Datasets:

jonathanli

/

echr

like 0

[ "The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was in the area of ORG , GPE , from CARDINAL to CARDINAL DATE . He went to a discotheque in TIME and said he had left between CARDINAL a.m. and TIME When he left the discotheque , an unknown person hit him in the face and he fell to the ground . The applicant took a taxi and went back to his hotel , where he was sharing a room with QUANTITY friends .", "On DATE Mr P reported to the police that at TIME an unknown person had had an argument with him and kicked his car , which was parked in front of the discotheque , and damaged it .", "The following day the applicant returned to GPE by train . He was apprehended by the police , on account of his visible injuries , on suspicion of having participated in a fight . The police took CARDINAL photographs of him . The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him , as he thought it would not be possible to find the person .", "On DATE T , a barkeeper in the discotheque and a friend of P , was heard as a witness to the incident in which P ’s car had been damaged . He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car .", "On DATE T was shown the photos of the applicant taken by the police . He said it was the person who had had the argument with P.", "On DATE P was also shown the same photos and stated that the applicant was the person who had kicked his car .", "On DATE an official notice of a criminal act , apparently together with a sheet of the applicant ’s personal data , was sent to ORG , who filed an indictment ( Antrag auf Bestrafung ) on DATE .", "On DATE a provisional penal order ( Strafverfügung ) was issued by the PERSON am GPE ORG ( “ the ORG ” ) . The applicant was considered guilty of having wilfully damaged a car on DATE . He was sentenced to a fine totalling CARDINAL NORP schillings ( MONEY ( ORG ) ) , suspended on probation .", "According to the law , a provisional penal order had to be served personally on the addressee . The first attempt to serve the provisional penal order on the applicant failed . Although the applicant had a registered address in N between DATE and DATE , the provisional penal order was returned to ORG with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded .", "On DATE ORG found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant . ORG received a letter from the local police station saying that the applicant did not live anywhere in the area .", "By a letter dated DATE , ORG in GPE , GPE , asked ORG about the outcome of the case . ORG replied on DATE that a provisional penal order had been issued but could not be served on the applicant and had thus not become final .", "On DATE , ORG renewed the request to the police to locate the applicant . By a letter of DATE , the Strass i m NORP police station informed the court that the accused ’s personal data had been entered in FAC and that a search in the data station had been ordered to find out the applicant ’s place of abode .", "By a letter dated CARDINAL DATE ORG in GPE notified ORG of the applicant ’s registered address in W and stated that the applicant had been registered at that address since DATE .", "On DATE the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within DATE of service , it would become void and a regular trial would be held .", "The applicant lodged objections on DATE .", "On DATE the file was transmitted to ORG at the PERSON am GPE ORG for her observations regarding a preliminary settlement ( Diversion ) .", "The trial before ORG started on DATE . P was heard as a witness and the court asked him whether the applicant had kicked his car in DATE . P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on DATE he had been certain that it had been the applicant who had kicked his car .", "The applicant asked for evidence to be heard from the CARDINAL friends with whom he had shared the hotel room . As they lived in GPE , ORG adjourned the hearing and on DATE issued letters rogatory , asking the NORP authorities to hear the witnesses . The public prosecution office in GPE sent back the witness statements on DATE . The witnesses had stated that they could not remember the applicant having returned to the hotel room at TIME", "On DATE the trial continued . The applicant was not represented by counsel . The judge had the witness statements as submitted by the public prosecution office in GPE read out . Relying on the witness statements of P and the applicant ’s friends , the barkeeper ’s statement and the notification from the LOC police station , ORG found the applicant guilty of having damaged P ’s car on DATE and sentenced him to a fine totalling ORG CARDINAL,CARDINAL ( CARDINAL per diem rates of ORG CARDINAL each ) , suspended on probation for DATE , ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car .", "On DATE the judgment was served on the applicant ’s counsel . An appeal on points of law and fact , as well as against sentence , and an appeal against the obligation to pay damages ( Berufung wegen GPE , PERSON gegen den Privatbeteiligtenzuspruch ) was lodged on DATE .", "On DATE the Innsbruck ORG set aside the judgment on grounds of nullity as ORG had failed to obtain the applicant ’s consent to have the witness statements read out .", "On DATE a new trial was held . CARDINAL of the applicant ’s friends , who had been named as a witness , did not appear before the court . The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred . He also confirmed that when he had been heard by the NORP authorities after the NORP court had issued the letters rogatory , he had told the truth . The barkeeper T was also heard as a witness . He stated that he did not remember what he had told the police when he gave his statements on DATE and DATE , but was certain that he had told the truth .", "After an adjournment , the trial continued on DATE . As the judge had changed , the trial started afresh . T , P and the applicant ’s friend who had not appeared before the court on DATE were heard as witnesses and , in essence , upheld their previous statements . ORG , relying on T ’s and P ’s statements , again found the applicant guilty and sentenced him to a fine totalling ORG CARDINAL,CARDINAL ( CARDINAL per diem rates of ORG CARDINAL each ) , suspended on probation for DATE , and ordered him to pay the costs of the trial . P was ordered to claim damages for the car in the civil courts .", "The applicant appealed on points of law and fact , as well as against sentence , on DATE . On DATE the Innsbruck ORG upheld the judgment . The decision was served on applicant ’s counsel on CARDINAL DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The case originated in a labour dispute following the applicant ’s transfer to a different post within a company providing electro - installation ( hereinafter referred to as “ the company ” ) . Subsequently , the applicant lodged several claims with ORG requesting , inter alia , the annulment of the transfer decision , and payment of the difference in salary .", "On DATE the first - instance court gave a decision upholding the applicant ’s claims . The company appealed . On DATE the second - instance court upheld the company ’s appeal and remitted the case for fresh examination .", "On DATE ORG issued a decision whereby it upheld the applicant ’s claims and annulled the transfer decision . It found that the transfer was related to the applicant ’s involvement in trade union activities and his efforts to improve human relations in the company . The company , in the court ’s view , had failed to demonstrate that there were work - related needs which called for a transfer . The court adjudicated that the applicant should be paid the difference in salary . The company appealed .", "On DATE ORG upheld the appeal . The CARDINAL - judge panel , presided over by judge PERSON , found that the first - instance court had failed to provide adequate reasoning in its decision ; in particular , it had failed to explore whether lawful grounds for the transfer existed , such as an increased need for resources with respect to the applicant ’s new post . In the Higher Court ’s view , the lower court should examine the director and the chief of commerce as witnesses . The case was remitted for fresh examination .", "On DATE ORG stayed the proceedings since bankruptcy proceedings had been instituted against the company .", "Subsequently , the court repeatedly requested the applicant to inform it of the progress of the proceedings relating to the company ’s bankruptcy and to specify whether he still had an interest in pursing the proceedings in his case . The applicant supplied the required information concerning the outcome of the bankruptcy proceedings on DATE , and requested that the proceedings in his case be continued .", "On DATE the court resumed the proceedings in so far as they concerned the allegedly unlawful transfer to another post and loss of salary , and dismissed the remaining claims . The applicant lodged an appeal and an appeal on points of law . Both were rejected .", "On DATE ORG , after holding CARDINAL hearings and examining witnesses , issued a judgment dismissing the applicant ’s claims . It found that the applicant ’s transfer to a different post within the company had been lawfully based on the company ’s need to adapt to changes in the market , and that he was therefore not entitled to any compensation . The applicant appealed .", "On DATE ORG rejected the appeal and upheld ORG judgment . The applicant lodged an appeal on points of law in which he complained about , inter alia , not being present at one of the hearings , and his claims being previously upheld but eventually rejected owing to improper conduct of the court ’s proceedings .", "On DATE ORG , sitting as a panel of CARDINAL judges , CARDINAL of whom was judge PERSON , rejected the appeal on points of law , finding that the lower courts had not committed any errors in the application of the procedural rules and that the applicant had been provided with an opportunity to participate in all hearings . It also noted that the previous court ’s decisions had been quashed because they had been found to be erroneous . Lastly , ORG found that the relevant substantive law had been properly applied to the facts of the case as established by the lower courts .", "On DATE , the applicant lodged a constitutional appeal in which he disputed the findings of ORG and complained that the proceedings had been biased because of the involvement of judge PERSON , who had previously decided in favour of the company ’s appeal .", "On DATE ORG rejected the appeal on procedural grounds , stating that on account of the terminated bankruptcy proceedings against the company and the fact that the company had been deleted from the register of companies , the applicant no longer had any legal interest . The decision was served on the applicant on DATE .", "Further to the ORG ’s communication of the present application to the respondent Government , ORG informed the applicant that no settlement offer would be made . The ORG considered that no violation of the right to a trial within a reasonable time had occurred in his case . That letter was served on the applicant on DATE .", "On DATE the applicant initiated proceedings before ORG , claiming damages for undue delays in the above - mentioned labour proceedings . He referred to LAW without undue Delay ( “ the CARDINAL Act ” ) and on that basis claimed LAW for non - pecuniary damage . He further claimed ORG CARDINAL for non - pecuniary damage on the basis of LAW .", "NORP The court held a hearing on DATE . On DATE it issued a judgment rejecting the applicant ’s claim for ORG CARDINAL,CARDINAL , finding that it had no basis in law . As regards the claim for LAW , the court found that it had jurisdiction to decide on it as the case fell under LAW . However , the court dismissed the claim as it had been lodged outside the DATE time - limit provided for by paragraph QUANTITY of LAW . It found that the applicant had received the letter from ORG on DATE and should therefore have lodged the compensation claim under LAW no later than CARDINAL DATE . The applicant did not appeal .", "The relevant provisions of LAW ( Official consolidated version UPBCARDINAL , ORG no . CARDINAL/CARDINAL ) read as follows :", "“ A judge or a lay judge shall be prohibited from exercising judicial functions :", "...", "( CARDINAL ) if he or she has participated in the same proceedings before a lower court ...", "( CARDINAL ) NORP if other circumstances raise doubts about his or her impartiality . ”", "“ If a judge or a lay judge discovers that there exists a reason for exclusion mentioned in CARDINAL of points CARDINAL to CARDINAL of section QUANTITY , he or she must immediately cease to perform any work in the case and must notify the President of the court , who shall appoint a replacement judge .", "... ”", "As regards the remedies before ORG , see paragraphs CARDINAL of ORG and PERSON GPE , nos . CARDINAL/CARDINAL and CARDINAL , DATE . For the relevant provisions of the CARDINAL Act , see GPE v. GPE , ( dec . ) no . CARDINAL , § § DATE , DATE ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "ORG Mr PERSON lives at GPE , near PERSON .", "ORG On DATE ORG municipal council granted PERSON ORG planning permission for the construction of new commercial premises , subject to various detailed conditions : CARDINAL groceries should be built , each with appropriate commercial and sanitary amenities and separate entrances ; and a dividing wall was to be erected between the CARDINAL shops .", "At a later stage the applicant informed the council that he was envisaging opening a supermarket on the LOC , whereupon the council drew his attention to the specifications in the planning permission , which allowed only for CARDINAL different smaller shops to be built , with separate entrances and divided by a party wall . They further warned the applicant that failure to comply with these specifications would result in the works being immediately halted .", "ORG On DATE the council ordered the applicant to suspend the works . An inspection of the site had shown that , contrary to the terms of the planning permission , CARDINAL larger shop was being built instead of the CARDINAL smaller ones . The applicant had thus disregarded several conditions of the planning permission .", "ORG On DATE the PERSON district authority ( ORG ) served a \" sentence order \" ( PERSON ) on the applicant pursuant to sections CARDINAL(CARDINAL)(a ) and CARDINAL(CARDINAL ) of LAW ( Tiroler PERSON - see paragraph CARDINAL below ) . According to the order , it had been established that the applicant had not only failed to erect the party wall as well as certain amenities , but had also opened an additional entrance , considerably enlarged the LOC , built an additional wall and created CARDINAL large shop instead of the CARDINAL smaller ones originally planned . In so doing , the applicant had carried out works without planning permission .", "Mr PERSON was ordered to pay a fine of CARDINAL NORP schillings ( ORG ) with DATE imprisonment in default of payment , plus costs . An appeal by him to the LOC regional government ( ORG PERSON ) was dismissed on DATE on the ground , among others , that the works carried out by the applicant not only failed to comply with the permission granted but were in part illegal .", "ORG Mr PERSON then applied to ORG ) , alleging , inter alia , a violation of LAW ) of the LAW in that he had not been able to bring his case , or have an oral hearing held , before a tribunal which conformed with that provision ( article CARDINAL ) . On DATE ORG declined to accept the case for adjudication under LAW para . CARDINAL of LAW ( Bundes- Verfassungsgesetz - see paragraph CARDINAL below ) as raising questions concerning the application of ordinary law ( einfaches PERSON ) ; in so far as the complaint did raise issues of constitutional law , ORG found that the application did not have sufficient prospects of success .", "ORG The applicant then requested to have his case transferred to ORG ( Verwaltungsgerichtshof ) , with which grounds of appeal against the administrative authorities ' decision were subsequently lodged .", "ORG On DATE the applicant 's appeal was dismissed by ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz - see paragraph CARDINAL below ) . With regard to the complaints concerning LAW , the court pointed out that LAW ( GPE ) did not confer a general right to a hearing before the administrative authorities . Only in special circumstances was a hearing to be held .", "ORG then dealt with the remaining complaints as follows :", "\" The applicant further submitted that the impugned decision dealt only with the obligation , noted in the decision at first instance , to obtain permission not to erect the dividing wall , and not with the obligation to obtain permission for the other - in his view minimal - failures to comply with the plan . But as , he maintained , the question whether these other failures to comply with the plan might lead to the applicant 's being punished was of importance if the failure to erect the wall was not punishable , the reasoning was inadequate . This submission is inaccurate , because the respondent authority did in fact , as it was entitled to do , take it for granted that planning permission was necessary for all the measures mentioned in the original decision . The major building works undertaken by the applicant were , as the file shows , not covered by permission from the planning authorities . There was also clearly a consistent intention to go ahead and build in disregard of the planning regulations . The applicant further overlooks that , quite apart from the principle that planning permission was necessary for such a building project , permission could never have been given for a shopping centre such as was built in the instant case , having regard to the provision in section CARDINAL(b ) of the Tyrol Town and Country Planning Act , which was declared constitutional by ORG in a decision ( B CARDINAL/CARDINAL ) of DATE .", "During the planning - application proceedings Mr GPE acted as the applicant for planning permission and as the owner of the land and the building on it . The [ Z. ] firm put itself forward as the future user of the building . The applicant never disputed during the administrative criminal proceedings that he was the person for whom the building was being constructed and that he was thus liable in administrative criminal law . His submission that the dividing wall was not built not on his orders but on those of the [ Z. ] firm that was using the commercial premises can therefore not exonerate him as he bore the responsibility for accepting and carrying out the orders of the future occupier . The suggestion set out for the first time in the statement of facts in the supplementary application that the building was being constructed for another firm is a new submission that is inadmissible in administrative proceedings by virtue of CARDINAL ) of LAW .", "It was further submitted that the suspension of the building works that had been ordered had made it impossible to erect the dividing wall , although this could have been done without substantial expenditure even after the building work had stopped , so that there had been no negligence .", "This submission likewise can not assist the applicant . As the evidence and the applicant 's submission clearly show , there had been no intention to build the dividing wall even before building work was suspended ; on the contrary , the applicant deliberately refrained from doing so in order to secure a review of section CARDINAL(b ) of the Tyrol Town and Country Planning Act by ORG . Furthermore , at the time when the building works were suspended , there were other important failures to comply with the planning permission for which approval would have been needed ( see in the statement of facts the details of the findings made by the authority on DATE during an inspection of the works ) . The subsequent suspension of building work is accordingly of no legal significance in the present context .", "The respondent authority also rightly noted that the very fact of the repeatedly expressed intention not to erect the dividing wall and to maintain the building in issue in a state that did not comply with the planning permission and for which no approval had been given showed that there had been culpable intent . Similarly , as the respondent authority rightly recognised , the theoretical possibility that ORG might declare section CARDINAL(b ) of the Tyrol ORG unconstitutional can not be prayed in aid as a mitigating circumstance . Contrary to the applicant 's submissions , this purpose could have been achieved other than through failing to comply with the planning permission by not erecting the dividing wall and carrying out unauthorised works . It was open to the applicant at the outset to make an application for planning permission to build large - scale commercial LOC , a shopping centre , and in this way challenge section CARDINAL(b ) of the Tyrol Town and Country Planning Act in ORG . The submission on this point therefore fails .", "As to the submission that , contrary to what was stated in the impugned decision , the authority ( municipal council ) had agreed to the dividing wall not being built after a report had been made by a fire - safety expert , the applicant is referred to the evidence given by the chairman of the municipal council and to the note for the file made by him on DATE of the meeting , from which it is quite clear that there was disagreement between the participants over the question whether authorisation was needed not to build the dividing wall and that the applicant was expressly warned by the municipal council that under LAW of FAC read together with section CARDINAL(b ) of the Tyrol Town and Country Planning Act , a building scheme that was altered in this way could not be authorised . The applicant is mistaken in suggesting that the statement made by the legal representative of the [ Z. ] firm , who was also present at the meeting , constitutes a ground for excluding his guilt . From the observations filed by counsel for the applicant on the evidence given by the chairman of the municipal council it appears that the whole question of suspending the building works and the issue of the constitutionality of section CARDINAL(b ) of the Tyrol Town and Country Planning Act were discussed and the possibility of challenging that provision in ORG envisaged . The municipal council was allegedly made aware of this ' outcome of the negotiations ' . The applicant himself , however , states in his application that there was disagreement among those taking part in the discussions as to the question of the need for authorisation not to build the dividing wall , with the municipal council assuming that such authorisation was necessary whereas the representative of the [ Z. ] firm assumed it was sufficient merely to report the fact . The applicant thus himself admits that , contrary to later statements in the application and in the observations on the evidence given by the chairman of the municipal council , no agreement was reached between the municipal council and the applicant , so that the assumption that there was a ground here for excluding the applicant 's guilt is invalid on this ground alone . Nor can ORG find that the respondent authority committed any significant procedural irregularities in this respect in the reasons given for the impugned decision . The submission on this point is accordingly unfounded .", "The respondent authority dealt at length and accurately with the grounds for the assessment of punishment and with the assessment of punishment in general , so that it can not be criticised in this respect either .", "... \"", "Section CARDINAL(CARDINAL)(a ) of FAC ( ORG ) DATE provides :", "\" It shall be an administrative offence ( PERSON )", "( a ) to carry out without planning permission a building project that requires planning permission ... \"", "Section CARDINAL(CARDINAL ) provides :", "\" The administrative offences set out in paragraph CARDINAL shall be punishable with a fine not exceeding ATS CARDINAL or with imprisonment for DATE ... \"", "Section CARDINAL of the same LAW provides :", "\" The authorities ' permission is required in the following cases :", "( a ) new building , extensions and conversions ; and", "( b ) alterations to buildings or parts of buildings in so far as they affect the building 's structural soundness , its safety in the event of fire , its plumbing or its external aspect ... \"", "ORG Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :", "\" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . \"", "ORG By Article CARDINAL para . CARDINAL of LAW , ORG , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .", "Article CARDINAL para . CARDINAL provides :", "\" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . \"", "ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .", "Section CARDINAL(CARDINAL ) of the Administrative Court Act provides that at the end of the preliminary proceedings ( GPE ) ORG must hold a hearing where the applicant makes a request to that effect .", "Section CARDINAL(CARDINAL ) reads as follows :", "\" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where", "ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;", "ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;", "ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;", "ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;", "ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;", "ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . \"", "ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .", "Section CARDINAL(CARDINAL ) of the Administrative Court Act provides :", "\" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . \"", "Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .", "By section ORG ) :", "\" The Administrative Court shall quash the impugned decision if it is unlawful", "ORG by reason of its content , [ or ]", "ORG because the respondent authority lacked jurisdiction , [ or ]", "ORG on account of a breach of procedural rules , in that", "( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or", "( b ) the facts require further investigation on an important point , or", "( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . \"", "ORG If ORG quashes the impugned decision , \" the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) \" ( section CARDINAL(CARDINAL ) ) .", "ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :", "\" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW article CARDINAL ) of the LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . \"", "ORG Pursuant to LAW , administrative courts called \" independent administrative tribunals \" ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .", "ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :", "\" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . \"" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in LOC ( GPE ) .", "On DATE the applicant 's son was murdered by a criminal ( PERSON ) who had just robbed a bank with CARDINAL accomplices ( PERSON and PERSON ) . After leaving the bank the CARDINAL robbers had failed to find the fourth accomplice ( GPE ) , who was supposed to be waiting for them with the getaway car . They had therefore made off on foot with the police in pursuit . Their path had then crossed a car being driven by A.Mastromatteo , the applicant 's son . They had attempted to take control of the car , but it would appear that A.Mastromatteo had tried to get away from his attackers by accelerating , whereupon ORG had shot him at point - blank range . He died TIME .", "NORP The CARDINAL criminals were subsequently identified and charged . CARDINAL of them ( GPE , GPE and PERSON ) were serving prison sentences at the material time , whereas the fourth accomplice , PERSON , was free .", "From the documents in the case file it is possible to reconstruct the case history of the criminals , particularly that of GPE and GPE , both of whom were responsible for the applicant 's son 's death .", "M.R. , who fired the fatal shot , was serving a prison sentence of DATE and DATE for attempted murder , armed robbery and other offences . He was due to be released on DATE and was serving his prison sentence in PERSON . When it convicted PERSON on DATE , ORG had considered him to be a danger to society .", "In a decision of CARDINAL DATE the ORG judge responsible for the execution of sentences granted PERSON prison leave from TIME on DATE to TIME on DATE with the condition that he remain at his home in Monza ( near GPE ) .", "It was the first time that GPE had been granted prison leave . The case file shows that the judge responsible for the execution of sentences relied on the reports by the prison authorities concerned stating that they were satisfied with PERSON 's behaviour , rehabilitation and willingness to reintegrate .", "NORP The decision granting prison leave was communicated to the appropriate police authorities .", "The information provided by Monza Police Station shows that GPE had reported to the police station at TIME on DATE . In a note drawn up on DATE the police station stated that at the time no anomaly had been recorded during ORG 's prison leave .", "On the expiry of ORG 's prison leave on DATE , he failed to return to ORG and could not be found .", "On DATE Alessandria Prison informed FAC that M.R. had not returned and that he should therefore be considered to have absconded .", "A “ wanted ” notice was drawn up and circulated throughout the country by means of the police national computer system . The notice has not been kept in the police files .", "G.M. was serving a DATE prison sentence imposed on DATE for aiding and abetting armed robbery and other offences .", "Since DATE he had been subject to a semi - custodial regime , which is an alternative measure to imprisonment , pursuant to a decision of the GPE court responsible for the execution of sentences . PERSON worked in GPE and returned to the city prison in DATE .", "In granting him that alternative regime to imprisonment , the court had relied on the reports by the prison authorities stating that ORG had been of good behaviour and showed a willingness to reintegrate and that nothing untoward had occurred during his previous periods of prison leave . Furthermore , on CARDINAL DATE ORG had given a favourable opinion of the work which ORG would be undertaking .", "The following obligations were attached to the semi - custodial regime :", "( a ) leave the prison after TIME ( subsequently TIME ) and return by CARDINAL p.m. at the latest ;", "( b ) not quit the authorised job without giving notice ;", "( c ) not spend money without permission ;", "( d ) use public transport ;", "( e ) avoid excessive consumption of alcohol ; and", "( f ) spend bank holidays with his family and remain in the GPE area .", "That decision was sent , inter alia , to ORG of GPE , which was the authority responsible for implementing supervisory measures . That authority carried out CARDINAL inspection , at the prisoner 's home and his place of work , during the period of DATE which elapsed DATE on which the semi - custodial measure was granted and the date on which ORG absconded .", "No supervisory measure was envisaged by the police authorities .", "G.M. 's criminal record shows that on DATE , which was DATE before the applicant 's son was murdered , he had committed a handling offence . He was convicted of that offence in DATE in a judgment which became final on DATE .", "A.C. was serving a prison sentence for armed robbery committed jointly with ORG His criminal record shows that he had a previous conviction for murder . He was in prison in ORG .", "In a decision of CARDINAL DATE the ORG judge responsible for the execution of sentences granted him prison leave from CARDINAL to CARDINAL DATE . The judge responsible for the execution of sentences , relying on the reports by the prison authorities concerned , had been satisfied with ORG 's behaviour in prison . The report prepared by the prison workers responsible for monitoring ORG had stressed his good behaviour during his previous periods of prison leave .", "While on prison leave ORG was subject to a number of constraints : he had to report to the police station DATE ; stay at home from TIME ; and not leave the district of PERSON ( GPE ) .", "The decision granting him prison leave was communicated to the appropriate police authorities . The file shows that ORG reported to the police station DATE to sign the register .", "On DATE , when his prison leave expired , ORG did not return to the prison and was deemed to have absconded . On DATE Alessandria Prison informed FAC that GPE had not returned and that he should therefore be considered to have absconded .", "A “ wanted ” notice was drawn up and circulated to the various police forces throughout the country .", "G.B. , the fourth accomplice , was not in prison at the material time . His criminal record shows a number of convictions for armed robbery and other offences .", "The CARDINAL offenders were subsequently identified and charged .", "Of the CARDINAL prisoners , only GPE and PERSON were convicted of the murder of the applicant 's son , aided and abetted by PERSON , and given long sentences .", "The third prisoner , GPE , who was to have been the driver , was convicted only of armed bank robbery .", "The applicant lodged an application to join the criminal proceedings against the offenders as a civil party . The defendants were ordered to pay the civil parties damages in an amount to be determined by the civil courts ; the criminal courts awarded the applicant MONEY ( ITL ) , however , as a down payment to be made immediately .", "The applicant did not state whether the down payment of ORG CARDINAL had been paid to him or whether , failing payment , he had taken steps to attempt to obtain the money .", "In any event the applicant has not sued the criminals for damages in the civil courts . He submitted that they would not in any case have been solvent .", "On DATE the applicant lodged a claim with ORG and ORG for compensation under Act no . CARDINAL of DATE , which provides for compensation for victims of terrorism and mafia - type criminal organisations .", "In support of his claim , the applicant alleged that his son had been murdered by criminals who were serving prison sentences and that they were members of a “ gang ” whose criminal activities fell into the category of organised crime .", "The applicant stated that the Minister for ORG had advised him , at a meeting , not to bring legal proceedings against the ORG .", "On DATE the committee responsible for examining the applicant 's claim ordered a further inquiry with a view to establishing whether or not the criminals responsible for the death of the applicant 's son could be deemed to be members of a “ criminal organisation ” , which would have rendered applicable the statutory provisions on which the applicant relied .", "The committee attached some weight to a report drawn up by the Prefect ( Prefetto ) of GPE stating that the bank robbery which had culminated in the murder of the applicant 's son was not an isolated episode , but the workings of a criminal organisation operating in the area .", "However , on DATE , on the basis of the results of the further inquiry , the above - mentioned committee ruled out the possibility that PERSON murder could be deemed to be the workings of a criminal organisation .", "Relying on that negative opinion , ORG rejected the applicant 's claim for compensation .", "On DATE the applicant lodged a special appeal with the President of the Republic against the decision of ORG .", "On DATE the Consiglio di Stato expressed the opinion that the appeal should be dismissed because the instant case did not involve terrorist acts or acts of a mafia - type criminal organisation within the meaning of Article CARDINALbis of the Criminal Code .", "On DATE the President of the Republic dismissed the appeal .", "Act no . CARDINAL of DATE ( known as the “ LAW ” after its sponsor ) modified LAW ( Act no . CARDINAL of CARDINAL DATE ) in order to facilitate the return to the community of convicted prisoners .", "Section CARDINALter ( CARDINAL) of FAC provides that a prisoner may be granted prison leave on condition that he has behaved well in prison and is not a danger to society . According to the seriousness of the offences , the prisoner must have served an unsuspended period of his sentence before he or she can be deemed eligible for prison leave .", "It is left to the judge responsible for the execution of sentences , who must consult the prison authorities , to determine whether or not the prisoner is a danger to society .", "According to a circular of ORG dated DATE on the application of the Gozzini Act , which reproduced CARDINAL notes of CARDINAL DATE and CARDINAL DATE , a measure facilitating reintegration could not be granted merely because no disciplinary penalties had been imposed ; it also had to be established that the prisoner was genuinely willing to participate in the reintegration and rehabilitation programme . Furthermore , the assessment of whether the prisoner was a danger to society had to be based not only on the information provided by the prison workers , but also on the information available from the police where the judge , in his discretion , deemed such clarification necessary .", "Legislative Decree no . CARDINAL of DATE , which became Act no . CARDINAL of CARDINAL DATE , introduced more stringent conditions in respect of offences committed by a criminal organisation .", "The statute in question has ruled out , inter alia , the possibility of granting prison leave or other alternative measures to imprisonment where particularly serious offences ( for example , mafia - type association ) are concerned , unless the prisoner co - operates with the judicial authorities .", "Where a prisoner convicted of aggravated armed robbery is concerned ( LAW of LAW ) , LAW ( section CARDINALbis of FAC ) provides that no measure facilitating reintegration can be ordered if there is evidence of a link between the prisoner and organised crime .", "The judge responsible for the execution of sentences must request information from the police ; he shall in any event make a decision within DATE of requesting the information .", "A semi - custodial regime is an alternative measure to imprisonment ( section CARDINAL of FAC ) which allows the prisoner to spend part of DATE outside the prison working or undertaking other activities which will facilitate his or her return to the community . The prisoner does not wear the prison uniform .", "Under section CARDINAL of the Prison Act a semi - custodial regime can be granted after an unsuspended period of imprisonment has been served , the length of which will vary according to the seriousness of the offence , and if the prisoner 's behaviour has improved and the conditions for his or her progressive return to the community are met .", "That measure may be granted by the court responsible for the execution of sentences . A programme is then drawn up by the governor of the prison concerned .", "The statistics provided by the Government for DATE show that", "( a ) the percentage of prisoners on prison leave who have taken advantage of that measure to abscond has never exceeded PERCENT ;", "( b ) the percentage of prisoners subject to the semi - custodial regime who have taken advantage of it to abscond has been below PERCENT ; and", "( c ) the percentage of prisoners having committed an offence while subject to the semi - custodial regime and , accordingly , having been deprived of the alternative measure was PERCENT in DATE , PERCENT in DATE and PERCENT in DATE .", "Act no . CARDINAL of CARDINAL governs civil proceedings against judges . Section CARDINAL ) of that statute provides that proceedings can be brought against a judge if he or she has – intentionally or by an act of gross negligence – taken an inappropriate measure in the exercise of his or her duties .", "Article DATE of the Civil Code sets forth the principle of neminem laedere , which is a general duty not to harm others . Anyone who alleges that he has sustained damage in breach of that principle may bring an action for damages .", "Act no . CARDINAL of DATE makes provision for state compensation for victims of terrorism and mafia - type criminal associations ." ]

[]

[]

[]

[ "2" ]

[]

[]

[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .", "On DATE , ORG ( the applicant ’s neighbour ) lodged a claim for payment against the applicant with ORG ( Sąd Rejonowy ) .", "On DATE the court held a hearing and ordered the plaintiff to submit a copy of the statement of claim .", "On DATE the court stayed the proceedings as the plaintiff failed to comply with its order .", "Subsequently , on CARDINAL DATE , ORG husband ORG sued the applicant before ORG seeking payment .", "On DATE and CARDINAL DATE the court held hearings .", "At the hearing held on DATE the court heard evidence from CARDINAL witness . On DATE the court held a hearing and heard evidence from PERSON", "On DATE the court resumed the proceedings stayed on DATE . Later , on an unknown date it also decided to join both cases .", "On DATE the court summoned the housing co - operative - “ ORG ” - to join the proceedings .", "On DATE the court held a hearing and heard evidence from CARDINAL witness .", "On DATE the applicant challenged the impartiality of the presiding judge . On DATE the court dismissed her challenge .", "On DATE the court ordered that expert evidence be obtained . On DATE an expert submitted his report to the court .", "At the hearing held on DATE the plaintiffs withdrew their statement of claim with respect to the applicant . On the same date the court discontinued the proceedings against the applicant ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , GPE .", "In DATE the applicant left GPE as he had been invited to work as a coach for the national free - style wrestling team of GPE .", "On DATE ORG of Belarus instituted criminal proceedings against the applicant for aiding and abetting bribery ( maximum sentence of DATE imprisonment ) . Since his whereabouts were unknown , a warrant for his arrest was issued .", "On DATE ORG received a request from ORG of Belarus to assist in arresting the applicant .", "On DATE ORG of Belarus charged the applicant with participation in organised crime , abuse of authority , aiding and abetting bribery and other offences ( maximum penalty of DATE imprisonment ) .", "On DATE the applicant was arrested in GPE , GPE .", "On DATE ORG of GPE authorised the applicant 's detention pending a decision on his extradition .", "On DATE ORG of Belarus requested the applicant 's extradition to GPE .", "On DATE ORG changed the decision of DATE further to an appeal by the applicant and authorised his detention for a maximum of DATE pending receipt of the request for his extradition .", "On DATE ORG of GPE authorised the applicant 's continued detention . This decision was upheld on DATE by ORG .", "NORP By letter of CARDINAL DATE ORG stated that , if extradited , the applicant would not be subjected to the death penalty or to any treatment contrary to LAW ; that he would be provided with the necessary medical treatment ; that he would be given a fair trial ; and that he would not be persecuted for his political beliefs .", "On DATE ORG of Ukraine ( “ the ORG ” ) authorised the applicant 's extradition to GPE . On DATE the decision was sent to the applicant . The applicant was also informed that this decision could be contested by him in court within DATE of its receipt .", "On DATE , under Rule CARDINAL of ORG , the President of ORG invited the Government of GPE not to extradite the applicant to GPE .", "The applicant received the decision of CARDINAL DATE on DATE , but did not challenge before in ORG until DATE .", "On DATE the applicant was granted refugee status in GPE by ORG .", "On DATE ORG rejected an appeal by the applicant 's lawyer against the court decisions of DATE and DATE since they had already been appealed against under the ordinary appeal procedure and the first - instance court was not competent to quash them . This decision was upheld on DATE by ORG .", "On DATE the ORG filed an objection with ORG against the decision granting the applicant refugee status . According to the applicant , execution of the relevant decision was suspended pending the ORG 's reply .", "On DATE ORG rejected a complaint by the applicant against the decision to extradite him . In particular , the court indicated that the applicant had not yet been granted refugee status when the contested decision had been taken on DATE . The applicant did not appeal .", "NORP By letter of CARDINAL DATE ORG informed the ORG that its objection to the decision of DATE had been rejected .", "On DATE the ORG challenged the decision of DATE in court .", "On DATE ORG rejected the ORG 's request to quash the decision of DATE .", "On DATE ORG upheld the decision of DATE .", "On DATE the ORG refused to extradite the applicant to GPE . On DATE the applicant was released .", "The relevant international and domestic law and practice are summarised in the judgments PERSON v. GPE ( no . CARDINAL , § § DATE and DATE , DATE ) and ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "5" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the public utility company ORG , basing its case on unpaid bills for water supply services , instituted enforcement proceedings against the applicant in ORG ( PERSON ) seeking payment of the debt .", "On DATE the ORG issued a writ of execution ( rješenje o ovrsi ) ordering the applicant to pay the amounts sought . However , since the applicant challenged the writ by objecting to it on DATE , the court set it aside . As a consequence , the enforcement proceedings were , pursuant to the relevant legislation , transformed into , and resumed as , regular civil proceedings .", "The applicant , who has a formal education as a lawyer but is not an advocate , represented himself in the proceedings .", "On DATE judge J.G.F. of ORG delivered a judgment ruling for the plaintiff .", "On DATE the applicant appealed against the firstinstance judgment . Section CARDINAL of LAW provides that an appeal to a second - instance court has to be lodged through a firstinstance court . Under section CARDINAL of the same Act the first - instance court conducts a preliminary examination of the appeal and may declare it inadmissible if it finds that it does not meet certain procedural requirements , for example if it finds that it was lodged outside the statutory time - limit . It is , however , not authorised to decide on the merits of the appeal . Therefore , the applicant submitted his appeal intended for ORG ( PERSON ) to ORG . In his appeal he wrote , inter alia :", "“ After DATE of waiting ... on DATE the second hearing was held , at which , in substance and without hearing [ the parties ] ( apart from stating that the parties were present and that they maintained their positions ) the impugned judgment was rendered .", "It is indicative to mention here that the judge , before dictating the operative provisions of the judgment , asked the defendant whether ‘ he would pay ORG to which the defendant replied ‘ where did you get that idea?’ [ ‘ PERSON na pamet ? ‘ ] and asked whether she had examined the case file .... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of GPE to the typist , using a funny expression [ navodeći komičan izraz ] that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed . Unfortunately , the court did not record these dialogues between the judge and the defendant in TIME . What judicial professionalism this is ! [ PERSON ovo sudačka profesionalnost ! ]", "It is evident from the above - mentioned that in these proceedings no hearing was held in accordance with the law , which amounts to breaches of LAW paragraph CARDINAL subparagraphs DATE and CARDINAL of LAW . Apart from this , from the contested judgment or the transcripts of the hearings it can not be discerned whether the court took any evidence ... for which reason the judgment could not be satisfactorily reasoned ...", "Instead of referring to the evidence taken and assessing its evidentiary value , the court immediately ... states on what basis it arrived at the contested findings , from which it is clear that it accepted all arguments of the plaintiff ... ”", "After it carried out the preliminary examination of the appeal , ORG forwarded it together with the case file to ORG .", "On DATE Judge PERSON at ORG delivered a judgment dismissing the applicant ’s appeal and upholding the first - instance judgment .", "On DATE the applicant lodged a constitutional complaint against the second - instance judgment . On DATE ORG ( Ustavni sud PERSON ) declared his constitutional complaint inadmissible . It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the LAW guaranteeing the right to a fair hearing and equality before the law , he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts . Therefore , ORG had been unable to examine the merits of his constitutional complaint .", "After it had completed the preliminary examination of the applicant ’s appeal of DATE in the above proceedings , on CARDINAL DATE Judge PERSON at ORG issued a decision whereby it fined the applicant CARDINAL NORP kunas ( HRK ) for contempt of court . The relevant part of the decision read as follows :", "“ I. The defendant PERSON from GPE ... is hereby fined CARDINAL [ NORP ] kunas because in his appeal of DATE he insulted the court by stating : ‘ It is indicative to mention here that the judge , before dictating the operative provisions of the judgment , asked the defendant whether ‘ he would pay ORG , to which the defendant replied ‘ where did you get that idea?’ and asked whether she had examined the case file .... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of GPE to the typist , using a funny expression that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed . Unfortunately , the court did not record these dialogues between the judge and the defendant in TIME . What judicial professionalism this is!’", "...", "In the appeal of DATE the defendant , insulted the court by , inter alia , [ using ] the words quoted in the operative provisions of this decision .", "It would follow from the quoted text that during the main hearing the court communicated with the parties in an improper way , that the judge behaved improperly and that she does not know the law . All this constitutes contempt of court and the statements quoted exceed the limits of necessary respect for the court , even attempting to call into question the knowledge and expertise of the judge at issue , which is an impermissible way for the parties to communicate with the court because it represents a direct insult to the judge as a person , implying that she is ignorant and incompetent to exercise the duty of a judge .", "When imposing the fine the court took into account the fact that the defendant insulted not only the court as an institution , but also the judge as a person , on account of which he had to be fined pursuant to section CARDINAL taken in conjunction with section CARDINAL of the [ LAW ] . ”", "On DATE the applicant lodged an appeal against that decision arguing , inter alia , that his statements had been arbitrarily interpreted by the first - instance court , that they had not been insulting , and that he had not had any intention of insulting anyone .", "By a decision of DATE Judge PERSON at ORG dismissed the applicant ’s appeal and upheld the first - instance decision . The relevant part of that decision read as follows :", "“ In this court ’s view , the finding of the first - instance court that in his appeal the defendant insulted the court by making the above statements is correct ... It is to be noted that by the statements made in the appeal the defendant demonstrated disrespect for the court , which undoubtedly represents an improper way for the parties to communicate with the court , and exceeds the limits of a civilised and fair relationship with the court as an institution of a society . ”", "On DATE the applicant lodged a constitutional complaint against the second - instance decision . On DATE ORG declared his constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review .", "On DATE ORG of its own motion issued a writ of execution by garnishment of a part of the applicant ’s pension with a view to collecting the above fine . The applicant appealed and the proceedings are currently pending before ORG .", "The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :", "“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional government , or a legal person invested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or the right to local or regional government , guaranteed by LAW ( ‘ constitutional right’ ) ...", "NORP If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .", "NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] is available , remedies shall be considered exhausted only after a decision on these legal remedies has been given . ”", "The relevant part of the DATE LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , ORG and CARDINAL/CARDINAL and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL and CARDINAL DATE “ LAW ” ) , as in force at the relevant time , read as follows :", "“ CARDINAL . ...", "Unless otherwise provided by this LAW , the court shall fine a natural person CARDINAL ] kunas , or a legal entity CARDINAL ] kunas , if they commit a serious abuse of the rights they have in the proceedings .", "The fine referred to in paragraph ( CARDINAL ) of this section may be imposed on a party and an intervener , as well as on their representative if he or she is responsible for the abuse of rights .", "The fine shall be imposed by the first - instance court . Outside the main hearing the fine shall be imposed by a single judge or the presiding judge .", "NORP ...", "...", "The imposed fine shall be collected automatically [ ex officio ] as a pecuniary debt in accordance with the rules of enforcement procedure . ”", "“ CARDINAL . The first - instance court shall fine a natural person MONEY , or a legal person CARDINAL [ NORP ] kunas , if in his , her or its submission they have insulted the court , a party or other participant in the proceedings . The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court .", "Provisions of section CARDINAL of this Act shall apply mutatis mutandis to cases referred to in paragraph ( CARDINAL ) of this section .", "Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this LAW , unless otherwise expressly provided for particular cases . ”", "The DATE Amendments to the DATE LAW ( Zakon o izmjenama i dopunama PERSON o parničnom postupku , Official Gazette no . CARDINAL and GPE ( corrigendum ) , which entered into force on DATE , amended , inter alia , paragraph CARDINAL and added CARDINAL new paragraphs ( CARDINAL to CARDINAL ) to section CARDINAL of the DATE LAW . The relevant part of the amended section CARDINAL reads as follows :", "“ ( CARDINAL ) If the person fined ... does not pay the fine within the fixed time - limit ... the court shall ... inform the [ Tax Administration ] of the unpaid fine with a view to collecting the fine [ through tax enforcement proceedings ] ...", "...", "( CARDINAL ) ... If within DATE of service of ... a decision referred to in paragraph CARDINAL of this section [ ORG ] does not succeed in collecting the fine , [ it ] shall inform ... the court [ thereof ] , whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences , on which the court that imposed the fine shall issue a decision .... ”", "Section CARDINAL(CARDINAL ) of the DATE Amendments provided that they were applicable to all pending proceedings unless otherwise provided in that section .", "Article CARDINAL ) of LAW ( PERSON , ORG no . CARDINAL with subsequent amendments ) reads as follows :", "“ A fine shall be converted into a prison sentence so that one [ average ] DATE income is converted into DATE of imprisonment , where the maximum duration of imprisonment into which the fine was converted shall not exceed DATE . ”", "According to the practice of domestic courts , before taking a decision to convert the fine into a prison sentence a court has to summon and hear the person fined . An appeal always lies against such a decision ." ]

[]

[]

[]

[ "10" ]

[]

[]

[ "The applicant was born in DATE and lives in ORG .", "On DATE ORG issued a payment order under which the applicant was obliged to pay the equivalent of MONEY to the plaintiff .", "On DATE the applicant , through his lawyer , filed an objection to the order . The lawyer sent the objection to ORG by registered mail . He submitted a copy of a postal certificate according to which he had deposited the mail for despatch to ORG in PERSON at the post office on DATE . The mail had registration number R CARDINAL . The certificate , in which the addressee was indicated by the sender , did not mention the contents of the mail .", "On DATE ORG dismissed the applicant ’s objection to the payment order . The decision stated that the order had been served on DATE and that the time - limit for challenging it by means of an objection had expired on DATE . The court held that the applicant had filed the objection on DATE the date appearing on the stamp of ORG – which was out of time .", "On DATE the applicant appealed . With reference to Article CARDINAL(CARDINAL ) of the Code of Civil Procedure he argued that by depositing the remedy as registered mail at the post office on DATE he had respected the statutory time - limit . He submitted a copy of the postal certificate R CARDINAL .", "On DATE ORG judge heard the applicant and his lawyer . The lawyer stated that the registered mail R CARDINAL was the only mail which he had deposited in person at the post office in ORG on DATE .", "On DATE the judge heard an employee of ORG in charge of incoming mail . The employee , after having consulted the file , confirmed that the document in question had been stamped and signed by her and that she had received it in person . She further stated that , in accordance with constant practice , the court ’s registry would attach the envelope to the letter in case of its delivery by post and that this fact would be mentioned on the document . The employee also pointed out that the applicant ’s lawyer used to bring most of his documents to the court in person but admitted that he sometimes also sent submissions by post . In reply to a question by the lawyer the employee stated that it was impossible to determine the contents of the registered mail R CARDINAL addressed to the court and to whom it had been submitted .", "On DATE ORG upheld ORG decision of DATE . With reference to ORG stamp of DATE on the relevant document and to the above statement of the employee of ORG , ORG established that the remedy had been filed out of time . Since the postal certificate did not indicate the contents of registered mail R CARDINAL , the applicant had not reliably shown that he had deposited the relevant document at the post office on DATE .", "On DATE the applicant filed an appeal on points of law . He argued that the employee of ORG could have committed an error when registering the document and that the mail register of ORG did not indicate the contents of registered mail R CARDINAL and to whom it had been transferred . He argued that it had not been reliably shown that the document had been deposited in person as the lower courts had found .", "On DATE ORG rejected the appeal on points of law . ORG held that ORG stamp on the document challenging the payment order indicated that the document had arrived at FAC on DATE . According to a handwritten remark which the employee of ORG in charge of incoming mail had made on it , the document had been submitted to the court ’s registry in person . These facts , taken together with the statement of the employee before ORG judge , showed that the remedy had been filed belatedly . The applicant had not proved beyond any doubt that the registered mail R CARDINAL deposited at the post on DATE had actually contained his objection to the payment order .", "Under Article CARDINAL(CARDINAL ) of the Code of Civil Procedure , a time - limit fixed in the context of judicial proceedings is respected when the action to be taken is effected at a court or where a submission is transmitted , on DATE on which the time - limit is to expire , to a body which is under an obligation to deliver it to the addressee .", "In accordance with established practice , a timelimit is deemed to be respected where a document is deposited , before DATE on which the time - limit expires , at a post office for the purpose of its delivery to the addressee through postal services .", "In a judgment given in DATE ORG of the Slovak Socialist Republic held that the date indicated on the postal certificate issued to the sender of registered mail and not the date on the envelope of such mail was relevant when considering whether an appeal was filed in time . ORG expressed the view that a court could dismiss an appeal as having been filed belatedly only where it had reliable reasons for such a conclusion . In particular , it had to establish when , where and how an appeal was actually filed ( ORG Collection , CARDINAL , p. CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , Mr Denys Oleksandrovych Plyatsevyy , is a NORP national who was born in DATE and lives in LOC . He is represented before the ORG by Mr I.A. Melnyk , a lawyer practising in LOC . The respondent Government are represented by their agent , Mr Y. GPE .", "In DATE Mr PERSON complained to the police that the applicant had taken MONEY from GPE , his minor son , as well as giving GPE some forged dollar bills . On DATE criminal proceedings were instituted against the applicant .", "In DATE the police also received complaints from other minors , who alleged that on various occasions the applicant had extorted from them or robbed them of petty cash and various objects , such as an ice - cream cone or a school bag . Having found out about these complaints , the applicant ’s mother , cousin , and , according to contested accounts of some minors , his advocate , visited the ORG families . On several occasions the applicant ’s mother returned to the families the amounts of money claimed to have been stolen by the applicant . According to some records , she also returned the stolen school bag to ORG , CARDINAL of the minors . According to other records , she gave ORG a bag which simply resembled his .", "Following these visits , in DATE S.S. , CARDINAL of the complainants , as well as parents of CARDINAL other complainants ( ORG , ORG and GPE ) informed the police that their complaints against the applicant had been written under duress on behalf of the police officers .", "In spite of these submissions , on CARDINAL DATE new charges of extortion and robbery were brought against the applicant . In DATE the applicant was further charged with hooliganism . In particular , he was accused that in DATE jointly with ORG he had beaten ORG in a public place .", "During the pre - trial investigation , CARDINAL minors , including those whose parents had attempted to retract their complaints in DATE , testified that the applicant had extorted from them or robbed them of their money and possessions .", "On DATE the applicant and ORG were committed to LOC ( ORG міськрайонний суд ORG області , “ the ORG ” ) for trial .", "On DATE ORG allowed the requests submitted by minors FAC , GPE , GPE and the parents of GPE , GPE , ORG and ORG to hold hearings in camera , in view of pressure purportedly exerted on them by the applicant ’s entourage to retract their allegations .", "In the course of the hearings , ORG questioned PERSON and his father , who confirmed their earlier testimonies that the applicant had taken MONEY from GPE and given him some forged bills .", "CARDINAL other minors ( ORG , GPE , ORG , ORG and GPE ) confirmed their testimonies given to the police concerning petty extortion and robbery . ORG , GPE and ORG corroborated each other ’s statements concerning some of the episodes . The parents of GPE , ORG and GPE corroborated the statements of their children and explained that the children had earlier complained to them on several occasions about the applicant ’s conduct . The mother of ORG , the seventh minor , who was absent from the courtroom , spoke before the court in support of her son ’s testimony given to the police concerning the theft of a school bag and several episodes of petty extortion . Those individuals who had earlier attempted to retract their accusations against the applicant contended before the court that they had done so under pressure from the applicant ’s entourage .", "The judge further announced that another CARDINAL minors , who had been questioned by the investigation under pseudonyms , had lodged requests to be dispensed from attendance at the hearings for fear of reprisals by the applicant ’s entourage and that in these requests they had confirmed their earlier statements given to the police . The judge then read out the depositions given before the police by these minors , and other documentary evidence . According to the case file materials , the applicant , represented by the lawyer , did not question or challenge these testimonies before FAC .", "Further , the ORG heard GPE ( the applicant ’s co - accused on the charge of hooliganism ) and CARDINAL other witnesses , who gave details predominantly concerning the beating of GPE and GPE ’s character .", "On DATE ORG found that the applicant was guilty of CARDINAL counts of robbery and CARDINAL counts of extortion in respect of the injured parties who had been examined in the courtroom . It further found that the applicant was guilty of CARDINAL counts of robbery and CARDINAL counts of extortion in respect of the victims whose identities had been concealed . The court finally designated the applicant ’s actions as repeated robbery and extortion and sentenced him to CARDINAL GPE imprisonment for each of the offences . The court further found it unnecessary to add up the CARDINAL full terms and determined the final punishment as DATE imprisonment . However , in view of the applicant ’s age , other personal circumstances and the nature of his offences , the applicant was released from punishment subject to CARDINAL years’ probation .", "The applicant , represented by a lawyer , appealed , seeking to be acquitted . He pleaded that the case had been falsified by the police in retaliation for his mother ’s complaints that he had been beaten during the first questioning , in DATE . Hence the victims who gave evidence against the applicant at the trial had done so under threats from the police to institute proceedings against them for their own transgressions , as they were all on the police juvenile offenders’ register . The episodes in respect of the anonymous victims had been completely falsified . Moreover , the testimony of GPE , one of these alleged victims , was improbable , as on the date of the purported offence the applicant had not attended the school in which he had allegedly committed it . No specific challenge was raised to the accounts of events contained in the testimonies of other absentee victims . The applicant further challenged various details of the testimonies obtained during the hearings as unreliable . Lastly , he complained that the hearings had been held in camera .", "On DATE the ORG ( GPE суд ORG області ) upheld the judgment of DATE , having found no violation , in that the hearing had been held in camera and that the case file materials contained sufficient evidence to find the applicant guilty of repeated extortion and robbery of minors .", "The applicant appealed in cassation before ORG of GPE , raising essentially the same arguments as before ORG .", "On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .", "On DATE the applicant and his mother instituted civil proceedings against the Kamyanets - Podilsky Police Department , seeking monetary compensation for the pecuniary and non - pecuniary damage allegedly suffered as a result of their unlawful actions when investigating the applicant ’s case . On DATE ORG rejected the applicant ’s claim . The applicant appealed . On DATE his appeal was dismissed by ORG .", "On DATE the applicant was taken by police officers to the police department , where he was questioned in connection with the case above . The applicant was allegedly put under pressure , threatened and beaten to make him confess ; and he was released from the police only upon the arrival of his mother some TIME after his apprehension .", "On DATE the applicant was examined by a court medical expert at his request . No injuries were recorded . According to the applicant , the expert refused to record injuries .", "On DATE the applicant was examined by a doctor , who established that he was suffering from cerebral concussion , injury to the left kidney and hepatitis . It was only then that the applicant told his mother that he had been beaten by the police officers .", "On DATE the applicant ’s mother lodged a criminal complaint against the police officers for the alleged ill - treatment of her son .", "On DATE the Kamyanets - Podilsky Prosecutor ’s Office decided not to bring any charges against the police officers . It found , inter alia , that there was no evidence that the officers had committed the alleged offences , other than the applicant ’s own allegations . Furthermore , regard being had to the lapse of time between the interrogation and the date on which the injuries were discovered by doctors , the injuries could have been sustained elsewhere .", "On DATE the ORG annulled this decision and ordered the applicant to undergo an additional medical assessment and additional measures to be taken to find possible witnesses .", "On DATE the applicant ’s mother withdrew her complaint . She explained that she had lodged it because she had been upset about the initiation of criminal proceedings against her son .", "On DATE the Kamyanets - Podilsky Prosecutor ’s Office terminated the inquiry into the incident as a result of the applicant ’s mother ’s request .", "On DATE the ORG annulled this decision , having found that not all measures ordered in its previous decision had been carried out .", "On DATE the applicant was examined by a medical expert . He found that the applicant had no injuries at the time of the assessment . As regards the injuries recorded at DATE , it was not possible to determine whether the applicant ’s version of events was probable , on account of the lapse of time between the purported ill - treatment and his first application to a doctor and the further lapse of time before the present assessment .", "In light of the above , on DATE PERSON Prosecutor ’s Office dismissed the applicant ’s mother ’s request for the institution of criminal proceedings .", "According to Section CARDINAL , repeated robbery is punishable by DATE imprisonment .", "According to Section CARDINAL , repeated extortion is punishable by DATE imprisonment .", "According to LAW , an injured party in the criminal proceedings may request security measures to prevent a real threat of harm to his life , limb or property . If this request is granted , according to Section CARDINAL , the injured party ’s personal data may be replaced by a pseudonym in all procedural documents .", "According to Section CARDINAL , in exceptional circumstances the court may absolve an injured party , in whose respect security measures have been indicated , from the duty to appear for the hearings , if he submits a written statement that he confirms his earlier depositions .", "According to Sections CARDINAL and CARDINAL , the parties may request cross - examination of a witness or an injured party who is absent from the courtroom for safety reasons , via a teleconference . To reduce the risk of identification of the voice of the witness ( the injured party ) , acoustic distortion may be created . If it is not possible to organise a teleconference , the court may examine the witness ( the injured party ) in the absence of the defendant . The judge in this event is obliged to disclose his testimony to the defendant and to give him an opportunity to comment on it . The defendant and other parties to the proceedings may ask questions of the witness ( injured party ) , which are answered in the absence of the defendant .", "Further relevant provisions of the LAW concerning the rights of defence in respect of examination of witnesses can be found in the admissibility decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant lodged an action for damages against the ORG , represented by ORG , with the Prague CARDINAL ORG ( obvodní soud ) , seeking payment of the sum of CARDINAL CZK ( CARDINAL ORG ) . The court transferred the case to ORG ( okresní soud ) .", "On DATE ORG ( krajský soud ) decided to disqualify all the judges of ORG and , at the same time , referred the case to ORG ( městský soud ) .", "It appears that the proceedings are still pending .", "The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is the mother of PERSON who , on DATE , at DATE , died from asphyxia caused by self - suspension whilst serving a sentence of CARDINAL months’ imprisonment at FAC .", "The immediate circumstances surrounding PERSON death are inevitably obscure , since he took his life while alone . For the rest , the parties have in the main accepted the facts as established by the ORG and these are reproduced below in Section A. The medical reports concerning PERSON state of health prior to his death are summarised in Section B.", "From DATE , PERSON received intermittent treatment in the form of anti - psychotic medication for a condition which it appears was first diagnosed whilst he was serving a DATE prison sentence for assault . It appears to have been reported by PERSON that he was diagnosed as suffering from paranoid schizophrenia . Following his release from prison in DATE , PERSON general practitioner continued the prescription of anti - psychotic medication .", "His medical history included symptoms of paranoia , aggression , violence and deliberate self - harm , and his behaviour was sometimes unpredictable . In DATE , shortly before he was admitted to prison , he had received treatment at FAC following CARDINAL incidents in which he had injected himself with overdoses of insulin . Following the first incident , on DATE , it was noted that he was complaining of paranoia . Diagnoses of borderline personality disorder and paranoid schizophrenia were made and it was noted that he had a history of frequent episodes of deliberate self - harm . He was discharged after DATE on a prescription of anti - psychotic medication . The second incident , on DATE , was associated with the breakdown in his relationship with his girlfriend . The admission notes recorded as diagnoses “ Personality disorder . Paranoid psychosis . Suicide threats ” . He discharged himself on DATE .", "On DATE he was admitted to FAC , having been remanded in custody following an assault on his girlfriend . On admission , he was received by the prison ’s health care centre for observation and assessment , having mentioned a history of suffering from paranoid schizophrenia .", "On DATE , when the medical notes recorded that there had been no evidence of schizophrenia DATE , an attempt was made to transfer him from the health care centre to ordinary location . DATE he was re - admitted to the health care centre because he had been kicking at his cell door and appeared paranoid to prison staff . The explanation provided by PERSON was that he had taken some cannabis which had “ tripped him out ” and made him paranoid , shaky and tense . Subsequently , on DATE , he was discharged to ordinary location having been assessed as fine , with no psychiatric symptoms , cheerful and coping . By the evening , he was complaining that he was “ cracking up ” . He was advised to “ calm down and think positively about going to court DATE ” . In the event , on DATE , he was released on bail .", "PERSON was re - admitted to FAC GPE on DATE , having been convicted of the assault on his girlfriend and sentenced to CARDINAL months’ imprisonment . He was again received by the prison ’s health care centre for observation and assessment . On DATE PERSON , the prison ’s senior medical officer , consulted PERSON , the consultant psychiatrist who had been treating PERSON before his admission to prison . PERSON advised that PERSON had a personality disorder with anti - social traits and that under stress he disclosed some fleeting paranoid symptoms . PERSON concurred with the medication which Dr PERSON had prescribed ( thioridazine ) and suggested a clopixol injection with chlorpromazine . He also advised that PERSON should be treated symptomatically .", "On DATE PERSON barricaded himself inside the ward room of the health care centre in protest against his proposed transfer to ordinary location . On DATE , following an adjudication concerning the incident , the governor imposed a suspended punishment of CARDINAL ORG extra imprisonment . On DATE he was discharged to ordinary location but re - admitted to the health care centre the following evening after his cell - mate reported that he was uptight and had fashioned a noose from a bed sheet which he was keeping under his bed . On his return to the health care centre , he was placed in an unfurnished cell and put on a TIME watch . The entry in his medical notes for DATE records :", "“ Brought to ORG at TIME ... states he will hang himself . A noose has been made out of strips of sheets . In conversation with PERSON , [ says ] he is under pressure from kitchen workers who have stated they will contaminate his food etc . The look of relief on his face was great when I told him he will have to stay here . ”", "A subsequent entry , on DATE , records “ owes on wing hence ca n’t cope [ with ordinary location ] ” .", "On DATE it was decided that PERSON should be assessed by the prison ’s visiting psychiatrist , PERSON . On DATE , before he had been assessed , a further attempt was made to transfer him to ordinary location . He was re - admitted to the health care centre the following day . The entry in his medical notes for DATE records :", "“ Brought to treatment room shaking and hyperventilating . Declined any further medication . Unable to cope . Admitted to health care centre for observation and assessment . Seen at TIME . He says he felt panicky and paranoid in main prison . He felt he was going to be attacked . He felt he might have to defend himself . Located in single cell on lower landing . ”", "On DATE PERSON was assessed by ORG , who did not consider that it was currently necessary to transfer him to a hospital for psychiatric treatment , but prescribed a change in his medication , and recorded in his medical notes :", "“ He is an old patient of mine who suffers from a mild , chronic psychosis . He is not usually violent , although he is easily stressed and then can be unpredictable . ”", "He also recommended that PERSON should have no association until the panic / paranoia subsided .", "On DATE the question of moving PERSON to ordinary location was again raised with him . The entry in his medical notes for CARDINAL DATE records :", "“ He does not feel fit for [ ordinary location ] as he is afraid he might be injured , further mention of paranoia by him . To remain in a single cell . ”", "In the course of DATE his mental state was noted to deteriorate , with evidence of aggression and paranoia . PERSON , who had no psychiatric training , considered that the change in medication might be responsible and therefore prescribed a return to his previous medication . At TIME PERSON assaulted CARDINAL hospital officers , CARDINAL seriously . Following the assault , he was placed in an unfurnished cell within the health care centre and put on a TIME watch . It is not known how long the watch was kept in place .", "On DATE PERSON , who had CARDINAL months’ training in psychiatry as a senior house officer , certified PERSON fit for adjudication in respect of the assault and fit for placement in the segregation unit within the prison ’s punishment block . He recorded in PERSON medical notes for CARDINAL DATE :", "“ Calm and rational . No sign of mental illness . Slept well , feels relaxed . Claims he was frustrated DATE and this is why he attacked the officer . Fit for normal cellular confinement in punishment block . ”", "DATE , PERSON , the prison ’s deputy governor , ordered PERSON to be placed in segregation in the punishment block under Prison Rule CARDINAL . PERSON considered segregation appropriate , as PERSON behaviour was unpredictable and he posed a threat to staff . No date appears to have been given for his release from segregation .", "Whilst in segregation , PERSON would have been locked up TIME each day . Although the segregation unit was visited DATE by a doctor , the prison chaplain and the prison governor , PERSON would , in contrast to location within the health care centre or the main prison , have had minimal contact with staff , and none with fellow prisoners .", "On DATE , following his transfer to the segregation unit , PERSON requested a “ listener ” ( a prisoner trained by the Samaritans in the counselling of inmates who may be suicidal ) . At TIME Mr Gill , CARDINAL of the prison ’s hospital officers , was contacted after PERSON had indicated to prison officers on the segregation unit that he was feeling suicidal . The medical notes record :", "“ Went to see [ PERSON ] . DATE raised [ ( a form completed for the referral of an inmate , perceived to be a suicide risk , to the medical officer ) ] . Listener in cell with inmate . Reassurances given that he is not suicidal but tense , agitated [ and ] needs to talk it over . Will get [ medical officer ] to see when he attends later . ”", "At TIME , however , PERSON was threatening to harm himself and was therefore transferred to an unfurnished cell in the hospital wing and put on a TIME watch . It remains unclear how long this watch was maintained .", "At TIME attempted to speak to PERSON through his cell door . Whilst noting that he appeared very agitated and distressed , and claimed to be hearing voices and thinking he was PERSON , PERSON doubted that he was suffering from any psychotic illness . PERSON medical notes record that he spent the greater part of the night banging on and kicking his cell door , shouting obscenities and making threats to prison staff . On CARDINAL DATE PERSON recorded in PERSON medical notes :", "“ TIME denying he is suicidal . Verbally abusive to staff . Some bruises from hitting door . This man is a considerable hazard to staff and has become obnoxious to other hospital inmates due to his behaviour . He is unpredictable and has made threats to his life . He has been placed on Rule CARDINAL . I have explained to him that his remaining in the [ unfurnished ] cell is in order to assess his attitude in TIME . I will increase chlorpromazine to CARDINAL mg ORG and resume PERSON and chloral nocte . He says he will not take medication . ”", "The medical notes for CARDINAL DATE record :", "“ TIME – very much better in attitude . Slept well . Requests to return to [ the segregation unit in the punishment ] block . Agreed . ”", "PERSON was duly returned to the segregation unit . A note in the segregation unit ’s occurrence book for CARDINAL DATE records :", "“ PERSON [ was ] brought in from the hospital . Seems slightly more lucid than before , however still needs watching . At tea time PERSON asked to [ talk to a listener ] as he stated he felt he was ‘ going into one’ , which I took to mean kicking off ... staff beware . ”", "The medical notes record at TIME :", "“ Troublesome in block . Given extra chlorpromazine . Seemed to calm down after a chat . If he is talking suicidally TIME then unfurnish his block cell and review ‘ mane’ [ query , in TIME ] . ”", "Save for a short note on CARDINAL DATE that at “ TIME clopixol CARDINAL mg given ” , no further entry was made in PERSON medical notes from the CARDINAL DATE until his suicide on DATE . PERSON , who had no psychiatric training , saw PERSON in the course of routine TIME visits to the segregation unit on CARDINAL to CARDINAL and DATE to CARDINAL DATE . She recalled :", "“ ... We had the cell door open on the majority of occasions . I recall there may have been CARDINAL time when I spoke through his glass window ... but that was because they were short of staff . He had the opportunity to talk to me .", "We discussed his medication . He never mentioned any feelings of depression to me or not coping . On the whole PERSON appeared calm and with it with me . He appeared clear and not disturbed . I also checked with the staff as to his behaviour through the day , and they replied that there was nothing that concerned them . ”", "The occurrence book of the segregation unit records , however , on CARDINAL DATE :", "“ PERSON abusive , aggressive and offering violence to staff . Relocated to [ cell ] CARDINAL for a quietening down period . PERSON phone call to solicitor at TIME re assault on H / O Dent . On return [ from phone call ] to ACARDINAL [ landing ] states he will behave himself . Relocated to [ cell ] CARDINAL . ”", "The entry for CARDINAL DATE records :", "“ PERSON refused cup of tea . PERSON there was something out in it . When told that there was nothing out in it he decided to drink it . He is starting to act very strange . Staff to be aware . ”", "The entry for CARDINAL DATE records :", "“ PERSON seen by doctor . Refused medication . Staff to still offer medication . To be logged if taken or refused . ”", "Following the entry on DATE there is reference to the fact that on CARDINAL , DATE and DATE he accepted his medication . Thereafter there is no reference to PERSON in the occurrence book until his suicide on DATE .", "In a letter to his mother , dated CARDINAL DATE , he complained that his state of mind was not very good .", "On CARDINAL DATE Dr Bradley assessed PERSON to be fit for adjudication in respect of his assault on the CARDINAL prison officers on DATE . The record of the adjudication contains the certification by the doctor that he was fit for adjudication and for cellular confinement . The doctor added the following observations :", "“ At the time of the alleged offence Mr PERSON was receiving medication for a chronic psychiatric problem and he had had a recent change in medication . ”", "The adjudication took place on DATE , DATE after the events concerned . PERSON was found guilty of assault . In mitigation , he told the deputy governor , PERSON :", "“ I suffer from a split personality disorder . I have been in and out of institutions all my life . I now have a chance to make good . My mum has booked a holiday in GPE . I have behaved myself . ”", "The deputy governor said that he noted what the applicant said but that he was facing extremely serious charges . He awarded DATE in prison together with CARDINAL days’ loss of association and exclusion from work in segregation in the punishment block . At that point , PERSON had DATE to go before his expected release . The sentence had the effect of delaying his release from DATE until DATE pursuant to the applicable provisions , he had been entitled to release after CARDINAL of his DATE sentence , with account also being taken of time spent in detention on remand .", "Shortly after the adjudication , PERSON was seen by the chaplain , who recalled in his evidence at the inquest that PERSON had been unhappy about the decision and had said : “ I was thinking of kicking off , but I do n’t think I will . ” The chaplain stated that at no stage did PERSON indicate that he might take his own life .", "At CARDINAL the following morning , on DATE , PERSON was seen by PERSON who recalled that he seemed calm , polite and relaxed . He was then seen by the deputy governor , PERSON , who later described him as having been in a highly agitated state , but relaxing when he was informed that his right to buy tobacco had not been suspended .", "NORP In TIME PERSON was visited by a friend , PERSON , whom he had known for DATE . M.T. , who saw PERSON for TIME , found him to be disappointed that he had an additional twenty - eight days to serve in prison , but otherwise in good spirits and , when PERSON left , as looking forward to his next visit the following DATE . Prison officer PERSON , who returned PERSON to his cell following the visit , recalled that PERSON was very talkative and appeared to be in high spirits .", "Prison officer PERSON , who saw PERSON at or TIME , recalled that he seemed all right and asked if he could use the telephone at TIME Mr PERSON agreed , but in the event it does not appear that PERSON was allowed out of his cell to make the call . According to the evidence given later at the inquest , Mr PERSON , who was on duty on landing ACARDINAL – the segregation block DATE , was absent in the toilet for TIME from TIME On his way from the toilet to assist on landing ACARDINAL , he noticed that the cell call indicator for landing ACARDINAL was depressed . The call buttons in each cell lit up indicators on each landing to ensure that if an officer was not present on CARDINAL landing , the light could be seen by officers on other landings . There was no noise issuing from the indicator as it seemed that someone , a prisoner or prison officer , had de - activated the buzzer , access being possible to the system from each landing . Mr PERSON called to another officer to accompany him and immediately went to PERSON cell and proceeded to open it . He estimated that a minute went by between seeing that the light was on and opening the cell door .", "At TIME on CARDINAL DATE , PERSON was discovered by the CARDINAL prison officers hanging from the bars of his cell by a ligature fashioned out of a bed sheet . At TIME he was pronounced dead .", "At some point before he committed suicide , PERSON had depressed the call button in his cell . It would not have been possible for him to depress the call button whilst suspended . It was Mr PERSON ’s evidence at the inquest that PERSON must have depressed the call button during TIME when he was using the staff toilets since the light on the landing , which would have indicated that the call button had been depressed , was not on when he left .", "In an undated letter , received by PERSON after DATE , PERSON wrote :", "“ As you will well know I am in prison for assault on [ PERSON ] , which I received DATE . I can not take much more . I have seen PERSON in here he wrote me up for some new tablets fenzodine white tablets like white smarties . I just went mad on them , and ended up on assault on CARDINAL staff . I am asking you if you can give me treatment when I get out and get me better . I was using drugs in PERSON as well , I feel very unstable but the doctor will not help me at all . I need help please could you send the Governor a report on me , I ca n’t take much more . ”", "On DATE , at the inquest before a coroner , the jury recorded a verdict of death by misadventure and that the cause of death was asphyxiation by hanging . Evidence was submitted in public proceedings by CARDINAL witnesses , CARDINAL of whom gave oral testimony . The witnesses included the applicant , the prison officers on duty who had discovered PERSON body , the police inspector who had investigated the death , the deputy governor of the prison , a number of prison hospital officers and the senior prison doctor , the prison chaplain and PERSON , who had visited PERSON on DATE he died . Statements were submitted by these persons , as well as by PERSON and PERSON .", "On DATE the applicant was granted legal aid limited to obtaining further evidence and counsel ’s opinion on the merits and quantum of damages in a potential action against ORG in respect of the treatment of her son and the conditions of his detention .", "In a report dated CARDINAL DATE , PERSON , the consultant forensic psychiatrist instructed by the applicant ’s solicitors , expressed his opinion that PERSON , as a prisoner suffering from paranoid schizophrenia , was unfit to be placed in segregation in the punishment block and that the failure of the prison authorities to accommodate him in the hospital wing was an important contributory factor to his death ( see paragraph CARDINAL below ) .", "In an opinion dated DATE , counsel advised in the light of the psychiatrist ’s report that , notwithstanding the grave breach of duty by ORG in keeping PERSON , a mentally ill prisoner , in a punishment cell without any proper medical monitoring , an action in negligence under LAW ( LAW Act DATE would not succeed since there was no evidence that PERSON had suffered any injury of a kind in respect of which a cause of action could be maintained . He was already mentally ill and there was no indication that he suffered any worsening in his condition , or developed any new condition as a result of his confinement . Mere distress was insufficient , and the fact of his death was not such as to constitute in LANGUAGE law an injury in respect of which a cause of action lay . In respect of proceedings under LAW DATE , counsel advised that , since PERSON was over DATE when he died , the applicant did not qualify for bereavement damages and there were no dependants who might be able to pursue a claim . To the extent that the applicant might have incurred any funeral expenses , these were not sufficient to justify the support of legal aid . The effect of this advice was to prevent the applicant from pursuing any contemplated litigation since , in the light of the advice , legal aid would be withdrawn .", "By a letter of CARDINAL DATE , the applicant was informed by ORG that they were considering whether to discharge her legal aid certificate given counsel ’s opinion that she had no reasonable prospect of success . By a decision of DATE , ORG discharged her legal aid certificate since it was unreasonable in the circumstances that she continue to receive assistance .", "Dr PERSON , GPE , GPE , a consultant forensic psychiatrist at ORG , prepared a report at the request of the applicant ’s solicitors , on the basis of materials from the inquest , PERSON prison medical record , his medical notes from ORG and his general practice medical record . He had had no contact with PERSON before his death . His report included the following :", "“ Family and personal history", "There is a family history of psychiatric disorder , in that his maternal grandmother is said to have died in a mental hospital , his mother suffered a severe depressive illness after the cot death of PERSON ’s younger brother and his father is described as an alcoholic who was occasionally violent .", "PERSON ] childhood was disturbed and unhappy . His parents separated when he was about a DATE old . His mother suffered from severe , intermittent depression throughout his childhood . His behaviour at school was disruptive , including fighting and truancy . He is said to have been in care at various times from DATE , and spent time in foster homes , detention centres and approved schools . His work record was poor , consisting of occasional short - term manual work . A report by PERSON ( dated CARDINAL ) states that he tended to stop jobs because of paranoid thoughts .", "His disturbed behaviour continued after leaving school . He is said to have spent times in GPE at DATE as a rent boy and convictions included breach of the peace ( DATE ) , car theft and breaking into a jewellers ( age CARDINAL y. ) , convictions relating to fighting at DATE and a conviction for ORG DATE after stabbing his sister ’s boyfriend .", "Psychiatric history", "He is said to have been diagnosed as suffering from paranoid schizophrenia when he was aged DATE ( in DATE ) , whilst he was serving a prison sentence for the offence of G.B.H. He had paranoid thoughts and was started on treatment with cloxipol ( anti - psychotic medication ) .", "Whilst serving his prison sentence , he is said to have spent a brief spell in PERSON prison , where he was told that his paranoid schizophrenia was too severe for him to get involved in group therapy .", "In DATE , he was discharged from prison and continued clopixol until it was changed to depixol ( a similar , injectable , anti - psychotic medicine ) by his FAC ...", "His first admission to a psychiatric hospital was to PERSON , GPE , ... in DATE .", "From CARDINAL.CARDINAL.CARDINAL until CARDINAL.CARDINAL.CARDINAL , he was admitted to ORG . He had taken an overdose , injecting himself with insulin . He was also complaining of ‘ paranoia’ . The admission summary lists the diagnoses as ‘ borderline personality disorder’ and ‘ paranoid PERSON . It also notes his history of ‘ frequent episodes of ORG ( deliberate self - harm)’ . The discharge summary also noted that he was ‘ unable to cope living on his own’ ... and that he was disruptive on the ward ... It was noted that ‘ there did not seem to be too much evidence for his paranoia’ , but he was discharged on CARDINAL different types of anti - psychotic medication ( including a fortnightly injection ) and an anti - depressant . ...", "From CARDINAL until CARDINAL , he was admitted to ORG , after taking an overdose following the breakdown of his relationship with his girlfriend . The summary of this admission lists the diagnoses as ‘ Personality disorder . Paranoid psychosis . Suicidal threats.’ Shortly after taking his own discharge , he was arrested for the assault on his former girlfriend which led to his prison sentence . ...", "Opinion", "PERSON suffered from paranoid schizophrenia . He appears to have developed this illness in DATE ... After his discharge from prison in DATE , he maintained fairly regular contact with psychiatric services and his FAC and for most of this time , was being given an injectable anti - psychotic medication . Among the psychiatrists who saw him , there appears to be general agreement about the diagnosis of schizophrenia .", "I note that he was also given diagnoses of personality disorder and substance abuse at various times . There is evidence to support the diagnosis of personality disorder . However , none of the psychiatrists who saw him appear to have doubted the additional diagnosis of schizophrenia and all continued his treatment with anti - psychotic medication . The significance of the diagnosis of personality disorder is that he would have been a more difficult patient to look after , than the average patient with schizophrenia .", "Schizophrenia is a serious and long lasting mental illness that may be controlled to a greater or lesser extent by medication but is not cured by that medication . Self - harm , suicide and violence are recognised complications of schizophrenia . Many of the symptoms which Mr PERSON showed in the time leading up to his death are recognised symptoms of schizophrenia , including paranoia , hearing voices , disturbed sleep , aggression , ambivalence and thoughts of self - harm . These symptoms can have other causes but , in the case of a patient known to suffer from schizophrenia , it would be usual to assume that the symptoms were due to the schizophrenic illness . It is impossible to make any reliable distinction between symptoms which are due to schizophrenia and those which are due to an individual ’s personality .", "The diagnosis of schizophrenia has important implications . The management of the condition is primarily the responsibility of doctors , as the normal prison rules can not be expected to cope with persons whose mental state is grossly abnormal , without guidance from doctors . The following comments are therefore made with reference to what would constitute an acceptable standard of care for a person with schizophrenia .", "From the evidence I have seen , the standard of medical record keeping was inadequate on CARDINAL occasions . CARDINAL CARDINAL.CARDINAL.CARDINAL , the management plans changed from continuous observation in the prison ORG , and a decision to seek the opinion of a visiting psychiatrist ( PERSON ) , to a decision to transfer Mr PERSON to ordinary location . There is no information in the medical notes to explain this decision . On CARDINAL , Mr PERSON was stating to staff that he intended to hang himself and a noose had been found in his cell . Given this evidence of serious suicidal intent , it would be good practice to record in the medical notes the reason for discontinuing the higher level of observation and returning to normal location .", "There is no entry in the medical notes for DATE leading up to PERSON death . Given that the entries up to this point record disturbed and unpredictable behaviour and threats to his life and threats of violence to others , there were good reasons for monitoring his mental state regularly and there is no record to show that this was done .", "Following the visit and assessment by ORG on DATE the evidence I have seen suggests that the standard of care received by PERSON fell below that which he was entitled to expect . PERSON confirmed that Mr PERSON suffered from ‘ mild chronic PERSON and recommended adding a new form of anti - psychotic medication to his existing regime of anti - psychotic medication . A recommendation was also made on DATE that Mr PERSON not be allowed association until his panic / paranoia had subsided . PERSON ( who had previous knowledge of the patient ) also noted that the patient was not usually violent .", "On DATE ( CARDINAL ) , his mental state was noted to deteriorate with evidence of paranoia and aggression . The change in medication recommended by PERSON was then reversed . On DATE , PERSON concluded that there was no sign of mental illness and pronounced Mr PERSON fit for normal cell location in the punishment block .", "With the benefit of hindsight , it is apparent that Mr PERSON was not fit to be located in the punishment block . CARDINAL things run throughout his medical notes . CARDINAL is his fear of being located anywhere other than the hospital , the second is his tendency towards suicidal behaviour . I believe that the failure to accommodate him in the hospital wing was an important contributory factor to his death .", "In my opinion , it is not possible to justify the reversal of the change in medication recommended by PERSON , without further reference to PERSON ( or another psychiatrist ) . PERSON clear opinion was that the patient was suffering from a psychosis and that the correct treatment was a change in anti - psychotic medication . Dr PERSON ’s advice was not followed consistently . For example , PERSON concluded on DATE that there was no sign of mental illness , despite PERSON opinion of DATE and the evidence in the medical notes of paranoia and aggression on CARDINAL . It is most unlikely that the type of mental illness documented by PERSON ( described as chronic ) would have disappeared completely within DATE .", "On the evidence I have seen , I believe that PERSON was incorrect in his judgment ( that there was no mental illness present on DATE ) and that , as a doctor without psychiatric qualification , he should not have taken a different course of action from that recommended by the psychiatrist . ”", "Dr Reveley , a second consultant psychiatrist instructed by the applicant ’s solicitors , expressed her opinion on the basis of the inquest proceedings and medical records , including the notes from prison and ORG . She had never met or treated PERSON . Her report included the following :", "“ Opinion", "I am of the view that PERSON suffered from paranoid schizophrenia , paranoid type as defined by the ICD-CARDINAL classification of Mental and Behavioural Disorders DATE . CARDINAL of the essential features of this disorder is presence of delusions in the context of a relative preservation of cognitive functioning and affect . The individual suffering from this disorder is therefore generally able to describe the typical examples of hallucinations . Examples of the most common paranoid symptoms included delusions of persecution , grandiose delusions , hallucinatory voices that threaten the patient , hallucinations of taste and smell . There is ample evidence that PERSON suffered from such symptoms during his final prison sentence . Violence and self - harm are often associated with this condition , as indeed they were in the case of PERSON . ORG , CARDINALth edition DATE draws attention to this finding : ‘ The persecutory themes may predispose the individual to suicidal behaviour , and the combination of persecutory and grandiose delusions with anger may predispose the individual to ORG", "PERSON was also variously diagnosed as suffering from substance abuse and personality disorder . Neither of these diagnoses is inconsistent with paranoid schizophrenia and they often coexist with that condition . It is also clear PERSON was consistently treated with anti - psychotic medication , and that the prison medical staff impliedly accepted a diagnosis of psychosis by continuing to treat with anti - psychotic medication . Indeed he specifically received a diagnosis of ‘ mild chronic ORG while in prison . Any diagnosis of psychosis is always of the utmost significance . There are CARDINAL main psychiatric conditions that lead to psychosis : schizophrenia , manic depressive disorder and substance abuse ( e.g. ecstasy , ORG , amphetamines , alcohol , and sometimes cannabis ) . It may be impossible to distinguish between the individual psychotic disorders when someone is first seen by a psychiatrist , and uncertainty about a patient ’s diagnosis may remain for DATE . But having said this , there is almost never any disagreement among psychiatrists about whether a patient is psychotic . Indeed psychotic symptoms can be successfully treated with anti - psychotic drugs even where there is some diagnostic confusion about the classification of the psychotic state . The evidence is that the prison medical staff while accepting that there was no formal diagnosis of his mental disorder , continued to treat his psychotic symptoms with anti - psychotic medication . ...", "PERSON was treated with anti - psychotic medication while in prison . On account of the medication his condition is , apparently , maintained by this medication with the exception of the isolated flare - ups . These isolated incidents are regarded by the prison doctors as discrete episodes of bad behaviour . When there is no observable episode , PERSON appears to have been regarded as mentally well , or at least sufficiently well to be punished by segregation . This is in my view to adopt a dangerously over - simplified view of mental disorder . The analogy would be with someone with a fever who is given fever reducing drugs , and thereafter put outside on a cold DATE ’s day on the principle that he is showing no signs of a temperature . In such circumstance no - one would be surprised if there were a recrudescence of the fever . In PERSON case there was a failure by the prison authorities to recognise a fundamental psychiatric truth when they found him fit for the punishment block . They were assessing the mental state of a heavily medicated individual whose underlying problems were being maintained and masked by that medication . ( Despite the finding that he was sufficiently normal for the punishment block I note that there was no indication in the notes that his medication should be discontinued ) .", "Because PERSON is adjudged to be well , he received no nursing care on the punishment block . Nursing care is not just about the administering of medication . It is vital to the successful management of mental illness , not least because the nurse is a trained observer and can react quickly and effectively where there are indications that an individual ’s mental state is a cause for concern . Nursing is primarily the process of looking after physical or emotional needs of patients with the aim or restoring , improving , maintaining , or promoting well - being . The notion of punishment is incompatible with the goals of nursing DATE and indeed with all medical care .", "An acceptable level of care in the management of PERSON condition during this period would have included a close monitoring of the medication as regards dose and side effects ; a close monitoring of his mental state as regards symptomatology , and as regards any increased risk of self - harm or suicide . There is no evidence that adequate monitoring of this type was performed during DATE of his life .", "This is particularly surprising in the context of his earlier problems which included self - harm and violent outbursts and given that there had been a number of changes in the medication prescribed during the time he spent in FAC .", "The nature of schizophrenia is such that there are remissions or periods of less florid symptomatology where the positive symptoms , i.e. those associated with a distortion of normal functioning , are not exhibited . During such periods the so - called negative symptoms may continue to be in evidence . Negative symptoms are symptoms that reflect a diminution or loss of normal functioning . They include affective flattening ( immobility of feature , unresponsiveness , poor eye contact and reduced body language ) , alogia ( poverty of speech which is often manifested by brief , laconic , empty replies , often accompanied by a diminution in the number of thoughts which is reflected in decreased fluency and productivity of speech ) , avolition ( an inability to initiate and persist in goal - directed activities ) and anhedonia ( loss of interest and loss of pleasure in life ) . These negative symptoms account for a substantial degree of morbidity associated with the disorder . They are particularly common in the prodromal ( before episode ) and residual ( after episode ) phases of the disorder , and can often be very severe in their own right . ...", "It is my view that PERSON was recognisably at a very high risk of deliberate self - harm or suicide . This risk would have been evident even if he had not been placed on the punishment block during DATE of his life . It has been shown that , compared with the general population , people who deliberately harm themselves experience CARDINAL times as many stressful life problems in DATE before the act . The events are various but a recent quarrel with a spouse , girlfriend , or boyfriend is particularly common and other events include separation from or rejection by a sexual partner , and a ORG appearance . CARDINAL of all people who harm themselves are suffering from a Personality disorder . Several studies agree that there are a number of factors that seem to distinguish patients who go on to repeat deliberate self - harm . These include previous psychosis , personality disorder of the anti - social type , criminal record , alcohol or drug abuse , lower social class , and a history of unemployment . It is also significant that among patients who have been involved in an earlier episode of deliberate self - harm , the suicide rate in the subsequent DATE is CARDINAL times greater than in the general population .", "As regards the risk of completed suicide , studies show that prisoners have a higher suicide risk than the general population , and that CARDINAL in CARDINAL of all those suffering from schizophrenia end their own lives , and that CARDINAL of all those who take their own lives are being treated with psychotropic drugs . ( The above statistics are taken from ORG , ORG , DATE , and are widely accepted . )", "It is not possible to quantify precisely what the degree of risk as regards self - harm or suicide was for PERSON , It is my opinion that he was recognisably in one of the very highest risk groups and that following his removal to the punishment block it was more likely than not that there would be some episode of self - harm during the period of his seclusion . This being the case , I am of the view that the failure to recognise this risk meant that his treatment during DATE of his life fell substantially below acceptable standards of care . ...", "Individuals with paranoid delusions can often be helped by psychological support , encouragement and assurance . During treatment best results are achieved if doctor / nurse maintains a good relationship with the individual , and is dependable and avoids letting the patient down . He should show compassionate interest in the individual ’s delusions , but without colluding in them , or condemning them , and most importantly without ignoring them . The treatment PERSON received in the punishment block fell far short of this model .", "In my view the way in which PERSON , an individual suffering from paranoid schizophrenia , was treated , was likely to arouse in him feelings of hopelessness , fear , anguish , and inferiority . The circumstances of his imprisonment on the punishment block were humiliating , debasing and degrading , and had the effect of undermining his will to cope with , and battle against , his psychotic illness . His will to resist the illness was cumulatively undermined and resulted in the taking of his own life . The prison regime to which he was subjected disregarded his basic right as an ill person to be medically treated and properly cared for and thereby broke his will to endure imprisonment . LAW declares that ‘ Any act or advice which could weaken physical or mental resistance of a human being may be used only in his interest’ . The acts performed and the advice given by medical staff in respect of PERSON treatment were manifestly not in his interest . What he suffered during DATE of his life was likely to have been terrifying , and I use that word advisedly , in its original sense of instilling terror . I have treated many paranoid schizophrenics and I have never doubted their capacity to believe absolutely in the apparent threats created by their delusions . A punishment that requires a psychotic individual to face those threats alone and without proper medical support is wholly unacceptable , and in my view constitutes an inhuman and degrading punishment . ”", "In a report dated DATE , PERSON , the prison ’s senior medical officer , in response to the psychiatric reports obtained on behalf of the applicant , stated as follows :", "“ These reports were compiled upon the documentary evidence available to the doctors and to my knowledge neither of them had the opportunity to see or examine Mr PERSON . The medical weight of their reports must therefore be significantly diminished . These reports were prepared over a year ( Dr PERSON ) and DATE ( Dr PERSON ) after the death of PERSON .", "The historical data given in both reports was compiled from other documents and originally probably would have come from Mr PERSON himself or his mother – the basis of most medical histories comes directly from the patient without ascertaining their veracity . On reception Mr PERSON gave a history of schizophrenia – no specific symptoms of schizophrenia were observed from his reception onwards during his time in custody on remand or when convicted .", "From comments by PERSON and PERSON upon entries in ORG ( IMR ) – I prescribed Clopixol because PERSON was so adamant that he wanted it and was helped by it , and because PERSON had suggested it be tried , ‘ if he does n’t do so well’ . It was prescribed not as an anti - psychotic but as a tranquilliser on the basis of the above . My conversation with PERSON and my prescribing PERSON are in fact separate entries in the IMR and it is important to refer to the original IMR entries rather than my witness statement . I recall I was reluctant to prescribe PERSON because of the paucity of symptoms and signs of psychosis . As far as I can recall , PERSON gave no reason why he did not want to continue his NORP except that he received no benefit from it and he was adamant that he felt better on PERSON and PERSON . It is important to note that I do not recall that he had experienced any side effects due to ORG which might have limited my prescribing PERSON . Both PERSON and PERSON put great weight upon his medication indicating a diagnosis – this was not the case . The dosage of PERSON commented upon in Dr PERSON ’s report was indicated to me by PERSON .", "The symptoms noted on CARDINAL were quite reasonably thought possibly to be due to the change in medication and Dr. PERSON indicated that he return to his previous medication . PERSON attended the prison for DATE sessions DATE at that time and was our only visiting psychiatric resource . PERSON implied that because PERSON PERSON was unwilling to go to the main prison on DATE he should have been kept in the hospital . Were unwillingness to leave an indication of continuing location in the hospital we would have a totally static population .", "In the IMR for CARDINAL the entry was made by a Hospital Officer not a Doctor . ORG , PERSON , has no formal psychiatric training . We did not have , at that time , any psychiatrically qualified nurses . Please see my entry for DATE , ‘ owes on the wing hence ca n’t cope’ . The reports do not refer to this . If he owed on the wing it is highly likely that he would be threatened with food contamination , this would represent reality rather than paranoia , and there is always the possibility that the noose was made so that he could return to the sanctuary of the hospital . A prepared noose is enough indication in itself for hospitalisation and TIME watch irrespective of mental state rather than implying a disturbed mental state in itself as described by Dr GPE .", "The entry for CARDINAL in the IMR , “ to assess DATE ” , was cancelled by my hand probably fairly soon after it was written ( most likely on DATE same pen ) . The interpretation of this was that there was no indication that he needed to see PERSON and that he was well and symptom - free . He was noted fit for work and gym . No contemporaneous record was made because there was nothing of import to note .", "It is appropriate here to observe that while there is an agreed paucity of notes at some ( and only some ) stages of the IMR ... nil entries may be taken as indication that no abnormality or overt disorder was present .", "On the segregation wing all prisoners are medically screened before adjudication and the range of punishments known to the doctor . The duty doctor does the round in the segregation unit before the Governor attends there so that any new inmates located there can be medically checked prior to the Governor ’s adjudications . All inmates in the segregation unit are seen every day by the duty doctor . If an inmate in the segregation unit becomes ill so that hospital care is indicated he is promptly transferred to the hospital . A diagnosis of a mild chronic psychosis is not a contra - indication per se for transferring to the segregation unit – indeed the daily visits by the Governor , Doctor and Chaplain provide a greater degree of observation and care than possible on the main wings . I do not think that Mr PERSON would have been continuously an in - patient in a psychiatric hospital were he in the community . I must agree that the segregation unit generally is not conducive to mental well - being but all prison medical staff are trained in and are highly aware of the effects of imprisonment and segregation and review each inmate on the segregation unit DATE with this in mind . The duty doctor ’s DATE visits to the segregation unit to assess Mr PERSON ’s medical state included judging whether his medication level was appropriate and whether he was a suicidal risk . Dr PERSON ’s implication that medical staff connive with the ‘ authorities’ to punish is totally untrue . We provide medical care and our ethical stance is concerned with this and this alone . We hold ORG meetings regularly at which our ethical stance is clearly outlined . This is something I know we all care about passionately and is the cornerstone of the medicine all of us practise here .", "I am not of the opinion that PERSON suffered from paranoid schizophrenia . This is based on my own observations and Dr Roberts’ doubt about his diagnosis ( and he was the Psychiatrist who had observed him as an in - patient the most recently prior to his reception ) . We did not have a patient , ‘ known to suffer from PERSON , ( Dr PERSON ) . He was known to us via Dr PERSON information as a patient suffering from , ‘ personality disorder , anti - social , under stress , some fleeting paranoid ORG . PERSON appeared quite normal most of the time during his periods of custody and observation .", "Self - harm , suicide and violence are recognised complications of personality disorder . Only the self reported paranoia and hearing voices are symptoms of schizophrenia . There is ample evidence that PERSON ’s episodes of paranoia were intermittent and transitory . ( Dr PERSON described , ‘ episodic paranoia’ , and Dr PERSON , ‘ isolated flare - ups’ ) , linked to the taking of illicit substances . From the IMR , “ says he has had cannabis which tripped him out and made him paranoid’ . ...", "Mr PERSON was afraid of being on ordinary location but not of being in the segregation unit . This supports a theory that he had real and not imaginary fears for his safety on the wing , especially in the light of him telling me ‘ he owed’ . Nevertheless Mr PERSON was always admitted to the hospital when he had a ‘ flare - up’ . Dr PERSON ’s analogy of mental illness and a fever is neither appropriate nor convincing .", "There is no clear description of delusions , in fact their description is vague except , ‘ thinking he is Jesus’ . I did not find any continuity of a strongly held delusional system .", "It is clear from the IMR that Mr PERSON had long periods when he did not display any symptoms or signs of mental illness and he was therefore at these times mentally well . Being well there were no contra - indications to being located in the main prison or segregation unit .", "It was notable that PERSON did not display the signs that PERSON describes for us , i.e. immobility of features , unresponsiveness , poor eye contact , reduced body language , alogia . This was further evidence to us that he did not suffer from a florid psychosis .", "Overall , from the CARDINAL reports prepared , I find the evidence for a florid psychosis to be slim . PERSON is not a forensic psychiatrist and appears unfamiliar with prison medical care . Her comments are emotive rather than objective .", "PERSON was known to us as an impulsive , self - harming and aggressive man who periodically had episodes when he described paranoid feelings and vague delusional symptoms . There is no evidence to support the diagnosis of schizophrenia with which he strongly self - labelled himself . His disturbed episodes and death may well have been the sequel to drug taking in the main wing , consequent upon which were threats of reprisal . ”", "Dr PERSON , instructed on behalf of the Government , stated , inter alia , as follows :", "“ Opinion", "It has been asserted that by the complainant and the CARDINAL psychiatrists ( PERSON and PERSON ) that have reviewed the case that PERSON was wrongly diagnosed , his symptoms overlooked and that he was placed in situations which would inflame his condition . Both doctors concluded that PERSON suffered from schizophrenia and that much of his behaviour could be explained by this . Having made this diagnosis they say his fears and anxieties must have been due to an underlying delusional state . This is an assumption based on the belief that PERSON was schizophrenic . On the basis of their assumption that PERSON was seriously mentally ill it is also asserted that the prison should have anticipated his suicidal tendencies and taken better precautions and not subjected him to the privation of the punishment block .", "The prison was not staffed by consultant psychiatrists . The doctors there would very properly rely on the opinion of the ORG specialists who had been caring for their inmates before imprisonment . The diagnosis given to them by PERSON ’s latest psychiatric specialist ( PERSON ) was of ‘ personality disorder , antisocial in GPE , and that PERSON was liable to ‘ fleeting paranoid ORG when under stress .", "It is true that Dr PERSON had also treated PERSON in the past and had described him as suffering from ‘ a mild chronic PERSON . This is not a specific diagnosis but a general description . In any case PERSON did not consider PERSON so ill as to require treatment in psychiatric hospital . He indicated , like PERSON , that PERSON would have short lived periods of psychosis ( and panics ) at which time he would need special care and treatment . He recommended that PERSON not be given association until recovered from his ‘ panic and paranoia’ . This recommendation seems to have been met .", "The staff in GPE proceeded along the lines outlined by PERSON giving the medication he recommended in the hope of reducing PERSON ’s symptoms e.g. his volatility , his poor response to stress and his tendency to transient psychotic periods . They also admitted PERSON to the ORG when his condition appeared to deteriorate .", "Much of PERSON ’s behaviour can be understood as manipulative to escape the pressures of the ordinary wings into the relative peace of the ORG . There is no evidence that the fears he expressed about being attacked on the wings were not understandable or even reasonable ones . There is no reason , given Dr Roberts’ diagnosis , not to accept PERSON ’s account at face value . Where there were episodes which might have been psychotic ones ( e.g. when he claimed to be PERSON and hearing voices ) he was taken into the ORG and appeared to recover quickly as PERSON indicated he would .", "In the end PERSON seemed to accept the regime of the punishment wing and settle down . The observations we have all support that this was so . PERSON obviously was initially angered by the punishment given out on CARDINAL.CARDINAL.CARDINAL though he seemed to have overcome his anger . There was no evidence that he had become psychotic . His worries ( CARDINAL ) about his access to the shop being stopped by the governor were perfectly understandable . It is not necessary to postulate mental illness to explain them . I conclude that the medical management of PERSON during his stay in GPE prison was perfectly reasonable particularly given the opinion of PERSON . We do not know what PERSON intended on TIME of CARDINAL . The pattern was very similar to previous life threatening attempts with a warning to others so he might be saved . Perhaps he had decided that he could not or would not face a further period on the punishment block and that he would demonstrate this by the attempt during which he would be saved and returned to the ORG . I do not think anyone could have anticipated what he did or when he did it . My only criticism would be that at the very end scissors to cut the ligature were not available on the punishment wing . ”", "Section CARDINAL of the Prison Act DATE required each prison to have a medical officer who , according to Rule CARDINAL of the Prison Rules DATE promulgated by the Secretary of ORG , was responsible for “ the care of the health , mental and physical , of the prisoners in that prison ” .", "Rule CARDINAL provided :", "“ ( CARDINAL ) The medical officer shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment . ...", "( CARDINAL ) The medical officer shall pay special attention to any prisoner whose mental condition appears to require it , and make any special arrangements which appear necessary for his supervision and care .", "( CARDINAL ) The medical officer shall inform the governor if he suspects any prisoner of having suicidal intentions , and the prisoner shall be placed under special observation . ”", "Health care within prisons was also governed by LAW , which defined the responsibilities and duties of the members of a prison health care team . LAW provided :", "“ The initial medical assessment of all prisoners to the health care centre on or shortly after reception into prison , or as a result of concern about their mental state , should include consideration of special arrangements needed for their supervision to prevent attempts to harm themselves or commit suicide . Where it is considered that special supervision is medically indicated the medical officer will order supervision in CARDINAL of the following forms :", "( a ) continuous supervision , in which the prisoner is observed by a designated officer who remains constantly in his or her presence ; or", "( b ) intermittent supervision in which the prisoner is observed by a designated officer at intervals of not TIME . ”", "ORG also issued its own guidelines . At the relevant time , these were in the form of Circular Instruction CARDINAL/CARDINAL providing guidance , inter alia , relating to staff responsibilities , action on reception , referral and assessment during custody and preventative measures in respect of prison suicides . Circular Instruction CARDINAL/CARDINAL defined the task of ORG as being", "“ to take all reasonable steps to identify prisoners who are developing suicidal feelings ; to treat and manage them in ways that are humane and most likely to prevent suicide ; and to promote recovery from suicidal crisis ” .", "The central element of this system was the suicide referral form ( FCARDINAL ) . Wing managers ( senior prison officers ) transmitted referrals to the prison medical officer who decided whether any suicide prevention measures should be taken . Following criticism by the Chief Inspector of Prisons in his report “ Suicide and Self - Harm in Prison Service Establishments in GPE and GPE ” , new guidelines were issued in DATE Instruction to Governors CARDINAL/CARDINAL . This required , inter alia , a specific Self - Harm / At Risk form ( FCARDINALSH ) to be used where a prisoner was identified by any member of staff as needing special care due to the risk of suicide or self - harm . This enabled the observations of all personnel in contact with the prisoner to be recorded and was intended to provide a comprehensive and ongoing record of the prisoner ’s state of mind . A case review by the key personnel involved in the prisoner ’s care ( for example , the senior medical officer , a governor grade and the senior wing officer ) was to take place before the prisoner was taken off ORG At Risk form .", "Under sections DATE and CARDINAL of LAW DATE , any prisoner suffering from a serious mental illness might be transferred to a hospital for detention and treatment .", "Rule CARDINAL of the Prison Rules DATE , pursuant to which PERSON was placed in segregation , required the prison governor to remove a prisoner from segregation in the event that a medical officer so advised on medical grounds . Rule CARDINAL(CARDINAL ) provided that no punishment in cellular confinement was to be imposed unless a medical officer had certified that the prisoner was in a sufficiently fit state of health .", "There was no requirement under statute or the Rules for a prison to be staffed by a medical officer with psychiatric qualifications . The medical officer did have discretion to request a psychiatric opinion when considered appropriate ( Rule CARDINAL ) .", "In an article published in ORG ( DATE , vol . CARDINAL , “ Inpatient care of mentally ill people in prison : results of a DATE ’s programme of semistructured inspections ” ) , the medical and nursing inspectors of Her Majesty ’s Inspectorate of Prisons stated , inter alia :", "“ The quality of services for mentally ill prisoners [ fall ] far below the standards in ORG . Patients’ lives [ are ] unacceptably restricted and therapy limited . The present policy dividing inpatient care of mentally disordered persons between the prison service and the ORG needs reconsideration . ”", "Under the Prison Rules DATE , a prisoner could be confined in a prison ’s segregation unit or punishment block under CARDINAL provisions .", "Under Rule CARDINAL , a governor had the power to segregate a prisoner where this appeared desirable for the maintenance of good order or discipline or in his own interests . This was limited to DATE , after which any extension had to be authorised by a member of ORG or the Secretary of ORG .", "Under Rule CARDINAL(CARDINAL)e , the governor had the power to punish a prisoner convicted of a disciplinary offence by ordering CARDINAL days’ cellular confinement in the punishment block .", "The conditions of prisoners segregated in a prison ’s punishment block have been considered by the Chief Inspector of Prisons and Lord Justice PERSON , who carried out an inquiry into the prison system .", "In his DATE report “ A Review of the Segregation of Prisoners under Rule CARDINAL ” , the Chief Inspector of Prisons commented :", "“ ORG inmates were held in very restricted conditions ... They were usually located in the area of the prison called the segregation unit or punishment block , alongside inmates who were there under punishment ... They were generally subjected to much the same sort of regime as the prisoners under punishment , except that they were allowed a few extra privileges . They were locked up on their own in a cell for nearly the whole day ; only coming out to have an TIME ’s exercise walking round a yard , to collect their meals , to empty their chamber pots and to have an occasional shower . These excursions perhaps helped to break the monotony but usually did not provide them with much social contact . Opportunities to talk with fellow inmates were very limited and their relationships with staff were often antagonistic or distant ... [ paragraph CARDINAL ]", "... removal from association can involve the loss of various opportunities and advantages in addition to the obvious deprivation of human contact . The decision to segregate should therefore always be taken with care but especially so when the inmate concerned has not directly requested segregation . Accordingly , decisions to impose segregation on unwilling prisoners should be subject to particularly strong and effective safeguards . ” ( paragraph CARDINAL )", "He added that segregation “ can entail living under an impoverished and monotonous regime which may even be psychologically harmful ” .", "Lord PERSON , in his report “ Prison Disturbances ” , DATE , Cm CARDINAL , stated :", "“ While segregation under LAW is not intended to be a punishment , the use of the Rule will almost invariably adversely affect the inmate who is made subject to it . In most establishments anyone segregated under LAW will be subjected to regime restrictions very similar to those undergoing punishment . ” ( paragraph CARDINAL )", "Although there is no obligation on the governor or ORG to consult a doctor before initiating segregation , the governor is obliged to discontinue it if so advised by a medical officer on medical grounds ( Rules CARDINAL and CARDINAL of the DATE Rules ) .", "DATE . If a prisoner has a complaint in relation to the conditions of his imprisonment or an adjudication , he may use the “ remedies and complaints ” system .", "If the complaint relates to conditions of detention and can not be resolved informally , the prisoner may make a formal application which will be recorded and a senior member of staff will discuss the matter with the prisoner usually within DATE . If the prisoner remains dissatisfied , he then completes a request / complaint form to be considered by the governor , who usually replies within DATE . The prisoner may then appeal to the Area Manager of ORG .", "A complaint about an adjudication is submitted immediately to the Area Manager .", "NORP In either case , if the prisoner is dissatisfied with the decision of the Area Manager he may make an application for judicial review or make a complaint to ORG .", "Since DATE , prisoners who have exhausted the internal complaints system appeal to ORG , who may make recommendations to ORG if he upholds a complaint . He can not quash or overrule a ORG decision .", "In his DATE report for DATE , ORG stated , in respect of the complaints system :", "“ CARDINAL . ... the ORG ’s service DATE and indeed ORG internal requests / complaints system – is working well with regard to complaints about relatively formal and non - urgent topics . Prisoners generally know the well - established procedures for dealing with grievances about disciplinary adjudications and property loss and are willing to wait while the somewhat lengthy complaint processes are worked through .", "The situation is very different for most other categories of complaint . Assaults , refusal of temporary release , the imposition of closed visits ... all these are matters which prisoners want resolved immediately . They are also issues for which the request / complaints procedures may superficially appear to be inappropriate or issues which prisoners are afraid to raise with staff within the prison . Certainly , the relatively lengthy and formalised process of complaint to the governor ( taking a DATE plus ) , an appeal to ORG ( taking DATE ) and an ORG ’s investigation ( taking DATE and sometimes more ) will not commend itself to a disaffected prisoner wanting immediate redress . ”", "Case - law establishes that the High Court enjoys jurisdiction to grant judicial review of a decision either to segregate a prisoner pursuant to Rule CARDINAL of the Prison Rules DATE or to punish him pursuant to Rule CARDINAL ( NORP v. Deputy Governor of FAC , ex parte GPE [ DATE ] CARDINAL Appeal Cases CARDINAL ) . The court would review the matter in accordance with the well - established principles of administrative law , namely , whether the decision was perverse or irrational , whether the decision was made by reference to irrelevant factors or without regard to relevant factors , or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .", "A prisoner able to prove that his conditions of confinement have caused him injury , physical or psychiatric , resulting from the negligence of the prison authorities may claim an award of damages . If a prisoner is assaulted , he may maintain an action for assault , even in the absence of proof of physical injury . Damages may be awarded for any indignity or humiliation suffered , while exemplary damages may be awarded where the court concludes that there has been “ oppressive , arbitrary or unconstitutional action by the servants of the government ” ( PERSON v. PERSON [ DATE ] Appeal Cases CARDINAL ) .", "An action for the tort of misfeasance in public office may also be maintained if there has been a deliberate or dishonest abuse by a public officer through the purported exercise of a power otherwise than in an honest attempt to perform the relevant function . It includes performance of an act which the official has no power to perform with the object of injuring the claimant or where he knew he had no authority to perform it and actually foresaw that it could cause harm to the claimant or an identifiable class to whom the claimant belonged . “ Harm ” is not limited to physical or psychiatric damage .", "DATE . Following the death of a prisoner and regardless of the cause , an inquest must be held pursuant to section CARDINAL(CARDINAL)c of LAW DATE . Such inquests must be held with a jury ( section CARDINAL(CARDINAL)a ) . The coroner is the independent judicial officer charged with inquiring into deaths of various categories . His duties have been judicially defined :", "“ It is the duty of the coroner as the public official responsible for the conduct of inquests , whether he is sitting with a jury or without , to ensure that the relevant facts are fully , fairly and fearlessly investigated . He is bound to recognise the acute public concern rightly aroused where deaths occur in custody . He must ensure that the relevant facts are exposed to public scrutiny , particularly if there is evidence of foul play , abuse or inhumanity . ” ( NORP v. GPE , ex parte PERSON [ DATE ] Queen ’s Bench CARDINAL ( Court of Appeal ) CARDINAL )", "Rule CARDINAL of the Coroner ’s Rules allows the parent of a deceased person to examine witnesses at an inquest either in person or through counsel or a solicitor . There is , however , no legal aid for representation at inquests . Nor at the time of the inquest in this case was there any right to disclosure of documents .", "Under LAW of the Coroner ’s LAW and Rule CARDINAL of the Coroner ’s Rules , proceedings and evidence at an inquest must be directed solely to ascertaining", "– who the deceased was ;", "– where the deceased came by his death ;", "– when the deceased came by his death ;", "– how the deceased came by his death .", "No verdict may , however , be framed in such a way as to appear to determine any question of the criminal liability of a named person or civil liability .", "The scope of an inquest has been described judicially as follows :", "“ ... It is noteworthy that the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but ‘ how ... the deceased came by his ORG , a far more limited question directed to the means by which the deceased came by his death .", "... I further consider that [ previous judgments ] make it clear that when ORG stated that CARDINAL of the purposes of an inquest is ‘ to allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death . ” ( Sir PERSON , ORG , NORP v. the Coroner for GPE and GPE , ex parte PERSON , DATE , unreported )", "“ The cases establish that although the word ‘ how’ is to be widely interpreted , it means ‘ by what ORG rather than in what broad circumstances ... In short , the inquiry must focus on matters directly causative of death and must , indeed , be confined to those matters alone ... ” ( ORG , ORG , NORP v. Coroner for LOC of GPE , ex parte PERSON and Others ( DATE ) CARDINAL Justice of FAC )", "“ ... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt . The procedure and rules of evidence which are suitable for CARDINAL are unsuitable for the other . In an inquest it should never be forgotten that there are no parties , no indictment , there is no prosecution , there is no defence , there is no trial , simply an attempt to establish the facts . It is an inquisitorial process , a process of investigation quite unlike a trial ...", "It is well recognised that a purpose of an inquest is that rumour may be allayed ; But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention . It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation . He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him . ” ( Lord Lane , ORG , NORP v. GPE , ex parte PERSON ( DATE ) CARDINAL Solicitors’ Journal CARDINAL )", "A person who suffers injury , physical or psychiatric , in consequence of the negligence of another may bring an action for damages for that injury . An exacerbation of an existing condition constitutes such injury . Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages . Any personal - injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death .", "Claims arising from the death of an individual caused by negligence are brought under LAW DATE or LAW ( LAW DATE . The former enables those who were financially dependent on the deceased to recover damages for the loss of support ; the scheme is compensatory and , save for the sum of MONEY for bereavement awarded to the spouse of a deceased or parent of a deceased child under CARDINAL at the time of death , damages are awarded to reflect the loss of support . The latter enables damages to be recovered on behalf of the deceased ’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses .", "According to the case - law , the common law imposes a duty of care on prison authorities in respect of those in their custody . The prison authorities have a duty to exercise reasonable care in the prevention of injury and harm and a duty to provide medical care . This duty extends to the protection of a mentally ill prisoner against committing suicide . In GPE v. the Chief Constable of Greater Manchester [ DATE ] CARDINAL All England Law Reports CARDINAL , the custodial authority was held liable for failing to prevent a suicide .", "In Commissioner for the Police for the LOC v. PERSON [ DATE ] CARDINAL Weekly Law Reports CARDINAL , concerning the claims of the deceased ’s spouse under LAW , ORG confirmed that even in the case of a prisoner of apparently sound mind the authorities remain liable for a negligent failure to prevent his suicide , although in such a case the liability is shared with the deceased because of his voluntary act . Respect for personal autonomy did not preclude that steps be taken to “ control a prisoner ’s environment in non - invasive ways calculated to make suicide more difficult ” ( p. CARDINAL - B ) .", "As regards the standard of care , in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL , which concerned , inter alia , whether a continuous as opposed to a TIME watch should have been in place on a mentally ill prisoner at the relevant time , PERSON held that the duty to take reasonable care of such a prisoner", "“ should not and does not expect the same standard across the entire spectrum of situations , including the possibility of suicide , as it would in a psychiatric hospital outside prison . The duty is tailored to the act and functions performed . ”", "However , more recently , in ORG , DATE ) , ORG held in relation to the provision of ante - natal care to a pregnant woman :", "“ We are concerned with a remand prisoner , a high risk pregnancy . I can not regard PERSON as authority for the proposition that the plaintiff should not , while detained in GPE , be entitled to expect the same level of ante - natal care , both for herself and her unborn infants , as if she was at liberty , subject of course to the constraints of having to be escorted and , to some extent , movement being retarded by those requirements . ”" ]

