a practising lawyer and chairman of the tourism association for Hall and Wattens. When the article was published, elections for the post of chairman of the tourism association were underway and C.M. was again standing as a candidate for the post. His brother J.M., also a practising lawyer, had been active in politics in Hall for many years, and was at the material time the member of the City Council responsible for public finance. He was also chairman of the supervisory board of Stadtwerke Hall, the town’s electricity, water and heating supplier. 9.  The “survey” part of the letter read:
“In the course of our M&M survey, I would like to ask you the following questions: 1.  Would you buy a car from this man? 2. Would you stake your money on a promise made by this man? 3. Does this man have the necessary personal/ professional qualifications? 4. Has this man ever built anything properly? 5. Is this man honest with his own family? 6. Would you allow this man to execute your will?
If you have answered one of these questions with ‘no’, please ask yourself why you want to leave this man in his current position. We, being entrepreneurs, will decide at the next tourism association meeting with our votes. It is our promise, our money, our qualification, our association and our heritage! ...” 10.  L., a journalist working for the applicant company’s newspaper, was informed of the anonymous letter. He telephoned C.M. and J.M., who commented on it, claiming it to be part of a political campaign against them. A few minutes later, C.M. telephoned the journalist back and asked him whether he was planning to publish the letter. When L. confirmed that he was, C.M. said that he did not agree to its publication and that he would take legal action if it were published. 11.  In the 18 January 2006 issue of the Bezirksblatt, the applicant company published an article entitled “Anonymous campaign against M&M”. The subheading read “M&M or [C.M.’s and J.M.’s full surname] are the target of a not at all bittersweet campaign”. The article contained the story of the anonymous letter and C.M.’s and J.M.’s replies to the accusations made in it. It reported that both of them had stated that the letter had attempted to harm their political activities and had considered the accusations to be a personal insult. The article contained photos of C.M. and J.M. and a reproduction of the letter containing the questions set out above. 12.  Relying on section 6 of the Media Act, C.M. and J.M. brought proceedings against the applicant company for defamation, requesting compensation and publication of the judgment. The applicant company argued that its conduct did not amount to defamation, as the article had only quoted someone else’s statements and had duly distanced itself from the contents of the letter. Moreover, the information had been a matter of public interest. 13.  On 24 March 2006 the Innsbruck Regional Court found in favour of the claimants and ordered the applicant company to publish the judgment and to pay EUR 2,000 in compensation to each of them. 14.  The Regional Court held that the article itself merely commented on the letter in an objective manner and did not agree with its offensive content. Furthermore, the nature of the offices held by the claimants meant that they were often in the local media, but had so far not been the subject of any negative campaign. However, the anonymous letter, which had been included in the article, fulfilled the actus reus of defamation, as it accused C.M. and J.M. of dishonesty and other disreputable character traits, relating to both their professional and private lives. Both had experienced negative repercussions as a result of the article in their professional activities as lawyers, in that they had repeatedly been confronted with the allegations made in the anonymous letter. 15.  The Regional Court, referring to the applicant company’s argument that it had only quoted a statement made by someone else, noted that section 6(2)(4) of the Media Act only permitted quoting the statement of a third person if the quotation was truthful and there was an overriding public interest in its publication. This rule would even apply if the identity of the third person having made the statement was unknown. In any case, the court held that it was required to balance the public interest in disseminating information about the statements quoted against the claimants’ interest in protecting their reputation. It accepted that the local public had an interest in knowing about a campaign against the chairman of the tourism association and a local politician. However, public interest did not justify reproduction of the anonymous letter in the article. The applicant company could have provided information on the campaign against C.M. and J.M. without printing the defamatory letter. In that connection, the court observed that by printing the letter the applicant had also made its entire content known to a far greater number of people than the letter itself had reached. 16.  The applicant company appealed and lodged a plea of nullity, relying on the Media Act, in particular, on the so-called “law on quotations” developed under section 6(2)(4) of that Act. It asserted that the Regional Court had wrongly considered there to be no overriding public interest in publishing the anonymous letter. In particular, the article and the letter related to the tourism association, which was a public law corporation, and the applicants were both public figures in local politics. 17.  The Innsbruck Court of Appeal dismissed the appeal on 10 August 2006. It held that the law on quotations was not applicable in the present case. It was not possible to claim for damages under Article 6 of the Media Act in respect of quotations in the media where the identity of the third person making the offensive statements was known. In such cases, the person concerned could seek compensation from the person who had made the offensive statements in the first place. As in the present case the person who had made the offensive statements had remained anonymous, the applicant company could not rely on section 6(2)(4) of the Media Act. Furthermore the Court of Appeal, confirming the Regional Court’s view, found that in any event there was no overriding public interest in publication of the anonymous letter. 18.  The judgment was served on the applicant’s counsel on 3 January 2007.