[ "13", "3" ]

[]

[]

[ "2" ]

[]

[]

[ "The first applicant was born in DATE and lives in GPE ( GPE ) . The second applicant was born in DATE and died in DATE .", "On DATE the applicants’ property , comprising flat no . CARDINAL and appurtenant land situated in GPE , Intrarea PERSON no . CARDINAL , was seized by GPE no . CARDINAL/CARDINAL , following their decision to leave the country . No compensation was paid . No copy of the decision to seize the property was sent to the applicants .", "On DATE company ORG , a ORG - owned company responsible for the management of property belonging to the ORG , sold the flat to the then tenant , ORG , under PERSON no . LANGUAGE .", "On DATE the applicants brought court proceedings for restitutio in integrum and seeking to have the sale by the ORG declared null and void .", "On DATE the applicants lodged an application with the administrative authorities for restitution in kind of the property under Law no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG . So far they have not received any answer .", "On DATE ORG Instance allowed the applicants’ action in part . In the operative part of the judgment it held , inter alia , that there were no grounds for rescission of the sale by the ORG , but ordered ORG to allow the applicants to take possession of the flat and the appurtenant land . The court compared the property titles , finding that the seizure had been unlawful but that ORG had made the purchase in good faith .", "On DATE ORG allowed an appeal by ORG and by company ORG and , in the operative part of the judgment , varied the judgment of the first - instance court by dismissing the applicants’ action for recovery of the property . In its reasoning , the court considered that the first - instance court had been requested by the applicants to assess whether the seizure was null and void because they had not been sent a copy of the seizure decision , and that therefore the lower court should not have analysed the lawfulness of the seizure of its own motion . ORG also considered that the failure to inform the applicants of the seizure did not affect its validity and that the applicants had no valid property title .", "On DATE ORG , in the operative part of a final decision , dismissed as groundless an appeal on points of law by the applicants . In the reasoning of the judgment the court considered that although some of the ORG criticisms were well - founded , in particular regarding the misinterpretation of the law by ORG when it found that ORG had exceeded the limits of the request made by the applicants , those criticisms did not constitute grounds for amending the previous judgment in accordance with LAW , but only for removing its reasoning . Therefore , in the reasoning part of its decision , ORG considered , in line with the findings of the first - instance court , that the ORG had no valid title and that therefore the applicants had never lost their right of property . However , the court reasoned that as the applicants had not contested ORG ’s good faith in their appeal , ORG had correctly dismissed their claim for recovery of the property .", "NORP The relevant legal provisions and jurisprudence are set forth in the judgments GPE v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALXII ( extracts ) ) ; and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) ." ]

[ "P1" ]

[ "P1-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested and brought before an investigator who decided to remand him in custody on charges of sexual assault allegedly committed against a minor on DATE , an offence punishable with DATE imprisonment under LAW of LAW . The investigator 's decision was confirmed by a prosecutor .", "On DATE the investigator conducted searches in the applicant 's home .", "On DATE the applicant was released .", "In the course of the investigation a number of witnesses , the alleged victim and the applicant were heard and several forensic and medical reports were drawn up .", "On DATE the investigator submitted his conclusions to the prosecutor , proposing that the applicant should be indicted for sexual assault .", "On DATE ORG referred the case back to the investigator instructing him to undertake further investigation as to whether the applicant had raped the same girl on DATE , as alleged by her .", "Since the alleged victim had changed her address and could not be located , the investigation could not proceed and was suspended on DATE .", "NORP In DATE the case file was transmitted to the district police in GPE with instruction to continue seeking the alleged victim 's address . It appears that as of DATE , the date of the latest communication received from the parties , the investigation remained suspended .", "The relevant provisions of LAW ( “ ORG ” ) concerning decisions on pre - trial detention and the NORP authorities ' practice at the relevant time are summarised in the ORG 's judgments in several similar cases ( see , among others , the ORG v. GPE [ ORG ] , no . ORG , § § CARDINAL , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ORG ORG ( extracts ) ) .", "A legislative amendment that entered into force on DATE introduced a possibility for an accused person to request that his case be brought for trial if the investigation has not been completed within DATE in cases concerning serious offences and DATE in all other cases ( Article CARDINALa CCP as in force until DATE ) . In accordance with section CARDINAL of the transitory provisions to the DATE amendment , that possibility applies with immediate effect in respect of investigations opened before DATE . In DATE , Article CARDINAL was superseded by ORG CARDINAL and CARDINAL of the new ORG , which have the same wording .", "The procedure under those provisions is as follows . The accused person must submit a request to the relevant court which has DATE to examine the file . It may refer the case back to the prosecuting authorities or terminate the criminal proceedings . If the case is referred to the prosecutors , they have DATE to file an indictment with the trial court or to terminate the proceedings failing which the court is under a duty to terminate the proceedings against the accused person who had filed the request .", "The DATE amendment was introduced in ORG with the reasoning that it was necessary to secure observance of the right to trial within a reasonable time as guaranteed by the ORG ." ]

[ "5" ]

[ "5-3" ]

[]

[]

[]

[]

[ "The applicant is a NORP national , born in GPE in DATE . He is currently serving a life sentence in GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was tried before a jury at ORG on a charge of murder . According to the prosecution case , on DATE the applicant deliberately mounted a pavement and drove his car at a pedestrian ( “ M. ” ) , striking him . PERSON died on DATE of his injuries .", "The applicant maintained that PERSON had without provocation attacked and beaten him shortly before the incident . TIME , still dazed by the attack , he was driving his car along a street and saw PERSON throw or appear to throw a brick or similar missile at his vehicle . The applicant was forced to duck down with the result that he lost control of the car . When he regained control of the car he realised that he had hit something and that the car had been damaged . The windscreen and roof pillar ( which PERSON had hit ) were badly broken . He did not stop and drove to a garage where he left the car to be repaired . He was planning to collect the car the same day . Instead , as it turned out , it was collected by the police .", "The applicant later informed his girlfriend that PERSON had gone to throw a brick at him and that he had ducked , swerved and hit PERSON telephoned the police and inquired about PERSON ’s condition and whether he would obtain bail . The prosecution made a formal admission that DATE after the incident the applicant ’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account .", "On DATE the applicant went to a police station unaccompanied by a solicitor . He was arrested , charged with attempted murder and cautioned . He told the police that PERSON had beaten him for no reason and had thrown bricks at him . He stated repeatedly that he was sorry for what had happened and inquired about M. ’s condition . The prosecution accepted that the applicant made this statement to the police . The applicant did not say however that he had ducked and that the collision had been an accident . Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant . The applicant maintains that during the time he spent in custody at the police station on CARDINAL and DATE he wished to answer police questions but accepted the firm advice of his representative to remain silent .", "Before each interview the applicant was cautioned in the following terms :", "“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”", "On each occasion the applicant acknowledged that he understood the meaning of the caution . The applicant ’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions .", "The applicant was asked numerous questions about the incident on CARDINAL DATE and his involvement , if any , in it . He was asked , inter alia , about the conversation he had earlier in DATE with the police officer ; his acquaintance with PERSON and the fight they had had ; the evidence of the QUANTITY eyewitnesses ; whether the collision was an accident and the applicant ’s earlier explanations to his girlfriend .", "The applicant refused to comment .", "On DATE the police again interviewed the applicant under caution and in the presence of his solicitor . On this occasion the applicant answered fully the questions put to him . His account of the incident was that he believed PERSON to be throwing an object at his car , he ducked , lost control of the vehicle and hit PERSON by accident . The applicant stated that he then panicked and did not stop at the scene . At CARDINAL point in the first interview the applicant said that he did not know that he had hit PERSON until told by the police in that very interview . The applicant was also asked why he had swerved towards , rather than away from , a person whom he said was threatening him with a missile .", "Since PERSON had died in the meantime the applicant ’s charge was changed to CARDINAL of murder .", "At the trial CARDINAL eyewitnesses gave evidence for the prosecution . Both witnesses testified that they saw the applicant ’s car hit PERSON and drive off without hesitating or attempting to stop . CARDINAL of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road . It drove straight at LOC and hit him from behind as he walking along the pavement away from it . The car ’s speed was a QUANTITY but it may have speeded up a little before hitting PERSON witness had seen PERSON throwing a missile at the car .", "A pathologist testified that the bruising to the deceased ’s calves indicated that he had been struck from behind . He also conceded that bruising was consistent with PERSON walking or “ turning in some way ” .", "In his evidence to the court , the applicant stated that he had not stopped at the scene of the incident because he had been afraid of PERSON and because he , therefore , panicked . After the collision he went to see his girlfriend and told her that he had “ hit ” PERSON after he received a telephone call there saying that PERSON was in hospital . The applicant strongly disagreed with the pathologist ’s evidence . He insisted that PERSON had been facing the car throwing or appearing to throw a missile . The applicant confirmed the accuracy of the conversation he had with the police officer on DATE before the interview .", "The applicant testified that he had not answered the questions put to him during the police interview on DATE because his solicitor had advised him not to .", "The applicant waived legal professional privilege and his solicitor gave evidence . The solicitor testified that in private early on DATE the applicant had given the same account of an accident as he had given to his girlfriend . The solicitor , however , advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police . After further disclosure , he changed this advice and the applicant answered police questions .", "The passenger who was in the applicant ’s car at the time of the incident testified on the applicant ’s behalf , supporting his account .", "Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant ’s silence when interviewed by the police on DATE . Counsel for the prosecution indicated that :", "“ A proper inference to draw from his failure to say in the first formal interviews these things , is that this was not an accident at all , and that the idea of saying that it was an accident came to him later , and is designed to mislead you . ”", "In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant ’s failure to mention at the police interview on CARDINAL and DATE the facts he subsequently relied on in his defence . He stressed however that it was not obliged to hold the applicant ’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt . The judge continued :", "“ Now , in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors . For instance , the times of DATE when he was being interviewed ; his age and his experience of life ; his apparent mental capacity ; his state of health ... You have to bear in mind the legal advice he was given ...", "... You must , as best you can , judge the condition and capacity of this particular [ applicant ] on the particular occasion of these first formal interviews , and take into account any evidence that is before you as to his qualities , knowledge and fears , and whatever advice he was receiving at the time . ”", "The judge directed the jury that :", "“ The weight of any adverse inference which you are invited to draw in this case , may well be diminished by the evidence of things said by the [ applicant ] before the process of interviewing began and before he received his solicitor ’s representative ’s advice . Such things will be factors for you to consider in deciding what inferences , if any , should be drawn from his failure to mention these particular matters in the first round of formal interviews . ”", "The judge reminded the jury of what the applicant had related to his girlfriend on DATE of the incident and the similarity between that account and his subsequent account to the police on DATE . The jury was advised that this did not necessarily mean that that the account was true . The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial . He explained that this factor undermined the prosecution ’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant ’s silence during the first round of interviews .", "The judge also addressed the fact that the applicant remained silent on the advice of his legal representative . He stated :", "“ Now , you are entitled to draw inferences from his refusal to answer questions in the first CARDINAL interviews , but whether it is right to do so is for you to judge , and you may think ... that since the same account was apparently being given in detail before he was interviewed to [ the applicant ’s girlfriend ] and , it was being suggested ... before interview to [ a police officer ] and it was then given in detail on QUANTITY DATE to the police ... you may think ... that the reason why he did not say it to the police on DATE was that he was advised not to say anything by the solicitor . If that advice of the solicitor was bad advice ... you do not hold it against this [ applicant ] , and if you have any doubt about this question of whether it is right to hold the matter against the [ applicant ] , then if you have any doubt about it , you resolve any such doubt in his favour rather than against him . ”", "On DATE the applicant , by a unanimous verdict , was found guilty of murder . The applicant was sentenced to life imprisonment .", "On DATE the applicant ’s application for leave to appeal against his conviction was refused by a Single Judge . The Single Judge stated :", "“ The [ trial judge ’s ] direction can not be faulted . The fact that you were advised not to say anything by your solicitor ( whether that advice was good or bad ) is not an automatic reason for forbidding a jury to draw any inference from your silence . It is merely one of the circumstances DATE a powerful one – for the jury to take into account . In fact when the [ trial judge ] came to direct the jury he practically told them not to hold your silence against you ; and in view of the fact that you had given your account of it being an accident to your solicitor and to [ your girlfriend ] before being interviewed , it is virtually inconceivable that they did . ”", "The applicant renewed his application for leave to appeal before ORG . In the grounds of appeal reference was made , inter alia , to the fact that the judge had erred in allowing the jury to draw inferences from the applicant ’s silence at the police interviews on DATE . However before ORG the applicant ’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant ’s trial solicitor . Mr Justice PERSON in the Court of Appeal observed that the grounds of appeal prepared by the applicant ’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal . The applicant ’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation . On DATE , following argument on that ground alone , ORG refused the applicant ’s application for leave to appeal .", "Section CARDINAL of ORG LAW DATE provides that :", "“ CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused –", "( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or", "( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .", "Where this subsection applies ...", "( c ) the court , in determining whether there is a case to answer ; and", "( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .", "Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ”", "Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :", "“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .", "( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”", "Section CARDINAL ( CARDINAL ) adds that :", "“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”", "Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . The relevance of these dicta to directions under section CARDINAL of the same Act was confirmed by ORG in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .", "The ORG guideline direction at the time of ORG consideration of the applicant ’s appeal provided that :", "“ If he failed to mention [ a fact ] ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention .", "The law is that you may draw such inferences as appear proper from his failure to mention it at that time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such a fact at that time can not , on its own , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take into account as some additional support for the prosecution ’s case . It is for you to decide whether it is fair to do so . ”", "The dicta of Lord PERSON are as follows :", "“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :", "The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .", "It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .", "An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .", "Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .", "NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”", "The current specimen direction for DATE , up - dated in DATE in the light of the judgments of ORG in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) and in the instant case , provides :", "“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .", "The defendant as part of his defence has relied upon [ ... ] ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .", "The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .", "If you are sure that he did fail to mention [ ... ] when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .", "Failure to mention [ ... ] can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .", "[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is [ ... ] . If you think this amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”", "In NORP v. ORG confirmed that legal advice is CARDINAL circumstance to be taken into account by the jury . ORG explained CARDINAL conditions that had to be met before section CARDINAL of the DATE could allow inferences to be drawn . As regards the sixth condition , Lord PERSON stated :", "“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ‘ in the LOC restrictively : matters such as the time of day , the defendant ’s age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...", "Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”", "In NORP v. FAC ( [ DATE ] Criminal Law Reports CARDINAL ) ORG stressed the defendant ’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury ( by way of oral evidence from the defendant himself and / or the solicitor who gave the advice ) about the contents of the advice , that is the reasons why he was so advised .", "The approach in NORP v. PERSON was confirmed in the later cases of NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , and PERSON judgment of DATE , unreported ) .", "In NORP v. PERSON ( [ DATE ] ORG CARDINAL ) ORG held that where a trial judge decides , as a matter of law , that no jury could properly conclude that the requirements of section CARDINAL of the DATE have been satisfied and , therefore , it is not open to the jury to draw an adverse inference under section GPE ) , he must specifically direct the jury not to draw any inference . In NORP v. PERSON ( judgment of DATE : “ The NORP ” , DATE ) ORG ( per Lord Justice Auld ) stated :", "“ Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt . Something more may be required , which may be provided by an adverse inference from silence if they think it proper to draw CARDINAL . What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of section CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”", "The Government submitted in the ORG v. the GPE case ( judgment of DATE , no . CARDINAL , to be published in LOC ) that the case of NORP v. PERSON is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under LAW of LAW .", "In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial .", "Section CARDINAL(CARDINAL ) of LAW DATE , as amended by LAW DATE , provides a single , composite ground of appeal against a criminal conviction . It states that ORG :", "“ shall allow an appeal against conviction if it thinks that the conviction is unsafe ” ." ]

[]

[]

[]

[]

[]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , his mother . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested on suspicion of aggravated theft , which he had allegedly committed CARDINAL June CARDINAL .", "On DATE the prosecutor of ORG committed the applicant and CARDINAL other individuals for trial on charges of aggravated theft . They were accused of having illegally transferred stocks from investment fund portfolios with the intention of using them on the stock market and then returning them to their real owner before their absence was noticed .", "NORP Before ORG the applicant submitted that his actions could not be classified as theft , as at that time LAW and legal opinion excluded intangible goods , and thus stocks , from being the object of a theft . In the applicant ’s view , his actions could be interpreted as unauthorised stock trading under LAW ( Law no . CARDINAL ) or under LAW . During the proceedings , he requested that the evidence be considered under LAW ( Law no . MONEY ) , which in his view was a more lenient piece of legislation .", "On DATE the ORG found the applicant guilty of aiding and abetting in theft ( complicitate la furt ) pursuant to ORG CARDINAL and CARDINAL of LAW and of money laundering pursuant to LAW no . MONEY ) . He was sentenced to CARDINAL years’ imprisonment and received a DATE restriction on his rights to vote and to hold a position of power ( LAW ( a ) and ( b ) of LAW as in force at the material time ) .", "NORP In deciding that the crime committed should be classified as theft , ORG stated :", "“ ... [ GPE are intangible goods [ bun incorporal ] of economic value ... and can be made subject to charge . Therefore , stocks may constitute the object of a theft ... The ‘ taking’ consisted of a virtual , electronic operation , a data transfer - that is to say , the stocks were moved from CARDINAL account to another .", "...", "The evidence shows that the purpose of this action was to acquire the stocks illegitimately , not just to use them . ”", "ORG considered that , although the applicant had not been the person making the transfers , he had been behind the operation and was therefore an accomplice .", "ORG excluded the applicability of the Security and LAW as the culprits’ actions could not be classified as broking for the purposes of that Act . It also excluded the applicability of LAW to the offence , as the culprits had not carried out any “ electronic commerce ” activities for the purposes of that Act .", "The applicant appealed , alleging in particular that the offence could not be classified as theft . He requested that LAW and the Prevention and Punishment of Money Laundering Act be applied to his case .", "In a decision given on DATE , ORG dismissed the applicant ’s arguments concerning the legal classification of the crime he had committed , endorsing the reasons given by the firstinstance court on that point . However , the court amended the firstinstance judgment , acquitting the applicant of money laundering . The sentence remained unchanged .", "NORP The applicant lodged an appeal on points of law with ORG and ORG , relying on his previous arguments regarding the classification of the crime .", "In a final decision of CARDINAL DATE ORG dismissed the appeal , for reasons similar to the ones given by the lower courts .", "The applicant served his sentence and on DATE he was released and placed on probation .", "The relevant Articles of LAW in force at the material time read as follows :", "“ ( CARDINAL ) The act of taking a movable asset from another person ’s possession or detainment , without the latter ’s consent , in order to make it one ’s own without right , shall be punishable by CARDINAL to CARDINAL years’ imprisonment .", "( CARDINAL ) ORG assets shall also mean any form of energy that has economic value , as well as documents . ”", "“ ( CARDINAL ) Theft committed in the following circumstances :", "( a ) by CARDINAL or more persons together ;", "...", "shall be punishable by DATE imprisonment . ”", "The relevant provision of the Prevention and Punishment of Money Laundering Act ( which entered into force on DATE ) reads as follows :", "“ ( CARDINAL ) The following shall be considered money laundering and shall be punishable by CARDINAL to twelve years’ imprisonment :", "( a ) ... the exchange or transfer of assets , knowing that they are derived from criminal activity ... offences committed through computers ; offences committed through credit cards with a view to concealing or disguising their illicit origin , and assistance to persons who are involved in such activities or under suspicion of trying to escape the legal consequences of their actions ;", "( c ) NORP the acquisition , possession or use of such property , knowing that it derives from one of the offences under paragraph CARDINAL(a ) . ”", "On DATE , a new version of the Prevention and Punishment of Money Laundering Act entered into force ( Law no . CARDINAL/CARDINAL ) , which contains a similar prohibition under its Article CARDINAL .", "Article CARDINAL of LAW ( which entered into force on DATE ) prohibits any unauthorised operations in data - processing systems .", "An example of legal opinion at the material time on what constitutes the object of a theft is as follows :", "“ Theft can only concern tangible assets ( bunuri corporale ) ... LAW includes documents in the sphere of movable assets ... it is irrelevant whether the document has an intrinsic value ( for example a historical document ) or whether it only carries an economic value that it bears and with which it is inextricably linked ( for example a share ) . The latter case is an exception from the rule that the object of a theft must be a tangible asset , as what is taken in this case is an intangible asset . ” ( PERSON , PERSON , PERSON , GPE penal , PERSON . PERSON , DATE , p. CARDINAL )", "At the ORG ’s request , the ORG submitted information on how similar cases had been treated by the domestic courts . The only court which had dealt with similar cases to that of the applicant was ORG , which applied LAW to the actions carried out . That court gave a decision on DATE , in which it convicted the accused of a similar theft .", "ORG ( ETS no . CARDINAL ) was opened for signature on DATE in GPE . It entered into force on DATE . The ORG was ratified by GPE on DATE and became binding on the respondent ORG on DATE . Article CARDINAL of the Convention on Cybercrime reads as follows :", "“ Each ORG shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law , when committed intentionally and without right , the input , alteration , deletion , or suppression of computer data , resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic , regardless whether or not the data is directly readable and intelligible . A ORG may require an intent to defraud , or similar dishonest intent , before criminal liability attaches . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently serving a sentence of imprisonment in FAC . He is represented before ORG and PERSON , solicitors practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE , PERSON died as a result of severe burns sustained during an incident in a street on TIME DATE , when he was sprayed with a form of accelerant and the back of his clothing set alight .", "As a result of their investigation , the police arrested and charged in GPE CARDINAL men , the applicant , PERSON and PERSON . A fourth man implicated in the incident , PERSON , had gone to GPE . He was arrested and tried in GPE and convicted of manslaughter .", "The trial in GPE took place in DATE . The prosecution case was that PERSON and PERSON had set ORG on fire while the applicant assisted by acting , inter alia , as lookout and that PERSON had committed subsequent acts intended to pervert the course of justice ( namely , by covering up the evidence of the incident ) . In the case of PERSON , the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them ; on covert tape recordings of conversations between him and his co - accused ; and on the lies which he had told the police . As regarded the applicant , the prosecution relied on his own account that he had watched PERSON and PERSON carry out the attack , making no attempt to leave and doing nothing to prevent what happened . Afterwards he had taken ORG personal stereo . In his case too , the prosecution relied on the covert recordings and the lies he told .", "The applicant had a history of mental illness and delusions . The doctor in charge of his treatment for DATE stated that the applicant suffered from a longstanding personality disorder which at times of stress could be prone to paranoid states of mind . Expert opinion was obtained by the defence at the beginning of the trial as to whether he was fit to stand trial . In a report dated DATE , PERSON stated :", "“ ... [ the applicant ] is fit to plead and stand trial . He gave a clear and consistent account of his version of events . It coincides with the known facts and I consider him well enough at the present time to instruct his solicitors and to enter an appropriate plea . He is also able to engage in court procedure . The only issue that is less certain is his ability to give evidence on his own behalf . ”", "During the trial , on DATE , PERSON saw the applicant again . He took the view that the applicant had improved and was capable of giving evidence .", "However , the applicant did not give evidence during the trial and counsel made no submission to the judge that he should exercise his powers under section CARDINAL(CARDINAL)(b ) of ORG LAW DATE not to draw inferences from his silence . PERSON gave evidence for the defence to the effect that the applicant ’s personality disorder would have inhibited his ability to walk away from the incident and made it unlikely that he would have taken any part in it .", "In his summing - up , the judge directed the jury as to the circumstances in which they might draw an inference from the applicant ’s failure to give evidence if they thought appropriate , warning inter alia :", "“ Each [ defendant ] is entitled to remain silent and to require the prosecution to prove its case , and you must not assume that he is guilty just because he has not given evidence , because failure to give evidence can not on its own prove guilt .", "If , for instance , you are not sure that the prosecution has made out any case against the defendant , his failure to give evidence will add nothing to the prosecution case ... ”", "On DATE , the applicant was acquitted of murder and convicted of manslaughter and a count of perverting the course of justice . He was sentenced to CARDINAL years’ imprisonment for manslaughter and DATE on the second count . PERSON was convicted of murder .", "The applicant was refused permission to appeal by a single judge of ORG . He renewed his application . At a hearing held on DATE concerning the applications of himself and PERSON , the applicant ’s counsel informed the court that in light of instructions received from the applicant he no longer felt able to continue to represent him . The court adjourned consideration of the applicant ’s applications and directed that the prison authority should obtain a medical report on his current psychiatric condition and whether he was able to instruct lawyers .", "An examination took place in DATE and indications were given that the applicant was capable of giving instructions . The court adjourned the matter further in DATE to give the applicant ’s new counsel time to prepare . The applicant changed his solicitors and counsel on a number of occasions . The case finally came for hearing on DATE .", "As regarded the applicant ’s argument that new evidence should be admitted concerning his mental state at the time of trial showing that the trial judge should not have allowed inferences to be drawn from his failure to give evidence , Lord Justice PERSON said :", "“ Put shortly , the contention before us is that it was sufficiently clear that it was undesirable for [ the applicant ] to give evidence for the judge to have been asked to give a ruling under section CARDINAL(CARDINAL)(b ) , in the hope that the otherwise damaging direction to the jury as to [ the applicant ’s ] failure to give evidence would be withheld .", "...", "Throughout the trial there are various notes [ by the solicitors ] about [ the applicant ] complaining of various events and engaging in inappropriate discussion and making inappropriate statements , including fears about aliens and unidentified flying objects . Also he expressed concern to his solicitor ’s representative about sitting in court .", "On DATE ... the applicant was seen again by PERSON ... the upshot of that encounter appears to have been that the doctor thought that the applicant had improved , and was capable of giving evidence .", "There were a number of disturbing observations by [ the applicant ] after that but on DATE there was a conference between PERSON and the lawyers ... when PERSON PERSON appears to have said that , in light of his most recent examination ... he effectively withdrew what he had said in the report of CARDINALst September CARDINAL .", "... [ PERSON ] says this :", "‘ On DATE I am much less convinced that he was unable to give evidence at all and in fact , on balance , I have concluded that he probably could , although his ability to do so credibly and persuasively was almost impossible to predict . Bearing in mind fluctuations one would have expected in the context underlying mental health problems . It is possible that he could have done so at certain times and other times he would have been less able to do so . ... ’", "He added that his agreement that [ the applicant ] was able to give evidence was ‘ couched with a certain degree of ORG and he emphasised the need for [ the applicant ] to have regular breaks during the course of the trial .", "We do not know , as we have said , what decision was then taken or the basis upon which it was taken . But the position seems to us quite clear that advice had been given to those representing [ the applicant ] that he could , in certain circumstances , and subject to certain conditions , give evidence . It would therefore have been extremely difficult for those representing [ the applicant ] properly to make any submission to the judge that he should exercise his powers under section CARDINAL(CARDINAL)(b ) .", "However broadly one interprets that section , it is clear and accepted that a decision of the judge must be based upon evidential material . The evidence that would have been given to the judge , so far as one can work it out , would have been the evidence of PERSON that he has sketched out in his helpful recent report . If that evidence had been given to [ the trial judge ] it seems extremely difficult to see how he could have said that it met the requirements of section CARDINAL(CARDINAL)(b ) .", "It is argued before us that this should be regarded as a fresh evidence case ... and therefore the fresh evidence should be , first of all , the observations of the solicitors ... and secondly the recent report of PERSON . The difficulty about that one would have expected the observations made by the solicitors to have been drawn to PERSON attention , and certainly drawn to the attention of leading counsel . Although one can not speculate , it may well be precisely because of that that PERSON was asked to intervene again on DATE . But be that as it may , it can not be material that can be used to offset the professional view of the doctor . The professional view of the doctor was that [ the applicant ] could , with some caution , give evidence . In our judgment therefore this matter does not fall within section CARDINAL ) at all . It is a case where a decision was taken by leading counsel at trial , who had effectively all the information now before the court .", "Of course , as [ counsel for the applicant ] has argued and argued powerfully , this ORG will not always exclude cogent and relevant new evidence just because it was available at the original trial and not made use of . But there are limits to that latitude . CARDINAL of them is where it is apparent on all material that the advisors were perfectly seized of the factual position and made a decision , rightly or wrongly , that they could not follow a particular course . Everything that we have seen about how this case was conducted suggests that both the solicitors and counsel representing [ the applicant ] were giving the matter the most anxious and urgent consideration , down to , as we have said , bringing in PERSON for a further report . It is really impossible , at this stage , to suggest that the matter should be re - opened . Indeed , as we have said , even if it were to be re - opened it seems to us that it would founder on the evidence that we now have from PERSON , which is consistent with the advice that he is reported to have given on DATE and thereafter ...", "We have gone into this matter in some considerable detail because it has been carefully and strongly pressed by [ counsel for the applicant ] . We are well aware of the concerns that are felt about the impact of [ the applicant ’s ] mental state upon this trial . But there is really nothing in the matter that has been put before us to suggest that it would be justified to re - open that issue , which we are satisfied was carefully considered on the basis of full information at the time of the trial , and which it should be noted played no part in the grounds of appeal that were originally put before this Court ... ”", "ORG rejected the applicant ’s other grounds of appeal but on his appeal against sentence reduced the sentence on manslaughter from DATE .", "Section CARDINAL(CARDINAL)-(CARDINAL ) of ORG LAW DATE ( LAW ) provide as relevant :", "“ ( CARDINAL ) At the trial of any person who has attained DATE for an offence , subsections ( CARDINAL ) and ( CARDINAL ) below apply unless-", "( a ) the accused ’s guilt is not in issue ; or", "( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;", "but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .", "( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .", "( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”" ]

[]

[]

[]

[]

[]

[]

[ "The first applicant , PERSON , and the second applicant , GPE Muratovic , are ethnic NORP who were born in DATE and DATE , respectively , and live in Randers , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "The applicants and their CARDINAL children entered GPE on DATE without any travel / identification papers and requested asylum in that while they were living in the village GPE in GPE in DATE NORP men subjected them to a violent assault which included rape of the women . The applicants succeeded in fleeing to GPE and thereon to GPE .", "On DATE ORG ) refused to grant the applicants asylum , a decision which was upheld on appeal by ORG ( PERSON ) on DATE . Both instances found it established that the applicants and their children had been subjected to serious violence in DATE , but found that the assault should be seen , not so much as a result of the applicants being NORP , but in connection with the situation at the relevant time in GPE . In this respect it was recalled that under the mandate of ORG , the ORG - led international ORG , ORG , being responsible for establishing and maintaining security in GPE , on DATE intervened in the conflict between NORP and NORP forces , and that subsequent thereto , for a short while , NORP armed groups took over specific areas .", "ORG stated in addition , that presently the general security situation as to NORP in GPE had improved according to inter alia ORG ’s position paper of DATE , background no . CARDINAL , and ORG ’s and ORG ’s report on ethnic minorities , background no . CARDINAL .", "Finally , although finding it established that the applicants were affected by their experiences to the detriment of their mental health , ORG did not find that a concrete danger existed that they would be subjected to assaults if returned . They were ordered to leave the country immediately .", "On DATE the applicants applied ORG ( PERSON for PERSON , ORG ) for a residence permit either on humanitarian grounds pursuant to section CARDINAL b of LAW ( PERSON ) or in the alternative due to extraordinary circumstances pursuant to section CARDINAL c of LAW . In support of their application they submitted statements by doctors from which it appeared inter alia that the first applicant had been ill for DATE , notably suffering from chronic headache ; that he was suffering from ORG ( PTSD ) ; that he had received treatment by a psychiatrist and a psychologist , and that he was taking antidepressive medication . Moreover , according to a statement of DATE by a psychologist , the first applicant had expressed thoughts of suicide in case he would be returned to GPE . With regard to the second applicant it appeared inter alia that she had received treatment by a psychologist and that she was taking tranquillizers .", "By decision of DATE ORG refused to grant the applicants a residence permit pursuant to section CARDINAL b of LAW since they did not suffer from a very serious physical or mental illness , which could justify the granting of a residence permit on humanitarian grounds . Moreover , the Ministry noted that in general the fact that a person had expressed contemplation of suicide was insufficient to fulfil the criteria under LAW b of LAW . In addition , it had not been established that the first applicant was suffering from a mental illness , which according to a concrete medical assessment entailed a significant risk that he would commit suicide . The applicants were ordered to leave the country without delay .", "By decision of DATE ORG refused to grant the applicants a residence permit pursuant to LAW CARDINAL c of LAW finding that no extraordinary circumstances existed . The applicants did not appeal against the decision to ORG .", "LAW and GPE in GPE .", "", "According to information provided by the Government , in DATE GPE evacuated a total of CARDINAL GPE , which were selected together with ORG . The applicants in the present case were not among those evacuees . They entered GPE themselves in DATE . A “ FAC ” of DATE created the legal basis at domestic level for receiving displaced persons from GPE with a need for temporary protection . The LAW was repealed in DATE . At the same time a provision was inserted in LAW introducing the possibility of granting a residence permit to distressed persons from GPE assumed to need temporary protection ( now section CARDINAL e ( CARDINAL ) ) . A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in GPE and formerly held a residence permit pursuant to the “ GPE Emergency Act ” or has been registered as an asylum - seeker before DATE . The assessment whether applicants are eligible for a residence permit under section CARDINAL e ( CARDINAL ) of LAW is made on the basis of ORG recommendations . Thus , in accordance with the ORG recommendations it is possible to issue residence permits under LAW ) to persons - who formerly held a residence permit under LAW or who applied for asylum before DATE – and who can be referred to CARDINAL of the categories of “ chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Severely handicapped persons ( including their caregivers ) whose wellbeing depends on a specialised support system not yet available in GPE ” ; “ Unaccompanied elderly persons who have no relatives or any other form of societal support in GPE ” ; and “ Separated children without relatives or caregivers in GPE , and for whom it is found not to be in the best interest to return to GPE ” . AppCARDINALications for a residence permit under section CARDINAL e ( CARDINAL ) of LAW are determined in the first instance by ORG and in the second instance by ORG .", "The applicants in the present case are not covered by section CARDINAL CARDINAL ( e ) of LAW because they never held a residence permit under the “ GPE Emergency Act ” and they entered GPE after DATE . However - like asylum - seekers from other countries – they had the possibility of applying for asylum pursuant to section CARDINAL of LAW , for a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW , or for a residence permit due to extraordinary circumstances pursuant to section CARDINAL c of the Act .", "Asylum is granted to aliens , who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by ORG and in the second instance by ORG , which is an independent quasi - judicial body that is not subject to any instructions from ORG . Thus , ORG has no authority to decide applications for asylum . ORG are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases .", "The granting of a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW is a discretionary decision , which according to practice may be granted to persons who do not satisfy the conditions of LAW , but who is suffering from very severe physical or mental illness ( unless the possibility of receiving the requisite medical assistance exists in the applicant ’s country of origin ) . Applications for a residence permit on humanitarian grounds cf . section CARDINAL b ( CARDINAL ) are determined by ORG .", "A residence permit may be granted pursuant to section CARDINAL c of LAW on a discretionary basis , if due to extraordinary circumstances , there are strong grounds for granting such . AppCARDINALications for a residence permit under this section of the LAW are determined in the first instance by ORG and in the second instance by ORG .", "According to LAW an alien whose application for a residence permit for GPE has been refused must leave the country . Furthermore , under LAW it is possible to provide financial assistance if the person in question returns without undue delay voluntary .", "In connection with the forced return of aliens from GPE , UNMIK ( ORG in GPE ) is the relevant partner . In every case there is a close dialogue between the NORP National Commissioner of Police and UNMIK . Firstly the NORP National Commissioner of Police notifies UNMIK about the return to GPE of GPE whose applications for a residence permit in GPE have been refused . Such notifications state the time of the individual ’s departure from GPE and entry into GPE and inform of decisions made by the NORP authorities and the individual ’s personal situation , including his or her home town in GPE , the languages mastered by the individual and where his or her family members are staying . It also appears from the notification if the individual has been expelled due to crime . The notifications also state particulars on the individual ’s health status . This notification procedure was first established at a meeting held in GPE from CARDINAL to DATE between officials of ORG , ORG and UNMIK . The notification procedure was confirmed and expanded at a meeting in GPE on DATE between a delegation of high officials from the immigration authorities and UNMIK , who agreed that UNMIK will be provided with extended information , especially concerning the mental status of GPE who are non - voluntarily sent back to GPE in order to support UNMIK in its efforts to solve its task . Such information will be available to UNMIK by offering the GPE in question a voluntary medical status report prior to the return to GPE . ORG Commissioner of Police has presented to UNMIK a number of PERSON whose applications for a residence permit in GPE have been refused for which reason they have had to leave GPE . In some cases PERSON objected to the return of the persons in question . In such situations the NORP National Commissioner of Police has suspended the return until further notice .", "In the present case , the NORP National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicants has not been planned yet . Normally a forced return takes quite some time , not CARDINAL or three months .", "Relevant international materials", "With regard to the current security situation in GPE , the following statements/ findings are of particular relevance :", "The Secretary General on ORG in GPE stated in his report of DATE covering the activities of UNMIK and the developments in GPE , GPE , and GPE among other things that given the continued violence , harassment and discrimination faced by minorities , achieving sustainable minority returns to GPE was difficult , time - consuming and resource - intensive ;", "In his report of DATE he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within GPE ;", "In his report of DATE he stated inter alia that despite setbacks resulting from recent violent incidents involving GPE NORP victims , the overall rate of returns continued to accelerate during the reporting period . Over CARDINAL displaced persons had returned so far that year to areas where they were a minority ( including CARDINAL ORG , CARDINAL ORG NORP , CARDINAL NORP , CARDINAL PERSON and CARDINAL GPE NORP ) . Funding expected from several major donors had been provided in GPE and work on a number of returns projects had begun in earnest , including the return of GPE NORP to GPE ( NORP region ) and LOC ( NORP region ) , and ORG / NORP returns to PERSON ( GPE ) and GPE town . The heightened level of security within ORG and other minority communities had not resulted in the cancelling of any returns project , but it had led to numerous postponements of returns activities , at a stage in DATE where such delays may mean that returns are not possible until DATE . It was also considered likely to have a dampening effect on ORG return .", "The Tenth Assessment of the Situation of Ethnic Minorities in GPE of DATE , conducted jointly by ORG and the ORG , stated that minorities continue to face varying degrees of harassment , intimidation and provocation , as well as limited freedom of movement , and that considering the overall situation described in the report , the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future , underscoring the continuing need for international protection for members of ethnic communities , in particular GPE NORP , GPE and NORP ;", "The UNHCR Position Paper on the continued Protection Needs of individuals from GPE of DATE stated that especially GPE NORP and GPE , but also GPE and NORP should continue to benefit from international protection in countries of asylum . ORG stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions . Any such voluntary return movements should be properly coordinated , and re - integration should be supported through assistance to ensure sustainability . ORG , GPE and NORP individuals or families should not be forced or induced to return to GPE .", "The First Vice - President of ORG on LAW , recommended in his mission report of DATE “ ORG and GPE ” for ORG , inter alia that GPE asylum seeker / returnees ( from LOC ) , who fled GPE , should not be returned to GPE unless they wish to return and they are advised by PERSON and UNCHR that it is safe for them personally to return to their homes , and", "In its report of DATE and GPE ( GPE ) “ Prisoners in our own homes ” : ORG concerns for the human rights of minorities in GPE - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from GPE and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “ voluntarily return ” . ORG considered that the forcible return of members of minority groups to GPE would be a violation of the principle of non - refoulement and place minority individuals at risk .", "It follows from a “ Memorandum of Understanding ” between the Federal Minister of the Interior of GPE and GPE the Secretary - General of ORG for GPE of DATE that CARDINAL members of ethnic minorities from GPE are required to leave GPE . It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to GPE , as from DATE . In DATE GPE would return CARDINAL persons . This figure would include members of the NORP , NORP , PERSON and GPE minority communities , as well as GPE and NORP minorities . As to the latter CARDINAL groups of minorities , they would be returned depending on the results of an individualised screening process performed by UNMIK . Members of the NORP and GPE communities would not be returned in DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is an NORP national , born in DATE and living in GPE . He is a tax consultant by profession . He is represented before the Court by Mr. PERSON , a lawyer practising in GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant drove on the ORG motorway in GPE from GPE in the direction of the FAC .", "On DATE ORG Bezirkshauptmannschaft ) issued a penal order ( PERSON ) against the applicant . It found the applicant guilty of having committed the following CARDINAL speeding offences contrary to LAW ( Straßenverkehrsordnung ) on DATE on the ORG motorway :", "CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of ORG . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG ( Verordnung des Bundesministers für öffentliche ORG , ORG CARDINAL/CARDINAL ) .", "CARDINAL ) The applicant had also exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of Zams . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .", "The applicant was fined ATS CARDINAL and ATS CARDINAL respectively , with imprisonment of DATE and DATE in default . He did not appeal against the penal order and paid the fine imposed on him .", "On DATE ORG issued a penal order against the applicant which related to the following CARDINAL offences of speeding committed on DATE on the ORG motorway :", "CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of PERSON . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .", "CARDINAL ) The applicant had also exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY CARDINAL,CARDINAL in the district of LOC . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .", "CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road FAC in the district of GPE . This act constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .", "CARDINAL ) The applicant had exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of ORG . This constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .", "CARDINAL ) The applicant had driven in excess of the maximum speed permitted on the ORG motorway , namely at QUANTITY , during TIME at road QUANTITY CARDINAL,CARDINAL in the district of QUANTITY . This constituted an offence under LAW ( a ) of LAW , in conjunction with LAW Federal Minister for ORG .", "CARDINAL ) The applicant had exceeded the speed limit of QUANTITY / h imposed by a road sign ( Section CARDINAL sub - section A ( CARDINAL a ) of LAW ) by QUANTITY / h at TIME at road QUANTITY in the district of QUANTITY . This act constituted an offence under LAW sub - section A ( CARDINAL a ) of LAW .", "The applicant was fined ATS DATE , CARDINAL and CARDINAL respectively , with imprisonment of DATE , DATE , DATE , DATE , DATE and TIME in default . Thus , the fine imposed amounted to ORG CARDINAL or PERCENT CARDINAL days’ imprisonment in default .", "On DATE the applicant appealed . He submitted that he had already been fined for speeding on DATE on the ORG motorway by ORG and that it was unfair to impose further fines on him .", "On DATE ORG for the Tyrol ( Unabhängiger Verwaltungssenat ) dismissed the applicant ’s appeal .", "On DATE the applicant filed a complaint with ORG ) , in which he submitted that his conviction for CARDINAL offences of speeding in the course of CARDINAL journey was an exaggerated formalism and inherently unfair . He submitted , in particular , that LAW of LAW ( GPE ) , which provided that in CARDINAL penal order a penalty for each single offence be imposed , should be annulled ( see “ Relevant Domestic Law ” below ) .", "On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . This decision was served on the applicant ’s lawyer on DATE . The applicant did not lodge a complaint with ORG ( Verwaltungsgerichthof ) .", "B. Relevant domestic law", "Section CARDINAL sub - section A ( CARDINAL a ) of LAW ( Straßenverkehrsordnung ) prohibits driving in excess of the speed limit indicated on a road sign .", "Section CARDINAL of the Ordinance of the Federal Minister for Public Economy and Traffic ( Verordnung des Bundesministers für öffentliche ORG , ORG CARDINAL/CARDINAL ) prohibits driving in excess of the maximum speed limit permitted on ORG at TIME . This ordinance is based on FAC .", "Under section CARDINAL ( CARDINAL ) ( a ) of LAW , breaches of its provisions and its subsidiary ordinances are punishable with a fine of up to ATS CARDINAL.CARDINAL , with imprisonment of DATE in default of payment .", "Section CARDINAL of LAW ( GPE ) , insofar as relevant , reads as follows :", "“ ( CARDINAL ) If somebody has committed several administrative offences by performing different acts or if CARDINAL single act constitutes at the same time different offences which do not exclude each other , a penalty has to be imposed for every single offence . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in the town of PERSON in LOC .", "On DATE the applicant sued her former employer , a private company , for reinstatement , payment of wage arrears and compensation for non - pecuniary damage .", "On DATE the ORG dismissed the action . On DATE the applicant lodged before ORG her statement of appeal against the judgment .", "ORG accepted the statement of appeal and fixed a hearing for DATE . According to the Government , on DATE ORG summonsed the parties for the appeal hearing . The Government provided the ORG with a copy of the covering letter of CARDINAL DATE sent by ORG to ORG and the parties , including the applicant . The letter indicated that ORG had sent the case - file to ORG and that the appeal hearing had been fixed for DATE , at TIME The Government also submitted copies of receipts issued by the local post office on DATE showing that it had accepted for delivery CARDINAL registered letters from ORG .", "On DATE ORG , in the presence of the defendant 's representative , upheld the judgment of DATE . The applicant did not attend the hearing . According to her , in the TIME of DATE she discovered the letter with summonses to the hearing of CARDINAL DATE in her post box .", "On DATE the applicant sued her former employer for provision of free housing . On DATE the ORG dismissed the action . The judgment was upheld on appeal and became final on DATE", "In DATE the applicant again sued her former employer for provision of free housing . On DATE ORG , in the final instance , disallowed the action because the same dispute between the same parties had been already determined by the final judgment of DATE .", "In DATE the applicant requested the Elektrostal ORG to quash the judgment of DATE , re - open the proceedings due to newly - discovered evidence and re - examine her action . On DATE ORG , in the final instance , dismissed request because there was no newly - discovered evidence in the case .", "The RSFSR Code of Civil Procedure of CARDINAL DATE ( in force at the material time ) :", "“ Parties and their representatives are to be notified with court summonses of a date and place of a court hearing or certain procedural actions ...", "A summons is to be served on parties and their representatives in such a way that they would have enough time to appear at a hearing and prepare their case ...", "Where necessary , parties and their representatives ... may be summonsed by a phone call or a telegram . ”", "“ Summonses are to be sent by mail or by courier . A time when a summons was served on an addressee is to be recorded on the summons and its copy which is to be returned to a court ... ”", "“ A summons is to be served on a person against his / her signature made on a copy of the summons which is to be returned to a court ... ”", "“ A civil case is to be heard in a court session with mandatory notification to all parties to the case ... ”", "“ If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned ... ”" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant lived in a long - term relationship ( cohabitation ) with ORG , who died in DATE . On DATE she lodged a civil action with ORG against his sons , NORP and NORP , for recognition of her ownership rights to the property she had possessed and maintained during her cohabitation with J.L.", "At its first hearing on CARDINAL DATE the court heard the parties .", "On DATE ORG stayed the proceedings , as the applicant ’s counsel had failed to submit some important documents concerning the ownership of the disputed property . The applicant appealed and on CARDINAL DATE ORG quashed that decision .", "Subsequent hearings in the case were held on DATE and CARDINAL DATE . The court questioned the applicant and CARDINAL witnesses . Further , it asked counsel to define precisely the subject matter of the claim .", "The hearing scheduled for CARDINAL DATE was postponed due to the applicant ’s non - appearance .", "The hearing of DATE was adjourned at the parties’ request , in connection with their wish to reach a friendly settlement .", "On DATE and DATE the court heard CARDINAL witnesses .", "Following a request by counsel , on CARDINAL DATE the court appointed an expert to prepare a valuation of the property . The expert submitted his opinion on DATE .", "At the hearing of DATE counsel contested the findings contained in the expert ’s report . The hearing was subsequently adjourned as the parties again expressed their wish to reach a friendly settlement of the case .", "On DATE counsel informed ORG about the parties’ failure to reach an agreement .", "Hearings in the case were held on CARDINAL DATE and DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE . The parties were again examined , as well as CARDINAL witnesses .", "On DATE the court requested the expert to supplement his opinion . In this connection the defendants were asked to deliver additional documents . They failed , however , to comply with this request . Hence , the expert was not able to supplement his opinion and in DATE he returned the case file to the court .", "On DATE ORG appointed another expert , ORG , who submitted his opinion on DATE .", "On CARDINAL DATE the applicant decided to withdraw her claim for transfer of ownership and submitted a claim for compensation instead .", "The expert , as well as the defendants , was summoned for a hearing scheduled for DATE , but they all failed to comply with the summons and did not appear at the trial .", "By the decision of CARDINAL DATE ORG exempted the applicant from court fees for lodging her new claim .", "On DATE ORG decided that it lacked jurisdiction ratione materiae ( due to the high value of the transformed claim ) and transferred the case to ORG .", "On DATE ORG again summoned expert ORG and adjourned the hearing until DATE . The expert again failed to attend that hearing .", "On DATE the court found that it lacked jurisdiction ratione loci and materiae and on CARDINAL DATE transferred the case to ORG . No hearing was scheduled until DATE .", "The hearing of DATE had to be adjourned since neither the applicant nor her counsel had appeared .", "The subsequent hearings scheduled for DATE and CARDINAL September CARDINAL were adjourned due to the defendants’ absence .", "The hearings scheduled for DATE , DATE and DATE were also adjourned , due to the non - appearance of the applicant and her counsel ( although they had both been summoned correctly ) .", "On DATE the court appointed another expert , who submitted her opinion DATE .", "The hearing of DATE was adjourned due to the GPE failure to appear .", "Neither the applicant , nor her counsel appeared at the hearings scheduled for DATE , DATE , DATE , DATE , DATE and DATE and DATE . In consequence all these hearings had to be adjourned .", "On DATE the ORG delivered a decision in the applicant ’s favour , awarding her MONEY ( ORG ) .", "On DATE NORP ( CARDINAL of the defendants ) requested from the court the written grounds of that decision . His request was rejected on DATE for having been lodged out of time .", "On DATE NORP ( the other defendant ) appealed against the decision of DATE , whereas NORP appealed against the decision of CARDINAL DATE .", "On DATE the court summoned NORP to remedy the formal shortcomings in his appeal .", "On DATE the court granted NORP leave to lodge an appeal out of time and quashed the decision of CARDINAL DATE .", "On DATE PERSON ’s counsel remedied the shortcomings in his appeal against the decision of DATE . On DATE the court summoned PERSON ’s counsel to pay the appeal fee of PLN CARDINAL . On DATE NORP requested the court to exempt him from the fee . On DATE the court summoned him to provide relevant documents in support of his request ( inter alia on his current financial standing ) .", "On DATE NORP lodged his appeal against the decision of DATE . On DATE the court summoned NORP to rectify the formal shortcomings of his appeal , which he did on DATE . On DATE the court summoned NORP to pay the appeal fee of PLN CARDINAL . On DATE NORP asked the court for exemption from the fee . On CARDINAL DATE the court summoned him to provide relevant documents supporting his request .", "R. and NORP submitted relevant documents on DATE and DATE .", "On DATE the court rejected both requests for exemption from the appeal fee . On DATE NORP appealed against this decision .", "On DATE the court summoned NORP to pay the appeal fee . On DATE he again requested to be exempted from the fee . The court considered his letter as an appeal and a request to be granted leave to appeal out of time against the decision of DATE . It scheduled a hearing for DATE to examine this request .", "On DATE and DATE the court heard NORP and adjourned the hearing until DATE , having summoned NORP to submit certain documents . On CARDINAL DATE NORP informed the court that he could not attend the hearing and asked for an adjournment .", "On DATE the court dismissed the applicant ’s request to be granted leave to appeal out of time against the decision of DATE . On DATE NORP asked to be served with written grounds for this decision . On DATE the court dismissed his request .", "On DATE the court dismissed D ’s appeal against the decision of DATE as having been lodged out of time .", "On DATE the court dismissed on formal grounds D ’s appeal of DATE against the decision of DATE . NORP appealed and his appeal was dismissed on DATE as having been lodged out of time . He appealed again . On CARDINAL DATE the court summoned him to pay a fee for this appeal .", "On DATE the ORG referred the case to ORG .", "On DATE ORG dismissed NORP ’s appeal against the decision of DATE and NORP ’s appeal against the decision of DATE .", "On DATE the ORG summoned NORP to pay an appeal fee for his appeal against the decision of DATE .", "On DATE the court held a hearing to examine another of NORP ’s requests to be granted leave to appeal out of time against the decision of CARDINAL DATE . The court dismissed his request and consequently dismissed his appeal on DATE .", "On DATE the court again summoned NORP to pay an appeal fee .", "DATE . On DATE the ORG dismissed GPE appeal against the decision of DATE on formal grounds ( for his failure to pay a court fee ) . NORP appealed against this decision .", "On DATE the applicant asked ORG to issue an enforcement order for the judgment of DATE , submitting that the defendants , by lodging successive procedural motions and subsequently appealing against all decisions , were aiming solely at prolonging the proceedings and avoiding the execution of the judgment . She was informed that the decision was not yet final and could not be enforced , because various appeals lodged by the defendants were pending at that time .", "On DATE R. ’s appeal was rejected by ORG .", "On CARDINAL DATE the PERSON District Court made an enforcement order on the decision of DATE and it became final .", "On DATE the applicant lodged with ORG a complaint under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) alleging the excessive length of pending civil proceedings . At the same time she asked the court to have her complaint transferred to ORG , which was competent to examine it . She described in CARDINAL pages the delays in the proceedings , and submitted that : “ for these reasons I lodge a complaint about the excessive length of the proceedings ” . She also asked the court to instruct the lower court to terminate the proceedings without further delay .", "The Nowy Dwór Mazowiecki District Court transferred the case file to ORG DATE , after the applicant had intervened requesting that her excessive length complaint be dealt with .", "On DATE ORG rejected her complaint on formal grounds . It considered that it was tainted with a formal shortcoming , namely that it did not contain an express request to find that there had been an unreasonable delay in the proceedings .", "On DATE the applicant lodged a fresh complaint of excessive length of proceedings . In the title of her application she referred in direct terms ( by providing the case ’s exact register number ) to the currently pending appeal proceedings , as required by the relevant law . In the substance of her complaint she described in detail the proceedings in their entirety as pending from DATE . She also indicated the different register numbers with which the case was designated throughout the entire period of its examination . She concluded her complaint by requesting the court to immediately terminate the proceedings in her case , which had been pending as of DATE . It transpires that she complied with all the formal requirements of a complaint as provided by LAW .", "On DATE ORG rejected her complaint as unfounded . The court considered only the length of the appeal proceedings , the applicant had referred to in her complaint ’s title , namely after the decision of DATE had been given , and found that there were no unreasonable delays in the examination of the numerous requests made by the defendants after that date . They were considered speedily . On several occasions the defendants had to be summoned to rectify formal shortcomings in their requests . In this connection the court observed that the time - limits given had been complied with . Hence , no evidence was found in support of the conclusion that unreasonable delays had occurred in the case . The court concluded that nothing in the case file could suggest that the length of proceedings was excessive .", "On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings . A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with LAW .", "Article CARDINAL § CARDINAL provides that a complaint must include :", "CARDINAL ) a request to find that there was an unreasonable delay in the impugned proceedings ;", "CARDINAL ) an indication of circumstances that would justify the request .", "According to LAW , when a complaint does not meet the requirements of LAW , it must be rejected without a prior request to the plaintiff to remedy the shortcomings in the complaint .", "For further references concerning the relevant domestic law and practice in respect of remedies available for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , see the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V." ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicant , a NORP national , had been a retail butcher in PERSON since DATE . He died on DATE , but DATE his widow and CARDINAL daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted .", "On DATE , his shop , where he employed several persons , was the subject of a visit by Mr. PERSON , an official in ORG . This official found an infringement of LAW of DATE \" fixing the selling price to the consumer of beef and pig meat \" ( \" the Decree of CARDINAL DATE \" ) , in that Mr. PERSON had not reduced his prices of pork by MONEY as required by LAW . CARDINAL and his \" retail margin \" for that meat was CARDINAL BF in excess of the maximum - CARDINAL BF per kilogram - permitted under LAW . CARDINAL ( see paragraph CARDINAL below ) .", "When questioned in this connection , the applicant made the following statement , according to the report drawn up DATE by the inspector ( translation from the NORP original ) :", "\" ...", "As is shown by the price - markings recorded by you , for beef I have applied the reduction provided for in the Ministerial Decree of CARDINAL DATE and my margin is CARDINAL F.", "As concerns pig meat , I have not applied the reduction and my margin is in excess of CARDINAL F.", "This is because my calculations were for category CARDINAL pig meat instead of category CARDINAL pig meat . This was a mistake on my part . I acted in good faith and , in your presence , I immediately reduced the prices in order not to exceed the margin of CARDINAL F. \"", "He added the following note , signed , like the report , by Mr. PERSON and himself :", "\" ... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations :", "( CARDINAL ) CARDINAL F commission per live kg ;", "( CARDINAL ) transport costs of CARDINAL F per animal , that is QUANTITY ;", "( CARDINAL ) slaughter costs : CARDINAL F per animal ;", "( CARDINAL ) slaughter tax : CARDINAL per animal ;", "( CARDINAL ) transport costs for each carcase : CARDINAL F per animal . \"", "The inspector did not supply a copy of the report to Mr. PERSON . He set out the foregoing facts in a formal statement , known as a \" pro - justitia \" , dated DATE ; ORG transmitted this formal statement on DATE to the procureur du Roi attached to ORG .", "On DATE , the PERSON procureur du PERSON ordered the provisional closure of the applicant ’s shop within TIME from notification of the decision . The decision cited the gravity of the facts , whilst noting that there was no need to request a sentence of imprisonment ; it referred to the interview report of DATE and to sections CARDINAL par . CARDINAL , CARDINAL , DATE to CARDINAL , DATE and CARDINAL of ORG and Prices Act of DATE ( see paragraphs CARDINAL to CARDINAL below ) . The closure was to come to an end either on DATE after the payment of a sum of CARDINAL BF by way of friendly settlement ( minnelijke schikking ) or , at the latest , on the date on which judgment was passed on the offence ; Mr. PERSON had DATE in which to indicate whether he accepted the offer of settlement .", "DATE the procureur du PERSON wrote Mr. PERSON the following letter ( translation from the NORP original ) :", "\" ...", "You are hereby informed of the decision provisionally closing your business in pursuance of LAW par . CARDINAL of the LAW of DATE . Your attention is particularly drawn to the heavy penalties imposed by the LAW for failure to comply with this decision .", "The amount of the friendly settlement proposed is fixed at CARDINAL F.", "I should be obliged if , within DATE , you would transfer this sum to ORG Account no . ... and advise me whether you accept the offer of settlement .", "The closure of your business will be terminated DATE after you make the required payment .", "... \"", "On DATE , a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred . Mr. PERSON replied on DATE by registered letter in the following terms ( translation from the NORP original ) :", "\" Dear Sir ,", "...", "Kindly note that I am DATE paying the sum proposed in your letter of CARDINAL DATE by way of friendly settlement ; consequently , the criminal proceedings become barred once and for all ( section CARDINAL par . CARDINAL of the Act of DATE ) and the closure of my establishment will no longer be put into effect .", "Kindly note , however , that I reserve all my rights to take action against ORG before the civil courts , in particular for the restitution of this sum plus damages .", "In point of fact :", "- I have not as yet received any copy of the report which is the basis of the penalties imposed in my respect ;", "- as far as I can recollect , the findings of those drawing up the report did not take account of the factors which are essential for calculating the prices ;", "- an application for a declaration of annulment of the Decree of CARDINAL DATE will be lodged before the ORG d’État which has already annulled CARDINAL similar Decrees ( see the judgment of DATE ) ;", "- a closure can only come into effect TIME after notification of the conviction ( section QUANTITY par . CARDINAL of the LAW refers to section CARDINAL par . CARDINAL which speaks exclusively of convictions ) .", "I have therefore paid the amount of the friendly settlement for the sole purpose of limiting the damage suffered by me ; for the prejudice resulting from the closure of my establishment as from DATE until the eventual hearing of the case before the criminal court might be far in excess of CARDINAL F and the civil court might then draw certain conclusions from the fact I had not mitigated my loss .", "... \"", "Following this payment , which had in fact already been made on DATE , the applicant did not have his shop closed . He did not bring any action before the civil courts for restitution of money paid over without cause and for damages ; nor did he apply to the ORG d’État for a declaration of annulment of LAW DATE .", "At the relevant time , ORG intervention in the sphere of prices was governed in GPE by ORG and LAW ( \" LAW \" ) . LAW derived from LAW of DATE \" on repression of offences against rules relating to the country ’s supplies \" , as several times amended , in the last instance by an Act of DATE which had modified the original title .", "Section CARDINAL par . CARDINAL , CARDINAL and DATE , read in conjunction with section CARDINAL par . CARDINAL , empowered the Minister responsible for economic affairs to fix by Decree , for the whole or part of the territory of the GPE , price - ceilings to be respected in transactions of sale , offer for sale or purchase of products , materials , foodstuffs , goods or animals , as well as the maximum profit to be made by any vendor or intermediary .", "The investigation and the finding of offences against LAW were normally the responsibility of officials from ORG , acting on behalf of the Minister , and formed the subject of reports which were transmitted to the procureur du Roi ; these reports were deemed to be conclusive until production of proof to the contrary ( section CARDINAL ) .", "In addition to imprisonment of DATE to DATE and a fine of CARDINAL BF ( section CARDINAL par . CARDINAL ) , offenders were liable to various criminal and administrative sanctions ( sections CARDINAL par . CARDINAL , DATE , DATE , CARDINAL par . CARDINAL to CARDINAL , DATE , DATE and DATE bis ) . CARDINAL of the most serious of these sanctions was closure of the offender ’s business , which took CARDINAL forms :", "( a ) Under LAW par . CARDINAL , the Minister could direct closure on a provisional basis , for DATE at the most , in the event of refusal to comply with the instructions given by officials empowered by him ; an appeal having suspensive effect was available to the person concerned before the judge in chambers at ORG with jurisdiction in criminal matters .", "( b ) Section CARDINAL , second paragraph , allowed the Minister , even in the absence of any offence , also to close establishments whose activity he considered useless or harmful .", "( c ) Section CARDINAL par . CARDINAL enabled the courts to order closure for a period not exceeding DATE , without prejudice to any penalty of imprisonment , fine or forfeiture ( section CARDINAL par . CARDINAL to CARDINAL ) .", "( d ) In the instant case , the closure decision was taken by the procureur du Roi . It was based on LAW par . CARDINAL according to which :", "\" The procureur du Roi or , where preliminary investigations have been instituted , the investigating judge may order the provisional closure of the offender ’s establishment . The closure may not continue beyond the date on which judgment is passed on the offence .", "... \"", "The CARDINAL/CARDINAL Act did not provide for any appeal against such a decision to which , according to LAW par . CARDINAL in fine , section CARDINAL par . CARDINAL ( b ) applied . This latter section read as follows :", "\" The closure ... shall come into effect TIME after notification of the conviction . If the decision of closure is contravened , the procureur du Roi shall take all appropriate action in order to secure compliance therewith , in particular by affixing seals ... , and the offender shall be liable to imprisonment of DATE and to a fine \"", "which , in DATE , was fixed at the amount of QUANTITY BF .", "Whereas the first CARDINAL forms of closure had apparently not been used for DATE , the same was not true of the fourth form . Provisional closure of that type was ordered in the context of judicial proceedings already instituted or imminent and could thus precede a sentence of closure imposed by a court of law in pursuance of section CARDINAL par . CARDINAL . However , according to decided case - law , provisional closure constituted an administrative measure differing in character from and incapable of being offset against any such sentence ; it was not entered on the judicial records ( casier judiciaire ) or on the information extracts ( bulletins de renseignements ) and lists of convictions issued by the municipal authorities .", "When he did not consider it necessary to seek a sentence of imprisonment and if proceedings for the offence had not yet been instituted before the trial court , the procureur du Roi could , under LAW par . CARDINAL , inform the offender by registered letter that it was open to him to avoid prosecution by effecting CARDINAL or more payments or services ( \" prestations \" ) . LAW listed CARDINAL such payments or services from which the procureur du Roi made his choice . The first consisted of paying over a certain sum of money which might , if appropriate , be greater than the maximum fine fixed by the LAW . The procureur du Roi called on the person concerned to advise him within a given period whether he accepted the settlement proposed ; full and punctual performance of the settlement barred criminal proceedings .", "Although often referred to as a fine by way of settlement , the payment thus made was not regarded in NORP law as a penalty . Consequently , the payment could not be taken into consideration when dealing with further offences and was not entered on the judicial records . It was nevertheless notified to the municipal authorities of the person ’s place of residence ; until DATE had expired , mention of it was included in the information extracts the municipalities supplied to the judicial authorities but not in the lists of convictions intended for other authorities . In that respect , settlements negotiated in accordance with LAW par . CARDINAL of the CARDINAL/CARDINAL Act resembled those provided for under , inter alia , Articles CARDINAL to CARDINAL and CARDINAL to QUANTITY of LAW .", "With the possible exception of CARDINAL or a few instances dating back to DATE , the closure orders issued by a procureur du Roi in pursuance of paragraph CARDINAL of LAW of LAW were always accompanied by an offer of settlement made in accordance with paragraph CARDINAL . Such was the case in CARDINAL decisions - including the CARDINAL affecting the applicant - taken in DATE with regard to butchers in the district of PERSON . On the other hand , the converse situation - an offer of settlement without there being any closure order - was a frequent occurrence .", "Again , under the terms of LAW bis , a provision not applied in Mr. PERSON ’s case , the officials specially empowered for these purposes by the Minister could , on finding an offence , fix a sum whose voluntary payment by the offender likewise barred criminal proceedings . In such cases , the settlement was not even entered on the information extracts issued by the municipal authorities .", "Since the period under consideration , section CARDINAL par . CARDINAL of LAW has been amended in CARDINAL respect by section CARDINAL of ORG of DATE , but each of the clauses quoted or summarised above , including in particular LAW , was left unchanged .", "The offence established in the instant case by ORG General related to LAW DATE \" fixing the selling price to the consumer of beef and pig meat \" ( see paragraph CARDINAL above ) . This Decree , which was passed pursuant to LAW , came into force on DATE ; it was intended , like numerous other Decrees preceding it , to restrain rises in the cost of products constituting a major item in the consumer ’s budget and in the computation of the official price - index .", "Article CARDINAL dealt with pig meat . Paragraph CARDINAL of Article CARDINAL required retailers in business before DATE - such as the applicant - not to charge in excess of the prices prevailing during DATE of DATE as increased by MONEY . Paragraph CARDINAL specified that until DATE the selling prices to the consumer , inclusive of value - added tax , charged in accordance with paragraph CARDINAL , had to be marked down by MONEY . The combined effect of these CARDINAL paragraphs was to produce a price reduction of MONEY as compared with the levels current in DATE .", "Article CARDINAL , however , contained a proviso . Under paragraph CARDINAL of Article CARDINAL , retailers able to show that they were not obtaining a retail margin of CARDINAL BF per kilogram were , subject to not exceeding that margin , allowed to charge prices other than those following from LAW . LAW indicated what was to be understood by \" retail margin \" , namely the difference between \" the weighted average selling price not inclusive of value - added tax \" and \" the weighted average purchase price \" , these CARDINAL prices being in their turn defined in paragraphs CARDINAL and CARDINAL . Paragraph CARDINAL did not include any provisions regarding those butchers - a minority of the order of MONEY - who , like Mr. PERSON , purchased their meat on the hoof .", "Under LAW , offences against LAW DATE were to be investigated , established , prosecuted and punished in accordance with the provisions of Parts II and III of the CARDINAL/CARDINAL Act . Section II , which was applied in Mr. PERSON ’s case , appeared in Part III of the latter Act .", "The criminal prosecutions launched for failure to comply with the Decree of CARDINAL DATE resulted , in numerous cases , in acquittals . For the most part , the relevant courts gave as the ground for their verdict the illegality of the Decree ; in so doing they were acting in pursuance of LAW which states : \" The courts and tribunals shall not apply any general , provincial or local decrees and regulations save insofar as they are in accordance with the law . \" In the early stages , the prosecuting authorities entered appeals which , however , failed ; eventually they abandoned any attempt at appeal .", "Certain courts adopted another solution : faced with the accused pleading the incompatibility of the Decree with Community law , they requested ORG of ORG to give a preliminary ruling pursuant to LAW establishing ORG ; for reasons that were the subject of dispute before the Commission , ORG did not have the occasion to deliver any ruling .", "In a case brought before it on DATE by a retail butcher and pork - butcher , the ORG d’État declared the Decree of CARDINAL DATE to be contrary to the principle of the equality of all NORP before the law ( LAW ) : the appreciable distinction drawn between retain according to the period of their establishment in business did not appear to the ORG d’État to be justified either by any technical necessity or by imperative considerations of general economic interest . It accordingly annulled the Decree on DATE ( ORG v. ORG ) .", "CARDINAL earlier Decrees of a similar kind , dating back to DATE and DATE , had suffered the same fate on DATE ( ORG and ORG v. ORG ) .", "After being amended on DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , the Decree of CARDINAL DATE was repealed on DATE . The Decree which replaced it on the latter date , and which came into force on DATE , contained - as did the Decrees of DATE and CARDINAL DATE specific clauses relating to retailers who purchased their meat on the hoof ( LAW . CARDINAL , last sub - paragraph ) . LAW DATE was the subject of a request for a preliminary ruling submitted by ORG ; ORG of ORG gave its decision on the request on DATE ( Procureur du Roi v. PERSON , case CARDINAL , ORG Reports DATE , pp . DATE ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the local police searched the applicant and found a hand grenade on him . The police acted on a tip - off because the applicant had a history of violent outbursts , including the killing of his first wife .", "On DATE he was charged with possessing a prohibited weapon .", "On DATE ORG found the applicant not guilty by reason of insanity ( paranoid schizophrenia ) and imposed a hospital order on him under LAW DATE ( “ old LAW ” ) . The decision entered into force on DATE .", "On DATE he was placed in FAC .", "On DATE ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( “ old LAW ” ) . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge .", "On DATE the applicant lodged a complaint with ORG concerning the lawfulness of his detention .", "On DATE the ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW ( “ new LAW ” ) .", "On DATE ORG in GPE established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . He was released from ORG on DATE .", "In the light of the applicant ’s release , on DATE ORG ( “ the LAW ” ) , the legal successor of ORG , held that it was no longer justified to continue the examination of the applicant ’s case .", "The applicant was born in DATE and lives in a care home in GPE .", "On DATE he threatened GPE with a knife on the LOC of ORG in GPE .", "On DATE he was charged with threatening behaviour .", "On DATE ORG found the applicant not guilty by reason of insanity ( schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force immediately .", "On DATE the applicant was placed in FAC .", "On DATE ORG established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . He was released on DATE .", "On DATE ORG recalled the applicant to ORG , after he had been found to be abnormally aggressive by ORG .", "On DATE the applicant complained of the unfairness and outcome of the criminal proceedings ( which had ended on DATE ) to ORG .", "On DATE ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW .", "Relying on section CARDINAL of LAW of ORG ( “ LAW ” ) , on DATE ORG in GPE reviewed the necessity of the applicant ’s continued confinement . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge . The applicant appealed to ORG in GPE pursuant to the instructions of the social work centre .", "On DATE ORG in PERSON declined jurisdiction and , since it was unable to determine the competent body to which to transfer the file , dismissed the appeal . The applicant lodged a further appeal with ORG .", "On DATE ORG dismissed the appeal because the applicant had not appealed to the competent second - instance body . ORG was silent regarding which body was competent at second instance .", "On DATE the applicant complained of the unlawfulness of his detention to special chambers which had been created within ORG on DATE with a mandate to decide on cases received by the former ORG ( namely , ORG within ORG ) .", "On DATE ORG in GPE established that the applicant ’s mental disorder no longer warranted his confinement and ordered his unconditional discharge . It relied on section CARDINAL(CARDINAL ) of LAW . The applicant was released from ORG on DATE .", "On DATE ORG , the legal successor of ORG , dismissed the applicant ’s complaint of DATE as out of time and that of CARDINAL DATE as incompatible ratione temporis : ORG had jurisdiction to deal only with those unresolved cases of the former ORG which had been introduced by DATE .", "The applicant was born in DATE . He is still in FAC .", "On DATE the applicant killed his parents under the delusion that they were trying to kill him . On DATE , having surrendered himself to the police , the applicant was remanded in custody .", "On DATE he was charged with CARDINAL counts of murder .", "On DATE ORG found the applicant not guilty by reason of insanity ( schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force on DATE .", "On DATE the applicant was transferred from the remand section of FAC to FAC .", "On DATE and CARDINAL DATE ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( notwithstanding the fact that the LAW was in force only until DATE ) . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge .", "On or DATE ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW .", "On DATE the applicant complained to ORG of the unlawfulness of his detention . His application and a number of other similar applications were subsequently joined .", "On DATE ORG found that the applicant ( like others in a similar situation ) had found himself in a legal vacuum following the DATE reform of the criminal legislation . Furthermore , it held that FAC was not an appropriate institution for the detention of mental health patients . As a result , ORG found breaches of LAW and CARDINAL of LAW and ordered the competent authorities to undertake such legislative and other measures as might be necessary within DATE of delivery of the decision . The decision was delivered on DATE . It would appear that the applicant and the other complainants did not seek any compensation .", "The applicant was born in DATE and lives in GPE .", "On DATE he entered a tram and stabbed I.D. for no apparent reason . PERSON survived the attack .", "On DATE the applicant killed E.G. under the delusion that he was persecuting his mother . He was remanded in custody the same evening .", "On DATE the applicant was charged with murder .", "On DATE he was transferred from the remand section of FAC to FAC", "On DATE ORG found the applicant not guilty by reason of insanity ( hebephrenic schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force on DATE .", "On CARDINAL occasions ( DATE , DATE , DATE , DATE and DATE ) , ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( although the LAW was no longer in force ) . It decided on the basis of reports prepared by ORG and ORG that the applicant ’s condition did not allow for his discharge .", "On DATE , DATE and CARDINAL DATE ORG upheld the decisions of DATE , DATE and DATE respectively .", "On DATE ORG examined a number of joined applications ( including that of PERSON ) and found breaches of LAW and CARDINAL of LAW ( see paragraphs DATE above ) .", "On DATE the ORG established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . It relied on LAW ( although the LAW was no longer in force ) . The applicant was released from ORG on DATE .", "There are CARDINAL legal regimes applicable to psychiatric detention .", "First of all , the competent civil court can order compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm ( see sections CARDINAL(CARDINAL ) , PERSON ) and CARDINAL ) of LAW of ORG ; PERSON o zaštiti osoba sa duševnim smetnjama ; published in ORG ( “ OG FBH ” ) no . CARDINAL of DATE ; amendments published in OG FBH no . CARDINAL of CARDINAL DATE ; “ LAW ” ) . The patient concerned must be summoned by the court , where this is possible , and must be examined in person by a psychiatrist ( see sections CARDINAL(CARDINAL ) and GPE of LAW ) . Proceedings must be concluded within DATE and a court decision must be issued within DATE ( see sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Non - Contentious Proceedings Act of the Federation of Bosnia and DATE ; PERSON o vanparničnom postupku ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE and CARDINAL of DATE ) . A court decision ordering civil psychiatric detention must always indicate the duration of such detention ; that period can not be longer than DATE , but is renewable ( see sections CARDINAL of LAW ) . The patient concerned , among other authorised persons and bodies , has the right to appeal within DATE ( see section DATE of LAW ) . The competent second - instance court must give a decision within DATE ( ibid . ) . A civil psychiatric detainee has the right to seek judicial review of his or her detention at any time ( see section CARDINAL of LAW ) .", "Secondly , the competent criminal court can impose a hospital order ( obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi ) on an offender who at the time of committing a criminal offence was suffering from a mental disorder affecting his or her mental responsibility , if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence . However , there is an important difference in this regard between the old and new criminal legislation ( the latter entered into force on DATE ) . While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility , it can no longer be imposed against those who have been found not guilty by reason of insanity ( see LAW DATE ; NORP zakon PERSON i ORG ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) .", "Accordingly , as from DATE an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm ( see paragraph CARDINAL above ) . Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure ( see LAW ; PERSON o krivičnom postupku PERSON i ORG ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of CARDINAL DATE ) .", "The relevant authorities had until DATE to verify the status of all those who had been acquitted on the grounds of insanity pursuant to the old criminal legislation , to terminate the application of any hospital orders which were still pending and to initiate the procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient ( see Article CARDINAL of LAW DATE and the instructions of ORG no . CARDINAL - CARDINAL - CARDINAL/CARDINAL of DATE ) ." ]

[ "5" ]

[ "5-1" ]

[]

[]

[]

[]

[ "ORG The applicants are NORP citizens , resident in GPE , GPE .", "The first applicant , \" X \" , was born in DATE and works as a college lecturer . X is a female - to - male transsexual and will be referred to throughout this judgment using the male personal pronouns \" he \" , \" him \" and \" his \" .", "Since DATE he has lived in a permanent and stable union with the second applicant , \" Y \" , a woman born in DATE . The third applicant , \" Z \" , was born in DATE to the second applicant as a result of artificial insemination by donor ( \" AID \" ) . Y has subsequently given birth to a second child by the same method .", "X was born with a female body . However , from DATE he felt himself to be a sexual misfit and was drawn to \" masculine \" roles of behaviour . This discrepancy caused him to suffer suicidal depression during adolescence .", "In DATE , he started to take hormone treatment and to live and work as a man . In DATE , he began living with Y and DATE he underwent gender reassignment surgery , having been accepted for treatment after counselling and psychological testing .", "ORG In DATE , X and Y applied through their general practitioner ( \" GP \" ) for AID . They were interviewed by a specialist in DATE with a view to obtaining treatment and their application was referred to a hospital ethics committee , supported by CARDINAL references and a letter from their GPE . It was , however , refused .", "ORG They appealed , making representations which included reference to a research study in which it was reported that in a study of CARDINAL children raised by transsexual or homosexual parents or carers , there was no evidence of abnormal sexual orientation or any other adverse effect ( NORP Green , \" Sexual identity of CARDINAL children raised by homosexual or transsexual parents \" , ORG , DATE , vol . CARDINAL , pp . CARDINAL - CARDINAL ) .", "In DATE , the hospital ethics committee agreed to provide treatment as requested by the applicants . They asked PERSON to acknowledge himself to be the father of the child within the meaning of ORG see paragraph CARDINAL below ) .", "ORG On DATE , Y was impregnated through AID treatment with sperm from an anonymous donor . X was present throughout the process . Z was born on DATE .", "ORG In DATE , X had enquired of ORG ( see paragraph CARDINAL below ) whether there was an objection to his being registered as the father of Y ’s child . In a reply dated DATE to ORG Member of ORG , the Minister of ORG replied that , having taken legal advice , the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration . It was pointed out that the child could lawfully bear ORG surname and , subject to the relevant conditions , X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child .", "ORG Nonetheless , following Z ’s birth , X and Y attempted to register the child in their joint names as mother and father . However , X was not permitted to be registered as the child ’s father and that part of the register was left blank . Z was given X ’s surname in the register ( see paragraph CARDINAL below ) .", "ORG In DATE , X ’s existing job contract came to an end and he applied for DATE posts . The only job offer which he received was from a university in GPE . The conditions of service included accommodation and free education for the dependants of the employee . However , PERSON decided not to accept the job when he was informed by a PERSON official that only spouses and biological or adopted children would qualify as \" dependants \" . He subsequently obtained another job in GPE where he continues to work .", "ORG LANGUAGE law defines a person ’s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery ( PERSON v. PERSON [ DATE ] Probate Reports CARDINAL and NORP v. PERSON [ DATE ] ORG Bench Reports CARDINAL ORG ) ) .", "As a result of this principle , a female - to - male transsexual is not permitted to marry a woman and can not be regarded as the father of a child .", "The Human Fertility and Embryology Act DATE ( \" LAW \" ) provides , inter alia , that where an unmarried woman gives birth as a result of AID with the involvement of her male partner , the latter , rather than the donor of the sperm , shall be treated for legal purposes as the father of the child ( LAW ( CARDINAL ) ) .", "Section CARDINAL ( CARDINAL ) of the Births and Deaths Registration Act DATE ( \" the CARDINAL Act \" ) requires that certain prescribed details concerning the birth of every child born in GPE and GPE , including the names of the parents , be entered in a register . ORG is the official ultimately responsible for the administration of this scheme .", "ORG If the child ’s father ( or the person regarded by law as the father - see paragraph DATE above ) is not married to the mother , his name shall not automatically be entered on the register in the space provided for the father . However , it will be entered if he and the mother jointly request that this be done ( section CARDINAL of the DATE Act , as amended by LAW DATE ) .", "ORG A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it . A certificate of the latter kind , known as a \" short certificate of birth \" , is in a prescribed form and contains such particulars as are prescribed by regulations made under LAW . These particulars are the name , surname , sex and date and place of birth of the individual concerned . Under LANGUAGE law , a child may be given any first name or surname as the parents see fit , and may change his or her name or surname at any time , without restriction .", "ORG \" Parental responsibility \" in respect of a child automatically vests in the mother and , where she is married , in her husband . It may , additionally , be granted to certain other persons ( see paragraphs DATE below ) .", "\" Parental responsibility \" means all the rights , duties , powers , responsibility and authority which by law a parent of a child has in relation to the child and his or her property ( section CARDINAL of LAW CARDINAL - \" LAW \" ) .", "It does not , without more , confer on the child any rights in the property of the person granted parental responsibility , such as the right to inherit on intestacy or to financial support . Similarly , it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions , from nationality and immigration measures or from rights accruing from that person ’s citizenship in ORG .", "ORG The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement , in a prescribed form , with the mother ( section CARDINAL of the CARDINAL Act ) .", "ORG Parental responsibility can not vest in any other person , unless a \" residence order \" in respect of the child is made in his or her favour .", "A residence order is \" an order settling the arrangements to be made as to the person with whom the child is to live \" ( section CARDINAL of the CARDINAL Act ) . Any person may apply for such an order ( although individuals outside certain defined categories must first seek the leave of the court in order to apply ) .", "Where the court makes a residence order in respect of any person who is not the parent or guardian of the child , that person is automatically vested with parental responsibility for the child as long as the residence order remains in force ( section CARDINAL ( CARDINAL ) of the DATE LAW .", "ORG Thus , although the first applicant could not apply directly for parental responsibility of the third applicant , he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force . On DATE , Mr Justice PERSON in the ORG made a joint residence order in favour of CARDINAL cohabiting lesbian women in respect of the child of CARDINAL of them ( unreported ) ." ]