6.  The applicant was born in 1938 and lives in Bucharest. 7.  The facts of the case, as submitted by the parties, may be summarised as follows. 8.  On 16 December 1996 a third party brought criminal proceedings against the applicant for wrongful misappropriation. The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank (Bankcoop) and become a major shareholder in the said bank. 9.  On 14 January 1997 the Judicial Police attached to the Romanian Ministry of the Interior asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant. 10.  On 19 February 1997, the Adevărul daily newspaper published an article entitled “The investigation files of G.C.P. – strictly secret?” The article quoted statements by D.I.C., one of the prosecutors conducting the investigation against the applicant, of which the most relevant part reads as follows:
“We have been accused of insisting on imposing [on G.C.P.] an order not to leave the city, a measure which is usually taken when there are suspicions that somebody has committed an unlawful act. However, as I already told you and as [can be seen] from checks carried out by the Financial Control Office [Garda Financiară], here there have been unlawful acts committed, not only suspicions. In spite of that, we have proven to be humane, when at his [G.C.P.’s] request we allowed him to leave Bucharest for forty-eight hours.” 11.  On 10 April 1997 the applicant was charged with fraud, forging documents and use of forged documents, embezzlement, using the goods of a commercial company against its interests and undermining the national economy, on account of the fact that, by acting on behalf of the private company (G.C.P. S.A.), which the applicant controlled as the major shareholder, he had allegedly made false statements in an official document submitted to the Romanian National Bank on 31 August 1995 in order to obtain its permission to increase the capital of Bankcoop by the amount of 10,000,000 United States Dollars (USD). More specifically, the applicant was suspected of declaring the aforementioned amount as his personal funds, when in fact it had been obtained as a loan taken out by G.C.P. S.A. from a foreign bank, which was contrary to the National Bank’s regulations on acceptable sources of money used to increase a bank’s capital. 12.  On 2 June 1997 the applicant brought a challenge against the two prosecutors, including D.I.C., charged with the investigation of his case at the time, arguing, inter alia, that press statements made by the said prosecutors on 28 May 1997 in the Evenimentul Zilei daily newspaper – claiming that the applicant’s financial investments were “acts of fraud” – amounted to a breach of his right to the presumption of innocence. 13.  According to the applicant, his challenge of 2 June 1997 against the prosecutors G.M. and D.I.C. was allowed by a final Prosecutor’s Office Order of 23 June 1997 and a new prosecutor was appointed to investigate his case. The applicant failed to include in the file a copy of the order of 23 June 1997. 14.  On 2 July 1997 the Naţional daily newspaper published an article entitled “G.D. states that G.C.P. should have been indicted long ago for two of the proven crimes”. The most relevant part of the article, which quoted statements by G.D., the Romanian Minister of the Interior at the time, reads as follows:
“G.C.P. could be indicted for two already proven crimes, namely the ones connected to the embezzlement through Bancorex, from Chemical Bank to Bankcoop. The 10 million dollars taken by G.C.P. from Chemical Bank for a factory in Arad were embezzled so that he could take over the majority of the shares in Bankcoop. (...) Although there is proof that several crimes have been committed by G.C.P., he is only under investigation for two, and the prosecutor’s investigation is lasting a suspiciously long time. ” 15.  On 3 July 1997, the Evenimentul Zilei daily newspaper published an article entitled “G.C.P. and R.T. accused of undermining the national economy”. Quoting the same prosecutor, D.I.C., the relevant parts of the article read as follows:
“On 1 July 1997 in file no. 180/P/97 of the General Prosecutor’s Office, the file concerning the defendant G.C.P., the criminal investigation was extended with respect to the crime of undermining the national economy, punishable under Article 165 § 1 of the Criminal Code. Hence, between 1994 and 1997, [G.C.P.] used a state-owned public interest bank, Bancorex S.A., in order to obtain certain financial facilities in the amount of 202.6 million dollars, to be used for the reimbursement of certain loans contracted by his commercial company, G.C.P. S.A. This undermined the national economy and disturbed the activity of Bancorex S.A. and, as a consequence, the national economy.” 16.  By letter of 17 November 1997 prosecutor C.M., the prosecutor investigating the applicant’s case at the time, asked the Prosecutor General of Romania to confirm that he could continue the investigation in the case. He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General’s decision. He informed the Prosecutor General that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation. 17.  On 19 December 1997, the Evenimentul Zilei published an article entitled “S.M. found the solution for destroying the mafia in Romania overseas: The Mexicans should come with bazookas”. The article quoted statements made by S.M., the Prosecutor General of Romania at the time. The most relevant part reads as follows:
“In the case of G.C.P., who knew all about financial tricks [ingineriile financiare] and covered his tracks with lots of documents, the experts’ report is not finished yet. I believe that there is a 99% chance that he will also be sent to trial, but I would make a suggestion to the police to not just stick to the small cases of T. and G.C.P., because the two of them have [done] more than this.” 18.  In addition, the parties agree that a total of around 350 articles containing information on the investigation and the trial against the applicant were published between 1997 and 2002 in all the major national newspapers, including Ziua, Adevărul, Evenimentul Zilei, Cotidianul, Naţional and Libertatea. Some of the most relevant story titles quoted by the applicant in this respect read as follows: “The trap is tightening” (Evenimentul Zilei, 17 March 1997); “Chess at millionaires!” (Evenimentul Zilei, 9 April 1997); “The return of the jackals” (Evenimentul Zilei, 18 August 1997); “Sharks at large” (Evenimentul Zilei, 28 April 1998); “G.C.P.’s companies have filled their bank accounts on Bancorex’s back” (Ziua, 12 February 1999); “Just when the prosecutors were on the point of indicting him, G.C.P. found refuge in a hospital in Switzerland” (Adevărul, 12 March 1999); “G.C.P. ran away in the U.S.A.” (Libertatea, 5 October 1999); and “The heroes G.C.P. and T.” (Evenimentul Zilei, 10 April 2002). 19.  By an order of 30 January 1998 the Prosecutor General dismissed C.M. from his position of Head Prosecutor of the Criminal Department of the Bucharest Prosecutor’s Office and transferred him to the Secretarial and Public Relations Department. At the same time, M.I. was tasked with continuing the criminal investigation against the applicant. The Prosecutor General held that the criminal investigation had been unreasonably lengthy without any objective reasons and that Bancorex, one of the parties involved in the matter, had lodged a challenge and had complained about C.M. 20.  On 17 June 1999 the applicant was indicted for making false statements in an official document, as he had not declared the true source of the money used for increasing the capital of Bankcoop. 21.  The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests. At the same time, the charges concerning fraud, forging documents, use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant’s actions were found to have been lawful. 22.  By a final Prosecutor’s Order of 3 September 2001 the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed. 23.  By a judgment of 11 September 2001 the Bucharest District Court decided that the indictment of 17 June 1999 was null and void because the applicant had not been informed of the charges against him, as he had been in the United States of America at the time of his indictment. Consequently, the court ordered the file to be sent back to the Prosecutor’s Office. 24.  The prosecutor submitted an appeal on points of law (recurs) against the judgment of 11 September 2001. 25.  By a judgment of 18 January 2002 of the Bucharest County Court the Prosecutor Office’s appeal was allowed and the case was sent back to the first-instance court for a retrial on the merits. The County Court held that there had been no reason for the indictment to be annulled, as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of the Code of Criminal Procedure applicable to persons avoiding the investigative authorities. In reaching this decision, the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation. 26.  By a final Prosecutor’s Order of 12 March 2002 the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed. 27.  On 13 May 2002 the first hearing in the retrial of the case was held before the Bucharest District Court following the judgment of 18 January 2002. The applicant was heard by the court. He argued, inter alia, that the criminal investigation against him had been based on political motives, a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by the Prosecutor’s Office representatives. 28.  By a judgment of 17 June 2002 the Bucharest District Court acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law. The Prosecutor’s Office appealed against the judgment. 29.  By a judgment of 14 November 2002 the Bucharest County Court allowed the Prosecutor Office’s appeal, convicted the applicant of making false statements in an official document and sentenced him to one year of imprisonment, a sentence which was considered pardoned according to the law. The court held that, on the basis of the evidence available in the file, the applicant had made false statements in an official document and had been aware of the legal consequences of his statements. The applicant lodged an appeal on points of law (recurs) against the judgment. He argued that the criminal investigation against him had been politically motivated, a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence. In addition, the applicant argued that the domestic courts had wrongfully assessed the evidence, had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts. 30.  By a final judgment of 23 December 2002 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law and his conviction became final. The court held, on the basis of the evidence available in the file, that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by the Prosecutor’s Office. 31.  On 26 February, 26 April, 16 July, 21 September, 19 October, 11 November 2004 and on 18 January, 10 February, 17 March and 19 April 2005 the applicant lodged repeated extraordinary appeal of annulment (recurs în anulare) requests against the final judgment of 23 December 2002 with the Public Prosecutor’s Office attached to the Court of Cassation. He argued, inter alia, that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by the Prosecutor’s Office and the Minister of the Interior which had resulted in the criminal investigation being opened against him and in him being indicted. 32.  On 20 April 2005 the applicant’s extraordinary appeal applications were dismissed by the Prosecutor’s Office attached to the Court of Cassation on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal.