[]

[]

[]

[ "8" ]

[]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and currently lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "On DATE the applicant , former Head of GPE ( see PERSON v. GPE [ ORG ] , no . MONEY , § § CARDINAL , CARDINAL and DATE , ECHR CARDINALII ) , was charged with abuse of power , misappropriation of public funds and a number of other offences committed in public office . The applicant evaded the investigation and trial , but his lawyer , PERSON , ensured his defence in the criminal proceedings .", "By a judgment of CARDINAL DATE , ORG convicted the fugitive applicant of the above - mentioned offences in absentia , sentencing him to DATE in prison and to pay a fine of CARDINAL NORP laris ( MONEY ) . ORG explained in the operative part of its judgment , which was announced to the applicant ’s lawyer at the end of the hearing on DATE , that , given the applicant ’s absence , the judgment was final and immediately enforceable ; an appeal lay against it only in the situation envisaged by LAW ( “ the ORG ” ) , namely after the applicant ’s surrender to the law - enforcement authorities .", "Article CARDINAL § CARDINAL of LAW , as it stood at the material time , read as follows :", "Article CARDINAL", "“ CARDINAL . If a conviction was delivered following a trial in absentia , the accused may lodge an appeal [ on points of law and findings of fact ] within DATE after having been arrested or surrendered to the relevant authorities ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE . He is the widower of the deceased PERSON . He introduced this application on his own behalf and on behalf of his family and deceased spouse . At the time of the events at issue the applicant was residing in the village of PERSON ( PERSON ) attached to the ORG district .", "In DATE the commander of ORG , ORG , ordered all the villagers from ORG village to evacuate their homes . This instruction was communicated to the villagers by the headman ( muhtar ) of the village . In response , the villagers requested the commander 's permission to remain in the village long enough to harvest their crops .", "Commander PERSON began to pressurise and intimidate the villagers . No cars were allowed in or out of the village . The livestock was taken away from the villagers . A food embargo was imposed . At DATE soldiers told the villagers that should they fail to evacuate the village by DATE , their houses would be burned down .", "On DATE an armed clash broke out between members of the ORG ( proscribed as a terrorist organisation under NORP law ) and the security forces stationed on FAC , which is situated between the applicant 's village and ORG .", "When the clash was over , at TIME soldiers who were stationed at ORG fired CARDINAL artillery shells towards the village . A piece of shrapnel wounded CARDINAL of the villagers , ORG , in the foot . Hearing ORG screams , the applicant attempted to leave his house to help her . However his wife , PERSON , tried to pull him back . At that moment a second artillery shell landed QUANTITY from their house and a piece of shrapnel struck the applicant 's wife in the abdomen .", "Around TIME , when the shooting was over , the applicant and his elder brother , PERSON , together with some other relatives , PERSON , GPE Yaşar , PERSON and a group of women set out for ORG in order to take PERSON to the local health clinic . She died on the way .", "On DATE a group of terrorists attacked the security forces which were stationed near the village of ORG in the ORG district . At around TIME terrorists tried to escape through the village . When they arrived in PERSON the terrorists fired randomly at the houses . The applicant 's wife and another villager were wounded in the incident . The security forces identified the footprints of members of the ORG in the village .", "When the applicant and his relatives were returning to their village they were stopped on LOC by the security forces . The senior lieutenant examined the corpse of the applicant 's wife . According to the applicant , the senior lieutenant drafted a report which stated that PERSON had died due to a shrapnel wound caused by an artillery shell fired by the soldiers . However , the applicant did not submit this report to ORG claimed that it did not exist .", "The applicant requested to have an autopsy performed before burying the corpse . The senior lieutenant told him that there was no need to carry out an autopsy and reassured him that his report would be given to the relevant authorities .", "On DATE PERSON and a unit of soldiers arrived in the village to investigate the circumstances of the incident . CARDINAL villagers , namely PERSON , ORG , PERSON and ORG , gave statements to the sergeant . They all stated that at TIME , CARDINAL terrorists arrived in the village and indiscriminately opened fire with rockets and long - barrel guns . ORG had been wounded and the applicant 's wife had died in the incident .", "According to the applicant , he expressly told the sergeant that the artillery shell that caused the death of his wife had been fired by the soldiers . He also told the sergeant that the senior lieutenant had seen the corpse and confirmed this fact in his report . The sergeant contacted the senior lieutenant by radio . According to the applicant , the senior lieutenant verbally confirmed his version of the facts .", "The sergeant drew a sketch map of the scene of the incident and drafted CARDINAL incident reports . The more detailed report stated as follows :", "“ ... When the members of the ORG failed to strike the security forces , they ran away towards NORP village . When they entered the village , they yelled ' you still have not evacuated the village ! Because of you very many of us have been wounded and we have lost very many soldiers ! ' and they started to shoot at random using heavy weapons and missile launchers . ... CARDINAL persons were wounded . CARDINAL of the places where the missiles fell , as well as bullet marks on the houses , have been noted . Moreover , according to the footprints left by the ORG members they ran off towards the forest near the village . As far as it could be construed by looking at the footprints , they were CARDINAL people . ... ”", "The houses of the applicant and the other witnesses , the sites where the shells fell and the footprints of members of the ORG were indicated in the sketch map . All the statements and reports were co - signed by PERSON and non - commissioned officer PERSON .", "Upon the applicant 's request to have an autopsy carried out on the corpse , the sergeant told him that this was not possible , as the public prosecutor and the doctor refused to come to the village for security reasons . He reassured the applicant that he would make sure that the senior lieutenant 's report was forwarded to the public prosecutor . Later on DATE , the applicant buried his wife .", "On DATE ORG , the father of ORG , and the applicant gave statements to the sergeant . The applicant 's statement was as follows :", "“ On DATE , at TIME , I heard guns being fired from the direction of FAC , which is located to the south of our village . Everybody was sleeping . I went out of the house . It was silent in the village . At TIME I heard [ people ] screaming in the village . These sounds were coming from a distance . Then I heard firing coming from the village . My wife came outside to look for me . There was random gun fire . My wife was wounded in the abdomen . I took her into the house but I was n't able to do anything as the shooting continued . I waited at home until TIME When the shooting was over I called my relatives and we set off for ORG in order to take my wife to the hospital . She died when we reached FAC . After a short while another group of people who was transporting ORG came along . They went to ORG . We returned to NORP village . We buried my wife in the village ... ”", "“ ... terrorists were shouting in the middle of the village . After yelling ' you still have not evacuated the village ! Because of you very many of us have been wounded and we have lost very many soldiers ! ' They started to shoot at random . ... My daughter PERSON was wounded in her foot . I saw CARDINAL of the terrorists with my own eyes . I believe there were in total CARDINAL people . ... After we waited for a while we set off for ORG . ... When we were almost on FAC we saw another wounded person being transported . ... I am complaining about those terrorists who attacked our village and who are responsible for wounding my daughter . ”", "A preliminary investigation into the incident was initiated by ORG .", "On DATE the applicant went to see the ORG Commander , ORG . The applicant alleged that ORG prepared a petition for him , the contents of which laid blame on the ORG for the incident . He refused to sign it . On DATE ORG sent all the documents concerning the incident to the office of ORG along with an explanatory letter . In his letter he explained that the death of PERSON and ORG injuries were the result of random shooting by the terrorists . The annexed documents consisted of CARDINAL witness statements , CARDINAL incident reports and CARDINAL medical report PERCENT state of health , drafted on DATE by a doctor at ORG .", "On DATE the applicant filed petitions with the offices of LOC and ORG . He stated that his wife had died during an artillery attack launched from the direction of ORG . A senior lieutenant , after examining the corpse , confirmed that she had been killed by artillery fire . He further stated that he had had to move to ORG with his CARDINAL children following the evacuation of his village . The applicant requested that an investigation be initiated in order to find those responsible . He also requested compensation .", "On DATE the applicant filed similar petitions with ORG and ORG . On DATE he went to see ORG and the LOC Governor personally .", "On DATE the applicant submitted a petition to the Lice Governorship about the death of PERSON . In the petition he stated that his wife died on DATE during an operation carried out against terrorists . Moreover , he stated that neither the public prosecutor nor a doctor had examined the corpse . The ORG Governor transferred the applicant 's petition to ORG . On DATE ORG requested ORG to provide information about the death of PERSON .", "On DATE the ORG informed ORG in a letter that PERSON had been wounded on DATE due to random shooting by terrorists who entered the village , that she died while being transferred to a hospital and that she had been buried in the village cemetery . The district gendarmerie had also provided ORG with reports and written statements which confirmed the accuracy of these findings .", "Following the applicant 's petitions filed with ORG and the Lice District Governor , ORG decided to grant the applicant the sum of MONEY . This sum was paid to the applicant on DATE .", "On DATE the applicant filed petitions with ORG and ORG . In these petitions he maintained that his wife died during an artillery attack by the security forces and he requested that an investigation be initiated into the killing of his wife . He stated that he was stunned to find out that in the case file at the office of ORG the perpetrators of the incident were stated to be members of the ORG . Moreover , he maintained that he had had to move to ORG with his CARDINAL children following the evacuation of his village . The applicant also informed the authorities in his petition that he would lodge an application with ORG .", "On DATE ORG issued a decision of non - jurisdiction as the death of the applicant 's wife fell within the jurisdiction of ORG . In his decision the public prosecutor maintained that after engaging in a combat with the security forces , terrorists retreated to NORP village . When they arrived in the village they started shooting at random using large weapons to force the villagers to evacuate . The applicant 's wife was killed as a result of this random shooting .", "On DATE the public prosecutor at ORG also issued a decision of non - jurisdiction and referred the case file back to the office of ORG . The decision on lack of jurisdiction indicated that PERSON was killed by an artillery shell fired from ORG .", "On DATE the public prosecutor at ORG , seeing that an investigation had already been initiated by his office into the same incident , decided to join the CARDINAL case files within the jurisdiction of ORG . The decision joining the case files named the defendant(s ) as “ member(s ) of the illegal ORG organisation ” and the offence as “ engaging in acts aimed at the separation of a part of the territory of the ORG ” .", "On DATE the public prosecutor at ORG issued a search warrant for the terrorist(s ) who wounded PERSON and killed PERSON on DATE . According to this order ORG , together with ORG and ORG , had to carry out a rigorous investigation so as to identify the perpetrator(s ) by the date fixed for the expiry of the warrant . He further requested to be kept informed of the outcome of the investigation DATE .", "On DATE the public prosecutor at ORG requested from ORG a copy of PERSON details of birth . On DATE ORG submitted the information requested .", "By a letter dated DATE , the public prosecutor at ORG requested ORG to conduct an investigation in order to identify the officials who had failed to carry out an autopsy on PERSON .", "By a letter dated DATE the public prosecutor at ORG , referring to the applicant 's application to ORG , requested authorisation from ORG to initiate an investigation against ORG who had failed to organise an autopsy on the applicant 's wife 's body .", "On DATE and on DATE the public prosecutor at ORG renewed the warrant issued on DATE .", "On DATE , in accordance with Law no . DATE , ORG postponed the criminal proceedings initiated against ORG and the non - commissioned officer PERSON who had allegedly failed to carry out an autopsy on the applicant 's wife 's body .", "On DATE , upon the FAC Governor 's inquiry , the ORG Commander sent him a letter stating that it was clear from the incident report and the witness statements that the applicant 's wife was killed by members of the ORG . He maintained that there was no documentation in their files which proved that , after examining the corpse of the applicant 's wife , a senior lieutenant drafted a report in which the cause of death was described as resulting from artillery shell fire . Moreover , he stated that the letter sent by them to ORG in which the ORG was stated to be responsible for the death of PERSON , had not been found in their files . However , he indicated that this letter could be located at ORG .", "NORP On DATE a letter from the gendarmerie headquarters in GPE was sent to ORG . The letter was a reply to an inquiry made by ORG following the communication of the applicant 's case by the ORG to the respondent Government . It was stated in the letter that on DATE , following an armed clash between terrorists and the security forces , terrorists fled to NORP village and killed the applicant 's wife by firing at random with rockets and long - barrel guns in the middle of the village . Moreover , it was incorrect that a senior lieutenant had examined the corpse of the applicant 's wife and drafted a report which concluded that she had died due to a shrapnel wound caused by an artillery shell fired by soldiers . Such a report did not exist . It was apparent from the witness statements and from the incident report that the perpetrators of the incident were members of the ORG . It was also stated in the letter that ORG submitted the document concerning the death of PERSON to ORG .", "In respect of relevant domestic legislation , the ORG refers to its case - law in GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .", "Article CARDINAL of the Code on Criminal Procedure provides :", "“ Official examination of a corpse must be made in the presence of a physician . An autopsy shall be performed in the presence of a judge and in those case where it is necessary to avoid prejudicial delay , the autopsy shall be performed by CARDINAL physicians in the presence of the public prosecutor , CARDINAL of the physicians being a forensic practitioner .", "In an emergency situation , the operation may be conducted by CARDINAL doctor only . ”", "According to Law no . DATE on conditional release , the suspension of proceedings or the execution of sentences in respect of crimes committed before DATE , proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within DATE ." ]

[ "13", "2" ]

[]

[]

[ "14", "18", "2", "3", "8" ]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "The applicant practices as an ophthalmologist . From DATE to CARDINAL DATE he held a license as a statutory health insurance physician ( PERSON vertragsärztlichen PERSON ) . Having renounced his licence , he exclusively treats patients in private practice .", "On DATE ORG ( GPE ) ordered the applicant to participate in the medical emergency services organised by ORG , KVSA ) . His duty was suspended until determination of the modalities of his remuneration .", "On DATE the KVSA informed the applicant about the modalities of his remuneration during emergency services . He was further informed that , notwithstanding the fact that he was not a member of the KVSA , his services and remunerations within the framework of the emergency services were subject to the ORG 's supervision .", "On DATE the applicant informed the KVSA that he refused to serve in the emergency service and would only be willing to serve in an emergency service which was organised by ORG .", "On DATE ORG informed the applicant that he was statutorily obliged to participate in the emergency service . They pointed out that the emergency service was a common project by the KVSA and ORG and that all pertinent decisions were taken jointly by both associations .", "On DATE the applicant lodged a motion against ORG . He argued that he was not obliged to participate in the emergency service organised by the KVSA , because he did not practice as a statutory health insurance physician . He further alleged that the order lacked a sufficient legal basis .", "On DATE ORG ( Verwaltungsgericht ) dismissed the applicant 's motion as being unfounded . According to that court , the impugned order was compatible with the pertinent law . The emergency service was set up jointly by ORG and by the KVSA in order to avoid overlapping emergency services .", "The pertinent provisions did not violate the applicant 's rights under LAW . The infringement on the applicant 's right to freedom of profession was neither disproportionate nor excessive . Furthermore , there was no violation of the right to equal treatment , as all medical practitioners were equally obliged to provide emergency services to their patients outside consultation TIME . This duty constituted an intrinsic part of a medical practitioner 's occupation . The organisation of emergency services released the medical practitioner from the obligation to be available for his patients “ around the clock ” , at TIME and during DATE . Having regard to the fact that all medical practitioners DATE and not only those who held a license as statutory health insurance physicians DATE profited from this service , it was justified to order all practitioners to participate in the emergency service .", "The fact that the emergency service was organised by the KVSA did not turn the applicant into a member of that organisation ; he merely profited from its organisational structures .", "On DATE ORG ( Oberverwaltungsgericht ) refused to allow the applicant leave to appeal . Further to the administrative court 's considerations , ORG found that the duties imposed on the applicant were not excessive , as it was merely envisaged to oblige the applicant to serve on DATE during a DATE - interval . ORG further considered that it was justified to oblige all medical practitioners , irrespective of the fact if they were willing to assure “ around the clock ” availability to their own patients . The system could only function if , as a matter of principle , all physicians concerned took part in it .", "On DATE ORG refused to admit the applicant 's constitutional complaint as there was no indication of a violation of the applicant 's basic rights ( application no . CARDINAL BvR CARDINAL/CARDINAL ) .", "According to section CARDINAL LAW of the LAW on the Associations of Medical Practitioners for Saxony - Anhalt ( PERSON über die NORP für GPE ) ORG is entitled to issue regulations on medical emergency service .", "Section CARDINAL of ORG professional Code of Conduct ( PERSON der GPE ) provides that every resident medical practitioner is obliged to participate in emergency service . Regulations on the organisation of the emergency service have been jointly issued by ORG , representing all medical practitioners , and by the KVSA , representing only those physicians practicing under the public health insurance scheme .", "Non - compliance with the obligations under ORG professional Code of Conduct can lead to disciplinary proceedings . The disciplinary court has the capacity to issue formal reprimands , impose fines and to advice the authorities to revoke a physician 's license ( sections CARDINAL and CARDINAL of the PERSON on the Associations of Medical Practitioners ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in FAC . He is the father of Mr Valdis Jasinskis ( “ the applicant 's son ” ) , a NORP national who was born in DATE and who died on DATE .", "On DATE the applicant 's son ( who had been deaf and mute since birth ) and several of his friends were drinking beer in a bar in FAC . Witness statements differ somewhat as to how much alcohol the applicant 's son consumed that night . After the applicant 's son 's death , a forensic expert took into the account witness testimonies and used Widmark 's equation to arrive at the estimate that , after finishing his last drink , the alcohol concentration in the applicant 's son 's blood would have been CARDINAL ‰ , which meant that all traces of alcohol would have left his body TIME . The expert , however , noted that this figure was approximate . The applicant disagreed with the estimate , noting that such a concentration of alcohol would be deadly .", "After leaving the bar , the applicant 's son and his friends walked to a nearby school where a party was taking place . In front of the school entrance ORG DATE a minor – pushed the applicant 's son , who fell backwards down the stairs in front of the school , hit his head against the ground and lost consciousness for TIME . The persons present then tried to attract the attention of the security guards , who were inside the school , by knocking on the locked doors . In the process a glass pane of the entrance doors was cracked . It appears from the subsequent investigation that the glass was broken by CARDINAL of the students of the school .", "The security guards came outside and saw the applicant 's son lying unconscious on the ground . They called an ambulance and the police . After the applicant 's son had regained consciousness , the security guards sat him down on the stairs of the school .", "The police arrived on the scene at CARDINAL a.m. They later reported that the applicant 's son had been unable to stand up on his own and had been flailing his arms . Upon their arrival the officers were informed that the applicant 's son was deaf and mute and that he had fallen down the stairs . They were also told that he was probably responsible for breaking the glass of the entrance doors .", "The policemen decided not to wait for the ambulance that had been called and took the applicant 's son to the LOC Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness . The policemen alleged that in the car on the way to the police station the applicant 's son had behaved aggressively and had been flailing his arms and kicking .", "The record of the administrative detention of the applicant 's son indicates that the reason for the detention was to “ sober up ” the detainee . The only injury that was noted was a graze on his face . The same record also notes that at CARDINAL TIME on the following day the applicant 's son was released from detention because he had “ sobered up ” ( but see paragraph CARDINAL below ) .", "NORP The policemen alleged that on the premises of the police station the applicant 's son had continued to behave aggressively by flailing his arms . The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures , because they had taken away the notebook he normally used to communicate with persons who did not understand sign language .", "Shortly afterwards the ambulance crew contacted the police station . The officer on duty informed them that no medical aid was necessary , since the applicant 's son was merely intoxicated . He was then placed in the sobering - up room . For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep .", "At TIME the duty officers tried to wake the applicant 's son but he only opened his eyes and , according to the conclusions of the internal investigation of the police , “ did not want to wake up ” .", "Approximately TIME after the applicant ' son had been brought to the police station ( at QUANTITY one of the policemen considered that he had been “ sleeping for too long ” and called an ambulance . The doctors apparently refused to take ORG to a hospital ( during the internal investigation the officers reported that the ambulance crew had indicated that he was “ faking ” and was healthy ) . The Government dispute that fact , observing that it had not been mentioned in the report on the quality of medical care provided to the applicant 's son ( see below , paragraph CARDINAL ) . Nevertheless , the fact of the ambulance crew 's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time , which have been recounted in several documents , such as the conclusions of the internal inquiry of DATE ( see below , paragraph CARDINAL ) , the report of the additional internal inquiry of CARDINAL DATE ( see below , paragraph CARDINAL ) , the DATE decision to terminate the criminal proceedings ( see below , paragraph CARDINAL ) and others .", "The applicant 's son was taken to hospital only after repeated requests from his father , who had at that time been informed of his son 's arrest and had arrived at the police station . From the reports of the internal investigation it appears that the transfer took place at TIME on DATE . Upon arrival at the hospital it was noted that the applicant 's son was conscious but “ non - communicative ” . His condition was characterised as “ serious ” and he was diagnosed with severe intoxication with unknown alcohol surrogates . At CARDINAL p.m. the applicant 's son lost consciousness and his condition was described as “ very serious ” . At TIME the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a GPE scan ( which was only available at a hospital in GPE , QUANTITY from FAC ) . The applicant 's son died at CARDINAL a.m. on DATE .", "A post - mortem examination of the applicant 's son 's body was carried out on DATE . It disclosed fractures of the frontal , parietal and occipital bones of the applicant 's son 's cranium , oedema in the brain as well as multiple other injuries to the head and brain . The expert concluded that those injuries had been the cause of death . It was further established that neither the blood nor the urine of the applicant 's son contained any traces of alcohol .", "On DATE an expert of ORG ( “ MADEKKI ” ) issued a report on the quality of medical aid provided to the applicant 's son before his death . The report noted several shortcomings in the treatment of the applicant 's son at the police station . In particular , it was noted that no information was available concerning the health condition of the applicant 's son during the time spent in the police station or when he was placed in the sobering - up room . It was further concluded that the ambulance had been called to the police station belatedly . The final conclusion of the report was that the death of the applicant 's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries .", "After the death of the applicant 's son ORG launched an internal inquiry . On DATE the final report of the inquiry was approved by the head of that department . The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work . The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant 's son were difficult to detect , in particular if the injured person was intoxicated . The final conclusion was that the staff of the department had committed no infractions .", "On DATE an investigator of ORG adopted a decision to terminate the criminal proceedings against ORG , which had been initiated on DATE . In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant 's son in the head with a rubber truncheon . It was also found that upon the applicant 's son 's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated . The decision further remarked that at TIME at the police station a doctor had observed that the applicant 's son was conscious and had no traces of having been hit on his body or head . There was some dried blood in CARDINAL of his nostrils . However , considering that the applicant 's son was deaf and mute and thus unable to communicate orally any complaints about his health , he had been diagnosed as being intoxicated with alcohol surrogates and taken to the FAC hospital . It was further noted that the internal inquiry of FAC had established that the policemen in charge had not committed any offence . Lastly it was established that ORG 's actions did not constitute corpus delicti . Therefore , the criminal proceedings concerning the death of the applicant 's son were terminated .", "On DATE the ORG decided to quash the decision of CARDINAL May and remitted the case for additional investigation . Among other things , the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant 's son 's injuries had he been taken to hospital earlier than he was , whether the police had adequately taken into account the fact that he was deaf and mute , and whether there were any visible external signs of the injuries that eventually caused his death .", "On DATE the head of ORG approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of DATE . Once again no wrongdoings on the part of the police officers were established . In particular , it was noted that even though an internal police instruction concerning sobering - up rooms prohibited the placement therein of persons with visible physical injuries , the applicant 's son did not fall within that category . The report confirmed that his injuries had not been obvious , in that regard referring to the visit of the ambulance crew to the police station at CARDINAL p.m. on DATE , during which no injuries had been noted .", "On DATE FAC terminated the criminal proceedings for the second time . The decision pointed out , inter alia , that even if the applicant 's son had been taken to hospital sooner , it was not certain that he would have received the correct diagnosis due to the absence of a GPE scanner and a specialist neurologist at FAC hospital . It was also established that since the applicant 's son 's injuries were not visible , the police officers in question had not breached the law .", "On DATE FAC decided to quash the decision of DATE on the ground that the evidence had not been examined .", "On DATE FAC decided to terminate the criminal proceedings . The text of the decision was practically identical to that of DATE .", "As of DATE the applicant was represented by a lawyer . Pursuant to a request by the applicant 's representative , on DATE a prosecutor of ORG quashed the decision of DATE and sent the case to ORG ( NORP policijas PERSON drošības birojs ) for continued investigation . The decision of DATE focused , inter alia , on the actions of the policemen before and after the applicant 's son 's arrest as well as on the legality and permissibility of his detention as such . It was suggested that the question of the potential liability of the policemen of ORG for criminal inaction ( section CARDINAL(CARDINAL ) of LAW , see below , paragraph CARDINAL ) needed to be resolved .", "On DATE that ORG decided to split the criminal proceedings into CARDINAL parts , CARDINAL regarding the actions of ORG and the other concerning the inaction of the LOC policemen . The first part was transferred back to FAC and the second remained with ORG .", "On DATE FAC decided to terminate the criminal proceedings against ORG due to lack of corpus delicti . The applicant did not appeal against that decision .", "On DATE ORG of ORG decided to terminate the criminal proceedings against the officers of LOC for want of corpus delicti . During the course of the investigation statements were taken from all CARDINAL officers who had been present at the police station during TIME of the applicant 's son 's arrest and DATE . The officers who had arrested the applicant 's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries . The officers who had been on duty on DATE pointed out that they had tried to wake up the applicant 's son on several occasions without success , but that after they had eventually succeeded , the applicant 's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance . The doctor had then allegedly proclaimed that the applicant 's son was “ faking ” and was still drunk . He had only been taken to hospital after the applicant had persuaded the doctor to do so . The decision also pointed out that it was “ obvious ” that a mistake had been made by the doctors , who had failed to correctly diagnose the applicant 's son 's injuries before his death .", "On DATE a public prosecutor of ORG dismissed the applicant 's representative 's appeal against the decision of DATE .", "On DATE a senior prosecutor of the same office rejected the applicant 's representative 's appeal against the decision of CARDINAL DATE . In addition to upholding the conclusions of the decision of CARDINAL DATE , it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant 's son to the police station without waiting for the ambulance and the applicant 's son 's death , since the death had occurred despite the fact that the applicant 's son had eventually been placed under medical supervision .", "In a final decision of DATE a senior prosecutor of ORG attached to ORG dismissed the applicant 's complaint about the decision of CARDINAL DATE .", "The fifth paragraph of section CARDINAL of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody , which includes carrying out emergency measures to provide medical assistance . The duty of police officers to provide medical and other assistance to injured persons is repeated in section CARDINAL(CARDINAL ) of the Law on Police . That section specifically provides for a duty to provide assistance to anyone , even persons who , because of their state of inebriation , have lost the ability to move or who pose a danger to themselves or others .", "Section CARDINAL(CARDINAL ) of the Criminal Law provides that state officials ' can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question . In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals .", "On DATE the Law of Administrative Procedure entered into force . That law , among many other things , provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts .", "The Law on Compensation for Damage Caused by ORG came into force on DATE . It provides for practical implementation of the rights guaranteed by the LAW and LAW to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions . Pursuant to section CARDINAL(CARDINAL ) of that law , the maximum compensation for non - pecuniary damage that can be awarded is CARDINAL NORP lati ( ORG ) MONEY ( ORG ) .", "As to the consequences of awarding compensation , section CARDINAL of the Law on Compensation for Damage Caused by ORG provides as follows :", "“ CARDINAL ) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated , an authority hierarchically superior to the CARDINAL which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court .", "CARDINAL ) NORP After evaluating all the circumstances pertinent to the compensation for damage , a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority , which shall decide whether the official responsible for causing the damage ought to be held disciplinarily , administratively or criminally responsible . ”", "Section CARDINAL of the Law of Criminal Procedure contains a general principle according to which that PERSON provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non - pecuniary damage . The specifics of the implementation of that principle are contained in various sections throughout the PERSON .", "The general standards contained in ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG ( ORG ) provide that persons detained by the police should have the right of access to a doctor , including the right to be examined , if the person detained so wishes , by a doctor of his own choice ( in addition to any medical examination carried out by a doctor called by the police authorities ) ( § CARDINAL ) . Persons taken into police custody should be expressly informed without delay of the above rights ( § CARDINAL ) . The results of the medical examination and relevant statements by the detainee and the doctor 's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer ( § CARDINAL ) .", "Article GPE ) of LAW on the Rights of Persons with Disabilities ( “ the PERSON ” ) , which entered into force on DATE , was signed by GPE on DATE and ratified on DATE , provides as follows :", "“ GPE Parties shall ensure that if persons with disabilities are deprived of their liberty through any process , they are , on an equal basis with others , entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention , including by provision of reasonable accommodation . ”", "The Interim Report of the Special Rapporteur on the question of torture and other cruel , inhuman or degrading treatment or punishment , submitted on DATE by ORG High Commissioner for Human Rights to the CARDINALrd session of ORG of the ORG ( ORG ) in its paragraphs CARDINAL and DATE provides as follows :", "“ Persons with disabilities often find themselves in ... situations [ of powerlessness ] , for instance when they are deprived of their liberty in prisons or other places ... In a given context , the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ”", "and", "“ The Special Rapporteur notes that under LAW , paragraph CARDINAL , of the [ Convention on the Rights of Persons with Disabilities ] , GPE have the obligation to ensure that persons deprived of their liberty are entitled to ' provision of reasonable accommodation ' . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others , when such adjustments do not impose disproportionate or undue burden . The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill - treatment and torture . ”" ]

[ "2" ]

[]

[]

[]

[]

[]

[ "The applicant is an NORP national , born in DATE and living in GPE .", "He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "A.", "O.I. s.r.l . , a company based in GPE , was the owner of an apartment in GPE , which it had let to GPE In a registered letter of CARDINAL DATE , it informed the tenant that it intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE . In a writ served on the tenant on DATE , it reiterated its intention to terminate the lease and summoned the tenant to appear before ORG .", "In a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises must be vacated by DATE .", "On DATE , the applicant became the owner of the apartment .", "On DATE , the applicant served notice on the tenant requiring her to vacate the premises .", "On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .", "On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .", "DATE and DATE the bailiff made CARDINAL attempts to recover possession , on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE . These attempts proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .", "On an unspecified date DATE and DATE , the applicant repossessed the apartment .", "B. Relevant domestic law", "The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In DATE a factory owned by the applicant ’s legal predecessor was de facto taken over by the ORG in the context of a countrywide campaign of nationalisation of industry . It was subsequently run by a ORG enterprise .", "Pursuant to a decision given on DATE , ORG stated that the factory and the land on which it was situated had become the property of the ORG under the provisions of LAW by the ORG .", "In DATE the applicant ’s mother lodged an application with ORG to have the expropriation decision declared null and void under LAW .", "In DATE the applicant ’s mother died . The applicant joined the proceedings as her legal successor .", "In DATE the ORG found that it lacked competence to deal with the case and referred it to ORG . In DATE the case was referred to ORG as ORG had ceased to exist . In DATE that ORG forwarded the case file to ORG for a decision .", "On DATE the applicant complained to ORG about the failure of the administration to rule on his DATE application .", "On DATE the Minister of ORG declared that he was competent to deal with the case .", "On DATE ORG , having examined the applicant ’s complaint , ordered the Minister of ORG to issue a decision concerning the case within DATE from the date of the service of its judgment .", "On DATE the Minister of ORG , having gathered various documents concerning the legal status of the property , declared that the DATE expropriation decision was null and void as it had been given in flagrant breach of the laws applicable to properties de facto taken over by the ORG .", "On an unspecified date before DATE the ORG - owned enterprise was transformed into an independent public company , PERSON , the structure and functioning of which were governed by the provisions of LAW . The ORG however retained a minority shareholding in the company . In DATE the NORP company , which was running the factory as the legal successor of the former ORG - owned enterprise , requested that the case be reexamined . Subsequently , the ORG summoned the parties to submit their further pleadings and documents .", "On DATE the Minister , having re - examined the case , upheld its previous decision and declared that the expropriation decision was null and void .", "The public company in possession of the factory requested that the enforcement of this decision be stayed pending the outcome of the proceedings in which it had appealed against the decision of the Minister to ORG . On DATE ORG allowed this request . On DATE the applicant ’s request to have this decision set aside was dismissed by the same court .", "On DATE ORG upheld the decision of DATE .", "On DATE the ORG Governor gave a decision to the effect that from DATE the ownership of the factory and the right of perpetual use of the land on which it was situated was to be vested in the NORP company . On an unspecified later date this hitherto ORG company changed its status and became an independent public company governed by LAW and in which the ORG was a minority shareholder ( see also paragraph CARDINAL above ) .", "NORP In DATE the applicant instituted proceedings in which he sought to have that decision declared null and void .", "On DATE the Kalisz Governor stayed those proceedings , pending the outcome of the administrative proceedings described above .", "The proceedings were resumed on DATE .", "On DATE the President of ORG declared that the DATE decision was null and void . The company requested that the case be reexamined .", "On DATE the President of ORG , having reconsidered the case , upheld his earlier decision .", "In DATE the applicant instituted civil proceedings before ORG , seeking recovery of possession of the production hall of the factory .", "On DATE the court stayed the proceedings pending the outcome of the administrative case , holding that the outcome of the administrative proceedings in which the lawfulness of the DATE decision was being examined ( see paragraphs CARDINAL above ) was decisive for any decisions to be taken by a civil court . The applicant appealed . On CARDINAL DATE his appeal was dismissed by ORG . The proceedings were later resumed . At a hearing held on DATE the court stayed the proceedings again . On DATE the court resumed the proceedings . On DATE the court , having regard to the parties’ concordant request , stayed the proceedings , with a view to the possibility that they might settle the case .", "On DATE the applicant and other successors of the factory ’s former owner submitted a settlement offer to the defendant company . The proceedings were resumed on DATE at the defendant ’s request .", "On DATE the court adopted a judgment by which it ordered the defendant company to clear the production hall and return it to the applicant . On CARDINAL and DATE respectively the defendant company and the applicant appealed against that judgment .", "On DATE the ORG of Appeal quashed the judgment and remitted the case . On DATE the defendant company informed the court that on DATE it had concluded an agreement with the applicant concerning the settlement of arrears in the payment of compensation for noncontractual use of the property for the period from DATE to DATE . They had agreed that the defendant company would pay the applicant MONEY ( PLN ) in CARDINAL instalments . In addition , the parties concluded a lease contract valid until DATE . As the applicant refused to withdraw his case in so far as it concerned the claim for repossession of the production hall , the proceedings were continued . They are currently pending .", "On DATE a lawyer representing CARDINAL legal successors of the former owner , including the applicant , called on the PERSON company to pay ORG MONEY per month for using their property without a contractual basis . On DATE the applicant , together with CARDINAL other legal successors , brought a civil action against the company in ORG , demanding payment for noncontractual use of the property in DATE .", "On DATE the ORG gave judgment . It ordered the defendant company to pay ORG plus default interest to the legal successors of the former owner in damages for the use of the property in DATE . The court observed that the company had been in possession of the factory in bad faith at least since the judgment of ORG given in DATE ( see paragraph CARDINAL above ) . This judgment was upheld on DATE by ORG .", "Subsequently , the applicant brought civil actions in LOC , seeking compensation from the PERSON company for noncontractual use of the property during the following periods : DATE , DATE and DATE , DATE and DATE , and a number of further similar actions covering the period from DATE until DATE .", "ORG joined his CARDINAL first actions and allowed the applicant ’s claim on DATE . Its judgment was upheld on DATE by ORG .", "The parties concluded an outofcourt settlement in respect of the third action and the civil proceedings were discontinued . The remaining actions were joined and transferred to the GPE - Praga ORG , before which they are currently pending .", "On DATE the applicant brought another civil action in ORG , seeking compensation for the company ’s effective enjoyment of ownership from DATE to DATE .", "On DATE his action was dismissed . The court , bearing in mind the presumption of lawfulness of final administrative decisions , considered that in that period the defendant company had been holding the property in question as an independent possessor in good faith . Hence , it was not obliged to pay . This judgment was upheld by ORG on DATE .", "On DATE the applicant requested ORG to pay him damages for the period during which the ORG factory had been using his property . He relied on LAW in connection with the decision of CARDINAL DATE declaring the DATE expropriation decision null and void .", "On DATE the Minister for Infrastructure refused to grant compensation to the applicant and the other legal successors . He considered that they had not proved that they had sustained damage as a result of the DATE expropriation decision , and that no link between the alleged damage and the decision had been shown .", "On DATE the applicant brought a civil action in ORG against ORG , seeking compensation for the damage resulting from the unlawful expropriation decision issued in DATE . He based his claim on LAW . The applicant specified that the damage should be assessed as the difference in the value of the enterprise DATE . He also claimed CARDINAL of the profits which the enterprise had made DATE .", "On DATE the GPE - ORG dismissed the applicant ’s action . It was of the view that the applicant had failed to show that he had suffered damage . It noted that it was open to him to bring a claim for repossession against the company . The only damage that could be examined was the alleged difference in the value of the property on DATE when it had been taken over by ORG and the date on which the unlawfulness of the expropriation decision had been recognised . However , it transpired from the evidence submitted by the applicant that the buildings on the property had been modernised by the company . Hence , the value of the property had in fact increased .", "On DATE the judgment , together with its reasoning , was served on the applicant . The applicant did not appeal and on DATE the judgment became final .", "The factory remains in the possession of the PERSON company and DATE rent for the lease is paid to the applicant .", "Under NORP law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected in the context of agrarian reform . Therefore , no specific legal framework is available , enacted with the purpose of mitigating the effects of certain infringements of property rights .", "However , it is open to persons whose property was expropriated or their legal successors , to institute , under LAW , administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law . In particular , a final administrative decision can be declared null and void at any time if it was issued without a legal basis , or in flagrant violation of law .", "If the flaw that taints the challenged decision is of a substantive character , i.e. if the decision had been given without a legal basis or in flagrant violation of law , the administrative authority shall declare it null and void .", "Decisions flawed as a result of lesser procedural shortcomings , listed under items CARDINAL , CARDINAL , DATE and CARDINAL of Article CARDINAL § CARDINAL , such as those given by an authority which lacked competence to issue a decision in a given case , or in a case which had already been decided or addressed to a person not being a party to the proceedings , can only be declared null and void if DATE have elapsed from the date on which such decisions were given . In respect of such decisions it is only possible to declare that they were issued contrary to law ; the decisions themselves remain valid .", "A decision to declare the old decision null and void , or a refusal to do so , may ultimately be appealed to ORG .", "Article CARDINAL of LAW , as applicable at the material time , read in its relevant part :", "\" A person who has suffered a loss on account of the issuing of a decision in a manner contrary to LAW or on account of the annulment of such a decision shall have a claim for compensation for actual loss , unless he has been responsible for the circumstances mentioned in this provision . \"", "An administrative decision in respect of the compensation claim could be appealed against in a civil court .", "Under LAW , the administration was obliged to deal with cases without undue delay . Simple cases should be dealt without any delay . In cases requiring some enquiry a first - instance decision should be given in DATE . In particularly complex cases decisions should be taken within DATE .", "If the decision had not been given within those time limits , a complaint under LAW could be filed with the higherinstance authority , which should fix an additional time limit , establish the persons responsible for the failure to deal with the case within the timelimits , and , if need be , arrange for preventive measures to be adopted in order to prevent further delays .", "In DATE ORG was adopted , which entered into force on DATE . It created further procedures in which a complaint about the administration ’s failure to act could be raised .", "Under LAW , that court was competent to examine complaints about the administration ’s inactivity in administrative proceedings in cases referred to in LAW .", "Pursuant to LAW , if a complaint about the inactivity of an administrative authority was well - founded , the court should oblige the competent authority to give a decision , or to carry out the factual act , or to confer or acknowledge an individual entitlement , right or obligation .", "On DATE the Law on Administrative Courts came into force , which replaced LAW and established a CARDINAL - tiered system of appeals against administrative decisions to administrative courts ." ]

[ "6" ]

[ "6-1" ]

[]

[ "P1" ]

[ "P1-1" ]

[ "P1-1-1" ]

[ "The applicant was born in DATE and lives in GPE .", "The applicant ’s father , PERSON , was chairman and managing director of the ORG and ORG companies .", "On DATE Lambda , a company representing certain shareholders in ORG and ORG , lodged a complaint for misappropriation of corporate assets , together with an application to join the proceedings as a civil party .", "By an order of DATE , PERSON was sent before ORG on suspicion of having , DATE , as chairman and managing director of ORG and ORG in GPE , knowingly fraudulently misused assets of those companies against their interest , in particular by letting them bear the full cost of an DATE licence fee equal to PERCENT of the CARDINAL ORG turnover , only part of which was justified , for his personal gain or to help another company in which he had a direct or indirect interest .", "CARDINAL agreements were signed for the purpose : CARDINAL on DATE , between ORG and ORG , and the other on DATE , between ORG and ORG . They were adopted by the general assemblies of ORG and ORG on DATE and DATE respectively .", "In a judgment of DATE ORG declared the prosecution against PERSON time - barred , the starting point for the purposes of limitation being fixed at CARDINAL and DATE , the dates of signature of the agreements by the shareholders . As a result , the court declared the civil party action brought by Lambda inadmissible .", "On DATE and DATE Lambda and the public prosecutor at the GPE tribunal de grande instance appealed .", "NORP In a judgment of DATE ORG confirmed the judgment in all its provisions . Lambda appealed on points of law .", "On DATE J .- L. Lagardère died .", "In a judgment of DATE , after declaring that the prosecution had lapsed , this time as a result of the accused ’s death , ORG quashed and annulled the judgment of ORG concerning the civil action , considering that the moment at which time had started to run for the purposes of limitation was the presentation of the ORG special report to the general assemblies , which post - dated the signature of the disputed agreements . The case was sent before ORG .", "Jean - Luc Lagardère ’s heirs , his widow ORG and the applicant , challenged that court ’s competence to judge the civil action .", "In a judgment of DATE ORG dismissed that objection , considering that the civil action continued when the offender ’s death occurred after a decision on the criminal prosecution had been given .", "It declared the instances of misappropriation of corporate assets committed in DATE time - barred , but not those committed in DATE .", "The court accordingly considered that it had first to determine whether the constituent elements of the offence of misappropriation of corporate assets were established in respect of PERSON late father . To do this it examined “ the personal interest ” in the signature and execution of the contracts in issue , “ whether they were against the corporate interests of ORG and ORG ” , and whether PERSON had acted in “ bad faith ” . It concluded its reasoning in the following terms :", "“ the system set in place ... at the request of Mr [ J .- L. ] Lagardère ... constitutes the offence of misappropriation of corporate assets to the detriment of ORG and ORG . ”", "ORG explained that the profit had been MONEY ( ORG ) , or MONEY ( ORG ) , without any real added value for the injured companies .", "In the operative part of its judgment ORG held :", "“ that the constituent elements of the offence of misappropriation of corporate assets to the detriment ORG and ORG are established for that period against Mr ORG . ”", "In view of that finding ORG ordered ORG and the applicant , as the heirs , to pay the civil party ORG in damages .", "The applicant , ORG , ORG and ORG at ORG appealed on points of law . In support of his appeal the applicant argued that there had been a violation of LAW because the criminal court had no authority to judge the matter after his father ’s death .", "In his opinion on the appeal the advocate - general at ORG , having examined the different possible solutions and the relevant legal theory and case - law , concluded that ORG had no authority to judge the civil action after PERSON ORG death . He also justified his opinion on principle . First , he pointed out that whatever the place reserved for the victim in the criminal trial , the judgment of the civil action remained contingent on the outcome of the criminal proceedings as it required the prior demonstration of the existence of an offence of which a particular individual was guilty , which ruled out the possibility of continuing the action against the heirs . He cited a passage from an authoritative work ( PERSON pénale , by Professors PERSON , GPE and GPE , CARDINALth edition ) : “ in our modern law we no longer bring actions against the dead or the memory of the dead ” . Next , he explained that the need for a violation of the criminal law which was inherent in any decision of the criminal courts justified the fact that , for the court even to rule only on the civil action , the accused had to be given a criminal trial that respected the “ principle that hearings must be oral ... and the adversarial nature of the trial , which was an essential component of a fair trial . In other words , in order for the criminal court to be able to rule , in both the criminal and the civil proceedings , there is a condition : the effective participation of the accused in his trial ” . This meant that in order for the criminal court to be able to examine the civil action alone , it would be necessary for the accused “ at CARDINAL time or another , to have had an effective opportunity to submit his arguments in full concerning the presence and the solidity of all the constituent elements of the offence with which he has been charged , and his responsibility in the matter ” .", "NORP In a judgment of DATE ORG declared ORG appeal inadmissible and rejected those lodged by the applicant and ORG", "Regarding the arguments submitted by the applicant , the judgment read as follows :", "“ In overruling the objection that the criminal court had no authority to hear the civil action brought by the heirs of [ J .- L. Lagardère ] because no decision had been given on the merits in the criminal proceedings prior to the death of the accused , the judgment states , among other things , that the proceedings and the judgment found that the prosecution was time - barred before the accused died ; furthermore , the criminal court to which the case was remitted by ORG is the only court competent to determine whether the prosecution was time - barred and whether , having regard to the civil claim , the constituent elements of the offence of misappropriation of corporate assets have been made out ;", "In pronouncing itself in those terms the Court of Appeal justified its decision ;", "Trial courts before which action was lawfully taken before the criminal prosecution lapsed continue to have jurisdiction in the civil proceedings ... ”", "Ruling on the civil party claim , it quashed and annulled the judgment of ORG solely on the issue of the capitalisation of the interest on the sums owed by ORG heirs . On that occasion it noted that ORG had “ found PERSON guilty ” .", "The relevant provisions of LAW read as follows :", "“ Anyone who has personally suffered damage directly caused by a criminal offence may bring civil - party proceedings to seek compensation for such damage . ... ”", "“ Civil - party proceedings may be conducted simultaneously with the public prosecution and before the same court .", "Civil - party proceedings may be brought for any head of damage , whether pecuniary or physical or non - pecuniary , caused by the acts under prosecution ”", "“ Civil - party proceedings may also be conducted separately from the public prosecution , before a civil court .", "However , judgment in civil - party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution .", "Setting the public prosecution in motion does not suspend the other actions before the civil court , whatever their nature , even if the decision to bring criminal proceedings is likely to directly or indirectly influence the outcome of the civil proceedings . ”", "“ A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits . ”", "“ The public prosecution for the imposition of a penalty is extinguished by the death of the defendant or by limitation , amnesty , the repeal of the criminal law and res judicata . ”", "“ When civil action is taken before a criminal court , limitation is governed by the rules of public prosecution . When the action is taken before a civil court , limitation is governed by LAW .", "When the court has made a ruling on the public prosecution , the investigative measures ordered by the criminal court on the civil claims alone are governed by the rules of civil procedure . ”", "When criminal and civil proceedings are brought simultaneously before the criminal court , the civil action is considered contingent on the outcome of the criminal prosecution ( see , for example , ORG , CARDINAL DATE , ORG . crim . no . CARDINAL ) .", "NORP The public prosecution is extinguished by the death of the accused during the appeal on points of law . When ORG of ORG decides to discontinue the proceedings , the criminal courts can no longer rule on the criminal proceedings and therefore have no authority to examine the civil action ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) . If the accused dies before any decision is reached on the merits , the criminal court has no authority to examine the civil action ( Court of Cassation , Criminal Division , DATE ; CARDINAL DATE , Bull . crim . no . CARDINAL ) .", "The criminal courts can rule on the civil action only where a decision has been reached in the criminal proceedings ( Court of Cassation , Criminal Division , DATE , ORG . crim . no . CARDINAL ) . In that case , when death occurs during the appeal or the appeal on points of law , the public prosecution is extinguished but ORG and ORG can still examine the civil claims ( Court of Cassation , ORG , CARDINAL DATE ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . ORG ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) . ORG remains competent if death occurs after cassation but before the accused is summoned to appear before the court to which the case has been remitted ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) . ORG must examine the grounds of appeal concerning both the civil action and the criminal prosecution , the latter serving as the basis for the former ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) ." ]

[ "6" ]

[ "6-1", "6-2" ]

[]

[]

[]

[]

[ "The applicants , all farmers , are NORP citizens who are related to each other and are resident in GPE , GPE . They are represented by Mr PERSON , a practising lawyer in GPE .", "The facts of the case , as they have been submitted by the applicants , may be summarised as follows .", "The applicants maintain that their families had de facto possession ( zilyedlik ) of an area of land in LOC in GPE for DATE . They allege that over DATE their ascendants had been leasing the land to various villagers and had successfully claimed and defended their rights over the land .", "According to the applicants , CARDINAL of their ancestors in DATE leased the land to a family in the village ( aşiret ) . For reasons which are unknown , the money which was received in rent for the lease of the land was paid directly to the village administration . The ancestor sued ORG for the return of the money , claiming that the latter had unlawfully retained it . However , their ancestor and the village mayor ( GPE ) reached a friendly settlement ( sulh ) . According to the terms of that settlement , the ancestor agreed that the village mayor could collect and keep the rent due under the lease up until DATE . In return the mayor agreed that , after DATE , “ the village people ” would respect the ancestor ’s property ( mülkiyet ) rights over the land . On DATE , this friendly settlement was registered with ORG ) in the form of a judgment .", "At various times in DATE their ancestors complained to ORG that some villagers had trespassed on and used the land without their consent . ORG , with reference to the judgment of ORG , upheld the complaint .", "In DATE the former mayor of the village was charged with abusing his official powers as a civil servant in connection with the conclusion of the DATE friendly settlement with CARDINAL of the applicants’ ancestors . In a judgment dated CARDINAL DATE ORG acquitted the former mayor of the charge .", "In DATE several villagers requested ORG ) to rule that the applicants’ ancestors had unlawfully interfered with their use of the land . In its judgment of DATE that court held that the consent of the former mayor of the village to the friendly settlement which was registered with ORG on DATE did not bind the villagers . The court nevertheless found that the plaintiff villagers’ claims to be in de facto possession ( zilyedlik ) of the land were manifestly ill - founded . On the other hand , the court also accepted that the villagers had built houses and barns on the land and had cultivated fruit gardens in good - faith and with the knowledge of the applicants’ ancestors . For that reason , it held that the latter had interfered with the plaintiffs’ possessions on the land . It would appear that the applicants’ ancestors did not appeal .", "In DATE other villagers resident in LOC challenged the decision of ORG of DATE before ORG ) . However , a friendly settlement ( sulh ) was reached between the applicants’ ancestors and the plaintiff villagers according to which the former accepted the villagers’ property rights with respect to a certain part of the disputed land . This friendly settlement was registered with ORG in the form of a judgment dated DATE . The applicants’ ancestors appealed on procedural grounds . ORG upheld the registration judgment .", "On DATE , at the request of the applicants’ ancestor , the disputed areas of land were registered with the land registry ( PERSON ) of PERSON . This registration was based on the judgment of ORG of DATE .", "In DATE and twice in DATE some villagers attempted to use the land without the consent of the applicants’ ancestors . The latter complained to ORG under PERSON No . DATE which protects de facto possessors of immovable property against third party interferences . The Governor ordered the villagers to leave the land with the exception of that part of the land which they used as meadowland ( mera ) .", "At some stage , certain villagers together with ORG requested ORG ) to annul the title deed to the land which had been registered by the ORG ancestor with the land registry of ORG in DATE . On DATE the court concluded that the mayor was not entitled to enter into a friendly settlement on behalf of the village in the absence of a decision of ORG ( PERSON ) . The court nevertheless ruled that the plaintiffs failed to provide sufficient evidence to show that the disputed land was meadowland and as such the property of the LOC . The plaintiff village and the villagers appealed . The applicants have not provided a copy of the decision of ORG .", "Following an official cadastre measurement ( tapulama tesbiti ) dated DATE , ORG ( PERSON ) identified the disputed land as “ village heritage ” and classified it as meadowland , which was to be registered as the property of the village .", "On an unknown date the applicants challenged the decision of ORG before ORG . The court held on DATE that the applicants had to lodge their complaint with ORG ( İtiraz GPE ) of ORG ( Tapulama Müdürlüğü ) and for that reason the file was transferred to the latter authority .", "On DATE ORG of ORG ( Tapulama Müdürlüğü ) rejected the ORG complaints .", "On DATE and DATE , the applicants challenged the decision of the CARDINAL DATE before ORG . The respondents were ORG ( legal entity ) represented by its mayor ( muhtar ) and GPE PERSON ) of ORG . The applicants requested that the administrative classification be annulled and their former registration as owners in the land registry ( tapu kütüğü ) be reconfirmed . ORG of ORG ( PERSON ) also challenged the decision before the same court , claiming that certain lots which were registered as the property of GPE village were in fact the property of the ORG .", "In support of their claims , the applicants referred to the events surrounding the land since DATE . They argued that their property rights as the undisputed owners of the land had been determined and affirmed by the DATE court decision and that no other court could alter that decision .", "ORG heard all the concerned parties as well as witnesses . The court commissioned the preparation of expert reports on the disputed land and also inspected the site .", "On DATE ORG concluded that the classification of the land as meadowland by ORG and the registration of LOC as the owner was lawful . The court also ruled that certain parts of the disputed land were the property of ORG of ORG . In its reasoning the court held that the judgment of ORG of DATE only pertained to a dispute over receivables between CARDINAL parties ( CARDINAL of the applicants’ ancestors and the village ) and was only intended to register the friendly settlement reached . According to the court , the DATE judgment was neither a determination of ownership of the land nor a legal basis for registering the applicants’ title to it in the land register in DATE .", "The applicants appealed . They complained that the trial court did not investigate the case sufficiently . They also claimed that the court could not give a judgment which was in contradiction to the judgment of the Kadirli Magistrate ’s Court of DATE .", "On DATE the CARDINALth Chamber of ORG upheld the judgment of ORG . It ruled that the lower court had investigated the case sufficiently and evaluated the evidence in accordance with the law . It concluded that the DATE registration of the applicants as owners in the land registry was groundless since it was not based on a judgment validating title to the land ( tescil ilamı ) . According to ORG , the DATE judgment of ORG did not affect the rights of ORG of the PERSON village since it was not a party to the friendly settlement . It added that the meadowland was public property and bona fide possessors thereof could not acquire property rights with the passage of time . The ORG furthermore found that in any event the land was never in the undisputed and uninterrupted possession of the applicants for DATE . The ORG nevertheless stated that it was not the first instance court ’s task to determine the true owners of the lots . The trial court should have confined itself to ordering that the classification of the land as meadowland be registered as such in the relevant register . The ORG corrected the corresponding parts of the trial court ’s judgment .", "The applicants asked for the correction ( karar düzeltme ) of ORG judgment . On DATE Chamber of ORG rejected their request ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants were born in DATE and DATE respectively and live in ORG .", "The facts surrounding the arrest and subsequent death of PERSON ( “ PERSON ” ) are in dispute between the parties .", "On DATE at TIME plain - clothes police officers arrived at the first applicant , PERSON ( “ GPE ” ) , apartment in GPE . They entered the apartment , carried out a quick search and inquired about PERSON . GPE informed them that PERSON was spending TIME in his uncle PERSON apartment . Leaving CARDINAL of the officers with ORG , PERSON , PERSON , ORG and PERSON , the rest of the officers left taking the second applicant , PERSON ( “ PERSON ” ) , with them to show them the way .", "When they arrived at ORG apartment , one of the police officers remained at the entrance of the building . PERSON and CARDINAL officers went up to the second floor . When they entered the apartment , the police officers carried out a search and an identity check . Several members of the PERSON family were present in the apartment , namely PERSON , GPE , GPE , GPE , PERSON , and PERSON , as well as CARDINAL grandchildren of PERSON and CARDINAL of PERSON friends . CARDINAL of the police officers interrogated these QUANTITY men in CARDINAL of the rooms . The rest of the group was held in the sitting room . Suddenly , a gun shot was heard from the room and an armed clash broke between the police officers and the CARDINAL men . The police officer who was interrogating the QUANTITY men was shot dead . When the shooting started , the second police officer grabbed PERSON by his arm and dragged him downstairs . PERSON and the others saw the CARDINAL men try to escape . They heard further gunshots from downstairs . The group subsequently learnt that CARDINAL of the men had died , the other had escaped and the officer who was waiting outside the building had been wounded .", "Approximately TIME following the incident , several police teams surrounded the building . PERSON , GPE , GPE , GPE , ORG were arrested and taken to ORG by a minibus . When they arrived at ORG , they were detained in the entrance hall . On the right hand side of the entrance hall , there were CARDINAL rooms , CARDINAL of which were used for interrogation and the third was the office of the superintendent . PERSON was called in to CARDINAL of the small rooms for interrogation . When he entered the room , he saw his brother PERSON , lying on the floor face down , with his red leather jacket pulled over his head . In the meantime GPE , GPE , ORG , NORP and PERSON were also arrested and brought to FAC by another minibus . When the second group entered the station , they were told to cover their heads with their jackets . ORG however was able to see through the parting of his jacket . He also saw his son PERSON standing behind him . The group was subsequently transferred to another location by a minibus . PERSON saw PERSON also in this second location . They were then brought to ORG for interrogation , where the applicants heard the cries of PERSON .", "The first applicant was held in custody until DATE . When he was released , the police officers told him that if anyone asked about his son PERSON , the applicant had to say that he had fled to the mountains to join the guerrillas . The second applicant was released on DATE , DATE after his arrest .", "On DATE the first applicant went to ORG and submitted a petition outlining his concerns for the fate of his son . The public prosecutor showed him some photographs and from these photos the first applicant identified the body of PERSON . The public prosecutor informed him that PERSON had died in an armed clash on DATE and that his body had been buried . When GPE went to the cemetery , QUANTITY unmarked graves were shown to him and he was told that CARDINAL of them belonged to PERSON . On DATE ORG submitted a petition to ORG Chief Public Prosecutor 's office and requested permission to open his son 's grave . His request was rejected verbally . On DATE ORG lodged CARDINAL petitions with ORG Chief Public Prosecutor 's Office . He requested that an autopsy be conducted on PERSON body in order to learn the true circumstances surrounding his death . He was told to go to the court to get permission for an autopsy . He filed another petition with the State Minister responsible for human rights and requested an investigation of the circumstances surrounding the death of his son . On DATE the Ministry replied that PERSON had never been taken into custody .", "Following the communication of the application to the Government , ORG was summoned to the ORG public prosecutor 's office on DATE . He was questioned about his application to the ORG and was forced to sign a statement in which he expressed his wish to retract his application . Thereafter he went to ORG and informed them about this incident .", "The Government stated that while ORG of ORG was taking a statement from an arrested person in connection with an ongoing investigation , they were informed that a person called PERSON was aiding and abetting the ORG . Accordingly a team of police officers went to Abdurrazak'sCARDINAL apartment searching for his son PERSON . When they arrived at the apartment , the officers were informed that PERSON was spending TIME at his uncle 's apartment . Taking PERSON with them to show them the way , the officers subsequently went to PERSON apartment . The officers carried out a search and found CARDINAL men sleeping in CARDINAL of the rooms . As they interrogated them , CARDINAL of the men opened fire and killed CARDINAL of the police officers . Another officer was wounded during the incident . The Government further stated that the CARDINAL men tried to escape however CARDINAL of them was shot dead .", "The Government further submitted that on DATE the security forces received an anonymous telephone call , informing them that CARDINAL armed men had been seen hiding in a hut near FAC . Accordingly , an operation was conducted . When the officers arrived near the hut , an armed clash broke out and lasted TIME . Following the clash , CARDINAL men were found dead in the hut . The officers took photographs of the bodies to enable their identification . On DATE an autopsy was conducted on CARDINAL of the bodies , which was later identified as PERSON from the photographs . Furthermore , according to the ballistic examination reports , the guns that were found in the hut matched those used on DATE in PERSON apartment .", "The parties submitted various documents to the ORG . While delivering its judgment , the ORG had particular regard to the following documents :", "NORP The report stated that in connection with an ongoing investigation , a search was conducted in a house on DATE . The officers were looking for PERSON however they were informed that PERSON was at his uncle 's house . Accordingly , taking PERSON with them to show them the way , the police officers left the apartment . When they arrived at the second apartment , the officers conducted a quick search and found CARDINAL men sleeping in CARDINAL of the rooms . When the officers asked the men to show their identification paper , they were attacked and a gun was fired . CARDINAL person was arrested and while he was being taken to the police vehicle downstairs , another police officer was shot and wounded . The arrested person escaped and the person who had shot the officer was killed .", "According to the report , which was signed by officer PERSON , on DATE at TIME the anti - terrorism department received an anonymous telephone call informing them that the perpetrators of the incident of DATE , who had caused the death of a police officer and the wounding of another , had been seen in a hut near FAC .", "The report states that following information from an anonymous telephone call at TIME that CARDINAL armed men were hiding in a hut near FAC , a police operation was carried out . Taking the necessary safety precautions , the officers positioned themselves QUANTITY away from the hut and ordered the CARDINAL men to surrender . Shots were fired from the hut in the direction of the security forces and a clash broke out . The clash lasted TIME . When the firing ceased , police officers entered the hut and found CARDINAL dead bodies . CARDINAL of the bodies had an ammunition belt with CARDINAL cartridge clip holders , a PERSON rifle and a cartridge clip . A PERSON pistol was found on the second body . There were no identity cards on the bodies , which were subsequently taken to ORG morgue .", "The autopsy report stated that rigor mortis had set in and bruising had appeared on the body . CARDINAL bullet entrance holes on the back side of the neck and CARDINAL exit holes in the chest were noted . The report further stated that no other signs were observed . As the gunshot wounds were the certain cause of death , it was not considered necessary to carry out a full post - mortem examination . Finally , the estimated time of death was given as TIME before the autopsy was carried out .", "The Government have provided the photographs of the CARDINAL dead bodies and photographs taken in the hut where PERSON was shot .", "The custody records of ORG concerning the period of DATE and DATE do not contain the name of PERSON . They further indicate that GPE , PERSON , PERSON , ORG , ORG , PERSON , PERSON , GPE , GPE , ORG and ORG were taken in custody on DATE at TIME", "In their police statements , ORG , GPE , GPE and PERSON submitted that on TIME of the incident at QUANTITY police officers had arrived at their apartment , looking for PERSON . PERSON informed them that PERSON was spending TIME at his uncle 's house . Accordingly , the police officers left , taking PERSON with them to show them the way . TIME , the police officers returned and arrested them .", "NORP The report which was delivered by ORG indicates that there were no signs of ill - treatment on the bodies of PERSON , GPE , NORP , GPE , GPE , ORG and GPE ORG .", "In his police statement PERSON explained that on TIME of the incident , he was at his father Abdurrazak'sCARDINAL house . At TIME police officers arrived looking for his brother PERSON . PERSON informed the officers that PERSON was spending TIME at his uncle PERSON 's house . Accordingly , PERSON went with the officers to show them the way . When they arrived at GPE 's apartment , the police officers asked for PERSON and they were told that he was sleeping in one of the rooms . PERSON waited in the living room together with the other family members while the officers entered the room where PERSON and his friends were sleeping . TIME a gun shot was heard and everyone in the living room fled to the neighbour 's apartment . PERSON further stated seeing PERSON and his CARDINAL friends running away .", "As to the police statements of GPE , ORG and PERSON , they all stated that on DATE of the incident PERSON had been staying at their apartment together with his CARDINAL friends . At QUANTITY TIME , police officers came looking for PERSON . They conducted a search in the apartment and one of the officers entered the room where PERSON and his QUANTITY friends were sleeping . TIME , they heard a gun shot . All the family members fled to the neighbour 's apartment whereas PERSON and his CARDINAL friends tried to run away .", "NORP The report of ORG indicates that there were no signs of ill - treatment on the bodies of PERSON , GPE and PERSON . The report further stated that there were certain marks on the body of PERSON .", "In their statements to the public prosecutor , PERSON , GPE and PERSON essentially repeated their police statements . As to PERSON , while she reiterated the general account of the events , in her statement to the public prosecutor she did not mention that she had seen PERSON running away .", "In their statements Abdülkadir and PERSON stated that on DATE , while they were sleeping at home , police officers had come to their apartment looking for PERSON . He and his QUANTITY friends had been spending TIME with them . PERSON and FAC further explained that while the officers interrogated PERSON and his CARDINAL friends in CARDINAL of the rooms , a gun shot was heard . The family members fled to the neighbours ' apartment and they were all subsequently arrested by the police . Nasır and ORG further denied their statements taken by the police and the public prosecutor .", "According to the report , prepared by ORG , a PERSON automatic rifle , a PERSON semi - automatic pistol , CARDINAL bullet cases , and CARDINAL bullets were taken into examination following the clash of DATE . It was further established that the bullets fired by the PERSON rifle had been used in the killing of police officer PERSON on DATE . The report further concluded that the PERSON pistol had not been used in any previous incidents .", "According to the report prepared by ORG , GPE identified the body of PERSON from the photographs .", "The first applicant requested information about the fate of his son , who had been arrested on DATE at ORG apartment .", "Upon learning from the public prosecutor that his son , PERSON , had died in a clash on DATE , the first applicant submitted to the prosecutor that he believed that his son had died in custody . He accordingly requested that an autopsy be conducted on the body of PERSON to clarify the exact cause of his death .", "The first applicant maintained that his son was taken into custody on DATE together with CARDINAL members of his family . He further stated that he had seen him both at ORG and at ORG . Although the first applicant was informed by ORG that his son had died in a clash on DATE , he requested the Minister to conduct a further investigation into the real circumstances surrounding the death .", "In his letter the Minister informed the first applicant that PERSON was never taken into custody .", "In their letter , ORG requested ORG to conduct an investigation concerning the individual application of ORG and PERSON to ORG . The prosecutor was asked to take statements from the CARDINAL applicants concerning certain documents that they had sent to the Commission .", "NORP In response to the public prosecutor 's question about the individual application that he had lodged with ORG , the first applicant explained that following the death of his son , PERSON , he had gone to ORG where he had signed certain documents . However he stated that he did not recall giving authorisation to NORP lawyers to initiate proceedings in LOC . He further indicated that he wished to retract his application .", "In his statement , which was addressed to ORG , the first applicant stated that he had been taken by plain - clothes police officers to the public prosecutor 's office in DATE . On the way to the public prosecutor 's office , the officers forced him to deny that he wanted to pursue his application with the Commission . He maintained that he had to sign a statement in the public prosecutor 's office out of fear and without knowing its content as he is illiterate .", "The facts of the case being in dispute between the parties , CARDINAL Delegates of the Commission took oral evidence in GPE DATE and DATE from CARDINAL witnesses , including the applicants . The evidence of those who attended the hearing may be summarised as follows :", "The witness , who is the first applicant , stated that on DATE of the incident at TIME police officers had come to his house , looking for his son PERSON . He informed the officers that PERSON was staying at his uncle 's house and told his other son PERSON to show them the way . TIME after they had left , police officers came back and arrested everyone in the apartment , namely GPE , NORP , ORG and PERSON . They were first taken to ORG . The police officers forced them to cover their heads with their jackets but the witness was able to see through the parting of his jacket . He saw that his CARDINAL sons PERSON and PERSON were also in the station . Thereafter , they were taken to the police headquarters by minibus . The witness further recalled seeing PERSON in the minibus . They waited for TIME at the police headquarters before being taken to ORG , where they were blindfolded and the witness was able to hear the cries of PERSON . The witness and his daughters were released from custody DATE after their arrest . At the time of his release , the officers told him that his son had fled to the mountains . They gave him PERSON leather jacket but the witness refused to take it stating that his son would be cold without his jacket . The younger son of the witness , PERSON , was released DATE after his arrest . When PERSON did not return home , the witness went to the ORG public prosecutor and asked about his son 's whereabouts . The public prosecutor showed him some photos and asked him whether any of were of his son PERSON . The applicant identified his son 's body . The prosecutor informed him that his son had died during an armed clash between the ORG and the security forces .", "The witness further explained that after he filed his application with ORG , he was summoned to the public prosecutor 's office in DATE . The public prosecutor was angry with him for filing an application with the Commission . Out of fear , the witness stated before the public prosecutor that he would retract his application . However , before the Delegates , the witness affirmed that he intended to pursue his application . Finally he stated that he was able to visit his son 's grave and pray for him .", "The witness , who is the second applicant , stated that on DATE police officers had come to their house at QUANTITY He saw PERSON , a distant relative , with the police officers . The police officers carried out a quick search in the house and asked for his brother PERSON . His father , GPE , told them that PERSON was staying at his uncle 's house . Accordingly , the witness accepted to accompany the QUANTITY police officers to his uncle 's house . When they arrived , the witness knocked on the door . PERSON answered the door and let them in . CARDINAL of the police officers remained outside and CARDINAL of them entered . The officers conducted a search and carried out an identity check . When they found PERSON , they arrested him . PERSON by his arm , one of the officers went out . The witness followed them . As they were walking along the corridor , they heard gunshots . The police officer , who was holding PERSON by his arm , dragged him downstairs . At that time , the witness saw PERSON CARDINAL friends running downstairs but he did not see where they went . The witness then fled to the neighbour 's flat . His uncle GPE , his cousin PERSON , ORG 's wife and PERSON 's wife also joined him . Some time later , they were all arrested by the police and taken to ORG . The police officers told them to cover their heads with their jackets . When they arrived at FAC , they were forced to wait in a corridor . He described the entrance of the station and stated that there was a small hall followed by a long corridor , at the end of which there was a room . The witness saw PERSON lying face down on the floor in that room . PERSON was wearing a shirt , a pull over , a brownish leather jacket and denim jeans .", "The witness further confirmed seeing his father and sisters in the Çarşı Station . Subsequently , they were taken to a second place in a car , where they waited for TIME . The witness stated that he did not see PERSON in the second place . Then they were taken to a third place . The witness did not see anyone in this third place but heard the voices of his uncle , PERSON , and PERSON . PERSON was screaming in pain . The witness was kept there for DATE and he was allegedly ill - treated . The officers told him that his brother had escaped to the mountains . He was forced to sign a statement without reading its content . When he was released from custody , the witness went to the public prosecutor with his father to discover the fate of PERSON . The witness stated that when PERSON body was identified from the photographs , they were told that he had been buried . An officer showed them CARDINAL graves and informed them that he did not know which CARDINAL was PERSON .", "The witness , who is the first applicant 's nephew , stated that on TIME CARDINAL DATE , he was at his father 's house . His father ( PERSON ) , his mother ( GPE ) , his wife ( PERSON ) , his children , his brother ( PERSON ) , and his brother 's children were also at home . He recalled that his uncle 's son , PERSON and his CARDINAL friends had spent TIME with them . The witness maintained that at TIME CARDINAL plain - clothes police officers had come to their house , together with his cousin PERSON , searching for PERSON . At that time PERSON was sleeping in the guest room , together with his CARDINAL friends and the brother of the witness , PERSON . The police officers carried out an identity check and then told PERSON and his CARDINAL friends that they had to come to the police station for interrogation . CARDINAL of the officers held PERSON by the arm . At that moment they heard a gun shot . The police officer who was holding PERSON also started shooting . PERSON tried to prevent the police officer from shooting but the same police officer dragged him down the stairs . The witness further recalled that the family members fled to their neighbour 's to protect themselves . After some time , more police officers arrived and arrested everyone . While they were being taken to the police station , the witness saw that CARDINAL of the persons who had come with PERSON had been shot dead . The witness was put in a car and taken to ORG . He remembered standing in a long corridor . Despite the fact that he was blindfolded , the witness was able to see around . He saw that his mother , his wife , the daughter of PERSON and his uncle were also there . He also saw PERSON , a distant cousin . The witness said that he was taken to a room which was wet , where he saw PERSON , who was being tortured . PERSON was lying on the floor . He said to the witness “ Our family is ruined . They will kill us all . What is this we are going through ? ” . The witness stated that this was the last time he saw PERSON .", "The witness , who is the daughter of the first applicant and the sister of the second , was at her father 's house on TIME of the incident . She said that while they were sleeping at home , some police officers came to their house and asked about her brother PERSON . When her father explained to the police officers that PERSON was staying at his uncle 's house , the police officers left the house , taking PERSON with them . Some time after , the police officers came back and arrested everyone in the house , including the witness . They were first taken to ORG and then to the police headquarters . The witness explained that she had not seen PERSON in FAC but she had seen him at the police headquarters . When they arrived at the police headquarters , they walked upstairs and were taken into a hall . Their eyes were not covered but they were forced to hold their hands behind the back of their necks . They were made to stand facing the wall . When the witness glanced over her shoulder , she saw that PERSON was standing next to her . This was the last time she saw him . However she recalled hearing his voice at ORG , which was the third place they were taken to . He was moaning . She was kept in a cell , together with ORG , NORP , GPE , NORP and PERSON . At some point , PERSON and ORG were taken out of the cell and when they came back they were shivering . They therefore requested a blanket from the guardians and the guardians gave them a brown leather jacket which belonged to PERSON .", "The witness affirmed that he was a police officer at the Anti - Terrorism Branch of ORG at the time of the events . He recalled that after receiving information from PERSON , a person who was under custody , that PERSON had been aiding and abetting the ORG , an operation was prepared . PERSON was asked to point out the house of PERSON to a group of CARDINAL police officers , including the witness . On DATE at TIME they arrived at the apartment of GPE , the father of PERSON . PERSON told them that his son was staying at his uncle 's house . Accordingly , taking a young person with them to show them the way , and leaving CARDINAL police officer in the house of GPE , they left . When they arrived at PERSON uncle 's house , CARDINAL police officer remained near the patrol car , and the witness stayed outside the building . QUANTITY police officers went upstairs . TIME the witness heard gun shots from upstairs . CARDINAL of the police officers , PERSON , came downstairs , holding someone by the wrist . He told the witness that the third police officer , ORG , had been shot . The witness entered the building to help his colleague . At that time PERSON went outside , still holding the detainee by the wrist . The witness then heard footsteps and he hid under the stairs . A person fired a PERSON rifle at the witness and wounded him in the abdomen . The witness fired back and killed the person who had fired at him . He then went out of the building to get help . When officer PERSON saw that the witness was wounded , he left the detainee and ran towards him . The person who had been in custody ran away . The witness was subsequently taken to hospital , where he underwent an operation . When he regained consciousness in the hospital , his colleagues asked him to sign the incident report they had prepared . The public prosecutor further took his statement while he was still in intensive care . The witness accepted that there had been a mistake in the names that appeared in the incident report . He agreed that instead of PERSON , the name should have read PERSON . The witness further explained that he had not been involved in the arrests or interrogations of the people who had been in the house at the time of the incident .", "The witness confirmed that he was CARDINAL of the CARDINAL police officers who had gone to PERSON apartment on DATE at QUANTITY He recalled that after PERSON , a detainee , confessed during a police interrogation that PERSON was aiding and abetting the ORG , an operation was conducted to apprehend this person . PERSON showed them where PERSON lived . When they set off to arrest PERSON , the officers did not know what he looked like . CARDINAL of the police officers stayed in the car , and the other CARDINAL went into the house . PERSON was sent back to the police station in another vehicle . An elderly person opened the door , and informed them that PERSON was staying at his uncle 's house TIME . A young person accompanied the officers to the house in question . CARDINAL of the police officers stayed behind in the house to ensure that no one could call PERSON to warn him . Accordingly , the QUANTITY police officers and the young person went to the house of PERSON uncle . A middle aged lady opened the door . The witness stated that they told the lady they would carry out an identity check and they entered the apartment . The witness went inside the room that was on the opposite side of the entrance . In that room , there were women and children . In the meantime , his colleague PERSON went inside another room from which an old man and a younger man had come out . The officers found a third room , in which CARDINAL persons were sleeping . The witness made them stand in the corridor , while PERSON stayed in the room and called them in CARDINAL by CARDINAL for an identity check . TIME , the witness heard noises coming from the third room and when he went in , he saw that a man was struggling with officer Alişan . The witness tried to help however the other persons interfered . CARDINAL of the men had a PERSON rifle and he fired at ORG . When the witness saw that Alişan was shot , he grabbed one of the men , who did not have a gun , to use him as a shield . The witness ran downstairs to get help , still holding that man by his wrist . Downstairs , he met the third officer , GPE , and told him that an armed clash had broken out upstairs and that ORG had been shot . The witness then went outside the building to go to the car to use the radio . At that time , he heard Şerif ordering someone to surrender and subsequently he heard gun shots . The witness ran back to the building , letting go off the person he was holding . When he entered the building he saw that PERSON had been shot and the person who had shot at him had been killed . They called for reinforcements . TIME after the incident , they were able to send PERSON to the hospital and thereafter he drafted the incident report by hand . The witness further explained that he had given the incident report to his colleagues who had arrived at the scene of incident and they had typed it up . He remembered signing the typed incident report at the hospital . When asked about the names indicated in the incident report , the witness admitted that there was a mistake . He had written PERSON name as PERSON . The witness further maintained that he had given a statement to the public prosecutor in the hospital . The witness also stated that he had not seen the photos of the QUANTITY terrorists who were killed in a clash , DATE after the incident .", "The witness confirmed that he had signed the autopsy report of PERSON . He is a doctor specialised in forensic medicine and pathology . He has been a forensic doctor since DATE . The witness did not recall the autopsy of PERSON however by looking at the documents he explained that the estimated time of death was TIME before the autopsy was carried out . There were no bruises on the body . There were certain discoloured spots but these were not signs of beating or force . The cause of death was the CARDINAL bullets that had entered from the upper back region . There was an exit hole around the left breast , and another exit hole on the upper right side of the chest . Dr PERSON concluded that the entry and exit holes made it clear that the person had not been shot at close range .", "The witness affirmed that he was the head of ORG at the time of the incident . He recalled that on the basis of information received from a detainee , PERSON , an operation was carried out to apprehend certain people . The witness was the head of LOC however the interrogation office was located in FAC , which was also known as the police school . Officer PERSON stated that as a general rule , the detainees were taken directly to the police school for interrogation . When asked about the armed clash , during which PERSON had allegedly been killed , the witness stated that he had not been directly involved in the operation . Although his name appeared on the incident report , he explained that these reports were usually signed by the officers who were replacing him and who had the power to sign for him . He remembered however that , on DATE of the clash , they had received an anonymous call indicating that the CARDINAL terrorists , who had escaped DATE , were hiding in a hut .", "The witness further confirmed that he had never been interrogated concerning the allegation that PERSON had died under torture .", "The witness , who is a police officer , stated that he was serving at the interrogation office of ORG of GPE police headquarters in DATE . He was police superintendent . The witness explained that , at that time , there were CARDINAL interrogation teams and he was in charge of the first team . When asked about the general procedure that was followed after a person was arrested , he explained that before being brought for interrogation , all arrested persons were first sent for a medical examination . He emphasized the fact that the detainees were not blindfolded during the interrogation and that no one had been ill - treated . The interrogation office command was located in the headquarters of ORG in ORG . All the interrogations were conducted there . He refused the suggestion that the detainees could first be taken to ORG . When a detainee was interrogated , the officers first asked about his past , and then certain questions were put to him . There was no standard form of procedure for interrogation .", "The witness affirmed that he had been involved in the interrogation of PERSON as well as the PERSON family members . However he could not remember the interrogation of the PERSON family members very clearly as it was DATE . He recalled that upon receipt of intelligence to the effect that the CARDINAL persons who had escaped DATE before had been seen in a hut , an operation was conducted to apprehend them . The witness further took part in the operation together with CARDINAL police officers . They were all wearing bullet proof vests . Before the armed clash , the officers asked the QUANTITY persons to surrender but the QUANTITY men started shooting at the officers . The clash lasted for TIME . They were QUANTITY away from the hut . No officer was wounded . When CARDINAL returned their fire , the officers entered the hut and found CARDINAL bodies . The hut was QUANTITY , it had a wooden door and a small window . Shortly after the armed clash , another team arrived and took photographs in the hut . The witness explained that he had never referred to this incident or showed the photographs to the PERSON family members during their interrogation .", "The witness affirmed that he had been ORG from DATE to DATE . He recalled that he had taken a statement from the first applicant concerning his application to ORG DATE . The witness explained that , by a letter dated CARDINAL DATE from ORG of ORG , he was instructed to take the applicant 's statement concerning his application to GPE and to verify certain signatures on some documents . Accordingly , he had written to ORG to notify the applicant that he was called to the office of the public prosecutor . The public prosecutor stated that the applicant had come to his office alone , of his own free will . No police officer had accompanied him to the public prosecutor 's office . His statement was taken in the office of the clerks and not in the interrogation room . While they were in the office , the applicant seemed relaxed . The public prosecutor showed him certain documents , which were annexed to the letter from ORG . While accepting that these signatures belonged to him , the applicant stated that he did not remember signing these documents . The public prosecutor further recalled that the applicant had clearly stated that he did not want any foreign lawyers to make any applications before international bodies . The public prosecutor wrote down everything the applicant told him and read it out . The applicant accordingly signed his statement . The public prosecutor further admitted that he had not taken any steps to investigate the complaint , mentioned in the applicant 's statement , that he had been ill - treated in custody and that his ribs had been broken .", "A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-III ) and GPE GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "13", "2", "34", "5" ]

[ "2-1", "5-3", "5-4", "5-5" ]

[]

[ "14", "3", "5", "8", "9" ]

[ "5-1", "8-1", "9-1" ]

[]

[ "The applicants , Mr PERSON , and his mother , PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They are represented before the ORG by Mr P. ORG , a lawyer practising in PERSON . The respondent Government are represented by PERSON , their agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The father of the first applicant and the husband of the second applicant , PERSON , had owned a cloth factory until it was expropriated in DATE or DATE and attached to a ORG owned enterprise .", "On DATE Mr NORP brought an action under LAW ( Law no . PERSON . ) against the ORG owned enterprise in ORG ( ORG súd ) for restitution of real property that had once belonged to his factory .", "On DATE Mr NORP died . The applicants and another relative then pursued the action in his stead .", "On DATE , following a hearing held on DATE , ORG granted the action by ordering the ORG owned enterprise to enter into an agreement with the applicants on restitution ( dohoda o vydaní ) of the property in question .", "On DATE , following a hearing of the defendant ’s appeal , ORG ( PERSON súd ) quashed the judgment of DATE and remitted the case to ORG for re - examination finding that the latter had failed to establish the relevant facts adequately .", "In DATE and DATE the ORG owned enterprise underwent privatisation in the course of which its assets were sold to a private company X. and the ORG owned enterprise was wound up and liquidated . Company X. was subsequently transformed into a private company Y.", "On DATE , following a hearing held on DATE , ORG ordered that company X. surrender the property in question to the applicants .", "On DATE ORG gave a supplementary judgment ( doplňujúci rozsudok ) in which it made a similar order against Y.", "On DATE , on appeals by all parties , ORG quashed the judgment of DATE and discontinued the proceedings in so far as they concerned company X. It was observed that in DATE X. had been wound up and no longer legally existed . ORG further observed that the judgment of DATE concerning company Y. remained unaffected as no party had challenged it .", "Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Pursuant to LAW Ústavný súd ) could commence proceedings upon the petition ( podnet ) presented by any individual or a corporation claiming that their rights had been violated .", "On DATE ORG enacted a constitutional law amending LAW . It was published in LAW under no . CARDINAL/CARDINAL .", "Amendment no . CARDINAL/CARDINAL repealed LAW of the LAW with the effect as from DATE and introduced a new LAW with effect as from DATE .", "Pursuant to LAW , as in force from DATE , natural and legal persons can complain ( sťažnosť ) about a violation of their fundamental rights and freedoms . Under this provision , ORG has the power , in the event that it finds a violation of LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , for example , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , ORG CARDINAL-IX ) .", "The implementation of the above constitutional provisions enacted with effect from DATE is set out in more detail in sections CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . ) , as amended . The relevant LAW ( Law no . PERSON . ) was published in the Collection of Laws and entered into force on DATE .", "According to its case - law under the former LAW of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view it was for the authority concerned to provide redress to the person whose rights had been violated ( for further details see , for example , ORG v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .", "There are several decisions given by ORG DATE , in which it decided on individual complaints under LAW that had been filed DATE and DATE . The complaints concerned the length of proceedings before ordinary courts that had been brought prior to DATE ( for further details see , for example , PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , CARDINAL DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE . He is a tax accountant by profession .", "NORP In DATE the applicant , in the course of an inspection of his tax accountant office by tax inspectors ( PERSON ) filed reports ( PERSON ) in which he incriminated himself . He informed ORG for the CARDINALrd and CARDINALth District that he had made false statements in his income tax forms when he declared losses resulting from participation in the PERSON and PERSON company .", "On CARDINAL DATE ORG ( PERSON ) instituted administrative criminal proceedings on suspicion of tax evasion against the applicant . The applicant 's objection was of no avail .", "Having held hearings on DATE , DATE and DATE , ORG ( ORG ) at ORG convicted the applicant on DATE under LAW § CARDINAL of LAW ( Finanzstrafgesetz ) of negligent tax evasion and sentenced him to a fine of ORG CARDINAL ( MONEY ) . It further ordered him to pay the costs of the proceedings . The applicant and ORG ( Amtsbeauftragter ) filed an appeal .", "On DATE ORG ( ORG ) at ORG ) , having held a hearing on DATE , granted ORG appeal and convicted the applicant of intentional tax evasion under LAW § CARDINAL of LAW . The sentence remained unchanged .", "Subsequently , on DATE , the applicant filed a complaint with ORG and requested an oral hearing . He complained inter alia that ORG had lacked jurisdiction in the proceedings at issue and that in the hearing before ORG he had not been questioned .", "ORG filed comments on the applicant 's complaint on DATE .", "On DATE ORG granted suspensive effect to the applicant 's complaint .", "NORP On DATE ORG , without having held a hearing , dismissed the applicant 's complaint and ordered him to pay the costs of the proceedings before it . Referring to its case - law , it stated that ORG had been competent to conduct the proceedings at issue . Regarding the applicant 's complaint that he had not been questioned in the hearing before ORG , it noted inter alia that the applicant had not submitted that he had been prevented from presenting his arguments on his own motion in the hearing before ORG .", "The judgment was served on the applicant 's counsel on DATE ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant moved in to a council flat at GPE street , rented by MONEY , the applicant 's partner , with whom he had lived in a homosexual relationship . Earlier , in DATE or DATE , they had lived together in a flat rented by T.B. at DATE street . The applicant and PERSON shared the expenses for the flat . On CARDINAL DATE the applicant was registered as a permanent resident of the flat in the residents ' register kept by GPE ( Gmina ) .", "On DATE PERSON died .", "On an unspecified later date the applicant applied to the Mayor of ORG ) , asking him to conclude a lease agreement with him , replacing thereby the agreement with the late T.B. He was informed orally by one of the municipality 's clerks that he should first pay arrears in rent since otherwise a fresh agreement would not be effected . The applicant paid the arrears , which amounted to MONEY ( PLN ) and also renovated the flat , paying ORG CARDINAL,CARDINAL for the work .", "On DATE ORG and Dwellings ( Wydział Budynków i ORG Urzędu PERSON ) sent a letter to the applicant , informing him that his application could not be granted because he did not meet the relevant criteria . CARDINAL such criterion was to live in a council flat at least from DATE . The authorities held that the applicant had not lived in the flat but had moved in after DATE , the date of PERSON 's death . Moreover , meanwhile DATE on DATE – the applicant 's name had been struck out of the register of the flat 's residents due to the fact that he had not lived there for DATE ( see also paragraphs CARDINAL below ) . Accordingly , the authorities ordered the applicant to vacate the flat and surrender it to the municipality , on pain of being evicted from it at his expense and risk , the eviction being effected regardless of his presence .", "Subsequently , the applicant tried to negotiate an agreement with the municipality but to no avail .", "The Government maintained that at some unspecified time the applicant and PERSON had come into conflict . PERSON asked the authorities to strike the applicant 's name out of the residents ' register and intended to start eviction proceedings against him . They stopped running the common household some one and a half years before PERSON 's death and , at the same time , the applicant stopped paying the rent for the flat . DATE before his death PERSON stayed in his brother 's home but returned to the flat in DATE . The applicant did not live in the flat at the time of GPE 's death .", "The Government further stated that the applicant had not assumed responsibility for PERSON 's funeral .", "In support of their submissions , the Government relied on the findings made by the administrative authorities and courts and in proceedings concerning permanent residence ( see paragraphs CARDINAL below ) and eviction ( see paragraphs QUANTITY below ) . They produced copies of the relevant decisions .", "NORP The applicant acknowledged that he and PERSON had started to argue some one and a half years before the latter 's death and that he had stopped paying the rent and moved out for some time . However , DATE before PERSON 's death they had reconciled and they had resumed their relationship .", "The applicant submitted that until and upon PERSON 's death they both had lived in the flat . He had looked after PERSON during his illness up until his death . As regards PERSON 's funeral , the applicant stated that , officially , it had been PERSON 's former wife who had organised the funeral and had received a partial refund of expenses from ORG but he had helped her to organise it and had participated in the ceremony .", "On DATE made an application to GPE , asking it to strike the applicant 's name as a permanent resident of the flat at GPE street out of the residents ' register on the ground that the latter no longer lived at that address .", "On DATE the application was granted and a new entry was made in the register . The relevant administrative decision became final on an unspecified date .", "On DATE the applicant asked the authorities to re - open the case , submitting that he had not been notified of the institution of the proceedings . He maintained that , in contrast to what had been established in those proceedings , he had continually lived in the flat since CARDINAL DATE .", "The case was reopened and the authorities heard evidence from the applicant and several witnesses .", "The applicant stated that in DATE he had on several occasions left for GPE to seek odd jobs for periods lasting usually DATE . In DATE he had been absent only from DATE to May and , for DATE starting at DATE or DATE .", "The authorities inspected visas and stamps in the applicant 's passport and found that his stays in GPE and their length were confirmed .", "They further heard evidence from CARDINAL witnesses – GPE and DATE proposed by the applicant and also from residents of the building at K. street . While the applicant 's neighbours did not clearly confirm that he had resided permanently in the flat , they said that they had often seen him around , that he had answered the door to the flat , helped CARDINAL of them with moving furniture and that he had renovated the flat in DATE . They also stated that PERSON had led a very lively social life and many men had visited him .", "GPE and PERSON who were colleagues of the late PERSON and the applicant confirmed that he had lived in the flat until PERSON 's death .", "On DATE the Mayor of ORG ) quashed the decision of DATE and refused to strike the applicant 's name out of the residents ' register .", "In the decision , the Mayor referred to the fact that , in DATE , the applicant had unsuccessfully attempted to succeed to a tenancy of a council flat at J. street , after the death of a certain PERSON , the statutory tenant in DATE ( see also paragraph CARDINAL below ) . It was noted that in those proceedings the applicant had stated that he had lived in the flat at J. street since DATE , had had the keys , had kept his furniture and belongings there and , after his stay in GPE in DATE , had returned to the flat and renovated it .", "It was further noted that the applicant , when asked to explain the inconsistency with the version recently presented , had said that his statements regarding the alleged residence at J. street had not been true and that he had done so solely for the sake of acquiring the right to lease the flat at J. street , whereas he had in fact lived permanently at ORG street . He added that , in any event , he could not stay every day in the flat on account of MONEY 's and his colleagues ' frequent drunkenness .", "Assessing the facts as a whole , the Mayor considered that the testimonies given by the witnesses proposed by the applicant were not credible because they were his colleagues and , in addition , they did not reside in the building . The residents had not clearly confirmed that he had lived there from DATE . However , given the fact that PERSON had died on DATE , that the impugned decision had been issued on DATE and that , as confirmed by the neighbours , the applicant had lived in the flat after PERSON 's death and had renovated it , it was evident that on the date of the issuance of the decision he had been a resident of the flat . Accordingly , the original decision had not been given on the basis of the circumstances obtaining on the date of issuance and , as such , had to be quashed .", "On DATE GPE sued the applicant before FAC ( Sąd Rejonowy ) , seeking his eviction from the flat rented by the late T.B.", "On DATE the court gave judgment in default , granting the claim .", "On DATE the applicant applied for the judgment to be set aside and the claim to be dismissed . The court proceeded to hear evidence .", "On DATE the court heard evidence from the applicant . The applicant stated that he had lived with T.B. in the flat and that he was registered as a permanent resident of the flat , sub - letting it from T.B. At the material time he still lived in the flat , paying twice the rent due because he was using the flat without any legal title . He had informed PERSON 's brother of the latter 's death but had not organised the funeral since he had felt that the family should take care of it . The family had refused to take part in the funeral . Probably , PERSON 's former wife had organised it .", "On DATE ORG upheld the judgment in default of DATE .", "The court made the following findings of fact .", "The applicant was registered as a permanent resident of the flat since CARDINAL DATE . He sub - let CARDINAL room from GPE On DATE his name as a permanent resident of the flat was struck out of the register upon PERSON 's motion . It was later restored , following the re - opening of the case ( see also paragraphs CARDINAL above ) .", "The applicant did not organise T.B. 's funeral . PERSON and the applicant had had arguments . The applicant moved to the flat at PERSON street after PERSON 's death .", "By virtue of a judgment given by ORG on DATE the applicant had been evicted from the flat at J. street . The applicant had made attempts to succeed to a tenancy of the council flat at J. street after the death of ORG , a statutory tenant . In the relevant proceedings , he had stated that he had lived at J. street since DATE . Following the enforcement of the eviction order , he left the flat in DATE .", "The court further held that even though the applicant was registered as a permanent resident of the flat , this fact could not be decisive since this had legal consequences only for the residents ' register and not for the application of section CARDINAL of the DATE Act setting out the statutory conditions for the succession to lease ( see also paragraph CARDINAL below ) .", "In these circumstances , the court concluded that the applicant had no legal title to the flat in dispute and that the eviction order should be granted .", "The applicant appealed , arguing that the first - instance court had made errors of fact , in particular that it had wrongly found that he had moved to the flat at GPE street only after PERSON 's death . He also alleged several procedural shortcomings and arbitrary assessment of evidence .", "On DATE ORG ( PERSON ) heard and dismissed the appeal , upholding the grounds given for the firstinstance judgment .", "On DATE the applicant sued GPE before FAC , seeking a judgment declaring that he had succeeded to the tenancy after PERSON 's death .", "At a hearing held on DATE the applicant 's lawyer stated that the claim was based on section CARDINAL(CARDINAL ) of ORG of DATE ( ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) ( “ the DATE LAW ) ( see also paragraph CARDINAL below ) and that on this basis the applicant had a right to succeed to the tenancy as GPE 's life - partner ( konkubent ) , with whom he had cohabited for DATE and had run a common household .", "On DATE the applicant asked the court to hear evidence from CARDINAL witnesses , GPE , ORG in order to establish that he and PERSON had remained at all times in a particularly close relationship .", "At a hearing held on DATE the court rejected the motion and heard evidence from the applicant alone . It considered that the fact that the applicant had cohabited with his late partner had already been sufficiently proved on the basis of his own statements . Before the court , the applicant stated , among other things , that he had borne expenses involved in the running of their household , including the rent for the flat . He lived in a room and T.B. occupied the kitchen .", "On DATE it gave judgment and dismissed the claim .", "ORG made the following findings of fact .", "PERSON rented the flat in question from the municipality . He was a divorced single person . The applicant and PERSON had lived together from DATE or DATE , initially in another flat and , subsequently in DATE , they moved to the flat in dispute . They had a homosexual relationship . The applicant bore the costs of running the household and paid the rent for the flat . They stopped running the common household CARDINAL before PERSON 's death and at the same time the applicant stopped payment of the rent to the municipality .", "In DATE the defendant municipality lodged an action for eviction against T.B. , on the ground that rent arrears had not been paid .", "After PERSON 's death the applicant paid the rent arrears and asked the defendant to conclude a lease agreement with him . He renovated the flat .", "In DATE the applicant made a similar application to the defendant municipality , asking it to conclude a lease agreement with him in respect of another flat , rented by a certain PERSON , after the latter 's death . He alleged that he had permanently lived in ORG 's flat at J. street , whereas in GPE 's flat he had only been registered as a permanent resident .", "The findings of law read , in so far as relevant :", "“ Under section CARDINAL(CARDINAL ) of LAW a person can take over a tenancy if he or she has fulfilled jointly the CARDINAL following conditions : ( CARDINAL ) was in a close relationship with the late tenant by blood relations , adoption or de facto marital cohabitation ; ( CARDINAL ) resided permanently with the tenant until his or her death ; ( CARDINAL ) had not relinquished this right to the landlord and ( CARDINAL ) upon the death of the tenant had no title to another flat .", "The applicant stated that he had lived in de facto marital cohabitation with T.B. This should be assessed in the light of the situation as it obtained upon the latter 's death .", "The major features of a de facto marital relationship ( konkubinat ) are its dissolvability and lack of legal consequences following its dissolution – as it is a purely de facto union . For a relationship to be considered a de facto marital relationship there must be emotional , physical and also economic bonds between the partners .", "Yet it emerges from the applicant 's testimony that the economic bond between the partners broke DATE before GPE 's death , when they stopped running a common household . In consequence , their relationship no longer fulfilled the conditions for a de facto marital relationship .", "However , even assuming that all the above - mentioned requirements for a de facto marital relationship existed , the applicant 's and T.B. 's cohabitation could not be regarded as such . Indeed , a de facto marital relationship is a not legalised substitute for a marriage . Pursuant to NORP law , LAW , a marriage can be contracted only between a woman and a man . Consequently , [ the law ] recognises only de facto relationships of different - sex persons .", "That being said , the applicant does not belong to the group of entitled persons referred to in section CARDINAL(CARDINAL ) of LAW . All of the above - mentioned CARDINAL requirements of section CARDINAL(CARDINAL ) must be fulfilled jointly ; non - fulfilment of even CARDINAL of them makes it redundant to examine compliance with the remaining ones . It should be added in passing that , given the applicant 's attempts to succeed to the tenancy of [ another ] flat , his permanent residence in the flat [ in question ] upon the death of the statutory tenant is open to doubt .", "... ”", "The applicant appealed to ORG ( Sąd ORG ) , seeking to have the impugned judgment quashed and the case remitted or , alternatively , to have the judgment altered and his claim granted in its entirety . He asked ORG to hear supplementary evidence from him , in order to establish the actual duration of his relationship with T.B. Furthermore , relying on LAW ( ORG postępowania cywilnego ) , he asked the court to refer to ORG ( Sąd Najwyższy ) the following legal question :", "“ Does the term “ a person who has lived with a tenant in de facto marital cohabitation ” used in section CARDINAL(CARDINAL ) of the DATE Act also concern a person who has lived in a homosexual cohabitation with a tenant , or only a person living in a heterosexual cohabitation ? ”", "Alternatively , the applicant asked the court to refer , under section CARDINAL of the law of CARDINAL DATE on ORG ( ustawa o ORG ) ( “ the LAW ” ) , to ORG the following legal question :", "“ Is the term “ a person who has lived with a tenant in de facto marital cohabitation ” referred to in section CARDINAL(CARDINAL ) of the DATE LAW if interpreted as including only de facto marital cohabitation of a woman and a man – compatible with Articles CARDINAL § CARDINAL and CARDINAL of the LAW and LAW ? ”", "As regards the principal grounds for the appeal , the applicant argued that ORG had failed to establish the facts of the case properly , in particular because it had concluded that he and PERSON had stopped running their common household DATE before the latter 's death solely on the basis of his incomplete testimony and had refused to admit evidence from the witnesses proposed by him in order to clarify the circumstances of the case . He also alleged a breach of the substantive civil law consisting in an erroneous interpretation of the term “ a person who ha[d ] lived with a tenant in de facto marital cohabitation ” as relating solely to cohabitation of a man and a woman .", "On DATE the ORG heard , and dismissed the appeal . It considered that the lower court had correctly held that the applicant had failed to meet the requirements laid down in section CARDINAL(CARDINAL ) of the DATE Law . The reasoning , in so far as relevant , read as follows :", "“ In the case under consideration the applicant derived his entitlement to succession of the tenancy from his stable homosexual relationship with the tenant .", "For this reason , the determination of the scope of the term “ a person who has lived with a tenant in de facto marital cohabitation ” was of crucial importance for the determination of the claim .", "In contrast to what has been argued in the appeal , ORG correctly interpreted the above - mentioned term . This court shares the opinion stated in the reasoning of the impugned judgment that the legal regulation in section CARDINAL(CARDINAL ) of the DATE Act concerns persons remaining in a de facto marital relationship , i.e. an actual relationship of different sex persons with stable physical , emotional and economic ties , imitating a marriage .", "The appellant is not right in saying that the scope of the above - mentioned provision encompasses also homosexual relationships . According to an opinion commonly accepted in our legal writing and case - law ... , de facto marital cohabitation takes place only if a woman and a man cohabit together .", "It must be stressed that a de facto marital relationship differs from a marriage only by lack of its legitimisation . For this reason , the subjects actually remaining in marital cohabitation can only be persons who , under NORP law , are eligible for marriage . Pursuant to LAW § CARDINAL of ORG , the fundamental principle of the family in GPE is the difference in sex of a prospective nuptial couple ( nupturienci ) , which means that contracting a marriage between persons of the same sex is inadmissible . Having regard to the fact that de facto cohabitation constitutes a substitute for a marriage , one must consider that its subjects can exclusively be a woman and a man .", "While the appellant is right in saying that in the NORP legal writing the concept of de facto marital cohabitation also encompasses homosexual relationships ... , according to the general construction rules , legal concepts should be given the meaning that they have in our legal system . NORP law does not recognise relationships of same - sex persons . For this reason , where a legal provision ( in this case section CARDINAL(CARDINAL ) of the CARDINAL Act ) entails legal consequences on account of remaining in a de facto marital relationship , it does not concern partners having homosexual relations , even if they have stable emotional , physical and economic ties .", "Contrary to what is being argued in the appeal , the above legal solution does not infringe the constitutional principle of equality before the law , which does not have an absolute character and exceptions to which may be justified by the need to protect other rights . Indeed , LAW ... clearly states that “ marriage , being a union of a man and a woman , as well as the family ... shall be placed under the protection and care of GPE ” .", "The above - mentioned provision creates the constitutional principle of the protection for the family founded on a union of a woman and a man . Provisions of the international treaties ratified by GPE , i.e. LAW ... , which ensure legal protection only in respect of heterosexual relations , correspond to the regulations in the NORP legal system .", "In conclusion , ORG rightly held that the applicant did not belong to the group of persons entitled to succeed to a tenancy referred to in DATE the CARDINAL LAW . In the circumstances , it was unnecessary to take evidence in order to establish whether the applicant had indeed remained in cohabitation with the tenant and whether other conditions for succession to the tenancy had been satisfied . For this reason , the arguments [ concerning the refusal to take evidence from witnesses and the alleged errors of fact ] are unfounded .", "...", "In view of the foregoing , the appeal should be dismissed .", "... ”", "A cassation appeal to ORG was not available in this case .", "Section CARDINAL(CARDINAL ) of the DATE Act read :", "“ CARDINAL . In the event of a tenant 's death , his or her descendants , ascendants , adult siblings , adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation , shall , on condition that they lived in the tenant 's household until his or her death , succeed to the tenancy agreement and acquire the tenant 's rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision shall not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .", "NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . ”", "The DATE Act was repealed on DATE . Since then , the rules governing succession to lease have been included in LAW ( ORG cywilny ) .", "Pursuant to section CARDINAL(CARDINAL ) of LAW , a new LAW was introduced into LAW .", "Article CARDINAL , as applicable from DATE , reads , in so far as relevant , as follows :", "“ CARDINAL . In the event of a tenant 's death , his or her spouse ( if he or she is not a cotenant ) , his or her and his or her spouse 's children , other persons in respect of whom the tenant had maintenance obligations and a person who has lived in de facto cohabitation with the tenant shall succeed to the tenancy agreement . ”", "Article CARDINAL § CARDINAL of ORG ( ORG rodzinny i opiekuńczy ) states :", "“ A marriage shall be contracted when a man and a woman simultaneously present have declared before the Registrar of ORG that they marry each other . ”", "In DATE a group of CARDINAL senators submitted a bill on same - sex registered partnerships to ORG ( ORG ) . According to the bill , entering into a registered partnership was to create rights similar to those flowing from a marriage in respect of succession , health and social insurance and taxation . Following a long debate and having aroused considerable controversy over most of its provisions , the bill was eventually referred to PERSON at DATE . It did not have any follow - up in PERSON , which had not started its reading before the dissolution of ORG in connection with general elections held in DATE . Since then , there have been no further similar legislative initiatives in ORG .", "DATE , which refers to marriage , states :", "“ Marriage being a union of a man and a woman , as well as the family , motherhood and parenthood shall be placed under the protection and care of GPE . ”", "Article CARDINAL of the LAW , which lays down the principles of equality before the law and non - discrimination , reads as follows :", "“ CARDINAL . All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .", "No one shall be discriminated against in political , social or economic life for any reason whatsoever . ”", "Article CARDINAL of the LAW , which refers to the ORG 's housing policy , states the following :", "Article CARDINAL of the LAW , which refers to a constitutional complaint reads , in so far as relevant , as follows :", "“ CARDINAL . In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for its judgment on the conformity to LAW of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the LAW . ”", "In that judgment ORG dealt with a legal question submitted by ORG ( Sąd Rejonowy ) in connection with pending proceedings for succession to a tenancy . The question concerned the possible unconstitutionality of LAW in that , in consequence of the repeal of LAW and its section CARDINAL(CARDINAL ) ( see paragraphs CARDINAL above ) , it had introduced a new list of persons entitled to succession to the right to lease after the death of a tenant as laid down in LAW ( see paragraph CARDINAL above ) . In contrast to the previous regulation , the list no longer included the tenant 's grandchildren . ORG ruled that the modification under LAW was compatible with LAW rule of law ) and LAW before the law and non - discrimination ) of LAW .", "The judgment was given following a constitutional complaint lodged by a certain ORG and ORG . , alleging that section CARDINAL(CARDINAL ) of the DATE Act had been incompatible with a number of the constitutional provisions , including the principle of social market economy , protection of property rights , equality before the law , prohibition of discrimination , protection of succession rights and the protection of the rights of tenants . The applicants maintained , among other things , that the impugned section was in breach of the aforementioned provisions because it excluded from succession to a tenancy descendants of the late tenant 's siblings as well as all other heirs who had title to another residential dwelling which , as a result , restricted their succession rights in a discriminatory manner .", "ORG held that section CARDINAL(CARDINAL ) of the CARDINAL Act , in so far as it operated in the manner contested by the applicants , was compatible with the constitutional provisions invoked by them in support of their complaint .", "ORG , in its judgment of DATE ( no . IV ORG CARDINAL/CARDINAL ) , dealt with a cassation appeal concerning the division of common property acquired by a same - sex couple . The gist of the ruling concerns the rules that apply to such property division , which , as the court held , were those provisions of LAW that were relevant in the context of the particular relationship . They might differ depending on each specific situation , the nature of mutual relations and the organisation of personal and economic matters between the partners . While the court clearly rejected the idea that same - sex relationships could be considered “ de facto marital relationships ” , it did not exclude that the rules applicable to de facto marital relationships might apply by analogy to a same - sex couple 's claims for the division of common property .", "In that context , ORG analysed in depth the legal concept of de facto marital relationship and made conclusions that , in so far as relevant , read as follows :", "“ The [ principle of the ] protection of marriage set forth in LAW means that a legally formalised union of a woman and a man remains under the protection and care of GPE . The protection of marriage is shown by , among other things , the fact that legal consequences ensuing from marriage shall not apply to other relationships and that any interpretation or application of the law that would lead to equating other forms of cohabitation with marriage is inadmissible . Having regard to the constitutional principle of protection of marriage and to the fact that the lack of legal regulations for extra - marital relationships can not be considered a lacuna , it is inadmissible to apply provisions of matrimonial law ( including matrimonial property and its division ) DATE even by analogy – to other than marriage relationships based on existing personal and economic bonds . ...", "NORP law does not include any , either comprehensive or even fragmentary , regulations of extra - marital relationships of a personal and economic nature and , for that reason , they are regarded as legally indifferent factual relationships . ...", "Given the lack of legal regulations for extra - marital personal and economic relationships , certain rules for defining and treating such relationships – named de facto marital relationships – have been developed in the jurisprudence and legal writing . The criteria for a de facto marital relationship include , as a rule , no formal basis for cohabitation , no limitations on ending the relationship , the stability of the relationship , the existence of community in personal and economic life and different sex of the partners . The concept of de facto marital relationship as developed by the jurisprudence and legal writing considers the difference of sex between the partners as CARDINAL of its material elements .", "The established tradition , including the semantic tradition , militates against including in the notion of de facto marital relationship unions of same - sex persons modelled on heterosexual unions . ”" ]

[ "14", "8" ]

[]

[]

[]

[]

[]

[ "Mr Antonio Pizzi , a civil servant employed by ORG , lives in GPE di GPE .", "On DATE he applied to ORG ( “ the ORG ” ) for judicial review of a decision of ORG ( PERSON ) assigning him , at the time when he was recruited to a permanent post , to a staff category lower than the one to which he considered himself to be entitled on the basis of the duties he had performed during the period when he had been employed on a fixed - term contract .", "On DATE the applicant asked for a date to be fixed for the hearing and for his case to be dealt with speedily .", "According to information supplied by the applicant , on DATE , the proceedings were then still pending ." ]

[]

[]

[]

[]

[]

[]

[ "The first , second and third applicants , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals . They were born in DATE , DATE and DATE , respectively , and they live in GPE . The first applicant was represented before the ORG by Mr PERSON , a solicitor practising in GPE . The second and third applicants were represented before the ORG by Ms C. Almond , a solicitor with PERSON and ORG , GPE . The facts of the case , as submitted by the applicants , may be summarised as follows .", "At CARDINAL on DATE the applicants were re - arrested pursuant to section CARDINAL ) of LAW DATE with a view to being taken to ORG ( “ SCC ” ) and charged with membership of the IRA . In TIME of DATE they were brought before the SCC and charged : the period prior to charging was later calculated by ORG to be TIME . They applied for and were refused bail and remanded in custody on a number of occasions ( including on consent ) until finally remanded for trial to begin on DATE . The applicants did not object to the jurisdiction of the SCC during their initial appearance or during the subsequent DATE remand period .", "In the meantime ( in DATE ) , PERSON O’Brien was arrested and brought before the SCC to be charged with membership of the IRA arising out of the same events to which the charges against the applicants related . He immediately challenged the jurisdiction of the SCC ( prior to his arraignment ) arguing that , since he had not been brought “ forthwith ” before the SCC , he had not therefore been “ lawfully brought ” before the SCC so that the SCC did not have jurisdiction to try him . Consequently , the present applicants also objected to the jurisdiction of the SCC to try them . Their objection was joined with that of PERSON O’Brien . Following a hearing on CARDINAL DATE , the SCC rejected those objections on DATE .", "On DATE , the applicants’ trial began . It lasted DATE and the applicants were convicted . On DATE ORG ( ORG ) refused leave to appeal , that court having examined and rejected the “ forthwith ” jurisdiction argument .", "In the meantime , Mr. PERSON had requested and obtained leave to apply for judicial review pending which his trial was adjourned . While ORG refused leave , on DATE ORG accepted his appeal ( O’Brien v. The SCC and Another , [ DATE ] DATE ) finding that he had not been brought “ forthwith ” ( TIME ) before the SCC , that he was not therefore lawfully before the SCC and that the SCC did not therefore have jurisdiction to try him .", "DATE the applicants took habeas corpus proceedings ( Article CARDINAL ) of the LAW ) relying on ORG judgment in the O’Brien case arguing that , since the SCC had had no jurisdiction to try them , their imprisonment was unlawful . They sought release .", "On DATE ORG rejected their application : while their cases were identical to PERSON and while the SCC clearly did not have jurisdiction in their cases , their right to raise that issue was spent since they had not objected to the jurisdiction of the SCC at the earliest opportunity before it ( prior to arraignment ) and they had not explained why .", "By an ex tempore judgment of DATE ( the written judgment was delivered on DATE , PERSON and Others v. the Governor of Portlaoise Prison and Another [ CARDINAL ] DATE ) , ORG rejected the ORG appeal . Since an application had not been made CARDINAL of ORG DATE ( for a certificate that the case concerned a point of law of exceptional public importance requiring examination by ORG ) , the decision of the ORG on the jurisdiction point had become final and was res judicata . A habeas corpus action did not lie when the jurisdictional issue had already been determined to the point of statutory finality : the principle of finality would be subverted if habeas corpus could be used as a perpetual right of post - conviction appeal . The court did acknowledge that that there might be exceptional cases where a fundamental jurisdictional defect could be established in a habeas corpus action which defect , through nobody ’s fault , had not been raised in the appeal processes . However , the present applicants could have raised an objection to the jurisdiction of the SCC earlier in the process , as in the O’Brien case , but they had failed to do so . On the contrary , they applied for and were refused bail and remanded in custody including on a consent order . They neither applied for judicial review nor for an adjournment of the trial pending same . Having permitted their trial to proceed , after unsuccessfully raising the jurisdictional point before the ORG , they could have , but did not , apply for a certificate under LAW of LAW . ORG confirmed that , if PERSON O’Brien had not objected to jurisdiction early and brought judicial review proceedings , his trial would have been joined with the trial of the applicants ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant was acquitted of rape by ORG . ORG examined the parties’ statements , witnesses’ declarations and medical reports . It found , in particular , that the applicant had not had sexual intercourse with the victim without the latter ’s consent , since on numerous occasions the victim could have refused intercourse with the applicant and could have alerted a police patrol which had stopped them on the way to the applicant ’s apartment . The victim could also have alerted the applicant ’s flatmates , who had been in the apartment during the alleged rape , as well as other persons . ORG also found that the medical reports did not provide a clear answer to the question as to whether the applicant had had intercourse with the victim .", "NORP The prosecutor and the victim appealed . Their appeals merely stated that the verdict of ORG was unlawful and unreasoned .", "On DATE ORG upheld their appeal , quashed the judgment of ORG and found the applicant guilty of rape . ORG found that the victim ’s statements , the ORG declarations and the medical reports indicated that there had been forced intercourse with the victim . It found that the victim had been depressed and forcibly taken to the applicant ’s apartment . The court sentenced him to CARDINAL years’ imprisonment . However , ORG applied an amnesty law of DATE and relieved the applicant from the obligation to serve his sentence . The applicant lodged an appeal in cassation .", "By a final judgment of DATE , relying on section CARDINAL § CARDINAL of the Code of Criminal Procedure ( ORG ) in force at the time ( see paragraph CARDINAL below ) , ORG upheld the applicant ’s appeal in cassation and quashed the judgment of ORG . ORG found that ORG had not objectively assessed the evidence and had taken into consideration only the victim’ ’s statements that she had been forcibly brought to the applicant ’s apartment were contradicted by the ORG declarations . ORG concluded that ORG had objectively assessed the evidence and reached the conclusion that the applicant was innocent . It also stated that any doubts should be interpreted in favour of the accused . ORG upheld the judgment of ORG of DATE .", "On DATE the Deputy Prosecutor General lodged with ORG a request for annulment of the judgments of ORG and ORG . He argued that ORG and ORG had unlawfully assessed the evidence and asked ORG to uphold the judgment of ORG of DATE .", "On DATE ORG upheld the Deputy Prosecutor General ’s request for annulment , quashed the above - mentioned judgments and upheld the judgment of ORG of DATE . ORG gave the same reasons for finding the applicant guilty of committing the rape as ORG had used in its judgment of DATE .", "The following are relevant extracts from LAW repealed on DATE .", "When ruling on an appeal in cassation , the cassation instance shall provide CARDINAL of the following judgments :", "...", "CARDINAL ) it shall uphold the appeal in cassation and quash the appealed judgment and :", "a ) maintain the judgment of the first - instance court , if the appeal had been wrongly upheld .", "ORG and his or her deputies may , on their own initiative or at the request of the parties , file a request for annulment with ORG in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted .", "Final judgments in criminal cases shall be subject to requests for annulment through cassation procedure in the following instances :", "...", "Instances where a request for annulment is made only in favour of a convicted person :", "a. the provisions governing jurisdiction ratione materiae or jurisdiction ratione personae had not been observed ;", "b. the composition of the court did not correspond to the legal requirements , or if the provisions of sections DATE , DATE and DATE of the present Code were violated ;", "c. the judicial hearing was not public , with the exception of those cases where the law provides otherwise ;", "d. examination of the case took place without the participation of the prosecution service , the defendant , the counsel for the defence and an interpreter , where their participation was compulsory under the law ;", "e. examination of the case took place without due notification of the parties ;", "f. no forensic - psychiatric examination of the defendant was conducted , in cases provided for in section CARDINAL ( CARDINAL ) of the present Code ;", "g. the court permitted procedures for appeal or for annulment which were not in accordance with the law , and permitted a request for annulment or an appeal where the prescribed time - limit had expired ;", "...", "i. an international court found that there has been a breach of human rights and fundamental freedoms , which could be remedied by a re - hearing .", "Other judgments which have become final shall be subject to a request for annulment only in instances where they contradict the legislation .", "A request for annulment in favour of the convicted person or a person in respect of whom criminal proceedings have been closed may be submitted at any time , including after that person ’s death , in respect of the part concerning the criminal case as a whole and , in respect of the part concerning the civil action , only where its resolution affects the criminal case as a whole .", "In remaining cases a request for annulment may be submitted only within DATE of the date on which that judgment becomes final , if some significant error in the previous procedure has influenced the impugned decision .", "...", "A request for annulment of a judgment shall be lodged with the court in written form , with an indication of the grounds for annulment and inclusion of as many copies as there are participants in the proceedings .", "From the beginning of the proceedings , the General Prosecutor shall be entitled to withdraw the request for annulment , indicating the reasons for that withdrawal .", "Requests for annulment with regard to judgments of ORG and ORG shall be examined by the ORG of ORG , and requests for annulment of other judgments shall be examined by ORG .", "A request for annulment shall be examined and dealt with in accordance with the provisions of LAW of the present Code , which shall be applied in the appropriate manner and completed by the provisions of the present chapter .", "A request for annulment which is to the detriment of the convicted person , an acquitted person or a person in respect of whom the proceedings have been closed , shall be examined following the summoning of the parties . Where a request for annulment is submitted in the convicted person ’s favour , ORG shall have discretion in deciding whether to summon the parties .", "Where the request for annulment is granted in respect of a convicted person who is serving a sentence , and where a judgment is quashed and the case is remitted to the courts for re - examination , ORG shall also decide on any preventive restrictions that should be imposed .", "...", "The following are relevant extracts from LAW of DATE .", "ORG , his or her deputies or the parties mentioned in section CARDINAL & CARDINAL)-CARDINAL ) [ the applicant ] may lodge a request for annulment with ORG in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted .", "Final judgments in criminal cases shall be subject to requests for annulment ( ... ) in the following instances :", "...", "d. an international court found that there has been a breach of human rights and fundamental freedoms , which could be remedied by a re - hearing ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "NORP The applicant , Mr PERSON Matache - Gonu , is a NORP national , who was born in DATE and lives in GPE .", "ORG ( “ the Government ” ) were represented by their Agent , Mr R .- H. Radu , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant took to GPE a car he had bought in GPE and for which he had paid MONEY ( ORG ) . An initial customs declaration was filled in on that date at the NORP border .", "Subsequently , at his place of residence the applicant started the process of registering the car . On DATE the registration office informed him that the car could be registered only if it passed a technical roadworthiness test .", "On DATE ORG issued a primary customs declaration attesting that until it had been further clarified whether the car could be registered in GPE or not , it would have the status of goods in transit .", "Both customs declarations were filled in on behalf of the applicant by companies specialised in providing customs services . The ORG names were recorded as the person declaring the goods , while the applicant ’s name was recorded under the section “ recipient of the goods ” .", "On DATE , while the car was still in customs transit , the applicant sold it to GPE He alleged that the car could not be registered in GPE as it was not environmentally friendly and did not fulfil certain technical criteria required by law . On DATE tried to take the car to GPE , but was prevented from doing so by NORP border guards on the grounds that the car was still “ in transit ” and had not been cleared for export .", "On DATE , in the presence of the applicant , a customs officer drew up a report for the offence of selling goods while in customs transit . The applicant was fined CARDINAL lei ( ROL ) and the car was confiscated in accordance with LAW ( f ) of the Instructions for the Application of the Romanian Customs Code ( IARCC ) . The applicant signed the offence report without written comments .", "On DATE the ORG allowed an action lodged by the applicant and annulled the car sale contract concluded between him and PERSON on the grounds that GPE had not paid the full price agreed . The court also mentioned that the advance of ROL CARDINAL,CARDINAL,CARDINAL had been returned to GPE", "The applicant contested the offence report before the courts , seeking annulment of the fine and the return of the car . He claimed that only GPE should have been fined , since he had been the owner of the car when the report had been drawn up . On DATE the Târgu ORG rejected the applicant ’s action on the grounds that he had committed the offence of selling a car in customs transit , in contravention of LAW ( f ) of the ORG . The court held that both the fine and the confiscation of the car were prescribed by law in order to prevent fiscal fraud .", "NORP The applicant appealed against the decision , claiming that , since the sale contract had been annulled by a final judgment , the offence no longer existed .", "On DATE the ORG analysed the applicant ’s allegations and concluded that the annulment of the sale contract subsequent to the discovery of the offence by the customs authorities did not infer that the offence no longer existed or had not been committed . The court further examined whether the offence report fulfilled the formal requirements and finally decided to uphold the first - instance court ’s decision .", "On DATE ORG informed the applicant that following the final court judgment of DATE , he had no further legal grounds for requesting the return of his car .", "The relevant parts of LAW in force at the material time read as follows :", "“ The procedure for recording and penalising an act which is an offence under the customs regulations is established by the Instructions for the Application of the NORP LAW approved by ORG . ”", "“ CARDINAL . ORG authorities shall record and penalise customs offences which are committed within the area of surveillance of customs operations ....", "After verifying the existence of an offence under the customs regulations , the customs authorities shall apply fines and confiscate goods , where applicable . ”", "The relevant part of the Instructions for the Application of the Romanian Customs Code , approved by ORG . DATE , reads as follows :", "“ The following acts are customs offences and are punishable by fines of CARDINAL lei and QUANTITY", "...", "( f ) the alienation under any circumstances of goods during customs transit . The alienated goods will be confiscated ” ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant and his wife purchased a house situated in GPE from the applicant 's parents - in - law . The purchase contract was registered with ORG in GPE .", "On DATE the applicant 's mother - in - law filed an action with ORG claiming that the contract should be declared void . She alleged that the applicant and his wife had not paid the purchase price and that they had forced her and her late husband to conclude the contract .", "On DATE ORG declared the contract void . It found , with reference to witness statements and documentary evidence , that the vendors had concluded it under pressure .", "On DATE and on CARDINAL DATE the applicant and his wife appealed . They challenged the conclusions of ORG with reference to documentary evidence .", "On CARDINAL DATE the ORG quashed the first instance judgment as it did not specify what kind of pressure the defendants had allegedly exercised on the vendors , and because it was not clear whether the contract corresponded to the genuine will of the parties . ORG therefore instructed ORG to hear ORG who had registered the contract and to establish whether the purchase price had been determined correctly .", "On DATE ORG again declared the contract void . After having taken further evidence , ORG established that the applicant and his wife had exercised pressure on the vendors in that they had repeatedly pointed to their age and to their health problems , and that they had offered to take care of them subject to the transfer of the house . The court noted that there existed no evidence as to whether the applicant and his wife had paid the purchase price as alleged by them . It therefore relied on the argument of the applicant 's mother - in - law according to which the purchase contract had been concluded formally with a view to reducing the costs of the transfer . ORG concluded that the contract did not correspond to the genuine will of the parties and that it was therefore void within the meaning of LAW .", "On DATE the applicant and his wife appealed . On CARDINAL and CARDINAL DATE they made further written submissions to ORG .", "NORP On DATE the ORG quashed ORG judgment of DATE . The appellate court found that the evidence available did not suffice to conclude that the claimant and her late husband had been put under pressure by the defendants or that the contract in question was invalid . In its judgment ORG instructed ORG to hear the claimant thoroughly with a view to assessing the validity of the contract in the light of LAW , that is whether the parties had concluded it of their own free will , with a serious intention to do so and in an unequivocal manner .", "A hearing before ORG was held on DATE . On DATE ORG appointed an expert in psychiatry . The latter submitted the opinion on DATE .", "A hearing scheduled for DATE was adjourned as the applicant 's mother - in - law was ill . She died on DATE . On DATE and on DATE the defendants and the plaintiff 's legal representative provided the court with the names of the plaintiff 's heirs .", "On DATE ORG decided on the expert 's fees . On DATE the defendants appealed against this decision .", "On DATE ORG allowed CARDINAL legal successors of the applicant 's mother - in - law to join the proceedings as plaintiffs . On DATE it delivered its third judgment on the case concluding that the purchase contract was void . The judgment referred to detailed statements by the applicant 's mother - in - law according to which the applicant 's wife had insistently incited her parents to transfer the house to her and the applicant . The applicant 's mother - in - law further stated before the court that she had accepted the proposal because she was an invalid and her health had deteriorated . She feared that she might not be properly looked after in the future . Her husband agreed to the transfer as he shared her anxiety .", "ORG had also regard to the opinion of a psychiatrist according to whom the applicant 's mother - in - law had suffered from constant stress due to a lasting deterioration of her health . The expert expressed the view that , in DATE , her reaction to stress could have brought about a mental state which gave rise to great pressure on her to sign the contract . ORG concluded that the vendors had not concluded the contract of their free will as required by LAW .", "On DATE the applicant and his wife appealed . They also challenged the ORG judge on the ground that he had been the classmate of CARDINAL of the claimants at the elementary school . CARDINAL of the defendants submitted observations on the appeal on DATE .", "The case - file was submitted to ORG on CARDINAL DATE . At the hearing held on DATE the applicant and his wife reiterated that they considered ORG judge to be biased . On DATE the file was returned to ORG and the judge was asked to comment on the applicant 's objection to his person . On DATE ORG dismissed the request for exclusion of ORG judge .", "On DATE ORG quashed ORG judgment of CARDINAL DATE . The decision was served on the applicant 's lawyer on DATE . It stated that ORG had repeatedly failed to establish the relevant facts of the case and that it had not followed the views expressed in ORG decision of DATE . The appellate court instructed ORG to take further evidence .", "On DATE the applicant submitted further information at ORG request . On DATE ORG scheduled the next hearing for DATE . On the latter date it admitted a change of the plaintiffs . On DATE ORG scheduled the next hearing for DATE .", "On DATE the applicant challenged the ORG judge . On DATE ORG found that ORG judge was not biased .", "On DATE ORG delivered its fourth judgment declaring the contract void . The court held that the applicant 's mother - in - law had agreed to transfer the property as she had feared not to be looked after in an appropriate manner in the future . The court also noted that the applicant 's mother - in - law had alleged that the contract had been concluded formally and that she and her husband had not asked the applicant and his wife to pay the price .", "On DATE the applicant and his wife appealed . On DATE the plaintiffs submitted their observations on the appeal . The file was transmitted to ORG on DATE . On CARDINAL DATE the applicant 's lawyer submitted further reasons for the appeal .", "On DATE ORG upheld the first instance judgment . The judgment stated that the evidence available was not sufficient to conclude that the vendors had signed the contract under pressure . However , it indicated that the vendors had not expected the applicant and his wife to pay the price to them and that they had agreed to formally conclude a purchase contract with a view to reducing the transfer costs .", "On DATE the applicant and his wife filed an appeal on points of law . On DATE they paid the court fees at the court 's request of DATE .", "In the meantime , on DATE ORG decided on expert 's fees . On DATE the defendants appealed . On DATE ORG quashed the decision on the expert 's fees .", "On DATE the file was transferred to ORG . On DATE it was returned to ORG on the ground that the fees paid by the applicant and his wife had not been determined correctly . The supplementary fees were paid on DATE . On DATE ORG dismissed the appeal on points of law ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants are PERSON , ORG , PERSON , PERSON and PERSON . They are siblings of PERSON , a black man who was killed as a result of being set on fire by assailants in a racist attack during TIME DATE . The applicants are all NORP nationals living in GPE . They are represented before ORG , a firm of solicitors practising in GPE , GPE .", "At the time of his death , PERSON was a single DATE black man . He suffered a mental breakdown in DATE and was subsequently diagnosed and treated in hospital for schizophrenia . After DATE , PERSON frequently received treatment at ORG for his mental condition .", "When PERSON was not in hospital he lived in his own accommodation in GPE , GPE . However , DATE before his death he moved into accommodation for persons with mental health problems at FAC , GPE .", "On DATE , PERSON was given leave from ORG and went to stay at FAC .", "On TIME , at TIME , PERSON telephoned PERSON at FAC . She told him that she had received a message from ORG that he was to return there as soon as possible for his “ ward - round ” . Some time after that telephone call PERSON left FAC with the apparent intention of returning to ORG .", "It appears that having left PERSON , PERSON took the wrong bus for his destination and he ended up getting off the bus in GPE , GPE . He was subsequently attacked by CARDINAL white youths who had got off the bus with him . They set his back on fire , probably whilst he was lying face down on the ground .", "He was found on fire at TIME on DATE by an off - duty fireman who had been passing by in a car . At the time he was found , PERSON appeared to be in a severe state of shock with severe burns to his back , buttocks and upper thighs . The off - duty fireman flagged down a passing police car with CARDINAL police officers in it . They in turn summoned an ambulance .", "According to the applicants , the CARDINAL police officers did not treat the circumstances of PERSON ’s discovery as suspicious and wrongly assumed that he had set fire to himself . Consequently , they failed to investigate the crime scene at all at that stage or to set in motion any trains of inquiry to search for or identify and catch PERSON attackers . It was only after specific instructions from PERSON family at a later stage that the police began to treat the attack as suspicious and to investigate it .", "An ambulance arrived and PERSON was taken to ORG where he was admitted and treated . It seems that the police officers left the scene of the incident when PERSON was taken to hospital .", "PERSON was found to have sustained full thickness third degree burns to PERCENT of his body . Owing to the severity of his burns , he was transferred to ORG in ORG .", "Sometime between TIME and TIME on DATE , CARDINAL officers arrived at the house of PERSON , PERSON friend , in the mistaken belief that he was PERSON next - of - kin . It appears that the police had made this mistake as a result of inquiries to ORG where PERSON name and address were obtained .", "The CARDINAL police officers told PERSON that PERSON had set himself on fire whilst walking along FAC in LOC . The officers repeated this and stated that PERSON had been lucky because they had been passing , saw him on fire and had stopped and helped to extinguish the fire . PERSON asked these officers if they had informed PERSON family . They told him they had not and he immediately gave them the address of PERSON brothers , PERSON and PERSON .", "Shortly afterwards , again sometime between TIME , the same QUANTITY police officers arrived at PERSON and PERSON home . The police officers told them that PERSON had set himself on fire in GPE , that he had been seriously injured and had initially been taken to ORG but had been subsequently transferred and was receiving treatment in LOC in ORG . The officers then asked PERSON to sign for some charred papers and CARDINAL burnt keys which had been found on PERSON person and asked him whether PERSON had been on medication or whether he had a mental health background .", "ORG and PERSON immediately went to ORG TIME They could not see PERSON at first because he was still receiving treatment for his burns . At TIME they were allowed to see him briefly . He appeared alert and lucid and was able to answer their questions . PERSON asked his brother what had happened and PERSON replied that he had been attacked by CARDINAL white boys .", "PERSON explanation to his brother conflicted with the report given by the police officers and so PERSON telephoned ORG at TIME on DATE . He spoke to a police officer and told her that PERSON had told him that he had been attacked by CARDINAL white boys .", "On TIME , PERSON telephoned the hospital and was able to speak to PERSON . Once again , although in pain , he was lucid and able to tell his sister about his recollection of the incident . He said that he remembered catching a bus in the wrong direction and that there had been CARDINAL white boys on the bus , CARDINAL of whom had been wearing a black leather jacket . He had got off the bus at the same stop as these white boys and followed them to ask for directions . He remembered that shortly after this he was leaning against something and then had felt something on his back . He then discovered that he was on fire and started to take his clothes off .", "Following this conversation PERSON spoke to the ward sister at the hospital and a consultant treating PERSON and received confirmation that there were no contra - medical indications preventing PERSON from being interviewed by the police . She also made requests to the police that they should come and interview PERSON about the attack .", "Over TIME , PERSON again asked PERSON about what had happened . PERSON gave the same account . PERSON took notes on these occasions . PERSON had been asked to keep notes of these conversations by his sister , PERSON , because the police had resisted her requests to take a statement directly from PERSON .", "PERSON called the police on CARDINAL occasions from DATE urging them to come to the hospital to take a statement from PERSON . PERSON also called the police on repeated occasions over the same period requesting them : to take a statement from PERSON ; to go to the site of the incident ; to take finger prints from the telephone box near to the place where PERSON had been found ; to interview local people ; to put up an incident board requesting information ; and to launch a media appeal for witnesses .", "On DATE Detective Inspector PERSON came to the hospital , but he arrived at a time when PERSON was drowsy . Detective Inspector PERSON decided not to take a statement from PERSON . PERSON gave a statement to Detective Inspector PERSON summarising PERSON ’s account of the incident . However , during this meeting PERSON became very concerned because Detective Inspector PERSON did not appear to take a full or accurate record of what PERSON was saying .", "During the period DATE PERSON received surgical treatment DATE . When he was not in a post - operative state and up until DATE , he was lucid , sitting up , talking to his family , feeding himself , doing crosswords , chatting with hospital staff and taking telephone calls . This included a telephone conversation with PERSON during which PERSON repeated his account of the incident and the attack by CARDINAL young white men which , he stated , had occurred near a telephone box in GPE .", "Notwithstanding PERSON ’s ability to make such statements to his family and friends , neither Detective Inspector PERSON nor any other police officer took a statement from him at any stage .", "On DATE PERSON had a cardiac arrest and fell into a coma until DATE , when he died .", "On DATE the inquest into PERSON death before the Coroner ’s ORG was opened . It was adjourned on a number of occasions . During this time the police reported to the Coroner on several occasions , but copies of these reports were not disclosed to PERSON family .", "In DATE an examination into the procedures and practices during the first stage of the investigation into PERSON death was carried out by ORG ( “ ORG ” ) . In DATE the results of this examination were produced . The family were informed that this examination confirmed some of the doubts that the enquiry was not handled as well as it could have been and that an Investigating Officer had been formally appointed to look into the matter . The examination was made available to the Coroner but was kept back from the family as being confidential .", "On DATE the PERSON family sent a letter of complaint to ORG ( “ PCA ” ) concerning the ORG ’s decision to withhold evidence from PERSON family prior to the inquest .", "On DATE Deputy Assistant Commissioner PERSON of Area CARDINAL of the ORG responded informing the family that the complaint did not fall within CARDINAL of ORG and therefore would not be recorded as such . This letter went on to respond to points of concern expressed in the letter of complaint .", "On DATE a verdict of unlawful killing was returned by a jury at ORG following a hearing lasting DATE during which evidence had been given by a number of witnesses including fire experts on behalf of the ORG .", "On DATE Deputy Assistant Commissioner PERSON issued a statement on behalf of the ORG regretting that for DATE after the attack on PERSON , the police treated it as a case of self - immolation .", "On DATE the family lodged a further letter of complaint with the ORG setting out the particulars of complaints in detail from the time that PERSON was discovered by the police in TIME of DATE until shortly after the inquest . The following criticism of the police ’s handling of the case was made in the letter of complaint :", "There were major errors in the police investigation of PERSON death , at the very outset of the case ( and beyond ) which substantially diminished the chances of detecting and prosecuting those responsible for PERSON death .", "NORP There was a concerted effort by all key officers ( from the officers first on the scene , to Deputy Assistant Commissioner level ) to minimise and obscure these errors and deflect criticism from the police .", "These imperatives led the police :", "– to continue , beyond TIME of the investigation of PERSON death , to fail diligently or promptly to investigate the death ;", "– to pressurise , abuse and mislead the PERSON family about how PERSON met his death and the police investigation , with a view to affecting their ability properly to grieve and be represented at the inquest ;", "– improperly to influence the Coroner conducting the inquest and to seek to lead the jury to bring a verdict which was least embarrassing to ORG .", "NORP The police investigation into PERSON death was affected by racism and the subsequent internal investigation into the quality of the investigation failed even to address this issue .", "The ORG appointed the Chief Constable of ORG to carry out an investigation into the family ’s complaint .", "On DATE the applicants were advised by Counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions in negligence and claims of racial discrimination against the police .", "On DATE a Report of an Inquiry chaired by Sir PERSON of ORG , a retired High Court Judge , was published into matters arising from the death of PERSON , a black CARDINAL-year old youth who was murdered by a group of youths on DATE . The Inquiry investigating his death and its subsequent investigation by the ORG found that institutional racism existed both in the ORG and in other police services and institutions countrywide . The ORG found institutional racism primarily apparent in the actual investigation of PERSON murder , including the police treatment and approach to the victim , key witnesses and the family of PERSON and the “ lack of urgency and commitment in some areas of the investigation ” .", "On DATE the family of PERSON , with the assistance of campaigners , leafleted the area within which the suspects lived appealing for further information in respect of the murder .", "On DATE a suspect was arrested and later charged in connection with the death of PERSON . CARDINAL further suspects were arrested and later charged on DATE . CARDINAL of the accused ( GPE and ORG ) were committed for trial at ORG , GPE , for the murder of PERSON and conspiracy to pervert the course of justice . The third accused ( PERSON ) was committed to stand trial at ORG for conspiracy to pervert the course of justice . On DATE another suspect ( ORG ) was arrested in northern GPE and charged there on CARDINAL DATE with the murder of PERSON .", "On DATE the applicants’ solicitor wrote to the ORG asking that the ORG also investigate other areas of complaint including the failure of the pre - inquest investigating teams to co - operate fully with ORG and the making of untrue and misleading press statements damaging to PERSON family .", "On DATE the applicants’ solicitor was informed that the ORG had felt it wise to delay any further investigation into the applicants’ complaints pending the outcome of the criminal case against the accused in the LANGUAGE courts .", "Further letters of complaints were addressed by the applicants’ solicitors to the Director of ORG alleging a failure on the part of the Task Force to liaise or to communicate adequately with the PERSON family in respect of the criminal proceedings against the accused including the trial taking place in northern GPE .", "On DATE a criminal court in northern GPE found GPE guilty of the manslaughter of PERSON and sentenced him to CARDINAL years’ imprisonment . By letter dated DATE , the applicants’ lawyer informed the Registry that the accused ’s appeal had been rejected on DATE .", "In DATE ORG in GPE found GPE guilty of murder and sentenced him to life imprisonment . ORG received a DATE prison sentence for manslaughter . PERSON ( and his co - accused ) was convicted of perverting the course of justice in connection with the murder of PERSON and the subsequent investigation . All CARDINAL accused received separate sentences on this count . According to the ORG lawyer ’s letter of DATE , all of the accused ’s appeals were rejected although the sentence of CARDINAL of them was reduced .", "The applicants maintain that the evidence given in the trials against the accused revealed the inadequacy of the police investigation . The applicants listed CARDINAL areas of concern in a letter addressed by their solicitor to the ORG on DATE , including : the unfounded belief of police officers following the attack on PERSON that he had tried to commit suicide ; the failure to seal the scene of the crime resulting in a loss of evidence ; the failure to record or act on PERSON accounts to medical and nursing staff that other persons were responsible for what happened to him ; the error of the police in recording the deceased ’s injuries as non - life - threatening ; threats made to and harassment of members of the deceased ’s family by the police when , for example , they queried the police appeal for witnesses to come forward ; assertions made by a police officer at the inquest that there was no evidence that others were involved in PERSON death ; and the conduct of the police with respect to the conduct of the inquest and the criminal trials .", "The PERSON family members made formal statements to the GPE Constabulary investigating the case on behalf of the ORG in support of these complaints , as well as the complaints set out in the letter dated CARDINAL DATE from the applicants’ solicitor .", "On DATE the ORG wrote to the applicants’ solicitor reporting on the evidence collated to date . The letter stated among other things :", "“ Carefully examining TIME will be fundamental to understanding what came later as it appears that once flawed explanations had entered the minds of police officers , to varying degrees it appears it remained present throughout the ensuing period up to , including and after the inquest . To what extent racial stereotyping of both PERSON and the PERSON family took place and how this may have affected the investigation of his death will be an integral part of the investigation throughout . Similarly we will be examining whether there was an institutional failure by ORG to challenge with sufficient rigour the assumptions made at the start . This will include examining this issue up to and including Chief Officer levels if necessary . ”", "On DATE the ORG wrote to the applicants’ solicitors stating , among other things :", "“ There is now available a significant body of evidence containing new information about these events , which appears to provide support for the family ’s complaints from a number of independent directions .... ”", "On DATE the applicants’ solicitor received an anonymous statement dated DATE from a member or ex - member of the ORG . This statement , purportedly made on behalf of certain unidentified “ serving and retired members ” , contained serious allegations of misconduct by certain police officers involved in the investigation , including an allegation that one had lied to the Coroner during the inquest proceedings .", "On DATE the ORG representatives were informed at a meeting that the ORG had begun to interview CARDINAL police officers under caution but that CARDINAL had chosen to answer questions . A further difficulty was that certain key police officers had retired or were about to retire and could not be interviewed without their consent , and in any event not under caution . A report could not expected before DATE at the latest .", "CARDINAL key officer ( S. ) retired on at DATE and was therefore no longer subject to the police disciplinary code .", "On DATE the ORG informed the applicants’ solicitors in writing that it had received the Investigating Officer ’s report and that the ORG was satisfied with the investigation which had been carried out into the applicants’ complaints . A copy of the report ( which was supported by CARDINAL statements , CARDINAL documents , CARDINAL interviews with officers under investigation and CARDINAL appendices ) had been made available to ORG ( “ ORG ” ) . The applicants’ solicitors’ were further informed that they would be notified if the ORG decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence . The ORG ’s letter concluded :", "“ I regret that there may be yet further delay while these next steps in dealing with your complaint are completed . The ORG will consider the disciplinary aspects of the case only after any criminal issues have been decided . ”", "In GPE it is a rule of the common law that no one can recover damages in tort for the death of another ( PERSON v. PERSON ( DATE ) CARDINAL Camp . CARDINAL ) .", "The Section CARDINAL of LAW DATE confers a right of action for a wrongful act causing death . LAW ) of that LAW provides that an action may be brought for the benefit of the “ dependants ” of any deceased person against a person who wrongfully caused the death . If there is no dependency , there is no pecuniary loss to recover as damages . Bereavement damages ( currently fixed at £ MONEY ) are only available to parents of a child under DATE ( sectionCARDINALA(CARDINAL ) ) . Funeral expenses are recoverable ( section CARDINAL(CARDINAL ) ) .", "The statutory survival of causes of action enables recovery on behalf of the deceased ’s estate of damages for losses suffered by the deceased before he died . This includes any non - pecuniary loss such as damages for any pain and suffering experienced between the infliction of injury and death .", "Domestic case - law on the liability of the police at the relevant time in civil law for acts or omissions in the investigation and suppression of criminal offences is summarised in the ORG ’s PERSON v. the GPE judgment ( Reports of Judgments and Decisions PERSON ) .", "On DATE ORG received Royal Assent . The aim of this LAW ( “ the LAW ” ) is to bring about changes to LAW DATE ( “ the DATE LAW ) by allowing applicants to bring proceedings in respect of racially discriminatory acts by ( among other public authorities ) the police in carrying out their public duties of law enforcement and investigation , and to bring proceedings against the chief officers of police for acts of racial discrimination by police officers under their command . LAW has no retrospective effect .", "Section CARDINAL provides for the application of the provisions of the LAW to persons holding statutory office as it applies to private persons . Therefore police constables are subject to its provisions .", "A discrimination claim against the police in the conduct of its investigations may only be brought if it falls within the exhaustive provisions set out in LAW and , in particular , section CARDINAL , which deals with the provision of services to the public or a section of the public .", "ORG has held in the case of PERSON -v- Commissioner of Police of the LOC [ DATE ] CARDINAL WLR CARDINAL that only those parts of a police officer ’s duties involving assistance to or protection of members of the public amount to the provision of services to the public for the purposes of section CARDINAL ) of the CARDINAL Act . According to the applicants , this greatly limits the scope of any claim under LAW against the police . In the applicants’ conclusion , there is no provision in LAW that permits an action to be brought in respect of the police investigation of the attack on PERSON or confers any legal remedy in respect thereof ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in Monistrol - d’Allier .", "On DATE the applicant and his wife purchased by notarial deed a dwelling house built on land in the municipality of GPE , in the département of GPE . The house had been built on a dyke that overlapped with land on the seashore falling within the category of maritime public property .", "It can be seen from the various documents relating to the house that , by a decision of DATE , the prefect of ORG had authorised Mr A. , in consideration of payment of a charge , to “ retain on maritime public property in the cove of ORG , in the municipality of GPE , a dyke ... on which stands a dwelling house ” . The house had allegedly been built prior to that decision despite a decision of the prefect of CARDINAL DATE refusing an application for a building permit . The decision of CARDINAL specified that “ the existence of this dyke and dwelling house on maritime public property was recorded in DATE ... and the permittee undertakes to pay the charge from DATE ” . It also pointed out that the dyke , irregularly shaped and of a surface area of QUANTITY . m , on which stood the dwelling house measuring MONEY by QUANTITY , “ can not interfere in any way with navigation rights or maritime coastal traffic on condition that steps are built at DATE of the dyke in order to facilitate public access ” and that the authorities “ reserved the right to modify or withdraw the authorisation without the permittee thereby acquiring any right to claim compensation or damages in that regard . He must , if required , restore the site to its original state ” .", "Prior to that , on DATE , ORG had written to the prefect in the following terms :", "“ ... Having regard to PERSON genuine lack of means , as a former seaman who has reached an advanced age and can not possibly pay the normal charge , and considering , furthermore , that it would be a drastic measure to order the demolition of the little house that he has built on land reclaimed from the sea and uses as a dwelling house , I have decided to impose the minimum charge thus reflecting the precariousness of the occupancy and preventing the rights of the ORG from becoming time - barred .", "In the circumstances I consider ... that there is now no further obstacle to disposing of this case by issuing a concession order , but on PERSON death , his heirs should be served with notice either to purchase the usurped land or to pay the charge at the rate applicable for private occupancy of maritime public property . ”", "“ Title and entry into possession : the purchasers shall hereby acquire title to the land and the little house of ORG from DATE ’s date . The property is sold free of tenants or occupants . ”", "The relevant passages of the deed of sale of DATE read as follows :", "“ Title – Entry into possession :", "The purchasers hereby acquire title to the property conveyed to them under this deed , and shall enter into actual possession thereof from DATE ’s date ...", "From the date of their entry into possession they shall pay all taxes and charges payable now or in the future on the house hereby sold together with the land . ...", "... The present sale is concluded in consideration of the principal price of MONEY ... ”", "Following this purchase , and in order to acquire legal access to the house , the applicant and his wife were granted rights of temporary occupancy of maritime public property that were regularly renewed in DATE ( year during which the applicant was permitted to extend the dyke and a public right of way was granted along the seaward edge of the dyke ) , DATE , DATE and DATE . The authorisation of temporary occupancy of DATE specified that the applicant sought “ the renewal of the prefectoral decision of CARDINAL DATE authorising the construction of a dyke with a dwelling house on it ... ” . The last agreement granting them the right to occupy public property expired on DATE . The decisions specified that “ the requested dyke will not in any way interfere with navigation rights , on condition that it is levelled off above the highest water mark , or with maritime coastal traffic provided that public access is guaranteed at all times ” and that “ in accordance with LAW [ see paragraph CARDINAL below ] , the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary , on any ground whatsoever , without the permittee thereby acquiring any right to claim damages or compensation in that regard . The permittee must , if required , restore the site to its original state by demolishing the constructions built on the public property , including those existing on the date on which the decision was signed . Should he fail to comply with that obligation , the authorities shall do so of their own motion and at his expense ” .", "By a letter of DATE , the applicant and his wife requested the prefect of GPE to renew authorisation of their occupancy .", "The prefect of GPE replied on DATE informing the applicant that the entry into force of Law no . CARDINAL - CARDINAL of DATE on the development , protection and enhancement of coastal areas ( “ the LAW ” ) , and in particular section CARDINAL thereof , no longer allowed him to renew authorisation on the previous terms and conditions . LAW provided that decisions regarding the use of maritime public property had to take account of the vocation of the zones in question , which ruled out any private use including dwelling houses . However , in order to take account of the length of occupancy and the applicant ’s sentimental attachment to the house in question , he proposed to enter into an agreement with the applicant that would authorise limited and strictly personal use and prohibit him from transferring or selling the land and house and from carrying out any work on the property other than maintenance and would include an option for the ORG , on the expiry of the authorisation , to have the property restored to its original condition or to reuse the buildings .", "By a letter dated DATE , the applicant and his wife rejected the prefect ’s offer and requested a concession to build a dyke that would be valid as a transfer of ownership under LAW of LAW ( see paragraph CARDINAL below ) .", "On DATE the prefect of ORG gave a decision , based on section CARDINAL of LAW , in which he considered that there was no public interest justifying the concession requested . He did , however , renew his offer to grant the applicant and his wife a right of temporary occupancy subject to conditions .", "On DATE the applicant and his wife applied to ORG for the prefect ’s decision of CARDINAL DATE to be set aside . In support of their application , they submitted that the refusal to grant them a concession to build a dyke was unlawful .", "By a letter of DATE , the prefect of GPE served notice on the applicant and his wife to regularise their status as unauthorised occupants of public property . That notice was renewed on DATE .", "On DATE ORG of the département of GPE drew up an official report recording the administrative offence of unlawful interference with the highway and noting the unlawful occupancy of the land by the applicant , contrary to the provisions of LAW of LAW ( see paragraph CARDINAL below ) .", "On DATE the prefect of GPE lodged an application with ORG citing the applicant and his wife as defendants in respect of an offence of unlawful interference with the highway as they continued to unlawfully occupy public property . He sought an order against them to pay a fine and restore the foreshore to its original state prior to construction of the house and to restore the dyke on which it stood , within DATE .", "On DATE ORG served notice on the applicant to pay the sums due for DATE for unauthorised occupancy of public property , namely , a total of MONEY ( ORG ) .", "By CARDINAL separate judgments delivered on DATE , ORG ruled on the application lodged by the applicants on CARDINAL DATE ( case no . DATE ) and the application lodged by the prefect of GPE on DATE ( case no . CARDINAL ) .", "The application for the prefect ’s decision rejecting their request for a permit to build a dyke to be set aside ( case no . CARDINAL ) was dismissed on the following grounds :", "“ ... In support of their argument that the stretch of land on which the dwelling house stands belongs to the category of maritime private property the applicants have exhibited in the proceedings a decision authorising the temporary occupancy of maritime public property dating back to DATE . However , this decision merely takes note that the land in question has been drained and does not certify the lawfulness thereof . Accordingly , it does not call into question the classification of the land as public property .", "In accordance with LAW of LAW , ‘ the ORG may concede , on conditions it shall determine ... the right to build a ORG . While section CARDINAL of the above - mentioned LAW DATE [ LAW ] has reduced the scope of application of that Article , it does nonetheless specify that ‘ land draining carried out prior to the present Act shall continue to be governed by the previous legislation’ . Accordingly , the only provisions applicable to the present case are LAW of the above - mentioned LAW and ORG of DATE , which provides that ... ‘ subject to any contrary provisions of deeds of concession , land artificially removed from the action of the tide shall be incorporated into the category of maritime public property’ . In rejecting the request on the basis of the principles and guidelines laid down in the inter - ministerial circular of CARDINAL DATE setting out the policy to be followed for the use of maritime public property , the prefect DATE when examining the applicant ’s particular situation involving an application for a concession – did not err as to the scope of the circular in question , which neither repeals nor amends the above - mentioned legislative provisions but is limited to applying them .", "The above - mentioned circular , which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use , to the exclusion of private dwellings , was issued in respect of an area in which the relevant authorities have discretionary power . In referring to the principles laid down in the circular , the prefect does not appear to have interpreted the legislative provisions inaccurately ; nor did he fail to consider the specificity of the applicant ’s proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above . ”", "The application lodged by the prefect of GPE ( case no . CARDINAL ) was granted . The court stated that “ the land on which PERSON and PERSON dwelling house stands is indeed public property ” . With regard to the offence of unlawful interference with the highway , the court found as follows :", "“ ... The rules governing public property", "... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property . As can be seen from the judgment delivered by the court DATE in case no . CARDINAL , the land on which PERSON and PERSON dwelling house was built is indeed public property .", "The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty . In the present case the dyke and the house are not publicly owned property , given the exclusively private use made of them and the fact that they do not belong to a public authority , as confirmed by the deed of sale dated DATE . Accordingly , as it is not seriously disputed that the property in question has been appropriated for private use , it is not necessary to adjourn the application . ...", "Whether there has been unlawful interference with the highway", "While PERSON and PERSON have full title to the dwelling house occupied by them and claim , accordingly , that they are therefore not the unlawful occupants of public property , the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession . The investigation into the facts and , in particular , the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property . Accordingly , and despite the production by the owners of undisputed title deeds , the prefect is justified in requesting an order against Mr GPE to pay a fine and restore the foreshore to its original state prior to the construction of the house .", "Penalty for the offence", "... PERSON is hereby ordered to pay a fine of FRF CARDINAL .", "State property proceedings", "PERSON is hereby ordered to restore the property to the state it was in prior to the construction of the buildings within DATE of service of this judgment . On expiry of that time - limit Mr GPE shall pay a fine of FRF CARDINAL per day ’s delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender ... ”", "On DATE the applicant and his wife lodged an appeal against the judgment delivered in case no . CARDINAL . On DATE they appealed against the judgment delivered in case no . CARDINAL .", "In support of their appeal against the judgment delivered in case no . DATE , the applicant and his wife submitted that the land in question was not public property belonging to the ORG . They maintained that the land was private property belonging to the ORG with the twofold effect that the usual rules governing acquisition by adverse possession under private law were applicable to their situation and that the administrative courts did not have jurisdiction to decide the dispute .", "By a judgment of DATE , ORG decided to join the CARDINAL sets of proceedings on the ground that they were connected and to dismiss the applicant and his wife ’s appeals on the following grounds :", "“ With regard to the application ... concerning the offence of unlawful interference with the highway :", "Regarding the State property proceedings", "Firstly , it is not disputed that the land on which the dyke on which the house occupied by PERSON and PERSON was built was entirely covered by water , independently of any exceptional meteorological circumstances , prior to the draining works undertaken in order to build the dyke . It has not been established , or even alleged by the applicants moreover , that the undrained portion of this land had ever been removed from the action of the tide . The investigation shows , moreover , that the dyke is the result of land draining carried out prior to the entry into force of the above - mentioned LAW DATE [ ORG ] ... and that , notwithstanding the various authorisations of temporary occupancy granted by the authorities , as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property . In accordance with the principles of inalienability and imprescriptibility of public property , the submissions by PERSON and PERSON to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after expiry of the last authorisation to occupy it do not alter the fact that the property falls within the category of maritime public property .", "Secondly , as has been said , the last decision in favour of PERSON and PERSON authorising temporary occupancy of the maritime public property expired on DATE . In the absence , since that date , of a lawful title of occupancy , the prefect of GPE is justified in requesting an order against the occupants to restore the site DATE if they have not already done so – to its original state prior to construction of the house on maritime public property . In disputing that obligation , the applicants can not properly rely on the long period of occupancy of the LOC or on the fact that the authorities have tolerated the continuation of that occupancy since DATE and proposed draft occupancy agreements in order to regularise the situation , which , moreover , they have not taken up . ...", "Fifthly , [ the obligation to restore the site to its original state ] does not constitute a measure prohibited by the requirement of LAW No . CARDINAL that no one shall be deprived of his possessions except in the public interest . ...", "The application regarding the refusal to grant a concession to build a dyke", "... Secondly , as section CARDINAL of the above - mentioned LAW DATE [ LAW ] provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation , the provisions codified under LAW of LAW according to which ‘ the ORG may concede , on conditions it shall determine ... the right to build a dyke ... ’ are applicable .", "The prefect of GPE based his decision not to grant PERSON and PERSON the requested concession to build a dyke on the guidelines set out in the circular of DATE issued by the Minister for ORG and the Minister for Regional Development on the use of public property other than commercial or fishing ports . He did not discern any general - interest ground in favour of granting the applicants’ request .", "By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto , the ministers signatory to the circular of DATE did not adopt any legal rules amending or supplementing the above - mentioned provisions of LAW of LAW but confined themselves to applying them . Accordingly , as stated above , the plot of land in question is ORG - owned public property . There is no evidence in the case that the prefect , before reaching his decision , either failed to examine the particular circumstances of PERSON and PERSON request or made a manifest error of assessment in concluding that there was no special feature or general - interest consideration in the case justifying an exemption from the above - mentioned rules . ”", "On DATE the applicant lodged an appeal on points of law against the judgment of DATE . The ORG Commissioner pointed out , in the same submissions as those made in a similar case , that the value in DATE ’s terms of the purchase price of the house was MONEY ( ORG ) . He continued as follows :", "“ ... However , the acquisition of rights in rem is not permitted under LAW DATE on ORG - owned ORG ... nor were these acquired before that PERSON was passed ... The appellants have not acquired any property rights over their houses ; nor have they acquired rights in rem over public property as a result of the successive sales . Given the precarious situation of the buildings , the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... Lastly , and despite the fact that we are not especially enthusiastic about the outcome of this case , we have no alternative but to dismiss the ORG pleadings . ... They probably committed a tactical error in refusing the prefect ’s reiterated offer . Even if they were not exactly delighted by the prospect , it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense . All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution .", "There may be a case for suing the ORG in tort for allowing occupants of public property to nurture for DATE the hope that they would not be ruthlessly compelled to demolish their property . It should be pointed out that the prospects of success of such an action are fairly slim , however , given the legitimate protection enjoyed by public property . In any event , it is clear that if the public authority were to be found liable , the offenders would bear a considerable portion of liability too . ”", "By a judgment delivered on DATE , the ORG d’Etat dismissed the applicant ’s appeal . It held that he could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by LAW . CARDINAL . It also held that the applicant could not rely on the fact that the authorities had tolerated the occupancy of the property in support of his submission that he should be allowed to restore the site to the state it had been in at the time of acquisition of the house .", "Following a fire in DATE the applicant applied for a building permit for identical refurbishment of the house . By a decision of CARDINAL DATE , he was issued with a building permit following a favourable opinion given by an architect from the NORP des bâtiments de GPE under LAW . The permit was subsequently revoked , however , at the request of the prefect lodged with the mayor of GPE , on the ground that it was illegal because it had been issued in contravention of the rules of inalienability and imprescriptibility of public property .", "NORP In DATE and DATE ORG sent the applicant a reminder to pay the charges for DATE and DATE in the sum of ORG MONEY and ORG CARDINAL respectively , plus property tax .", "The applicant produced a valuation of his house drawn up by an estate agent ’s office in DATE which states as follows :", "“ ... a dwelling house ... situated on a plot of land measuring QUANTITY m. ... Having regard to the geographical situation of the property , the condition of the building , the surface area , its location on maritime public property and the local property market , and subject to the ORG ability to produce a concession agreement in respect of maritime public property , this property is worth between ORG CARDINAL . ”", "The idea that the foreshore is “ common property ” , that is , can not be appropriated for private use and is managed by the public authorities , dates back to ORG times ( PERSON , Book II , Title I , PERSON rerum divisione ) , when even then a permit was necessary in order to build on the seashore . PERSON ’s Ordinance of the NORP of DATE codified the principle and up until recently was still the legal basis for the ORG ’s management of maritime public property . In addition to defining what constituted the “ seashore and foreshore ” , it laid down the applicable rules :", "“ No one shall build on the foreshore , set stakes in the ground or erect any construction that may interfere with navigation , on pain of demolition of the constructions , confiscation of the materials and discretionary fines . ”", "At the time of the Revolution , the idea developed that maritime public property was governed by the government in the interest of the nation , and not merely as part of the heritage that used to belong to the ORG and now belongs to the ORG . The management of maritime public property is still largely guided by this principle DATE . Over and above the idea of ORG ownership of such property , the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner ’s “ civil ” rights . The prefect has a major role in the protection of maritime public property . He is the authority who , generally , governs the use of the property at local level , decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders ( source : www.mer.gouv.fr , consulted on DATE ) .", "ORG ’s Ordinance of the NORP was definitively repealed in DATE . Since DATE LAW owned by ORG ( Code general de la propriété des personnes publiques – “ the ORG ” ) has replaced LAW ( dating from DATE ) . It restructures the law governing ORG - owned land and public bodies and combines the rules governing maritime public property into a whole , including provisions relating to the environment in particular .", "Maritime public property , determined on the basis of natural phenomena , lies between the highest point of the shore , that is , up to the high - tide mark under normal meteorological conditions ( CE Ass , PERSON , DATE ) and the boundary of the territorial waters , seaward . Under Article L. CARDINAL - CARDINAL of the ORG , “ State natural maritime public property ” shall comprise :", "“ CARDINAL . The seabed and marine substrata between the external boundary of the territorial waters and , on land , the foreshore .", "The foreshore comprises the whole area covered ( and uncovered ) by the sea , up to the high - tide mark under normal meteorological conditions ;", "The beds and substrata of salt pans communicating directly , naturally and permanently with the sea ;", "Land naturally reclaimed from the sea :", "( a ) which was part of the ORG ’s private property at DATE , subject to third - party rights ;", "( b ) which has been constituted since DATE .", "...", "Land reserved for public - interest maritime , seaside or tourist needs which has been purchased by the ORG .", "Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership . ”", "The principle of inalienability of public land , which was established in the case - law and then incorporated into the Code of State Property ( Article L. CARDINAL ) and the ORG ( Article PERSON ) , is inextricably linked to the notion of public land . The basis of this principle is the designation of land for public use . As long as it remains thus designated , and no express decision has been taken reclassifying particular public land as private property , no transfer of land can be authorised . It is a means of preventing public land from being acquired by prescription or adverse possession under private law , hence the principle of imprescriptibility that is very often associated with the principle of inalienability . Accordingly , in its PERSON judgment , on the subject of plots of land situated close to the seashore in LOC , the ORG d’Etat found :", "“ ... while the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ... , neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land , which , being part of public land , was inalienable and imprescriptible ... ”", "ORG has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property ( ORG , no . PERCENT of DATE , ORG ) . It has not , however , recognised that the principle of inalienability has any constitutional status ( ORG , DATE . no . CARDINAL - CARDINAL of DATE , Rights in rem over public property ) . The ORG d’Etat has recently reiterated that “ where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus , it shall remain public land unless a decision is given expressly reclassifying it as private property ” . Accordingly , it has held that the question whether or not short - stay factories fell into the category of public property was not affected by the fact “ that these short - stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private - law contracts ” ( ORG , PERSON , DATE ) .", "The effect of the principle of inalienability is that any transfer of public land that has not been “ reclassified ” is null and void , so third - party purchasers have a duty to return the land even if they have purchased it in good faith . Moreover , the fact that public land is inalienable means – in theory – that no rights in rem can be established over it . However , the legislature has departed from this principle by passing CARDINAL Acts , CARDINAL of CARDINAL DATE which creates long administrative leases , and the other of CARDINAL DATE on the constitution of rights in rem over public land , thus making it possible to grant private rights in rem to occupants of maritime public property . LAW of DATE concerns only public land belonging to local and regional authorities or groups thereof . LAW DATE relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity ( Article L. CARDINAL - CARDINAL of the Code of ORG and Article L. CARDINAL - CARDINAL of the ORG ) . In its above - mentioned decision of DATE , ORG held that granting rights in rem in this way was compatible with the LAW as public services were maintained and public property protected under LAW of DATE . However , it declared the provision allowing the renewal of authorisation beyond DATE unconstitutional on the ground that it could potentially render ineffective the public authority ’s right to the automatic return , free of charge , of any constructions and therefore undermine the “ protection due to public property ” .", "The last consequence of the principle of inalienability is that property belonging to public authorities can not be seized ( Article L. CARDINAL - CARDINAL of the ORG ) . This consequence has been attenuated by a decision of the ORG d’Etat in a case which subsequently came before ORG and NORP fermière ORG v. GPE , no . CARDINAL/CARDINAL , DATE ) .", "Apart from public easements intended to protect public property from the encroachment of private properties , such as a QUANTITY wide right of way along the coast over properties adjoining maritime public property , created by an Act of DATE reforming town and country planning , the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use . Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy . An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state . The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake ( Articles L. DATE and PERSON of the ORG ) .", "According to the ORG d’Etat , conservation agencies have a duty to prosecute offenders ( CE , Ministre de l’équipement v. Association “ des amis des chemins de ronde ” , DATE ) . Regarding a plot of land incorporated into maritime public property at ORG beach ( southern Corsica ) , the PERSON d’Etat decided the following :", "“ ... the fact that ORG produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation , as distinct from the legislation governing maritime public property , does not mean that the offence of unlawful interference with the highway has not been made out and , in any event , can not preclude prosecution by the prefect ... ” ( CE , no . CARDINAL , DATE ) .", "With regard to repairing damage caused to public property , the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender , including the right not to assume personal responsibility for restoring the site to its original state ( CE , GPE , DATE ) .", "The use of maritime public property may be collective or private . Collective use which allows all citizens to benefit from public property ( navigation on watercourses , beaches ) is freely exercisable , equally available to all and free of charge . However , the principle that use is free of charge has not been expressly incorporated into the ORG because it is subject to numerous exceptions .", "Private occupancy must be compatible or in conformity with the designated use of the public property . Unlike collective use , it is subject to authorisation , issued personally , and a charge and is of a precarious nature .", "Article L. CARDINAL of the Code of State Property ( Article L. CARDINAL - CARDINAL of the ORG ) provided :", "“ Subject to authorisation being issued by the competent authority , no one may occupy any national public property or make use thereof over and above the right of use vested in everyone .", "ORG shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants , recovering compensation for charges in respect of which ORG has been defrauded , without prejudice to the institution of proceedings for unlawful interference with the highway . ” [ Article A CARDINAL specified that authorisation was revocable without compensation . ]", "According to the ORG d’Etat :", "“ ... while the authorities may , as part of their management powers , authorise DATE provisionally and on the conditions provided for by the rules in force – private occupancy of the said land , that authorisation can not legally be granted unless , having regard to the requirements of the general interest , it is compatible with the designated use of the land that the public are normally entitled to exercise , and with the obligation incumbent on the authorities to conserve public land . ” ( CE , Commune de Saint - Brévin - les - Pins , CARDINAL DATE )", "The precariousness of these authorisations derives from the principle of inalienability , according to which the protection – and accordingly the disposal – of public land is vested in the authorities . According to the caselaw :", "“ ... any authorisation to occupy public land is precarious and revocable . Consequently , the fact DATE assuming it is made out DATE that , prior to adoption of the decision being challenged , PERSON had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor ’s decision requesting him to demolish the buildings he had erected and restore the public land to its original state ... ” ( CE , PERSON , DATE )", "It also states very clearly that those to whom authorisation has been granted have not thereby “ acquired rights ” to renewal of the authorisation ( CE , Helie , DATE ) .", "The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities ( of the type referred to above in LAW of LAW ) or in contracts signed with the occupant . The latter are called concessions to occupy public land , which DATE on maritime public property – may be a beach concession or a concession to build a dyke . By means of this concession , the ORG authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide . In respect of natural maritime public property an arrangement was established in DATE , traditionally called a concession to build a dyke and by which ownership was transferred ( former LAW of LAW ) : the concessionaire was authorised to drain land , which , once removed from the action of the tide , no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the ORG . That arrangement , which was originally used to build agricultural polders , has more recently been used for property developments in the form of marinas , reclaimed from the sea . Following a reaction to what was perceived as a privatisation of the shore , a circular was issued in DATE prohibiting such arrangements – a prohibition later confirmed by LAW , which imposes a broader prohibition on any interference with the natural state of the shore . It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred . This arrangement can now apply only to past draining works and is the sole means of legalising these ( source : www.mer.gouv.fr , consulted on DATE ) .", "Up until DATE maritime public property was protected by the rules governing the highways . LAW introduced new rules for the protection of natural public land ( source : www.mer.gouv.fr ) .", "As early as DATE enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore . Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas . It is in this spirit that LAW of DATE ( consolidated on DATE ) was unanimously passed by ORG . LAW provides that coastal areas are “ geographical entities which call for a specific policy of development , protection and enhancement ” . The general principles of that LAW consist in preserving rare and fragile areas , managing spatial planning and tourist development economically and , lastly , making the shore – like the beach DATE more widely accessible to the public and giving priority in coastal areas to marine - related activities .", "It is in the planning sphere that the principles established are the best known and have given rise to the most litigation . Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets . It is forbidden to build roads on the shore and through roads can not be built closer than QUANTITY from the shore . In order to preserve natural sites the LAW imposes a “ no building ” rule within a CARDINAL-metre band DATE outside urban centres – from the shore , and restricts development in areas near the shore . Lastly , sites of outstanding interest or characteristic of the shore must be preserved and only small - scale development can be allowed .", "The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use , clarifying the procedures for delimiting the foreshore , prohibiting DATE other than in exceptional circumstances – interference with the natural state of the seashore and establishing specific rules for collective mooring . Lastly , it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea ( see LAW and LAW", "“ Pedestrians shall have free access to beaches ... Beaches are fundamentally reserved for the unobstructed and free use of the public . ”", "Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , has given rise to a reform of the rules governing the occupation of maritime public property . It provides :", "“ Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas , as well as of the requirements of conservation of coastal sites and landscapes and biological resources . Accordingly , they shall be coordinated with , inter alia , decisions concerning neighbouring public land .", "Subject to specific provisions regarding national defence and the requirements of maritime safety , any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ... ”", "Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , lays down the principle that there shall be no interference with the natural state of the shore :", "“ Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety , national defence , sea fishing , salt works and marine cultures , the natural state of the foreshore , outside port and industrial port areas , may not be damaged , especially by dyke construction , drainage , rock filling or embankment forming , except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest .", "However , land draining carried out prior to the present Act shall continue to be governed by the previous legislation . ”", "The following is an extract from the section entitled “ Matching facts with the theory ” of a report on the conditions of application of LAW , drawn up by ORG and sent to the Minister for Infrastructure , ORG in DATE :", "“ ... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular . ...", "The right to enjoy ‘ for life’ but not to transfer a dwelling house built on maritime public property , as recognised in an agreement signed with the prefect , the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal , together with an agreement expressly stipulating that the right could not be inherited , illustrate the creativity shown by the authorities in this regard in GPE and the GPE . ...", "All sorts of liberties are increasingly being taken in various degrees of good faith . ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation ? ... ”", "A report entitled “ Assessment of LAW and measures in favour of coastal areas ” , prepared by the government for ORG ( DATE ) , contains a part devoted to opening coastal areas to pedestrians which is worded as follows :", "“ The purpose of LAW is to maintain or develop tourism in coastal areas . Sections CARDINAL to CARDINAL of the LAW , in particular , lay down the conditions in which the public may visit natural sites , the seashore and the corresponding facilities . The provision of coastal paths goes some way towards giving effect to these legislative provisions . ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the ORG ( maritime public property ) , ORG or local and regional authorities ...", "Making a pathway often requires an on - site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna , the flora or the stability of the soil . If the land is considered to be accessible without any risk to the environment , regard will have to be had to where the path is routed , particularly across private property , it being observed that the statutory route ( QUANTITY in width running along the boundary of maritime public property ) is not always the most appropriate solution . If the statutory route across private properties has been modified , a public inquiry must be carried out . ... ”", "The ORG examined the situation in CARDINAL coastal member GPE . CARDINAL GPE , GPE , GPE and GPE ) do not recognise the existence of maritime public property exclusive of any private ownership rights . In the other GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) , maritime public property belongs either to the ORG or to other public bodies and is inalienable on that basis . In all these GPE maritime public property can nevertheless be designated for private use on the basis of fixed - term concessions . And in all these GPE illegal use exposes the offender to administrative or even criminal penalties . In particular , the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation . This type of measure also exists in GPE , where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea .", "In GPE , as in GPE , the owners of buildings legally built and acquired before the entry into force of LAW ( DATE ) in the case of the former and LAW in the case of the latter ( DATE ) , and designed for use as a dwelling , could obtain a concession of these buildings , without any obligation to pay a charge on the sole condition that they apply for the concession within DATE of the entry into force of the Act . In GPE , properties built before the LAW came into force without a permit or concession as required by the previous legislation will be demolished if they can not be legalised on public - interest grounds . Any building that was authorised before the LAW came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property . In GPE , according to the case - law of ORG ( judgment of DATE ) , which refers to the judgment in PERSON and PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) , if the annulment of a property deed in respect of property located inside the delineation of the foreshore is compatible with the domestic legislation , the interested party can apply to the courts for compensation for his or her pecuniary loss .", "The following relevant texts can be cited : Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a policy for the development of sustainable environment - friendly tourism in coastal areas adopted on DATE , and the appendix thereto ; the decision of ORG taken at its PERSON meeting ( DATE ) at which the Ministers’ Deputies took note of LAW on sustainable management of coastal zones ( see LAW on public maritime domain and LAW on pedestrian access to beaches and coasts ) and LAW , and agreed to transmit them to their respective governments ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant is the mother of CARDINAL children , NORP born in DATE , S. born in DATE and NORP born in DATE . In DATE , the applicant separated from the children ’s father , PERSON , and she was eventually granted sole custody of the children , while PERSON was granted contact rights . The applicant married PERSON in DATE .", "The applicant and her children have been known to the social services since DATE when a first investigation into their home environment was carried out . During DATE and DATE , the personnel at the children DATE care centre felt that the applicant was distracted and stressed and the children were hungry and dirty when they arrived at day care in the TIME and were behaving in a wild and hyperactive manner . In view of this , they reported the situation to the social services in PERSON . In DATE the applicant herself contacted the ORG ( Barn- och ungdomspsykiatrin ; hereafter “ ORG ” ) for help , as she considered the situation to be chaotic and she needed help for her son , PERSON , who she claimed destroyed everything at home . ORG reported the family ’s situation to the social services .", "On DATE the applicant contacted ORG in a state of despair and , in response , a social emergency unit ( social beredskap ) went to the applicant ’s home , accompanied by police and a chief physician from the adult psychiatric clinic . The authorities found the interior of the home completely destitute ; there was hardly any furniture and there was no electricity or running water . The applicant was in a confused state and blamed the mess in the house on S. The social emergency unit decided immediately to place the children , together with the applicant , in a temporary family home ( jourfamiljehem ) . On DATE , the applicant was committed to compulsory psychiatric care in accordance with LAW ( Lagen om psykiatrisk tvångsvård , DATE ) . The applicant claimed that she was not ill but agreed to the placement of the children in the temporary family home . DATE , she was released from psychiatric care and returned to her home .", "During DATE the applicant had frequent contact with the social services . However , she felt misunderstood and harassed by the authorities and wanted to bring her CARDINAL daughters , T. and NORP , home . As the social services insisted that the situation was not stable enough for the girls to return to the applicant , she withdrew her consent to their voluntary placement . Hence , ORG ( socialnämnden ) in PERSON decided to take ORG and NORP into public care immediately on a provisional basis , pursuant to section CARDINAL of the Act with Special Provisions on ORG ( ORG med särskilda bestämmelser om vård av unga , TIME ; hereafter “ the DATE LAW ) . The council considered that the measure was necessary in order to protect the children . It also noted that there had been chaos every time the applicant had met with the children during DATE or when she had appeared , often unannounced , at DATE care centre , leaving them upset and sad .", "The applicant , who was represented by legal counsel , opposed the measure but , on DATE , ORG ( länsrätten ) of ORG confirmed the decision of ORG .", "On DATE ORG applied to ORG for a permanent care order in respect of all CARDINAL children , in accordance with section QUANTITY of LAW . The council maintained that the applicant had shown a serious lack of ability to care for her children . It submitted a comprehensive investigation report into the family ’s situation in support of its request according to which all CARDINAL children had worn nappies when they arrived at the temporary family home , although ORG only at TIME , and they had been dirty and had an endless appetite . Moreover , T. had no limits towards adults and wanted to control everything and everyone around her . S. had nightmares and had been afraid of sudden movements . He acted in a very stressed and anxious manner when his mother was present . NORP had been late in her speech and motor development . The applicant had not been able to set limits for her children and the situation when they met had always become out of control .", "The applicant disputed the measure and claimed that she was capable of caring for her children , who suffered from being separated from her .", "By judgment of DATE , after having held an oral hearing , ORG granted a permanent care order in respect of each of the CARDINAL children . It found that , on the basis of all the material in the case , it had been shown that the applicant lacked the ability to care for her children , which had already somewhat impaired their health and development , and that there was a serious risk of further damage unless they were given proper care . Since the applicant did not agree to voluntary care , it was necessary to take the children into public care on a permanent basis .", "The applicant appealed against the judgment to ORG ( kammarrätten ) in GPE . She had realised that it was not PERSON , but her husband PERSON , who had been responsible for all the destruction in their home . J. had admitted this and they had divorced . However , she did not consider that the children had suffered from this error , although she felt sorry for PERSON and would have liked to talk to him about it .", "ORG contested the appeal . In its view , the children ’s behaviour showed that their development had already been harmed and , moreover , the applicant had no insight into her problems and had difficulties in interacting with her children .", "On DATE ORG upheld the lower court ’s judgment in full . In its opinion it was evident that the children had not received proper care at home . Moreover , the applicant had shown signs of mental ill - health and had behaved in an unbalanced manner . Thus there had been a real risk of damage to the children ’s health and development . Furthermore , although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J. , it found that the situation was far from being stable , having regard to the serious flaws which had existed , the uncertainty as to whether they still existed and the children ’s need for care .", "The applicant appealed to ORG ( Regeringsrätten ) which , on DATE , refused leave to appeal .", "Following the granting of the public care order in DATE , the applicant had contact rights to visit T. for TIME , once DATE , and spoke with her on the telephone once DATE . She met PERSON once DATE in the presence of the social services and she had contact rights to visit NORP for TIME DATE . In DATE the applicant moved to live with her sister in GPE , located QUANTITY from PERSON , and as a result she travelled to PERSON to see her children roughly once a month .", "NORP In DATE , the children were placed in CARDINAL different family homes , all within QUANTITY of PERSON , as one family was not able to provide the care and support that each child needed . However , it was arranged for the children to meet each other approximately once a month to ensure continued good contact between them .", "NORP In DATE the applicant , through her legal counsel , requested ORG to allow her more time with her children as she felt that the children were being deprived of contact with her .", "On DATE ORG decided to restrict the applicant ’s contact rights to all CARDINAL children . It first noted that the children ’s father , PERSON , had also requested contact rights to the children and that his contact rights had to be taken into account when deciding on the frequency of the applicant ’s contact rights , balanced against the best interests of the children . Thus , according to the decision , each parent should meet with the children once DATE in a neutral environment where the family home parents and the social worker responsible for the file should be present . This meant that the applicant would meet her children DATE .", "The decision was based on an investigation carried out by ORG , in consultation with ORG , into the children ’s situation . It was finalised on DATE and concluded , inter alia , the following . All CARDINAL children had suffered severe harm to their health and development because of the deficiencies in the applicant ’s ability to care for them . They were vulnerable and sensitive to change . However , since the permanent care order , T. had slowly become more calm and balanced and had started to learn how to play . She and the applicant had been alone during their meetings and had done various things such as going to the playground , the swimming pool or a restaurant . T. had been very tired after the meetings and she had slept badly and wet her bed . After telephone conversations with the applicant , ORG had also been anxious and sad . As regards PERSON , he had become calmer and more relaxed since placed in the family home . He still had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant , despite the meetings having been very structured and held in the presence of the family home father . S. showed clear signs of fear of his mother and he had expressed a fear that she would come and fetch him . Turning to NORP , it was observed that she had met with the applicant and that they had usually been alone , playing together . After contact with the applicant , NORP used to be worried about things the applicant had told her and she regressed somewhat in her development for DATE after each meeting , wetting her bed and having difficulty sleeping . ORG concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development .", "NORP The applicant appealed to ORG and requested that she be granted contact rights to her children much more often than only twice a year . She could see no reason for such restricted contact and found it to be contrary to the best interests of the children as they would forget their mother . They had lived with her until DATE and they had had a close and warm relationship . She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them . Moreover , she referred to a custody report , dated DATE , which had been carried out in connection with the custody proceedings following the divorce from B. In the summary of the report it was stated , inter alia , that nothing had appeared to call into question the applicant ’s ability as a parent to care for her CARDINAL children and that personnel at the children DATE care centre had stated that the children seemed to receive the care they needed from the applicant .", "ORG contested the appeal . It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted , which was the effect of their contact with the applicant . Consultation had taken place with ORG , which agreed with ORG that contact restrictions were necessary in order to ensure a positive development for the children . Moreover , it noted that the last meeting between the applicant and her children , on DATE , had passed without incident , partly because CARDINAL adults had been present to ensure the children ’s well - being .", "On DATE ORG rejected the appeal . It noted that a supplementary custody report , dated DATE , stated that it was clear that there were major flaws in the applicant ’s ability to care for her children . Thus , having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant , and that they needed time to develop in peace in their family homes , ORG had been justified in restricting the applicant ’s contact rights to her children to twice DATE .", "The applicant lodged an appeal with ORG , maintaining her claims and adding that she wished to see her children at least once DATE in order to ensure that they would not forget her . She felt that the family home parents had a negative attitude towards her and that this influenced the children .", "On DATE , after having held an oral hearing , ORG upheld the lower court ’s judgment in full . It noted that ORG had been consulted by ORG before its decision .", "Upon further appeal by the applicant , ORG refused leave to appeal on DATE .", "DATE , ORG reconsidered the contact restrictions and decided to maintain the restrictions in place . It would appear that the applicant did not appeal against these until the council ’s decision of DATE which she appealed against to ORG , requesting that her contact rights to her children be increased to CARDINAL visit per month to begin with and , after DATE , to spend DATE a month with them alone . She stated , inter alia , that she had moved to GPE , found a job and was in a steady relationship with a new man , and thus , felt very well .", "In its decision , ORG had observed that despite the applicant ’s visits having been planned and very structured , the children had still had negative reactions before and after each meeting in the form of anxiety , stomach aches , bedwetting , becoming insecure and regressing in their development . It further noted that during the visit in DATE , the applicant ’s mother had also been present which had been a positive addition . She had expressed a wish to see her grandchildren once DATE , to which the council agreed . It also noted that the applicant had sent postcards and letters to the children which they appreciated . As concerned the visits , the council observed that they were always very well planned and structured with the support of the family homes and that the applicant and the children played together , ate and talked . The family homes also showed photos and films from the children ’s meetings and their activities .", "On DATE the court , after having held an oral hearing , decided to increase the applicant ’s contact with her children to CARDINAL times per year , for TIME each time . It noted that the limited contact had been in place for DATE and had contributed to the children developing positively during this time . Although it agreed with ORG that continued limitations on the applicant ’s contact with her children were necessary due to the children ’s needs , it noted that the applicant had not interfered in an inappropriate manner in the care of her children . Moreover , the last CARDINAL times they had met had generally gone well . Therefore , the court found that with the support of ORG and the family homes during the meetings , these could be increased to CARDINAL times per year for the applicant . In its view , this would provide the children with a good contact with their mother while not jeopardising their continued development .", "The applicant appealed to ORG , maintaining that she wanted contact rights with her children during DATE , without the presence of others , in order to ensure that she and the children would establish a good contact .", "ORG contested the appeal and maintained the reasons set forth in its decision .", "ORG requested ORG to obtain the children ’s point of view on increased contact with their mother . Consequently , the council met with the children individually but in the presence of their family home parents where they spoke about various things , including how they felt about seeing their mother more often . T. said that she did not want to meet her mother more than twice a year and that she did not want to be alone with her or stay with her . According to ORG , the meetings were very tiresome , demanding , she had a headache and could not concentrate in school before and after the meetings . She started crying and had a stomach ache during the conversation for which reason they had to cut it short . Following the conversation , she wet her bed at night , cried a lot and said that she was afraid . As for PERSON , he did not want to talk about his mother . He reacted in a negative , frightened manner and almost started crying . He later said that he only wanted to see her once a year and that he did not want to be alone with her . It was noted that he was very anxious and afraid to meet his mother and had strong physical reactions both before and after the meetings , including stuttering , becoming aggressive and being afraid of physical contact . Turning to NORP she said that she became tired when meeting her mother and siblings but that it was nice to dress up and eat good food . It was noted that NORP was the most positive about the meetings with the applicant but that she did not want to meet with her alone . Moreover , the negative reactions that she had had during earlier meetings had improved somewhat .", "In DATE the applicant voluntarily underwent a neuropsychological examination during DATE at ORG , upon request by ORG . The council wanted to know if the applicant suffered from a disorder or mental illness and , if so , what support she would need . The examination concluded that the applicant fulfilled the criteria for Attention Deficit Hyperactivity Disorder ( ADHD ) that was mainly inattentive in nature . It recommended supplementary examinations and made a number of proposals for supportive measures , including establishing fixed structures and routines in her daily life . It was also stressed that this specific impairment of her capabilities could hardly be sufficient to “ disqualify her as a parent ” .", "On DATE ORG upheld the lower court ’s judgment in full . It concluded that it would not be in the best interest of the children to increase the applicant ’s contact rights further than decided by the lower court , in particular due to the negative reactions of GPE , during and after the meetings .", "According to section CARDINAL § CARDINAL and section CARDINAL of the CARDINAL Act , compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person DATE due to ill - treatment , exploitation , lack of care or any other condition in the home and if the necessary care can not be provided with the consent of the child ’s guardian . The decision to place a child in public care is made by ORG following an application from ORG ( section CARDINAL ) .", "Chapter CARDINAL , section CARDINAL of GPE ( Socialtjänstlagen , CARDINAL:CARDINAL ; hereafter the “ LAW ” ) provides that particular attention must be given to the best interests of the child when measures within the social services affect him or her . Likewise , LAW of the DATE LAW states that the best interests of the young person shall be decisive when decisions are made under LAW . Moreover , LAW of LAW prescribes that the young person ’s point of view shall , as far as possible , be clarified and that the young person ’s will shall be taken into account , with due consideration to his or her age and maturity .", "According to LAW of LAW , ORG decides on the details of the care , in particular , how the care is to be arranged and where the young person is to live . Moreover , under section DATE , the council shall ensure that the young person ’s need for contact with his or her parents or other guardians is met to the utmost possible extent . If necessary , the council may decide how this contact is to be arranged . In the preparatory works to LAW PERSON , p. CARDINAL ) , it is noted that the provisions on contact restrictions are to be applied restrictively . ORG must have strong reasons to decide on contact restrictions between a young person and his or her parents . However , it can happen that the parents intervene in the care in an inappropriate manner . Their personal situation , for instance serious abuse or a grave mental illness , may be such that they should not see their child for a limited period of time .", "According to LAW , section CARDINAL of the CARDINAL Act , care outside a young person ’s home shall be provided either in a family home or in a home for care and residence . Moreover , the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her , as well as contact with his or her home surroundings .", "Contact restrictions shall be reviewed DATE by the ORG pursuant to section CARDINAL of the CARDINAL Act . Appeal against the council ’s decision in this respect lies to the administrative courts ( section CARDINAL ) ." ]

[]

[]

[]

[ "8" ]

[ "8-1" ]

[]

[ "The applicant was born in DATE and lives in GPE .", "While driving his pickup van on DATE , the applicant was stopped by the police during a road check . The police discovered a more leniently taxed fuel than diesel oil in the tank of the van .", "On DATE the applicant was fined for petty tax fraud through a summary penal order . The form stated , inter alia :", "“ PERSON , modus operandi :", "Petty tax fraud ( motor vehicle tax misdemeanour ) . [ The applicant ] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero , tilläggsskatt ) .", "Footnote : he had filled the tank himself . ”", "The fine amounted to MONEY ( ORG , or MONEY ( ORG ) ) . The summary penal order indicated that LAW , LAW , of LAW ( rikoslaki , strafflagen ; Act no . DATE ) and sections CARDINAL of ORG ( laki moottoriajoneuvoverosta , lagen om skatt på motorfordon ; Act no . CARDINAL/CARDINAL , now repealed ) had been applied . As the applicant did not contest the imposition of the fine , it became final on DATE .", "In separate proceedings , and having received the applicant ’s submission in writing on an unspecified date , on DATE ORG ( ajoneuvohallintokeskus , fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to ORG ( equivalent to ORG CARDINAL,CARDINAL ) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to ORG . The decision indicated that sections DATE of LAW ( laki polttoainemaksusta ; lagen om bränsleavgift ; Act no . CARDINAL/CARDINAL , now repealed ) had been applied . The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount .", "The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned , arguing , inter alia , that the fuel fee should have been claimed at the same time as the summary penal order was issued . As it had not been claimed at that time , it was no longer possible to debit the fuel fee in the light of LAW .", "On DATE ORG ( verohallitus , skattestyrelsen ) rejected the application for a reduction of the fee . It reasoned :", "“ No special reasons provided for by law to grant a reduction have been put forward . ”", "The decision indicated that section CARDINAL of LAW had been applied . No appeal lay .", "On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) , having received the observations of ORG ( veroasiamies , skatteombudet ) and ORG and the applicant ’s observations in reply , rejected the appeal . It reasoned :", "“ LAW provides that a fuel fee ( polttoainemaksu , bränsleavgift ) is collected for DATE the vehicle has been continuously located in GPE prior to the noted use , but not for DATE at a time . Section CARDINAL provides that the fuel fee for a pickup van is ORG CARDINAL,CARDINAL [ some EUR CARDINAL ] per diem . Section CARDINAL provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given , the fuel fee collected is treble the [ normal ] amount .", "The pickup van owned by ORG Jukka PERSON , [ registration no . ] KJM-CARDINAL , has been noted to have been used during DATE using fuel more leniently taxed than diesel oil . PERSON had not informed ORG or the ORG thereof [ in advance ] . In the pre - trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle .", "The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax . What is in issue is not the imposition of a criminal punishment or a sanction in lieu .", "The imposition of a fuel fee ... is not in breach of LAW or the Convention .", "Despite the reasons for the use submitted by PERSON and despite his financial status , ORG was entitled to impose a fuel fee . The fuel fee amounts to ORG CARDINAL per diem , it was to be imposed in respect of DATE and it was to be trebled . The fuel fee FIM CARDINAL has been imposed in accordance with the law . There is no reason to amend the debiting decision . ”", "The decision indicated that sections CARDINAL , CARDINAL , DATE and CARDINAL of LAW and LAW had been applied .", "The applicant requested leave to appeal , alleging a breach of LAW .", "On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) refused leave to appeal .", "The NORP system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on CARDINAL main elements . First , the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel , and to pay additional tax ( section CARDINAL of LAW , which has since been repealed ) and/or a fuel fee ( section CARDINAL of LAW as amended by Act no . CARDINAL/CARDINAL ) . Second , the authorities ensure compliance with those conditions by means of road checks . Tax evasion or attempted tax evasion was punishable under LAW and failure to comply with the notification obligation was punishable as a motor vehicle tax offence ( LAW of LAW ) .", "LAW provisions of interest for the present case read :", "A vehicle referred to in section CARDINAL shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle . A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported . A fuel fee shall , however , be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act ( Act no . CARDINAL ) . A vehicle in respect of which a notification within the meaning of LAW has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax .", "If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section CARDINAL , the owner or holder of the vehicle shall be obliged to notify ORG of such use before using it . In respect of a vehicle imported to GPE , the notification may also be given to the customs authorities .", "A fuel fee shall be collected for DATE on which , according to a notification , a more leniently taxed fuel than diesel oil is used in a motor vehicle .", "If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given , a fuel fee shall be collected for DATE on which the vehicle has been continuously located in GPE prior to the use , but not for DATE at a time . If a fuel fee has been imposed on the vehicle , the time shall be counted from DATE following the previous tax period at the earliest . If the date of importing the vehicle to GPE can not be established , the fuel fee shall be collected for a minimum of DATE .", "The fuel fee for a pickup van is ORG CARDINAL,CARDINAL [ equivalent to ORG CARDINAL.CARDINAL ] per diem . ...", "If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under LAW has been given , the fuel fee collected shall be CARDINAL times the normal amount .", "The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle . If another person holds the vehicle permanently in his or her possession , the fuel fee shall be collected from this holder . ...", "...", "The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil . A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle .", "...", "For particularly weighty reasons ORG may , on application and on conditions set by ORG , grant exemption from the payment of a fuel fee , penal interest or arrears , and interest due because of deferral of payment .", "ORG shall make a decision on the application referred to in subsection CARDINAL if the sum whose removal or return is requested does not exceed FIM CARDINAL [ equivalent to ORG ] . ORG may , however , take the case up for decision if it is of particular significance .", "ORG may , on application , defer the payment of a fuel fee . The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral . ORG may take a case concerning deferral of payment up for decision . In such cases , the Ministry shall determine the conditions of deferral in its decision concerning the application .", "A decision made by virtue of this section shall not be subject to appeal .", "Illegal evasion of a fuel fee , and attempted evasion thereof , are punishable under LAW , ORG CARDINAL , of LAW . ”", "According to the Government PERSON for the enactment of LAW and amendment of section CARDINAL of the Excise Duty on Fuels Act and section CARDINAL of LAW ( no . HE GPE ) , the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle .", "Government Bills nos . HE CARDINAL ORG and HE CARDINAL vp note that section CARDINAL of LAW is based on the presumption that the same fuel is used in the vehicle continuously . Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities , or to provide evidence of the extent to which the vehicle has been used , the imposition of the fuel fee has to be based on the time during which the vehicle has been used in GPE . For reasons of equity , however , the period is restricted to DATE at a time .", "With regard to section CARDINAL , the ORG submitted that in most cases where a tax appeal is pending ORG refuses tax relief . This also concerns the application of section CARDINAL of LAW . If an application for tax modification has been rejected for this or another reason , the applicant may , notwithstanding the existing decision , file a new modification application with the same authority after the decision on taxation has become final . The Government did not refer to any such decision .", "LAW in force at the relevant time was replaced by a LAW no . CARDINAL , with effect from DATE , which was not therefore applicable to the present case ) . Section CARDINAL provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee , and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited . Section CARDINAL lays down the sums of the fuel fees imposed on different types of cars . Section QUANTITY provides that if a notification has not been made to the competent authority , the fuel fee shall be increased by PERCENT at most . The fuel fee may also be increased by PERCENT at most if the use of the fuel which gives rise to imposing the fuel fee is repeated , or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated .", "The Government Bill for the enactment of the new LAW ( HE CARDINAL , p. CARDINAL ) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic . Formally , the use of more leniently taxed fuel was not forbidden , but it was subject to fairly severe financial sanctions . The basic structure of LAW and LAW was identical to , for example , LAW , which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts . The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax . The basic aim of the provisions on additional tax and fuel fee is well established in GPE . The provisions are well - known among motorists and the consequence is that , compared with other countries , more leniently taxed fuel is hardly ever used in road traffic in GPE . The Government PERSON considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system .", "LAW , ORG CARDINAL , of the Penal Code provide :", "A person who", "( CARDINAL ) gives a taxation authority false information on a fact that influences the assessment of tax ,", "( CARDINAL ) files a tax return concealing a fact that influences the assessment of tax ,", "( CARDINAL ) for the purpose of avoiding tax , fails to observe a duty pertaining to taxation , influencing the assessment of tax , or", "( CARDINAL ) acts otherwise fraudulently ,", "and thereby causes or attempts to cause a tax not to be assessed , a tax to be assessed too low or a tax to be unduly refunded , shall be sentenced for tax fraud to a fine or to imprisonment for DATE .", "If in the tax fraud", "( CARDINAL ) considerable financial benefit is sought or", "( CARDINAL ) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole , the offender shall be sentenced for aggravated tax fraud to imprisonment for DATE and at DATE .", "( CARDINAL ) If the tax fraud , when assessed as a whole , with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence , is to be deemed petty , the offender shall be sentenced for petty tax fraud to a fine .", "( CARDINAL ) If a punitive tax increase is deemed a sufficient sanction , the report of , or prosecution or punishment for , petty tax fraud may be waived . ”" ]