6.  On 19 July 2000 the applicant’s daughter E., born in June 1997, was first interviewed at a hospital child psychiatric clinic on a suspicion that she had been sexually abused by the applicant. That suspicion was initially based on E.’s own account of what her father had done to her. 7.  Dr S. examined E. at the clinic on 2, 4 and 8 August 2000. The sessions were recorded on videotape. Following those sessions the hospital staff proposed that a meeting be arranged between the applicant and E. to enable the observation of their interaction. Such a meeting was never held, presumably due to the opposition of E.’s mother, the applicant’s former wife. 8.  On 7 August 2000 the applicant met a social worker and a nurse at the hospital. He denied any sexual abuse, suspecting that the mother had manipulated E. into saying negative things about him in order to prevent his visits with the child. The applicant and E.’s mother had divorced in 1998 and they had not been able to agree on the child’s custody and visiting rights. They had subsequently been afforded joint custody of E. by a court. Against this background, the applicant urged that other possible reasons for E.’s behaviour than sexual abuse be taken into consideration. 9.  In a feedback discussion held on 14 September 2000 Dr S. informed the applicant about the results of the examinations, which in his opinion supported the suspicion of abuse by the applicant. The applicant was told that a meeting between him and E. was to be arranged and that he would be informed about the date of the meeting later on. The applicant requested copies of E.’s examination reports. 10.  No meeting between the applicant and E. was arranged. 11.  As copies of E.’s examination reports had not been sent to the applicant, his counsel made fresh requests to that end on 3 and 14 November 2000. She also insisted that the applicant be heard regarding the examinations. 12.  On 15 November 2000 E. was examined at the clinic by Dr H. That session was also videotaped. No meeting with the applicant was arranged in respect of the results of that examination. 13.  On 28 November 2000 the hospital refused to submit copies of E.’s examination reports to the applicant, finding that their disclosure might be detrimental to her health or treatment and that it might conflict with another very important private interest. 14.  In December 2000 the applicant filed a request with the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) to obtain access to E.’s medical file. No decision was given by that authority before the beginning of the subsequent trial against the applicant. 15.  E.’s therapy at the hospital started in January 2001. 16.  On 15 February 2001 the police began a pre-trial investigation of the applicant during which his counsel was given the opportunity to view the video recordings of E.’s examinations by Drs S. and H. Apparently, counsel was also given copies of at least some of the documents pertaining to the case. The investigation was closed on 19 September 2001. In his final statement to the pre-trial investigation, the applicant requested that the investigating authorities acquire the totality of E.’s medical file from the hospital. His request was not complied with as the police and the public prosecutor did not regard E.’s patient records as having any influence in the matter. 17.  While the investigation was still pending, in May and June 2001, the applicant’s counsel had again asked the hospital authorities for access to those documents in E.’s medical file which were not already in the possession of the defence. The requests were refused. The applicant appealed against the decisions to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen). 18.  On 24 October 2001 the prosecutor brought a charge against the applicant, alleging aggravated sexual abuse of E. between March and June 2000. On 23 November 2001 the applicant submitted a written request to the District Court (käräjäoikeus, tingsrätten) to gain access to E.’s medical file, claiming that it was necessary for his defence. 19.  On 19 February 2002 the Administrative Court dismissed the applicant’s appeal against the hospital authorities’ refusal to grant him access to E.’s medical file (see paragraph 16 above). It stated that the examination reports requested by the applicant were not included in the trial material, and his request thus lacked legal basis. Furthermore, the court held that the applicant was entitled to obtain any medical documents given to or acquired by the District Court in the course of the criminal proceedings. Moreover, he had already been given copies of the video recordings and documents included in the pre-trial investigation material. 20.  The District Court held a preparatory hearing on 16 August 2002, in which the applicant repeated his request to obtain all of E.’s examination reports. On that date, having obtained the consent of E.’s mother, the court ordered the hospital to submit to the court the requested documents. In another preparatory hearing, held in September 2002, the applicant was finally afforded the opportunity to acquaint himself with the remainder of E.’s medical file. 21.  The main proceedings against the applicant began on 9 December 2002. The court received testimony from the applicant and 17 other persons, including Dr S., Dr H. and other doctors. A number of documents, including medical reports drawn up by the doctors treating E., were referred to in evidence. The videotaped examinations of E. were played back before the court. 22.  On 20 December 2002 the District Court acquitted the applicant of the charge, finding that there was at least reasonable doubt as to his guilt. The court noted that the examination reports obtained during the pre-trial investigation had been exceptionally important to the outcome thereof. According to the court the examinations seemed to have been based on the presumption that E. had been sexually abused by the applicant. Nevertheless, the applicant had not been afforded an opportunity to acquaint himself with E.’s medical file while the examinations at the hospital were being conducted and had only gained access to the totality of her examination reports shortly before the trial. There had thus been crucial shortcomings in the pre-trial investigation, contrary to the rights of the defence as set out in the Criminal Investigations Act (esitutkintalaki, förundersökningslag; 449/1987) and the Convention. 23.  