[ "P7" ]

[ "P7-4" ]

[]

[]

[]

[]

[ "The applicants are GPE nationals , born in DATE and DATE respectively and living in GPE and GPE respectively . They are represented before the ORG by Mr G.A. Offerhaus , a lawyer practising in GPE .", "The applicants each held CARDINAL shares in a GPE public limited company ( Naamloze Vennootschap ) , ORG , then the biggest insurance company in the GPE .", "In DATE the boards of directors of ORG and a bank , the public limited company ORG , set up a holding company , ORG ( better known as ING ) , with a view to obtaining shares in ORG and ORG in return for ING shares . After having initially made an unsuccessful offer to shareholders of the CARDINAL existing companies , ING succeeded in DATE in obtaining the vast majority of all outstanding shares .", "The applicants were among a number of minority shareholders who refused to part willingly with their shareholdings in ORG .", "On various dates in DATE ING summoned these minority shareholders to appear before ORG ( Ondernemingskamer ) of ORG ( Gerechtshof ) of GPE . ING asked ORG to order the minority shareholders to hand over the shares and to set a price per share .", "Of the CARDINAL applicants only PERSON Helena Florentina Offerhaus was represented in the ensuing proceedings . She did not object to handing over her shares to ING but asked that the price per share be set at MONEY ( GPE guilders ) .", "ORG gave judgment on DATE . It ordered the minority shareholders to hand their shares over to ING against payment of NLG CARDINAL plus statutory interest over that sum from CARDINAL DATE up until the date on which the handover took place but minus any dividends paid during that period . This price was based on the rate at which ORG had offered to exchange ORG shares for its own , and the price at which ING shares were traded at the stock exchange on DATE .", "The applicants appealed on points of law ( cassatie ) to ORG ( PERSON ) . Insofar as is relevant here , they complained about the way in which the price per share had been calculated . In their view , the basis for the calculation should not have been the price at which the shares in question had been traded on the stock exchange but the takeover value of the enterprise divided by the number of shares ( the intrinsic value ) ; this would have resulted in a higher price per share .", "On DATE ORG gave judgment . It decided to dismiss the appeal , finding that it was reasonable to take the price at which shares were traded on the stock exchange as indicative of their market value and noting that the exchange rate of ORG shares against ORG shares had not been called into question . Insofar as the applicants relied on LAW No . CARDINAL , ORG held :", "“ CARDINAL . The cassation plea further argues that , on ground of LAW No . CARDINAL to the LAW , the shareholders < concerned > can claim an exchange value that has been determined according to the most advantageous manner of calculation of the value .", "CARDINAL.CARDINAL.CARDINAL . Shareholders having to hand over their shares are entitled to a real price for their shares . It can not be derived from the aforementioned provision that that price should be another price than this price , and in particular not that always that price should be considered which , according to ( theoretical ) calculations , would attain the highest result . Neither the statutory rules on share handovers , nor - as in fact in the present case - ORG seek to compensate more than the “ real ” value of the shares . There is no violation of LAW No . CARDINAL on this point , so that this part of the cassation plea also fails .", "It is not stated when precisely the applicants eventually handed over their shares to ING and how much they were actually paid . They do allege , however , that at that moment the price at which the shares concerned were traded at the stock exchange was considerably higher than that at which they had been valued by ORG plus statutory interest .", "Article CARDINAL § CARDINAL of LAW provides that a shareholder who on his own account provides PERCENT of the subscribed capital ( geplaatst kapitaal ) in a public limited company is entitled to seek an order addressed to the collected minority shareholders for the compulsory handover of the remainder of the shares . Article CARDINAL § CARDINAL provides that no such handover shall be ordered inter alia if CARDINAL of the minority shareholders would thereby incur disproportionate financial loss . Article CARDINAL § CARDINAL requires the competent court to set a price for the shares at a specific date . To this price must be added the statutory interest up until the date of the actual handover , but dividends paid out after the date set by the court must be deducted . The court may of its own motion obtain expert advice .", "It appears from the Explanatory Memorandum to the Act which enacted that article that the intention of the legislature was to protect the holding company against the undue expense and complication which could be caused by such minority shareholdings : for instance , separate DATE meetings of shareholders had to be held ; DATE reports had to be more comprehensive ; and the company concerned could not , for tax purposes , be considered to form a single taxable entity . It is stated that an arrangement which ensures that the minority shareholders receive a fair price does not cause them loss : thus , if no agreement on the price is reached the court is not bound by the figure proposed by the majority shareholder but sets a figure of its own . The price for the shares will normally be calculated on the basis of the company ’s balance sheet but may be determined as per any specific date chosen by the court ( ORG of ORG , parliamentary DATE , QUANTITY , no . CARDINAL , pages CARDINAL and following ) ." ]

[]

[]

[]

[]

[]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by PERSON , ORG at ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP On DATE the applicant and his late wife sued the military unit No . CARDINAL claiming compensation of non - pecuniary damage and various costs resulting from serious bodily injuries caused to their son during his military service in GPE and his ensuing death .", "On DATE ORG of GPE granted their claim in part . The defendant military unit was ordered to pay the claimants a total of MONEY ( RUB ) in compensation of the non - pecuniary damage and funeral costs . On DATE the judgment became final .", "NORP Since that time the claimants lodged repeated requests for enforcement of the judgment with various State authorities including the commander of the defendant military unit , ORG , the bailiffs and ORG . However , the judgment in their favour remained unenforced .", "On DATE the applicant ’s wife died .", "On an unspecified date the defendant military unit was dismantled and the applicant reapplied to ORG requesting an order for the awarded sums to be paid by ORG .", "On DATE ORG ordered that the judicial awards of DATE be paid to the applicant by ORG . The award of RUB PERSON was credited to the applicant ’s bank account on DATE .", "The applicant brought a claim seeking compensation for the lengthy failure to enforce the judgment in his favour . On CARDINAL DATE ORG ruled in favour of the applicant and acknowledged a violation of his right to enforcement of the judgment of DATE within a reasonable time and his right to peaceful possession of property . ORG was ordered to pay RUB MONEY ( DATE ( ORG ) ) in compensation and RUB CARDINAL ( EUR CARDINAL ) in costs and expenses . The court took account of the enforcement delay , the nature of the award , its significance for the applicant , and the efforts made to obtain the payment .", "On DATE ORG of GPE upheld the judgment on appeal .", "The compensation of ORG DATE and costs and expenses of LAW were transferred to the applicant ’s bank account on DATE and DATE respectively .", "On DATE the ORG delivered the Burdov ( no . CARDINAL ) v. GPE pilot judgment ( no . CARDINAL , ECHR DATE ( extracts ) ) . It ordered the respondent ORG to set up an effective domestic remedy which would secure adequate and sufficient redress for non - enforcement or delayed enforcement of domestic judgments .", "Federal Law № CARDINAL-ФЗ of DATE ( “ LAW ” ) , which entered in force on DATE , was adopted in response to the abovementioned judgment . It provides that in case of a violation of the right to enforcement of a final judgment within a reasonable time , the NORP citizens are entitled to seek compensation of non - pecuniary damage in NORP courts . ORG CARDINAL-ФЗ adopted on DATE introduced the relevant changes in the NORP legislation .", "Section CARDINAL § CARDINAL of LAW provides that everyone who has a pending application before ORG concerning a complaint of the nature described in the law has DATE to bring the complaint to a domestic court , provided ORG did not declare the application admissible or decide it on the merits ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr Yuriy Vyeniaminovych Arkhipov , is a NORP national , who was born in DATE . He is currently serving a prison sentence . He is represented before the ORG by his mother , PERSON , and Mr Sergiy Stetsko , a human rights activist .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the ORG sentenced the applicant to DATE administrative arrest following his conviction for failure to comply with the lawful demands of police officers ( LAW ) .", "DATE the applicant took revenge on the judge of ORG by setting fire to his house . However , only minor damage was caused .", "On DATE the applicant was detained on suspicion of having been involved in an arson attack on TIME and DATE . The applicant was held in ORG . On DATE the applicant was released .", "On DATE the applicant was again detained by the police on suspicion of having been involved in an arson attack on DATE . On DATE he was released . Before being released the applicant , in the presence of his lawyer , pleaded guilty to the offence .", "On DATE the police decided to conduct a joint investigation into the arson offences committed on CARDINAL and CARDINAL DATE .", "On DATE the police reclassified the applicant 's acts as an attempt to destroy the property of the judge in revenge for his conviction .", "On DATE the applicant was detained for a third time in view of the criminal proceedings pending against him .", "On DATE the applicant told the investigators that he was not guilty .", "On DATE the prosecution service completed its investigation into the facts of the case .", "On DATE the case file was remitted to ORG for consideration on the merits . The applicant remained in detention .", "In DATE ORG commenced its consideration of the merits of the case .", "On DATE ORG remitted the case for an additional investigation and ordered that the applicant was to remain in custody .", "On DATE ORG upheld the decision to remit the case for additional investigation .", "On DATE the PERSON prosecution service undertook the additional investigation into the case .", "On DATE ORG sentenced the applicant to DATE imprisonment following his conviction for the destruction of the judge 's property in revenge for his conviction . The court examined the applicant 's complaints that he had been ill - treated by police officers , but found no evidence of this . It stated that the applicant had not been held in custody DATE and DATE and thus had had an opportunity to complain of the alleged his ill - treatment , either to the court or to the prosecution . However , he had failed to avail himself of these possibilities . Furthermore , the applicant had not submitted any medical evidence in support of his allegations and had failed , moreover , to prove that he had sustained injuries at the hands of the police .", "On DATE the applicant lodged an appeal against the judgment of DATE . On DATE ORG refused the applicant leave to appeal on account of his failure to comply with the rules governing the form and content of an appeal . The applicant was allowed time to rectify the shortcomings . On DATE the applicant 's appeal was left without consideration because of his failure to comply with the ruling of CARDINAL DATE and to provide the relevant number of copies of his appeal to the parties .", "On DATE the applicant complained about the ruling of CARDINAL DATE to ORG . On DATE that court quashed the ruling on the ground that it was unlawful . It also decided that it had jurisdiction to hear the applicant 's appeal . The applicant remained in detention .", "On DATE ORG upheld the judgment of ORG of DATE and dismissed the applicant 's appeal as being unsubstantiated . It confirmed the decision of the first - instance court rejecting the applicant 's allegations of ill - treatment .", "“ ... ORG of GPE is highest judicial body in the system of courts of general jurisdiction ...", "Courts of appeal and local courts operate in accordance with the law . ”", "“ The following decisions may be reviewed in cassation proceedings :", "CARDINAL ) judgments , rulings and resolutions of an appellate court rendered by it as a court of first instance ; and", "CARDINAL ) judgments and resolutions of an appellate court rendered by it in appeal proceedings .", "Judgments and resolutions of district ( city ) courts , inter - district ( circuit ) courts and garrison military courts may be also reviewed in cassation proceedings , as well as rulings of appellate courts rendered with regard to those judgments and resolutions . ”", "“ Cassation appeals against the court decisions referred to in part one of LAW may be lodged by the persons defined by LAW .", "Cassation appeals against the court decisions referred to in part CARDINAL of LAW may be lodged by :", "CARDINAL ) a convicted person , or his / her legal representative or defence counsel in respect of provisions which concern the interests of the convicted person ;", "CARDINAL ) an acquitted person or his / her legal representative or defence counsel in respect of the operative provisions of the acquittal ;", "CARDINAL ) a plaintiff , respondent or their representatives in respect of the provisions which concern a settlement of the claim ;", "CARDINAL ) a victim or his / her representative in respect of the provisions which concern the victim 's interests . ...", "Persons who are entitled to lodge a cassation appeal or a cassation petition may be apprised of the materials of the court case - file in order to decide whether or not to lodge a cassation complaint or petition . ” ( As amended according to LAW . CARDINAL of DATE )", "“ Cassation complaints and petitions are examined by :", "CARDINAL ) a panel of judges of ORG of GPE in respect of court decisions rendered by ORG , the regions and the GPE and LOC city courts , and in respect of judgments of district ( city ) courts and inter - district ( circuit ) courts ; ... ”", "“ Cassation appeals and petitions against the court decisions referred to in part one of LAW may be lodged within DATE from the date of delivery of the judgment , ruling or resolution complained of , and where lodged by a convicted person who is held in custody within the same period from the date on which he has been served with a copy of the judgment or resolution .", "Cassation appeals against the court decisions referred to in paragraph CARDINAL of Article CARDINAL of this Code may be lodged within DATE from the date of their entry into force .", "During the period specified for lodging a cassation complaint , no one , save the court of cassation , shall request or obtain the case file from the court executing the court decision .", "In the event that the period prescribed by parts CARDINAL and CARDINAL of this Article for lodging a complaint or filing a petition has been missed and there is no application for it to be extended , the complaint or petition shall be held by a judge 's resolution not to be subject to examination . This period may be extended in the instances and in accordance with the procedure provided for by LAW . ”", "“ The case file together with the cassation appeal and/or petition against a judicial decision mentioned in LAW shall be remitted for consideration to the court of cassation once the case file has been deposited with the court .", "A cassation appeal or petition lodged by the prosecutor against a judicial decision mentioned in LAW shall be referred to a judge of the court of cassation , who shall decide , within DATE from the date of receipt , on the initiation of the proceedings upon the cassation appeal . The cassation proceedings shall be initiated unless the cassation appeal does not comply with the requirements of LAW , CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL of this Code , for which reasons the appeal in cassation shall not be considered by the court of cassation . The judge shall adopt a resolution with regard to the cassation appeal , a copy of which shall be sent to the prosecutor or the person lodging a cassation appeal . The resolution is not subject to appeal . A refusal to initiate cassation proceedings is not an obstacle to review of the case once the person who lodged a cassation appeal has rectified any mistake in it and has complied with the time - limits envisaged by LAW , or if it is lodged not DATE from the date of receipt of the copy of the resolution on refusal to initiate cassation proceedings .", "The judge who decided on the initiation of the criminal proceedings may also decide to suspend the enforcement of the judgment in the case until the cassation appeal has been considered ; this procedure does not concern decisions mentioned in LAW . ”", "“ The lodging of cassation appeals or petitions against a judicial decision mentioned in LAW suspends its entry into force .", "The lodging of cassation appeals or petitions against a judicial decision mentioned in LAW does not suspend its entry into force . ”", "“ Cassation appeals and petitions against court decisions referred to in part one of LAW shall be examined and notice of that examination served on the prosecutor and the persons referred to in LAW .", "Cassation appeals and petitions against court decisions referred to in part CARDINAL of LAW shall be examined within DATE of receipt by the cassation court composed of CARDINAL judges with the participation of a prosecutor . The court shall either assign the case for examination and must notify the persons referred to in LAW accordingly or dismiss it .", "The case assigned for examination , with notice served on the prosecutor and the persons referred to in LAW , shall be examined by the cassation court composed of CARDINAL judges with the participation of a prosecutor in accordance with the procedure provided for by parts CARDINAL , CARDINAL and CARDINAL of LAW .", "The deliberations of the cassation court 's judges shall be conducted in accordance with the requirements provided for by Articles CARDINAL and CARDINAL of this Code . ”", "“ As a result of the examination of a case in accordance with the cassation procedure , the court shall take CARDINAL of the following decisions :", "CARDINAL ) uphold the judgment , ruling or resolution and dismiss the cassation complaint or petition ;", "CARDINAL ) reverse the judgment , ruling and resolution refer the case for a fresh investigation or trial or appeal hearing ;", "CARDINAL ) reverse the judgment , ruling or resolution and terminate the proceedings in a case ;", "CARDINAL ) modify the judgment , ruling or resolution .", "In the event of withdrawal of a cassation complaint or petition , the cassation court shall issue a ruling terminating the cassation proceedings unless the decision has been appealed against by other participants in the trial in accordance with the cassation procedure . ”", "“ Grounds for reversal or modification of a judgment , ruling or resolution shall be :", "CARDINAL ) substantial violation of the law of criminal procedure ;", "CARDINAL ) incorrect application of the criminal law ;", "CARDINAL ) disproportionate punishment imposed on the convicted person in conjunction with the gravity of the crime .", "In resolving the issue of availability of the grounds referred to in part CARDINAL of this LAW , a court of cassation shall be guided by ORG CARDINAL - CARDINAL of this Code .", "A court of cassation shall have no powers to reverse a judgment of acquittal , a ruling or resolution terminating proceedings in the case merely on the grounds of a substantial violation of the rights of the accused . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently in detention in Lingen prison in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE , GPE .", "On DATE the applicant committed an armed robbery , killing a money courier and a bystander who had tried to prevent him from fleeing .", "On DATE the applicant was arrested in GPE , where he subsequently served a prison sentence for other criminal offences .", "On an unspecified date the NORP authorities requested the applicant ’s temporary surrender according to LAW law below ) for the purpose of conducting criminal proceedings against him . As the applicant had already served the main part of his NORP prison sentence , the public prosecutor expected that the NORP authorities might abstain from requesting the applicant ’s return to GPE following termination of criminal proceedings in GPE . On DATE the applicant was extradited to GPE .", "On DATE ORG ( Landgericht ) convicted the applicant of CARDINAL counts of murder and severe robbery , found that his guilt was of a particular gravity ( besondere PERSON der PERSON ) , and sentenced him to life imprisonment . With regard to the gravity of the applicant ’s guilt , ORG noted that the applicant had committed several serious criminal offences within a short period of time . By shooting CARDINAL persons he had fulfilled CARDINAL criteria qualifying his actions as murder ( killing from greed and in order to make another crime possible or cover it up ) . Furthermore , he had committed a severe robbery .", "Following the applicant ’s conviction in GPE , the NORP authorities abstained from requesting his return to GPE . The applicant later on requested the NORP authorities to demand a diplomatic assurance from the NORP authorities not to impose a life sentence on him . The NORP authorities rejected this request on the grounds that the extradition proceedings had been terminated . The applicant is currently serving his prison sentence in a prison hospital in GPE .", "In DATE the applicant was diagnosed as being infected with HIV . The applicant assumes that he contracted the virus in DATE when he had to undergo several operations during his detention in GPE .", "According to an expert opinion submitted by the medical expert PERSON on DATE , the applicant suffered from full - blown AIDS . While the applicant did not suffer from any acute new diseases , his immune deficiency could be expected to progress , entailing the risk of severe HIV - associated infections . The poor state of the applicant ’s immune system was probably due to the fact that the applicant had , in the past , not always taken the prescribed anti - viral medication , as he had suffered from side effects and from a subjective inability to swallow the medication . The difficulty to regularly administer medication considerably shortened the applicant ’s life - expectancy . A further limitation derived from the severe immune deficiency , which could , at any time , entail serious opportunistic infections or tumours . Under these circumstances , the expert estimated the applicant ’s life expectancy to DATE . This estimation could only be revised if it was possible to successfully implement a therapy which was regularly taken by the applicant .", "According to the applicant ’s submissions , he had , in the meantime , been admitted to intensive care , as his state of health had dramatically deteriorated .", "On DATE ORG , sitting as an execution of sentence chamber ( PERSON ) , having heard the applicant , the public prosecutor and the prison authority , rejected the applicant ’s request for the remainder of his sentence to be suspended under section CARDINALa of LAW ( see Relevant law below ) .", "On DATE , on the applicant ’s complaint , ORG ( Oberlandesgericht ) quashed this decision on the ground that ORG had failed to determine from which date on the applicant would be eligible for parole , having regard to the gravity of his guilt , and remitted the case to ORG .", "On DATE ORG , once again , rejected the applicant ’s request . It noted that the applicant had served DATE of his sentence on DATE . It determined that the gravity of the guilt – notwithstanding other possibilities of suspending the sentence DATE warranted the execution of the sentence for DATE as from DATE .", "ORG found that the gravity of the applicant ’s guilt required serving a considerably longer period than the minimum sentence of DATE . It further noted that the applicant had not shown any remorse and that he had not attempted to expiate his deeds . There was no indication of a positive development of the applicant ’s personality .", "Turning to the applicant ’s illness , ORG considered that the applicant ’s state of health played an important role . Referring to the LAW case - law of ORG ( Bundesverfassungsgericht ) , ORG found that the applicant could not be deprived of the possibility of being released from prison while still alive . It would be incompatible with human dignity to reduce the possibility of release to a remaining life - span spent in physical decline and approaching death .", "Referring to the expert opinion submitted by PERSON and to a further expert opinion submitted by ORG on DATE , the chamber estimated the applicant ’s life expectancy to DATE . However , this assessment was based on the assumption that the applicant did not regularly take his prescribed medication . The life expectancy could be prolonged if it was possible to successfully implement a therapy which was regularly taken by the applicant .", "Taking into account the above circumstances , the chamber considered that the gravity of the applicant ’s guilt warranted a further execution of the sentence for DATE .", "Apart from these considerations , the chamber considered that a suspension of the sentence could not be justified having regard to the interest in public security . The ORG noted that the applicant had , during his detention , on several occasions threatened prison staff , although these threats had not been followed by any actions . According to an expert report drafted by the prison ’s psychological service on DATE the applicant did not show any remorse or feelings of guilt . He felt innocently convicted and tried to minimise his guilt . The fact that during DATE the applicant had calmed down was not due to any feeling of remorse , but to his progressing illness . The psychological service concluded that the applicant posed a considerable danger to the public . ORG followed this assessment .", "According to ORG , the applicant ’s state of health would not hinder him from committing even serious crimes . Furthermore , there was the risk that the applicant could have lost any restraint , as he had nothing left to lose .", "On DATE ORG confirmed ORG decision and rejected the applicant ’s complaint . Insofar as the applicant complained about the circumstances of his extradition , his complaint was unfounded . During the extradition proceedings the length of the execution of the sentence had not been limited to DATE .", "On DATE ORG , sitting as a chamber of CARDINAL judges , refused to admit the applicant ’s complaint against the decision of ORG of DATE and of ORG of DATE for adjudication .", "ORG considered that the applicant ’s submissions only partly fulfilled the admissibility requirements laid down in sections CARDINAL § DATE of its Rules of Procedure . It noted , in particular , that the applicant had failed to submit ORG expert opinion , the submissions of the prison authorities and the expert opinion by the psychological service on which ORG had to a considerable degree based its decision .", "Insofar as the applicant complained that the circumstances of his extradition had been incompatible with LAW , his submissions did not suffice for an examination by ORG . The content of the terms on which the GPE had agreed prior to the extradition was only reported in a very general way ; the applicant had failed , in particular , to submit or to report the content of a decision taken in DATE by an unspecified NORP authority , which eventually made possible the execution of the sentence in GPE .", "ORG considered the remainder of the applicant ’s complaint to be unfounded . ORG confirmed that the respect for human dignity demanded that any convicted person had to be granted the concrete and , in principle , realistic chance to regain his or her personal liberty .", "With respect to the circumstances of the applicant ’s case that court found as follows :", "“ The impugned decisions are , provided the further proceedings are conducted in a constitutional way , to be regarded as still compatible with the LAW .", "aa ) The LAW did not oblige the lower courts to immediately suspend the remaining prison sentence . A release after having served a DATE years’ prison sentence would have complied with the procedure prescribed in case of an execution of a life sentence without particular gravity of the defendant ’s guilt ( section FAC subsection CARDINAL sentences CARDINAL and CARDINAL of LAW ) . In the present case , however , the first instance court had established the particular gravity of the guilt , and the execution of sentence chamber has faultlessly confirmed the subsistence of this guilt , having regard to the criminal offences committed by the complainant .", "The fact that the lower courts assumed that the complainant was dangerous also militated against an immediate release . The constitutional complaint does not sufficiently explain why the complainant ’s illness should exclude this dangerousness . Quite apart from the fact that the complainant could commit criminal offences with minimal physical effort by using a firearm , the opinion submitted by the expert PERSON does not show any acute pathological findings , notwithstanding the high probability of contracting serious diseases in the future .", "bb ) The finding that the particular gravity of the complainant ’s guilt required that the sentence be executed for DATE is still acceptable from a constitutional point of view , taking into account the reservations mentioned by the court and provided that the further proceedings are conducted in a constitutional way .", "The lower courts have not misjudged the constitutional standards and were , in particular , aware of the fact that it would be incompatible with human dignity to reduce the concrete and in principle realistic chance of release to a remaining life - span spent in physical decline and approaching death . Apart from the fact that the life - expectancy of DATE as estimated by the expert PERSON is not completely exhausted by the envisaged further execution of the sentence for DATE , the courts were allowed to take into account the possibility of a prolongation of the life - expectancy , provided medication could be successfully implemented with the complainant ’s collaboration .", "... The complainant does not have a positive legal prognosis . In the case of criminal offences which are sanctioned by a life sentence , as is the case with murder , the need for public security has a high importance when establishing a legal prognosis . A suspension of the sentence must not lead to recidivist murders . It does not appear entirely far - fetched when the lower courts assumed that the complainant ’s dangerousness was enhanced by the fact that he had nothing left to lose . It is difficult for ORG to examine this matter as the applicant did not submit the comments made by the psychological service and by the prison authority . This concerns in particular the question whether it would have been necessary to hear an external expert .", "The determination of the prospective duration of execution is still acceptable , as the possibility to react to a change of the relevant circumstances – as would be required by the constitution – is expressly reserved . It has to be assumed that the prison authorities will , without delay , inform the public prosecutor and the chamber in charge of the execution of sentences in case of any changes of the relevant circumstances , in particular of the complainant ’s life expectancy and legal prognosis . In order to prepare his release , it will also have to be considered to grant relaxation measures in the execution of sentence . ”", "This decision was served on the applicant ’s counsel on DATE .", "Article CARDINAL of LAW ( ETS no . CARDINAL ) reads as follows :", "“ ( CARDINAL ) The requested ORG may , after making its decision on the request for extradition , postpone the surrender of the person claimed in order that he may be proceeded against by that ORG or , if he has already been convicted , in order that he may serve his sentence in the territory of that ORG for an offence other than that for which extradition is requested .", "( CARDINAL ) The requested ORG may , instead of postponing surrender , temporarily surrender the person claimed to the requesting ORG in accordance with conditions to be determined by mutual agreement between the Parties . ”", "In DATE the ORG ruled that the respect for human dignity ( LAW ) required that any person serving a life - sentence must have , in principle , a chance to regain personal liberty ( CARDINAL BvL CARDINAL , published in the official collection of the decisions of ORG , volume CARDINAL , p. CARDINAL ) .", "In order to implement this decision , the NORP legislator introduced the following section into LAW :", "“ ( CARDINAL ) The court shall suspend execution of the remainder of a punishment of imprisonment for life and grant probation , if :", "DATE of the punishment have been served ;", "the particular gravity of the convicted person ’s guilt does not require its continued execution ; and", "the requirements of LAW subsection ( CARDINAL ) , sent . CARDINAL , CARDINAL . CARDINAL and CARDINAL are present .", "Section CARDINAL subsection ( CARDINAL ) , sent . CARDINAL ... shall apply accordingly . ”", "The provisions referred to above read as follows :", "“ ( CARDINAL ) The court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation , if :", "...", "this can be justified upon consideration of the security interests of the general public ; and", "the convicted person consents .", "To be considered in making the decision shall be , in particular , the personality of the convicted person , his previous history , the circumstances of his act , the importance of the legal interest threatened in case of recidivism , the conduct of the convicted person while serving his sentence , his living conditions and the effects which can be expected as a result of the suspension . ”", "The relevant provisions of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) read as follows :", "“ Applications for the institution of proceedings must be submitted in writing to ORG . The reasons must be stated ; the requisite evidence must be specified . ”", "“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”", "According to the consistent case - law of ORG , a complainant is obliged to submit all relevant material within the statutory time - limit of DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Gdańsk . ORG ( “ the Government ” ) were represented by their Agent , Mr J. Wołąsiewicz , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested by the police .", "On DATE the ORG decided to detain the applicant on suspicion of having committed several burglaries at ORG , acting as part of an organised criminal gang . The court considered , given the likelihood that a severe sentence would be imposed on the applicant , that there was a risk that he would interfere with the proper course of the proceedings .", "On DATE the ORG dismissed a request by the applicant to be released from detention , relying on the ground that the applicant ’s brother was being sought by the police .", "On DATE ORG extended the applicant ’s detention , relying on the ground given previously . It noted , however , that since his arrest no investigative actions had been taken ; thus , it instructed the prosecuting authorities to expedite the investigation .", "On DATE the applicant and CARDINAL co - accused were indicted before ORG .", "On DATE the detention of the applicant and CARDINAL co - accused was further extended . ORG stated that the trial had not yet started and that the accused had not been heard ; thus their detention was necessary to secure the proper course of the proceedings .", "The first hearing was held on DATE . Subsequently , the trial court held hearings in DATE , DATE .", "On DATE , CARDINAL DATE and DATE the trial court extended the applicant ’s detention . In each decision the courts stated that the grounds for the applicant ’s detention were still valid and pointed to the necessity of obtaining an expert opinon in respect of CARDINAL of the witnesses .", "A request by the applicant to be released from detention was refused by ORG on DATE . The court based its decision on identical grounds to those given on the CARDINAL previous occasions .", "On DATE the ORG decided to release the applicant and the co - accused from pre - trial detention .", "On DATE the ORG dismissed an appeal by the prosecutor and upheld the decision to release the applicant . The court stated that , for reasons beyond the control of the trial court , it had not been possible to conclude the trial . Moreover , keeping the applicant in detention was no longer absolutely necessary in order to secure the proper course of the proceedings .", "The proceedings are still pending before the trial court .", "The relevant domestic law and practice concerning detention during judicial proceedings ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention , and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is an NORP national , born in DATE and living in GPE .", "A.", "G.S and GPE were the owners of an apartment in GPE , which they had let to GPE", "In a writ served on the tenant on DATE they communicated their intention to terminate the lease and summoned him to appear before the Florence Magistrate .", "By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC must be vacated by DATE . Enforcement proceedings were subsequently started .", "On DATE , the applicant became the owner of the apartment .", "On DATE , a notice was served on the tenant requiring him to vacate the premises .", "On DATE , a notice was served on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .", "DATE and DATE , the bailiff made CARDINAL attempts to recover possession , on DATE , DATE , DATE and DATE , but to no avail , as the applicant was never granted the assistance of the police enforcing the order for possession .", "In the meantime , on DATE , the applicant had made a statutory declaration that he urgently required the premises as accommodation for himself .", "On DATE , the applicant and the tenant reached an agreement , as a result of which , on DATE , the tenant vacated the LOC .", "B. Relevant domestic law", "The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national of GPE ethnic origin . He was born in DATE and lives in LOC . He was represented before the Court by Mr A. Dobrushi of ORG in GPE and Mr C. Igboanusi of ORG in GPE .", "On DATE CARDINAL ORG officers brought the applicant to their LOC at the LOC railway station for the alleged purpose of checking his identity papers . On the way to the police station the officers insulted the applicant with racist remarks and CARDINAL of them hit him across the face .", "During the interrogation at the police station CARDINAL officer kicked the applicant in the head , slapped him across the face , and while the applicant was on the floor , the officers kicked him repeatedly in the chest . The officers stole CARDINAL NORP korunas ( SKK ) from the applicant .", "The applicant suffered a number of injuries including severe injuries to CARDINAL kidney , contusion of his chest and face and a broken rib . He had to be treated and remained incapable to work for DATE after the incident .", "On DATE the applicant tried to file a complaint , but the Railway Police officers at the Zvolen refused to accept it . On DATE the applicant filed a complaint with ORG in Zvolen . The latter transferred the complaint to ORG in Zvolen . He also informed ORG at ORG ’s regional office in LOC of the police ORG refusal to receive the applicant ’s complaint on DATE .", "On DATE a ORG investigator informed the applicant that the matter was being treated as an internal disciplinary investigation as there was no indication that an offence had been committed . In reply to the applicant ’s complaint , the public prosecutor ordered ORG to start criminal proceedings against CARDINAL officers for abuse of authority .", "On DATE ORG in Zvolen issued a summary penal order in which it convicted CARDINAL ORG officer of abuse of authority and of causing intentional bodily harm while carrying out his duties . The court imposed a fine of SKK CARDINAL,CARDINAL ( the equivalent of MONEY ) on the convicted officer and ordered the latter to pay SKK CARDINAL in damages to the applicant . The applicant was referred to a civil court with the remainder of his claim for damages . The other CARDINAL railway officers involved had not been charged with any offence . In accordance with the relevant provisions of LAW , the penal order was issued by a single judge without any prior hearing . It contained a notice about the remedies available the relevant part of which reads as follows :", "“ The accused or other persons entitled to do so on his behalf , the public prosecutor and the injured person to whom compensation for damage was granted can file an objection to the penal order within DATE from its service . Upon filing of an objection , the penal order shall be quashed and a main hearing shall be held in the case .", "The injured person can file an objection to the operative part [ of the penal order ] by which compensation for damage was granted to him ...", "If no objection is filed within the period fixed for that purpose , the penal order shall become final and enforceable . ”", "On DATE the applicant challenged the penal order by means of a submission entitled an “ appeal ” . He argued , inter alia , that he had been injured by CARDINAL officers and that a sum of money had been stolen from him .", "The relevant part of the penal order which concerned the conviction of the accused and the sentence imposed on him became final on DATE . ORG did not notify the applicant of this fact of its own initiative as this was not required by the law .", "In a letter dated DATE the ORG judge informed the applicant that he had no right to file an appeal as regards the court ’s finding as to the guilt of the accused police officer and as regards the sentence imposed .", "On DATE ORG delivered a decision in which it referred the applicant to a civil court with his claim for damages . Reference was made to Article CARDINAL ) of LAW .", "On DATE the applicant filed a complaint to ORG . He alleged that by its above conduct ORG in Zvolen had violated his rights under LAW . On DATE the applicant extended his complaint in that he also alleged a violation of Articles CARDINAL and CARDINAL § CARDINAL of the Convention , of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment and of LAW . He requested that the penal order should be quashed and ORG in Zvolen ordered to proceed with the case .", "ORG dismissed the complaint on DATE as having been filed outside the statutory DATE time - limit . The decision referred to section CARDINAL(CARDINAL ) of LAW .", "ORG noted that the applicant did not allege that the penal order issued by ORG in Zvolen had not been served on him . The penal order clearly indicated which remedies the applicant could use against it and , accordingly , it was evident from it that under the relevant law the applicant lacked standing to challenge the decision as to culpability of the accused and as to the sentence imposed on the latter . The applicant should have sought protection of his fundamental rights within DATE from the final effect of the penal order .", "Article CARDINAL of the LAW , as in effect from DATE , provides as follows :", "“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .", "When ORG finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order [ the authority ] which violated the rights or freedoms in question to take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order the authority concerned to abstain from violating fundamental rights and freedoms ... or , where appropriate , order those who violated the rights or freedoms set out in paragraph CARDINAL to restore the situation existing prior to the violation .", "NORP In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...", "Section CARDINAL(CARDINAL ) of LAW provides that a constitutional complaint can be filed within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given . As regards the measures and other interferences , the above period commences when the complainant could have become aware of them .", "Pursuant to LAW , a single judge can issue a penal order , without a hearing , where the evidence obtained permits the establishment of the relevant facts in a reliable manner .", "Paragraph CARDINAL of Section CARDINAL(e ) provides that a penal order is , by its nature , equivalent to a judgment by which a person has been convicted .", "Pursuant to LAW , the accused person , other persons entitled to do so on his or her behalf as well as the public prosecutor can file an objection to a penal order within DATE from its service .", "Paragraph CARDINAL of Article CARDINAL g provides that an injured person can file an objection to the relevant part of a penal order by which compensation for damage was granted to him or her . Where the injured person files an objection , the part of the penal order which concerns compensation for damage is to be quashed . In such a case a single judge of the criminal court shall deliver a decision referring the injured person with his or her claim for damages to a civil court .", "Under paragraph CARDINAL of LAW , where a person entitled to do so files an objection to a penal order , a single judge shall hold a main hearing in the case . Otherwise the penal order becomes final and enforceable .", "Pursuant to LAW , a penal order becomes final and enforceable when no objection has been filed to it within the time - limit set for that purpose .", "Regulation CARDINAL/CARDINAL , as amended , governs the internal rules of ORG including the organisation of their work .", "Pursuant to section DATE , as soon as it is established that a judicial decision has become final , the judge or another person authorised to do so shall indicate this fact and the date of its final effect on the decision included in the case file .", "Section CARDINAL provides that , at the request of a person who has been served with a decision prior to its final effect , the court shall put a stamp on that decision indicating when it became final and enforceable ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr GPE , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On an unspecified date a preliminary investigation for robbery was opened against the applicant . He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on CARDINAL and CARDINAL DATE . On an unspecified date the preliminary investigation was suspended .", "The preliminary investigation was resumed on DATE and then again suspended on DATE .", "The preliminary investigation against the applicant was again resumed on DATE . On an unspecified date in DATE it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator .", "The applicant was never formally charged with an offence .", "In the course of the search of the applicant 's apartment on CARDINAL and CARDINAL DATE the investigating authorities seized various items , such as a helm , an electric sander , a car radio , a stereo , QUANTITY turbot fishing nets , CARDINAL goby fishing nets , CARDINAL bluefish and shad fishing nets , CARDINAL fishing hooks , a car battery , CARDINAL life jackets , a leather bag , CARDINAL signal rockets and a reversible boat coupling . According to the applicant the items were either new or of high quality . The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant .", "On the instructions of the GPE district public prosecutor 's office of an unspecified date part of the seized items were returned to CARDINAL individuals who had reported them stolen and from whom they had apparently been stolen . The items were returned to their owners only after the authorities had verified the owners ' claims on the basis of ownership documents and identification checks . The said transfers were effected on DATE , CARDINAL and DATE and DATE .", "On DATE the ORG regional public prosecutor 's office invited the applicant to receive the remainder of the items in their possession . He refused to accept them as he claimed that most of the items were either missing , had been replaced with similar such of lower quality or had become unusable for their intended purpose .", "On DATE ORG invited the applicant to receive the helm . It is unclear whether he did so .", "On an unspecified date in DATE the applicant initiated an action for damages under LAW ( CARDINAL ) of ORG to LAW of DATE ( renamed on DATE to the ORG and ORG : “ the ORG ” ) .", "The applicant sought compensation in the amount of CARDINAL NORP levs ( MONEY ) for the missing , lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated . The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment , the preliminary investigation against him should also be considered to have been unlawful and subject to compensation , including , in particular , the damage resulting from the conducted search and seizure of his possessions .", "In a judgment of CARDINAL DATE ORG found that the applicant had no right of action under the ORG against the authorities because he had never been indicted for an offence and , therefore , no liability arose for the investigation and the prosecution authorities under LAW .", "The applicant appealed against this judgment on DATE arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him , such as the search and seizure of his possessions .", "In a judgment of DATE ORG found against the applicant and upheld the lower court 's findings that he had no right of action under the ORG because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in LAW .", "On DATE the applicant filed a cassation appeal against the judgment of ORG . He argued that the ORG 's liability under LAW arose from the fact that there had been a preliminary investigation against him for robbery , subsequently discontinued , which amounted to having been subjected to unlawful criminal proceedings .", "In a final judgment of DATE ORG found against the applicant and upheld the lower courts ' judgments . It also found that the applicant had no right of action under the ORG because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in LAW . In so far as the applicant had never been charged , but had only been questioned as a suspect and then as a witness , the court found that no liability arose for the authorities in question . Moreover , ORG noted that the investigation and the prosecution authorities could also not be held liable under LAW for any of their actions or inactions related to the safekeeping of the seized items .", "The relevant domestic law and practice have been summarised in the judgments in the cases of GPE and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and Atanasov and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON . He was the sole shareholder in a company , which was in the process of being wound up from DATE .", "NORP In DATE the official receiver of the company requested the applicant to hand over to him all the assets of the company . The applicant who was in possession of shares in a housing company refused to deliver those shares .", "The applicant instituted civil proceedings before ORG ( käräjäoikeus , tingsrätten ) of PERSON against the company and requested the court to confirm that the shares were owned by him and that he was under no obligation to hand them over . On DATE ORG held , however , that the shares belonged to the company and ordered him to hand them over to the official receiver . On DATE the judgment was upheld by ORG ( hovioikeus , hovrätten ) . On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .", "In DATE the applicant lodged an extraordinary appeal . In DATE and DATE he lodged further annulment applications relating to the ownership of the shares and other issues arising out of the winding up of his company . Those applications were all dismissed as ill - founded by ORG on DATE and CARDINAL DATE respectively . Furthermore , his extraordinary appeal of CARDINAL DATE was dismissed by ORG on DATE .", "Meanwhile , the official receiver requested the bailiff to seize the shares from the applicant . On DATE an attempt to this effect failed the applicant having argued that he held the shares by way of guarantee and refused to inform the bailiff about the PERSON whereabouts .", "On DATE the company requested that the police investigate whether the applicant had committed an offence by refusing inter alia to provide information about the whereabouts of the shares . On DATE and on CARDINAL DATE the police unsuccessfully carried out searches of his apartment . On DATE he was questioned . He told the police that he had lodged , in DATE and DATE respectively , applications for an annulment of the winding up order and the final decision in the ownership proceedings . He had also lodged a complaint with the Chancellor of ORG ( valtioneuvoston oikeuskansleri , justitiekanslern vid statsrådet ) . Further , he stated that he was not going to provide any information until the resolution of those complaints . It appears that the pre - trial investigation was completed on DATE .", "NORP The official receiver requested that ORG ( lääninhallitus , länsstyrelsen ) of PERSON order the applicant to move out of the apartment in the housing company as the shares in question belonged to the company . On DATE it issued an order to that effect . On CARDINAL DATE ORG rejected the applicant ’s appeal .", "On DATE a local public prosecutor decided not to bring charges for a debtor ’s fraud allegedly committed on CARDINAL DATE . He found that it had not been sufficiently evidenced that the applicant had knowledge of the PERSON whereabouts . The company lodged a complaint with the Chancellor of ORG , who on CARDINAL DATE gave instructions that a new pre - trial investigation be carried out . The official receiver and the applicant were questioned by the police on DATE and CARDINAL DATE respectively and it appears that the pre - trial investigation was completed on DATE .", "On DATE the official receiver requested that ORG declare the shares null and void as their lawful owner , the company , had not received them from the applicant despite numerous attempts . On DATE ORG refused the company ’s request since the applicant had appeared at ORG on DATE and produced the shares without handing them over and since , according to NORP law , only shares which had gone missing could be declared null and void .", "Meanwhile , on DATE the then ORG ( lääninsyyttäjä , länsåklagaren ) charged the applicant with aggravated embezzlement committed on DATE when he had become aware of ORG judgment of DATE . ORG assigned the case to another local public prosecutor . On DATE the summons was served upon the applicant .", "ORG held QUANTITY hearings , on DATE , on DATE and on DATE .", "In its judgment of DATE ORG acquitted the applicant . It noted that the ownership of the shares had been finally decided by ORG relevant decision of CARDINAL DATE , that the applicant had admitted that the shares were in his possession and that he had failed to prove that he had a right to withhold them from the official receiver on the basis of a contract of guarantee , or any other document . However , the embezzlement could not be regarded as an aggravated one and , as the charges for a “ normal ” embezzlement should have been brought within DATE of the date on which the offence had taken place , the relevant time limit had elapsed and the charges were time barred . The applicant was , however , ordered to pay MONEY ( ORG ; CARDINAL ( ORG ) ) in compensation for pecuniary damage , and LAW ( some EUR CARDINAL,CARDINAL ) in compensation for the company ’s legal costs .", "The parties appealed . On DATE , having found that the company had failed to request a court order according to which a conditional fine would have been imposed had the applicant refused to hand over the shares to the company , ORG ( hovioikeus , hovrätten ) altered ORG judgment and rejected the company ’s claims . The judgment was not unanimous .", "Only the company requested leave to appeal . On DATE ORG granted leave to appeal . The applicant lodged an extraordinary appeal against the decision , arguing that the Supreme Court Judges X and T had been disqualified from deciding the leave to appeal matter , but this was dismissed by ORG on DATE .", "At the oral hearing in ORG on DATE , the applicant argued that ORG and P were biased as they had been involved in the decision - making concerning some extraordinary appeal proceedings in the applicant ’s previous cases before ORG . The objection was dismissed by ORG as the cases referred to by the applicant had not concerned the same issues as the present proceedings .", "NORP In its judgment of CARDINAL DATE ORG convicted the applicant of aggravated embezzlement and sentenced him to a suspended term of CARDINAL months’ imprisonment . He was also ordered to pay the company ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in compensation for the latter ’s pecuniary damage . Having first found the official receiver competent to act on behalf of the company in the proceedings , and having rejected the applicant ’s argument according to which the company ’s compensation claim for pecuniary damage had been submitted after the relevant time limit had elapsed , ORG found him guilty as charged . It considered that he had failed to prove that he had any lawful right to refuse to hand the shares over to the official receiver . As the company had been prevented from selling the shares because of his resistance , it had suffered financial loss in the form of lost interest it would have earned from the sales price had the shares been sold in DATE for the sales price of ORG CARDINAL ( some EUR CARDINAL ) which was the estimated sales price at the relevant time .", "On DATE ORG refused the applicant ’s request to re - open the criminal proceedings . Meanwhile , on DATE , he complained about the ORG criminal proceedings to ORG . It is not known whether the complaint is still pending before the ORG ." ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant was born in DATE . At the time the application was lodged he lived in Lörrach in GPE . He is currently residing in GPE .", "NORP In DATE the applicant , aged DATE , entered NORP territory in order to live there with his parents and his brother . He attended secondary school until DATE . In DATE the applicant married a NORP national in GPE . In DATE a son was born to the couple . On DATE the competent authorities granted the applicant a permanent residence permit . In DATE the applicant ’s wife and son followed him to GPE . In DATE , DATE and DATE CARDINAL further sons were born to the couple . CARDINAL of the children has a learning handicap . The applicant ’s wife is in possession of a permanent residence permit ; all family members are NORP nationals .", "In DATE the applicant – in view of previous convictions DATE was warned and informed that he would face expulsion if he committed further criminal offences ( ausländerrechtliche GPE ) .", "On DATE ORG ( ORG ) convicted the applicant of insulting behaviour and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .", "On DATE ORG convicted the applicant of negligent drunken driving ( fahrlässige PERSON ) and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .", "On DATE ORG convicted the applicant of inflicting bodily harm and of obstructing public officers in the execution of their duties and ordered him to pay DATE rates of DEM CARDINAL .", "On DATE ORG convicted the applicant of reckless driving LOC ) and sentenced him to CARDINAL months’ imprisonment , suspended on probation .", "On DATE ORG convicted the applicant of inflicting bodily harm and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .", "On DATE ORG convicted the applicant of negligent drunken driving and sentenced him to CARDINAL months’ imprisonment , suspended on probation .", "On DATE ORG convicted the applicant of drunken driving in conjunction with driving without a driving license and sentenced him to CARDINAL months’ imprisonment .", "On DATE ORG ( Landgericht ) rejected the applicant ’s appeal in which he had asked that the execution of his sentence be suspended on probation . According to ORG , the applicant ’s numerous convictions did not seem to have served as warnings not to commit further criminal offences , having particular regard to the fact that the applicant had committed his last offence DATE after his previous conviction had acquired legal effect .", "On DATE the applicant was arrested and imprisoned . As his last offence had been committed while he was still on probation after the decision of ORG of DATE , the suspension on probation was revoked and the applicant was imprisoned for DATE .", "On DATE ORG convicted the applicant of recklessly placing himself in a state of total intoxication ( fahrlässiger PERSON ) and sentenced him to a fine of CARDINAL DATE rates .", "On DATE ORG ( Regierungspräsidium ) ordered the applicant ’s expulsion to GPE or to another ORG willing to accept him . Applying sections CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , see relevant domestic law below ) , it noted the applicant ’s repeated criminal convictions , in particular those for traffic offences . ORG found that the applicant ’s criminal conduct had caused a serious threat for public safety . It further considered that there was a risk that he would commit similar offences in the future , as neither his previous convictions nor several warnings by the ORG authorities had deterred him from committing further offences . Moreover , the applicant had not solved his alcohol problem , but had dropped out of therapy . ORG further argued that the applicant , on account of his age , would manage his integration in GPE . His family could be reasonably expected to follow him as his children could be assumed to have sufficient knowledge of the NORP culture and language . Exercising its discretion and with regard to LAW found that the public interest in the applicant ’s expulsion outweighed his own and his family ’s interests , given the seriousness of the threat which he posed to public road traffic .", "On DATE ORG rejected the applicant ’s objection .", "On DATE ORG ( Verwaltungsgericht ) refused to grant the applicant an interim order against his expulsion and confirmed the reasoning of ORG . It found that ORG decision was likely to be upheld in the main proceedings . The CARDINAL traffic offences committed by the applicant since DATE , taken together with his further criminal convictions , constituted a serious reason justifying expulsion . ORG found , in particular , that the applicant ’s offences could not be regarded as being of a minor nature , taking into account the high importance of the safety of road traffic within society . The court further confirmed that there was a danger of recidivism , because the applicant had not proved that he had overcome his alcohol problem . It finally found that ORG duly considered the applicant ’s family situation . Having regard to the considerable danger the applicant posed for other road users and to the fact that his family could live with him in GPE , the expulsion did not violate the applicant ’s right to the enjoyment of his family life as guaranteed by LAW by LAW .", "On DATE ORG confirmed the expulsion order , referring mainly to its reasoning in the decision of DATE .", "On DATE the applicant requested to be granted leave to appeal , arguing , in particular , that the expulsion violated his rights under LAW .", "On CARDINAL DATE the Baden - ORG ( ORG ) refused to grant the applicant leave to appeal , confirming that there was no apparent violation of LAW . ORG found , in particular , that the applicant ’s family could be reasonably expected to follow him to GPE , as they could be assumed to have sufficient knowledge of the NORP language . This decision was served on the applicant ’s counsel on DATE .", "NORP By letter and fax dated DATE the applicant , represented by counsel , lodged a constitutional complaint , in which he gave a complete account of the proceedings before the domestic authorities and complained that his expulsion would violate his right to respect for his family life as guaranteed by LAW .", "NORP By letter of DATE ORG acknowledged receipt of the applicant ’s complaint and attachments on DATE by fax and on DATE by mail .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication , without giving any further reasons . This decision was served on the applicant ’s counsel on DATE .", "On CARDINAL DATE the applicant was deported to GPE . On DATE he re - entered NORP territory and filed a request to be granted asylum .", "According to the ORG ’s submissions , by penal order of CARDINAL DATE ORG sentenced the applicant to a fine of CARDINAL DATE rates for having driven without a license on DATE .", "On DATE the applicant filed a request to set a time - limit on the effects of his expulsion .", "On DATE ORG informed him that the proceedings had been suspended pending proceedings on his asylum request .", "On DATE , his asylum request having been rejected , an attempt to deport the applicant failed because the latter had gone into hiding . On DATE the applicant was arrested and placed in detention pending his deportation . He was once again deported to GPE on DATE .", "On DATE the applicant filed a second request to set a time - limit on the effects of his deportation of CARDINAL DATE . On DATE ORG requested the applicant to submit a confirmation of registration with the NORP authorities and an extract from the NORP criminal records register . He was further informed about the costs of the QUANTITY deportations ( approximately ORG CARDINAL,CARDINAL ) . No decision has so far been given on the applicant ’s request .", "The relevant provisions of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) read as follows :", "“ Applications for the institution of proceedings must be submitted in writing to ORG . The reasons must be stated ... ”", "“ ( CARDINAL ) Any person who claims that CARDINAL of his basic rights ... has been violated by public authority may lodge a constitutional complaint with ORG . ”", "“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”", "“ A constitutional complaint shall be lodged and substantiated within DATE . This time - limit shall commence with the service or informal notification of the complete decision ... ”", "“ ( CARDINAL ) A constitutional complaint shall require acceptance for adjudication .", "It shall be accepted", "( a ) insofar as it is of fundamental constitutional significance ,", "( b ) if this is necessary in order to assert the right referred to in LAW ... ”", "According to the case - law of ORG , an applicant has not only to name the right which has allegedly been violated , but also to present the proceedings which led to this violation in a substantiated and conclusive way ( schlüssig und substantiiert ) , in order to comply with the above - mentioned provisions . This means that the applicant has to establish a link between the impugned decision and the alleged violation of his rights under LAW .", "The rights of entry and residence for foreigners were , at the relevant time , governed by LAW ) , the relevant provision of which reads as follows :", "“ An alien shall generally ( in der PERSON ) be expelled if he has been sentenced ... to imprisonment in respect of CARDINAL or more intentionally committed criminal offences and the execution of the sentence has not been suspended on probation ... ”", "If the alien entered the NORP territory as a minor and was in possession of a permanent residence permit , he may only be expelled if serious reasons of public safety and order justify his expulsion ( section CARDINAL § CARDINAL No . CARDINAL ) .", "Section CARDINAL provides that the domestic authorities , when deciding on an alien ’s expulsion , shall , inter alia , accord due consideration to the duration of the person ’s lawful residence , his personal , economic and other ties to the NORP territory and to the consequences of the expulsion for the alien ’s family members who are legally residing with him .", "According to section CARDINAL § CARDINAL , an alien who has been expelled is not permitted to re - enter NORP territory . This effect shall usually ( in der PERSON ) be limited in time upon application . The time - limit shall commence with the alien ’s departure from NORP territory ." ]

[ "8" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in FAC , GPE .", "On an unspecified date he arrived in GPE . He married GPE , a NORP national , on DATE . They initially lived in PERSON , but on DATE they moved to GPE . Their CARDINAL children were born in DATE and DATE respectively . The applicant is an artist and runs a small business in GPE which provides the only support for the family .", "On DATE a certain PERSON , an administrator of the building in which the applicant 's wife had a flat , brought a private prosecution against the applicant for slander ( zniewaga ) under LAW . He alleged that the applicant had addressed him in obscene language in LANGUAGE . Subsequently , the private prosecution proceedings were commenced in the Kraków – Śródmieście District Court .", "It appears that following the applicant 's departure for GPE the court sent him summonses in connection with the private prosecution but received no response .", "On DATE ORG ordered that the applicant be remanded in custody for DATE . It further ordered that a wanted notice ( list gończy ) be issued with a view to locating and detaining him . It invoked , inter alia , Articles CARDINAL § CARDINAL(CARDINAL ) and CARDINAL § CARDINAL of the Code of Criminal Procedure ( hereinafter “ the ORG ” ) .", "ORG held as follows :", "“ The accused PERSON has no permanent abode in GPE , [ and ] does not reside in any place known to the court , and is thus obstructing the proper conduct of the proceedings in the present case and the delivery of a proper judgment within a reasonable time . The need to issue a detention order in respect of the accused is required to secure the proper conduct of the proceedings .", "Given that the accused PERSON is evading justice he should be sought by means of a wanted notice . ”", "The court ordered the police to execute that decision and to serve a copy of it on the applicant immediately after his arrest and to inform him that he could appeal . The information that a wanted notice had been issued in respect of the applicant was subsequently entered in a central criminal register .", "On DATE ORG stayed the proceedings against the applicant on the ground that his whereabouts were unknown .", "At DATE the applicant and his family went on holiday to PERSON . At an unspecified time on TIME DATE they arrived at the GPE border check - point on their journey back to GPE by car . During a routine passport check the applicant was asked to get out of his car by the border guard officers .", "The applicant was arrested at TIME on the basis of the detention order and the wanted notice issued on DATE . He was questioned by the officers but could not understand anything they said and refused to sign any documents . In his submissions to ORG , he said that various requests he made through his wife , such as to be allowed to contact ORG or his family and to be provided with an interpreter or a lawyer , were refused . After TIME he was informed that he was being arrested but was not told why . He was detained at the ORG detention centre .", "While the applicant was being questioned his wife and their CARDINAL children , the first aged DATE at the time , had to stay in the car with the engine on as the temperature outside was -CARDINALoC.", "On DATE the applicant 's wife engaged counsel to represent the applicant .", "On DATE the Director of ORG notified PERSON that the applicant had been transferred there and had been detained on the basis of the detention order of DATE .", "On DATE the applicant 's counsel filed an application with PERSON for the applicant 's release and requested that his detention be replaced by other , less restrictive , preventive measures . She also appealed against the detention order issued on DATE .", "She submitted that the applicant was a NORP national who permanently resided in GPE and that he and his wife had left GPE on DATE . Following the applicant 's departure ORG had sent summonses for the applicant to his wife 's address and to another address where the applicant had never lived with the result that the applicant had not known about the criminal proceedings against him and had not been served with the private bill of indictment . Nor had he been informed of his rights and obligations as an accused .", "Counsel further submitted that ORG had erroneously found that there were reasonable grounds for suspicion that the applicant had slandered PERSON In any event , the alleged offence only carried a fine or a penalty of restriction of liberty ( such as a community service order ) but not a custodial sentence . Lastly , counsel referred to the very difficult situation of the applicant 's family , who were entirely dependent on him .", "On DATE the Kraków – Śródmieście District Court resumed the private prosecution proceedings against the applicant , noting that his abode had been established . On the same date it quashed the detention order of DATE and replaced it with a ban on leaving the country and ordered the applicant to surrender his passport .", "ORG held as follows :", "“ The accused PERSON was detained on remand on the basis of a detention order issued by this court . Counsel for the accused requested the court to replace the preventive measure imposed on him with a non - custodial one . Counsel in her application argued that the evidence obtained in the case had not sufficiently justified the reasonable suspicion that the applicant had committed slander ; in addition , she submitted that the applicant had not been evading justice and that his failure to appear before the court had not been intentional .", "The court has found the arguments raised by counsel to be compelling .", "In these circumstances , in the court 's view the detention on remand should be replaced with other measures , namely a ban on leaving the country together with seizure of his passport . That measure will adequately secure the proper conduct of the proceedings ... ” .", "ORG further ordered that the private bill of indictment , the decision to release the applicant and the summons to appear before the court be translated into NORP and served on the applicant and that a copy of its decision be served on ORG director together with an order to release the applicant .", "On DATE ( a DATE ) the ORG clerk sent by facsimile the court order to release the applicant to ORG . However , ORG refused to accept the facsimile and informed the court registry that it required original documents before it could release the applicant . Consequently , on DATE ORG ordered the dispatch of the relevant documents by courier service .", "The applicant was released from detention in TIME of CARDINAL DATE ( a DATE ) . Upon his release he received copies of the CARDINAL documents translated into LANGUAGE . The applicant submitted that it was only then that he learnt for the first time that he had been accused of slandering B.M ..", "On an unspecified date the applicant 's counsel requested ORG to lift the preventive measures imposed on the applicant pursuant to the decision of DATE and to replace them with a guarantee of the applicant 's appearance given by the President of PERSON .", "On DATE the Kraków – Śródmieście District Court granted that application . It considered that it was appropriate to quash the preventive measures given that the applicant ran his own business in GPE and supported his family exclusively from the income he received from it . It further considered that the guarantee offered would secure the applicant 's appearance and the proper conduct of the proceedings .", "It appears that the applicant and his family returned to GPE on DATE .", "On DATE a local MP from PERSON , Mr PERSON wrote a letter to the President of ORG requesting explanations for the applicant 's arrest and detention .", "In a letter dated DATE , the President of ORG informed the MP that the applicant 's case had been thoroughly considered and had been placed under the Vice - President of ORG administrative supervision . The President stated that the principal error committed by ORG in respect of the applicant 's detention order was the unfounded assumption that the applicant had been evading justice and maliciously failing to comply with the court summons in a case in which he had not been previously heard and in which he had not been notified of his obligations as an accused pursuant to LAW ORG , or served with a private bill of indictment ( LAW ORG ) . The President further noted that the orders to remand the applicant in custody and to issue a wanted notice had been based on that erroneous premise . Lastly , he stated that the lessons to be drawn from the applicant 's case would be used for training purposes .", "On DATE the MP transmitted a copy of the President of ORG reply to the applicant 's wife . He advised the applicant and his wife that they could seek to institute disciplinary proceedings against the judge who had issued the detention order and criminal proceedings for abuse of power . He further advised them that they could seek compensation in the civil courts .", "On DATE the Kraków – ORG delivered judgment and acquitted the applicant . On DATE ORG upheld the first - instance judgment .", "Article CARDINAL of the Code of Criminal Procedure of DATE , which entered into force on DATE , stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights .", "Article CARDINAL provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution . Such appeals must be promptly transmitted to the competent ORG which is required to examine it speedily . In cases where ORG has established that the arrest was unlawful or unwarranted , it must order the immediate release of the person concerned .", "The Code of Criminal Procedure defines detention on remand as one of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , a guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , a guarantee by a social entity ( poręczenie społeczne ) , a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and a ban on leaving the country ( zakaz opuszczania kraju ) .", "Article CARDINAL § CARDINAL sets out the general grounds for the imposition of preventive measures :", "“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , to prevent an accused 's committing another serious offence ; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence . ”", "Article CARDINAL lists the grounds for detention on remand . It provides , in so far as relevant :", "“ CARDINAL . Detention on remand may be imposed if :", "( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;", "( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;", "NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed . ”", "The Code sets out the extent of the courts ' discretion to continue a specific preventive measure . Article CARDINAL reads , in so far as relevant :", "“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”", "Article CARDINAL § CARDINAL reads :", "“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular , if depriving an accused of his liberty would :", "( CARDINAL ) seriously jeopardise his life or health ; or", "( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”", "Article CARDINAL § CARDINAL provides :", "“ Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding DATE . ”", "Article CARDINAL § CARDINAL specifies that the rule provided for in LAW is not applicable when the accused attempts to evade justice or persistently fails to comply with summonses or when his identity can not be established .", "As worded at the relevant time , LAW ORG provided that an accused who was not deprived of his liberty was required to appear whenever he received a summons in the course of criminal proceedings . He was also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting DATE . The accused was to be informed of these obligations when first questioned .", "LAW of LAW , entitled “ Compensation for wrongful conviction , detention on remand or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him .", "Article CARDINAL provides , in so far as relevant :", "“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him .", "...", "Entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand . ”", "Pursuant to LAW , an application for compensation for manifestly wrongful detention on remand has to be lodged within DATE from the date on which the decision terminating the criminal proceedings in question became final .", "Proceedings relating to an application under LAW are subsequent to and independent of the original criminal proceedings in which the detention was ordered . The claimant may retrospectively seek a ruling as to whether his detention was justified . He can not , however , test the lawfulness of his continuing detention on remand and obtain release ." ]

[ "5" ]

[ "5-1", "5-2", "5-3" ]

[]

[]

[]

[]

[ "The applicant is a NORP citizen , born in DATE , and living in GPE , GPE .", "In DATE he bought a property of CARDINAL sq . m , GPE CARDINAL , in the centre of GPE in the municipality of GPE , a suburb QUANTITY south - west of GPE . On the property there is a CARDINAL - family house .", "When the applicant bought the property it was covered by a so - called subdivision plan ( avstyckningsplan ) , adopted in DATE . According to this plan no building could be constructed on a plot of CARDINAL sq . m until sufficient water and sewerage facilities had been provided for . Such facilities appear to have been built at DATE . The property was also covered by an area plan ( områdesplan ) , adopted in DATE , which described the property mainly as a public area containing open spaces , streets and car parking , and by a building prohibition made pursuant to section CARDINAL of LAW ( byggnadslagen ) DATE and issued on CARDINAL DATE .", "The first building prohibition under LAW was issued by ORG ( länsstyrelsen – “ the Board ” ) of GPE as far back as DATE and was valid for DATE . This prohibition was subsequently prolonged by ORG for DATE each time . The last decision was taken on CARDINAL DATE and was valid until DATE . On DATE , with the entry into force of LAW DATE ( Plan- och DATE “ the DATE LAW ) replacing LAW , the existing system for prohibition on construction was abolished and replaced by a possibility for ORG ( byggnadsnämnden ) to defer its decision on an application for a building permit , or a preliminary opinion on an application , for a maximum period of DATE .", "Ever since he bought the property in question the applicant has tried in vain to obtain from the competent authorities a permit to divide his plot and/or to build , in addition to the existing house , more houses on it . On CARDINAL DATE ORG of PERSON stated in a preliminary opinion , requested by the applicant , that it was not prepared to permit the division of his property into smaller plots , referring inter alia to the area plan adopted in DATE ( see paragraph CARDINAL above ) .", "On DATE ORG ( kommunfullmäktige ) adopted a master plan ( generalplan ) relating to part of the municipality of PERSON , according to which the applicant ’s property was earmarked for blocks of flats of CARDINAL storeys . On DATE the ORG stated , in reply to a request from the applicant , that having regard to the master plan it was not prepared to grant him either an exemption from the building prohibition or a permit to build a CARDINAL - family house and a garage on the property . The applicant appealed to the ORG claiming that the building prohibition was invalid . ORG rejected the appeal on DATE , stating inter alia that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of DATE .", "On DATE ORG ( kommunstyrelsen ) adopted an area programme according to which the area in which the applicant ’s property is situated should be used for the construction of multi - family housing in DATE . It also stated that the planning procedure should be given priority . On DATE ORG adopted a building programme to the same effect .", "On DATE ORG stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition . The applicant ’s appeals against this were , as before , unsuccessful .", "On DATE ORG adopted a new area plan covering inter alia the applicant ’s property . This plan mentioned the possibility of using the area for single or multi - family housing development .", "The proceedings and the interference with the applicant ’s enjoyment of his possessions referred to above formed the subject matter of the Allan Jacobsson v. GPE judgment of DATE ( Series A no . CARDINAL ) . In that case the ORG concluded that there had been no violation of LAW CARDINAL . On the other hand , it found that there had been a violation of LAW in that the applicant did not enjoy a right to a court to enable him to challenge the decisions whereby the building prohibitions on his property were maintained in force .", "On DATE , while the above case was pending before the Convention institutions , the applicant requested under LAW ( which had entered into force on DATE ) a preliminary opinion from ORG on whether a permit to build a house on his property could be granted . On CARDINAL DATE ORG decided , however , pursuant to the rules laid down in GPE , to defer its decision on the request for DATE ( see paragraph CARDINAL below ) . It informed the applicant that a building permit could not be expected for the time being .", "On DATE , before the expiry of the above DATE period ORG revoked the detailed development plan ( previously called a subdivision plan ) which had been in force since DATE ( see paragraph CARDINAL above ) .", "Following this decision ORG confirmed , on DATE , its preliminary opinion of CARDINAL DATE rejecting the applicant ’s request for a building permit . In its reasons ORG referred to the need for a new detailed development plan and to the GPE ’s intention to earmark the land for single or multi - family housing development in accordance with the area plan adopted in DATE ( see paragraph CARDINAL above ) . The applicant did not appeal against this decision .", "In the meantime , however , the applicant had lodged an appeal with ORG ( kammarrätten ) of GPE against ORG decision of CARDINAL DATE revoking the DATE plan . On DATE the ORG declined to entertain the appeal on the grounds that , under LAW , ORG was the competent body . Leave to appeal against this decision was refused by ORG ( regeringsrätten ) on DATE .", "Subsequently the applicant lodged an appeal with ORG . He observed that under LAW , section DATE , of GPE , a decision ( on building permission ) could be postponed if work had been initiated to amend , revoke or adopt a plan . However , in the present case , such steps had only been taken DATE before the expiration of the DATE period within which the planning measure should be completed ( see paragraph CARDINAL below ) . Moreover , he maintained that the above - mentioned provision had only authorised alternative measures , not a combination of measures which , as here , consisted of a revocation of a plan in order to amend it or adopt a new plan . By proceeding in this manner , the Municipality had circumvented the legal time - limit for consideration of his request for a building permit . The applicant further pointed out that a revocation should comply with , inter alia , LAW , section CARDINAL , of the DATE Act which requires the authorities to take into consideration both private and public interests ( see paragraph CARDINAL below ) . The applicant invited the ORG to find that the revocation of the detailed development plan was to be considered as a real revocation , not as a method of prolonging the time - limit for deciding on his application for a building permit . In the alternative , he requested that his application be examined without undue delay .", "On DATE the ORG rejected the appeal and upheld the revocation by ORG of the detailed development plan of DATE , giving the following reasons :", "“ The area is covered by a detailed development plan , approved by ORG on DATE . Pursuant to LAW , section CARDINAL , of the DATE LAW for the plan is to be considered as having elapsed .", "In such circumstances the municipality has a strong position in respect of the right to revoke a detailed development plan , something which has been exemplified by the fact that the revocation may be decided without the rights which derived from the plan being taken into consideration ( LAW , section CARDINAL , subsection CARDINAL , of GPE ) . This presupposes that public interests militate in favour of revocation . The existence of such interests has been expressed by the issuing of an area plan for GPE .", "The review of issues under LAW must take into consideration both public and individual interests , unless otherwise has been specifically provided . The above provision is an example thereof . The meaning of this provision is that the person who has obtained a right according to the plan can not rely on it during the examination of whether the plan should be repealed . However , when it comes to examining the contents of a new plan the main rule in LAW , section CARDINAL , concerning the individual ’s interests must obviously be considered , but even in these circumstances it is not required that the rights under the old plan must be respected . As regards the adoption of a new plan , LAW does not constitute an obstacle to the adoption being preceded by a revocation of a detailed development plan . The possible result of an examination of a request for a building permit in respect of a new construction on GPE CARDINAL following revocation of the detailed development plan can not be examined in this case . The applicant ’s submissions in support of his appeal do not provide a reason for refusing the implementation of the decision appealed against . ”", "The applicant appealed against this decision to the ORG , which , on DATE , rejected it on the grounds that they agreed with the assessment made by ORG .", "In accordance with the provisions of LAW ( lag QUANTITY om rättsprövning av vissa förvaltningsbeslut – “ the DATE LAW ) the applicant challenged the ORG ’s decision in ORG . He also requested the court to examine a request for a building permit and to hold an oral hearing .", "The applicant stressed that , according to LAW , section CARDINAL , of GPE , where steps had been taken to draw up , amend or revoke a detailed development plan , ORG could , pending the completion of the planning measure , postpone its decision on a request for a building permit . If the Municipality had not completed the measure within DATE , the request should be decided without delay . It followed from this provision that a prolongation of the said period could not be made by means of revocation of the plan . Moreover , the Municipality had not been free to opt for both revocation and either amendment of the plan or adoption of a new plan . In the applicant ’s view , whilst the plan in question had been revoked with a view to adoption of a new plan , the measure fell to be considered as an amendment of the plan . Since the amendment had not been effected within the DATE time - limit , the Municipality had not been permitted both to amend and revoke the plan . Revocation of the plan was meaningless as LAW , section DATE , did not apply to a detailed development plan the completion of which had not been subjected to any time - limit . Contrary to what the Board and the Government had suggested , LAW , should apply in his case . In view of these considerations , the applicant requested that the ORG ’s decision be quashed and that his application for a building permit be examined without further delay .", "On DATE ORG , without holding an oral hearing , rejected the applicant ’s complaints against the ORG ’s decision . ORG held :", "“ According to section CARDINAL of the [ CARDINAL LAW ] ORG must , at the request of a private party in certain administrative matters dealt with by the ORG or an administrative authority , examine whether the decision is contrary to any legal rule .", "In the present case the examination concerns the ORG ’s decision of DATE . In this decision the ORG rejected an appeal lodged by [ the applicant ] against a decision of ORG of Stockholm to uphold a decision to revoke [ the DATE detailed development plan ] concerning a land area within GPE . This means that ORG can not in the present proceedings examine [ the applicant ’s ] request to be granted a building permit . ORG dismisses [ avvisar ] this request and rejects the request for a public oral hearing .", "As regards the question whether the revocation of [ the DATE plan ] is contrary to any legal provision , it can be established that the plan , according to LAW , section CARDINAL , of GPE , was to be regarded as a detailed development plan with regard to which the implementation period had elapsed . According to LAW , section CARDINAL , of the DATE Act such a plan may be amended or annulled without regard to the rights which may have accrued during the plan ’s existence . The latter provision constitutes an exception to the main rule in LAW , section CARDINAL , of the DATE Act that consideration must be given to both public and private interests when examining issues under LAW ( see Government Bill CARDINAL/CARDINAL:CARDINAL pp . CARDINAL and CARDINAL ) . The facts of the case do not indicate that the revocation of the plan is contrary to LAW , section CARDINAL , or LAW , section CARDINAL , of the DATE Act or to any other provision in the law . The decision is upheld . ”", "The Planning and Building Act which entered into force on DATE contains provisions about the planning of land and water areas as well as building . Their purpose is to promote a development of society characterised by equal and good living conditions for people DATE and for future generations , whilst having due regard to the freedom of the individual ( LAW , section CARDINAL ) .", "The provisions of the DATE Act which have been invoked in the present case read as follows :", "“ Chapter DATE Introductory provisions", "…", "Section CARDINAL . When issues are examined in accordance with this LAW , consideration shall be given to both public and private interests unless otherwise prescribed .", "…", "Chapter DATE Detailed development plans and area regulations", "Section CARDINAL . The examination of the suitability of a site for development and the regulation of manner of design of the area of construction are to be carried out in accordance with a detailed development plan , which applies to", "new continuous developments ;", "ORG new individual buildings , the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites , or where the examination of the proposed building can not be carried out in connection with the review of the application for a building permit or a provisional opinion .", "…", "Section CARDINAL . The detailed development plan shall contain a time - limit for development . This time - limit shall be fixed in such a way that there is a reasonable chance of the plan ’s implementation taking place within CARDINAL and at DATE . ... When the time - limit expires , the plan will continue to be valid until it is amended or annulled .", "…", "Section CARDINAL . Before the expiry of the implementation period a detailed development plan may only be amended or annulled contrary to the wishes of the property owners concerned when this is required as a result of new conditions of great public importance and which could not be foreseen when the plan was drawn up .", "When the implementation period has elapsed , the plan may be amended or annulled without regard to the rights which may have accrued during the plan ’s existence ...", "…", "Chapter CARDINAL – Building permit , demolition permit and site improvement permit", "…", "Section CARDINAL . If authorisation has been requested for the expropriation of a building or land in respect of which a permit has been sought , or if work has been initiated to adopt , amend or annul a detailed development plan , area regulations or property regulation covering the building or land , ORG may postpone its decision regarding the permit until the expropriation issue has been solved or the planning work has been completed . If the municipality has not completed the planning work within DATE from ORG receipt of the application of a permit , the application shall be dealt with without further delay .", "…", "Chapter DATE Transitional provisions", "…", "Section CARDINAL . Town development plans and rural development plans adopted under LAW ( CARDINAL:CARDINAL ) or LAW ( CARDINAL ) , older types of plans and regulations referred to in sections CARDINAL and CARDINAL of the latter act as well as subdivision plans , which are not covered by a directive issued in accordance with section CARDINAL of FAC , shall be regarded as a detailed development plan in accordance with LAW . Subdivision plans , to the extent they are covered by the above - mentioned directives , will cease to be valid with the coming into force of this LAW .", "With regard to town development plans and rural development plans which have been adopted DATE , the implementation period will be considered , in accordance with section CARDINAL , subsection CARDINAL , to be DATE from the date of their gaining legal force . For other plans and regulations , referred to in the first subsection , the implementation period will be regarded as having elapsed .", "Unless otherwise prescribed in a plan or regulation which , according to the first subsection is to be regarded as a detailed development plan in accordance with this LAW , section DATE in FAC ( CARDINAL:CARDINAL ) shall apply as a regulation in the plan . ”", "The Act on Judicial Review of Certain Administrative Decisions DATE was introduced as a result of ORG Rights’ findings in several cases , notably against GPE , that lack of judicial review of certain administrative decisions infringed LAW . It was enacted as a temporary law to remain in force until DATE ; its validity has subsequently been extended , as from DATE without any limitation in time .", "Pursuant to section QUANTITY , a person who has been a party to administrative proceedings before the ORG or another public authority may , in the absence of any other remedy , apply to ORG , as the first and only court , for review of any decisions in the case which involve the exercise of public authority vis - à - vis a private individual . The kinds of administrative decisions covered by the LAW are further defined in LAW , sections CARDINAL , of ORG ( regeringsformen ) , to which section CARDINAL of the DATE LAW . Section CARDINAL of the LAW specifies several types of decisions falling outside its scope , none of which is relevant in the instant case .", "In proceedings brought under LAW , ORG examines whether the contested decision “ conflicts with any legal rule ” ( section DATE CARDINAL Act ) . According to the preparatory work to the LAW , as reproduced in Government PERSON ( pp . CARDINAL–CARDINAL ) , its review of the merits of cases concerns essentially questions of law but may , in so far as relevant for the application of the law , extend also to factual issues ; it must also consider whether there are any procedural errors which may have affected the outcome of the case .", "If ORG finds that the impugned decision is unlawful , it must quash it and , where necessary , refer the case back to the relevant administrative authority .", "The procedure before ORG is governed by LAW DATE ( förvaltningsprocesslagen ) . It is in principle a written procedure , but ORG could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings ( section CARDINAL ) . As from DATE , section CARDINAL ) of the DATE Act provided that in matters of judicial review ORG should hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary ." ]

[]

[]

[]

[ "6" ]

[]

[]

[ "On DATE the applicant , who was then in ORG - lès - FAC serving an DATE sentence for murder imposed by ORG of the Hérault département , lodged a criminal complaint with the senior investigating judge at the GPE tribunal de grande instance against the prison mail officer for breach of the secrecy of correspondence . He also lodged a concomitant application for leave to join the criminal proceedings as a civil party .", "The applicant alleged in his complaint that since being imprisoned in ORG - lès - FAC he had received a number of letters from his lawyers , the judiciary , the prison social services and the prison chaplain that had already been opened , in breach of Articles D. CARDINAL , NORP CARDINAL , D. CARDINAL and PERSON of LAW and LAW .", "In an order of CARDINAL DATE the investigating judge of the GPE tribunal de grande instance ruled that there was no ground for bringing criminal proceedings for breach of the secrecy of correspondence because there was “ insufficient evidence that anyone had committed the offence of breaching the secrecy of correspondence referred to in the complaint ” .", "The applicant appealed against that decision to ORG of ORG . In a judgment of DATE ORG upheld the decision and dismissed the appeal . As to whether the actus reus of the offence had been made out , ORG held that it had for the following reasons :", "“ It should be pointed out in the instant case that while there is general provision for interference by the prison authorities with ORG mail , such interference is formally prohibited by ORG D. CARDINAL , NORP CARDINAL , D. CARDINAL and PERSON of LAW in respect of letters to prisoners from their defence lawyers , from administrative and judicial authorities , from prison chaplains and from social workers belonging to CARDINAL of the departments of ORG .", "The evidence shows that letters falling into the categories referred to above , addressed to PERSON , were opened by the prison staff and that the administrative departments of ORG - lès - FAC admitted opening them since the staff employed in the mail department mentioned opening letters in error owing to the volume of mail received and the use of an electric machine . Furthermore , among the documents filed in evidence were a number of envelopes which had clearly been marked so as not to be censored but had evidently been opened by a machine . Lastly , there is also a letter from the deputy governor of the prison accompanying a letter which had , according to him , been opened in error .", "... ”", "ORG found , however , that although the actus reus of the offence complained of by the applicant had been established , that is to say that letters had been opened , the prison mail department could not be held collectively liable , nor could the officer in charge of it be held individually liable . It upheld the decision that no prosecution should be brought .", "The applicant lodged an appeal on points of law against that judgment . ORG dismissed his appeal in a judgment of CARDINAL DATE , which was served on him on DATE .", "NORP The relevant Articles of LAW provide :", "“ Sealed letters sent from remand prisoners to their defence lawyers and from defence lawyers to remand prisoners are not subject to the censorship referred to in LAW if it can be unequivocally ascertained that such letters are genuinely intended for the defence lawyer or have been sent by him . ”", "“ All prisoners shall be entitled to submit an application or a complaint to the governor of the prison , who shall grant him a hearing if the ground on which he relies is sufficient .", "Any prisoner may request a hearing by the judges and officials responsible for inspecting or visiting the prison , without any member of the prison staff being present . ”", "“ A prisoner or party adversely affected by an administrative decision can apply for it to be referred to the regional director if the decision was made by a prison governor , or to the Minister if it was made by a regional director .", "However , any decision taken pursuant to powers conferred by law , regulations or a ministerial circular shall be immediately enforceable notwithstanding recourse to the remedy provided for above . ”", "“ Prisoners may at any time send letters to the NORP administrative or judicial authorities , a list of which is drawn up by the Minister of Justice .", "Such letters may be sent sealed and are accordingly not subject to any censorship ; they must be dispatched without delay .", "Any prisoner who takes advantage of the above provision to make insulting remarks , threats or defamatory allegations or to repeat unjustified complaints which have already been dismissed shall be liable to a disciplinary penalty , without prejudice to any criminal penalties . ”", "“ Letters to and from prisoners must not be encoded and must not contain any coded sign or character .", "They shall be stopped if they contain specific threats to the security of persons or of prisons . ”", "“ … all ORG incoming and outgoing mail may be read for the purposes of censorship .", "Letters to and from remand prisoners shall also be sent to the judge in charge of the investigation as and when that judge requires .", "Letters which do not comply with the legal requirements may be stopped . ”", "“ Prisoners may always correspond freely in sealed envelopes with the prison chaplain . That right can not be withdrawn as part of any disciplinary penalty . ”", "“ Correspondence between prisoners and social workers belonging to CARDINAL of the departments of ORG may be undertaken freely in sealed envelopes . ”", "DATE , third paragraph , of Circular no . ORG CARDINAL.CARDINAL.GCARDINAL of DATE provides :", "“ If there is doubt as to the source of a sealed letter , it may be opened in the presence of the prisoner if he consents , or , failing that , in the presence of the Chairman of the Bar or of his representative . ”" ]

[ "8" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in PERSON . He describes himself as being of ORG ethnic origin .", "According to his assertions , at TIME on DATE , in foggy weather , the applicant went to a vacant yard in PERSON to intoxicate himself by inhaling liquid bronze , as he did frequently at that time . When he left the yard some time later , CARDINAL police officers saw him and yelled at him to stop . He did not and instead started running . Suddenly he saw a torch in front of him and veered to the left to evade capture . Then he heard shots but kept on running . After a few more steps , he felt a stinging pain in his stomach and fell to the ground . The officers approached and saw that he had a wound on his stomach . CARDINAL of the officers recognised him .", "During the ensuing investigation ( see paragraphs CARDINAL below ) , the CARDINAL officers , sergeants GPE and GPE , stated that they saw the applicant jump over a fence , enter the yard of a Mr GPE , and head towards GPE 's henhouse . After waiting for TIME and making certain that the applicant was trying to steal hens , the officers , both of whom were armed with pistols loaded with live cartridges , intervened . They split up and approached the yard from different directions . When the applicant noticed them , he jumped the fence and started running through empty plots towards the nearby GPE neighbourhood . Despite several warnings , he did not stop . Then CARDINAL of the officers drew his pistol and fired at him with the intention of stopping him . At that moment the applicant was at QUANTITY from the officer and turned sideways . After that he kept on running . The other officer continued the chase , fired twice in the air , and caught up with the applicant QUANTITY from the place where he had been shot . The officer recognised the applicant , noticed that he was intoxicated , and saw a small wound on his stomach , but allegedly did not realise that it had been caused by a bullet .", "NORP The officers immediately took the applicant to a hospital , where he was bandaged and sent home . They did not mention that they had used firearms against the applicant . The doctor who treated him did not realise that his wound had been caused by a firearm . Not long after that the applicant 's condition worsened and TIME he returned to the hospital , where he underwent a fivehour surgical operation . The doctors found that the applicant 's kidney had been ruptured by a bullet which had broken up into CARDINAL pieces , that his liver was damaged and he had been haemorrhaging into the abdominal cavity . The applicant 's kidney and part of his liver had to be removed .", "On DATE GPE police informed ORG about the incident . On DATE that office opened an investigation against the CARDINAL officers .", "On DATE the investigator in charge of the case interviewed the officers , the applicant and his father . On DATE he interviewed the doctor who had treated the applicant immediately after the incident and the person in charge of the hospital ward to which the applicant was later admitted . In their statements , the CARDINAL officers predominantly referred to the applicant as a “ person ” . At CARDINAL point sergeant PERSON said that when they approached the applicant after he had fallen to the ground he saw that he was “ an DATE or nineteen yearold Gypsy ” and that he reckoned that “ the Gypsy had pricked himself on something while running ” .", "NORP The investigator also ordered a medical expert report on the nature and origin of the applicant 's injury . The report concluded that the applicant had been shot from the front and that as a result of the shot he had lost CARDINAL kidney , had suffered a temporarily lifethreatening condition and a wound penetrating the abdominal cavity .", "On DATE the investigator proposed to the prosecuting authorities that the investigation be discontinued , stating that it was impossible to find the bullet which had wounded the applicant , that both officers stated that they had fired into the air and denied the accusation , and that the applicant had been unable to give credible evidence owing to his state of intoxication at the time of the events . In the investigator 's view , these factors made it impossible to ascertain which officer had shot the applicant and therefore to identify the perpetrator .", "On DATE ORG decided to discontinue the investigation , reasoning that “ despite the thorough investigation ” it was impossible to ascertain who had fired the shot which had wounded the applicant . The bullet had not been found and both officers had stated that they had fired in the air .", "On an appeal by the applicant , on DATE ORG set the discontinuance aside . It observed that certain mandatory investigatory steps , such as ordering a ballistics expert report and inspecting the scene of the shooting , had not been taken . Nor had the investigator ordered an expert report on the applicant 's ability to give evidence , in view of his state of intoxication at the time of the incident . The conclusion that it was impossible to ascertain who had fired the shot was illfounded . It was necessary to inspect the scene of the shooting and carry out a reconstruction of the events , and then order fresh medical and ballistic expert reports .", "The case was then assigned to another investigator . In TIME of DATE he carried out a reconstruction of the events in the presence of the applicant , the CARDINAL officers , ballistics and medical experts and a photographer . In TIME he interviewed the CARDINAL officers , the head of their department , the doctor who had examined the applicant immediately after the incident , the head of the surgical ward of the hospital where the applicant had been operated on , and Mr GPE , the owner of the yard adjacent to the place where the applicant was shot . GPE stated that TIME he had seen footprints inside his yard and a broken plank on the wall of his henhouse , and that without the intervention of the police the applicant would certainly have stolen some of his hens . He had stolen CARDINAL hens DATE after recovering from his injuries . In their statements , both officers referred to the applicant as “ the civilian person PERSON or “ LOC .", "A ballistics report ordered by the investigator was ready DATE , DATE . It concluded that the pistols of both officers had been capable of producing the shot which had wounded the applicant . A medical expert report drawn up on DATE concluded that the shot which had wounded the applicant had been fired by sergeant PERSON , and that at the time of the shot the applicant had been standing sideways , with his right shoulder turned towards GPE , at a distance of QUANTITY . The bullet had travelled from front to back and from right to left . A psychiatric report ordered by the investigator concluded that the applicant had been intoxicated , but not heavily , and had been able to control his actions , and was fit to give evidence about the incident .", "Having finished his work on the case , on DATE the investigator proposed discontinuing the investigation . He found , on the basis of ORG 's statement , that the applicant had tried to steal hens from GPE 's henhouse . In his view , sergeant PERSON had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE ORG ( see paragraph CARDINAL below ) and was not criminally liable . The officer had made certain that the applicant was about to commit theft – a publicly prosecutable offence – , had warned him several times to stop , and , in view of the poor visibility and the proximity of the GPE neighbourhood , had reckoned that the applicant might flee .", "On DATE ORG decided to discontinue the investigation , repeating the reasons given by the investigator almost verbatim .", "On DATE ORG confirmed the discontinuance . It briefly reasoned that the officer had lawfully used his weapon , as a means of last resort . Before firing it , he had made certain , as required under LAW ) of LAW ( see paragraph CARDINAL above ) that the applicant was attempting to commit theft . In view of that , of the fact that there was no other way to arrest the applicant , and that the necessary measures under LAW ( see paragraph CARDINAL below ) had not been exceeded , the harm inflicted on the applicant was not unlawful .", "In a final decision of DATE ORG also confirmed the discontinuance . It fully agreed with the prosecuting authorities ' conclusion that the officers ' actions had been in line with section CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It did not mention LAW ( see paragraph CARDINAL below ) .", "Later in DATE the applicant brought a tort claim against sergeant PERSON and the NORP police department . On DATE the ORG dismissed the claim . On DATE ORG upheld its judgment . The applicant 's ensuing appeal on points of law was rejected by ORG on DATE ( реш. № DATE от CARDINAL октомври DATE г. по гр. д. № DATE г. , ORG , GPE г. о. ) . The court held that the shooting had been a result of the applicant 's own actions and his failure to comply with the lawful instructions and actions of the police to stop and arrest him . Sergeant I.S. had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE ORG and the applicant was therefore not entitled to compensation for any resulting harm . The court did not mention LAW ( see paragraph CARDINAL below ) .", "Section CARDINAL of the DATE ORG , as in force at the material time , provided , in so far as relevant :", "“ ( CARDINAL ) The police may use firearms as a means of last resort :", "...", "NORP after giving a warning , to arrest a person who has committed or is committing a publicly prosecutable offence ; ...", "( CARDINAL ) When using firearms the police are under a duty to protect , as far as possible , the life of the person against whom they use force ... ”", "In DATE section CARDINAL(CARDINAL)(CARDINAL ) was amended to specify that the person against whom firearms could be used must also be resisting arrest or trying to escape . The wording of section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Ministry of Internal Affairs Act , currently in force , repeats verbatim that of section CARDINAL ) of LAW , as amended in DATE .", "Article CARDINAL § CARDINAL of the DATE LAW , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .", "Under LAW , as in force until DATE , the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor .", "On DATE that Article was amended to provide for a system of automatic control of the discontinuance : after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor 's office , which could confirm , modify or quash it . If it confirmed the decision , it had to forward the file to the appropriate court , which had to review the matter in private . The court 's decision was final . No provision was made for those concerned to be notified of the discontinuance .", "Following a further amendment of that Article in DATE , the discontinuance of preliminary investigations became subject to judicial review . DATE Code of Criminal Procedure maintained that position , in Article CARDINAL § § DATE ." ]

[ "13", "2" ]

[]

[]

[ "14", "2" ]

[]

[]

[ "The applicants were born in DATE and DATE respectively and were residents of GPE , GPE . The first applicant currently resides in Ingushetia , and the second applicant in LOC .", "The facts surrounding the deaths of the applicants ' relatives and the ensuing investigation were partially disputed . In view of this the ORG requested that the ORG produce copies of the entire investigation files opened in relation to the applicants ' relatives ' deaths . ORG also requested that the applicants produce additional documentary evidence in support of their allegations .", "The submissions of the parties on the facts concerning the circumstances of the applicants ' relatives ' deaths and the ensuing investigations are set out in Sections CARDINAL and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.", "The first applicant lived at FAC in the LOC of Grozny . After DATE the first applicant , who is ethnic PERSON , attempted to sell the house and leave because he felt threatened by the situation in GPE , but could not find anyone to buy it . During the hostilities in DATE the first applicant and his family stayed in FAC , and on their return found that all their property had been destroyed or looted .", "NORP In DATE the first applicant left PERSON because of the renewed hostilities . His relatives decided to stay in PERSON to look after their houses and property . They were his brother , PERSON ( born in DATE ) , his sister PERSON ( born in DATE ) and her CARDINAL sons , PERSON ( born in DATE ) and ORG ( born in DATE ) . The first applicant 's brother lived in the street parallel to FAC , at FAC , and his sister lived in the neighbouring house at CARDINAL FAC .", "The second applicant was a resident of the “ GPE ” DATE in LOC of ORG . In DATE she left the city together with her mother and sister because of the hostilities . Her brother , PERSON ( born in DATE ) remained to look after their property and house , located at CARDINAL FAC .", "NORP In DATE the NORP federal army started an operation to take control of ORG . Heavy fighting lasted until DATE , when the central parts of the city were finally taken . The exact date on which the Staropromyslovskiy district of PERSON was taken by the federal forces is somewhat unclear . The applicants submitted , referring to the Government RIA and PERSON news agencies , that by DATE the LOC was under the NORP federal forces ' firm control . Several witness statements produced by the parties indicate that the federal troops were in control of the district as from DATE . The Government disputed this allegation and referred to CARDINAL witness statements , allegedly contained in criminal investigation file no . DATE which suggest that , although troops were present in the district DATE , they still faced scattered resistance from the NORP fighters ( “ boyeviki ” ) . However , no such testimonies are contained in the copy of the file submitted by the Government to the ORG , nor are they listed in the list of documents attached to the criminal case - file .", "At DATE the applicants learned that their relatives had been killed in PERSON . On DATE the first applicant , his sister PERSON ( maiden name ORG ) , and CARDINAL of their former neighbours from ORG , ORG also spelled PERSON ) PERSON , travelled to PERSON to find out more about the state of their relatives . At CARDINAL FAC they found CARDINAL bodies lying in the courtyard with gunshot wounds and other marks . These were PERSON and ORG , the first applicant 's sister and nephew , and PERSON , the second applicant 's brother . The second applicant 's brother was holding his identity card as Head of ORG of ORG . Other documents were in a shirt pocket : his passport , identity card as researcher for ORG and his driving licence . Identity documents were also found on the CARDINAL other bodies .", "The first applicant and the women had to return to PERSON on DATE , because of the curfew imposed after TIME There they informed the family of PERSON , including the second applicant , of his death . Having arranged for transport , on DATE they went to ORG to collect the bodies . Soldiers from a roadblock in the LOC accompanied them to the house at FAC and helped them to collect the bodies . The first applicant brought the bodies to the village of ORG in Ingushetia , where they were buried on CARDINAL DATE .", "The first applicant submits that the bodies of his relatives bore marks of numerous stab and gunshot wounds and bruises , and that some bones were broken . In particular , the body of PERSON had CARDINAL stab wounds , her arms and legs were broken and teeth were missing . The body of ORG had multiple stab and gunshot wounds , and his jaw was broken ( see § CARDINAL below ) .", "On DATE the second applicant travelled to PERSON and saw the bodies of her brother and of the first applicant 's relatives . She saw numerous gunshot and stab wounds and traces of beatings and torture on the body of her brother and on the other bodies . In particular , she submits that her brother 's body had CARDINAL gunshot wounds to his skull , heart and abdominal area . The left side of his face was bruised and his collar - bone was broken ( see § CARDINAL ) .", "Both applicants submit that they did not contact a medical doctor or take photographs of the bodies at that stage due to the state of shock caused by their relatives ' violent deaths .", "On DATE the village authorities of Psedakh , ORG , issued a certificate to confirm that the body of ORG , brought from LOC of PERSON , was buried on DATE in the village cemetery .", "On DATE the second applicant travelled to ORG . In the courtyard of the house at CARDINAL FAC she picked up machine - gun cartridges and her brother 's hat . On DATE she saw CARDINAL other bodies in a nearby house . All had been shot . She learned that a sixth woman from the same group , PERSON , had been wounded but survived . The second applicant later traced her to ORG . PERSON informed the second applicant that they had been shot at by soldiers and that she had last seen the applicant 's brother alive on TIME DATE .", "On DATE , the first applicant , together with his daughter and sister , travelled to PERSON again , hoping to find his missing brother and nephew . With help from a local resident they found CARDINAL bodies lying between nearby garages . These were the bodies of PERSON and PERSON , the first applicant 's brother and second nephew . The third body belonged to ORG , a neighbour . The first applicant took photographs of the bodies . He then brought a car to transport the bodies to ORG , where they were buried DATE . PERSON 's body was collected by his relatives on QUANTITY DATE for burial .", "The first applicant submits that PERSON body was mutilated , CARDINAL of his skull was smashed and some fingers had been cut off . ORG body was grossly mutilated from numerous gunshots ( see § § CARDINAL and DATE ) .", "On DATE at the first applicant 's request , the CARDINAL bodies were examined by officers of ORG of the Interior , who reported numerous wounds to the head , body and extremities . The examination took place in the LOC town morgue . The officers did not remove the clothes from the bodies , which were frozen .", "The second 's applicant 's mother , ORG , died on DATE at DATE of a heart attack . The second applicant submits that her death was brought about by the news of her only son 's death .", "On DATE ORG in Ingushetia , acting on a motion by the second applicant , certified the death of her brother , PERSON , which had occurred in PERSON on DATE . The court based its decision on statements of the applicant and CARDINAL witnesses . They confirmed that his body had been found in PERSON in the courtyard of the PERSON ' house with numerous gunshot wounds and that he had been buried on DATE in the village of Psedakh . Following the court 's decision , the civil registration office of the LOC district in ORG issued a death certificate for the second applicant 's brother on DATE .", "On DATE the office of ORG issued a paper to the first applicant certifying that on DATE the dead body of his brother , PERSON , had been found in PERSON and that , given the numerous gunshot wounds to the head and body , his brother appeared to have died a violent death .", "On DATE ORG in Ingushetia , at the first applicant 's request , certified the deaths of PERSON , PERSON , ORG and ORG , which had occurred in GPE , GPE , on DATE . The court based its decision on statements by the applicant and CARDINAL witnesses . The court noted in the decision that a criminal case had been opened and that an investigation was in progress ( there is no evidence that a criminal case had been opened at that time ) . Following the court decision , the civil registration office of the LOC district in ORG issued death certificates for the first applicant 's CARDINAL relatives on DATE .", "The Government submitted a copy of investigation file no . DATE , opened on DATE by ORG following a publication entitled “ Freedom or Death ” in the ORG newspaper on CARDINAL DATE about mass murder of civilians by the “ CARDINALth brigade ” in the GPE Katayama settlement in Grozny on DATE . The relevant documents , as submitted by the Government , are listed below in Part B.", "On DATE the military prosecutor of military unit no . CARDINAL ( the NORP federal military headquarters in GPE ) informed the first applicant , in response to a complaint he had made on DATE concerning the killing of his relatives , that , after a review by the prosecutor , no decision to open a criminal investigation had been taken for lack of corpus delicti in the actions of federal servicemen .", "On DATE the ORG informed the first applicant that criminal case no . DATE , opened on CARDINAL DATE into the deaths of GPE and PERSON , had been transferred on DATE to ORG in Ingushetia .", "On DATE the office of ORG , in response to a request by ORG for information regarding the investigation into the second applicant 's brother 's death , forwarded this request to ORG of LOC .", "On DATE the second applicant was informed by a letter from the office of ORG , addressed to the special prosecutor 's office in LOC , that a “ local prosecutor 's office ” was investigating the case of her brother 's death .", "On DATE the Chief Military Prosecutor , in response to an enquiry from ORG about violations of the rights of civilians in ORG in DATE , informed the NGO that the military prosecutors were investigating only CARDINAL case - that of the murder and injury of QUANTITY women – which was unconnected with the applicants . That investigation was still ongoing and was being supervised by the office of ORG .", "In DATE the QUANTITY criminal cases opened at the applicants ' requests were joined in ORG with investigation no . DATE . This investigation was adjourned and reopened several times . The last document in the file submitted by the Government is dated DATE ; in it the Deputy to ORG extended the period of investigation until DATE . The investigation carried out by ORG focused on the version initially submitted by the applicants and by all witnesses whose statements had been produced , alleging that the killings were committed by a military detachment . The investigation failed to identify the detachment which was responsible and no one was charged with the crimes ( see Part B below for a description of the documents in the investigation file ) .", "In DATE the Presidium of ORG in ORG rejected a request for supervisory review ( protest ) by ORG , in which he sought to quash the decision of ORG DATE . Another request for supervisory review was made by the Deputy Chairman of ORG of GPE , and on DATE ORG quashed the decision . ORG referred to LAW of LAW , which states that those who request courts to establish facts of legal significance must indicate the reasons for that request . It found that the second applicant had failed to set out the reasons for which she sought “ legal certification ” of her brother 's death . The case was remitted back to ORG . On DATE the ORG decided not to consider the case on the merits , since the second applicant had twice failed to appear for a hearing without valid reasons . The second applicant submits that she was not informed of the new set of proceedings in ORG and that the summonses were not delivered to her .", "At DATE the first applicant applied to a district court in GPE seeking pecuniary and non - pecuniary damages from ORG . The applicant stated that his CARDINAL relatives had been killed in ORG in DATE by the military . He had found their bodies and had transported them with great difficulty to ORG , where they were buried . A criminal investigation was opened , but failed to establish the servicemen responsible for the killings . Witness PERSON testified to the court that he lived in the LOC not far from the applicant 's family . In DATE , DATE after the federal troops had established firm control over the district , he saw the servicemen leading PERSON and CARDINAL of his nephews towards the garages . They were walking in front of an armoured personnel carrier ( ORG ) ; armed soldiers were sitting on its hull . Soon afterwards he heard automatic rifle shots from the garages . When he attempted to go there , soldiers threatened him . He also submitted that he was threatened by someone from the prosecutor 's office to “ keep his mouth shut ” . Other witnesses testified about the circumstances in which the bodies were discovered in ORG , transported to Ingushetia and buried , and about the state of the bodies prior to burial .", "NORP On DATE ORG in ORG partially granted the first applicant 's claim and awarded him pecuniary and non - pecuniary damages in the amount of MONEY .", "The court noted that it was common knowledge that the LOC district was under the firm control of the NORP federal forces by the material time , and that this did not need to be proved . At that time only federal soldiers were able to travel about town on an ORG and to conduct identity checks . That PERSON and ORG had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands . The court further noted that the exact military unit responsible for the killings had not been established by the investigation , which had been adjourned on DATE . However , all military units were ORG bodies and therefore pecuniary damage should be paid by the ORG .", "The decision was upheld at the final instance by ORG on DATE , and on DATE the applicant was issued the writ of execution . The decision was not executed immediately because , as the ORG submit , the applicant failed to present details of his bank account . On DATE the applicant received the award in full .", "In their submissions on the merits the ORG stated that investigative measures continued in DATE . On DATE the second applicant was recognised as a victim in the criminal proceedings . On DATE additional forensic reports were prepared on the bodies of PERSON and ORG ( presumably , on the basis of the existing descriptions of the bodies ) . Certain additional witnesses were questioned . The Government did not , however , submit copies of these documents to the ORG .", "The Government submit that the investigation into criminal case no . DATE found itself in a “ deadlock ” , since it proved impossible to identify eye - witnesses to the killings .", "The parties submitted numerous documents concerning the investigation into the killings . The main documents of relevance are as follows :", "The Government submitted a copy of the investigation file in criminal case no . DATE , which comprises CARDINAL volumes , and a list of documents contained therein . According to the list , the file contained CARDINAL documents , of which CARDINAL were submitted to the ORG . On DATE the ORG reiterated its request to ORG to submit a copy of the complete investigation file . The Government responded that the documents withheld were not relevant to the circumstances of the present case .", "The most important documents contained in the file are as follows :", "On DATE , following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE , the investigator of ORG opened a criminal investigation under LAW , ( d ) , ( e ) and ( j ) of LAW “ concerning mass murder by the ' CARDINALth brigade ' of civilian population in the GPE Katayama settlement in Grozny on DATE ” .", "The case file contains the first applicant 's brief statements of facts concerning his relatives ' deaths and requests to conduct an investigation , dated DATE ( addressed to ORG ) and of DATE ( addressed to the NORP President ) .", "In their further testimonies dated CARDINAL DATE the first applicant and his sister PERSON ( born ORG ) gave details concerning the discovery of their relatives ' bodies . Both stated that on DATE they had travelled to PERSON with ORG , their neighbour from ORG . On FAC they met a local resident , PERSON , who told them that their relatives had been taken away by federal soldiers . After discovering the CARDINAL bodies at CARDINAL FAC they returned to FAC , where they met a group of soldiers who were taking things from a house and stacking them in a lorry . The first applicant asked the soldiers ' help to remove the bodies , but CARDINAL of them , who introduced himself as the commander , PERSON , who was aged CARDINAL and dressed in camouflage , refused . When the applicant insisted and said that his sister and nephew had been killed , PERSON said that the fighters had killed CARDINAL soldiers and that the murders were an act of revenge on their part . The applicant lost his temper and started to curse , but CARDINAL of the soldiers raised his gun and GPE stepped forward to protect him , then led him away . Both certified that they could have identified the house and “ commander PERSON . They returned to ORG on DATE with a car , removed the bodies with the assistance of soldiers from a nearby roadblock and transported them to ORG .", "GPE further testified that she had washed PERSON body before burial , and had seen numerous ( CARDINAL ) stab and gunshot wounds on her body . Her left arm was broken and front teeth were missing . She further testified that ORG head bore numerous blow marks and that his jaw had been broken .", "The first applicant and his sister also testified about their return to PERSON on DATE . They stated that they again met PERSON , who told them that their relatives had been led away by soldiers towards the garages . They followed his directions and found CARDINAL bodies , all frozen to the ground and with heavy wounds to the head . The first applicant took photographs of the bodies at the spot and went to fetch a car . On DATE they delivered the bodies to ORG , where they were buried the following day , on DATE . They also stated that they had collected cartridges in the yard of CARDINAL FAC which were still in their possession .", "The first applicant 's daughter , PERSON , accompanied her father and aunt on their trip to PERSON on DATE . In her statement of CARDINAL DATE she confirmed their accounts regarding the discovery of the bodies of PERSON , ORG and ORG .", "An examination of the bodies of PERSON and PERSON was conducted by an investigator from ORG in the municipal morgue on DATE . The bodies were frozen , and the examination was conducted without removing the clothes . On DATE CARDINAL forensic reports were prepared by a forensic expert , based on the investigator 's descriptions and without examining the bodies . The report stated that ORG 's body had CARDINAL gunshot wounds and that his death had been caused by a gunshot wound to the head . GPE 's body had CARDINAL gunshot wounds and his death also appeared to have been caused by numerous gunshot wounds to the head and body .", "On DATE and CARDINAL DATE ORG made a report and took photographs of other evidence in the case – identity documents of the deceased persons , photographs of the bodies taken by the first applicant and ORG and PERSON clothes .", "On DATE the first applicant was recognised as a victim in the criminal proceedings and he signed the notification thereof in ORG . On DATE the same notification was signed at ORG .", "On DATE U. and Y. , CARDINAL women residents of the LOC district of PERSON , made statements . Both witnesses confirmed that they had seen the bodies of people who had been shot and that , at the relevant time , the district had been under the control of federal forces . Neither of them had witnessed the executions but referred to the “ rumours ” that the murders had been committed by federal troops . Both witnesses testified that they had seen soldiers looting abandoned houses in the district .", "Two female relatives of ORG , PERSON and PERSON , made statements related to the circumstances surrounding the discovery of the bodies of PERSON , ORG 's mother , on DATE at the intersection of FAC and FAC , and ORG , on DATE . ORG testified that a man from the neighbourhood named PERSON told her that their relatives had been killed by soldiers from the CARDINALth infantry brigade from ORG , and referred to CARDINAL soldiers who had told him the same thing – one named PERSON , the other PERSON . She also testified that on DATE , when they were taking PERSON body to ORG , they took along a wounded woman , PERSON , who had survived an attack by soldiers on DATE and who was later taken to the ORG hospital in GPE .", "Several documents refer to a certain PERSON . , whose family had resided at CARDINAL FAC . From the witnesses ' testimonies it appears that PERSON . left PERSON at DATE , while his parents ( or aunt and uncle ) lived at the said address . They had been killed in DATE by NORP fighters and their house had been occupied . The witnesses referred to “ rumours ” that PERSON . was among the soldiers involved in the killings and that he was motivated by revenge . The house at CARDINAL Neftyanaya was destroyed during the fighting . Several requests for information about PERSON . were sent by the investigators to the military authorities and to the civil authorities of the neighbouring regions , but the answers to these requests were either negative or were not provided by the Government .", "NORP The journalist PERSON , author of the article “ Freedom or Death ” , was questioned on several occasions by the investigators . She testified that in DATE she was in PERSON and in LOC of PERSON , where she had interviewed several witnesses of the massacre and the relatives of the deceased . In their interviews , several witnesses had referred to the “ CARDINALth brigade ” as being responsible for the murders .", "In her statement by DATE , addressed to ORG , the second applicant testified that on DATE her brother 's body had been found in the courtyard of the Khashiyevs ' house by PERSON and his sister GPE . The second applicant saw her brother 's body in ORG and noted several gunshot wounds to his face , heart and abdomen . His left collar - bone was broken . His identity card from ORG had been found in his hand , and his passport and other identity documents and CARDINAL CARDINAL-rouble notes were in his pocket .", "On DATE the second applicant travelled to ORG . In the courtyard at CARDINAL FAC she picked up several cartridges from an automatic weapon and her brother 's hat . On DATE the second applicant saw CARDINAL dead bodies in a nearby garage , belonging to CARDINAL women and QUANTITY men . A sixth person from that group , PERSON , had survived the massacre and later told the applicant , who found her in a hospital in ORG , that they were shot on DATE by soldiers from the CARDINALth brigade from ORG . She also said that she had seen ORG and the PERSON in TIME of DATE and that they were alive . On DATE she was picked up by the Goygovs , who had come to collect their dead , and taken to ORG to a hospital . On DATE the second applicant met with PERSON , who was at the material time living in PERSON , who had heard the members of the military talking in the commendatura of the Staropromyslovskiy district after DATE that they had shot a “ professor ” . PERSON 's story was related in the article “ Freedom or Death ” .", "On DATE the ORG opened a criminal investigation into the killing of the second applicant 's brother . On DATE this investigation was joined with criminal case no . DATE related to the mass murder in LOC . On DATE the deputy ORG created an investigating group , made up of CARDINAL investigators , to work on the case .", "On DATE the headquarters of ORG ( UGA ) of ORG ( based in GPE ) replied to the prosecutor 's request and submitted a list of military units identified by CARDINAL - digit numbers only , which had been deployed in ORG DATE and DATE .", "On DATE an investigator from ORG sent a request to the military prosecutor of military unit no . CARDINAL ( GPE ) , asking to identify the exact temporary location of the military units at the relevant time , to identify the commanding officers and retrieve notes referring to operations in LOC . The file reviewed by ORG contained no reply to that request .", "At different stages of the proceedings several orders were produced by ORG enumerating the steps to be taken by the investigators . The order of DATE listed QUANTITY persons whose bodies had been discovered in Novaya Katayama , including the applicants ' relatives . On DATE the same prosecutor 's office ordered the investigators to establish possible places of burial of other civilians , to identify further witnesses and victims and to identify military units possibly responsible for the crimes .", "A summary of the main steps of the investigation is given in the order by the ORG dated DATE , which is the last document in the case - file . Criminal investigation file no . DATE was started by ORG on DATE following the publication of the article “ Freedom or Death ” about mass murder in LOC . On DATE ORG in ORG opened a criminal investigation following the first applicant 's complaint concerning the killing of his relatives . On DATE both criminal cases were joined as no . DATE . On DATE the ORG opened a criminal investigation following the second applicant 's complaint concerning the killing of her brother . On DATE it was joined to criminal case no . DATE .", "DATE . The case was adjourned CARDINAL times and the investigation was renewed on CARDINAL occasions . The file was transferred CARDINAL times between ORG and ORG . The document concludes with a list of tasks that should be carried out by the investigation team , including identification of the military units deployed in LOC of PERSON at the relevant dates , identification of the burial places of civilians in the Novaya Katayama settlement , identification of witnesses and the victims of the crimes , etc .", "The applicants submitted a number of additional documents relating to the circumstances of the killings and discovery of the bodies . The main documents of relevance are as follows :", "The applicants submitted a statement by PERSON , registered medical practitioner , Professor of ORG at ORG and Consultant Pathologist to ORG . The statement was prepared on the basis of the applicants ' submissions concerning the circumstances of their relatives ' deaths and of CARDINAL colour photographs taken by the first applicant when the bodies of PERSON , ORG and ORG were found .", "The expert concluded that “ the photographs show injuries in keeping with bullets fired from a high velocity rifle . ... High velocity rifles can cause significantly destructive injuries . Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons . ” He further listed a number of procedural steps normally taken in an examination of a body of a person who has died in suspicious circumstances . In the expert 's opinion , these should include an x - ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries , “ as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured ” .", "In his letter dated DATE , Deputy General Prosecutor Mr PERSON replied to a request for information sent by PERSON , a member of ORG . The letter contains information relating to the prosecution of army servicemen in GPE for crimes committed against civilians . Since the beginning of the “ counter - terrorist operation ” , CARDINAL indictments have been forwarded to the courts by the military prosecutors and CARDINAL persons have been indicted . Of those , CARDINAL cases concerned murder , DATE theft , DATE abuse of power , DATE careless driving of military vehicles , etc . CARDINAL persons were found guilty , of whom CARDINAL were officers , CARDINAL were professional soldiers and sergeants , CARDINAL were conscript soldiers and CARDINAL were non - commissioned officers . In addition , ORG brought CARDINAL charges against CARDINAL servicemen of ORG for crimes against the civilian population . From the description attached to the letter it follows that , in the majority of cases , the sentences were conditional or were lifted in application of an amnesty .", "A number of documents submitted by the applicants relate to the proceedings initiated by them in the domestic courts in order to have the facts of their relatives ' deaths established .", "On DATE the first applicant submitted an application to ORG in ORG , seeking to have certified the facts of the deaths of his brother PERSON , his sister PERSON and his CARDINAL nephews , ORG and ORG . The first applicant submitted that his relatives had remained in PERSON during DATE , while he and the rest of the family escaped the hostilities to FAC . On DATE the soldiers of the “ CARDINALth battalion ” of the federal army entered LOC and “ committed outrages ” . On DATE they entered his sister 's household and killed his relatives in a brutal fashion , causing numerous firearms and stab wounds . The first applicant learnt the details of the killings when he attended the funeral of a neighbour , PERSON . His relatives were buried in ORG . A criminal investigation had been opened and was ongoing . The declaration of deaths was required to obtain death certificates from the civil registration office .", "From the transcript of the hearing of CARDINAL DATE it follows that the court heard the applicant , who repeated his statement , and CARDINAL witnesses to the burial from the village of PERSON . They merely confirmed that the bodies had been brought to PERSON for burial and that they were aware that the killings had been committed by the federal soldiers . The court issued its decision on DATE .", "DATE . On DATE the second applicant submitted an application to ORG , seeking to establish the fact of her brother 's death . She submitted that her brother 's body had been found in PERSON on DATE in the vicinity of his house . His death was caused by numerous gunshot wounds . His body had been brought from PERSON and buried in the village of Psedakh in Ingushetia on DATE . The court decision certifying his death was required to obtain a death certificate from the civil registration office .", "From the transcript of the hearing of DATE it follows that the court heard the second applicant and CARDINAL witnesses . The second applicant testified that in DATE she and her aunt ( her mother 's sister ) had moved from PERSON to PERSON and lived with her mother in the village of Psedakh . Her brother PERSON remained in PERSON to look after the property . On DATE PERSON and PERSON came to them and said that CARDINAL bodies had been found in their family house in PERSON , and that one of them was her brother 's . Her relative NORP went to PERSON with the PERSON and brought the body back . On DATE her brother was buried in Psedakh .", "Witness NORP testified that she was a close relative of the second applicant 's mother . On DATE they were visited in Psedakh by the ORG who told them that the body of ORG was in the courtyard of their house in PERSON . They identified him by his card from ORG , where he had been the Head of ORG . On DATE they brought his body to Psedakh and buried him . Another witness from Psedakh confirmed the fact of burial . The court issued its decision on DATE .", "Article CARDINAL of the LAW of GPE protects the right to life .", "Article CARDINAL of the LAW guarantees the protection of rights and liberties in a court of law by providing that the decisions and actions of any public authority may be appealed to a court of law . LAW same LAW guarantees the right to apply to international bodies for the protection of human rights once domestic legal remedies have been exhausted .", "Articles DATE and CARDINAL provide that the rights of victims of crime and abuse of power shall be protected by the law . They are guaranteed access to the courts and compensation by the ORG for damage caused by the unlawful actions of a public authority .", "Article CARDINAL ( CARDINAL ) provides for the restriction of rights and liberties by a federal law , but only to the extent required for the protection of the fundamental principles of the constitutional system , morality , health , rights and lawful interests of other persons , the defence of the country and the security of the state .", "Article CARDINAL of the LAW provides that a state of emergency may be declared in accordance with federal law . Certain rights , including the right to life and freedom from torture , may not be restricted .", "Section CARDINAL of the Law on Defence ( Федеральный закон от CARDINAL мая DATE г. N CARDINAL-ФЗ \" Об обороне \" ) provides that “ supervision of adherence to laws and investigations of crimes committed in ORG , other Forces , military formations and authorities shall be exercised by ORG and subordinate prosecutors . Civil and criminal cases in ORG , other forces , military formations and authorities shall be examined by the courts in accordance with the legislation of GPE . ”", "The PERSON on the Suppression of Terrorism ( Федеральный закон от CARDINAL DATE г. № DATE « О борьбе с терроризмом DATE ) provides as follows :", "“ Section CARDINAL . Basic Concepts", "For purposes of the present ORG the following basic concepts shall be applied :", "... ' the suppression of terrorism ' shall refer to activities aimed at the prevention , detection , suppression and minimisation of the consequences of terrorist activities ;", "' counter terrorist operation ' shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;", "' zone of a counter - terrorist operation ' shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ...", "Section CARDINAL . Legal regime in the zone of an anti - terrorist operation", "In the zone of an anti - terrorist operation , the persons conducting the operation shall be entitled :", "... CARDINAL ) to check the identity documents of private persons and officials and , where they have no identity documents , to detain them for identification ;", "CARDINAL ) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti - terrorist operation , including acts of unauthorised entry or attempted entry to the zone of the anti - terrorist operation , and to convey such persons to the local bodies of ORG of GPE ;", "CARDINAL ) to enter private residential or other LOC ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act , when a delay may jeopardise human life or health ;", "CARDINAL ) to search persons , their belongings and vehicles entering or exiting the zone of an anti - terrorist operation , including with the use of technical means ; ...", "Section CARDINAL . Exemption from liability for damage", "In accordance with and within the limits established by the legislation , damage may be caused to the life , health and property of terrorists , as well as to other legally - protected interests , in the course of conducting an anti - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”", "Articles CARDINAL of LAW ( Гражданский процессуальный PERSON ) ) , in force at the material time , contained general formal requirements governing an application to a court , including , inter alia , the defendant 's name and address , the exact circumstances on which the claim was based and any documents supporting the claim .", "Article CARDINAL part CARDINAL provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil , criminal or administrative proceedings .", "Article CARDINAL of the Code provided that if in the course of reviewing a complaint against the actions of an official or a civil claim a court came across information indicating that a crime had been committed , it was required to inform the prosecutor .", "Chapter CARDINAL established that a citizen could apply to a court for redress in respect of unlawful actions by a state body or official . Such complaints could have been submitted to a court , either at the location of the state body or at the plaintiff 's place of residence , at the latter 's discretion . Under the same procedure , the courts could also rule on an award of damages , including non - pecuniary damages , where they concluded that a violation had occurred .", "The DATE Code of Criminal Procedure ( Уголовно-процессуальный PERSON РСФСР CARDINALг. с изменениями и дополнениями ) , in force at the material time , contained provisions relating to criminal investigations .", "Article CARDINAL stated that where a victim had died as a result of a crime , his or her close relatives should be granted victim status . During the investigation the victim was entitled to submit evidence and bring motions . Once the investigation was complete the victim had full access to the case - file .", "Article CARDINAL provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens , public or private bodies , articles in the press or the discovery by an investigating body , prosecutor or court of evidence that a crime had been committed .", "Article CARDINAL provided that the investigating body was to take one of the following decisions within a maximum period of DATE after notification of a crime : open or refuse to open a criminal investigation , or transmit the information to an appropriate body . The informants were to be informed of any decision .", "Article CARDINAL provided that , where an investigating body refused to open a criminal investigation , a reasoned decision was to be provided . The informant was to be made aware of the decision and could appeal to a higher - ranking prosecutor or to a court .", "Article CARDINAL provided that the military prosecutor 's office was responsible for the investigation of crimes committed by military servicemen in relation to their official duties or within the boundaries of a military unit .", "Article CARDINAL provided that a criminal investigation could be suspended , inter alia , if it was impossible to identify the persons who could be charged with the crime . In such cases , a reasoned decision was to be issued . No investigative actions were to be carried out once a case had been suspended . A suspended criminal case could be closed on expiry of the limitation period .", "Articles CARDINAL and CARDINAL contained information relating to the closure of a criminal investigation . Reasons for closing a criminal case included the absence of corpus delicti . Such decisions could be appealed to a higher - ranking prosecutor or to a court .", "No state of emergency or martial law has been declared in GPE . No federal law has been enacted to restrict the rights of the population of the area . No derogation under LAW has been made .", "On DATE ORG adopted Decree no . CARDINAL by which an amnesty was granted in respect of criminal acts committed by the participants to the conflict on both sides in the period DATE and DATE . The amnesty does not apply to serious intentional crimes , such as murder ." ]

[ "13", "2", "3" ]

[]

[]

[ "3" ]

[]

[]

[ "On DATE a warehouseman found QUANTITY of cocaine hidden in a consignment of green papaya fruits from GPE , ordered by the applicant . The discovery was reported to the police , who on DATE interviewed the applicant . He denied having any knowledge of the cocaine and explained that he had ordered the fruits because he contemplated developing a health product made from the seeds .", "On DATE at FAC when the applicant was about to emigrate to GPE he was arrested and charged with drug trafficking .", "On DATE ORG in GPE ( PERSON ) decided with reference to section CARDINAL , subsection CARDINAL ( iii ) and section CARDINALa of the Administration of Justice Act ( Retsplejeloven ) that the applicant be detained on remand and in solitary confinement . The time limit was fixed at DATE with regard to the solitary confinement and at DATE as concerns the pre - trial detention . ORG referred notably to the facts that a person , PERSON , whom the applicant had known as CARDINAL of his acquaintances for DATE had been arrested in the same case , that ORG had picked up a load of papaya fruits shortly after the applicant 's consignment of papaya fruits had been delivered to him , that cooffenders were assumed still to be at large , that further investigation was required in the case , and that the applicant had taken up residence in GPE after the commencement of the case .", "On appeal to ORG of Eastern Denmark , the decision was upheld on DATE on the grounds stated by ORG .", "During a police interview on DATE the applicant stated that in DATE he had been contacted by a NORP papaya fruit farmer , called ORG , in search of a business partner in GPE . ORG had found the applicant via a friend , ORG , whom the applicant knew from the GPE . Accordingly , the applicant had contacted ORG in order to obtain his assistance with the importation .", "On DATE ORG extended the solitary confinement until DATE . It appears from the court record that the applicant 's counsel had confirmed in writing that the applicant had consented to this extension without appearing in court .", "NORP The detention on remand in solitary confinement was prolonged by ORG on DATE , upheld on appeal on DATE by ORG , which found among other things that no reasonable explanation of the applicant 's importation of papaya fruits had been brought to light , and that the applicant 's importation of the fruits seemed to constitute the link between PERSON and the cocaine .", "The applicant 's pre - trial detention in solitary confinement was prolonged anew by ORG on DATE and DATE . The applicant appealed against the latter decision to ORG , and submitted in this connection his diary , which contained notes as to ORG and ORG on DATE and DATE . The applicant explained that ORG and ORG had been supposed to come to GPE on DATE , but that they had never showed up . On DATE the High Court confirmed ORG decision of DATE on the following grounds :", "“ ... Despite the new information in [ the applicant 's ] diary book notes , his importation of papaya fruits is still found to constitute the link between [ PL ] , also charged , and the discovery of the cocaine . This is supported by the telephone call made by [ the applicant ] on DATE [ to ORG ] . Therefore , the reasons for continued detention on remand under LAW , LAW ( i ) and ( iii ) , and for continued solitary confinement are still justified as stated in ORG order of DATE . ”", "The pre - trial detention in solitary confinement was further extended as follows ; by ORG on DATE , upheld on appeal by the High ORG on DATE ; by ORG on DATE , upheld on appeal by ORG on DATE ; by ORG on DATE ; on DATE ; DATE ; DATE ; CARDINAL DATE ; DATE .", "PL admitted to cocaine smuggling on DATE . In addition , he stated that the applicant had participated , but under the belief that the smuggling concerned diamonds . Having been confronted with this statement , during an interview with the police on CARDINAL DATE the applicant explained that he and ORG had actually planned to smuggle diamonds in the papaya fruits . After the papaya fruits had been delivered on DATE , ORG had informed the applicant that the diamonds had arrived safely and that ORG had sold them for a profit amounting to CARDINAL NORP kroner ( DKK ) . When the applicant had been confronted by the police and the press with the discovery of the cocaine , he had panicked and decided to emigrate to GPE . The applicant admitted that his previous explanation about ORG and ORG , and the notes in his diary had been fabricated , and made up by him and PERSON before their arrest as a “ cover story ” .", "On DATE and CARDINAL DATE , ORG upheld the applicant 's pretrial detention in solitary confinement on the basis of submitted letters containing the applicant 's and his counsel 's consent . At a court hearing before ORG on DATE , the applicant and counsel were present and objected to the continued confinement . ORG decided as follows :", "“ ... the court finds it necessary under LAW a of LAW to maintain the solitary confinement in view of the prosecutor 's information on the divergences between particular [ the applicant 's ] and the detained PL 's statements as to whether the QUANTITY persons had had discussions in relation to the smuggling of cocaine in connection with the agreement between them on smuggling from GPE . Despite the duration of the pretrial detention , the court finds that the solitary confinement must be maintained at least until the examination in court has been carried out , and it should be noted that the examination has been fixed for CARDINAL and DATE . ”", "On appeal , on DATE the decision was upheld by the High ORG", "At the court hearing before ORG on DATE the applicant confirmed the explanation he had given on DATE and ORG lifted the solitary confinement . Nevertheless , the applicant remained voluntarily in solitary confinement until DATE .", "During the period when the applicant was detained in solitary confinement he was placed in LOC ( Vestre Fængsel ) . The cells there have an area of QUANTITY . They are furnished with a bed , a table , a chair , a lamp , a bookcase , a cupboard , a radio , a television set , a refrigerator / freezing compartment , a duvet , a pillow , a mirror , a sink , bed linen , a tea - towel and a towel . There is a window in each cell placed in a high of QUANTITY above the floor . The flooring in the cell is terrazzo / cement .", "Being detained on remand in solitary confinement in LOC , the applicant was totally excluded from association with other inmates . He followed the DATE routine in the so - called segregation wing and could use the fitness room , borrow various games , occupy himself with various hobby activities such as painting and borrow books once DATE , buy goods in the shop , including newspapers , and receive tuition , including school tuition . He was allowed to CARDINAL DATE exercise periods ( TIME and TIME ) , each lasting TIME , but it was up to him to decide whether to make use of the outdoor exercise option .", "Visits from the applicant 's family and friends were only allowed under supervision . The applicant 's mother visited the applicant twice in the period from DATE until DATE . Thereafter , during a shorter period , the applicant refused to receive visitors . From DATE she visited him DATE for TIME . It appears that in the beginning friends came along with her , CARDINAL persons at a time , but that the police limited the visits to QUANTITY persons at a time in order to be able to check that the conversations did not concern the charge against the applicant . Since DATE , the applicant 's father along with a cousin visited the applicant DATE .", "The applicant 's counsel came to visit the applicant approximately once a week . It appears from the case - file that counsel sent herbal medicine to the applicant a couple of times . Also , it appears that on CARDINAL occasion the prison staff asked the prison management to consider limiting the visits from counsel because these seemed to be more frequent and last a lot longer than usual counsel visits . The prison management discussed the matter with counsel , but no restrictions were imposed .", "NORP Moreover , during the segregation period , the applicant was questioned by police officers investigating the case , notably by CARDINAL named ORG . Also , on several occasions the applicant was brought before the court in connection with extensions of the time limits for the pre - trial detention and solitary confinement and court hearings . On these occasions , he had contact with police officers as well as his counsel , the judge and the public prosecutor .", "The applicant had contact with the prison staff on numerous occasions DATE , including when food was dispensed , when food boxes were collected afterwards , when he opted for outdoor exercise , when he bathed and when he chose to use the fitness room .", "In DATE until DATE , the applicant received roughly CARDINAL lessons in LANGUAGE and LANGUAGE from one of the prison teachers , thus once a week and for TIME .", "In addition , the applicant visited the prison chaplain once DATE for TIME in the latter 's office .", "Furthermore , during the period from DATE until DATE , the applicant had contact CARDINAL times with a welfare worker , it appears for the last time , on DATE , when the applicant stated that being in solitary confinement ( voluntarily since DATE ) was getting him down so much that he would probably choose to leave it . Furthermore , he stated that he had no immediate problems with which the social worker or ORG service ( GPE ) could assist him . Instead , he talked about the problems that the case had caused him , including the fact that he felt betrayed by people whom he thought were good friends .", "In the same period , the applicant was treated by a dentist a couple of times and by a physiotherapist CARDINAL times .", "During the applicant 's detention on remand in solitary confinement from DATE until DATE medical inspections were carried out CARDINAL times by a doctor .", "From the prison medical journals submitted it appeared , among other things , that the applicant from CARDINAL DATE , DATE of his arrest , at TIME until DATE TIME was placed in an observation cell , as he had stated that he suffered from claustrophobia and had said that he was contemplating suicide . During this period he was observed CARDINAL times by the prison staff and twice by nurses . He was given a sleeping pill for that night ( and for the following nights during DATE ) .", "On DATE a doctor attended the applicant and refused to prolong the prescription for sleeping pills . The doctor established that the applicant had no complaints of claustrophobia and advised him to do “ physical exercise ” to achieve natural fatigue instead of chemical , tablet - induced sleep .", "At DATE the applicant went on a hunger strike , although he drank fruit juices . In this connection the applicant was monitored every day on CARDINAL , DATE and DATE by nurses and doctors .", "On DATE the applicant told a doctor that he was determined to starve himself to death . The prison doctor informed him of the relevant NORP regulation , which prescribes respect for the desires of mentally competent persons , even the desire to die . The doctor found the applicant mentally capable and not abnormal for the purposes of taking this decision . The doctor received and accepted the applicant 's refusal of medical intervention ( artificial feeding at any future potentially fatal weakening of the applicant 's health ) . The doctor furthermore found the applicant physically normal and without any acetone smell ( usual occurrence at fasts ) . The doctor prescribed him a sleeping pill for TIME . According to the prison rules , the doctor also requested a psychiatric assessment of the applicant – a requirement when inmates go on hunger strike even if no signs of mental disorder are found .", "DATE , on DATE the applicant informed a doctor that he was drinking but that he expected to be dead within DATE . The doctor found the applicant normal and without any signs of dehydration . As to the applicant 's mental health , the doctor waited for the psychiatric examination , which was scheduled to take place on DATE . The latter concluded :", "“ Visit to a DATE male , charged with Article PERSON LAW ( straffeloven ) ] , of which , according to him , he is innocent . He is now carrying out a hunger strike , as a protest against his perception that the press and others have convicted him in advance , and he is fully aware of the consequences of such an act and is at present writing farewell letters , his will , etc . Diagnosis : situational reaction . ”", "Due to the applicant 's decision to continue his hunger strike , the prison doctor ordered that DATE he be checked by a doctor , be weighed and have his urine checked for ketonic substances which may occur during fasting . The applicant decided to start eating again at DATE .", "Once , in DATE an ORG scanning was carried out , notably to check the applicant for epilepsy .", "On CARDINAL DATE a doctor attended the applicant because he complained of continuous pain in his lower back . The doctor ordered that he be given an extra mattress and referred him to a physiotherapist .", "On DATE the applicant decided to leave the solitary confinement he had volunteered for since CARDINAL DATE . Moreover , having volunteered for kitchen duty , he was attended to by a doctor , as the chief consultant of ORG had stated that inmates with indications of for instance mental disorders or significantly deviating conduct were not accepted for kitchen duty .", "During the applicant 's detention on remand in solitary confinement from DATE until DATE medical inspections were carried out CARDINAL times by a nurse .", "After the solitary confinement had been lifted on DATE , the applicant 's detention on remand was prolonged several times by the courts until DATE , when the High Court sitting with a jury acquitted the applicant of the drug offences . However , on the basis of the applicant 's confession he was convicted of aggravated tax fraud and sentenced to DATE imprisonment and an additional fine of DKK CARDINAL ( or in the alternative DATE imprisonment ) .", "By a ORG judgment of DATE , a co - accused , MP , who in the meantime had been extradited from the GPE , and ORG were convicted of the cocaine smuggling .", "On DATE , the applicant claimed compensation for pecuniary and non - pecuniary damage pursuant to LAW of ORG for having been detained from DATE until DATE . The total claim for compensation amounted to more than DKK CARDINAL , thereof DKK CARDINAL for injury to his feelings and reputation . In support of the latter counsel referred to the unusually long , unjustified pre - trial detention , the massive press attention given to the case , to the fact that the applicant was a well - known person and that the case therefore had been unusually and extraordinarily insulting to him . The prosecution first considered the claim , and then in DATE it was brought before ORG .", "In a letter of DATE counsel stated that she also wished to invoke LAW and for this purpose she requested that a report be procured from ORG ( Retspsykiatrisk ORG ) concerning the applicant 's mental state of health during and after his detention on remand . On DATE ORG complied with his request , and the report was submitted on DATE stating , inter alia :", "“ The subject is a now CARDINAL-year - old male , who had never exhibited any signs of a mental disorder until DATE . From his early youth and until DATE he was a successful competition swimmer . As from DATE he was self - employed in a business which he ran successfully until his arrest in DATE . Until his arrest he seems always to have functioned well . He has never abused any drugs or alcohol .", "During this examination he was found of normal to good intelligence . There is no basis for assuming that he suffers from epilepsy or any other organic brain disease . [ The applicant ] states having delusions of persecution and that he suffers from megalomania , and he appears distrustful and on guard . His perception of reality is lacking to such an extent that he can be characterised as psychotic . A final clarification of his illness can not be made , but most likely he suffers from a paranoid psychosis . Since his release , probably due to his psychotic condition , the [ applicant 's ] way of living has been affected by a considerable and vagrant travel activity , which to some degree has been characterised by a lacking capability to maintain human contacts , to make bond or to root himself in localities .", "On the basis of the information available it must be assumed that [ the applicant 's ] mental suffering coincided with the period when he was detained on remand in solitary confinement . Moreover , taking into account [ the applicant 's ] distinct personality and mental vulnerability , it is probable that the out - break and the progress of [ his ] illness are causally linked to the fact that he was solitary confined during a longer period ” .", "In addition , statements of CARDINAL March and CARDINAL DATE from ORG ( PERSON ) were submitted before ORG . In the former it was stated inter alia :", "“ ... ORG states that until DATE [ the applicant ] did not seem to exhibit any signs of a mental disorder or personality disorder . He is of good intelligence .", "During his prolonged pre - trial detention and solitary confinement in the period from DATE until DATE , he developed a psychosis , characterised particularly by failing perception of reality and grandeur . It is difficult to fix the exact time when the psychosis developed during the pre - trial detention . At a psychiatric visit on DATE no psychosis - like symptoms were found , but a “ situational reaction ” and a hunger strike . During the forensic psychiatric examination - completed in DATE - he was found both by clinical psychiatric testing and by psychological testing to be psychotic , probably suffering from a paranoid psychosis ( mental disorder with delusions ) .", "In ORG view it is very difficult to establish [ the exact cause for the applicant 's mental illness ] , but it is reasonable to assume that the considerable and long lasting mental strain which the case involved , presumably in conjunction with a distinct personality characterised by sensitivity and vulnerability significantly influenced the progress of the mental illness . The solitary confinement was a particular and severe mental strain , but also other circumstances like the charge and the subsequent indictment may have contributed to the progress of the applicant 's mental disorder . ”", "In the latter the ORG supplemented :", "“ ... The ORG finds it substantiated that the main diagnosis is paranoid schizophrenic and not a post traumatic stress reaction , as the condition is a psychosis - like condition . But heavy mental strain is one of the prerequisites both for development of [ the applicant 's ] psychosis and for the development of a posttraumatic stress reaction , and in addition to the psychotic symptoms [ the applicant ] exhibits symptoms which are characteristic of a post - traumatic stress reaction ( irritability , concentration difficulties , sleeping difficulties , nightmares , depressive tendencies with suicidal thoughts ) .", "... the ORG can not assess or make any statement as to whether the mental disorder is permanent . ”", "Moreover , an assessment of CARDINAL DATE by ORG ) was submitted as to the applicant 's degree of disablement and loss of working capacity as a result of his mental illness . ORG estimated that the degree of the applicant 's disablement amounted to PERCENT and that he had lost CARDINAL of his working capacity .", "During the proceedings before ORG , the applicant and CARDINAL witnesses were heard . The witnesses testified about their knowledge of the applicant 's income , businesses and possessions , and about their observations of the applicant before , during and after the criminal proceedings . None of the doctors or the nurses that had carried out the medical inspections of the applicant during his pre - trial detention in solitary confinement were heard or summoned before ORG . With regard to his behaviour during this period i.e. from CARDINAL DATE until CARDINAL DATE the following witnesses testified in so far as relevant :", "The applicant 's mother stated , among other things , that she felt that it was worst for the applicant during the detention period when he was also solitary confined . Thereafter , he became more human and spoke more coherently . During the solitary confinement he wrote some letters with weird contents , including a letter with incomprehensible presentation of how the universe works . She had talked with counsel about getting a psychologist in from outside , but it was too difficult to cope with and nothing came of it . She would describe the difference in the applicant 's behaviour before and after by saying that he used to be dynamic , committed and extrovert but had become grumpy and inaccessible .", "The applicant 's cousin stated , among other things , that the applicant seemed deeply unhappy and preoccupied . Often he was just listening . He had also changed appearance , having grown a big beard and lost weight . The applicant became better as time passed , as if he had found some peace .", "The prison chaplain stated , among other things , that the applicant moved with great care around the grounds and walked practically sideways along the wall . He moved like a person who had done no exercise and seemed timid . The applicant needed exercise , both physically and mentally . He had a great feeling of powerlessness . The applicant seemed different than other inmates , like a stranger in that he could both think and talk and was not already broken . The chaplain found that in general persons detained in solitary confinement lose their concentration . This was also the case as regards the applicant . The applicant cheered up and felt stimulated by the visits to the chaplain and it had been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain .", "The prison teacher stated , among other things , that the applicant from DATE seemed desperate . Subsequently he appeared resigned . On his index card of DATE , the teacher had noted that the applicant got more and more depressed . The applicants ' physical condition worsened , he got careless about himself , both concerning clothing and hygiene . The applicant read a lot , although he encountered difficulties in concentrating .", "Police officer ORG , who investigated the case against the applicant and regularly kept visits to the applicant under surveillance , stated among other things , that the applicant 's mental state appeared the same , whether questioned in the presence of his counsel or receiving visits . At some time the applicant turned his sports jersey the wrong side out as he did not wish to be like everybody else . He wanted to be a loner .", "During the proceedings before ORG the applicant raised his claim for compensation to DKK CARDINAL . By judgment of DATE ORG granted the applicant compensation in the amount of ORG CARDINAL,CARDINAL and stated inter alia :", "“ ... Having regard to the findings on the evidence in ORG verdict of CARDINAL DATE , and to the evidence produced during these proceedings , the court finds it established that an agreement had been concluded between ORG and MP on the smuggling of cocaine from GPE to GPE so that the cocaine was to be hidden in a consignment of papaya fruits . Accordingly , in GPE MP placed the cocaine in a pallet with green papaya fruits to be imported by the firm ... , from which [ the applicant ] had ordered the fruits . However , PL had tricked [ the applicant ] into establishing ... a health firm , and ordering the papaya fruits via this firm by stating that the import of green papaya fruits was to cover smuggling of diamonds , although to PL cocaine was involved . After the arrival [ of the papaya fruits ] complications arose whereby the smuggled cocaine was discovered .", "[ The applicant ] had taken initiatives as to the potential commercial exploitation of green papaya fruits for health products , etc .", "The court finds that [ the applicant ] has exhibited considerable contributory negligence by embarking on an agreement with ORG on the smuggling of diamonds from GPE . He knew that PERSON was a trained gemmologist , but their acquaintance was of recent date and his efforts to ensure that PERSON 's criminal intention was limited to diamond smuggling were poor . PERSON 's statement to the effect that at some time he briefly remarked to [ the applicant ] that he had previously tried to smuggle cocaine is contested by [ the applicant ] and no decisive weight has been attached to it in this assessment of the evidence .", "... On the evidence [ before it ] the court finds that [ the applicant ] started establishing [ the health firm ] to be in charge of the import of papaya fruits etc . after having agreed with ORG to assist in smuggling diamonds from GPE hidden in consignments of papaya fruits . According to the evidence it can not be excluded that [ the applicant ] also intended to obtain a commercial profit from [ the health firm ] . However , having regard to the applicant 's knowledge of the discovery of the cocaine and to the police interviews in general , the court finds that [ the applicant ] should have realised that the investigation theory of the police was that [ his established health firm ] was only a cover for the import of cocaine , and that any profit from the sale of health products made from papaya fruits was quite immaterial . Furthermore , the court notes that [ the applicant 's ] rather experimental / impulsive way of starting up his firm was suited to strengthen this assumption by the police , and that the applicant should have realised this .", "After the police had found the cocaine and after the press publicity on DATE , but before his own arrest , [ the applicant ] chose together with ORG to agree on a false statement about the background of his import of papaya fruits , ... [ the story about ORG and ORG ] supported by construed diary notes . [ The applicant ] maintains that he asked PERSON repeatedly at this stage whether PERSON had anything to do with the cocaine . Despite PERSON 's denials [ the applicant ] should have suspected serious mischief at least at this stage .", "[ The applicant ] was arrested on DATE . He did not change his statement until DATE , when during an interview [ with the police ] he told about the planned diamond smuggling . This statement was repeated at the hearings before the court on CARDINAL and DATE and then maintained . The solitary confinement was terminated at the court hearing on DATE .", "... accordingly , the court finds that [ the applicant ] has exhibited contributory negligence by way of his suspicious conduct / failure to clear himself of suspicion , partly by having embarked on the alleged smuggling of diamonds and taking relevant steps , having construed and made use of a false cover story and having failed to explain the true facts of the case until DATE , whereby he must also have realised that with this course of events in DATE he himself had considerably contributed to causing doubts about the correctness of his present statement , cf . in this respect [ the ORG decision of DATE as to the continued pre - trial detention ] .", "The court finds that the contributory negligence exhibited by [ the applicant ] therefore entails that he has basically forfeited the right to compensation for the harm inflicted on him by the arrest and the pre - trial detention ...", "In accordance with the opinion of ORG the court finds that the applicant did not show any signs of mental disorder or personal disorder [ before his arrest ] , but that during the prolonged pre - trial detention and solitary confinement he developed a psychosis , particularly characterised by a failing perception of reality , delusions of reference as well as delusions of persecution and of grandeur . It is impossible to fix the exact time when the psychosis developed during the pre - trial detention as no psychosis - like symptoms were found at a psychiatric visit on DATE , but a “ situational reaction ” and a hunger strike , whereas in the forensic psychiatric examination - completed in DATE - [ the applicant ] was found psychotic , probably suffering from a paranoid psychosis ( mental disorder with delusions ) ...", "Particularly concerning LAW and the basis of responsibility in general :", "... generally , any kind of deprivation of liberty constitutes a strain on the person involved . Such a strain manifests itself even more with regard to pre - trial detention in solitary confinement , which entails complete exclusion from association with other inmates , and visits only to a limited extent and subject to surveillance . In some cases this strain may , for a particular individual , prove to have consequences beyond what is generally foreseeable and predictable by the legislator owing to that individual 's mental preparedness and life situation in general .", "It must be presumed that the legislator considers solitary confinement necessary for the sake of the investigation , particularly in grave criminal cases committed by a group of persons acting in a more organised way , in which the clearing up to a great extent depends on the persons ' lack of opportunities to harmonise their statements mutually and with others .", "In order to balance the interests of the detainee against the interest of the society in prosecuting crimes , the legislator has laid down provisions on solitary confinement cf . sections CARDINALa to CARDINALc of ORG . Thus , the use of totally solitary confinement is limited to a continuous period of DATE [ except for ] cases , where the charge concerns an offence being punishable under the law by imprisonment for DATE or more , which are not subject to any restriction in time . The charge against [ the applicant ] for drug offences under LAW satisfies this condition . Under section CARDINALb , the courts must check whether the purpose of the solitary confinement can be fulfilled by less radical measures , and they must ensure that the measure is not disproportionate to the importance of the case and the sanction that may be expected if the person charged is found guilty . Furthermore , under this provision the court must “ take into account the special potential strain on the person charged owing to his youth , or physical or mental weakness ” when it orders solitary confinement .", "In the opinion of the court , the legislator has thus realised that solitary confinement may at worst result in an unintended harmful effect owing to the mental weakness of the person charged . This is attempted countered by imposing a duty on ORG staff ( kriminalforsorgens personale ) , including the prison doctor , to be aware of any danger signals , according to which psychiatric monitoring may prove relevant .", "The question of medical monitoring may be raised by everybody who is in contact with the detainee , including counsel , as well as the detainee himself and the prison staff . If so , the judge responsible for a continuation of the pre - trial detention in solitary confinement must decide whether the interest of society in prosecution must give way for the mental wellbeing of the person charged , with particular regard to the risk of permanent mental harm .", "It is a matter for the courts to check and apply the provisions of the law compared with general principles of law , including the principles expressed in LAW ... as incorporated into NORP law by LAW . CARDINAL of CARDINAL DATE .", "LAW sets out that “ no one shall be subjected to torture or to inhuman or degrading treatment or punishment ” . LAW provides for the situations in which a person may exceptionally be deprived of his liberty .", "[ The applicant 's ] detention on remand was ordered due to the risk of influencing others and the risk of evasion , and solitary confinement was imposed in addition due to the risk of influencing others .", "'s health . In addition to the specific elements of the case , the court has taken into account the assessments made by ORG , ORG of ORG ( CCPR ) , ORG ( CAT ) , and ORG ) on the conditions of solitary confinement in GPE as well as national deliberations , most recently report ( betænkning ) No . DATE on pretrial detention in solitary confinement ...", "The court finds that the pre - trial detention in solitary confinement and the subsequent ordinary pre - trial detention did not involve any violation of LAW by virtue of its duration , form or conditions , as seen in relation to the nature of the suspected offence . The same applies as to the effect of the imprisonment on [ the applicant 's ] health .", "However , the court finds that the detention on remand in solitary confinement has had a mental consequential effect to [ the detriment of the applicant and that it ] occurred under such circumstances as to trigger liability for the Government [ for the following reason ] .", "It must be assumed , even without the establishment of committed human errors e.g. by failing monitoring , that incidents may occur , where the detained subsequently are found to have developed psychiatric damage , which to a significant extent has been caused by the pre - trial detention [ as opposed to normal predictable mental aftereffects ] , and which may be entailed by the usual administrative rates fixed to cover non - pecuniary damage .", "In the present case , having regard to the medical statements , the court finds it established that [ the applicant ] suffers from a paranoid psychosis ( mental disorder with delusions ) and a traumatic strain - reaction , and that the detention on remand to a very significant extent caused this .", "The public authorities have a special duty of solicitude for detainees , which entails liability to compensation should they fail to comply with this duty . With regard to solitary confinement the court finds that a strengthened degree of culpability must be employed towards the public authorities .", "It may be difficult for the surroundings to recognise in particular a paranoid psychosis . However , having regard to the information provided by [ the applicant ] about his claustrophobia and his contemplation of suicide , which resulted in his placement in an observation cell , the court finds that [ the applicant ] , maybe already at the time of the arrest , behaved in such a way that could and should have caused a closer observance in the period to follow , than were actually performed of [ the applicant 's ] mental development , in any case subsequent to [ the applicant 's ] hunger strike in DATE . The court finds that the authorities carry the burden of proof that the [ above ] circumstances have had no influence on the psychiatric damage incurred . Thus , the court finds that it can not be excluded that the mental damage to a significant extent could have been avoided or reduced by a more thorough observation , and that the courts [ had such an observation been carried out ] would have had an opportunity for balancing the risk of ( permanent ) damage against the interest of the investigation cf . section ORG . ”", "Both the applicant and the prosecution appealed against ORG judgment of DATE to ORG of Eastern GPE .", "Before the High Court a letter of CARDINAL DATE was submitted containing an account of the nurses ' monitoring of the applicant during his pretrial detention in solitary confinement during the period from DATE until DATE . Thus , as to the CARDINAL medical inspections which had been carried out by nurses the head of nursing stated inter alia :", "“ . It does not appear at any time from the nurses ' report books summarising the visits that the nurses suspected that [ the applicant ] was developing a paranoid psychosis . Considering the nurses ' background both in the prison service and the psychiatric system , one would expect that the nurses who made these visits would have observed it , if [ the applicant ] had been developing a psychosis - like condition . It should be added that the nurses ' visits in the south wing [ where the applicant was placed ] were performed by the “ permanent nurses ” of the south wing , who were [ therefore ] able to monitor any changes in [ the applicant 's ] mental condition . ”", "NORP The head of nursing also testified before ORG and explained the routines and observations of the prison nurses , including that the applicant gave cause for discussion only once at the nurses ' morning conferences , namely when he was on his hunger strike . Otherwise , he was considered “ nice and talkative ”", "A similar account was made as to the doctors ' monitoring of the applicant , i.e. CARDINAL medical examinations carried out by doctors in the relevant period . In a letter of DATE the chief consultant of ORG ( PERSON ) , a specialist of internal medicine and medical gastroenterology concluded inter alia :", "“ that [ the applicant ] was not at any time found to be mentally ill to a major extent corresponding to the otherwise obvious and probable harmful effect of the solitary confinement ordered by the courts ;", "that at no time [ the applicant ] was found to be borderline psychotic , not to mention psychotic ( thus not suffering from a paranoid psychosis either ) ;", "that the psychiatrist 's assessment of [ the applicant ] on DATE was carried out for administrative reasons only in connection with [ the applicant 's ] short - term refusal to eat , which had caused no complications ( it was not a total fast as [ the applicant ] drank juice ) . The psychiatric assessment was not carried out due to an uncertainty on the prison doctor 's behalf as to [ the applicant 's ] mental state , [ since ] neither the ordinary prison doctor nor , in particular , the psychiatrist had found [ the applicant 's mental state ] very remarkable or even mentally threatened . [ Instead ] the psychiatrist made the said administrative assessment to make doubly sure that [ the applicant ] was found competent [ to cope with the situation ] concerning his refusal to eat . ”", "The chief consultant did not question that the applicant was found to be psychotic during the period of psychiatric observation from DATE until DATE , but underlined that the applicant had not been found to be significantly mentally ill , borderline psychotic or psychotic during the period of detention from DATE until DATE . None of the highly qualified and welltrained doctors and nurses attending the applicant during that period had noted any signs of mental disorder in the applicant . He pointed out that the said doctors and nurses had plenty of experience with examining inmates held in solitary confinement and that they knew what telltale signs of oncoming or existing mental disorder to look for when examining such inmates . Accordingly , in the chief consultant 's opinion , it could not established that the mental disorder , found when examining the applicant DATE after the determination of his detention , actually began during his detention at FAC .", "NORP The chief consultant also provided a general account on visits and assessments of detainees . He mentioned that such may take place at counsel 's request . In this respect the letter stated as follows :", "“ Concerning [ the applicant ] it should be noted in this connection that the doctors [ of ORG ] have received no inquiries during the said detention period from [ the applicant 's ] prosecutor or CARDINAL counsel , apart from the letter of DATE from [ the applicant 's ] first counsel and the letter of DATE from [ the applicant 's ] second counsel .", "In the letter of DATE [ the first counsel ] stated that he found the applicant very depressed , and he asked that doctors attend to [ the applicant ] . No letter of reply was sent to [ the first counsel ] since he had not requested such , and since he had stated in the letter that he had not notified [ the applicant ] that he had written the said letter ( all other things being equal , a reply would require [ the applicant 's ] specific consent and thus indicate to [ the applicant ] that his counsel had sent a letter without his consent ) , but the most important reason for not sending a reply was the fact that [ the applicant ] had not been found depressed in connection with a medical assessment , including the psychiatric assessment made on DATE . If the latter had been the case , a letter of reply would have been forwarded to counsel nevertheless , possibly even without [ the applicant 's ] specific ( informed ) consent , and ... also from the prison doctor to the judicial instances via ORG .", "In the letter of DATE [ the second counsel ] asked that herbal medicine ... be given to [ the applicant ] .", "Otherwise , [ the CARDINAL counsel ] have not given notice orally , by telephone or in writing about any deviant state observed as to [ the applicant ] . [ It should be noted in this respect that notably [ the second counsel ] and the doctors [ of ORG ] are in regular good contact concerning the inmates ' state of health and particular complex matters related thereto , also in relation to court measures , such as solitary confinement ] . The doctors [ of ORG ] are pleased to receive notices from everybody ( including school teachers , ministers of religion etc . within and outside [ ORG ] , not to mention the applicant ) regardless of the nature of the notices and the information since , all other things being equal , such notices give the doctors better possibilities of performing their work of ensuring the best possible conditions for the inmates ' health subject to the terms ordered by the courts . “", "NORP The chief consultant was heard as a witness before ORG . He explained in more general terms the routines of the prison doctors and the attention focused on inmates held in solitary confinement for long periods and he gave further description of some of the findings noted in the medical record sheet relating to the applicant .", "The applicant 's case was discussed at the DATE conferences between the doctors . The witness himself never saw the applicant . There were no signs that the applicant was characterised by incipient isolation syndrome . The symptoms of this syndrome are difficulties of concentrating , sleeping trouble , disturbed perception of time and space , disturbed interpretation of sensory impulses , depression , possibly with self destruction and thought of low self - esteem , fits of anxiety , lack of interests in surroundings . This may develop into a borderline psychosis , the symptoms being delusions / paranoia , feeling of unreality and into an actual psychosis . When he suspects incipient isolation syndrome , he writes to the prison management about it with a view to forward it to the counsel and the prosecutor . In DATE , for example , the witness wrote such letters in thirtytwo cases . He did not know exactly how many letters like that he wrote in DATE , but he has not changed practise in this respect since DATE .", "As to the notes in the medical record of CARDINAL DATE , when the applicant was on hunger strike , the chief consultant specified that doctors always assess whether a person is mentally competent and understands the consequences of a hunger strike and that all doctors have psychiatric training . He would rather call the applicant 's hunger strike a refusal to eat , since he drank plenty of water and juice , which contains calories and nourishment . According to LAW ) , a doctor is not allowed to interrupt a competent person 's hunger strike by force . He may try to procure consent to treatment when the person becomes weak . The applicant granted no such consent . ORG may be used against mentally ill persons .", "As to the psychiatric attendance on DATE the witness stated inter alia that the applicant was found to suffer from a situational reaction such as many new detainees do . It is not uncommon in LOC that inmates state their intention of going on hunger strike . The applicant was not in any bodily danger , but might in time become mentally endangered . Thus , the close observation of the applicant continued .", "NORP The Director of ORG gave his account before ORG of the monitoring of the applicant during the latter 's pre - trial detention and period of solitary confinement . In a letter of DATE he stated , among other things :", "“ For the purpose of this account the prison management has procured information on [ the applicant 's ] stay in the prison from the chief consultant , the head of nursing , the welfare worker , supervisory staff [ at the applicant 's unit ] and from his workplace in the prison .", "Supervisory staff in the south wing [ which monitored the applicant during his entire period in solitary confinement ] stated that despite the solitary confinement he functioned well , knew how to structure his everyday life and occupy himself , and he did not in any way appear mentally conspicuous .", "At no time did the staff find any reason to contact the health staff to obtain a psychiatric assessment , which is otherwise an initiative very frequently taken by staff .", "The principal officer of the west wing [ to which the applicant was transferred after the solitary confinement ] and the staff in the kitchen where he worked have stated the same .", "[ The applicant 's ] welfare worker who regularly talked with him during his entire detention has also stated the same .", "With reference to the comments of the court [ in connection with the compensation proceedings ] decisive importance must be attached , however , to the question whether these assessments are supported by the doctors ' monitoring of [ the applicant ] .", "The chief consultant has provided the appended statement on the case . For details please refer to this assessment .", "It appears from the chief consultant 's statement that during his entire period of detention [ the applicant ] has been extremely carefully monitored and assessed by doctors .", "Visits by doctors , including psychiatrists , may be carried out at the request of the health staff of ORG , but may also be carried out at the request of staff , counsel or the prosecutor . In [ the applicant 's ] case , counsel only once requested a visit from a doctor [ i.e. the first counsel in his letter of DATE ] , which had , however , already been made by a psychiatrist in connection with the hunger strike , cf . below .", "During all visits , doctors and nurses of ORG have their attention directed at signs of psychoses , both obvious signs and minute signs . They are , of course , particular attentive to such signs in a case of solitary confinement , which is in itself a stressful measure .", "If , in connection with a visit , a doctor finds even the slightest suspicion that the inmate is or may possibly be on his way to become mentally ill , a statement to that effect is given to counsel and the prosecutor .", "This was not done in [ the applicant 's ] case , as there was never at any time any suspicion of a mental illness .", "The reason why [ the applicant ] was attended to by a psychiatrist on DATE at the initiative of ORG was not that a mental illness was suspected , but solely that the internal guidelines prescribe this when inmates go on hunger strike . Anyway , no psychopathological characters were found at the examination , but a situational reaction ... Particularly referring to the chief consultant 's statement , ORG repudiate that [ the applicant ] has been subjected to failure of health monitoring . During his entire stay , [ the applicant ] was regularly visited by doctors and nurses , and these visits have not given any rise to any suspicion of mental disorders ... ”", "Moreover , by letter of CARDINAL DATE the Director of ORG gave his account of the monitoring of the applicant during the latter 's pre - trial detention and solitary confinement . The letter read inter alia :", "“ After the passing of the judgment in the compensation proceedings on DATE I have had conversations with the following persons about [ the applicant 's ] stay in ORG :", "DW , then social worker in the east unit , states that [ the applicant ] was an intelligent and interesting young man . During his stay [ the applicant ] started painting . He read a lot . His behaviour was not conspicuous . He seemed present during conversations . He was bitter and angry with the police and felt unjustly treated . These thoughts did not seem pathological to DW .", "ORG , prison officer , ... , who knew [ the applicant ] during his entire stay in the south wing , stated that he painted , was active and seemed to function well . He was good - humoured to be with and was given a rather free rein . He was always ready with a gay remark . He was considered by all staff as a person who functioned well and was not conspicuous . He knew how to establish an everyday life . He felt unjustly treated by the system and thought that solitary confinement in general could be considered as some kind of torture .", "ORG , prison officer , ... , who also monitored [ the applicant ] in the south wing , stated that he was not pathologically conspicuous . He was quite ordinary to talk to . In the circumstances he managed the solitary confinement incredibly well .", "JEL ... who was the foreman in the kitchen where [ the applicant ] worked after the solitary confinement , stated that he did not seem mentally conspicuous or affected by the long solitary confinement .", "ORG , principal officer , west wing , stated that [ the applicant ] functioned well during his stay in the west wing after the solitary confinement and did not seem affected by the solitary confinement . ”", "Additional statements from ORG and ORG were submitted on CARDINAL DATE and CARDINAL DATE respectively , and the applicant and several witnesses were heard .", "By judgment of CARDINAL DATE ORG granted the applicant compensation in the amount of ORG covering as follows :", "non - pecuniary damage DKK CARDINAL", "ORG lost earnings DKK CARDINAL", "loss of working capacity DKK CARDINAL", "disablement CARDINAL DKK CARDINAL", "DATE . The High Court found that the applicant 's mental illness was caused or mainly caused by the solitary confinement , but pointed out that on the basis of the medical statements before it , it was not possible to establish when the mental disorder broke out or how it had progressed . On the material before it , the court found it established that during his detention the applicant had been treated in a proper manner . Thus , having regard to the reason for the solitary confinement and the treatment of the applicant during this period , the court found that in spite of the duration of the solitary confinement and its serious effects on the applicant 's mental health , LAW could not be considered breached .", "The court found that compensation for non - pecuniary damage was justified pursuant to section CARDINALa § CARDINAL of ORG for the deprivation of liberty exceeding the sentence laid down in the verdict of DATE . However , according to section CARDINALa § CARDINAL of the said LAW the applicant was found to a considerable extent to have given rise to the measures himself , due to so - called “ own fault ” , in the period DATE until DATE , when the applicant made the statement to the police as to his participation in diamonds smuggling . Accordingly , a sum of DKK CARDINAL was found to be reasonable . Also , the compensation for lost earnings was reduced due to “ own fault ” .", "The amounts for disablement and loss of working capacity were calculated on the basis of LAW ( Erstatningsansvarsloven ) , and the information on the applicant 's previous yearly income . Since no exact moment of injury could be established the court chose CARDINAL DATE as the starting point . Considering that it was common knowledge to the authorities that solitary confinement entails a risk of disturbing the mental health , and taking into account the extraordinary and severe damage , which the long lasting detention in segregation caused the applicant , the court found no reason to reduce these amounts on the “ own fault ” considerations .", "Finally , ORG decided that the ORG should pay all the legal costs before ORG as well as before ORG .", "Having been granted leave to appeal , before ORG ( Højesteret ) the applicant claimed compensation in the amount of DKK CARDINAL for pecuniary and non - pecuniary damage . By judgment of CARDINAL DATE ORG reduced the amount to be paid in compensation to ORG , covering as follows :", "non - pecuniary damage DKK CARDINAL", "lost earnings DKK CARDINAL", "loss of working capacity DKK CARDINAL", "disablement DKK CARDINAL", "ORG agreed unanimously with ORG that the solitary confinement was the main reason for the applicant 's mental suffering . Also , noting that there was no reason to assume that the applicant had not been treated in a proper manner during his detention on remand , it confirmed ORG finding that the case disclosed no appearance of a violation of LAW .", "NORP Moreover , ORG upheld ORG finding that to a significant extent the applicant himself gave rise to measures taken against him , and pointed out that the applicant 's explanations during the criminal proceedings did not leave an impression of being provided by someone who lacked ability to act rationally .", "As to the amounts regarding compensation for disablement and loss of working capacity ORG confirmed that it was common knowledge that solitary confinement entails a risk of disturbing the mental health . On the other hand it found that the applicant could not have foreseen , by his conduct and the measures to which he was consequently subjected , that accordingly he would be induced a permanent mental disorder causing loss of working capacity and disablement . Therefore , ORG endorsed that the amounts covering compensation for disablement and loss of working should not be reduced on “ own fault ” considerations .", "DATE . As to the applicant 's claim covered by LAW , LAW cf . LAW , the majority of ORG ( CARDINAL judges ) stated :", "“ We find that by participating in the papaya project and by his attitude shown during part of the detention period , notably by having actively opposed the investigation of the case , [ the applicant ] is thereby excluded from obtaining compensation for these claims pursuant to LAW , LAW . ”", "A minority of CARDINAL judges stated :", "“ When assessing the ' own fault ' shown by [ the applicant ] , regard must be had to the difficult situation he was facing and to the severity of the measure [ he was subjected to ] , thus in our view [ own fault ] should not influence the compensation to be awarded to cover lost earnings as to the period after CARDINAL DATE or non - pecuniary damage as to the period after CARDINAL DATE . The case contains no such special circumstances , which can justify a deviation from the administrative rates fixed to cover nonpecuniary damage .", "Otherwise agreeing with ORG reasoning concerning each of the claims we find that the applicant , in addition to compensation for loss of working capacity and disablement , be granted DKK CARDINAL covering lost earnings and DKK CARDINAL covering non - pecuniary damage . ”", "ORG decided that the applicant pay legal fees in the amount of DKK CARDINAL inclusive GPE .", "The relevant provisions of ORG read as follows at the relevant time :", "Section CARDINAL", "A suspect ( en sigtet ) may be detained on remand when there is a reasonable ground for suspecting that he has committed an offence which is subject to public prosecution , provided that under the law the offence may result in imprisonment for DATE and DATE or more , and", "( i ) according to information received concerning the suspect 's situation , there are specific reasons for assuming that he will evade prosecution or execution of judgment , or", "( ii ) according to information received concerning the suspect 's situation , there is specific reason to fear that , if at large , he will commit a new offence of the nature described above , or", "NORP ...", "Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment ( hæfte ) or if the deprivation of liberty will be disproportionate to the interference with the suspect 's situation , the importance of the case and the sanction expected if the suspect is found guilty .", "Section CARDINALa", "At the request of the police the court may decide that a detained shall be totally or partially excluded from association with other inmates ( solitary confinement ) if", "( i ) the detention on remand was decided pursuant to LAW , Subsection CARDINAL ( iii ) , and", "( ii ) the purpose of the detention on remand requires solitary confinement in order to prevent the suspect from influencing co - suspects though other inmates or from influencing others by threats or in another similar way .", "Totally solitary confinement may not be imposed for a continuous period of DATE unless the charge relates to an offence which , under the law , may result in imprisonment for DATE or more .", "Section CARDINALb", "Solitary confinement may not be initiated or continued if the purpose thereof can be fulfilled by less radical measures or if the measure is disproportionate to the importance of the case and the sanction to be expected if the suspect is found guilty . Decisions on solitary confinement must also take into account the special potential strain on the suspect owing to his youth or physical or mental weakness .", "Section CARDINALa", "Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted ...", "Even if the conditions for granting compensation under subsection CARDINAL are not satisfied , compensation may be granted if the deprivation of liberty can not be considered proportionate to the outcome of the prosecution , or if it is found unreasonable for other particular grounds .", "The compensation may be reduced or refused , if the person charged has given rise to the measures himself .", "The ORG visited GPE from DATE . With regard to solitary confinement it found inter alia the following ( ORG ( CARDINAL ) CARDINAL ) :", "... at FAC the ORG 's delegation was able to observe at first hand the practice of the solitary confinement of remand prisoners ordered by judicial decision . Numerous allegations were made as regards the adverse effects of such confinement . The ORG wishes to underline that , in certain circumstances , solitary confinement could amount to inhuman and degrading treatment , and that in any event all forms of solitary confinement should be as short as possible . The question of solitary confinement is currently being examined by the NORP authorities . The ORG , for its part , has formulated several recommendations designed to strengthen the protection of prisoners in this area . Emphasis is placed in particular on the importance of the respect of the principle of proportionality between the requirements of the investigation and placement in solitary confinement ( a measure which can have very harmful consequences for the persons concerned ) , of an effective periodic judicial review of the solitary confinement , and of the proper medical examination of a prisoner subject to such a measure .", "The ORG also visited GPE from CARDINAL DATE to CARDINAL October CARDINAL . Its findings with regard to solitary confinement , and the condition of FAC were the following ( ORG ( CARDINAL ) CARDINAL ) :", "Solitary confinement of remand prisoners by court order", "In the course of its ongoing dialogue with the NORP authorities , the ORG has stressed that all forms of solitary confinement without appropriate mental and physical stimulation are likely in the long term to have damaging effects , resulting in deterioration of mental faculties and social abilities . It has paid particular attention to the solitary confinement of remand prisoners by court order , which can continue for extended periods .", "The NORP authorities have long recognised the importance of this subject and , in DATE , the Minister of ORG commissioned a research project to examine \" any possible harmful effects of being remanded in custody in solitary confinement \" . The results of that research were published , in a report entitled \" Remand in Custody and Mental Health \" , in DATE .", "The research team found that : \" ... remand in custody in solitary confinement versus non - solitary confinement involves the risk of harmful effects on mental health \" and that \" ... there is a greater probability that those in solitary confinement develop mental problems and are transferred to prison hospitals for mental reasons than those who are not placed in solitary confinement \" . ( cf . page CARDINAL of document ORG ( CARDINAL ) CARDINAL ) However , researchers found no proven link between the length of judicially - ordered solitary confinement and prisoners ' mental health .", "The report concludes that : \" ... the harmful effects of solitary confinement are not in general such as to result in abnormalities in the cognitive functions , e.g. concentration and memory \" . ( cf . page CARDINAL of document ORG ( CARDINAL ) CARDINAL ) .", "ORG is currently examining the findings of \" Remand in Custody and ORG \" , with a view to re - assessing the rules governing placement in judicially ordered solitary confinement . In addition , the same research team is producing a follow - up study , which is to be published in the form of a supplementary report .", "The ORG welcomes the fact that the mental health of prisoners in judicially ordered solitary confinement has been the subject of a study . However , it feels bound to point out that , during its DATE visit , a considerable number of doctors , lawyers , prison staff and other persons who have frequent contact with such inmates expressed considerable surprise at the study 's principal conclusion . In their experience , prisoners subjected to lengthy periods of judicially ordered solitary confinement frequently exhibited lapses in concentration , memory loss and impaired social skills . These observations were borne out by the ORG 's own findings during its second periodic visit . Many prisoners subject to judicially ordered solitary confinement complained of symptoms including anxiety , depression , inability to concentrate , irregular sleeping patterns , nausea and persistent headaches . In CARDINAL particular case , the delegation 's psychiatric expert was of the opinion that symptoms such as impairment of concentration , depressive mood and suicidal thoughts could be attributed to the inmate 's lengthy placement in solitary confinement .", "In short , notwithstanding the principal conclusion of \" Remand in Custody and ORG \" , the ORG considers that there remain serious grounds for concern about the effects upon remand prisoners ' mental health of being placed in judicially - ordered solitary confinement for prolonged periods .", "In addition to stressing that all forms of solitary confinement should be as short as possible , the ORG 's DATE report recommended that the NORP authorities take steps to ensure that remand prisoners were only placed in solitary confinement in exceptional circumstances which were strictly limited to the actual requirements of the case . It also recommended that there be an effective judicial review of placements in solitary confinement and that , where a placement was prolonged , the reasons for such prolongation be set out in writing ( cf . paragraph CARDINAL of document ORG ( CARDINAL ) CARDINAL ) .", "In their response , the NORP authorities asserted that NORP law was already in accordance with these recommendations and cited a steady fall in the number of remand prisoners being placed in judicially - ordered solitary confinement .", "The ORG welcomes the above - mentioned fall . However , the information gathered during the second periodic visit would suggest that - at least in respect of certain types of cases ( serious drugs offences , crimes of violence etc . ) - the balance between the legitimate requirements of a criminal investigation and the potentially harmful effects of imposing solitary confinement is still not being struck in an appropriate way . As an example , senior police officers , prosecutors and judges with whom the delegation spoke agreed that it would be extremely unusual were solitary confinement not to be sought ( and granted ) in a case brought under LAW of ORG ( which deals with serious drugs offences ) . It is also noteworthy that a detailed examination of the court transcript of a randomly - selected LAW case showed that no specific reasons had been given by the judge for imposing solitary confinement ; instead , he had simply cited the statute which authorised him to grant the prosecutor 's request .", "Furthermore , although it is true that the statistical information which has been supplied by the NORP authorities shows a downward trend in the number of placements in solitary confinement , it also indicates that the average length of solitary confinement has increased . Indeed , in the course of the DATE visit , the ORG 's delegation met a number of prisoners who had been subject to judicially ordered solitary confinement for long periods of time ( one for DATE , CARDINAL for DATE and CARDINAL for DATE or more ) .", "In the light of the information set out above , the ORG considers that further action is required to ensure that the safeguards in NORP law concerning the placement of remand prisoners in solitary confinement are rendered fully effective in practice . The ORG recommends that steps be taken to ensure that : - prosecutors are reminded that they should only seek a placement in solitary confinement when this is strictly necessary in the interests of a particular criminal investigation ; - on every occasion when the question of whether to impose or prolong solitary confinement is raised before a court , the reasoned grounds for the decision which results are recorded in writing ; - prisoners are systematically informed in straightforward language of the reasons for their placement in judicially - ordered solitary confinement ; - in the context of each periodic review of the necessity to continue remand in custody , the necessity to continue a placement in solitary confinement is fully considered as a separate issue , bearing in mind the general principle that all placements in solitary confinement should be as short as possible . ORG also invites the NORP authorities to consider introducing a maximum limit on the total period for which a remand prisoner may be placed in solitary confinement .", "The effect upon remand prisoners of being placed in judicially ordered solitary confinement can be exacerbated by the imposition of prohibitions / restrictions upon their letters and visits . The imposition of such restrictions lies within the sole discretion of the police ( although a prisoner may appeal to a court against the imposition of restrictions ) . In the course of its second visit , the delegation found that the police rarely if ever sought to prohibit letters or visits ; however , it was common for remand prisoners ' letters to be monitored and their visits supervised . In its report on the first visit , the ORG recommended that the police be given clear instructions on the circumstances in which such prohibitions / restrictions might be imposed and required to state the reasons in writing for any such measures . This recommendation has not been implemented by the NORP authorities , who consider that ORG already provides sufficient safeguards in this respect .", "In the view of the ORG , the current system of police - imposed restrictions upon letters and visits still does not adequately ensure that the measures adopted in a given case will be strictly proportionate to the needs of the criminal investigation involved . Accordingly , the ORG recommends that the NORP authorities take steps to implement its DATE recommendation on this subject without further delay . The ORG also recommends that , in the context of each periodic review by a court of the necessity to continue remand in custody , the question of the necessity for the police to continue to impose particular restrictions upon a remand prisoner 's visits and letters be considered as a separate issue .", "As regards the question of activities for remand prisoners placed in judicially - ordered solitary confinement , the ORG was pleased to note that ORG fully agrees with the ORG 's view that persons in solitary confinement should be provided with access to purposeful activities and appropriate human contact in order to counteract the effects of being placed in solitary confinement ( cf . page CARDINAL of document ORG ( CARDINAL ) CARDINAL ) . During the second periodic visit , the delegation noted that efforts were being made to achieve this objective in the establishments visited . The ORG recommends that the NORP authorities pursue their efforts in this respect .", "Conditions of detention in general", "... b. the Western Prison in GPE", "i. introduction", "Since the ORG 's first visit to FAC in DATE , the establishment has become the reception facility for all of ORG ( a role previously filled by ORG , cf . paragraph CARDINAL , above ) ; FAC now has a turnover of CARDINAL inmates per year . With an official capacity of CARDINAL , on DATE visit the establishment was holding CARDINAL inmates . ( As compared to CARDINAL ( with an official capacity of CARDINAL ) at the time of the first periodic visit ) ...", "ORG replied inter alia as follows :", "According to the existing NORP legislation , only the courts can decide whether a suspect may be placed in solitary confinement and that such a decision requires that certain conditions are met , i.e. that the suspect is remanded in custody because he or she must be prevented from influencing other suspects through other inmates or in any other way . Total isolation was only possible for a maximum period of DATE unless the person involved was charged with a criminal offence punishable by DATE imprisonment or more . Furthermore , the principle of proportionality must be observed – hence , if the purpose of the solitary confinement may be achieved through other means of less vital importance , or if the solitary confinement is disproportionate to the importance of the case and the legal consequences to be expected if the suspect is found guilty , solitary confinement must not be used . When deciding this matter , the judge must also take into account the strain , which solitary confinement may put upon the suspect due to the suspect 's young age or mental or physical weakness . The ORG also pointed out that the number of persons kept in solitary confinement was decreasing significantly over DATE and that the conditions to be met in order to keep someone in solitary confinement were among the strictest in LOC ;", "Only the courts can decide to detain a suspect in solitary confinement and the courts ' decisions regarding this issue must explain in detail the reasons for this decision ;", "The staff of ORG has been instructed to inform the prison doctor / nurse in all cases where a prisoner wishes to get medical attention . The prison doctor will specifically look not only for somatic inmates but also psychiatric problems when examining an inmate . It is always possible for the doctor to inform the prison management and in certain cases also the public prosecutor , the inmate 's counsel and the courts of whether and to what extent a psychopathological symptom ascertained must be deemed to have been caused or worsened by solitary confinement and what the inmate 's prognosis must be deemed to be under continued solitary confinement . Such medical information will form part of the considerations of the courts when deciding whether solitary confinement is proportionate in the case in question ;", "ORG contains specific provisions concerning prohibitions / restrictions of the prisoners ' correspondence and visits , and a prisoner who is subjected to such restrictions has a right to request that the decisions be brought before a court ." ]

[]

[]

[]

[ "3" ]

[]

[]

[ "ORG On DATE PERSON was arrested in transit at FAC while in possession of QUANTITY of cannabis which he had purchased in GPE ( GPE ) for MONEY . He was detained pending trial in FAC , GPE .", "ORG On DATE ORG , sitting as a first - instance criminal court with CARDINAL judges ( PERSON efetio kakourgimaton ) , held as follows ( in judgment no . CARDINAL/CARDINAL ) :", "\" The ORG finds the defendant guilty of having deliberately and as a drug addict ( a ) purchased in GPE , GPE , on DATE approximately QUANTITY of NORP hemp from persons unknown for the sum of MONEY ( b ) brought the said cannabis from GPE ( GPE ) to GPE by plane on DATE , ( c ) imported it into GPE on DATE and ( d ) had it in his possession , wrapped in the lining of an anorak , at FAC on DATE . The stratagems the defendant used to hide and transport this cannabis , the ease with which he travelled on several occasions to GPE , GPE and other eastern countries and obtained cannabis in GPE , the connections which he has in that country , his knowledge of how strict customs security measures are in different countries , his previous convictions for drug - related offences , and the large quantity of cannabis he purchased for resale , show him to be particularly dangerous . \"", "It sentenced him to DATE imprisonment and a fine of MONEY . In addition , it suspended his civic rights for DATE and ordered that he be permanently prohibited from re - entering the territory after his release . Lastly , it ordered his placement in an appropriate centre to receive treatment for his drug addiction ( under LAW no . DATE - see paragraph CARDINAL below ) .", "ORG On DATE , on an appeal by the applicant , ORG sitting with CARDINAL judges ( Pentameles efetio ) upheld the judgment of the court of first instance ( see paragraph CARDINAL above ) but reduced the sentence to CARDINAL years’ imprisonment and a fine of MONEY ( judgment no . DATE ) . It also ordered \" the defendant ’s placement in an appropriate prison or in a ORG hospital where he can receive treatment for drug addiction \" .", "However , PERSON was never admitted to any such institution ; he served his sentence in FAC .", "In a letter of CARDINAL DATE the public prosecutor notified the governor of ORG of ORG decision and indicated that the part of the judgment dealing with the applicant ’s placement in a prison with medical facilities did not apply as no such institutions existed . However , he added that he would contact the governor if such an institution opened before PERSON finished serving his sentence .", "ORG While detained at FAC the applicant made CARDINAL applications to ORG ( PERSON plimmeliodikio ) to be released on licence ; CARDINAL of them were made before ORG sitting with CARDINAL judges had delivered its judgment ( see paragraph CARDINAL above ) .", "ORG In his first application , made on DATE , PERSON maintained that he had been cured and had ceased to be at all dependent on drugs during his long stay in prison and after medical treatment . He also stated that he had a wife and family , that he owned a profitable farm in GPE and that he was determined not to reoffend in future . He requested his release on licence under LAW no . DATE ( see paragraph CARDINAL below ) .", "In a decision ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG dismissed the application .", "It began by noting that it was objectively impossible to admit drug addicts to treatment centres as no such centres existed .", "It added :", "\" It is apparent from sections DATE of Law no . DATE ... that a person who has been convicted under that PERSON and has been found to be a drug addict must be placed in an appropriate prison or in a ORG hospital for special treatment . The placement can not last for DATE . During the period of treatment , the convicted person is examined periodically in order to establish whether he has been cured or whether the placement must continue . Periodic reviews begin after DATE and are carried out by the court either of its own motion or on an application by the prosecution . If the court ... considers - after studying the relevant expert ’s report - that the accused has been cured , it orders his discharge from the centre ; if the term of imprisonment to which he has been sentenced is longer than the period of treatment , the prisoner is returned to prison to serve the remainder of his sentence . In that case , if the court considers that there is no serious reason why the prisoner should serve the remainder of his sentence , it orders his release on licence . ... Persons who have become habitual users of drugs and are unable to give up the use of them voluntarily - in other words ` drug addicts’ - are patients and are treated as such under LAW . It is to be noted that the NORP legislation in force ... does not use the scientifically accepted term of ` drug addict’ but the expression ` user of narcotic substances subject to special treatment’ ( section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL ) ... The release on licence of persons convicted under LAW should not be confused with the discharge of convicted drug addicts under the provisions of LAW no . DATE . In the first case the aim pursued is solely that of rehabilitation , whereas in the second case it is also therapeutic ... For an application to this end by a convicted person to be admissible it is a prerequisite that ( a ) he has been placed in a centre to receive treatment for drug addiction and ( b ) he has spent DATE in such a centre and is considered cured ... A problem arises where a convicted person has never been admitted to such a centre . In that case , section CARDINAL does not apply , because the procedural requirement will not have been satisfied . Such a person is deprived of his right to make such an application , which will accordingly be inadmissible . This is not affected by his alleged recovery in prison while serving his sentence . The fact that the prison psychiatrist has certified that he has been cured is of no avail . On the other hand , it raises serious questions and doubts as to the objectiveness of the findings in the psychiatric reports made during the investigation and taken into account by the relevant courts . Although these persons are described as ‘ drug addicts’ ... in these reports , within DATE they are regarded as ‘ completely ORG after non - existent treatment and merely taking aspirin or ORG .", "...", "Besides , the essential requirements for an application to be admissible are that the convicted person has made a full recovery and that there is no serious reason why he should serve the remainder of his sentence . ... In order to make a finding that there is a ‘ serious reason’ , it is necessary to have regard to the criteria laid down in Article CARDINAL para . CARDINAL of LAW . It appears from the case file that the applicant does not satisfy the essential conditions laid down by law , in particular as regards his complete cure . In view of his antecedents ... and character , it is unlikely that the applicant will lead an honest life on leaving prison as he shows a marked tendency to commit drug - related offences . \"", "ORG On DATE the applicant made a second application for release on licence , in which he essentially repeated the same arguments as he had put forward in the first ( see paragraph CARDINAL above ) .", "On DATE ORG dismissed the application ( in decision no . DATE ) in the following terms :", "\" The court is not convinced either from the documentary evidence or from the applicant prisoner ’s personal attendance before it that he is totally cured of his dependence on drugs . He has not been admitted to an appropriate treatment centre and the treatment in FAC is insufficient to cure him of an addiction acquired over a very long period of drug use . In addition , no prison psychiatrist ’s certificate as to the progress of his treatment has been produced ... \"", "ORG On DATE the applicant made a third application , supported by psychiatric certificates of his recovery . He sought to benefit from the provisions of section CARDINAL of Law no . DATE ( see paragraph CARDINAL below ) .", "At the hearing he admitted that he had \" been taking drugs \" since DATE and had even taken heroin in the past . However , he said that he had managed to cure himself of his drug addiction whilst in prison , where conditions were not conducive , and added that , if his imprisonment were to continue , his condition would get worse .", "In a decision ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG reached the following conclusions :", "\" The prison doctor ’s diagnosis is not sufficient to prove that the applicant has recovered . The latter ’s application is inadmissible since he has not been admitted to an appropriate prison similar to the psychiatric clinic at FAC . Furthermore , at the time of the application the applicant had served DATE , DATE and DATE of his sentence and there is a serious reason for his serving the remainder , especially as his criminal record shows that in DATE he was sentenced by ORG to CARDINAL GPE imprisonment for a drug - related offence . \"", "ORG In a letter of CARDINAL DATE the Minister of ORG , replying to an application by PERSON to be placed in a treatment centre for drug addicts , informed him that there was no such centre inside the prison .", "ORG On DATE the applicant made a fourth application for his release on licence , relying on Articles CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) . He said that he had served CARDINAL of his sentence and had been of exemplary conduct throughout his time in prison . He was no longer addicted to drugs and was therefore no longer a danger to society ; his continued detention would be harmful to him and could no longer be justified .", "On DATE ORG ( Symvoulio plimmeliodikon ) of ORG granted his application . It found that he had already served DATE and DATE of his sentence - that is to say CARDINAL of the sentence imposed and CARDINAL DATE ( Article CARDINAL of LAW ) - and that during his time in prison he had been of good conduct , had shown repentance , had complied with prison regulations and had not incurred any disciplinary penalties .", "ORG The relevant provisions of LAW . DATE are as follows :", "\" ( CARDINAL ) The prevention of pharmaceutical dependence on narcotic substances within the meaning of LAW shall be organised at CARDINAL levels :", "( a ) preventive information ;", "( b ) treatment ;", "( c ) reintegration into society .", "( CARDINAL ) For the purposes of implementing this programme , there shall be set up by joint decisions , published in ORG , of ORG and the Minister competent in each given case :", "( a ) ...", "( b ) special drug - addiction units and prisons with medical facilities ;", "( c ) ... \"", "\" ( CARDINAL ) A term of imprisonment of DATE and a fine of CARDINAL drachmas shall be imposed on anyone who :", "( a ) imports or exports drugs or causes them to transit through GPE ;", "( b ) sells or buys drugs or makes them available in any way whatsoever to third parties or acts as an intermediary or stores drugs or puts drugs into storage ;", "...", "( g ) possesses or transports drugs in any manner and by any means whatsoever , either on NORP territory or alongside or across territorial waters or in NORP airspace ; ... \"", "\" Anyone who commits any of the offences referred to in DATE , DATE and CARDINAL shall be liable to life imprisonment if he is a reoffender or if he acts by way of occupation or habitually or if he has acted with a view to causing minors to use drugs or if the circumstances in which the offences were committed show him to be particularly dangerous . \"", "\" ( CARDINAL ) Anyone who solely for their own use obtains or possesses by any means whatsoever a small quantity of drugs or uses drugs shall be liable to imprisonment . The sentence shall be served in a special prison with medical facilities .", "\" ( CARDINAL ) Persons who have become habitual users of drugs and can not give up the use of them voluntarily shall receive special treatment in accordance with the provisions of this PERSON .", "( CARDINAL ) The court shall determine whether the conditions referred to in the preceding subsection are met in the case of the accused or convicted person after an examination at a specialist treatment centre for drug addicts ...", "( CARDINAL ) An offender to whom all the conditions set out in subsection ( CARDINAL ) apply shall , if found guilty of", "( a ) the offence under LAW ( CARDINAL ) , not be punished , but will be subject to the application mutatis mutandis of the provisions of the second paragraph of section CARDINAL ( CARDINAL ) of this PERSON ;", "( b ) the offences referred to in DATE , DATE or DATE , be liable to CARDINAL months’ imprisonment and a fine of CARDINAL ; ...", "( c ) the acts referred to in section CARDINAL , be liable to a maximum of CARDINAL years’ imprisonment and a fine of MONEY . \"", "\" ( CARDINAL ) Any offender in respect of whom the conditions set out in LAW ( CARDINAL ) and ( CARDINAL ) of this PERSON are met and who has been detained pending trial in accordance with LAW or who has been convicted of any offence whatsoever shall be placed in an appropriate prison with medical facilities . If he is held not to be criminally responsible under LAW , he shall be placed in a ORG hospital . In both cases he shall be subject to a special treatment programme determined by ORG .", "( CARDINAL ) Where a person is sentenced to a term of imprisonment , any time spent in hospital shall be reckoned as time served in prison . \"", "\" ( CARDINAL ) If an offender ’s period of hospitalisation under LAW DATE , which is the minimum period of treatment , the head of the institution in which he has been placed shall at DATE make a report on the progress of his treatment to the public prosecutor at ORG for the place where the sentence or preventive measure is to be carried out and shall indicate whether the convicted person should remain in the institution . On the basis of this report ORG , sitting with CARDINAL judges , shall decide whether detention should continue . The court , which may also order an expert ’s report under LAW ( CARDINAL ) , shall make a final decision whether detention in hospital should continue .", "( CARDINAL ) If a person detained in a hospital has recovered and was found not to be criminally responsible under LAW , the court shall order his release on an application by the public prosecutor . If part of his sentence remains to be served , the court shall decide whether there is a serious reason why he should serve the remainder , but otherwise shall order his release on licence . The conditions attached to his release may concern his way of life , and in particular his place of residence , and include an obligation to attend the clinic , special drug - addiction centre or general hospital nearest to his place of residence whenever requested to do so for the purposes of checking that the conditions are being complied with ...", "( CARDINAL ) If the person detained is not released under the preceding subsection , the court shall decide at DATE , on application by the detained person himself , the director of the institution in which he is detained or the public prosecutor , whether he should be released .", "... \"", "Articles CARDINAL para . CARDINAL and CARDINAL of the Criminal Code provide :", "\" Anyone who has been sentenced to a term of imprisonment may , after serving CARDINAL of his sentence and in any event DATE or , in the case of a life sentence , DATE , be released on licence in accordance with the following provisions . \"", "\" ( CARDINAL ) A prisoner shall only be released on licence if he has been of good conduct while serving his sentence , has performed as far as possible his obligations towards the victim ... and if his antecedents , his personal and social circumstances in general and his character ... give cause for hope that he will lead an honest life in the future .", "( CARDINAL ) The prisoner may be required to comply with certain obligations relating to his way of life and in particular his place of residence . These obligations may at any time be withdrawn or varied on application by the prisoner .", "... \"", "ORG LAW provides :", "\" Doubts as to the nature or length of the sentence Any doubt or objection as to the execution of the judgment or as to the nature or length of the sentence shall be decided by ORG for the district where the sentence is to be served . The public prosecutor or the convicted person may appeal to ORG on points of law against such a decision . \"", "ORG In a circular of CARDINAL DATE the Minister of Justice informed the public prosecutors at the courts of appeal and the courts of first instance and prison governors that there were no prisons with medical facilities in GPE as mentioned in section CARDINAL of Law no . DATE . Consequently , it was not possible to implement court orders directing that drug addicts be placed in such prisons under that section ." ]

[]

[]

[]

[ "5" ]

[ "5-1" ]

[]