The prosecutor and E., represented by her mother, appealed to the Court of Appeal (hovioikeus, hovrätten). In his reply to that court, the applicant contended, inter alia, that the investigation against him had de facto been carried out by the doctors and not by the police. He had not been given an opportunity to put questions to E., even indirectly, when she had been examined at the hospital, or at any later stage of the proceedings. He had only seen the video recordings when the pre-trial investigation was already well underway. It transpired from those recordings that during the examinations E. had claimed sexual abuse not only by her father, but also by several other persons. Further, the applicant had only been given access to E.’s medical file at the beginning of the trial, which meant that he had not had adequate time to prepare his defence. 24.  The Court of Appeal held an oral hearing between 19 and 22 May 2003. The evidence presented to the court was in most part the same as had been before the District Court. As to the applicant’s involvement in the examinations, Dr S. testified that during the feedback discussion of 14 September 2000 he had asked the applicant whether he had any questions. The applicant had not indicated at that point that he wished to have any further examinations conducted. 25.  On 19 June 2003 the appellate court quashed the lower court’s judgment and convicted the applicant of aggravated sexual abuse. He was sentenced to three and a half years’ imprisonment. The court found that E.’s account, recorded on videotape, was essential evidence, but not the sole evidence, against the applicant. In its conclusions the court emphasised E.’s behaviour, as it transpired from the video recordings, and the statements of Drs S. and H., who had examined her, and of another doctor who had treated her. This evidence was supported by three other witness testimonies regarding E.’s behaviour. The court further stated as follows:
“Given that [E.’s] account is essential evidence supporting the charge, [the applicant] or his counsel should have been given an explicit opportunity (“olisi...selkeästi tullut varata tilaisuus”) to put questions to [E.] through the pre-trial authorities or to request further investigations. However, this opportunity has not been provided within a reasonable time nor at a stage when it would have been useful, namely before the beginning of [E.’s] therapy. The procedure has therefore been deficient in part. [Dr S.] has, however, given [the applicant] an opportunity to request further examinations. Having regard to the fact that also other evidence in addition to [E.’s] account has been presented, the Court of Appeal finds that the above-mentioned procedural error cannot lead to the dismissal of the charge. Taking into account the legal protection of the child and her state of health as well as the fact that she had already been undergoing treatment for a long time, it would not have been reasonable to follow the adversarial procedure at a later stage. Naturally, the child’s account and her behaviour, as they transpire from the video recordings, must be taken with circumspection when assessing the evidence. However, the Court of Appeal considers that the taking of evidence, assessed as a whole, meets the minimum requirements of a fair trial.” 26.  The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) contending, inter alia, that the proceedings had been unfair in the light of Article 6 of the Convention as he had been denied adversarial proceedings and the timely opportunity to acquaint himself with the totality of the case material. On 25 March 2004 he was refused leave to appeal.


4.  On 21 December 1993 the Public Prosecutor at the Izmir Security Court filed an indictment against four accused persons (H.N., N.S., M.Ş.Ç., A.K.) charging them under Article 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. During their interrogation by the police and the public prosecutor, all of the accused persons stated that they had acted upon the instructions of Mr Mehmet Şerif Öner[1]. Subsequently, during the trial before the Izmir State Security Court, they denied the charges against them and retracted their previous statements. On 24 February 1998 the Izmir State Security Court found the accused guilty as charged and sentenced them to life imprisonment. In the judgment the court, presided by Judge G.D.C., found it established that the accused had acted upon the instructions of Mr Mehmet Şerif Öner, whose code name was “Kahraman” and who was active in the Izmir region for the illegal organisation the PKK (Workers’ Party of Kurdistan). This judgment became final on 29 July 1998. 5.  On 13 May 2002 the applicant was taken into custody in Batman on suspicion of membership of the PKK. When arrested, he was in possession of a fake identity card. 6.  On 16 May 2002 the applicant was transferred to the Anti-Terrorism Branch of the Izmir Security Directorate. The same day, he was interrogated by the police in the absence of a lawyer. The applicant denied all the charges against him. He stated that he was using a fake identity card because he had escaped from prison in 1992. 7.  During his police custody, the applicant took part in an identification parade. The complainants, Mr M.Ç., Mr N.Ş. and Mr F.B., identified him as the person who had been involved in the respective armed robberies that had taken place in 1993. 8.  On 17 May 2002 the applicant was further interrogated before the public prosecutor and the investigating judge respectively, still in the absence of a lawyer. During the questionings, the applicant denied his involvement in the PKK. He explained that in the past he had been involved in an armed robbery and had been sentenced to twenty years’ prison. He stated that after his escape from prison, he started using fake identity cards. When his questioning was over, the investigating judge remanded the applicant in custody. 9.  On 5 June 2002 the Public Prosecutor at the Izmir State Security Court filed an indictment with that court, accusing the applicant of engaging in illegal activities with the aim of bringing about the secession of part of the national territory, an offence under Article 125 of the former Criminal Code. 10. During the hearing held on 3 September 2002 the applicant’s lawyer requested the President of the Court, Judge G.D.C., to withdraw from the case, stating that he had also sat as a member of the court which had delivered the judgment of 24 February 1998, in which the applicant was referred to as a member of the PKK. His request was rejected. 11.  On 15 July 2003 the Izmir State Security Court found the applicant guilty as charged and sentenced him to life imprisonment under Article 125 of the former Criminal Code. In its judgment, the court found it established that the applicant had participated in the armed robberies as alleged and taken part in the activities carried out for the purpose of bringing about the secession of part of the national territory. In delivering its decision, the first instance court relied on the police statements of the four accused persons who had been convicted by the Izmir State Security Court on 24 February 1998 and the identification parade records in which the intervening parties had identified the applicant as the person who had been involved in the respective armed robberies. 