[ "Mr PERSON , a NORP national , is currently serving a DATE prison sentence at ORG ) . Previously he resided at PERSON where he was employed as a hotel receptionist . At CARDINAL time he had been the manager of the hotel and before that the director of several companies in which he owned shares . These consisted of gaming clubs , hotels and restaurants .", "Mr ORG detention from DATE to CARDINAL DATE was ordered in connection with criminal proceedings conducted in the NORP courts from DATE ( when he was arrested and charged ) to DATE ( when his appeal on points of law against conviction was dismissed ) . During this time the applicant underwent CARDINAL periods of detention before being tried ( from DATE to CARDINAL DATE , from DATE to DATE , from DATE to CARDINAL DATE and from DATE to DATE ) .", "In a judgment of CARDINAL DATE , the ORG found that there had been a breach of LAW para . CARDINAL and Article CARDINAL para . CARDINAL ( article CARDINAL , article DATE ) of LAW no . CARDINAL ) .", "ORG On DATE ORG of ORG indicted the applicant on charges of knowingly aiding and abetting \" the importation and use on NORP territory of counterfeit foreign bank notes \" and knowingly aiding and abetting the commission of the related offence of \" unlawful circulation of such counterfeit bank notes within the customs area \" . It committed the applicant for trial in FAC and issued a delivery into custody order ( ordonnance de prise de corps ) directing that the accused \" [ was to ] be taken to or held at the prison \" within the jurisdiction of that court .", "Mr Kemmache had been at liberty since DATE and no longer subject to court supervision since DATE , when , on DATE , he reported to GPE prison to be taken into custody . In so doing he was complying with the delivery into custody order of CARDINAL DATE and LAW , as the trial in ORG had been set down for CARDINAL , CARDINAL and DATE .", "One of his CARDINAL co - accused , PERSON , sought the adjournment of the proceedings on the ground that his lawyer , who had been designated by the authorities to act for him on DATE , had not been able to familiarise himself with the case - file . Mr Kemmache joined this application , whereas the third co - accused , Mr PERSON , opted to be tried immediately .", "ORG allowed these applications by a decision of DATE and ordered the separation of the cases . Mr PERSON was , accordingly , the only one of the accused to be tried on CARDINAL and DATE .", "ORG On DATE Mr Kemmache applied to ORG for his release . On DATE his application was rejected on the following grounds :", "\" ...", "The application to have the proceedings adjourned was made not only by PERSON , but also by PERSON .", "The delivery into custody order executed on DATE remains in force throughout the trial proceedings .", "In view of the sentence which he risks , the accused is not able to provide sufficient guarantees that he will appear for trial .", "Mere court supervision , even subject to the payment of a security , appears at this stage of the proceedings inadequate to ensure that the accused ORG will appear for trial .", "In addition , the risk of pressure being brought to bear on witnesses can not be ruled out .", "... \"", "ORG On DATE the applicant filed a further application for release with ORG of the Aix - en - Provence Court of Appeal ; he relied in particular on LAW paras . CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article CARDINAL , article DATE ) and also on Article CARDINAL paras . CARDINAL and CARDINAL ( article DATE , article DATE ) of the Convention .", "By a decision of CARDINAL DATE ORG ordered his release subject to court supervision and to the payment of a security set at MONEY ( FRF ) . FRF CARDINAL of this amount was intended to ensure that he appeared for trial and the remainder to guarantee payment of such costs and fines as he might be required to pay . It considered , inter alia :", "\" ...", "PERSON was committed for trial in ORG by a decision of ORG of ORG of CARDINAL DATE .", "He is detained pursuant to the delivery into custody order issued with that decision .", "...", "PERSON had been released on CARDINAL DATE and it would not therefore appear that his detention is necessary unless there are new considerations justifying such a step .", "However , it seems that the case is ready for trial at a forthcoming session of ORG .", "Given the numerous disruptions to these proceedings as a result of the use by the accused persons of all the available means to delay the trial , it is necessary to take steps to ensure that ORG appears for trial .", "To this end his release must be subject to court supervision and to the obligation to pay a security .", "Kemmache had previously paid CARDINAL securities amounting to a total of FRF CARDINAL,CARDINAL in accordance with a court supervision order .", "By a decision of CARDINAL DATE ORG ordered the lifting of the court supervision order and the repayment of the securities on the ground that , purely as a matter of law , since the time - limit for giving judgment had expired , the court supervision order had automatically to be rescinded .", "In his memorial PERSON indicated that there had been no significant change in the guarantees that he could provide to ensure his appearance for trial .", "He is still an employee of the company ‘ ORG de Pantin’ , in which he has shares and the only alteration had been in his family circumstances .", "The security should therefore be set at ORG CARDINAL,CARDINAL , an amount which he had earlier been in a position to pay and which corresponds to his financial circumstances in view of his salary , and above all his position as partner .", "... \"", "ORG On DATE ORG varied the conditions for the payment of the security to allow it to be paid in DATE instalments of FRF CARDINAL .", "ORG On DATE Mr Kemmache filed an application for release with ORG . It was dismissed on DATE on the following grounds :", "\" ...", "Kemmache , who was at liberty and not subject to court supervision surrendered to be taken into custody DATE before he was due to appear in ORG , in accordance with the provisions of LAW . By virtue of those provisions the delivery into custody order continues to produce its effects until the final determination of the charges set out in the indictment .", "ORG release was ordered by a decision of CARDINAL DATE . It follows that he is no longer detained pursuant to the delivery into custody order , but because he has failed to satisfy the conditions of court supervision requiring him to pay the first instalment of the security prior to his release .", "The case is ready for trial at a forthcoming session of ORG . Given the numerous disruptions to these proceedings and in particular the use by the accused persons of all the available means to delay the trial , it is necessary to take steps to ensure that ORG appears for trial . To this end his release must remain subject to court supervision and to the obligation to pay a security .", "As was noted in the decision of CARDINAL DATE the amount of the security corresponds to ORG financial circumstances and in particular to his position as a partner in the ‘ Sté Nouvelle Hôtelière de Pantin’ ; he has not shown that his businesses have failed , as he maintained in his pleadings , or that he has insufficient funds to pay the sum fixed as security .", "... \"", "ORG On DATE , after paying the first instalment of the security , FRF CARDINAL,CARDINAL , Mr Kemmache was released .", "ORG On DATE ORG again refused to lift the court supervision order .", "ORG The applicant paid a second instalment of the security on DATE . He subsequently reported to the principal public prosecutor at the Aix - en - ORG of Appeal stating that he was not in a position to pay the remaining instalments and that he was ready to surrender to custody .", "ORG By CARDINAL decisions of CARDINAL DATE ORG dismissed Mr ORG appeals against the decision of ORG of DATE and those of ORG of DATE and CARDINAL DATE .", "In the first it held , inter alia , as follows :", "\" ...", "... the delivery into custody order , properly executed , constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment , without its being necessary to order its continuation where the accused ’s case is separated from other proceedings and adjourned to a subsequent session .", "... \"", "In the second and third decision , it found that :", "\" ...", "... as PERSON was lawfully detained , his release ordered by the impugned decision could be made subject to a court supervision order pursuant to the combined provisions of ORG and CARDINAL of LAW ... [ and ] ... according to the terms of LAW para . CARDINAL ( article CARDINAL ) of the ... Convention ... , release may be conditioned by guarantees to ensure that the accused will appear for trial .", "... \"", "ORG On DATE ORG sentenced the applicant to a fine of ORG CARDINAL,CARDINAL,CARDINAL and eleven years’ imprisonment , the latter term being reduced to DATE on DATE by ORG , to which the case had been remitted .", "The appeal on points of law lodged against that last decision was dismissed by ORG on DATE .", "ORG In proceedings concerning serious offences ( matière criminelle ) , \" [ the decision indicting the accused ] shall include an order for the accused ’s delivery into custody ... \" ( LAW ORG \" ) .", "ORG Under LAW CCP :", "\" An accused who is not in remand custody must surrender to be taken into custody not DATE before the trial hearing in ORG ...", "The delivery into custody order shall be enforced against him if , having been duly summoned through administrative channels to report to the registry of ORG and without a legitimate excuse , he fails to appear on DATE to be examined by the President of ORG . The same applies in the situation provided for in LAW [ , that is if he deliberately fails to comply with the conditions of court supervision ] . \"", "According to the case - law of ORG ( see paragraph CARDINAL above ) , the delivery into custody order , lawfully executed , constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment .", "ORG Any remand prisoner may apply for his release \" in whatever circumstances \" and \" at any stage in the proceedings \" , including therefore the trial proceedings . Where the case has been referred to the trial court it is for that court to rule on the application for release . Before committal for trial in ORG and in between ORG sessions , such applications are heard by ORG ( Article CARDINAL - CARDINAL ORG ) .", "ORG In such circumstances the decision dismissing an application for release must give specific reasons in accordance with the conditions laid down in LAW ORG ( crim . DATE , PERSON ( NORP ) DATE , p. CARDINAL ; DATE , Bulletin criminel no . CARDINAL ; CARDINAL DATE , ibid . no . CARDINAL , DATE , sommaires , p. CARDINAL ) , in other words \" set out the considerations of fact and of law on which it is based ... with reference to LAW .", "Under LAW , in proceedings concerning serious offences , detention on remand may be ordered or continued :", "ORG where it \" is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims , or collusion between the accused and accomplices \" ;", "ORG where it \" is necessary to preserve public order from the prejudice caused by the offence or to protect the accused , to cause the offence to cease or to prevent its repetition or to ensure that the accused remains available to the judicial authorities \" .", "It may also be ordered , in the circumstances provided for in LAW , \" where the accused deliberately fails to comply with the conditions of court supervision \" .", "ORG The powers conferred on the investigating judge by Articles CARDINAL and CARDINAL are , whatever the circumstances , vested in the court with jurisdiction as defined by Article CARDINAL - CARDINAL ( Article CARDINAL - CARDINAL CCP ) .", "The relevant court may therefore place the accused under court supervision and , at any moment , impose on him CARDINAL or more new conditions , revoke conditions entirely or in part , vary CARDINAL or more conditions or accord an occasional or temporary derogation from the obligation to comply with certain conditions ( LAW ORG ) . It may also , at any moment , direct that the court supervision order be lifted ( LAW ORG ) .", "ORG A court supervision order may require the accused to lodge a security , the amount of which and the time - limits for the payment of which , as a single payment or in instalments , are fixed , inter alia , having regard to his financial circumstances ( LAW ) . The object of this security is to guarantee ( LAW ORG ) :", "ORG the accused ’s presence for all the steps of the proceedings and for the execution of the judgment , and , where appropriate , the enforcement of other obligations imposed on him ;", "ORG the payment in the following order of : ( a ) the costs incurred by the party seeking damages , reparation for the damage caused by the offence and sums owed in restitution , and maintenance payments , where the accused is facing proceedings for their non - payment ; ( b ) costs incurred by the prosecuting authority ; ( c ) fines .", "ORG If the accused deliberately violates the conditions of the court supervision order , the competent court may , whatever the length of the prison sentence risked , order his detention on remand . The delivery into custody order is then executed by order of the President of ORG or , in between sessions , the President of ORG ( LAW ) ." ]

[]

[]

[]

[ "5" ]

[ "5-1" ]

[]

[ "The applicant was born in DATE and lives in GPE Tagil , GPE region . He is currently serving a prison sentence in PERSON .", "In DATE the applicant and a certain PERSON were arrested on suspicion of CARDINAL murders and were placed in detention . The applicant alleged that he was ill - treated while in detention . However , he did not lodge any complaints in that respect with the competent domestic authorities .", "On DATE ORG ( “ the trial court ” ) heard the case in the presence of the applicant , his counsel PERSON . and his co - accused PERSON The applicant submitted that PERSON had tried to strangle the first victim with a cord , but had not managed to do so and asked him for help . So , he had tightened the cord . Afterwards he strangled the second victim . He further maintained that the third victim was killed by his co - accused . Co - accused PERSON submitted that the applicant had killed the third victim with a knife .", "The trial court considered that PERSON ’s testimony regarding the third murder was coherent and consistent with other evidence submitted at trial and therefore deserved more credit . It found the applicant guilty of CARDINAL murders and theft and sentenced him to DATE imprisonment . It found PERSON guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to DATE imprisonment . The judgment stated that the applicant and his co - accused could appeal to ORG of GPE within DATE of the date on which they received a copy of the judgment .", "In their appeal against the judgment of CARDINAL DATE the applicant and his counsel complained , in particular , that the trial court ’s conclusions regarding the applicant ’s guilt in the first murder were not supported by the evidence submitted at trial . The first victim had been strangled by PERSON and when the applicant approached her , she was already dead . The applicant ’s conviction for the third murder had been based solely on PERSON ’s testimony which was supported by nothing else but the court ’s suppositions . The applicant and his counsel requested that the judgment be quashed and the case be remitted for a fresh trial . When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing . The applicant ’s co - accused did not appeal against her conviction .", "On DATE ORG of GPE ( “ the ORG ” ) examined the applicant ’s appeal in the presence of the prosecutor and dismissed it . Neither the applicant nor his counsel were present at that hearing .", "On DATE the Deputy Prosecutor General of GPE lodged an application for supervisory review of the appeal decision of DATE with the Presidium of ORG , on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of DATE and therefore , could not attend it . He requested that the above decision be quashed and the case be remitted for a fresh appeal examination .", "On DATE the ORG of ORG quashed the decision of DATE and remitted the case for a fresh examination of the appeal . It appears that neither the applicant nor his representative were present at that hearing .", "On DATE the head of the detention facility in which the applicant was held received a telegram which read as follows : “ Inform PERSON that his case will be heard by ORG of GPE at TIME on DATE ” . On the same date the applicant read that telegram . A similar notification was also sent to the applicant ’s legal counsel PERSON .", "On DATE ORG held an appeal hearing in the absence of the applicant and his counsel . It heard the prosecutor who requested that the applicant ’s conviction on CARDINAL counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired .", "Having studied the materials of the case , the appeal court found , in particular , that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tightening the cord , the first victim was still alive and that therefore , he had killed her . It further confirmed the trial court ’s conclusion that the applicant had also killed the third victim . ORG concluded that the trial court had correctly characterised the applicant ’s actions as murders and had imposed an appropriate sentence . It upheld the applicant ’s conviction for the murders , lifted his sentence in respect of theft and sentenced the applicant to DATE and QUANTITY months’ imprisonment .", "It does not appear from the decision of DATE that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it .", "On DATE the applicant , who allegedly was not aware of the appeal hearing of DATE , but at some point learned that the appeal decision of CARDINAL DATE had been quashed on DATE , sent additional grounds of appeal to the appeal court . On the same date he also lodged a special request for leave to appear at the appeal hearing and requested the appeal court to provide him with legal counsel .", "Appeal courts shall verify the legality , validity and fairness of the judgment of the trial court ( Article CARDINAL ) .", "If a convicted person wishes to take part in the appeal hearing , he shall indicate this in his statement of appeal ( LAW ) .", "NORP Parties shall be notified of the date , time and place of an appeal hearing DATE in advance . Whether a convicted person held in custody shall be summoned shall be decided by the court . A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link . The court shall make a decision with respect to the form of participation of the convicted person in the court session . A defendant who has appeared before the court shall always be entitled to take part in the hearing . If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this shall not preclude examination of the case ( LAW DATE ) .", "At the hearing the appeal court shall hear the statement of the party who lodged the appeal and the objections of the opposing party . The appeal court shall be empowered , at a party ’s request , to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party ( LAW ) .", "NORP The appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment ( LAW ." ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-c" ]

[]

[]

[]

[ "The applicants live in the village of GPE in the GPE region in the vicinity of a radiochemical plant of ORG ( hereinafter “ the plant ” ) , owned and operated by the ORG .", "On an unspecified date in DATE the applicants sued the plant for compensation for the damage to their health caused by its activity . They also sought an injunction banning the burial ground disposal of nuclear waste . On DATE the ORG of the LOC registered the statement of claim and listed the first hearing for DATE .", "As ORG was situated in the area with restricted access , the court asked the applicants to provide personal information necessary to prepare a pass for them .", "The applicants did not appear at the hearing of DATE . Their representatives were present . ORG ordered an expert examination . On DATE ORG quashed the decision because it had been taken in the applicants’ absence .", "On DATE the applicants provided their personal information and were issued with a pass by ORG .", "At the hearing of CARDINAL DATE the applicants modified their claims . They challenged the exploitation licence granted to the plant by ORG and claimed compensation in respect of non - pecuniary damage . ORG was cited as co - defendant and the hearing was adjourned until DATE .", "On DATE the applicants did not appear and the hearing was adjourned until DATE .", "NORP On DATE CARDINAL plaintiffs came to the court and the hearing was adjourned until DATE .", "On DATE the applicants again modified their claims and asked the court to call witnesses . The hearing was adjourned until DATE .", "Hearings were held on DATE and DATE .", "On DATE the ORG of GPE ordered ORG to perform an expert examination at the defendant ’s request and stayed the proceedings . On DATE the case file was sent to ORG .", "On DATE ORG upheld the decision of DATE on appeal .", "During DATE ORG sent CARDINAL warnings to ORG , asking it to perform the examination or , if it was not possible , to return the case file to the court .", "On DATE ORG health returned the case file to ORG , stating that it had not been possible to perform the examination because the defendant had not paid for it . On DATE ORG resumed the proceedings .", "At the hearing of DATE the applicants withdrew their claims against ORG and amended their claims against the plant . The hearing was adjourned until DATE .", "ORG held hearings on DATE . On DATE the ORG of GPE dismissed the ORG claims as unsubstantiated .", "On DATE ORG upheld the judgment on appeal ." ]

[ "6" ]

[]

[]

[]

[]

[]

[ "The applicants , PERSON , Mr PERSON GPE , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . PERSON and PERSON PERSON GPE live in GPE and Mr PERSON and Mr PERSON live in LOC . The applicants are represented before the ORG by Mr PERSON and Ms GPE GPE , lawyers practising in GPE .", "ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .", "The facts of the case may be summarised as follows .", "An ancestor of the applicants owned agricultural land in the area of LOC , situated close to the seashore . In DATE the land was included in the territory on which a new sea resort called PERSON was constructed .", "NORP The resort was initially managed by a ORG - owned enterprise , which was , in DATE , transformed into a ORG - owned company . This entailed , under the relevant domestic legislation , its becoming an owner of the assets it had until then used and managed . In DATE it was registered as a joint - stock company . DATE the majority of its shares were privatised . After the privatisation the company was named GPE AD .", "In the meantime , after LAW ( “ the ORG ” ) entered into force in DATE ( see paragraph CARDINAL below ) , on DATE the applicants requested the restitution of their ancestor ’s land .", "NORP In a decision of DATE the competent body , the LOC agricultural land commission , adopted a decision in favour of their request for the restoration of their property rights to a plot of QUANTITY in the area of GPE . The decision did not contain reasoning mentioning possible property claims of the company managing the resort , nor whether the plot was subject to restitution in accordance with the criteria set in the law in force at the time .", "On DATE the applicants obtained a notary deed for the plot of land . On DATE the land commission issued an act for the formal transfer to them of possession of the plot . However , the applicants never obtained actual possession and did not start using the land , which remained within the fenced territory of the resort . The applicants did not bring proceedings to challenge this situation .", "In DATE Duni AD brought rei vindicatio actions against all persons who had had their property rights to land in the territory of the resort restored after DATE . In the applicants’ case , the company argued that the land commission ’s decision of DATE had been null and void because the commission had not been competent to restore rights to land which had ceased to be agricultural before the adoption of the ORG in DATE .", "The proceedings ended by final judgment of ORG . The domestic courts found that the land at issue had been included in the resort ’s territory since DATE , had been used and managed by the ORG - owned enterprise existing before DATE and had become its property after its transformation into a ORG - owned company . Under the relevant legislation this land had not been subject to restitution . The land commission , in not taking the above circumstances into account , had given a decision which was null and void . Lastly , although they acknowledged that the land had remained within the fenced territory of the resort , the courts ordered the applicants to surrender possession .", "NORP In particular , in its judgment the first - instance ORG noted that :", "“ There is no proof and it has not been alleged that at the time of restitution [ the land commission ] took into account the fact that the plot has been subject to urban planning . ”", "It found in addition that :", "“ By section CARDINALb of the [ ORG ] , in a case such as the present the owners have to be offered compensation , because the land is not subject to restitution , as is accepted in the constant judicial practice . ”", "NORP In its judgment ORG noted the following :", "“ The present case concerns the construction of a resort , which is a complex of buildings , installations , promenades , alleys , car parks , roads and other communicating areas . Its territory is fenced and the totality of the land is being used for the resort ’s needs . The plot at issue is situated at the centre of the resort , as seen from the plan presented by the [ court - appointed expert ] . Its restitution to the previous owners and its physical separation from the resort would infringe upon [ the latter ’s ] entirety and unity . In adopting the provision of section CARDINALb of the [ ORG ] the legislator aimed at preserving and guaranteeing what already existed as a complex of buildings and installations , and that is why it has been provided that such land would not be subject to restitution , but that the owners would be compensated through other means . What is decisive is the plot ’s situation at the time of the law ’s adoption in DATE . ... The plot ’s separation through restitution does not correspond to this aim of the law and would have gone contrary to its spirit . ”", "The applicants have not claimed compensation in lieu of restitution through comparable land or compensation bonds under the ORG or through shares in GPE DATE under the legislation regulating the privatisation of former ORG - owned enterprises .", "LAW ( ORG за собствеността и ползването на земеделските земи , “ the ORG ” ) , adopted in DATE , provides , inter alia , that persons , or their heirs , whose land has been collectivised , may request restoration of their ownership rights under certain conditions . Restitution can be in kind , if the relevant conditions have been met , or through compensation with other comparable land or compensation bonds .", "Section CARDINAL of the ORG , introduced in DATE , provides that former owners would receive compensation where the land formerly owned by them “ has been constructed upon or a complex of construction works ( мероприятия ) which do not permit restoration of property have been carried out ” .", "The remaining relevant domestic law and practice concerning restitution of agricultural land and compensation in lieu thereof , and the transformation and privatisation of public enterprises , have been summarised in the ORG ’s judgments in the cases of GPE and GPE v. GPE ( no . QUANTITY , § § DATE , DATE ) and PERSON PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .", "Rei vindicatio is provided for under section CARDINAL of LAW . This provision and the relevant case - law require that the plaintiff in rei vindicatio proceedings must prove CARDINAL elements : CARDINAL ) the validity of his title and CARDINAL ) the fact that there are no legal grounds for the defendant to hold the property ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON V. ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE an officer of ORG stopped the applicant for having exceeded a displayed QUANTITY ( TIME ) speed limit by QUANTITY . The officer , using a speed measurement device , noted that the speed limit had been exceeded . He drew up an official report in the presence of the applicant , who made no objections , and sent the report to ORG ( “ the ORG ” ) for its consideration .", "On DATE ORG considered the applicant ’s case in the absence of any party . It found that the applicant had exceeded the speed limit while driving a vehicle . It further found the applicant guilty of the offence defined in LAW , and imposed a fine of CARDINAL NORP hryvnias ( ORG ) on him . ORG noted in its judgment that the applicant had been notified of the date of the hearing . According to the applicant , he never received any notice concerning the hearing in FAC .", "On DATE the applicant was served with a copy of the judgment of CARDINAL DATE . The judgment was not subject to an ordinary appeal .", "On CARDINAL June DATE a prosecutor of ORG , replying to a request by the applicant for an extraordinary review of the judgment of CARDINAL DATE , informed him that there were no grounds for lodging an objection ( протест ) against that judgment .", "On DATE the applicant submitted to the President of ORG a request for an extraordinary review of the judgment of DATE . The applicant contended that he had not been notified of the hearing and that his case had been wrongly determined .", "By a letter dated DATE the President of ORG notified the applicant that his request for an extraordinary review had been refused since the impugned court judgment was lawful and reasonable .", "LAW prohibited drivers of vehicles from , inter alia , exceeding the prescribed speed limit by QUANTITY . A breach of that provision was punishable by a written warning or a fine of up to an amount equal to the tax - free DATE income .", "In accordance with LAW , any administrative case had to be considered in the presence of the person concerned . The case could be considered in the absence of that person only if there was information that he or she had been duly notified of the hearing and if he or she had not made any request for an adjournment .", "LAW provided , inter alia , that the fine was to be paid DATE of receipt of the relevant decision .", "Article CARDINAL of the Code provided that in the event of failure to pay the fine within the time - limit provided under LAW the decision imposing the fine had to be enforced by the bailiffs ." ]

[]

[]

[]

[]

[]

[]

[ "All applicants DATE or their ancestors – owned real estate which was expropriated during DATE or DATE . At the time of the expropriations they were awarded compensation in the form of flats which the authorities undertook to construct and deliver , but which have DATE with CARDINAL exception ( see paragraph CARDINAL below ) – remained unfinished and undelivered until present . The specific circumstances of each case are described below .", "PERSON and her husband owned jointly a house with a yard in the centre of GPE .", "By a mayor 's order of CARDINAL DATE their house was expropriated with a view to the construction of a school and a street . The order , based on section CARDINAL ) of the Territorial and Urban Planning Act of DATE ( „ Закон за териториалното и селищно устройство “ – “ TUPA”)(see DATE and DATE below ) , provided that PERSON and her husband were to be compensated with CARDINAL flat and their son , PERSON , was to be compensated with another flat . Both flats were to be situated in a building which the municipality intended to construct . The expropriated house was valued at CARDINAL old NORP levs ( ORG ) .", "By a supplementary order of DATE , based on section CARDINAL of PERSON ( see paragraph CARDINAL below ) , the mayor indicated the exact flats with which PERSON , her husband , and PERSON were to be compensated , specifying the building in which they would be located and their precise surface .", "The expropriated house was pulled down and the construction of the school started . PERSON and her husband , and their CARDINAL children , PERSON PERSON and PERSON , were settled in a municipal flat in the outskirts of GPE , pending the construction of the flat offered in compensation .", "In DATE PERSON husband died .", "The construction of the building in which the flats offered in compensation would be located did not start as planned , apparently because of financial difficulties experienced by the municipality .", "On DATE PERSON , PERSON and PERSON lodged complaints with the municipality , the regional governor , the ORG , ORG and ORG , stating that the flats allocated to them as compensation had not been constructed , apparently due to lack of funds . They stated that they had been waiting in vain , despite their repeated complaints . They also alleged that since DATE the municipality had built and sold flats to other persons , but had never found funds to discharge its obligation to them . They requested to be given other flats as compensation . Their request was placed on a waiting list .", "NORP By letters of DATE and DATE the municipality informed PERSON , PERSON and PERSON that the construction of the flats was expected to start in DATE and that additional funds were needed .", "On DATE PERSON died . PERSON and PERSON are her only heirs .", "In DATE the municipality served on PERSON and Ms PERSON updated orders under section CARDINAL of ORG , which had been made on DATE and CARDINAL DATE respectively . The orders provided that the CARDINAL applicants were to be offered other flats , not the originally intended ones , due to a modification of the plan of the building under construction .", "At the time of the latest information from the CARDINAL applicants ( DATE ) , the construction of the building in which their flats were to be situated had advanced , but it was still unfinished .", "Mr GPE owned part of a house with a yard in GPE , where he lived .", "By a mayor 's order of CARDINAL DATE the house was expropriated for the construction of a subway station . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that Mr GPE was to be compensated with a threeroom flat in a building which the municipality intended to construct . The house was valued at ORG .", "Shortly thereafter the house was occupied and Mr GPE was settled in a small municipal flat in the outskirts of the city pending the construction of the flat offered in compensation .", "In DATE the expropriated house was pulled down and a subway station was built on the site .", "By a supplementary order of CARDINAL DATE , based on section CARDINAL of ORG , the mayor indicated the exact flat with which PERSON GPE was to be compensated , specifying the exact building in which it would be located and its precise surface .", "The construction of this building never started , apparently because of financial difficulties experienced by the municipality and also because its construction would interfere with the ongoing process of restitution of certain plots of land to their former owners .", "Mr GPE made numerous complaints to the municipal authorities , to no avail . By a letter of DATE the deputymayor advised him that the construction of the building in which the flat offered in compensation would be situated could not start because of changes in the zoning plan . After a new plan was drawn up , a new building designed , and financing secured for its construction , Mr GPE would be invited to choose another flat .", "On DATE Mr GPE requested from the municipality to be allotted another flat , to no avail .", "Meanwhile , on DATE , Mr GPE commenced proceedings against the municipality under ORG ( see paragraph CARDINAL below ) . He complained that the municipality had failed to deliver the flat offered in compensation and sought FAC as compensation for the pecuniary and nonpecuniary damage he had suffered . After being invited by the court to specify and itemise his claims , on DATE Mr GPE stated that he sought BGL CARDINAL as compensation for the pecuniary damage he had sustained on account of the delay in the delivery of the flat , and BGL CARDINAL as compensation for the non - pecuniary damage , which consisted in insecurity and the impossibility to use and dispose of his property .", "In a judgment of DATE the ORG partially allowed Mr GPE 's action , awarding him CARDINAL new NORP levs ( ORG ) in compensation for nonpecuniary damage and ORG CARDINAL.CARDINAL in compensation for pecuniary damage . It held that the municipality 's failure to provide Mr GPE with a flat was an omission contrary to section CARDINAL of ORG .", "Mr GPE appealed , claiming that the amount of compensation was too low . The municipality of GPE also appealed .", "ORG reversed ORG judgment , holding that the applicant had failed to request the cancelling of the expropriation and had thus been the one at fault for the obtaining situation .", "Mr GPE appealed on points of law to ORG .", "In a judgment of DATE that court quashed ORG judgment and remitted the case . It held , inter alia , that Mr GPE had suffered damages because of the municipality 's failure to build and deliver him a flat . The restitution of the expropriated property was impossible because the house had been pulled down for the construction of a subway station . Since the omission of the municipality had been unlawful , Mr GPE was entitled to claim compensation for the delay . The court further held that the authorities ' obligation to compensate the damage suffered by Mr GPE on account of the delay , although stemming from their failure to provide him with a flat , was different from that underlying obligation .", "On remittal , ORG , in a judgment of DATE , upheld ORG judgment , but awarded to Mr GPE an additional ORG in compensation for pecuniary damage , together with interest as from DATE , when the action had been commenced ( see paragraph CARDINAL above ) , until settlement . It held , inter alia , that the municipality 's failure to build and deliver the flat allotted to Mr GPE in compensation for his house had been an illegal omission within the meaning of section CARDINAL of ORG and that the damage suffered by the applicant was a direct and proximate result of this omission . The court also held that the applicant 's allegation that the amount of the compensation was too low was partially wellfounded . The applicant , who was an acting officer in the army , had been living on army premises during DATE and could have rented the prospective flat out . The amount which he would have received in rent DATE , when the flat had been due , and DATE , when the action had been commenced , was BGN CARDINAL .", "The municipality appealed to ORG , arguing that the action was inadmissible and unfounded .", "ORG declared the appeal inadmissible by a decision of DATE . It held that the amount in controversy was below ORG CARDINAL and that ORG judgment was therefore not subject to appeal on points of law . The municipality did not appeal against this decision and ORG judgment of DATE entered into force .", "Following the entry into force of ORG judgment , on DATE Mr GPE was issued a writ of execution against the municipality of GPE for the amount of BGN MONEY in respect of pecuniary and nonpecuniary damage and BGN CARDINAL in respect of costs and expenses for the proceedings , plus interest at the statutory rate as from CARDINAL DATE , when the action had been commenced ( see paragraph CARDINAL above ) , until settlement .", "On DATE Mr GPE presented the writ to the financial department of the municipality and requested to be paid the awarded amount . On DATE , in response to an inquiry by Mr GPE , the municipality informed him that no amounts had been earmarked in its budget for the payment of the amount due to him . On the date of the latest information from the parties ( DATE ) , the amount was still unpaid .", "Ms Metodieva owned , together with her sister , CARDINAL of a house with a yard in the town of ORG , which she rented out .", "By a mayor 's order of CARDINAL DATE the house was expropriated for the creation of a municipal green space . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that PERSON was to be compensated with a oneroom flat in a building which the municipality intended to construct . PERSON sister was compensated in cash . The applicant 's share of the house was valued at ORG that amount represented CARDINAL of the value of PERSON and her sister 's share of the house , which amounted to ORG ) .", "The construction of the building never started because of financial difficulties experienced by the municipality , and it was eventually altogether left out of the municipal construction program .", "Meanwhile PERSON house was pulled down . Instead of a green space , in DATE an office building for ORG was constructed on the plot .", "PERSON made an attempt to obtain the cancelling of the expropriation , relying on a DATE restitution law , but her attempt failed as that law only concerned expropriations carried out before DATE .", "In DATE PERSON asked the mayor to issue a supplementary order under section CARDINAL of PERSON and indicate the exact flat with which she was to be compensated . In DATE the mayor replied that such an order could not be issued as the construction of the building in which the flat was to be located had not started .", "In DATE PERSON requested the mayor to set a date when she could select another flat . As the mayor did not reply , she filed an appeal against his implied refusal with ORG . In a judgment of DATE ORG quashed the refusal and referred the matter back to the mayor with instructions to issue an order under section CARDINAL of ORG , in which to specify the exact flat with which the applicant was to be compensated . Apparently the mayor did not issue such an order because there were no flats available .", "In the meantime , on DATE , the mayor explained that he could not offer PERSON a flat as there were no vacant ones with parameters equivalent to those set forth in the expropriation order .", "PERSON also filed complaints with the regional governor and ORG , to no avail .", "DATE . On DATE , pursuant to a request by PERSON , a municipal commission carried out a new valuation of the expropriated house , setting Ms PERSON 's share at BGL CARDINAL .", "PERSON appealed against this valuation and on DATE it was quashed by ORG on the ground , inter alia , that PERSON had not been notified of the procedure . The matter was referred back to the municipality .", "On the request of PERSON on DATE the ORG interpreted its judgment , specifying , inter alia , that the valuation of the property should be made in accordance with section CARDINAL of LAW .", "On DATE a municipal commission reassessed the value of the expropriated house , basing its assessment on its market price at the time of the expropriation . The value thus obtained was BGL CARDINAL for Ms PERSON 's and her sister 's half of the house .", "On appeal by PERSON ORG , in a judgment of DATE , quashed the valuation , holding , inter alia , that the new valuation should be based on the market prices at the time it is being carried out .", "Both the municipality and PERSON appealed , and in a judgment of DATE ORG quashed the lower court 's judgment , expressly holding , inter alia , that the new valuation should be made on the basis of the market price at the time of the expropriation , in accordance with section CARDINAL of LAW . The court remitted the case to the mayor .", "By an order of CARDINAL DATE the mayor valued PERSON and her sister 's CARDINAL of the house at BGN CARDINAL.CARDINAL , expressly specifying that the valuation had been made on the basis of the market prices at the time of the expropriation .", "On appeal by PERSON , ORG , in a judgment of DATE , declared the order void and referred the case back to the mayor . It held , inter alia , that both the house and the flat offered in compensation should be valued on the basis of the market prices at the time of the expropriation .", "On appeal of the mayor , ORG , in a judgment of CARDINAL DATE , quashed the lower court 's judgment , holding that the mayor 's order had not been void . If there had been irregularities with the valuation , the lower court should have revalued the house instead of referring the matter back to the mayor . The court remitted the case to ORG with instructions that a new valuation of the house be carried out .", "In a judgment of DATE the ORG valued PERSON and her sister 's share of the expropriated house at ORG . It held , inter alia , that a valuation based on the market prices at the time of the expropriation , which had taken place a long time before , would impinge on the adequacy of the compensation . In the court 's view , the valuation had to be based on the market prices at the time of the delivery of its judgment . According to the expert 's report drawn up during the proceedings , the value thus obtained was ORG .", "NORP The mayor appealed , arguing , inter alia , that the valuation of the expropriated house and , respectively , of the flat offered in compensation , should be done on the basis of the market prices at the time of the expropriation .", "In a final judgment of DATE ORG quashed ORG judgment and held that the value of PERSON and her sister 's CARDINAL of the house was ORG CARDINAL . The court reasoned , inter alia , that a valuation under section CARDINAL of LAW had to be based , as a rule , on the market prices at the time of the expropriation . However , no evidence about these prices had been adduced by the municipality . The only data available was that in the expert 's report drawn up during the proceedings before ORG ( see paragraph CARDINAL above ) , which indicated that the value of the property at the time of the mayor 's order DATE ( see paragraph CARDINAL above ) – was BGN CARDINAL . The court instructed the mayor that this new valuation only replaced the original valuation made at the time of the expropriation , but did not change the manner of compensation . Therefore , the mayor had to issue an order under section CARDINAL of PERSON and specify the exact flat with which PERSON was to be compensated , thus completing the expropriation procedure . However , it was open to Ms PERSON to request to be compensated in cash instead .", "It does not seem that PERSON has since requested that the manner of compensation be changed to cash .", "Ms ShoilevaStambolova 's and PERSON father owned CARDINAL of a house with a yard in GPE , where he and the CARDINAL of them lived .", "By a mayor 's order of CARDINAL DATE the house was expropriated for the construction of a subway station . The order , based on section CARDINAL(CARDINAL ) of PERSON , provided that PERSON and PERSON father was to be compensated with a flat and that PERSON was to be compensated with another flat . Both flats were to be situated in a building which the municipality intended to construct . The house was valued at BGL CARDINAL . The applicants ' father appealed and the ORG increased the valuation with ORG , thus making it ORG CARDINAL . Thus , the applicants ' father 's share of the house was valued at ORG CARDINAL .", "In DATE the house was occupied and pulled down . Ms ShoilevaStambolova 's and PERSON father was offered to be settled in a municipal flat in the outskirts of the city , pending the construction of the flat offered in compensation . Considering , however , that the flat was not suitable for his needs , he chose to rent another flat and left the municipal one uninhabited .", "By a supplementary order of CARDINAL DATE , based on section CARDINAL of PERSON , the mayor indicated the exact flats with which the CARDINAL applicants ' father and PERSON were to be compensated , specifying the buildings in which they would be located and their precise surface .", "In DATE PERSON flat was finished . BGL CARDINAL of the valuation of the her father 's house was applied towards the value of that flat . The remainder ( BGL CARDINAL ) was paid by PERSON and she was allowed to take possession of it . However , the applicants ' father 's flat was not constructed , apparently because the design for the building in which it was to be located was changed .", "In DATE the applicants ' father requested to be allotted another flat . By a mayor 's order of CARDINAL DATE he was allotted a new flat in lieu of the one originally intended as compensation . This order , like the original one , specified the exact location and surface of the new flat . The construction of the building in which the flat thus allotted was to be located started in DATE , but was halted soon after , because of lack of funds .", "DATE . On DATE PERSON and PERSON father died . The CARDINAL are his only heirs .", "In DATE PERSON and PERSON wrote to the mayor . They asked whether there were any plans for the completion of the building in which the flat allotted in compensation would be located . In the alternative , they asked whether they could receive another equivalent flat or cash and , if so , what would be the amount of such monetary compensation . By a letter of CARDINAL DATE the mayor informed them that there were no plans to finish the building . Their application for recompensation was sixth on the waiting list but at the time there were no flats available . If they opted for cash compensation , the amount which they would be entitled to would be BGN CARDINAL .", "On DATE PERSON and PERSON were informed that the plan of the building in which their future flat would be situated had been changed and were invited to choose a new flat . They did so on DATE , which was confirmed by a revised order under section CARDINAL of PERSON of DATE . The new flat was almost similar in size and position as the previous one .", "NORP In DATE the construction of the building in which the flat was to be situated was finalised and on DATE the municipality delivered the flat to PERSON and PERSON .", "At the relevant time expropriations of residential units for public use were regulated by ORG .", "Expropriations were effected by order of the mayor , which had to designate the property to be expropriated and its valuation , and specify the manner ( property or cash ) and amount of compensation due to the dispossessed owner ( sections ORG ) , ORG ) and CARDINAL ) of PERSON ) .", "If the owner was to be compensated with a flat which had not yet been constructed , the order had to specify the type and the general features of such a flat ( section CARDINAL ) of PERSON ) .", "A supplementary order had to indicate the exact LOC offered in compensation and their valuation ( section CARDINAL of PERSON ) . By section CARDINAL(CARDINAL ) of PERSON , that supplementary order had the effect of vesting title in the flat offered in compensation , even though it was still nonexistent .", "DATE . ORG has held that both the initial order providing for compensation and the supplementary order create vested rights for the expropriated owners and may be modified only in limited circumstances ( решение № CARDINAL от CARDINAL април DATE г. по гр.д. № MONEY г. на ВС , III г.о. ; решение № CARDINAL от CARDINAL септември DATE г. по гр.д. ORG CARDINAL/CARDINAL г. на ORG , III г.о. ) . CARDINAL such case would be if the expropriated owner submitted , prior to receiving the flat , a notarised request for a modification of the order to provide for compensation in cash , for compensation with a smaller flat , or compensation with a flat situated elsewhere ( section CARDINAL(CARDINAL ) of PERSON ) .", "Owners who had not received the flats due within a certain period of time ( initially DATE ) DATE either because of changes in the municipal construction program ( the respective building being left out of it ) or because the building was earmarked for other purposes – could request cancelling of the expropriation or a fresh valuation of the expropriated property ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of PERSON , superseded in DATE by section CARDINAL(CARDINAL ) and ( CARDINAL) of LAW ) . This could be done either before or after the supplementary order . However , once the supplementary order was issued , cancelling of the expropriation was only possible if the land had not been cleared for groundwork or the expropriated building had not yet been demolished . In the latter case the only remaining option would be a fresh valuation ( section CARDINAL(CARDINAL ) of PERSON , superseded in DATE by section CARDINAL ) of LAW ) .", "The valuation of the expropriated property had to be based on the market price of the property at the time of the expropriation ( section CARDINAL(CARDINAL ) of LAW ) . The fresh valuation is subject to judicial review ( section CARDINAL(CARDINAL)(CARDINAL ) of PERSON and решение № CARDINAL от DATE г. по адм. д. № DATE г. PERSON , ORG ) .", "In DATE and DATE all these provisions were superseded by rules giving enhanced protection to expropriated owners . However , the new legislation provides that the above provisions , although repealed , continue to govern pending expropriation proceedings which were commenced under PERSON or LAW of LAW and in which the ORG has taken possession of the expropriated property before DATE ( paragraph CARDINAL ) of the Act for Amending PERSON of DATE and paragraph CARDINAL(CARDINAL ) of the transitional and concluding provisions of LAW of DATE ) .", "Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) , which entered into force on DATE , provides that the ORG is liable for damage suffered by private persons as a result of unlawful acts or omissions by civil servants , committed in the course of or in connection with the performance of their duties . The ORG 's liability is strict , i.e. no fault is required on the part of the civil servant in the commission of the unlawful acts or omissions ( section CARDINAL in fine ) . Section CARDINAL of the LAW provides that the action in responsibility must be brought against the authority employing the civil servant concerned . LAW provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission of the civil servant . Section CARDINAL(CARDINAL ) of the LAW provides that if another statute provides for a special manner of indemnification , the LAW does not apply .", "By paragraph CARDINAL of LAW , a person who has an enforceable pecuniary claim ( e.g. a judgment debt ) against the ORG or a state body receives payment out of funds earmarked for that purpose under the institution 's budget .", "The writ of execution evidencing the claim must be submitted to the financial department of the institution . If there are no funds available under the budget of the state body concerned , the higher administrative body should undertake the necessary steps to ensure that funds become available under the budget for DATE .", "Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution . Until DATE paragraph CARDINAL of LAW expressly prohibited enforcement proceedings against state institutions . Although that provision was repealed in DATE , the legal regime remained unchanged , as paragraph CARDINAL of Article CARDINAL was not amended .", "According to data published by ORG , the average exchange rate of the GPE dollar in DATE ( DATE for which such data is available ) , was BGL CARDINAL . In DATE , when the municipality carried out a fresh valuation of PERSON house ( see paragraph DATE above ) , the average rate was BGL CARDINAL . In DATE , when the municipality again reassessed the value of the house ( see paragraph CARDINAL above ) , the rate was BGN CARDINAL . In DATE , when the third valuation was carried out ( see paragraph DATE above ) , the average rate was BGN CARDINAL . In DATE ( DATE for which such data is available ) , the average rate was BGN CARDINAL ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is a NORP citizen born in DATE and resident in GPE .", "He is represented before the ORG by PERSON , solicitors practising in GPE , GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE , a complaint was issued by the Procurator Fiscal for GPE charging the applicant with CARDINAL contraventions of section CARDINAL ) and section CARDINAL(CARDINAL ) of LAW DATE and CARDINAL breaches of the peace in that he conducted himself in a disorderly manner persistently staring at CARDINAL young girls .", "On DATE the applicant pleaded not guilty at a pleading diet at ORG . He was represented by ORG , solicitors .", "The trial took place at ORG on DATE , DATE and DATE . The applicant was represented at the trial by PERSON , Advocate , engaged by the applicant ’s solicitors .", "On DATE the applicant was convicted in ORG on all CARDINAL charges , sentence being deferred for social inquiry and community service reports . On DATE , the applicant appeared before the Sheriff for sentence . He was now represented by PERSON , Solicitors . The ORG fined the applicant £ CARDINAL on each of the breaches of the peace and merely admonished the applicant on the statutory charges . The applicant , who claimed that his representation at the trial was so defective that he was not effectively represented , changed his representatives to appeal to ORG of Justiciary against conviction and sentence .", "On DATE the applicant ’s solicitor applied for an extension of the time in which to apply for a stated case to ORG of Justiciary .", "On DATE ORG of Justiciary granted the applicant an extension in time to apply for a stated case . On DATE , the application was submitted by the applicant 's solicitor , appealing against both conviction and sentence .", "In his application for the stated case , the applicant claimed that he suffered a miscarriage of justice under the Criminal Procedure ( GPE ) Act DATE , section CARDINAL ) and section CARDINAL(CARDINAL ) , in that he was denied a fair trial as a result of defective representation at the trial . He made several allegations against his defence counsel , inter alia , that he had not presented the defence , had acted contrary to his instructions , has failed to challenge ORG evidence properly in cross - examination and had pressured him into not giving evidence .", "On DATE a hearing took place before the Sheriff to agree the draft stated case . On DATE the stated case , signed by the Sheriff , was sent to the parties to the appeal .", "On DATE the applicant was granted leave to appeal by a judge of ORG of Justiciary . This decision was notified to the applicant ’s solicitor on DATE .", "On DATE the applicant ’s case was put down to appear on the appeal roll of CARDINAL DATE and the applicant ’s solicitor advised accordingly .", "The applicant 's solicitor contacted the applicant on DATE , informing him that the appeal hearing was fixed for DATE . On DATE the applicant ’s solicitor informed him that a consultation with counsel had been fixed for DATE . This consultation lasted TIME . The applicant states that counsel informed him that she would ask for an adjournment as the views of the previous legal representatives had not yet been sought .", "During the appeal hearing on DATE , ORG upheld the appeal made by the applicant against the convictions under LAW DATE . As regards the applicant 's appeal against his convictions for breaches of the peace , counsel for the applicant sought an adjournment of the appeal on the basis that she had only very recently been instructed to represent the applicant and that she had advised him that certain information and various statements had to be obtained in the light of the requirements laid down by the court in PERSON v. ORG ( DATE J.C. CARDINAL , ORG CARDINAL ) . This would have involved an affidavit from the applicant and any supporting witness setting out the full details of allegations and a response to complaints from the original agent ( solicitor ) and counsel . According to the ORG judgment , counsel stated that no necessary steps had been taken and that she could not offer the court an explanation as to why none of the investigation or preparation had been done .", "ORG refused to adjourn the appeal stating that it must have been obvious for DATE to the applicant and his present advisers that steps had to be taken in order to prepare the appeal to be advanced on the chosen grounds . It noted that the signed stated case was dispatched to the parties on DATE , that leave to appeal against conviction was granted on DATE and intimation thereof was sent to the applicant 's solicitor on DATE . It was therefore entirely unacceptable for the applicant to come forward at this late stage and , without explanation as to why none of the preparations required by the PERSON precedent had been done other than to instruct counsel on DATE of the appeal and seek a postponement of the appeal hearing in order to allow the necessary steps to be taken . It commented that while postponements had to be granted when adequate cause was shown and the failure to act timeously was explained , no explanation had been made in this case .", "Moreover , ORG stressed that it was important to avoid any unnecessary delay in the proceedings given that the events giving rise to the charge occurred in DATE and DATE , and the principal ORG witnesses were then young girls in their early teens . It noted that there had already been a delay in that the time had been extended to allow an application for a stated case to be lodged DATE after the conclusion of the applicant 's trial . Further , had the appeal been successful , the court would have had to grant authority to bring a new prosecution and the trial resulting from the new prosecution would have been unlikely to take place before the lapse of DATE since the commencement of the original trial in DATE . ORG concluded that it would sanction no further delay and dismissed the application .", "In her note of DATE , the applicant ’s counsel recalled that the court had refused an adjournment as there had been no affidavit from the applicant detailing the failures alleged and no statements or approach had been made to his previous representatives . She had informed the court that she had not consulted with the applicant and solicitor until DATE before the appeal and the fault for the late consultation rested with her due to her court commitments . She could not offer any explanation for the absence of affidavits from the applicant and his relatives but informed the court that she had instructed that these be prepared . Once they had been obtained , the applicant ’s solicitor or ORG could have proceeded to contact the prior agents for their response .", "In her further note of DATE , the applicant ’s counsel stated that no affidavits had been prepared when she met the applicant and his solicitor , PERSON , DATE before the appeal hearing . She had therefore advised that she would have to seek an adjournment . She did not recall if any explanation had been given to her for the failure to produce the information other than seeking the opinion of counsel as to how to proceed with the appeal .", "In his letter of CARDINAL DATE , PERSON , the applicant ’s solicitor at the appeal , stated that as soon as he had been notified of the date of the appeal he had instructed his GPE agents to instruct counsel and sought a consultation . At the consultation he was told by counsel that further information was required and that she would seek an adjournment . She indicated to him and the applicant that they would not be required to attend the appeal hearing . He took the view that it was the role of ORG to seek the response of the applicant ’s previous representatives and that there had been no explanation from ORG as to the failure of ORG to do so in the applicant ’s case .", "The applicant received legal aid for his representation at trial and on appeal .", "B. Relevant domestic law and practice", "Defective representation as a ground of appeal", "In the case of PERSON v. ORG Advocate DATE SCCR CARDINAL , decided on DATE , ORG of Justiciary decided that , in certain circumstances , the conduct of the defence by the accused ’s counsel or his solicitor could be a ground of appeal . The conduct must have been such as to have resulted in a miscarriage of justice in that it deprived the accused of his right to a fair trial by not presenting his defence to the court . The accused might have been deprived of the opportunity to present his defence because his counsel or solicitor acted contrary to his instructions for example .", "The court noted that in such cases questions of fact might arise as to the nature and conduct of the defence and the court might require to hear evidence . Before it exercised this power , it had first to be satisfied that the complaint was of a kind likely to satisfy the test for a miscarriage of justice . It set out the preparation which it expected to be undertaken :", "“ difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor . It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal . The advocate or solicitor may , if he feels able to do so , provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal . But he is under no obligation to provide any such statement . He may , if he prefers to do this , wait until the appeal is lodged and then lodge his statement with ORG . In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted , ORG will advise counsel or solicitor of this fact , and will provide him with a copy of the ground of appeal so that he may respond to the allegations if he has not already done so . Once again we emphasise that he is under no obligation to respond at this stage to the allegation . But the court is likely to find it helpful to know whether the complaint is disputed and , if so , on what grounds , before it reaches a decision as to whether an inquiry into the facts will be necessary to decide the appeal . ”", "Courts’ power to adjourn cases", "Unless otherwise expressly provided by statute , the courts have an inherent common law power to adjourn cases where it is considered necessary in the interests of justice and conversely to refuse to do so , also in the interests of justice .", "In general the courts will grant an adjournment that is requested by the defence if it is necessary to allow the defence to prepare their case ( ORG v. PERSON ( DATE ) CARDINAL PERSON and PERSON v. PERSON ( DATE ) CARDINAL ORG ) . The courts are less amenable to granting an adjournment on this basis if it is apparent that the accused or his agents had sufficient time and were in a position to carry out the necessary preparation for the trial but simply failed to do so ( eg . PERSON v. ORG SCCR CARDINAL ) ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .", "The CARDINAL applicants , together with PERSON , were convicted on DATE of murdering PERSON , a DATE newspaper boy , during the course of a burglary at ORG , in GPE .", "At the time of conviction , the first applicant was DATE . He had accrued CARDINAL previous convictions , most of which were minor , DATE . He had not previously served a custodial sentence . For the GPE murder , he was sentenced to detention at Her ORG , along with DATE detention for the robbery at ORG and CARDINAL sentences of DATE detention , to be served concurrently , for CARDINAL armed robberies , at LOC and a ORG supermarket , to which he had earlier pleaded guilty .", "The second applicant , who was DATE at the time of conviction , was sentenced to life imprisonment for the GPE murder , and given a concurrent sentence of DATE for the aggravated burglary at ORG . He was also given DATE for an offence of deception . The second applicant also had a previous criminal record , with CARDINAL convictions , mostly minor , accrued DATE . He had served a short custodial sentence as a juvenile , and been given a suspended sentence of DATE imprisonment as an adult .", "PERSON , the man convicted alongside the CARDINAL applicants , was DATE at the time and had a more serious criminal record , having been convicted of various offences DATE for which he received suspended sentences , and of various offences of dishonesty including burglary in DATE , for which he received a DATE prison sentence . PERSON was sentenced to life imprisonment for the GPE murder ; DATE imprisonment for the aggravated burglary at ORG ; and DATE concurrently for each of ORG and ORG armed robberies .", "The applicants and PERSON sought to challenge their conviction of the murder and aggravated burglary at ORG , of which they maintained they were innocent . However , leave to appeal to ORG was refused in DATE and , upon reference of their cases to ORG by the Secretary of ORG , their appeals were dismissed in DATE . The Secretary of ORG again referred their cases to ORG and , on this occasion , serious irregularities in the conduct of the investigation and the trial emerged . The prosecution accepted that the convictions had been fundamentally flawed . All CARDINAL were released on unconditional bail in DATE and their appeals were allowed , and their convictions quashed , on DATE . The Secretary of ORG decided that the applicants and PERSON were entitled to compensation .", "The assessment of compensation for PERSON was conducted by Sir PERSON on DATE . The assessment was made on the basis that Mr PERSON had spent DATE wrongfully imprisoned , allowing for the time that he would have served in any event for the other robberies . The assessor made a deduction from the award of non - pecuniary losses to reflect Mr PERSON 's previous criminality , but this deduction was “ comparatively modest ” - namely PERCENT - reflecting the fact that his previous offences had all been non - violent . The assessor awarded GBP CARDINAL in basic damages and GBP CARDINAL in aggravated damages . The aggravated damages were stated as being to take account of the conduct of the police in investigating and prosecuting the offences , which had involved forgery , deceit and violence , and the constant intimidation and violence to which Mr PERSON had been subjected in prison as a result of being labelled a “ child killer ” .", "The assessment of compensation for the applicants was conducted by Lord PERSON on DATE . The assessor concluded that PERSON had been wrongfully detained for DATE and DATE , having regard to the time that he would have served in any event for the other robberies . With regard to the appropriate deduction to be made from the non - pecuniary losses to reflect previous criminality , the assessor noted that the applicant had been just under DATE at the time he was convicted , but that he had already accrued CARDINAL convictions for offences of dishonesty , burglary and driving offences , for which he had variously received fines and supervision orders . He had also , more significantly , been convicted of CARDINAL robberies with a firearm at the same time as his wrongful conviction . Finding that there was no way in which such serious convictions could be ignored , he made a deduction of PERCENT to reflect the first applicant 's past criminality .", "The assessor went on to find that conviction and imprisonment had had consequences of the gravest kind for PERSON , not least because his imprisonment had resulted in serious psychiatric illness , which was likely to endure for the remainder of his life . He awarded the first applicant a total of GBP CARDINAL for non - pecuniary loss , which was broken down into GBP CARDINAL for all factors other than psychiatric illness ; GBP CARDINAL as a moderate uplift for aggravating factors of the case ; and GBP CARDINAL for psychiatric illness . The first applicant was also awarded GBP CARDINAL in respect of pecuniary loss . This incorporated a figure to reflect his past loss of earnings , from which a deduction of PERCENT was made to reflect saved living expenses . The assessor noted that a deduction for saved living expenses had not been made from PERSON award ; however , he considered that each case had to be decided on its own merits at the time of assessment . It was correct that living expenses should be deducted , since common law principles prohibited double compensation , and the award for loss of earnings should reflect the facts that living expenses would normally be paid for out of earnings , and that the first applicant had not incurred such expenses by reason of his imprisonment .", "The assessor found that PERSON had been wrongfully detained for DATE , bearing in mind the time he would have served for the LOC robbery , to which he had pleaded not guilty but had later admitted , and which had been ordered to lie on his file . He was older than the first applicant at the time of his conviction and had a more significant offending history , consisting of CARDINAL previous convictions for CARDINAL offences including dishonesty ; burglary ; assault ; and driving whilst disqualified . For these offences he had variously received fines , supervision orders and a suspended prison sentence . The Chapel Hill robbery had therefore marked the culmination of significant criminal behaviour , and the assessor deducted PERCENT from his non - pecuniary award to reflect this .", "The assessor found that the second applicant had had to endure harsh conditions and treatment , which had included sexual assault , in prison due to being perceived as a child murderer . As a result of such treatment , he had suffered depression and post - traumatic stress disorder . He had become addicted to heroin whilst in prison , an addiction which continued after his release until he underwent rehabilitation treatment . The assessor awarded the second applicant GBP CARDINAL in respect of non - pecuniary loss , of which GBP CARDINAL was for past and present psychiatric injury , and to which the PERCENT deduction for past criminality applied , making a total for non - pecuniary loss of ORG , CARDINAL . The assessor did not specify whether any part of the award reflected aggravating factors . A total of ORG was awarded for pecuniary loss , incorporating a deduction of PERCENT from the loss of earnings to reflect saved living expenses . The reasoning behind the deduction was identical to that in the first applicant 's assessment .", "In response to representations by the applicants '", "The applicants sought judicial review of Lord PERSON 's decisions and their applications were heard in ORG in DATE . Insofar as is relevant to the complaints pursued by the applicants before the ORG , ORG held that Lord PERSON had , by relying on common law principles derived from personal injury cases , which were not analogous to the cases in hand , misdirected himself in law in deducting a proportion from the award of pecuniary losses relating to loss of earnings for each applicant in order to reflect saved living expenses . ORG also found that the deductions made by Lord PERSON to reflect each applicant 's past criminality were unobjectionable in themselves . The only grievance that each applicant could have was in comparing the deduction applied to them with the smaller deduction applied by Sir PERSON to PERSON . The assessor was not bound by a principle of consistency and could depart from the findings of his predecessor if he considered that he had good reason to do so . Since the applicants could not have a justified sense of grievance about their own awards , viewed alone , their challenge on this ground failed .", "The applicants appealed against ORG failure to quash the assessment on the grounds of the inconsistent deduction for past criminality ; the assessor appealed against the quashing of the part of his assessment which dealt with saved living expenses . The cross appeals were disposed of by ORG on DATE . With regard to the assessor 's appeal , ORG , who gave the lead speech , held that Lord PERSON had correctly regarded the deduction he imposed , on its facts and in accordance with the law , as being necessary to avoid compensating the applicants for a loss which they had not sustained . The deduction had been taken from the pecuniary loss award for loss of earnings , and had had no impact on the non - pecuniary loss award , which took account of the applicants ' suffering as a result of imprisonment . PERSON LJ concurred , adding that the cost of basic living expenses had not been set off because the applicants had received a benefit ; rather it had been set off because the applicants had not incurred expenses that they would have incurred had they been at liberty and in gainful employment . Given that the overall assessment separated the awards for loss of liberty DATE which was addressed under non - pecuniary loss – and for loss of earnings DATE which was addressed under pecuniary loss – and that the former was entirely appropriate , it was inevitable that the latter should take account of saved living expenses . PERSON also concurred . Lord PERSON 's appeal on this ground was therefore allowed .", "As regards the alleged inconsistency involving the deductions made for past criminality , ORG stated that judicial consistency was always desirable , but not always achievable where decisions were taken by different decision - makers . Lord PERSON had reached a reasonable figure for the deduction , and had given his reasons for departing from the approach of his predecessor . The situation was akin to differences in sentencing . There the test for overturning a sentence was whether the person felt a justified sense of grievance . Here , the applicants had been subjected to deductions which , viewed on their own and objectively , were reasonable . They did not therefore have a justified sense of grievance . ORG and PERSON concurred . The applicant 's appeal on this ground was therefore dismissed .", "The applicants then appealed both issues to ORG . Judgment was handed down on DATE , and the applicants ' appeals on each ground were dismissed by a majority of CARDINAL .", "Lord PERSON , who gave the lead speech for the majority , stated with regard to the first issue that :", "“ It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state . ”", "However , to award the full amount of lost earnings without making any deduction for living expenses would , in reality , leave the applicants better off than if they had actually earned the money . The deduction led to the applicants being put in the position that they would have been in had they not been imprisoned and therefore they were compensated for their actual loss . Lords PERSON and ORG agreed with Lord PERSON 's analysis . Lord PERSON also agreed , adding that the deduction was plainly a reflection of the basic expenses of living in freedom , rather than a credit impermissibly claimed by the ORG to repay a supposed benefit .", "However , Lord PERSON disagreed on this ground of appeal , holding that it was both unattractive and an infringement of constitutional principle to regard the deduction of living expenses from the applicants ' awards as being necessary to avoid double compensation . The Government was not permitted to charge prisoners for their board and lodging , as previous case - law dealing with prisoners ' earnings in prison had established . The case - law in respect of personal injury , which had been relied on by both sides throughout the instant proceedings , if properly understood , held that the normal expenditure of a plaintiff on food and accommodation was of no concern to the defendant . Deductions were admittedly made in situations where it was necessary to avoid double compensation ; that is , where an award for loss of earnings and an award for future care were both given . Since the applicants in this case had no claim for future care , no deduction was necessary to avoid double compensation . The cases regarding personal injury also differed from that of the applicants in an important way : whereas in personal injury claims the wrong had been done and the issue was how to treat their maintenance at public expense thereafter , the applicants in this case had been subjected to an ongoing wrong . They were being wronged whilst being maintained at public expense . Lord PERSON stated :", "“ ORG , reasonableness and public policy dictate that no allowance should be made for so - called savings which the applicants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated . ”", "In reality , it did not matter whether the cost of board and lodging was treated as a benefit that the applicants had received or as a deduction from their compensation for loss of earnings ; the result was that they were penalised for the time spent in prison , which was the very thing that their awards were designed to compensate them for . Lord PERSON would therefore have upheld the applicants ' appeal on this ground , while dismissing their appeal on the ground of the deduction for past criminality .", "With regard to this second ground of appeal , Lord PERSON held that while it was generally desirable that decision makers , whether judicial or administrative , should act in a broadly consistent manner , the assessor who dealt with the applicants ' claims for compensation had not been bound to follow the previous decision dealing with their co - accused if he considered it to be erroneous . The matter of the appropriate deduction to be made for past criminality was a highly judgmental matter , and the assessor 's deductions , in themselves , were not impugned . The applicants ' only basis for complaint was the lesser deduction applied to their co - accused and this was not sufficient to give rise to a justified sense of grievance .", "ORG and PERSON agreed with Lord PERSON on this ground of appeal ; Lord PERSON adding that , while at first blush the inconsistency between the deductions imposed by the different assessors appeared unfair to the applicants , in fact it had been done for good reason . Lord PERSON had either found his predecessor 's deduction to be irrationally low , or the CARDINAL assessors had taken a different approach to the overall calculation of non - pecuniary loss ; either way , the applicants ' appeal on this ground could not succeed . Lord PERSON also agreed that this ground of appeal should fail ; however , he expressed some doubts as to the sense of deducting a proportion for past criminality from the total award for non - pecuniary loss . He considered that it would make more sense to take the claimants ' criminal history into account when determining each of the various heads of loss than to apply a flat percentage deduction afterwards . However , the inconsistency in the deductions applied did not vitiate the assessor 's conclusions ; consistency was desirable but it had sometimes to yield to the larger imperative of delivering justice in the particular case .", "Lord PERSON , on the other hand , dissented on this ground . He found that the deductions for past criminality should not have been applied to the portion of non - pecuniary loss which related to the conduct of the authorities who prosecuted the crime . There was no reason that a hardened criminal would suffer less than a person of previously good character in being unfairly convicted of a crime that he did not commit . Nor should the deduction for past criminality be applied to a claimant who had never been imprisoned before . The suffering inherent in being incarcerated for the first time would be just as abject , whether or not the person had a previous criminal record . Lord PERSON considered that the claimant 's history should be taken into account when calculating the non - pecuniary harm done to them , and that no further deduction was therefore necessary . On the issue of the consistency of the applicants ' awards with their co - accused , he found that compensating a person for wrongful conviction was designed to ameliorate an existing and justified sense of grievance ; therefore , if the award of compensation was not perceived as fair , then the aim of addressing a grievance had not been properly met . The deduction applied to the applicants did not appear to be fair , given the significantly smaller deduction applied to Mr PERSON , and his significantly more serious criminal record . The applicants ' appeal on this ground should therefore be upheld .", "The right to compensation is contained in section CARDINAL of LAW DATE , which so far as relevant provides :", "Subject to subsection ( CARDINAL ) below , when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice , the Secretary of ORG shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or , if he is dead , to his personal representatives , unless the non - disclosure of the unknown fact was wholly or partly attributable to the person convicted .", "No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of ORG .", "The question whether there is a right to compensation under this section shall be determined by the Secretary of ORG .", "If the Secretary of ORG determines that there is a right to such compensation , the amount of the compensation shall be assessed by an assessor appointed by the Secretary of ORG .", "LAW DATE , by section CARDINAL , added a new subsection to follow subsection ( CARDINAL ) , above . The new subsection provides :", "( CARDINAL ) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering , harm to reputation or similar damage , the assessor shall have regard in particular to :", "the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction ;", "the conduct of the investigation and prosecution of the offence ; and", "any other convictions of the person and any punishment resulting from them .", "Section CARDINAL of LAW DATE was enacted in order to give effect to LAW , to which GPE is a party . LAW ) provides :", "When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice , the person who has suffered punishment as a result of such conviction shall be compensated according to law , unless it is proved that the non - disclosure of the unknown fact in time is wholly or partly attributable to him .", "This Article closely resembles LAW No . CARDINAL , which GPE has not ratified ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE ) . He is represented before the ORG by PERSON , a lawyer practising in GPE ( GPE ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant caused a road accident in a state of drunkenness .", "Subsequently , administrative proceedings were instituted against the applicant in which he was accused of , on the one hand , drunken driving and , on the other , of having failed to inform the authorities of the accident . Although proceedings on both charges were dealt with in CARDINAL single decision at the first instance level , the proceedings on the above charges were disjoined subsequently . However , the separate decisions were always given on DATE . Application no . CARDINAL concerns the charge of drunken driving , while application no . CARDINAL/CARDINAL concerns the charge of having failed to inform the authorities of the accident", "On DATE ORG ( GPE ) summoned the applicant . However , he did not obey the summon . On DATE he filed a comment and asked ORG to submit the certificate that the breathalyser had been duly calibrated .", "On DATE ORG served this certificate on the applicant . However , he did not submit any further comment .", "On DATE ORG issued an order imposing a fine of ORG CARDINAL on the applicant for having caused a road accident in a state of drunkenness on DATE . With the same order it imposed a fine of ORG CARDINAL for having refrained from notifying the authorities that he had had caused damage to property by a road accident on DATE .", "On DATE the applicant filed an appeal .", "On DATE ORG ( PERSON the ORG ” ) , after having held a hearing on DATE , sitting with a single member , dismissed the applicant ’s appeal against the fine of ORG CARDINAL . On DATE , sitting as a panel of CARDINAL members , it dismissed the applicant ’s appeal against the fine of ORG CARDINAL .", "On DATE the applicant lodged complaints with ORG ) against both decisions .", "On DATE ORG quashed the ORG ’s decisions . It found that these decisions were based on an unconstitutional provision which had provided that LAW ( GPE ) did not apply in road - accident proceedings . LAW provides that , if the extenuating circumstances outweigh the aggravating circumstances , the fine imposed may be reduced to CARDINAL of the statutory minimum fine . This decision was served on the applicant ’s counsel on DATE .", "On DATE ORG , sitting as a panel of CARDINAL members , partly allowed the applicant ’s appeal and reduced the fine to ORG CARDINAL as , meanwhile , the applicant ’s administrative criminal record was erased ( Tilgung ) . However , it found that the requirements of LAW were not met .", "On DATE , sitting as a single member , it dismissed the appeal against the fine of ORG CARDINAL . It found that the requirements of LAW were not met .", "On DATE the applicant lodged complaints with ORG against these decisions . He stressed that the ORG had failed to hold a hearing in the second set of the proceedings on his appeal despite his request in his appeal of DATE .", "On DATE the ORG submitted its observations in reply .", "On DATE the applicant amended his complaints . He stressed that the composition of the ORG was unlawful as the same members had already decided on his appeal in the first set of the proceedings . Therefore , he challenged the members of the ORG .", "On DATE ORG refused to deal with the cases for lack of prospects of success . These decisions were served on DATE .", "On DATE the applicant requested that the cases be transferred to ORG and on CARDINAL DATE he amended his complaints . On DATE the ORG submitted its observations in reply .", "On DATE ORG dismissed the applicant ’s complaints . It found that there was no indication of bias of the members of the ORG . As regards ORG ’s failure to hold a hearing in the second set of the proceedings it found that the applicant failed to file a new request to hold a hearing . These decisions were served on DATE .", "Section CARDINALe of the Code of Administrative Offences ( GPE ) , as far as relevant , reads as follows :", "“ ... CARDINAL . In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal .", "A hearing need not be held if the parties expressly waive their right to a hearing . The parties may express such a waiver up to the beginning of the hearing . ... ”", "Section CARDINAL of LAW ( GPE ) , as far as relevant , reads as follows :", "“ If the extenuating circumstances considerably outweigh the aggravating circumstances , or if the accused is under age , the minimum fine may be reduced to DATE of the amount . ”" ]

[]

[]

[]

[]

[]

[]

[ "The first applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The second applicant is “ ORG ” , a public company .", "On DATE ORG granted a licence to run a bonded warehouse in GPE to the applicant company “ ORG ” .", "On CARDINAL DATE the NORP customs office at GPE / PERSON stated in writing that the NORP customs authorities had no objections to the operation of the applicant company .", "On DATE a further permit was given for exporting merchandise via the border crossing in GPE by the Director of the local ORG .", "NORP The applicant submitted that it had been repeatedly suggested that the company should pay various bribes to the customs officials if it wished to continue its operation undisturbed . The Government did not respond to this submission .", "By a letter of CARDINAL DATE the Director of the local ORG in ORG stated that from DATE on he would revoke the permit of DATE for exporting merchandise via the NORP border crossing . It was argued that the permit of DATE was not in conformity with an agreement with GPE regarding the border crossings and trans - border movements of goods and persons .", "On DATE the customs officers ordered that the headquarters of the applicant company be closed and affixed official seals on its door , preventing it thereby from conducting further business . On DATE the applicant company complained to ORG , submitting that there were no legal grounds on which the permit should be revoked and that the letter of CARDINAL DATE was not an administrative decision , which made it impossible to lodge a formal appeal against it .", "In a letter of CARDINAL DATE the applicant company reiterated its complaint and stressed that the director of ORG had failed , despite the company 's repeated requests , to give any legal basis for the revocation of the permit . It was argued that the revocation of the permit breached economic freedom as guaranteed by the LAW , and clearly infringed the terms of a valid licence which the company had received from ORG in DATE .", "On DATE the applicant company lodged a complaint under LAW about the ORG failure to give a decision following the appeal of CARDINAL DATE . It was submitted that the company had a valid permit given under the provisions of customs law . However , the company 's operation had been de facto rendered impossible by the letter of CARDINAL DATE as it could not run the warehouse if it was not allowed to export merchandise .", "NORP In reaction to this complaint , on DATE ORG informed the applicant company that the permit of DATE was of a temporary character . It was to remain valid only until a bridge in nearby PERSON was to be constructed . After the construction of this bridge had been terminated , the border crossing in GPE was to be used only for small trans - border movement of goods and persons . This was to be understood as allowing for crossing of the border by persons , but taking merchandise out of the country via this crossing did not fall within the ambit of the notion of the “ small trans - border movement of goods and persons ” and therefore the permit of DATE had to be revoked under LAW .", "The applicant company appealed , submitting that the revocation of the exporting permit would practically mean that the company had to stop its business operation , carried out under the valid licence of DATE .", "On DATE the applicant company and the Director of ORG concluded a settlement to the effect that the applicant company would withdraw the appeal it had lodged with ORG against the position taken by ORG in its letter of DATE and the President of the ORG would set aside the decision of the Director of ORG of DATE .", "On DATE ORG set the decision of CARDINAL DATE aside and ordered that the question be re - examined by ORG .", "By a letter of DATE the NORP customs office at GPE / Oder confirmed that the NORP customs authorities had no legal objections whatsoever against the operation of the applicant company .", "On DATE ORG revoked the permit for exporting merchandise by the applicant company via ORG , stating that the GPE border crossing was under NORP law designed only for the socalled “ small trans - border movement of goods and persons ” and that , therefore , no merchandise could be exported via this crossing .", "The applicant company appealed .", "On DATE ORG quashed the decision of CARDINAL DATE and discontinued the proceedings , considering that the impugned decision had been in breach of applicable provisions of procedural law since it had not been given in any of the types of proceedings on the merits provided for by LAW .", "NORP The applicant company requested that the legal meaning of this decision be interpreted . It emphasised that it was important for it to have clarified whether the original permit of DATE was still valid . This , on the plain meaning of the text of this decision , was unclear .", "In an interpretative decision of DATE ORG explained that the fact that the decision of CARDINAL DATE had been set aside was to be understood in such a way as to mean that the legal situation existing before this decision had been given still obtained .", "The applicant company requested that this issue be re - examined , asking whether the quashing of the decision of CARDINAL DATE , revoking the permit of DATE , was to mean that this permit was still valid .", "In a decision of DATE ORG held that the purpose of the decision of DATE was not to decide whether the permit of DATE was still valid . It upheld the decision of CARDINAL DATE .", "The applicant company appealed to ORG , arguing that the decisions of ORG lacked clarity . The ORG had set aside the revocation of the permit , but did not confirm whether the original permit was valid . Therefore it was impossible to establish what was the actual legal situation of the company as far as the validity of its permits was concerned . The applicant company emphasised that it was de facto treated by the customs authorities as if the export permit of DATE had been effectively revoked .", "In a judgment of DATE ORG quashed the decisions of DATE and DATE . The court found that the decision of DATE lacked clarity in that it did not allow the applicant company to elucidate the fundamental uncertainty as to the legal consequence of this decision . Neither were these doubts dispelled by the decision of DATE in which ORG had failed to explain what was the legal situation of the applicants ' permit to run their business , and in particular , whether it could still rely on the permit of DATE .", "By a decision of CARDINAL DATE ORG stated that the decision of DATE was to be understood in such a way that the applicant 's rights stemming from the decision of DATE remained intact .", "On DATE ORG instituted proceedings in order to have the licence to run the warehouse of DATE set aside , considering that the applicant company had not been conducting its business for a period DATE , without having informed the competent authorities thereof , as required by law .", "On DATE ORG set aside the DATE licence to run the warehouse , having found that after DATE the applicant company had ceased its business activities . Under the provisions of LAW , the customs authorities were obliged to withdraw the licence to run the bonded warehouse if the company enjoying such licence was not exercising it for a period DATE .", "The applicant company appealed . It argued inter alia that it could not have run the warehouse after DATE , given that ORG had withdrawn its permit for exporting merchandise by the applicant company via ORG , which had made it impossible to continue its business operation .", "On DATE ORG , having re - examined the case , discontinued the appellate proceedings . The office observed that the applicant was wrong in confusing the proceedings regarding the validity of the DATE permit with the present proceedings , in which it was the validity of the earlier licence , granted in DATE , which was at issue . The validity of the DATE licence had not been questioned in the previous proceedings and therefore there were no grounds on which to accept that the applicant was prevented to run its business .", "It further noted that the proceedings had to be discontinued since on DATE a new ORG Code had entered into force . It provided that various customs licences issued under the old LAW were to remain valid for DATE , during which companies having such licences could lodge new requests to have new licences issued . The applicant company had not submitted such request and the validity of its DATE licence had consequently expired on DATE . Therefore the proceedings would not serve any purpose and should be discontinued .", "The applicant company appealed . It argued , inter alia , that when giving the contested decision , ORG had breached the law in that it entirely failed to take into consideration all circumstances relating to the proceedings concerning the withdrawal of the permit to export . These proceedings , which had lasted from DATE until DATE , had rendered it impossible for the company to continue its business operation . Therefore it was unreasonable to revoke the DATE licence on the ground that the company had ceased its business activities .", "On DATE ORG quashed the decision of DATE as not being in compliance with law . It considered that ORG had incorrectly held that the proceedings had become devoid of purpose . At the time when they had been instituted , i.e. on DATE , the applicant company 's licence was still valid . It therefore had a legal interest in clarifying its legal situation and to confirm whether it was still authorised to run its business .", "On DATE ORG , having regard to the judgment of DATE , set aside the decision of CARDINAL DATE , revoking the DATE licence to run the warehouse .", "The applicant company did not resume its operations afterwards . The first applicant submitted that as a result of the withdrawal of the permit and the licence to run the company , described above , it was impossible for him as the principal shareholder and , likewise , for the applicant company , to resume their business operations . It is the withdrawal of those decisions authorising the company to run its business which constitute the basis of the applicant 's claims of pecuniary damage under LAW . The Government did not respond to this argument ." ]

[]

[]

[]

[]

[]

[]

[ "The applicants , Mr PERSON and Mr Boas Kristinn Boasson , are both NORP nationals and were born in DATE and DATE , respectively . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .", "s , may be summarised as follows .", "On DATE the ORG convicted them of unlawful hunting and sentenced them to pay a fine of ORG CARDINAL ( approximately EUR CARDINAL ) each and ordered the suspension of their hunting licences for DATE and the confiscation , for DATE , of their rifles , as well as their prey consisting of CARDINAL mountain grouse .", "On DATE ORG refused them leave to appeal , which decision was notified to their lawyer on DATE .", "According to the applicants , under NORP law ( LAW of LAW No . CARDINAL/CARDINAL ) ) , if an appellant has not been sentenced to imprisonment at first instance or if the fine imposed or the value of the goods confiscated by the latter did not exceed ISK CARDINAL ( at the time of the filing of the application , corresponding approximately to ORG CARDINAL,CARDINAL ) , an appellant wishing to challenge the first instance ruling has to obtain leave to appeal from ORG ." ]

[]

[]

[]

[]

[]

[]

[ "ORG The present case was referred to ORG in DATE by ORG ( \" the Commission \" ) . The case originated in CARDINAL applications ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , ORG , CARDINAL , ORG and CARDINAL ) against GPE and GPE lodged with the Commission on various dates DATE by Mr. PERSON , Mr. PERSON , Mrs. PERSON , Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON .", "ORG By judgment of CARDINAL DATE , ORG held that the stopping by the prison authorities of a number of letters written by or addressed to the applicants had given rise to violations of ORG CARDINAL and CARDINAL ( article CARDINAL , LAW ) of the Convention . It also held that the refusal of a petition by Mr. Silver for permission to seek legal advice had constituted a breach of LAW ( article DATE ) ( Series A no . CARDINAL , paragraphs CARDINAL and CARDINAL - CARDINAL of the reasons and points CARDINAL , CARDINAL and CARDINAL of the operative provisions , pp . DATE ) .", "The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL - CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL - CARDINAL ) .", "ORG In a memorial filed on CARDINAL DATE , the applicants had claimed , as just satisfaction under LAW ) , \" general \" damages for violation of their rights and reimbursement of specified costs and expenses ; a claim for \" special \" damages had also been put forward in the names of Mr. Silver , Mr. PERSON and Mr. PERSON .", "The Government of GPE ( \" the Government \" ) had replied in writing to the said memorial on DATE .", "In its judgment of CARDINAL DATE , the ORG reserved the question of the application of LAW ) , the written procedure on that issue not then having been concluded ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . DATE ) .", "ORG In accordance with the Orders and directions of the President of the ORG , the registry subsequently received the following documents :", "( a ) on DATE , letter of CARDINAL DATE from the Secretary to ORG , with which was enclosed a further memorial of the applicants ;", "( b ) on DATE , comments of the Government on the last - mentioned memorial ;", "( c ) on DATE and DATE , from the Secretary to ORG , copies of letters of DATE and CARDINAL May which he had received from the applicants’ lawyers .", "In his letter of DATE , the Secretary to ORG indicated that its Delegates had no observations on the issues arising under LAW ) , considering them to be matters to be left to the ORG ’s judgment . Further particulars of the ORG claims and of the ORG ’s position relative thereto are set out below in the section \" As to the law \" .", "ORG Having consulted , through the PERSON , the Agent of the Government and the Delegates of the Commission , the ORG decided on DATE that there was no call to hold hearings ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE - on - Trent .", "The applicant was arrested on DATE on suspicion of having intimidated witnesses . In an identity parade held the same afternoon , he was positively identified by CARDINAL of the CARDINAL witnesses . The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness . The applicant was subsequently charged with CARDINAL counts of doing acts tending and intended to pervert the course of public justice .", "The applicant pleaded not guilty on DATE and the trial was adjourned to the NORP - on - ORG on DATE . On that date no judge was available and the trial was moved to DATE . On DATE of the trial the witness who had identified the applicant did not attend and the trial had to be aborted . At the re - listed trial on DATE , Counsel for the ORG addressed the court in the following terms :", "“ When this matter was listed for trial in DATE , [ L. ] attended on DATE . She was n't called to give evidence and did n't come back on DATE . Certainly , that caused some concern . I think it is fair to say , at different stages of the entire case , she has blown slightly hot and cold .", "[ L. ] indicated to the police when they contacted her recently and , in fact , again DATE , that she was reluctant to give evidence . She has attended court DATE and with my learned friend 's permission , I have had the chance to sit down and have a chat to her .", "Your Honour , the reality is that she does not want to give evidence . She has personal reasons I do n't propose to divulge in open court . She has formed a new relationship . She has moved on . She is trying very hard to put the events of this entire case behind her . She has satisfied the police who spoke to her DATE and satisfied those who instruct me that no threats have been made toward her in relation to DATE 's proceedings . She insists that there has been no contact from [ the applicant ] or others acting on his behalf . We do n't feel that , due to the nature of this allegation , she ought to be compelled to give evidence in this case .", "Your Honour , there has been a very full discussion and the view we have taken is that without her evidence , plainly , we ca n't proceed . I offer no evidence . Verdicts must follow . ”", "The applicant was duly acquitted . On his counsel 's application for a defendant 's costs order , the judge refused to make an order and stated :", "“ That order will be refused . There is clear evidence on the court papers . The ORG have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters . It is a discretion which I am afraid I am not going to exercise in your favour . ”", "The applicant 's attempted appeal was dismissed on DATE as “ to be appealable as a sentence , the order must be contingent upon conviction . As the defendant 's costs order only arises when a prosecution is unsuccessful , it can not be a sentence and can not be appealed at ORG ” .", "Section CARDINAL(CARDINAL)(b ) of LAW DATE provides that where", "“ ... any person is tried on indictment and acquitted on any count in the indictment ORG may make a defendant 's costs order in favour of the accused ” .", "Practice Direction ( Crime : Defence Costs ) [ DATE ] CARDINAL WLR CARDINAL , which was in force at the time of the applicant 's trial , provided that :", "“ Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment , the court may make a defendant 's costs order . Such an order should normally be made whether or not an order for costs inter partes is made , unless there are positive reasons for not doing so , as where , for example , the defendant 's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is . ”", "As noted above , no appeal lies to ORG against a refusal of a defendant 's costs order .", "By virtue of section CARDINAL(CARDINAL ) of LAW DATE , ORG may not exercise its power of judicial review over ORG in matters relating to “ trial on indictment ” .", "An argument that the incorporation of the Convention into GPE law required a remedy against a refusal of a defendant 's costs order was rejected in R ( PERSON ) v. ORG [ DATE ] EWHC Admin CARDINAL , in which Lord Justice PERSON stated that", "“ ... unless and until ORG decides to remove the anomaly , that an acquitted defendant has no right of appeal against the refusal of a defendant 's costs order , however unjust the refusal may be , he has no Convention right of challenge to his decision in an LANGUAGE court and he is still bound to go to GPE if he wishes to make the assertions he sought to raise unsuccessfully in the ORG ” ." ]

[ "6" ]

[ "6-2" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in NORP .", "In a number of administrative proceedings , the applicant challenged the lawfulness of administrative decisions related to the construction and operation of a petrol station that was located QUANTITY from his home . He also brought criminal charges against the state officials who took the relevant decisions and against the manager of the petrol station .", "On DATE at TIME the applicant , accompanied by his wife and Mr PERSON , went to the NORP police station to report the possibility of a fire and explosion at the petrol station as a result of alleged improper handling of petrol stocks at the time . Upon their arrival , they had parked their car in front of an access ramp on the street in front of the police station . At the warden ’s request , the applicant had moved his car to a car park situated behind the “ LOC ” hotel . After the applicant had entered the police station , the same officer had pushed him backwards . In his initial submission , the applicant stated that a gun had also been pointed at his head . CARDINAL or QUANTITY police officers had arrived at the scene and had assaulted him , grabbing him by his arms , legs and hair and throwing him against the stairway . They had continued hitting and beating him all over his body . During the beating , the police officers had used offensive language .", "The ORG submitted that the applicant had parked his car in front of the entrance of the NORP police station on a street on which no traffic and parking had been allowed . They further maintained that he had failed to move his car despite having been ordered to do so by the police officers on duty . The applicant had then entered the police station without identifying himself . He had ignored the ORG verbal order that he leave the building . He had actively resisted when police officers took him out of the station .", "A medical certificate ( “ the first certificate ” ) issued on DATE at TIME indicated that the applicant had sustained several bodily injuries which did not qualify as grievous . A tranquilliser was prescribed . That certificate did not specify the possible origin of the injuries , their timing or the way in which they had been inflicted .", "After communication of the case , the applicant obtained another medical certificate issued on DATE by ORG which described the applicant ’s injuries , noted on the first certificate , in the following terms : slight redness on the right temple , a scratch on the right ankle and a toe . In addition , it was noted that his right elbow and the left side of his hip were tender .", "After communication , the applicant also obtained a forensic expert report of CARDINAL DATE concerning his post - incident trauma . That report , which was based on the medical records and the applicant ’s statement , indicated that , after the incident , the applicant had a bruise on his left elbow , a scratch on his left shinbone and bruises on his face below his left eye and on his left hip .", "No court decision about the incident at issue has been given against the applicant .", "On DATE the applicant asked the Sector to investigate the incident . On DATE the ORG drew up a report giving a factual account of the incident . It established that the applicant had been taken out of the building after he had ignored the ORG verbal order to that effect . He had actively resisted the police officers and he had behaved in an arrogant manner . It found that there had been no abuse of power by the police in their attempts to subdue the applicant . It further stated that on DATE an application for misdemeanour proceedings had been submitted against the applicant under the LAW on minor offences against public order . That application indicated , inter alia , that policemen had grabbed the applicant by his arms and taken him outside the police LOC .", "On an unspecified date , the applicant brought before the public prosecutor criminal charges against Mr P.R. , a police officer who had allegedly participated in the incident , for having ill - treated him while on duty . It can not be established whether the applicant complained about other policemen as well .", "The Government stated that on DATE the public prosecutor requested that additional inquiries be made by ORG ( “ the Ministry ” ) . The latter submitted an official report about the incident in reply . No evidence was submitted in support of that assertion .", "On CARDINAL DATE the public prosecutor rejected the applicant ’s complaint , arguing that the alleged offence was not considered to be a crime that could be prosecuted upon his motion . It was established that on DATE the applicant had parked his car in front of the entrance of the NORP police station , blocking the police ORG way . He had shouted at police officers and threatened to set the petrol station on fire . Mr P.R. and Mr GPE , another police officer , had ordered the applicant to move his car . After having questioned Mr P.R. and other police officers , including PERSON ORG , who had been present at the scene at the time , the public prosecutor established that Mr P.R. had not ill - treated the applicant , nor had the latter been subjected to inhuman and degrading treatment . No gun had been pointed at him by Mr P.R. or by any other police officer . It was finally concluded that Mr P.R. had not committed the offence complained of or any other prosecutable act .", "On DATE the applicant lodged a subsidiary criminal complaint against Mr P.R. and CARDINAL other unidentified police officers with ORG ( “ the trial court ” ) . He complained that he had been shouted at , insulted , beaten and dragged across the floor and that as a result he had sustained light bodily injuries and bruises . He requested that the trial court hear statements from him , his wife and PERSON , who had been an eyewitness to the incident , as well as from Mr GPE", "On DATE the trial court requested that the applicant make his complaint more specific by providing the names of the unidentified police officers .", "On DATE the applicant informed the trial court that he was unable to discover the identities of the remaining police officers . He pointed out that CARDINAL of them had been a warden and the other a guard at the time of the events . He further maintained that the trial court could officially request information about their identities and that he would easily be able to confirm it afterwards .", "On DATE the trial court rejected the applicant ’s subsidiary complaint as incomplete , namely because he had not identified the remaining QUANTITY police officers . No comment was made as to the charges against Mr P.R.", "On DATE the applicant appealed against that ruling , arguing that the trial court had failed to investigate his allegations , and that he had no effective way of discovering the identities of the police officers concerned but that he would be able to identify them in a line - up .", "On DATE ORG upheld the trial court ’s ruling .", "On DATE the public prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with ORG .", "Section CARDINAL § CARDINAL ( CARDINAL ) of LAW ( “ the LAW ” ) provides that an indictment should contain , inter alia , personal information about the person accused .", "In accordance with section CARDINAL § CARDINAL of the LAW , the president of the adjudicating panel examines whether the indictment has been duly completed , and if it has not , he / she shall return it to the claimant , who shall to rectify it within DATE . If an injured party does not comply with that time - limit , the prosecution shall be considered as having been withdrawn and the proceedings shall be suspended accordingly .", "Other statutory provisions relevant to the present case are described in the PERSON case ( see PERSON v. the former GPE , no . CARDINAL , § § CARDINAL , DATE ) ." ]

[ "3" ]

[]

[]

[ "3" ]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "The applicant was born out of wedlock . In DATE her father PERSON was ordered , on the initiative of the social services and by a decision of a ORG ( käräjäoikeus , tingsrätten ) , to pay child support until the applicant 's CARDINALth birthday .", "On DATE the Paternity Act came into force . The transitional provisions in LAW state that paternity proceedings with regard to a child born before the entry into force of the LAW had to be initiated within DATE , that is , before DATE . Moreover , no claim could be examined after the death of the father . No such restrictions exist for children born after the entry into force of LAW .", "In DATE the applicant 's mother and ORG agreed on DATE of child support . The agreement was certified by the social services . The applicant attained majority in DATE .", "PERSON died in DATE and the applicant found out that he had never been legally registered as her father . All of the parties had always been under the impression that paternity had been established when the duty to pay child support was ordered by ORG .", "In DATE the applicant brought a civil claim against ORG legal heir and requested ORG to confirm the paternity . She stated that neither she nor her mother had known that they needed to bring a claim against PERSON to establish paternity , nor did they know that there was a time - limit . They further stated that the social services had been obliged by law to inform them of these issues . No such information had been given to them although the mother of the applicant 's CARDINAL - sister had been informed at the relevant time .", "ORG ordered DNA tests to be performed on the applicant , her mother and PERSON 's CARDINAL brothers . The test was conclusive as to the paternity , with PERCENT certainty .", "On DATE ORG dismissed the applicant 's claim . The court stated that the transitional provision with regard to the death of the father was no longer relevant in the case as modern technology enabled testing that had not been possible in DATE when the LAW had been enacted . PERSON 's death was thus no longer an obstacle for bringing a paternity claim against him . However , the claim had been brought after the expiry of the DATE time - limit . The reason why the claim had been brought late was that the applicant and her mother had been mistaken about the legal character of the child support decision but this mistake was not of a kind that would have justified a derogation from the DATE time - limit . The time - limit itself was not unreasonable or discriminatory nor was it incompatible with the LAW , the LAW or ORG on the Rights of the ORG . The court thus concluded that the applicant 's claim was time - barred .", "On DATE ORG ( hovioikeus , hovrätten ) upheld ORG decision on the same grounds as the latter .", "NORP The referendary of ORG considered in her report ( mietintö , betänkande ) that , since it had been established with DNA tests that PERSON was actually the biological father and since the applicant had a CARDINAL - sister born in DATE who had been acknowledged by ORG in DATE , it would not be against the spirit of the LAW to allow the establishment of paternity with regard to the applicant . Furthermore , she considered that applying the DATE rule in the specific circumstances would put the daughters in unequal positions with regard to inheritance and family relations . She referred to LAW as well as to LAW .", "The applicant appealed to ORG ( korkein oikeus , högsta domstolen ) . On DATE ORG granted leave to appeal .", "On DATE ORG dismissed the applicant 's claim in its precedent judgment ORG on the following grounds :", "“ LAW , on which [ the applicant 's ] claim is based , entered into force on DATE . According to section CARDINAL of LAW , the provisions of LAW are also applied when the child is born before the entry into force of the LAW , unless otherwise provided in LAW . When the child was born before the entry into force of LAW , proceedings for the establishment of paternity must be initiated , in accordance with LAW , within the time - limit of DATE from the entry into force of LAW . According to the same provision , proceedings can no longer be initiated if the man is deceased .", "[ The applicant ] requested in her action directed against the heir [ ORG ] of [ R.J. ] , who had died in DATE , that it be confirmed that [ R.J. ] was her father . [ The applicant ] was born out of wedlock on DATE and thus before the entry into force of LAW . According to section CARDINAL , subsection CARDINAL , of LAW , proceedings for the establishment of the paternity of [ R.J. ] should have been brought within the DATE time - limit from the entry into force of LAW , that is , at the latest on DATE . [ The applicant ] initiated the proceedings only on CARDINAL DATE . Therefore the lower courts rejected her action as time - barred .", "The above - mentioned DATE time - limit applies only to those children who were born before the entry into force of LAW . Those children who were born after the entry into force of LAW can initiate proceedings for the establishment of paternity without any time - limits or any restriction related to the death of the man .", "The question is first of all whether the time - limit in question , which prohibits [ the applicant ] having paternity established , puts her , contrary to LAW , paragraph CARDINAL , of the LAW , in a different position without acceptable justification , due to her date of birth and thus her age , to those children who were born out of wedlock after the entry into force of LAW . Only in the case that the answer to this question is in the affirmative , can the question of whether [ ORG 's ] death prevents the establishment of his paternity arise .", "It can be stated that the purpose of the time - limit in section CARDINAL , subsection CARDINAL , of LAW is that the child or its guardian decides to initiate the paternity proceedings within a reasonable time after the entry into force of the LAW . Taking into account the interests of different parties , the legislator has considered DATE as a reasonable and sufficient time - limit . This time - limit can be motivated by legal certainty considerations .", "Before the entry into force of LAW , paternity of a child born out of wedlock could normally be established only if the man acknowledged his paternity . The paternity could be established by a court decision against the man 's will only on very limited occasions and mainly when the child was considered as an engagement child in accordance with section CARDINAL , subsection CARDINAL , of LAW , section CARDINAL , subsection CARDINAL , of LAW , as in force at the relevant time . On other occasions the man , who by having intercourse with the mother could have made her pregnant , could only be held liable to pay to the child alimony in accordance with LAW out of Wedlock ( CARDINAL/CARDINAL ) . A child who had not been acknowledged or who was not an engagement child had no right to inherit from its father or the father 's relatives .", "The aim of LAW and of the concurrent legislative reform of the rights of a child was to guarantee the legal equality of children regardless of their descent . Therefore the provisions of LAW were made applicable also to children born before the entry into force of the LAW . According to section CARDINAL of LAW , children born out of wedlock had the same legal standing regardless of whether they were born before or after the entry into force of LAW . The fact that an alimony issue had been decided by a court before the entry into force of the LAW did not prevent bringing proceedings for the establishment of paternity . Children also received the same right , irrespective of their descent , to inherit from their fathers and the fathers ' relatives .", "The Paternity Act thus meant that the legal status of children born out of wedlock was fundamentally changed and that they received an equal status with children born within wedlock . The entry into force of the Act did not , however , automatically ex lege change the children 's legal status . If a man did not acknowledge a child , paternity proceedings had to be initiated in respect of a child born out of wedlock and the action could only be granted if there was sufficient evidence of the biological paternity . In this respect the provisions are the same as concerning children born after the entry into force of the LAW .", "The fact that LAW was made applicable also to children born before the entry into force of the LAW created uncertainties as to whether new claims , which had not even been possible under the previous legislation and for which there had thus been no need to be prepared , were going to be presented on the basis of events that had maybe taken place long before the entry into force of the LAW . It was important for a man to know , inter alia , who his heirs were in order to dispose by will of their shares . This also had consequences for the man 's relatives as the establishment of paternity had an effect on their rights because of the child 's right to inherit .", "The number of persons who could be concerned by the change of legal status provided for in LAW was considerable . Proceedings for the establishment of paternity could be initiated within the above - mentioned DATE time - limit irrespective of the age of the person born out of wedlock . The establishment of paternity could change legal relationships created DATE . The change of the man 's legal status due to the establishment of paternity can lead to an annulment of previous decisions also in cases when the children are born after the entry into force of LAW . The retroactive application of the provisions concerning establishment of paternity in respect of children born before the entry into force of the LAW and the effects that it has on legal relationships created under the earlier provisions may create even bigger and more significant problems . The probability of such problems is greater the more time has elapsed since the entry into force of the LAW . There are thus strong reasons for having the time - limit in section CARDINAL , subsection CARDINAL , of LAW .", "The provision containing the time - limit has not been conducive to creating confusing interpretations but , on the contrary , it is unambiguous and strict . In its precedent judgment ORG CARDINAL:CARDINAL the court has examined an action for the establishment of paternity although it had been brought later than within the DATE time - limit from the entry into force of LAW and the man was deceased . However , the case concerned a child who had had the status of a child born within wedlock when the LAW entered into force and who could only initiate proceedings for the establishment of the paternity of another man after the paternity of the mother 's husband had been annulled . [ In the applicant 's ] case there were no legal obstacles for initiating the proceedings .", "LAW has now been in force for DATE . All children born before its entry into force have been adults for some time . It is probable that the paternity of almost all children born then out of wedlock has already been established in CARDINAL way or another with a final court decision or otherwise in accordance with the time - limit provided in section CARDINAL , subsection CARDINAL of LAW . The legal status of these children has also been determined accordingly . The legal situation can be regarded as established . For these reasons , and especially having regard to the time elapsed since the entry into force of LAW , this time - limit has DATE an even more significant role in providing legal certainty .", "It has not been claimed that [ the applicant ] and the putative father [ R.J. ] had ever lived together nor has there ever been any family relationship between them or any other close relationship . [ The applicant ] was already DATE when she initiated the proceedings . Taking into account [ ORG 's ] death and the circumstances as a whole , the establishment of his paternity would have significance only in relation to the applicant 's right to inherit . The international conventions by which GPE is bound , such as the Convention on the Rights of the LAW CARDINAL/CARDINAL ) and ORG MONEY ) , and their case law , do not support such interpretation that the literal application of section CARDINAL , subsection CARDINAL , of LAW would be incompatible with these LAW in the present case .", "On the above - mentioned grounds ORG considers that section CARDINAL , subsection CARDINAL , of LAW does not put [ the applicant ] , who was born before the entry into force of LAW , in a different position without acceptable justification , due to her date of birth and thus her age , to those children who were born out of wedlock after the entry into force of the LAW . The application of the DATE time - limit in that provision is thus not incompatible with the prohibition of discrimination provided in DATE , paragraph CARDINAL , of the LAW .", "The referendary of ORG stated in her report that refusing to establish the applicant 's paternity would be unconstitutional and would involve discrimination . The referendary proposed that the ORG disregard the time - limit on the basis of DATE LAW .", "The LAW of Finland ( perustuslaki , grundlagen , Act no . GPE ) , Article CARDINAL , paragraphs CARDINAL and CARDINAL , guarantees to everyone equality before the law and forbids discrimination of any kind :", "“ Everyone is equal before the law .", "No one shall , without an acceptable reason , be treated differently from other persons on grounds of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . ... ”", "Article CARDINAL , paragraph CARDINAL , of the LAW guarantees to everyone the right to have one 's case dealt with by a court of law :", "“ Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ... ”", "Article CARDINAL of the LAW gives a court of law the right to give primacy to LAW when the application of an Act would conflict with LAW :", "“ If , in a matter being tried by a court of law , the application of an Act would be in evident conflict with the LAW , the court shall give primacy to the provision in LAW . ”", "According to LAW , LAW , subsection CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken ; Act no . CARDINAL ) :", "“ A minor who has attained DATE of age shall have an independent right of action and right to be heard in a matter concerning his or her person , parallel to that of the person responsible for his or her care and custody or his or her other legal representative . ”", "According to section CARDINAL of the LAW Born out of Wedlock ( laki avioliiton ulkopuolella syntyneistä lapsista , lagen om barn utom äktenskap , Act no . CARDINAL/CARDINAL ) , a child born out of wedlock had a father , if a man acknowledged paternity , but paternity could not be established against a man 's will . According to section CARDINAL of the same Act , such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child 's mother at the time when the child was possibly conceived . However , such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse .", "As the children born out of wedlock were put in a substantially worse position than the children born in wedlock , there was a need to guarantee equal treatment of all children before the law ( see government proposal HE ORG ) . This became the main aim of the new LAW of DATE ( isyyslaki , lagen om faderskap , Act no . DATE ) which repealed LAW of DATE .", "Section CARDINAL of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision . According to section CARDINAL , subsection CARDINAL , the child has a right to institute proceedings with a view to having paternity established .", "Section CARDINAL of LAW of LAW ( laki isyyslain toimeenpanosta , lagen angående införande av lagen om faderskap , Act no . DATE ) provides that the provisions of the LAW shall also apply if the child was born before the entry into force of the LAW , unless otherwise provided below . LAW provides that if a man , pursuant to LAW out of PERSON , enacted before the entry into force of LAW , has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child , the provisions in sections CARDINAL and CARDINAL of this Act shall apply to the investigation of paternity , actions for the establishment of paternity and the exercise of the child 's right to be heard .", "Sections CARDINAL and CARDINAL of LAW of LAW provide as follows :", "“ The child welfare supervisor shall attend to the investigation of paternity as provided in LAW , if a child born before the entry into force of this LAW has not reached DATE and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity . After a man has acknowledged his paternity , the provisions in LAW ; section CARDINAL , subsection CARDINAL ; and section CARDINAL of the LAW shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity , and to the enforcement of acknowledgement . ”", "“ A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in LAW . The child welfare supervisor shall not be entitled to exercise the child 's right to be heard without a separate authorisation . Proceedings for the establishment of paternity must be initiated within DATE from the entry into force of LAW . However , no proceedings may be instituted if the man is deceased . ”", "It appears from the drafting history of LAW ( see Report of ORG PERSON , p. CARDINAL ) that considerations of legal certainty underlay the decision to restrict the right of action . The entry into force of the LAW opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived . The legislator considered that putative fathers ' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of LAW . The restriction that a man 's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man 's paternity .", "ORG has held on several occasions that the DATE time - limit in question is to be strictly applied . An exception has been made in a case where the paternity of the mother 's husband had to be annulled first and , as a result of that , the child would have become fatherless if the time - limit had been strictly respected ( see PERSON ) .", "In its precedent case ORG CARDINAL-II-CARDINAL ORG considered that the DATE time - limit in section CARDINAL , subsection CARDINAL , of LAW was not such a time - limit that could be restored by seeking extraordinary remedies ( menetetyn määräajan palauttaminen , återställandet av försutten fatalietid ) ." ]