12.  On 24 February 2004 the Court of Cassation quashed the judgment of the first instance court on the ground that the intervening parties who were eye-witnesses to the armed robberies should be summoned to the court to confront the applicant to eliminate any doubt. 13.  The case resumed before the Izmir State Security Court. In accordance with the decision of the Court of Cassation, the first instance court summoned three intervening parties to give evidence. Before the court, Mr Z.Ö. and Mr N.Ş. stated that as a long time had passed since 1993, they were no longer able to recognise the applicant. Mr M.Ç. however identified the applicant as the person who had stolen his car. As regards the remaining intervening parties, who could not be summoned to the Izmir State Security Court, rogatory courts heard evidence from them. In their statements, Mr F.A., Mr H.A. and Mr Z.A. explained that due to the long time that had elapsed they were not able to recognise the applicant. 14.  In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, the State Security Courts were abolished. The case against the applicant was accordingly transferred to the Izmir Assize Court. Subsequently, on 12 October 2004 the new Criminal Code (no. 5237) was published in the Official Gazette. 15.  On 10 November 2005 the Izmir Assize Court once again found the applicant guilty as charged and sentenced him to aggravated life imprisonment under Article 302 of the new Criminal Code. Among other evidence, the court based itself on the fact that the applicant had been identified by the intervening parties during his police custody. 16.  On 9 May 2006 the Court of Cassation quashed the judgment of the first instance court on procedural grounds, holding that as Article 302 of the new Criminal Code provided a heavier sentence for the offence committed by the applicant, the provisions of the former criminal code should have been applied in his case. 17.  The case was once again remitted to the Izmir Assize Court, which decided on 29 December 2006 to sentence the applicant to life imprisonment under Article 125 of the former Criminal Code. On 11 March 2008 the Court of Cassation upheld this judgment.


6.  The applicant was born in 1962 and lives in Kaliningrad. 7.  On 17 October 1999 the police arrested the applicant on suspicion of the murder of Ms M. On 20 October 1999 an investigating officer charged the applicant and detained him in remand prison IZ-39/1 in Kaliningrad. On 20 April 2000 the Central District Court of Kaliningrad found the applicant guilty of the murder of Ms M. The applicant was sentenced to fourteen years' imprisonment. On 22 August 2000 the Kaliningrad Regional Court upheld the conviction on appeal. 8.  The applicant was detained in remand prison IZ-39/1 from 20 October 1999 to 20 September 2000. 9.  On his admission, he was put in a quarantine cell occupied by young offenders, some of whom had already been convicted. This cell measured12-13 square metres and housed fourteen to sixteen prisoners. Of the eight available bunk beds, only six had bedding. The applicant was only able to sleep for three to four hours a day. The window was covered with metal shutters that let through neither light nor fresh air. The air inside was stuffy, the walls were damp. A 60-watt ceiling light stayed on day and night: too dim to read by, too bright to sleep under. The toilet had no flush or ventilation. It stood above the floor exposed to onlookers. Several prisoners had lice, tuberculosis or syphilis. The cell swarmed with cockroaches, bed bugs, ants and rats. Cleaning of the toilet was limited to sprinkling it with bleach. 10.  After about a week, the prison administration moved the applicant to a cell meant for former policemen. This cell was located in the basement and measured seven square metres. It housed between eight and nineteen prisoners, even though there were only six bunk beds. The prisoners had to sleep in shifts of three to four hours a day. The window was covered with a metal shutter in which there were 1 cm holes; too small to let through either light or fresh air. There was no ventilation. The walls had a thick, dirty, wet concrete coating. A weak filament light stayed on day and night. In one corner of the cell, there was a toilet – a concrete cube raised above the floor. The toilet was not partitioned off from the cell, offered no privacy, and lacked a flush. Above it, there was a service water tap used for washing. The dining table stood one metre away from the toilet. The cell swarmed with cockroaches, bed bugs and ants. 11.  In both cells, the applicant had to share bunk beds, and had no bedding, or toiletries. A fifteen-minute shower was available once every fortnight. Because the cells were constantly overcrowded, and because many prisoners smoked, the applicant remained immobile in the stuffy air for long periods of time. Relief came from outside walks, but they were rare and short (thirty to forty minutes a day), and the yard was also overcrowded (seven to fourteen people in seven to eight square metres). There was no drinking water in the cells. The food was cold, tasteless and slovenly served. During his stay in the prison the applicant, who usually weighed sixty kilograms, lost ten kilograms in weight. 12.  Along with his own description, the applicant submitted three witness statements by persons who had been detained in the prison at about the same time as him. Mr A. K. was detained in the prison from December 1998 to August 2000 and confirmed the applicant's description of the prison. Mr M. T. was detained in the prison from February 1996 to October 1999. He confirmed the applicant's description of the prison and added that the bunk beds in the cells were crudely made of sharp metal rods which caused injuries to the prisoners. Mr Y. V. was detained in the prison from August 1999 to May 2000 and confirmed the applicant's description of the prison. 13.  During his detention in the prison the applicant, as a former policeman, was detained in two cells for former policemen. These cells measured 13.6 and 7.8 square metres. The prison administration provided the applicant with a bunk bed, bedding, and dishes. The cells were in a satisfactory sanitary condition, no prisoners had lice, tuberculosis, or other infectious diseases. The cells had central heating, running water, sewage, natural and artificial light, natural ventilation, two-storey beds, toilets and sinks. The average temperature in winter was 18oC, the average amount of light was 75-100 lux. The prison administration systematically disinfected the cells. Food met statutory requirements.


5.  The first and second applicants were born in 1938 and the third applicant in 1963. They all live in Karlovac. 6.  On 1 April 1993 the first and the second applicants’ daughter, who was the third applicant’s sister, was killed in a bar by Z.R., who at the time served as a soldier in the Croatian army. 7.  By a judgment of the Karlovac Military Court (Vojni sud u Karlovcu) Z.R. was found guilty of murder and sentenced to eight years’ imprisonment. 8.  On appeal, the Supreme Court (Vrhovni sud Republike Hrvatske) on 17 February 1994 upheld the conviction, which thereby became final, but increased the sentence to nine years’ imprisonment. 9.  On 15 January 1998 the applicants submitted a request to the State Attorney’s Office for their claim for damages to be settled in connection with the unlawful killing of their relative by a soldier, as required under the Military Service Act, in force at the material time (see paragraph 26 below). 10.  On 5 March 1998, after their request was refused, the applicants brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking compensation from the State and Z.R. in connection with the killing of their relative. 11.  During the proceedings, the State Attorney’s Office raised a number of substantive and procedural objections to the applicants’ claim against the State. 12.  Meanwhile, on 4 October 1999 the applicants withdrew their civil action against Z.R. but maintained their action against the State. 13.  Owing to the failure of the applicants’ representative to appear at several hearings, of which the first applicant was informed, on 14 March 2003 the Zagreb Municipal Court found that the civil action was considered to have been withdrawn (see paragraph 24 below; section 216 § 4 of the Civil Procedure Act). 14.  As no appeal was lodged by the parties, on an unspecified date this decision became final. The applicants later in 2005 attempted to have the statement of finality quashed and to lodge a belated appeal, but this was dismissed by the competent court. 15.  On 9 May 2005 the applicants brought their claim for damages before the Karlovac Municipal Court (Općinski sud u Karlovcu), which meanwhile had acquired competence to hear the case, against the State and Z.R. related to the killing of their family member. 16.  During the proceedings, the State Attorney’s Office challenged the applicants’ claim on several procedural grounds, arguing in particular that they had failed to seek to have their claim against the State settled before lodging their civil action, as required under the relevant domestic law (see paragraph 24 below). 17.  On 17 March 2010 the Karlovac Municipal Court declared the applicants’ civil action against the State inadmissible, on the grounds that before they lodged their civil action the applicants had failed to attempt to have the case settled with the competent State Attorney’s Office, as required under the relevant domestic law. 18.  The applicants challenged the decision of the Karlovac Municipal Court by lodging an appeal before the Karlovac County Court. On 29 July 2010 the Karlovac County Court dismissed their appeal, holding as follows:
“Section 186(a) of the Civil Procedure Act (Official Gazette, nos. 117/2003 and 88/2005) provides that a person intending to bring a civil suit against the Republic of Croatia must first submit a request for a settlement to the competent State Attorney’s Office. When there is no doubt that before lodging the civil claim the claimant has failed to settle the case with the competent State Attorney’s Office, the first-instance court is correct to declare such a claim lodged directly before it inadmissible (VS Rev-1124/056 of 14 March 2007).
The duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged.
Section 186(a) of the Civil Procedure Act is inapplicable to claims for damages lodged before the courts prior to 1 December 2003.
It is not in dispute that the plaintiffs on 5 March 1998 lodged an identical claim against the same defendants before the Zagreb Municipal Court ... It is also not disputed that on 14 March 2003, after the conditions for the stay of proceedings had been met twice, a decision was adopted finding that the claim against the first defendant, the Republic of Croatia, was withdrawn.
However, these undisputed facts do not mean that the plaintiffs were released from their obligation under section 186(a) of the Civil Procedure Act because they had previously submitted an identical claim. With the amendments to the Civil Procedure Act (Official Gazette no. 117/2003) the duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged. Further amendments to the Civil Procedure Act (Official Gazette nos. 84/2008 and 123/2008) did not [alter this obligation] with regard to the actions against the Republic of Croatia.” 19.  On 27 October 2010 the applicants lodged an appeal on points of law before the Supreme Court, challenging the decision of the Karlovac County Court on the grounds that it unreasonably restricted their right to access to court. They argued that before they brought their civil action of 5 March 1998 before the Zagreb Municipal Court they had attempted to settle the matter with the State Attorney’s Office. However, their request had been refused, and later during the proceedings the State Attorney’s Office had also challenged their claim in the court. The applicants therefore considered that there was no reason to seek another settlement concerning the identical claim brought before the court after it was decided that it had been withdrawn. 20.  The applicants also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 November 2010, reiterating their above arguments. 21.  On 23 March 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern individual acts deciding on their civil rights and obligations. 22.  On 3 April 2013 the Supreme Court dismissed the applicants’ appeal on points of law, endorsing the reasoning of the Karlovac County Court that the applicants had been obliged to seek settlement with the State Attorney’s Office before lodging their action of 9 May 2005. The Supreme Court pointed out:
“It should be noted that the procedural requirement for the admissibility of an action under section 186(a) of the Civil Procedure Act, and the reliance of the lower courts on that provision, do not represent a violation of a plaintiff’s right of access to court. This is because the plaintiff, by complying with that provision, does not lose any of their rights to claim [damages] since, for example, the lodging of a request for settlement interrupts the running of the statutory prescription period ([Article 186(a)] § 3) and the plaintiff may lodge an action in the court if the State Attorney’s Office refuses the request [for settlement] or does not decide on it within three months of the date it was lodged ([Article 186(a)] § 5).
It cannot therefore be said that the obligation of the plaintiffs to seek settlement of the claim with the State Attorney’s Office before lodging an action against the Republic of Croatia represents an unreasonable restriction of access to a competent court which can decide the case on the merits as required under Article 6 § 1 of the European Convention on Human Rights (Official Gazette-International Contracts, nos. 18/1997, 6/1999-consolidated text, 8/1999-rectification, 14/2002 and 1/2006). This is because section 186 of the Civil Procedure Act neither impaired the right to lodge a civil action nor the right to have the case decided on the merits ... (see the European Court of Human Rights in Ačimović v. Croatia of 9 October 2003 and Kutić v. Croatia of 1 March 2002).”


4.  The applicant was born in 1963 and lives in Kardzhali. 5.  On 17 September 1999 the applicant, who worked as a foreman in a mine, was dismissed for a violation of the discipline. On 27 September 1999 he brought proceedings against his employer, claiming that his dismissal was unlawful and seeking reinstatement to work and compensation. 6.  The hearing on 1 December 1999 of the Kardzhali District Court was postponed for gathering of evidence. On 1 March and 26 April 2000 the court instructed the applicant to correct certain flaws in his statement of claim. From 7 June to 5 July 2000 it conducted three other hearings and on the latter date postponed the hearing to 20 September 2000 for questioning of witnesses. The applicant made a complaint about delays. On 13 July 2000 the Kardzhali Regional Court established that the District Court had postponed the hearing of the case on a number of occasions for gathering of evidence. It noted that the District Court could have been more diligent in conducting the case in view of the nature of the claim. For example, it could have imposed fines on the parties for not submitting their requests in due course. It instructed the District Court to conduct the next hearing within one month as from the date on which the case file would be returned to it. 7.  In compliance with the instructions, the District Court rescheduled the next hearing for 2 August 2000. On 7 August 2000 it held the last hearing and dismissed the claim. It held that the applicant had breached his duties as a foreman because during the night shift on 27 August 1999 he had exempted one of his subordinates from work without reporting his absence. The applicant appealed. 8.  The Regional Court held two hearings and on 1 February 2001 quashed the judgment of 7 August 2000 and granted the applicant’s claim. It held that the procedural requirements for requesting explanations from the applicant had not been met by his employer. The latter appealed. 9.  On 18 March 2002 the Supreme Court of Cassation conducted a hearing. In a judgment of 15 April 2002 it quashed the judgment of 1 February 2001. It held that the applicant’s employer had met the procedural requirements for taking explanations from the applicant. 10.  On 17 May 2002 the Regional Court held a hearing. The applicant requested the assignment of an expert report. The hearings on 21 June and 13 September 2002 were postponed because the appointed experts had failed to submit their reports. Between 25 October and 6 December 2002 it conducted three other hearings and on 3 February 2003 dismissed the claim. It held that the applicant had exempted a worker from the night shift without reporting his absence, and thus had breached his duties of a foreman and had abused the confidence of his employer. The applicant appealed. 11.  The Supreme Court of Cassation conducted a hearing on 2 June 2005 and in a final judgment of 19 September 2005 upheld the judgment of 3 February 2003. It fully endorsed the findings of the Regional Court. 12.  On two occasions in 2000 and 2002 the applicant complained to the president of the Kardzhali Regional Court and the Ministry of Justice that the examination of his case was delayed. In letters of 23 March 2000 and 20 November 2002 the president of the Regional Court informed the applicant that he had not established any unreasonable delays in the proceedings.