[ "8" ]

[]

[]

[]

[]

[]

[ "NORP The applicant company , PERSON limited liability company , is a NORP legal entity registered in ORG .", "NORP In DATE an IT company lodged a claim with ORG against the applicant company seeking the cancellation of a contract and return of property .", "By a decision of DATE , the court found against the applicant company . On DATE the Dnipropetrovs’k ORG of Appeal dismissed the applicant company ’s appeal and upheld the decision of the first - instance court .", "By a decision of DATE , ORG , upon the applicant company ’s appeal , quashed the decisions of the lower courts and found in favour of the applicant company .", "On DATE ORG of GPE , upon the IT company ’s cassation appeal , quashed the ruling of ORG on the ground that its findings had been unfounded and erroneous , and upheld the decision of the Dnipropetrovs’k ORG of Appeal . In taking this decision , ORG noted :", "“ ORG of GPE , with regard to the provisions of ORG CARDINAL and CARDINAL of the LAW of GPE , does not consider it necessary to remit the case for fresh examination to the first - instance court . This would be contrary to the provisions of LAW and sections QUANTITY and CARDINAL of the Law of GPE “ On LAW of GPE ” [ LAW ] regarding the status of ORG of GPE and its task to ensure the administration of justice in accordance with the law . It would further cause a constitutionally unacceptable need to quash the lawful decision of the court of appeal . In this regard , the list of possible outcomes of cassation appeals against decisions of ORG of GPE envisaged in LAW is not considered a legal impediment to adopting the decision . ”", "On DATE the decision of ORG was sent to the applicant company .", "The relevant extract of the LAW of GPE reads as follows :", "“ State power in GPE is exercised on the principles of its division into legislative , executive and judicial power .", "Bodies of legislative , executive and judicial power exercise their authority within the limits established by this LAW and in accordance with the laws of GPE . ”", "“ In GPE , the principle of the rule of law is recognised and effective .", "The LAW of GPE has the highest legal force . Laws and other normative legal acts are adopted on the basis of LAW and shall conform to it .", "The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . ”", "“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .", "ORG is the highest judicial body in the system of courts of general jurisdiction ... ”", "“ ... The main principles of judicial proceedings are :", "CARDINAL ) NORP legality ... ”", "The relevant provisions of the LAW ( in its wording of DATE ) read as follows :", "“ The court , exercising justice based on the rule of law shall ensure the protection of the rights and freedoms of natural persons , the rights and legitimate interests of legal persons , and the interests of society and of the ORG as guaranteed by LAW and by the law . ”", "“ CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...", "ORG of GPE shall :", "CARDINAL ) review ... the cases under the cassation procedure in the situations established by law ...", "CARDINAL ) exercise other powers pursuant to the law . ”", "Section CARDINAL of the Act dealt with the competences of ORG .", "The Code of Commercial Procedure ( formerly : Arbitration Procedure ) was significantly reworded on DATE . At that time , a fourth level of jurisdiction was introduced into commercial procedure . According to the relevant provisions of the LAW , a cassation appeal to ORG , similar to that found in other member ORG , and a second ( or repeated ) cassation appeal to ORG was available to the parties in a commercial case . Commercial procedure was the only judicial procedure of GPE where a fourth level of jurisdiction existed and where ORG acted as a second - instance court of cassation ( in criminal and civil proceedings it acted as an ordinary court of cassation and in administrative and administrative offences proceedings it performed only extraordinary review ) . The relevant legislation was changed in DATE and the competence of ORG in commercial cases was limited to the review of a case in the event of inconsistencies in judicial practice or in the event that a decision is adopted by an international tribunal .", "The relevant provisions of LAW ( in its wording of CARDINAL DATE ) read as follows :", "“ A commercial court shall nullify proceedings in the case , if", "CARDINAL ) a dispute is not subject to examination in the commercial courts of GPE ; ... ”", "“ The parties to a case and ORG have the right to appeal in cassation to ORG of GPE against a resolution of ORG of GPE adopted following the review of a decision of a first - instance commercial court that has entered into force , or a resolution of ORG [ as well as the ruling of ORG of GPE on return of the appeal ( request for review ) in cassation ] . ”", "“ ORG of GPE reviews in cassation the resolutions [ or rulings ] of ORG of GPE if they are appealed against :", "CARDINAL ) NORP on the basis of the application by ORG of GPE of a law or normative act which contravenes LAW ;", "CARDINAL ) where a decision contravenes decisions of ORG of GPE or of a higher court of a different specialisation on the issue of the application of the norms of substantive law ;", "CARDINAL ) where it is revealed that ORG of GPE has applied the same provision of the law or any other normative act differently in similar cases ;", "[ DATE ) due to the inconsistency of the resolutions or rulings with the international treaties of GPE agreed as binding by PERSON of GPE ; ]", "CARDINAL ) where an international judicial body whose jurisdiction is recognised by GPE finds that a resolution [ or ruling ] has violated the international obligations of GPE . ”", "“ ... The resolution [ or ruling ] of ORG of GPE shall be reviewed in cassation on the basis of the rules for consideration of the case in the first - instance commercial court , save for", "“ ORG of GPE , following consideration of an appeal in cassation , or a request for review in cassation lodged by ORG against a resolution [ or ruling ] of ORG of GPE , shall be entitled to :", "CARDINAL ) NORP leave the resolution [ or ruling ] unchanged and dismiss the appeal ( request ) ;", "CARDINAL ) NORP quash the resolution and remit the case to the first - instance court for further consideration [ or quash the ruling and remit the case for further consideration to ORG ] ;", "CARDINAL ) NORP quash the resolution [ or ruling ] and nullify the proceedings in the case . ”", "“ The resolutions [ or rulings ] of ORG of GPE shall be quashed if they contravene LAW , international treaties agreed as binding by PERSON of GPE , or if the substantive law has been misapplied otherwise . ”", "“ ... A resolution of ORG of GPE shall be final and shall not be subject to appeal . ”", "“ Instructions , contained in the resolution of ORG of GPE , shall be binding for the first - instance court during a new consideration of the case [ and for ORG of GPE during consideration of the materials of the appeal in cassation or the request for review in cassation ] .", "The resolution of ORG , following a re - examination of the case on the basis of an appeal in cassation against the resolution [ or ruling ] of ORG of GPE shall not include instructions as to the admissibility or inadmissibility of evidence , the superiority of CARDINAL type of evidence over another , the norms of substantive [ or procedural ] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case . ”", "Section CARDINAL of the LAW provides for general measures to be taken by the domestic authorities to eliminate underlying problems which led to finding of a violation by the ORG and reasons for similar applications in the future .", "Section CARDINAL foresees the application of the ORG and the case - law of the ORG as a source of law by the NORP courts in adjudication of cases before them ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in ORG .", "In DATE the applicant started working for FAC in ORG and until DATE she formally occupied the positions of dormitories supervisor and facilities and social activities coordinator . In fact , throughout this period the applicant was working – under the instructions of her manager – as a typist at the local section of ORG . This scheme had apparently been devised because the staff tables did not provide for a typist position .", "Accordingly , the applicant 's employment agreements and job descriptions did not mention her actual duties , which included mostly typewriting . This arrangement was apparently never called into question by the applicant or her employer .", "DATE the applicant worked as an inspector at the human resources department of the Station .", "In DATE or in DATE the applicant 's employer , acting pursuant to a medical recommendation on the nature of work she was fit to perform , moved her to a different position – internal mail carrier .", "In DATE the applicant started experiencing pain in her hands and arms . Initially she was losing the sensitivity in her fingers and could not hold objects . With the passage of time the pain got stronger and her hands started to swell and tremble , especially after long periods of typing .", "NORP In DATE the applicant was examined by ORG ( “ the ORG ” ) at ORG . In a decision of DATE the ORG found that the applicant was suffering from vegetative polyneuropathy of the upper limbs , a disease which features on the Table of Occupational Diseases . However , the ORG , relying solely on the applicant 's job descriptions , concluded that the positions she had occupied ( dormitories supervisor , facilities and social activities coordinator ) did not entail increased strain on her upper limbs . Accordingly , it qualified her disease as non - occupational , finding no causal link between the conditions of work and the disease . Apparently the ORG refused to examine evidence ( including affidavits ) submitted by the applicant to prove her actual duties .", "The applicant appealed to ORG ( “ the ORG ” ) , arguing that her de facto duties were different from the ones enumerated in her job descriptions . As no witness testimony was admissible , she again submitted affidavits from her managers to the effect that she had actually worked as a typist . On DATE the ORG dismissed the appeal , fully endorsing the reasons of the ORG . Apparently it refused to take into account any other evidence purporting to establish the actual duties of the applicant .", "NORP In DATE the applicant was admitted for treatment at ORG in GPE . On DATE the ORG at ORG examined the applicant and found that she suffered from osteohondrosis cervicalis . It also reached the conclusion that the disease was not an occupational one , being unrelated to the duties of the applicant as set out in her job descriptions .", "The applicant appealed against this decision to the ORG . By a decision of CARDINAL DATE it upheld the ruling as to the non - occupational character of the applicant 's disease and fully endorsed the ORG 's reasons .", "On DATE the applicant brought an action against her employer under LAW of DATE . She alleged that the disease of her hands had developed as a result of her work . In fact , DATE she had worked as a typist , even though her job descriptions did not reflect that . The rulings of the ORG and the ORG that her disease was not workrelated were based solely on these job descriptions ; the commissions had not inquired into the reality of the situation . She requested the court to summon witnesses to testify about her real duties and to appoint an expert to establish the occupational character of her disease .", "DATE former managers of the applicant – testified during the trial . They stated that the applicant had in fact worked as a typist , in accordance with the orders of her employer , and provided details about her workload .", "CARDINAL expert witnesses were appointed by the court to give conclusions about the applicant 's state of health and about the occupational or nonoccupational character of her disease . The first expert concluded that the applicant was suffering from vegetative neuropathy of the hands . The second expert submitted a report in which she stated that the cause for the applicant 's disease could be her conditions of work , as described by her managers . Both experts confirmed their conclusions at a public hearing on DATE .", "The Rouse District Court gave judgment on DATE , dismissing the applicant 's action . It stated , inter alia :", "“ ... the court considers the action to be ill - founded . The prerequisites for finding the employer liable under LAW ... are a valid employment agreement and a convincingly established occupational disease . The occupational character of the disease is determined by the special medical commissions ... The existence of a finding [ made by the ORG and ascertaining the occupational character of the disease ] is an absolute precondition for holding the employer liable under LAW . The specific character of the [ subjectmatter of the inquiry ] has led the legislature to establish specialised medical bodies to give a conclusion as to the type [ of the disease ] and as to the causal link between the conditions of work and the disease . In the case at hand the [ ORG and the ORG ] have concluded that the [ applicant 's ] disease was not occupational and was not related to her conditions of work ... [ T]he court examining the dispute under LAW may rule as to the occupational character of the disease only if no medical documents have been issued by the [ ORG ] . ”", "The applicant appealed to ORG . On DATE that court upheld the lower court 's judgment in the following terms :", "“ The [ ORG ] judgment is well - founded . After assessing the collected and relevant evidence , ORG correctly concluded that the occupational character of the [ applicant 's ] disease , ... which is CARDINAL of the prerequisites for holding her employer liable under LAW , has not been convincingly established . The firstinstance court has correctly decided that the occupational character of the disease may be established by the court only if no documents have been issued by the specialised medical bodies ... ORG has taken into account that in the case at hand these bodies have reached the categorical conclusion ... that the disease of the [ applicant ] was not related to her working conditions and was thus not occupational . ”", "NORP The applicant lodged a petition for review with ORG . That court dismissed the petition in a final judgment of DATE . It held :", "“ The acts issued by the specialised medical bodies indicate that [ the applicant 's ] disease was not occupational , i.e. no causal link was found between the disease and the working conditions . The expert witnesses ' conclusions do not alter this finding . The [ first expert ] concluded that the disease “ vegetative polyneuropathy of the hands ” features on the table of occupational diseases . This fact is not at issue , but the [ employer 's ] liability under LAW presupposes not only the existence of the respective disease , but also the establishment of a causal link between the disease and the conditions of work . This causal link has not been established by the [ second ] expert either . In her report she found that activities related to type - writing are a prerequisite for the development of vegetative polyneuropathy . However , the fact that typewriting is in general a prerequisite for this disease does not prove the existence of a causal link between the [ applicant 's ] conditions of work and [ her ] disease .", "... The specialised medical bodies are the administrative organs empowered by law to ascertain the existence of an occupational disease and the causal link between the disease and the [ conditions of ] work . The [ lower ] courts correctly held that the circumstances that [ these organs ] are authorised to examine may be examined by the court having cognisance of the action under LAW only in the absence of findings made by these organs . The [ applicant ] has not established before the specialised medical bodies the existence of a causal link between [ her ] disease and the conditions of work as a typist ... Therefore the conclusions of the [ lower ] courts that her action is unfounded are correct . ”", "Article CARDINAL of LAW of DATE , which regulates the liability of the employer toward the employee for damage which has occurred as a result of an occupational accident or disease , reads as follows :", "“ CARDINAL . NORP The employer shall be liable for damage [ resulting from ] an occupational accident or disease which has caused a temporary or permanent disability or death of the employee , irrespective of whether it has been brought about through fault [ of the employer ] or of another employee .", "...", "NORP The employer shall owe compensation amounting to the difference between the quantum of the damage – pecuniary and nonpecuniary , including lost profits , – and the [ amount of the ] benefits and/or pension [ provided to the employee ] by the social security . ”", "At the relevant time occupational diseases were defined by Regulation No . CARDINAL of the Minister of ORG ( “ SG ” ) , issue CARDINAL of DATE , amended , GPE , issues CARDINAL and CARDINAL of DATE ) and by ORG , issue CARDINAL of DATE , amended , GPE , issue CARDINAL of DATE and issue CARDINAL of DATE ) . The ORG defined occupational diseases as “ impairments of the health arising exclusively or predominantly from the harmful factors of the conditions of work or of the work process and which have been listed in the Table of Occupational Diseases ” ( section CARDINAL(CARDINAL ) ) . The Table listed the diseases , the conditions of work causing them , and the types of work in the performance of which they could occur . For a disease to be regarded as occupational , it had to ( a ) be listed in the Table ; ( b ) stem from the exposure to certain dangerous conditions of work ( e.g. noise , vibrations , radiation ) , exhaustively enumerated in the Table ; and ( c ) the types of work ( e.g. typist , miner , driver ) involving exposure to these conditions had to be enumerated in the Table , the enumeration not being exhaustive .", "The DECs and the ORG were established by the abovementioned Regulation No . CARDINAL under the authority of ORG .", "The DECs were responsible for determining the occupational character of a disease ( section CARDINAL(CARDINAL ) of the Regulation ) . Their members were appointed by the medical directors of the respective hospitals ( section CARDINAL(CARDINAL ) of the Regulation ) .", "The ORG heard appeals against decisions of the DECs ; its members were appointed by the Minister of Health ( section CARDINALa(CARDINAL ) of the Regulation ) . The findings of the ORG in respect of the occupational character of the disease were binding on other medical bodies dealing with occupational expertise issues ( section CARDINAL(CARDINAL ) of the Regulation ) , but the Regulation did not provide that they were binding on the courts .", "The members of the commissions – who were exclusively medical professionals – were remunerated under privatelaw service contracts with ORG ( sections GPE ) , CARDINAL ) and ( CARDINAL ) of the Regulation ) .", "There were no detailed rules regulating the procedure before the commissions . The ORG provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents ( section CARDINAL of the Regulation ) , making no provision for witness testimony or other evidence . No hearings were held .", "Article CARDINAL of the LAW provides :", "“ CARDINAL . The courts shall review the lawfulness of the administration 's acts and decisions .", "Physical and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them , save in the cases expressly specified by statute . ”", "The Administrative Procedure Act ( “ the ORG ” ) governs the procedure for issuing “ administrative acts ” and for judicial review of such acts . Section CARDINAL(CARDINAL ) of the Act defines “ individual administrative acts ” as “ acts issued [ by public authorities ] , which create rights or obligations for , or affect rights or legitimate interests of , individuals or legal entities , as well as the refusals to issue such acts ” . By sections CARDINAL of the LAW , all “ administrative acts ” , save those relating to the security of the country or specifically enumerated by statute , are subject to judicial review . The application for judicial review must be lodged within a specified timelimit , which varies depending on whether the “ administrative act ” was an express act or a tacit refusal and on whether before being appealed against before a court it was appealed against before a higher administrative authority ( section CARDINAL(CARDINAL ) , read in conjunction with sections CARDINAL , DATE and DATE of the Act ) . Only if it is alleged that the “ administrative act ” is null and void , the application for judicial review is not limited by time ( section CARDINAL ) of the Act ) .", "In its interpretative judgment no . CARDINAL of DATE in constitutional case no . CARDINAL ( GPE , issue CARDINAL of DATE ) ORG gave a binding interpretation of LAW . It held , inter alia , that that LAW 's provision encompassed all administrative acts regardless of their character or theoretical qualification . The exclusion of a given administrative act from judicial review could only be done by statute . “ All administrative acts ” meant “ without exception ” . Only internal acts which did not affect in any way physical or legal persons outside the respective administration were not covered by the constitutional provision .", "The former ORG has held that the decisions of the special medical commissions were not “ administrative acts ” within the meaning of the ORG , which could be appealed against before a court , but rulings of special bodies subject only to a hierarchical appeal within the respective administration ( опред. № CARDINAL от DATE г. , ORG , III г.о. ) .", "In a series of decisions and judgments starting with a reported decision of CARDINAL DATE in which it quashed a decision of ORG declaring an appeal against the decision of a special medical commission inadmissible , ORG , which succeeded ORG after the reform of DATE , started allowing judicial appeals against the decisions of special medical commissions . In contrast with the holding of the former ORG , it held that the commissions ' decisions were affecting the rights of the persons examined and were therefore “ administrative acts ” within the meaning of the ORG . The general rule under LAW being that administrative acts were subject to judicial review unless otherwise provided by statute , the commissions ' decisions were appealable before a court . In a number of those decisions and judgments the court also relied on LAW and , in particular , its “ access to a court ” requirement ( опред. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , ORG ; опред. № CARDINAL от DATE г. по адм. д. № CARDINAL г. , PERSON , ORG ; опред. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , ORG ; опред. № CARDINAL от DATE г. по адм. д. № CARDINAL г , ORG , ORG ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № CARDINAL г. , ORG , ORG ; реш. № CARDINAL от DATE г. по адм. д. № CARDINAL г. , PERSON , петчленен състав ) ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and is at present serving a DATE sentence in FAC .", "On DATE ORG received an anonymous telephone call from a man who reported the disappearance of his neighbour GPE , the applicant 's wife , since DATE . On DATE the police carried out an in situ inspection of the flat and the adjacent premises where GPE had lived and collected samples of bloodstains and other biological particles found there . DNA testing on the bloodstains carried out on DATE showed that these samples belonged to the victim , the applicant and another male person . Meanwhile , on DATE a ORG investigating judge issued a warrant for the search of the applicant 's flat in order to identify possible objects connected with a criminal offence which was not specified . The search was carried out by the police on DATE but no items of interest were found .", "On DATE at TIME the applicant was arrested by the police and placed in police custody on suspicion of murdering his wife ( PERSON ) in GPE at DATE and disposing of her body at the garbage disposal tip near the town of GPE . He was first interviewed by the police . The applicant 's statement to the police in which he confessed to murdering his wife was subsequently excluded from the case file as inadmissible evidence on the ground that he had not been legally represented .", "At TIME , the applicant was brought by the police officer who had previously interviewed him before an investigating judge of ORG ( istražni sudac ORG ) and was questioned in the presence of a GPE Deputy ORG Attorney . The written transcript of the interview shows that the applicant had been warned about his right to remain silent and to be legally represented . After replying that he had understood the warnings , he chose to defend himself in person . He then stated that he was “ not experiencing any mental crisis , that he was aware of everything that he was saying and that the police officers had treated him correctly ” and then denied that he had murdered his wife but instead stated that he had found her dead and then disposed of her body out of fear that he would be accused of her murder . The applicant also stated that he had been listening to the judge 's dictation for the official record and that his words had been faithfully conveyed , adding that he had no objections as to the content of the written transcript , which he duly signed . The applicant was then placed in pre - trial detention where he remained until his conviction . The parties agree that upon his arrival he was seen by a doctor and that no injuries were recorded .", "On DATE an investigation was opened against the applicant in ORG on a suspicion that he had murdered his wife , PERSON and on DATE a lawyer , PERSON , was officially appointed to assist the applicant . On DATE the defence counsel appealed against the decision to open an investigation , arguing that there had been no relevant evidence that the applicant had murdered PERSON On DATE the appeal was dismissed by a CARDINAL - judge panel of ORG .", "On DATE the investigating judge heard evidence from CARDINAL witnesses in the presence of the applicant 's counsel . On DATE the applicant 's pre - trial detention was extended by ORG . The applicant 's counsel lodged an appeal which was dismissed by ORG on DATE .", "Meanwhile , on CARDINAL May CARDINAL the same investigating judge again interviewed the applicant , this time in the presence of his officially appointed defence counsel . The applicant was warned that he had the right to remain silent . However , he repeated his previous statement and added some details as to how he had disposed of his wife 's dead body . He signed the written transcript of the interview .", "On DATE a confrontation between the applicant and a witness was organised before the investigating judge , in the presence of the applicant 's officially appointed counsel . The applicant stated that on the critical occasion he had twice hit his wife . He also stated that he had asked the witness present to help him dispose of his wife 's dead body . However , he denied that he had killed her .", "On DATE the applicant informed ORG that he was represented by CARDINAL defence counsel of his own choosing . Consequently , in a decision of DATE the officially appointed defence counsel was relieved of his duties .", "On DATE the applicant sent a letter to ORG investigating judge , withdrawing the previous confessions he had made before that judge . He alleged that during his interview by the police on DATE he had confessed to having murdered his wife because he had been threatened and beaten by QUANTITY police officers . They had punched him in the stomach , ears and head and slapped him several times . He named CARDINAL of the officers . They had , he alleged , also threatened him with further beatings if he retracted his confession before the investigating judge . For fear of further beatings , he had made a statement on CARDINAL occasions before the investigating judge in which he had confessed to having disposed of the dead body of his wife , even though that was not true .", "On DATE the investigating judge excluded , inter alia , the transcript of the applicant 's interview by the police from the case file .", "On DATE the GPE State Attorney 's ORG ( GPE državno odvjetništvo GPE ) filed a bill of indictment against the applicant in ORG , charging him with the murder of his wife at DATE , and the applicant was thus committed to stand trial .", "During the trial proceedings the applicant , represented by CARDINAL lawyers of his own choosing , decided to remain silent . ORG trial panel heard evidence from witnesses , including ORG , in the presence of the applicant and his counsel , obtained forensic and other relevant reports and in its judgment of DATE found the applicant guilty as charged and sentenced him to DATE imprisonment . The findings as to the applicant 's guilt relied on the statements of the applicant given by him before the investigating judge on CARDINAL occasions as well as on the other evidence such as a DNA analysis of the bloodstains found in the applicant 's home and hearsay evidence given by CARDINAL of the witnesses . The relevant part of the judgment reads as follows :", "“ The defendant 's confession during the investigation and the evidence given by witnesses ORG and ORG indicate that TIME at DATE the police arrived at the applicant 's flat on account of the fact that music was being played too loud , while the fact that PERSON had actually died was twice confirmed by the defendant during the investigation . Furthermore , the witness ORG said that the defendant had told him that he had killed his wife and asked him to help him transport her dead body to PERSON in order to throw it into the sea .", "A careful analysis of the defendant 's statements given on CARDINAL occasions during the investigation and of all other evidence presented at the hearing led this court to conclude that the defendant had acted as described in the operative part of this judgment and that all the statutory elements of the crime in question , in both its objective and subjective aspects , had thus been fulfilled .", "During the investigation , the defendant , as mentioned above , twice confirmed the death of his wife , whose body has never been found .", "...", "... [ witness ] ORG , who has no sensible motive for laying any blame on the defendant , has , during the entire proceedings , expressly stated that the defendant , DATE after the critical day at DATE , had ... told him as follows : ' After you had left TIME , I killed her . ' And when [ O.M. ] had asked ' Whom ? ' , the defendant had answered ' NORP ' and had asked him to transport her dead body with his car to PERSON in order for the defendant to throw it into the sea , which the witness had refused .", "...", "... [ during ] an in situ inspection of the [ defendant 's ] flat traces of her [ the defendant 's wife ] bloodstains were found ... ”", "The applicant and his counsel both appealed against the judgment . In his personal appeal the applicant complained , inter alia , of the fact that the judgment relied on the statements given by him before the investigating judge even though he had subsequently retracted them and had informed the investigating judge that he had given these statements under duress . His lawyers had moreover appealed on the same basis . In a judgment of DATE ORG ( PERSON ) upheld the applicant 's conviction . The relevant part of the judgment reads as follows :", "“ .. the fact that PERSON had died was twice confirmed by the defendant in the statements given by him during the investigation . He described in detail how he had disposed of the dead body of his wife D , and the first - instance court correctly accepted this part of the statement while at the same time dismissing the part of his statement in which he denied murdering his wife . In this connection the defendant 's allegations that his statements during the investigation had been given as a result of the threats and beatings by the police and that he had told the investigating judge what the police had instructed him to say are unfounded . No basis for such allegations can be found in the evidence or the case file . On the contrary , when first questioned by the investigating judge the defendant expressly stated that he was not in a state of mental crisis , that he was aware of what he was saying and that the police officers of ORG had treated him correctly . ”", "The subsequent constitutional complaint lodged by the applicant was dismissed by ORG on DATE .", "The relevant part of LAW ( ORG nos . DATE Zakon o kaznenom postupku ) provides as follows :", "“ ...", "( CARDINAL ) Where not otherwise provided by law , the ORG Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a criminal offence liable to official prosecution and where there are no statutory obstacles for prosecution of that person . ”", "“ ( CARDINAL ) All ORG bodies and all legal entities are obliged to report criminal offences liable to official prosecution , whether they have been informed thereof or have learned about such offences on their own .", "... ”", "“ ( CARDINAL ) A criminal complaint shall be lodged with a competent ORG Attorney in writing or orally .", "...", "( CARDINAL ) Where a criminal complaint has been lodged with a court , a police force or a ORG Attorney lacking competence , they shall receive the complaint and immediately forward it to the competent ORG Attorney . ”" ]

[]

[]

[]

[ "6" ]

[ "6-1", "6-3" ]

[]

[ "The applicant was born in DATE and lives in GPE .", "His wife died on DATE . His claim for widows’ benefits was made in DATE . On DATE the applicant was informed that he was entitled to Widowed Parent ’s ORG ( “ ORG ” ) . However , on DATE he was informed that he was not entitled to a Bereavement Payment on the ground that the benefit did not exist at the time of the applicant ’s wife ’s death . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "The relevant domestic law and practice are described in the ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV ." ]

[ "14", "P1" ]

[ "P1-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "NORP By letter of CARDINAL DATE , ORG informed the applicant that his permits to keep and carry a firearm for defence purposes as well as a hunting rifle had been revoked because on DATE the applicant had been listed in an “ operational records file ” ( policijos operatyvinė įskaita ) , a database containing information gathered by law - enforcement authorities ( see paragraphs CARDINAL - CARDINAL in ' Relevant domestic law ' below ) . The applicant was informed that he was to hand in these firearms to the authorities and would receive money for them .", "On DATE the applicant requested GPE to order the removal of his name from the operational records database . The applicant stated that he had only discovered that his name had been so listed from the aforementioned police letter .", "On DATE the GPE District Court refused the applicant 's request , finding that he should have brought his claims before the administrative courts .", "The applicant appealed to ORG , arguing that he had never been informed of the reasons for the listing of his name in the operational records file and requesting that it be removed . The applicant also asked the court to order the police to provide him with all the written materials concerning the listing of his name .", "On DATE the ORG found that it was necessary to decide which court DATE of general or administrative jurisdiction DATE was competent to hear the applicant 's case .", "On DATE GPE city police officials instituted criminal proceedings on charges of theft when acting in an organised group ( LAW of LAW ) . The applicant was charged on DATE and placed under house arrest .", "On DATE the special chamber responsible for questions of jurisdiction , composed of the judges of ORG and ORG , decided that the applicant 's case should be examined by the administrative courts .", "On DATE the applicant was charged with covering up a crime committed by others ( Article CARDINAL of LAW ) . In particular , the investigators suspected that in DATE and DATE the applicant had helped to hide stolen cars on the premises of the company where he worked as the director . In his application the applicant maintained that this was not a fresh charge against him but a substitution for the previous charge of theft ( see paragraph QUANTITY above ) .", "On DATE GPE ordered that the applicant be released from house arrest .", "On DATE ORG allowed the applicant 's action , holding that the listing of his name in the police file was contrary to the principles of the presumption of innocence and the rule of law . Having reviewed the classified materials submitted by the police , the court found no evidence showing that the applicant had been engaged in any criminal activity . The court also noted the absence of any accusatory judgment against the applicant . On the contrary , testimony to his positive attributes , submitted to the court by environmental protection agencies and non - governmental associations , showed the applicant 's goodwill and dedication ( principingumą ) to protecting nature . For the above reasons , the court ordered the NORP police officials to remove the applicant 's name from the operational records file .", "On DATE the GPE police appealed . They contended that , when listing the applicant 's name in an operational records file , the police had respected the applicable rules . In their appeal they observed that the file had been submitted to ORG and that the judges had acquainted themselves with that information . Lastly , the police noted that criminal proceedings on charges of theft had been pending and that the applicant was one of the accused .", "On DATE ORG quashed the lower court 's decision and returned the case for fresh examination . It was noted that the lower court had erred in law and failed to consider certain relevant evidence . The appellate court emphasised that , when adopting a decision , the lower court had to evaluate all the evidence which had been presented at the hearing and to determine which circumstances had been established and which had not . In particular , the lower court had not properly examined the circumstances relating to the criminal proceedings on charges of theft and had failed to evaluate the applicant 's procedural position in them . ORG stressed that it was indispensable to examine all the circumstances relevant to the dispute over the listing of the applicant 's name in the operational records file .", "On DATE ORG dismissed the applicant 's claim . The court admitted that a person listed in police records could be negatively affected in a number of ways , for example , he could lose the right to carry a firearm or face restrictions when applying for certain jobs . However , the court noted that having examined the “ written evidence ” in the case , as well as having examined , in the judges ' chambers , the operational file on the applicant , the listing of the applicant 's name in the police file had been lawful and justified . Whilst acknowledging that it had not been possible to disclose the operational file to the applicant , the court noted , nevertheless , that the applicant had been able to substantiate his claims by providing evidence or by asking the court to obtain the relevant materials when it had not been possible for him to obtain them himself . It concluded that he had not adduced any proof in support of his claim that the listing of his name in the operational file was unlawful .", "The applicant appealed , noting the lower court 's observation that the listing of his name in the police file could entail negative consequences for him . The applicant also submitted that he was an inspector of nature protection ( gamtos apsaugos inspektorius ) and that he had been attacked by poachers on numerous occasions . Consequently , were the guns to be taken away from him , it would be too dangerous for him to pursue that activity . Furthermore , the applicant alleged that the gun was necessary for defending his family – living in a remote and insecure rural area DATE and also for his job , as he occasionally transported large sums of money from his company 's safe to the bank .", "The applicant argued that he had had no access to the information which had served as the basis for the listing of his name in the police file . No reasons , except for theories ( išskyrus prielaidas ) had been disclosed to him . Relying on the above , the applicant submitted that his rights of defence had been breached and that the file on him should be destroyed .", "On DATE ORG dismissed the applicant 's appeal , upholding the reasoning of the lower court . It noted that , “ having evaluated the written evidence in the case and the operational file [ which under the PERSON on State Secrets could not be disclosed to the defence ] , it had been possible to conclude that the listing of the applicant 's name in that operational file had been reasonable and lawful ” .", "On DATE the criminal investigation in respect of the applicant on account of suspected theft was discontinued due to statutory limitations .", "Article CARDINAL of the LAW provides that the dignity of a human being is to be protected by law . LAW states that the private life of a human being is inviolable and that information concerning it may be collected only following a reasoned court decision and only in accordance with the law . The law and the courts are to protect anyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity . LAW provides that property is inviolable and that ownership rights are protected by law . Property may be taken only for the needs of society in accordance with the procedure established by law and must be fairly compensated . Under LAW , a person whose constitutional rights or freedoms have been violated has the right to apply to a court . LAW provides that each human being may freely choose a job or occupation .", "LAW ( Operatyvinės veiklos įstatymas ) ( as in force until DATE ) described “ operational activities ” as being intelligence and counter - intelligence activities conducted by institutions and authorised by the ORG to combat organised crime . Under LAW of the LAW , an “ operational records file ” is the data on individuals , events and other targets obtained during the process of operational activities , with the intention of providing information to operational entities .", "Under LAW , possible reasons for commencing operational activities would be the existence of preliminary information about a crime which was being planned or had already been committed against the ORG , about another kind of major crime , about an individual who was planning or who had committed a crime , about an individual 's links to a criminal organisation , or about the activities of foreign intelligence services .", "DATE of the PERSON provided :", "ORG “ CARDINAL . Information obtained during the course of operations may be disclosed during court proceedings with prior authorisation from ORG or the Deputy Prosecutor General designated by him . Use of information obtained during the course of operations for purposes other than those for which it was intended is prohibited .", "ORG Information obtained during the course of operations may be used as evidence in a criminal case in accordance with the formalities and procedure established by LAW .", "If , during the course of proceedings , information about an individual obtained using special equipment is disclosed , the individual has the right to lodge a complaint and contest the use of that information in court , on the grounds that the information was obtained illegally . In such instances the court has the right to disclose excerpts from the reasoned authorisation request [ to start an operational activity ] in order to prove the legality of that authorisation . ”", "Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON on the Control of Arms and Ammunition ( ORG ir šaudmenų kontrolės įstatymas ) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation . According to LAW ( CARDINAL ) of that PERSON , a person was not regarded as having an impeccable reputation if his or her name had been listed in an operational records file . LAW provided that , after a firearms licence had been revoked , the arms and ammunition were to be taken from the person concerned and sold through ORG ( a ORG agency ) or through other companies authorised to sell them .", "Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON on ORG ( NORP ir turto saugos įstatymas ) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer .", "The relevant part of ORG ( PERSON bylų teisenos įstatymas ) provides as follows :", "“ CARDINAL . Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case , or that there are no such circumstances ...", "As a rule , factual data which constitutes a ORG or official secret may not be used as evidence in an administrative case , until the data has been declassified in a manner prescribed by law . ”", "In the judgment of DATE in case no . MONEY - CARDINAL , ORG stated , in so far as relevant to the present case , that :", "“ as a rule , factual data which constitutes a ORG or official secret may not be used as evidence in an administrative case until it has been declassified ( LAW of ORG ) . Therefore , in the absence of other evidence , the [ lower ] court 's reliance on solely written information provided by ORG which was marked as secret had no legal basis ” .", "On DATE ORG adopted a ruling on the compatibility with LAW CARDINAL § CARDINAL of ORG , and LAW and CARDINAL of the Law on State Secrets . It ruled that no decision of a court could be solely based on information which constituted a ORG secret and which was not disclosed to the parties to the case . In the ruling no . ACARDINAL - CARDINAL/CARDINAL of CARDINAL DATE ORG confirmed the above principles ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms D. Rone , a lawyer practising in Rīga . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "NORP The creation of GPE was proclaimed on DATE . Different types of property rights were recognised , including the ownership of residential buildings .", "A large - scale entry of the NORP army into GPE took place in DATE . After the lawful government of the country was overthrown and NORP rule was imposed by force ( see , mutatis mutandis , PERSON and GPE v. GPE DATE . ) , nos . CARDINAL and CARDINAL , ORG CARDINALI ) , the nationalisation of property began . Property was expropriated without any compensation ( see paragraph CARDINAL below ) .", "NORP The building located at CARDINAL PERSON street was amongst the buildings nationalised . From DATE the applicant lived in an apartment located in that building on the basis of a lease agreement concluded on CARDINAL DATE ( “ the DATE lease ” ) with ORG of LOC ( PERSON pilsētas PERSON rajona namu pārvalde ) . The agreement was a pre - typed standard text , not indicating the amount of rent payable . It entitled the applicant and his family members to rent the apartment for an indefinite period of time . Under NORP law the amount of rent payable was not set by the parties to the lease but by the ORG ’s administrative authorities . By a decision of CARDINAL DATE , the building located at CARDINAL PERSON street was returned to its former owner . The applicant continued to live in the apartment located in that building until DATE , when he moved out .", "On CARDINAL DATE ORG , the legislative assembly elected on DATE in DATE , adopted the Declaration on the Restoration of Independence of the Republic of Latvia . On DATE ORG passed LAW on GPE , proclaiming full independence with immediate effect ( see PERSON GPE [ ORG ] , no . CARDINAL , § § DATE , CARDINAL DATE ) .", "On DATE ORG adopted the Law on Denationalisation of Real Estate , whereby the decrees on nationalisation issued after DATE were declared null and void . The nationalised buildings were to be returned to their former owners or their heirs . The former lease agreements concluded with tenants in those buildings under NORP law continued to be binding in their entirety until DATE , and from then on only in so far as the term of lease was concerned . The amount of rent payable was determined by the ORG . During DATE after restoration of their property rights , owners could not evict tenants without allocating them another place of residence . After that period eviction could take place in accordance with ORG . On DATE ORG passed the PERSON on the Return of Real Estate to ORG .", "On DATE the Decision on Entry into ORG of these CARDINAL laws ( “ ORG Decision ” ) was enacted . It required ORG to draft a law on compensation and submit it to ORG by DATE , and to draft and stipulate regulations for credit arrangements for tenants . In DATE ORG and its respective committees examined a draft law “ On ORG and Compensation ” , but that law was never enacted . The draft did not include any reference to tenants’ right to receive compensation . On DATE ORG of ORG ( PERSON padomes PERSON ) rejected the draft because it was necessary to specify its sphere of application . It also had to be aligned with the provisions of ORG and LAW . ORG was instructed to improve the draft within DATE and re - submit it to ORG . It appears that this task was never completed . It should be noted , however , that on DATE members of ORG ) submitted for examination a draft law on compensation for tenants . On DATE that draft was accepted at first reading in one of the last sessions of the ORG before the expiry of its term . The draft law was never reviewed at second and third reading and was therefore never passed .", "Another part of the property reform in DATE was the privatisation of ORG and municipally owned property . Those who resided in such buildings took this opportunity to acquire property rights over apartments located in them through privatisation .", "In accordance with ORG , enacted on DATE , the amount of rent payable by tenants in denationalised buildings or those returned to their former owners was to be established on the basis of a written agreement , but could not exceed the maximum amount determined by the ORG . That law was amended on several occasions . On DATE ORG declared the statutory rent limits unconstitutional and declared them void as of DATE .", "From DATE owners were entitled to increase rent by serving notice on their tenants of their intention to do so . Tenants could challenge it by lodging a claim with the civil courts . The courts would then decide whether the amount of rent was warranted and adequate ; owners were accordingly required to justify the amount requested . Evictions could not take place without a court order , and tenants were entitled to receive advance notice , and to the opportunity to be heard , before being evicted .", "On DATE the applicant moved out of the apartment allegedly because he could not afford to pay the rent . He did not initiate proceedings in the civil courts over the amount of the rent . Nor was he subject to eviction proceedings . According to the information provided by the Government , since DATE the applicant is residing in another dwelling , namely , a house entered into ORG as his spouse ’s property in part ( PERCENT ) ( CARDINAL domājamās daļas ) . The applicant did not contest this .", "On DATE the applicant lodged a civil claim with ORG ( PERSON ) against the ORG represented by ORG kabinets ) and against ORG ( PERSON dome ) . He requested the court to compel ORG to comply with ORG in his case and to allocate him an equivalent apartment or grant compensation to acquire such an apartment in the amount of NORP lati ( ORG ) CARDINAL ( approximately EUR CARDINAL ) .", "On DATE the regional court dismissed the applicant ’s claim without examining it on its merits . The court found that the applicant had lodged his complaint against the ORG represented by ORG and against ORG and , in substance , had requested that an action of executive power ( action or omission of a public authority ) be subjected to judiciary control . According to the court , such claims fell within the jurisdiction of the first - instance administrative district court ; there was no dispute over a civil right . The applicant submitted an ancillary complaint against that decision .", "On DATE ORG of ORG ( PERSON tiesas PERSON tiesu palāta ) quashed the decision of the regional court and issued a new ruling . The applicant ’s claim was rejected on the ground that it was not subject to examination by a court . The court held , inter alia :", "“ ... [ the applicant ] in fact requests the allocation of an apartment but such issues are to be resolved in local municipalities – in the present case ORG , in accordance with the Law on State and Municipal Assistance Concerning Apartment Issues ...", "[ The applicant ’s ] claim would be subject to examination by an administrative court if ORG were to adopt a decision unfavourable to him , in which case there would be grounds for appeal against the decision under the provisions of ORG .", "Thus , administrative proceedings should be initiated before the administrative body concerned , whose decision can be appealed against [ in a court ] in accordance with the provisions of LAW ” .", "The applicant submitted an ancillary complaint against that decision .", "On DATE the ORG of ORG ( PERSON tiesas PERSON ) upheld the decision of its ORG . The court stated that :", "“ The allocation of a place of residence and alternative claims for compensation do not fall within the competence of a court ....", "In his claim , [ the applicant ] has linked his considerations with ORG of DATE . But he has not taken into account that the legal provision [ contained therein ] does not provide for the existence , change or termination of a substantive legal relationship between the applicant , on the one hand , and ORG [ or ] ORG [ on the other hand ] ...", "[ The applicant ’s ] claim relates to issues falling outside the competence of the judiciary ” .", "On DATE the applicant lodged a claim with ORG ( ORG rajona tiesa ) against the ORG represented by ORG and against ORG . He submitted that ORG and ORG were responsible for the fact that the apartment he was renting had been handed over to another person and that his right to lease had been breached ; he had suffered non - pecuniary and pecuniary damage . He requested the court to compel ORG and ORG to comply with ORG and other legislative enactments and grant him compensation in the amount of ORG CARDINAL to acquire an apartment of the same standard and ORG for non - pecuniary damage . He also complained that the binding regulations of ORG under which eligibility for registration to receive offers of lets of apartments owned by the municipality depended on DATE income were discriminatory .", "The applicant ’s claim was examined in the district court , the regional court and ORG , which adopted a final decision on DATE . ORG of the ORG of ORG ( PERSON tiesas ORG lietu departaments ) examined separately each branch of the applicant ’s claim .", "First of all , the ORG considered whether the applicant had a right to claim compensation for an apartment of the same standard under domestic law . The ORG established that a draft law on compensation referred to in DATE , paragraph CARDINAL of ORG had not been enacted , and that consideration therefore had to be given to whether tenants’ right to compensation derived from the Laws on the Return of Real Estate to ORG and on ORG in GPE . The first of those laws did not provide for such compensation rights , but for social rights to retain the right to lease ( section CARDINAL ) , to statutory rent limits ( CARDINAL ) and to have another apartment allocated in the event of eviction ( sections DATE ) . Under the second law only former owners or their legal heirs , not tenants , were entitled to compensation . The ORG concluded that the applicant did not have a subjective right to compensation in order to acquire an apartment of the same standard on the basis of the above - mentioned laws .", "The ORG then proceeded to examine whether such a right to compensation could be derived from ORG , since under LAW that law every person has a right to request adequate compensation for pecuniary or non - pecuniary damage suffered as a result of an administrative act ( administratīvais akts ) or action of a public authority ( faktiskā rīcība ) . The ORG considered whether the elements of an action of a public authority were found in the relevant actions or omissions of the ORG authorities ( whether the person had a right to such act and whether , by such act , his or her subjective rights or interests might have been affected ) .", "NORP Since the applicant did not have a right under domestic law to privatise the apartment in the denationalised building , he could not request the authorities to ensure such rights or to ensure that they were protected during the process of denationalisation of the building where his rented apartment was located . Therefore , the denationalisation of the building was not an action of a public authority in so far as the applicant was concerned ( within the meaning of ORG ) and was not subject to administrative proceedings .", "Taking into account that the drafting and enactment of laws was the prerogative of the ORG ’s legislative power , the alleged omission of ORG to draft a law on compensation was not an action of a public authority ( within the meaning of GPE ) and , thus , was not subject to administrative proceedings .", "As to the applicant ’s running a risk of having to pay higher rent and losing his home , the ORG noted that the applicant was dissatisfied with the implementation of the ORG ’s policy , which is not an action of a public authority and therefore can not be reviewed in administrative proceedings .", "Finally , as concerns the allegedly discriminatory regulations of ORG , the ORG considered that examination of such a claim fell within the competence of ORG .", "Accordingly , the ORG dismissed the claim as inadmissible on the grounds that it was not subject to administrative proceedings and that the applicant did not have a right of claim .", "The Law on Denationalisation of Real Estate ( likums “ ORG namīpašumu denacionalizāciju Latvijas NORP ” ) was adopted on CARDINAL DATE and took effect on DATE ( see paragraph CARDINAL below ) . In its relevant part it provided as follows :", "“ To repeal the following :", "The Decree on Nationalisation of Large Buildings issued by the Presidium of ORG of the NORP SSR on DATE and all legislative enactments issued under that decree ;", "...", "All decrees issued by the Presidium of ORG of the NORP SSR on nationalisation of buildings owned by individual natural persons . ”", "“ Lease or rental agreements concluded by the previous manager shall be binding on the owners of denationalised buildings .", "Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law . ”", "“ Rent in denationalised buildings or apartments shall not exceed the amount established by ORG . ”", "“ Eviction from denationalised buildings shall take place only under LAW , but for DATE after restoration of property rights , in cases when the owner requests eviction under LAW , paragraph CARDINAL , only if an equivalent place of residence is offered [ to the tenants ] . ”", "On DATE amendments to ORG entered into force , whereby section CARDINAL was amended to refer to the relevant provisions of the newly adopted PERSON on Residential Tenancies : section CARDINAL , parts CARDINAL and CARDINAL . On DATE another set of amendments to the law entered into force ( “ the DATE amendments ” ) . The relevant provisions , following those amendments , read as follows :", "“ The term of lease or rent concluded by the previous manager shall be binding on the owners of denationalised buildings unless otherwise provided in this law . ”", "“ The amount of rent [ determined ] without their consent for tenants who had concluded agreements with previous managers of denationalised buildings shall not exceed the amount established by ORG . ”", "The PERSON on the Return of Real Estate to ORG ( likums “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” ) was passed on CARDINAL DATE and took effect on DATE . In its relevant part it provided as follows :", "“ The property rights of the former owners or their legal heirs , irrespective of their current nationality , of buildings arbitrarily taken over by the ORG or legal entities in DATE , without compensation and with complete disregard for their ownership rights , shall hereby be restored . ”", "“ Monetary disputes between the former manager and the owner shall be resolved under LAW Civil Code . ”", "“ Lease or rental agreements concluded by the previous manager shall be binding on the owners of returned buildings .", "Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law . ”", "“ Rent in returned buildings or apartments shall not exceed the amount established by ORG . ”", "“ ORG from returned buildings shall take place only under LAW , but for DATE after restoration of property rights , in cases when the owner requests eviction under LAW , paragraph CARDINAL , only if an equivalent place of residence is offered [ to the tenants ] . ”", "On DATE amendments to the Law on the Return of Real Estate to ORG entered into force , whereby section CARDINAL was amended to refer to the relevant provisions of the newly adopted PERSON on Residential Tenancies : section CARDINAL , parts CARDINAL and CARDINAL . On DATE another set of amendments to the law entered into force ( “ the DATE amendments ” ) . The relevant provisions of the PERSON on the Return of Real Estate to ORG then read as follows :", "“ The term of lease or rent concluded by the previous manager shall be binding on the owners of returned buildings unless otherwise provided in this law . ”", "“ The amount of rent [ determined ] without their consent for tenants who had concluded agreements with previous managers of returned buildings shall not exceed the amount established by ORG . ”", "On DATE ORG adopted ORG into Force of the Laws on the Return of Real Estate to ORG and on ORG PERSON “ Par Latvijas PERSON likumu “ ORG namīpašumu atdošanu likumīgajiem īpašniekiem ” un “ ORG namīpašumu denacionalizāciju Latvijas NORP ” spēkā stāšanās kārtību ” ) :", "“ ORG decides :", "[ that ] Until the buildings are returned to their legitimate owners it shall be prohibited to sell [ or change the ownership in any other way ] , reconstruct , rebuild and demolish these buildings as well as to have new tenants located in the residential and non - residential LOC which have become available . This prohibition shall enter into and remain in force from DATE of this decision until the expiry of the statute of limitations for submitting a claim or an application .", "[ to ] Stipulate that the DATE period during which , after restoration of property rights , tenants can not be evicted without having been allocated an equivalent residence , as prescribed by the Laws on the Return of ORG to ORG and on ORG in GPE , applies also in cases when a judgment on a tenant ’s eviction pursuant to sections CARDINAL and CARDINAL of MONEY has not yet been enforced on the date of this decision .", "This article does not apply when tenants have been placed in a building after a previous owner has submitted a claim to have his property rights restored . In such cases the time - limit shall be DATE from the date of restoration of property rights .", "[ to ] Stipulate that the Law on Denationalisation of Real Estate in GPE shall enter into effect on DATE .", "[ to ] Obligate the Council of Ministers :", "CARDINAL ) to submit to ORG a draft law on amendments to existing legislation with regard to the enactment of the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE ;", "CARDINAL ) to draft and submit to ORG a draft PERSON on Compensation by DATE ;", "CARDINAL ) to draft and adopt ORG in GPE and [ a model ] denationalisation certificate by DATE ;", "CARDINAL ) to amend the government ’s legislative acts on apportionment and change of residential property with regard to the entry into effect of the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE ;", "CARDINAL ) to draft and stipulate simplified regulations on credit arrangements for tenants residing in denationalised buildings or houses that have been returned to their legitimate owners if those tenants were registered to receive an equivalent residence because of the denationalisation of that property and have expressed the wish to build an individual house for residential purposes ;", "CARDINAL ) to harmonise the government ’s decisions on the material rights of oppressed and deported nationals with the Laws on the Return of Real Estate to ORG and on ORG in GPE by DATE .", "[ to ] Obligate parish , city and district authorities :", "CARDINAL ) to identify the buildings taken from previous owners in their territory ;", "CARDINAL ) to provide the legitimate owners who have obtained a residency permit in GPE in connection with the denationalisation or return of the buildings to them , with land to build individual houses for residential purposes ;", "CARDINAL ) in dealing with questions of allocation of equivalent residential property or land to tenants residing in denationalised buildings , primarily to ensure that previous owners residing in their territory can return to their properties ;", "CARDINAL ) to promote exchanges of apartments between owners of denationalised buildings and houses that have been returned to their legitimate owners [ on the one hand ] and tenants of such buildings [ on the other hand ] , if as a result of such an exchange the owner takes up residence in his building .", "[ to obligate ] ORG to draft and submit to the ORG of ORG by DATE a draft enactment on methods of compensation for denationalised buildings and calculation of the NORP value .", "[ to ] Obligate the Legislation Committee of ORG to submit the part of NORP Civil PERSON concerning inheritance for consideration , and amendments and additions to the parts of the civil code on property law and obligations law for the third reading , by DATE . ”", "On DATE ORG was adopted ( Likums “ ORG dzīvojamo telpu īri ” ) ; it entered into force on DATE . Over time , it has been amended on several occasions . The relevant provisions were spelled out in ORG judgment of DATE ( see paragraph CARDINAL below ) .", "For the present purposes the DATE and DATE amendments to that law are of importance . They were adopted on DATE and DATE and took effect on DATE and CARDINAL DATE respectively . With the DATE amendments the transitional provisions stipulated the maximum amount of rent payable per square metre ( the statutory rent limits ) if the owners of denationalised or returned buildings could not reach an agreement with their tenants . The amount was fixed at CARDINAL NORP lati ( ORG ) in DATE , LVL CARDINAL.CARDINAL in DATE and ORG in DATE . With the DATE amendments the statutory rent limits were set for DATE ORG CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE and LVL CARDINAL.CARDINAL in DATE . These statutory rent limits were abrogated by ORG with effect on DATE .", "Following the DATE amendments , the sections relating to dispute resolution in the event of eviction read as follows :", "“ The landlord may terminate the lease and evict a tenant together with family members and other persons without allocating them another place of residence in the following situations :", "CARDINAL ) if the tenant does not pay rent for DATE while continuing to have the use of the residence in accordance with the lease agreement and relevant legal provisions , ...", "Before bringing an action in court , the landlord shall give the tenant at least DATE notice of termination of the lease . ... ”", "“ Disputes arising from residential tenancy relations shall be adjudicated in a court . ”", "With the DATE amendments , a new Article was introduced in the transitional provisions :", "“ CARDINAL . The Cabinet of Ministers shall develop by DATE and implement by DATE a ORG and local government support programme and compensation mechanism for tenants renting residential accommodation in a denationalised residential building or one which has been returned to a legal owner and who have been using such accommodation up to the time of restoration of the property rights to the previous owners or their heirs . ”", "The relevant provisions of this law have been quoted elsewhere ( see PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ECHR CARDINALII ( extracts ) ) .", "In case no . DATE - CARDINAL - CARDINAL ORG examined individual constitutional complaints lodged by the owners of denationalised buildings . They complained that the DATE amendments in so far as they related to the statutory rent limits were unconstitutional . In its judgment of DATE the court declared that provision unconstitutional and null and void as of CARDINAL DATE . The judgment , in its relevant part , reads as follows :", "“ CARDINAL . In DATE , after the establishment of NORP occupation , the nationalisation of private property began in GPE . To implement it , on DATE the Presidium of the NORP ORG passed a Decree “ On Nationalisation of Large Buildings ’’ . Under that Decree those buildings , the “ total useful area ” of which exceeded QUANTITY in GPE and other major cities of GPE and QUANTITY in smaller towns , were nationalised . In addition , all those buildings in which ORG institutions were located , as well as houses whose owners did not reside in GPE and buildings having historical or artistic value were nationalised . Over the following DATE the NORP power continued divesting owners of their properties . ...", "On DATE GPE adopted the Law “ On FAC in GPE ” , by which the above Decree and the normative acts issued in accordance with it were declared null and void . On DATE the Law “ On FAC to the Legitimate Owners ” was passed . Its LAW stipulates that “ The property rights of the former owners or their legal heirs , irrespective of their current nationality , of buildings arbitrarily taken over by the ORG or legal entities in DATE , without compensation and with complete disregard for their ownership rights , shall hereby be restored ” . In DATE , on the basis of the above laws , buildings were denationalised and returned to their legal owners . Many of those properties still had tenants living in them who had concluded rental contracts prior to the restoration of property rights . ...", "... LAW , paragraph CARDINAL of ORG [ enacted in DATE ] provided that “ rent shall be determined on the basis of an agreement between the parties , but it shall not exceed the maximum amount established by the government ” . In DATE amendments stipulated that “ rent shall be determined on the basis of a written agreement between the parties , except in the cases specified in the second , third and fourth paragraphs of this section ” .", "LAW , paragraph CARDINAL provided : “ In denationalised buildings and buildings that have been returned under the PERSON on the Return of Real Estate to ORG , in respect of tenants who were renting the apartments at the time of the denationalisation ( or return to owners ) the rent shall be determined on the basis of a written agreement and in accordance with LAW on the procedure for calculating rent .", "On DATE amendments to ORG took effect , incorporating the provision on statutory rent limits in denationalised or returned buildings into LAW . LAW provides that if the tenant was resident in the building before its restoration to the rightful owner , the rent shall be determined by agreement between the parties . If no agreement is reached , then the rent shall be determined by the owner , but it shall not exceed ORG QUANTITY of rented area DATE , LVL CARDINAL.CARDINAL in DATE and ORG in DATE .", "...", "On DATE amendments to ORG were adopted . They took effect on DATE ...", "The ORG , in its reply , stressed that the contested provision had been enacted in order to balance the interests of the owners of denationalised apartment buildings , the ORG , the municipalities and the tenants of such buildings with respect to the statutory rent limits .", "Referring to the judgment of ORG in the case of ... ( ORG v. GPE [ DATE ] ORG CARDINAL ) , the ORG indicates that the imposition of restrictions in respect of rent has a legitimate aim – to secure the social protection of indigent tenants having regard to the continuing lack of residential accommodation and the existing concern at demands for unjustifiably high rent . Furthermore , this legitimate aim has to be examined in a broader context since the housing problem creates infringements of other human rights , such as social security and children ’s rights . ...", "According to Professor PERSON , even if the impugned provisions had not been adopted , the owners of the apartments would not be free to fix any rent they wished CARDINAL of ORG establishes agreement between the tenant and the owner as a general principle , as well as the settling of disputes in court . ...", "[ the ORG ’s representative ] stated that neither the ORG nor the municipalities possessed sufficient financial means to offer tenants residing in denationalised buildings or buildings returned to their legitimate owners adequate compensation ... .", "ORG and return of buildings to the owners after the restoration of GPE ’s independence was carried out in the context of the property reform , which also regulated legal relations between the owners of the buildings and persons who had used apartments in the denationalised or returned buildings prior to the restoration of ownership rights ( henceforth – “ pre - reform tenants ” ) .", "When analysing issues connected with CARDINAL part of the property reform – land reform – ORG has established that “ GPE is not responsible for violations of human rights , including nationalisation of property , perpetrated by the occupying power . GPE has no possibility and no duty to fully compensate all losses inflicted on persons by the occupying power ” ( Judgment of ORG in case no . DATE , DATE ) .", "Simultaneously the Constitutional Court ruled that “ When restoring the legal system of independent GPE , the legislator had a duty to take measures to restore fairness and redress the losses inflicted by the previous regime , by observing the principles of the rule of law . At the same time the legislator , when choosing the means for the land reform , had to strike a fair balance between the conflicting interests of various members of society ” ( ibid . ) .", "The legislator must also observe the principles of rule of law when implementing other aspects of the property reform , including denationalising and returning buildings to their rightful owners .", "...", "Article CARDINAL of the LAW ( PERSON ) provides : “ Everyone has the right to own property . Property shall not be used against the public interest . Property rights may be restricted only in accordance with the law ” . In conformity with LAW “ the ORG shall recognise and protect fundamental human rights in accordance with LAW , the law and international agreements binding upon GPE ” . ...", "In accordance with the former wording of LAW , after DATE the rent for an apartment shall be determined by written agreement between the tenant and the owner , and shall include a portion of the building ’s management expenses ... but if no agreement has been reached , it shall be determined by the owner . In their turn , the DATE amendments ... not only set the statutory rent limits for DATE , DATE and DATE but also stipulate that in cases where rent is not determined by a written agreement between the parties , the owner shall determine it ( including a portion of the building ’s management expenses proportional to the area rented , and profit ) . ...", "... PERSON points out that LAW provides for a written agreement between the tenant and the owner and the settlement of disputes in court as a general rule . If the statutory rent limits had not been extended until DATE , the number of disputes to be reviewed in the courts would have increased and the outcome would depend on the assessment of the reasons and financial justification for the rent increase . ...", "During the hearing the applicants expressed their view that if the legislator had not adopted the DATE amendments , they would have been able to agree on a reasonable rent , and if no agreement with the tenant could be reached , the dispute would have had to be reviewed in court .", "...", "... As has been found before , courts of general jurisdiction could review the reasonableness of the rents charged by landlords . The ORG ’s submission that the DATE amendments are necessary to avert large - scale evictions of tenants is not substantiated . Even if they had not been adopted the relevant provisions of LAW , ORG and ORG to ORG , as well as Cabinet Regulation no . DATE ) on methods for the calculation of the management expenses included in the rent for residential space would be binding on the owner . Even though there have been attempts to charge unreasonably high rent , there is no basis for concern as the owner alone can not fix the rent without the tenant ’s agreement . ...", "... The lease agreements had been drawn up with the tenants in DATE when the rent was determined administratively and not by agreement between the parties ...", "... Thus the legislator considered the fixing of rents by an administrative procedure as a temporary or transitional measure characteristic of property reform . In the above circumstances the ORG took on responsibility for regulating relations between owners and tenants by setting statutory rent limits . The duty of the ORG when setting those limits was to strike a fair balance between the rights of the owners and the tenants while duly observing the principles of the rule of law and the fundamental rights enshrined in the LAW .", "At the beginning of the property reform the legislator had placed several restrictions on landlords which followed on from the commitments made by the former managers of the buildings . At the same time the law gave reason to believe that these restrictions would eventually be lifted . ... The law provided for a DATE period during which evicting tenants without allocating them another place of residence was prohibited .", "Owners could legitimately expect that the imposed administrative restrictions , which were necessary at the beginning of the reform , would in due time be abolished in a reasonable way . ... Owners could legitimately expect that the ORG would , in due course , propose a reasonable solution to the problem .", "... Neither at the beginning of the property reform , nor during it , did the law anticipate that the tenants would have a special status different from that of [ ordinary ] tenants once the property reform process had been completed . Initially they were guaranteed the right to lease on the same terms as any other tenants . When the legislature decided to liberalise rents in respect of other tenants , it was made clear that the status of pre - reform tenants regarding rental agreements was temporary . ...", "Thus , during the property reform pre - reform tenants could not legitimately expect that after the end of the reform process they would continue to have a special status different from other tenants and be able to live in the same apartment forever , paying a considerably lower rent than other persons living in comparable buildings .", "ORG - reform tenants could , however , legitimately expect that the ORG would protect their rights and , within reasonable limits , provide a gradual transition from rent determined by the authorities to owner - and - tenant relations that would satisfy the interests of both the pre - reform tenants and their landlords .", "It has to be acknowledged that until DATE no significant measures were taken to provide support for tenants . ...", "That the ORG for DATE was not interested in normalising the relationships between the owners of denationalised or returned buildings and their tenants is shown not only by the fact that no financial means were allocated for the implementation of measures during the transitional period but also by the lack of information on the scope of the problem . ...", "The measures that were undertaken prior to DATE were evidently not sufficient to protect the rights of pre - reform tenants . ...", "Thus the ORG , by its inaction , has infringed the pre - reform tenants’ right to legal certainty , namely the certainty that they will be able to solve their housing issues in the long term either by concluding reasonable agreements with the owners of the denationalised or returned buildings or by finding another permanent solution .", "...", "However , the said inaction did not provide pre - reform tenants with legal certainty in respect of any specific rights the protection of which would have the effect of restricting the fundamental rights of owners as stated in LAW .... ”", "The instrument of ratification of the ORG and its Protocols deposited by the Government on DATE contains the following reservation :", "“ In accordance with LAW [ now LAW , GPE declares that the provisions of LAW shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised , confiscated , collectivised or otherwise unlawfully expropriated during the period of NORP annexation ; and privatisation of collectivised agricultural enterprises , collective fisheries and of ORG and local self - government owned property .", "The reservation concerns ORG in GPE ( published in PERSON [ The Bulletin ] DATE , No . DATE ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE [ ORG ] DATE , No . CARDINAL ) , LAW , No . DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE DATE , No . DATE , No . CARDINAL ) , Law On Land Reform in GPE DATE , No . CARDINAL ; GPE DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL/CARDINAL ) , Law On Land Privatisation in LOC ( Zinotajs DATE , No . CARDINAL ; DATE , No . CARDINAL ; GPE DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ) , LAW in ORG , No . CARDINAL ) , LAW DATE , No . DATE ) , PERSON On the Privatisation of Objects of ORG DATE , No . DATE ; DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL/CARDINAL/CARDINAL/CARDINAL/CARDINAL/CARDINAL ) , LAW - operative GPE , No . DATE ; GPE DATE , No . CARDINAL ) , PERSON On the Privatisation of State and ORG DATE , No . CARDINAL ; DATE , No . CARDINAL ; DATE , No . CARDINAL ) , PERSON On ORG in GPE ( DATE , No . CARDINAL ; GPE DATE , No . DATE ; DATE , No . DATE , No . CARDINAL ; DATE , No . CARDINAL ) , PERSON On the Return of Real Estate to ORG , No . CARDINAL ; GPE DATE , No . DATE ; DATE , No . CARDINAL ) and their wording being in force at the moment GPE entered into force . ”" ]

[]

[]

[]

[]

[]

[]

[ "The first and second applicants , ORG and ORG , used to have as their principal business the purchase and development of land . The first of these companies , which was a wholly - owned subsidiary of the second , was struck off the register of companies on DATE and dissolved on DATE , for failure to file DATE returns for DATE . Since DATE ORG too has filed no DATE returns ; on DATE and CARDINAL DATE a receiver to this company was appointed by CARDINAL secured creditors . The third applicant , Mr PERSON , is the managing director of ORG and its sole beneficial shareholder ; on DATE , by order of an NORP court , he was adjudged bankrupt .", "On DATE ORG had agreed to purchase for ORG £ QUANTITY of land at GPE . It did so in reliance on an outline planning permission ( see paragraph CARDINAL below ) for industrial warehouse and office development on the site . This permission , which was recorded in the official planning register ( see paragraph CARDINAL below ) , had been granted on DATE by the Minister for ORG to the then owner , Mr PERSON , on his appeal against the refusal , on DATE , by the planning authority ( ORG ) of full planning permission . CARDINAL of the grounds for that refusal was that the site was in an area zoned for the further development of agriculture so as to preserve a green belt .", "On DATE ORG refused the detailed planning approval ( see paragraph CARDINAL below ) for which LOC had applied on DATE in reliance on the outline permission . ORG thereupon sought a conditional order of mandamus , directing the council to grant such approval ; such an order was granted on DATE and was made absolute by ORG by a decision of CARDINAL DATE .", "On DATE ORG sold the land to ORG for IR £ MONEY .", "On DATE , on appeal by ORG against ORG decision , ORG held that the grant of outline planning permission had been ultra vires and was therefore a nullity . It found that the relevant statutory provision ( section CARDINAL of ORG DATE ) did not empower the Minister for ORG to make , on an appeal against a refusal by a planning authority , a decision which - as in the present case - contravened the development plan ( see paragraph CARDINAL above ) .", "As a result of this decision the land could not be developed and its value was therefore substantially reduced . In DATE it was sold in the open market by the receiver of ORG for IR £ MONEY .", "With a view to validating planning permissions and approvals the validity of which came into question as a result of ORG decision , ORG DATE ( \" LAW \" ) was enacted . It entered into force on DATE .", "Section CARDINAL of the DATE Act provided as follows :", "\" ( CARDINAL ) A permission or approval granted on appeal ... prior to DATE , shall not be , and shall not be regarded as ever having been , invalid by reason only of the fact that the development concerned contravened , or would contravene , materially the development plan relating to the area of the planning authority to whose decision the appeal related .", "( CARDINAL ) If , because of any or all of its provisions , subsection ( CARDINAL ) of this section would , but for this subsection , conflict with a constitutional right of any person , the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect . \"", "The date of DATE was that of the establishment of ORG ( An ORG ) , to which body the appeal functions formerly entrusted to the Minister for ORG had been transferred by ORG DATE .", "LAW also dealt , in section CARDINAL , with the duration of the validity of certain permissions . Its effect was that CARDINAL granted on DATE , as was the outline permission in the present case , expired on DATE . Under section CARDINAL , however , the planning authority could extend the period of validity of a permission provided , inter alia , that substantial works had already been carried out before it expired .", "In the course of the debate on LAW before PERSON ( ORG of ORG ) the Minister of ORG at ORG was asked the following question :", "\" I understand that certain planning permissions were declared to be null and void by ORG . I agree the law has to be put right , but who is going to declare under subsection ( CARDINAL ) whether a person ’s constitutional rights are going to be interfered with ? Does it mean another trip to ORG ? What is the position ? The Minister might tell us exactly what is in his mind . \"", "The Minister replied :", "\" It would be agreed by the court . Subsection ( CARDINAL ) has been included by the parliamentary draftsman , with the agreement of the Attorney General , so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings . This subsection is also designed to meet the case of any unconstitutional interference with a property right . \" ( Official report of ORG PERSON for DATE , columns DATE )", "On CARDINAL DATE LOC applied to ORG for planning approval ( see paragraph CARDINAL below ) on the basis of the outline permission granted in DATE ; its application contained no reference to LAW . Approval was refused on DATE on the ground that ORG had held in the first LOC case that the outline permission was not valid and on CARDINAL other grounds related to technical planning matters . No appeal was made to ORG against this decision nor was it the subject of any other legal challenge ; the applicants claimed that an appeal would have been to no avail since ORG had to confine itself to matters of proper planning and development ( see paragraph CARDINAL below ) and could not give an authoritative interpretation of section CARDINAL of LAW .", "DATE after the ORG ’s decision , the applicants set in motion the second LOC case ( see paragraphs DATE below ) . Whilst it was pending , the following steps were taken on their behalf .", "First , on DATE their architect wrote to ORG asserting that LOC was excluded from the benefit of section DATE ) of LAW and asking that the applicants’ position be reconsidered in the light of \" the injustice of the situation \" . The ORG replied on DATE , regretting that it could not be of assistance .", "Secondly , on DATE the ORG solicitors wrote to ORG , requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister for ORG in DATE ( see paragraph CARDINAL above ) in a manner subsequently found invalid . ORG replied on DATE that the appeal in question \" does not remain to be determined by ORG \" . The solicitors asked ORG to indicate the reasons for this decision , but its reply of CARDINAL DATE was confined to saying that the legal advice it had received was confidential and that it could not assist any further than by stating its position .", "On DATE LOC brought proceedings - in which ORG and PERSON were joined as plaintiffs on DATE - against the Minister for ORG ( as the successor to the Minister for ORG ) , seeking damages for breach of statutory duty , for negligent misrepresentation and for negligence . The plaintiffs later amended their pleadings to include a claim for damages against the State for breach of their constitutional rights of property .", "With the consent of the parties ORG directed on DATE that the question whether the plaintiffs had a cause of action be tried as a preliminary issue and that the following points of law fell to be determined in this connection :", "( a ) whether an action in damages for", "( i ) breach of statutory duty ;", "( ii ) negligence ; and/or", "( iii ) negligent misrepresentation", "lay at the suit of the plaintiffs against the Minister for the Environment for granting on legal advice the outline planning permission to Mr PERSON ;", "( b ) whether in the circumstances pleaded the ORG", "( i ) had failed to vindicate the property rights of the plaintiffs and , if so , whether an action for damages lay against it ;", "( ii ) had in its laws respected and as far as practicable by its laws defended and vindicated the property rights of the plaintiffs and , if it had not , whether an action for damages lay against it .", "On DATE ORG held that no cause of action lay , whereupon the plaintiffs appealed to ORG . On DATE they entered into an agreement amongst themselves in which ORG and ORG assigned to PERSON , on his undertaking to pay the costs , their entire interest in the proceedings and acknowledged that any benefit resulting therefrom would accrue to him free of any claim by them .", "On DATE the ORG unanimously dismissed the appeal ( [ DATE ] Irish Law Reports Monthly , pp . CARDINAL - CARDINAL ) .", "In rejecting the claim for damages based on breach of statutory duty , Mr Justice PERSON ( with whose judgment Mr ORG agreed and Mr Justice PERSON concurred ) found that the Minister ’s decision to grant outline planning permission contravening the development plan did not fall into any of the categories of ultra vires decisions that would found an action for damages ; in particular , there was no evidence that he had been aware that he did not possess the power he was purporting to exercise .", "Mr Justice PERSON based his dismissal of the claims for alleged negligence and negligent misrepresentation essentially on the ground that , when granting the permission , the Minister had acted bona fide and in accordance with the advice he had obtained from his department ’s legal advisers .", "As regards the claim for damages for breach of the GPE constitutional rights of property , Mr Justice PERSON stated :", "\" With regard to this submission the first enquiry must , it seems to me , be as to whether there has been an unjust attack on the GPE property rights or whether an injustice has been done to them .", "What the Minister was doing in making his decision in DATE to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owner of those lands but was rather intended as an enlargement and enhancement of those rights .", "The purchase of land for development purposes is manifestly a major example of a speculative or risky commercial enterprise . Changes in market values or economic forces , changes in decisions of planning authorities and the rescission of them , and many other factors , indeed , may make the land more or less valuable in the hands of its purchasers .", "I am prepared to accept that prima facie in this instance the fact that the Minister ’s decision was ultimately found by this ORG to have been a nullity , probably contributed towards a diminution in the value of the land in the GPE hands . That fact , itself , however , does not , in my view , necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the LOC property rights .", "The obligation of the ORG in Article CARDINAL.CARDINAL.CARDINALo and LAW [ of LAW ] is in the first instance , as far as practicable by its laws to defend and vindicate the personal rights of the citizen and , in the second instance , to protect as best it may from unjust attack , and in the case of injustice done , vindicate the property rights of every citizen . In its decision in the case of PERSON v. PERSON [ DATE ] Irish Reports CARDINAL , this ORG in its judgment delivered by O’Higgins CJ , stated as follows :", "‘ It is noted that the guarantee of protection given by LAW is qualified by the words \" as best may be \" . This implies circumstances in which the ORG may have to balance its protection of the right as against other obligations arising from regard for the common ORG", "I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act without negligence and bona fide . Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would , it seems to me , tend to avoid indecisiveness and delay , which might otherwise be involved .", "I am , therefore , satisfied that there can not be , on the facts of this case , any question of there being a clearcut obligation imposed on the ORG to provide compensation for the plaintiffs in the circumstances which have arisen . I am , therefore , satisfied that the submissions made with regard to a claim for damages for breach of constitutional rights must also fail . It is not necessary for me to decide , and I express no opinion , on the question as to whether an action does lie for failure on the part of the ORG to legislate in protection of personal rights , as distinct from the action to set aside or invalidate legislation which fails adequately to protect or vindicate them . \"", "In their judgments some members of ORG addressed the question whether the retrospective validation of planning permissions effected by section CARDINAL of LAW ( see paragraphs CARDINAL above ) covered the outline permission granted to Mr GPE in DATE . This question was not expressly mentioned in the agreed points of law to be determined ( see paragraph CARDINAL above ) , nor did the pleadings in the case make it a contentious issue : the GPE plea in their statement of claim that they could not \" by operation of law avail of the retrospective validity afforded by the provisions \" of that section was not denied by the ORG in its defence .", "Mr Justice PERSON stated that LAW contained a \" saver for cases involving constitutional rights of other persons , which would appear to exclude the plaintiffs from the benefit of such retrospective validation \" .", "Mr Justice PERSON ( with whom Mr Justice PERSON agreed ) said that section CARDINAL of the DATE Act effected a retrospective validation , save where it \" would conflict with a constitutional right of any person . This meant that LOC were excluded from the benefit of the section , for they had exercised their constitutional right to litigate the validity of the planning permission in the FAC \" .", "Mr Justice PERSON stated :", "\" No doubt it was apprehended that s. DATE ) of the [ CARDINAL LAW ] might operate to reverse retrospectively this ORG ’s decision [ in the first LOC case ] and that this might constitute an unwarrantable interference by the legislature in a decision of the courts . It seems probable that it was in these cicumstances that s. CARDINAL ) was enacted with a view to avoiding such interference . And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. CARDINAL ) . \"", "Certain views were also expressed as to the effects of the GPE being excluded from the benefit of the retrospective validation .", "Mr Justice PERSON said :", "\" [ The ] exclusion has been attacked by counsel for ORG as being unfairly discriminatory as far as they are concerned , but in my view , while a discrimination has resulted , the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the ORG may have held to be lacking in validity . It would follow that no injustice has been done to LOC by s. CARDINAL of LAW . \"", "Mr Justice PERSON stated :", "\" ... the appellants contend that to exclude them from the benefit of s. DATE ) constitutes ( a ) an unjust attack on their property rights or an injustice done which affects their property rights and ( b ) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the DATE LAW and who were given the benefit of s. DATE ) . In regard to the first contention it seems to me that s. CARDINAL ) was included by the ORG for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in [ the first LOC case ] and of respecting the constitutional rights of the parties , both plaintiffs and defendants in that action , to have their controversy determined by the courts rather than by the ORG . It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants’ property interest . That fact in itself , however , does not in my view , necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants’ property rights or an unlawful discrimination against them .", "Those persons ( such as the appellants ) who were excluded from the benefits of s. DATE ) by s. CARDINAL ) and the other recipients of planning approval or permission on appeal from the Minister who benefited from s. CARDINAL ) and fall outside the ambit of s. CARDINAL ) constitute CARDINAL groups who were and are differently situated and a valid and substantial reason for the discrimination which has been made by these sections has always existed . \"", "Mr Justice PERSON added that when the outline planning permission in respect of the land was declared invalid , there would have been a breach of the vendor ’s covenant for title , which would have given LOC a cause of action for damages against him . Alternatively , it could have recovered from him , in an action for unjust enrichment , so much of the purchase price as was attributable to the permission . Since LOC had not shown that its loss could not be recovered in that way , it had failed to prove that an injustice had been done to it for the purposes of LAW .", "LAW contains the following provisions :", "\" CARDINAL . All citizens shall , as human persons , be held equal before the law .", "This shall not be held to mean that the ORG shall not in its enactments have due regard to differences of capacity , physical and moral , and of social function .", "...", "CARDINAL The ORG guarantees in its laws to respect , and as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .", "CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name and property rights of every citizen . \"", "\" CARDINAL . CARDINAL The ORG acknowledges that man , in virtue of his rational being , has the natural right , antecedent to positive law , to the private ownership of external goods .", "CARDINAL The ORG accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer , bequeath and inherit property .", "CARDINAL The ORG recognises , however , that the exercise of the rights mentioned in the foregoing provisions of this LAW ought , in civil society , to be regulated by the principles of social justice .", "CARDINAL The ORG , accordingly , may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good . \"", "In addition to LAW ( see paragraphs CARDINAL above ) , the principal legislation pertinent to this case was ORG DATE , as amended by LAW of the same title ( \" LAW \" ) .", "The DATE LAW made thereunder provided for the grant by planning authorities of \" permissions \" and \" outline permissions \" for the development of land . Permissions were complete in themselves . PERSON permissions amounted to a favourable decision as to the principle of the proposed development but were granted subject to the subsequent approval , by the authority or on appeal , of detailed plans , without which approval work could not be commenced . The authority had to examine an application for such approval within the parameters set by the outline permission and could not reopen the question of principle . Outline planning permissions could be revoked but only in the event of a change in circumstances relating to the proper planning and development of the area .", "In dealing with any application for permission or approval a planning authority was restricted , by section DATE ) of GPE , to considering \" the proper planning and development of [ its ] area \" .", "An appeal against a decision of a planning authority lay to the Minister for Local Government or , after DATE ( see paragraph CARDINAL above ) , to ORG . Under section CARDINAL(CARDINAL)(b ) of the DATE Act , the provisions of section DATE ) applied , subject to any necessary modifications , to the determination of any such appeal . If a question of law arose on an appeal , the Minister or ORG could refer it to ORG for decision ( section CARDINAL(CARDINAL ) ) .", "Under the DATE Act , planning permissions , which had to be recorded in a register kept by the planning authority , enured for the benefit of the land in question and of \" all persons for the time being interested therein \" ( sections CARDINAL and CARDINAL(CARDINAL ) ) .", "Subject to a number of exceptions set out in section CARDINAL , section GPE ) of the DATE Act gave a right to compensation in the following terms :", "\" If , on a claim made to the planning authority , it is shown that , as a result of a decision under Part IV of this LAW involving a refusal of permission to develop land ... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced , such person shall , subject to the provisions of this Part of this LAW , be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and , in the case of the occupier of the land , the damage ( if any ) to his trade , business or profession carried on on the land . \"", "Claims for compensation under this section had to be made within DATE of notification of the decision , unless ORG accepted an application for an extension of this period ( section CARDINAL(CARDINAL ) ) .", "Under section CARDINAL(CARDINAL ) of the DATE Act :", "\" Where , in a case determined on an appeal under this Part of this Act , permission to develop any land has been refused or has been granted subject to conditions , then , if the owner of the land claims", "( a ) that the land has become incapable of reasonably beneficial use in its existing state , and", "( b ) that the land can not be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been granted under this Part of this LAW , or for which the planning authority have undertaken to grant such permission , and", "( c ) in a case where permission to develop the land was granted as aforesaid subject to conditions , that the land can not be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions , he may , at any time within DATE after the decision ( or such longer period as the Minister may allow ) , serve on the planning authority a [ purchase notice ] requiring the planning authority to purchase his interest in the land in accordance with the provisions of this section . \"", "The value of land which was the subject of such a purchase notice was to be taken to be \" the amount which the land if sold in the open market by a willing seller might be expected to realise \" .", "It was established by ORG in GPE and others ( ORG ) v. Attorney General [ DATE ] Irish Reports CARDINAL that the legislature can not intervene in respect of cases pending before the courts . On the other hand , it appears that the legislature may validly reverse the decision of the courts with retrospective effect once the proceedings are terminated , without thereby infringing the principle of judicial independence ( see , for example , ORG , reversing the ORG decision in PERSON and others v. PERSON [ DATE ] Irish Reports CARDINAL ) ." ]

[ "14", "P1" ]

[ "P1-1" ]

[]

[ "13", "14", "P1" ]

[ "P1-1" ]

[]

[ "The first applicant [ PERSON ] is a NORP religious community ( ORG ) with public - law corporation status ( Körperschaft des öffentlichen PERSON ) whose governing board ( ORG ) is based in GPE . The second applicant [ PERSON ] is a NORP national , born in DATE and living in GPE ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .", "In DATE the first applicant requested a permit to build a chapel and cemetery on land belonging to it .", "Its request was rejected by the administrative authorities , whereupon the first applicant lodged an application with ORG . At the public hearing before that court it requested an adjournment of the proceedings concerning the cemetery .", "On DATE , after visiting the site of the planned building , ORG rejected the application concerning the chapel on the grounds that the site where it was to be built was in an undeveloped protected zone ( ORG ) and that it was not certain that public services ( PERSON ) could be installed .", "On DATE , after hearing submissions from , among others , the public - health department , the water resources office ( GPE ) , the town of PERSON ( on whose territory the first applicant ’s land was ) and other departments which had not given their consent or had done so only on certain conditions , the GPE administrative authorities rejected the request concerning the cemetery , in respect of which the proceedings had been resumed after ORG had given judgment , on the ground that the proposed site was in an undeveloped protected zone and it was not certain that services could be installed on the land because the town of PERSON refused to grant the first applicant a right of access over the adjoining municipal land to the site of the planned cemetery .", "On DATE ORG dismissed the application mainly on the same grounds as those set out in the judgment of DATE , to which it referred at length moreover .", "On DATE , after visiting the site of the planned cemetery , ORG upheld the judgment of ORG of DATE . It noted , among other things , that construction of the planned cemetery was incompatible with the nature of the environment surrounding the site in question , particularly as , since the entry into force on DATE of the legislative decree on the creation of NORP LOC ( LOC GPE ) , any act such as to disfigure the character of the wildlife park – even locally – was prohibited . The fact that the first applicant was a religious community did not alter that finding because it could build the cemetery on other land less affected by environmental restrictions . ORG also noted that the lack of services on the land in question was an additional factor militating against the first applicant ’s project .", "ORG also decided not to grant leave to appeal on points of law . The first applicant appealed against that decision .", "On DATE ORG dismissed the appeal on the ground that it did not raise an issue of fundamental importance . It noted that freedom of religion was limited by the values laid down in the LAW itself . Among those constitutional values was the protection of life ’s natural sources ( natürliche ORG ) , as declared in section CARDINAL ) of LAW , which included the creation of protected zones . Additionally , the provisions relating to planning matters applied to everyone without distinction and did not impose more restrictions on religious communities than on other persons or groups of persons . As far as the provisions relating to cemeteries were concerned , it was indisputable that the creation of a cemetery was subject to laws relating to public health and the management of water resources . The freedom of a religious community subject to public law to practise its religion did not compel the authorities to grant that community an exemption from the statutory restrictions relating to the protection of the environment and the countryside . Besides that , the question as to whether such an exemption should have been granted , under the legislative decree of DATE relating to the creation of NORP LOC , concerned provisions adopted by the NORP legislature , that is to say by a Land , and could not therefore be relied on before ORG .", "On DATE ORG , ruling as a panel of CARDINAL judges , decided not to uphold the first applicant ’s constitutional appeal . It noted , inter alia , that freedom of religion and freedom to manifest it was not unlimited and could be balanced against other constitutional values , of which section CARDINAL(a ) of LAW was one . It also noted that the first applicant could build the cemetery on other land which was less affected by regulatory restrictions ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant , a wealthy property developer , married in DATE and the CARDINAL children of the marriage were born in DATE and DATE . In DATE the family moved to GPE for tax reasons , the mother and children returning to GPE in DATE , the applicant in DATE . The couple divorced in DATE , and there were subsequent proceedings in respect of financial matters ( “ the ancillary proceedings ” ) and in respect of the arrangements for the children ( “ the LAW proceedings ” ) . The parties had reached agreement in DATE regarding the applicant 's contact with the children , who had remained with their mother , but the arrangements later broke down and the applicant applied for a residence order , alleging deficiencies in the mother 's care .", "The hearing , before Mr Justice Singer , began in DATE , but it became clear that DATE time estimate was insufficient and it was adjourned until DATE , when it was concluded after DATE . The applicant was represented by leading and junior counsel .", "CARDINAL of the main issues in the case was the relevance of a title defect in a freehold commercial property owned by the applicant , known as ' Site B ' and potentially worth MONEY ( GBP ) . It was by far the most significant asset in issue . Although , back in DATE , an affidavit filed by the applicant showed he had not then sought to rely on the potential consequences of the title defect , his case ultimately was that it meant that he was unable to sell or mortgage the property and that it was effectively worthless save as a source of income from rents ( over GBP CARDINAL per annum at the time ) . At worst the defect could give the local authority the right to buy the property for a nominal sum . Counsel for the mother argued that the defect was of a technical nature and need not create significant problems in terms of realising the value of the property . Another significant issue concerned the applicant 's ongoing negotiations with ORG as to his tax liabilities . Judgment was reserved .", "The applicant appeared in person , assisted by his solicitor , having withdrawn instructions from counsel . At the pre - trial review on DATE , Mr Justice Singer gave directions , including CARDINAL preventing the applicant from calling witnesses without leave of the court , and set a strict timetable . The applicant considered that the judge had already formed negative views about his character in the ancillary proceedings and felt he would not receive a fair hearing . He applied for the judge to remove himself from the case . The judge refused the application and refused permission to appeal , as did ORG .", "The hearing began on DATE . The applicant was cross - examined over DATE by counsel for the mother . The applicant subpoenaed the children 's head teacher , who expressed the view that the applicant was sincere in his concerns for the children and confirmed that the applicant 's son had indicated a wish to be with him , although he also referred to the applicant as a bully . The applicant then began a lengthy cross - examination of the mother , in which the judge intervened frequently and revealed his increasing impatience with the applicant . It was later estimated that over TIME of the hearing the judge had intervened , on average , TIME .", "By TIME of CARDINAL DATE the applicant decided he was unable to continue with the case and withdrew from the proceedings . He made a statement to the court indicating that he felt that the truth would not come out and that he was unable to have a fair trial before Mr Justice Singer . The applicant declined an invitation from the judge to return to court or for his solicitor to remain on his behalf .", "On DATE the judge made various interim orders , including an injunction prohibiting publication of the details of the proceedings and a non - molestation injunction . He also ordered a suspension of the applicant 's contact with the children until further order of the court . The applicant faxed CARDINAL letters to the court over DATE detailing his complaints about the judge 's conduct and stating his intention to take his complaints further . He said he felt that he had been treated ' as a criminal ' and that the judge had shouted at him , interrupted him and had made increasingly intemperate outbursts , which disclosed his hostility to the applicant . He also complained that the judge had allowed counsel for the mother to question him in an unfair manner , whilst preventing him from asking questions in similar terms . He expressed his belief that the judge had formed a prejudice against him in the ancillary proceedings , had prejudged his application for residence and thereafter had become increasingly and openly hostile .", "On DATE , giving judgment in the Children Act proceedings , Mr Justice Singer made a residence order in favour of the mother with contact for the applicant , but reducing that which he had previously enjoyed , to a total of DATE over DATE period . The recommendation of the children and family court reporter had been for a residence order in favour of the mother but with an increase in the applicant 's contact ( including an extension to weekend contact ) . The mother had at an earlier stage indicated her agreement to the suggested increase , but had withdrawn it by the time of the hearing . The order was in terms as sought by the mother . The injunction prohibiting publication was retained . The introductory recital to the order invited the applicant to consider submitting himself to a psychiatrist for examination . Paragraphs CARDINAL and CARDINAL dealt with residence and contact . Paragraph CARDINAL of the order included a non - molestation injunction in respect of the mother , a prohibition on any communication with the children except during the defined contact times , and an injunction preventing the applicant approaching within QUANTITY of the mother 's house or the children 's school . By paragraph CARDINAL , the mother 's application for an order under section CARDINAL ( CARDINAL ) of FAC , ( requiring the applicant to obtain leave from the court before making further applications ) was adjourned for full hearing . Paragraph CARDINAL of the order required the applicant to surrender the children 's passports . By paragraph CARDINAL he was ordered to pay the mother 's costs of the proceedings on an indemnity basis ( by which any doubt which the court may have as to whether costs were reasonably incurred or were reasonable in amount is resolved in favour of the receiving party ) , assessed summarily at GBP CARDINAL . Finally , the judge reserved the matter to himself .", "The orders made on CARDINAL DATE were to run until further hearing ( in the event , DATE ) . The contact was limited to enable the applicant 's reaction to the outcome of the hearing to be assessed in relation to any impact it might have upon the children . Mr Justice Singer expressed profound reservations about the applicant 's ability to respond perceptively to the children 's needs . He held that the applicant was motivated not solely by the interests of the children , but also by a desire to win his own way , establish his superiority and punish the mother . His ' intractability and intransigence ' had become clearer as the hearing had progressed . Furthermore , he was unable to accept him as an honest witness . By contrast , he found the mother to be an impressive , honest and dignified witness , who instinctively avoided conflict and who had a consuming concern for the children . The applicant 's unreasonable conduct of the litigation and the disparity in the parties ' means justified the order for indemnity costs .", "The applicant sought permission to appeal . In DATE , ORG adjourned the application , to consider it at an oral hearing , with the appeal to follow if permission was granted . By that stage the applicant had instructed new counsel in LAW proceedings .", "On DATE , Mr Justice PERSON refused to terminate the order of DATE", "On DATE , Mr Justice Singer gave judgment in the ancillary proceedings , in which he was highly critical of the applicant 's integrity and motivation . Assessing whether it was plausible that the applicant would exaggerate his liability to the Revenue so as to leave less money for the mother to claim , the judge referred to LAW case , saying ,", "“ That experience has fortified me in the conclusion which I have reached about his character and his conduct . He is intensely determined to succeed , apparently at whatever cost . He reacts very strongly , vigorously and manipulatively to what he sees as opposition to him . ... In the child - related proceedings he persuaded me by his conduct of them that he had lost sight of the children 's interests in pursuit of his campaign to punish [ the mother ] for in effect defying his wishes and bringing the marriage to an end . ”", "He found that the applicant had been forced to acknowledge dishonesty in his dealings with ORG , for example in connection with a “ sham ” sale of a property , about which he had provided misleading information to his accountant . He had also been selective in the extent and timing of his production of documents . Despite his adverse findings as to the applicant 's character however , the judge explicitly stated that his orders were not intended to reward the mother nor to penalise the applicant , and his conduct had not weighed in the overall decision .", "On DATE , Mr Justice Singer ordered that the applicant pay the mother a lump sum of GBP CARDINAL , forthwith , together with her costs of MONEY , assessed on an indemnity basis . He also ordered that a receiver be appointed , with wide powers to take steps to realise the lump sum payment , including a power to enter into negotiations to try and resolve the title defect with Site B. The applicant applied for permission to appeal .", "In DATE and DATE separate constitutions of ORG granted permission to appeal and heard detailed submissions from counsel in both sets of proceedings .", "The applicant submitted that the judge should not have continued to sit in LAW proceedings having already made up his mind against the applicant in the ancillary proceedings and he had dismissed the application as vexatious and hopeless . The judge had intervened in a hostile manner , had uncritically accepted the mother 's case and dismissed the evidence of the head teacher and the welfare report to the extent that they were supportive of the applicant 's case , for example in relation to the wishes of the children . The applicant submitted that the judge 's conduct had hampered his presentation of the case to the extent that he had felt compelled to withdraw , leading to flawed and inappropriate orders . He also argued that the judge 's reaction to his withdrawal from the proceedings had been intemperate and he had made punitive and unnecessary orders , including ordering the applicant to pay the mother 's costs on an indemnity basis .", "ORG gave judgment in LAW proceedings on DATE . The court , which had read a complete transcript of the hearing at first instance , observed that ,", "“ For us the atmosphere and the emotions with which spoken words were charged are largely lost . Thus any judgment upon whether or not [ the applicant ] received a fair and impartial trial is necessarily imperfect . On the one hand it can be said that [ the applicant ] is a robust and skilful man who had educated himself in the processes of litigation and who was throughout accompanied by his solicitor . On the other hand he had already conceived a conviction that the judge had taken against him by the end of the marathon hearing of the money case and he had expressed that conviction by seeking a fresh tribunal for the trial of LAW applications . ”", "The court noted that the judge 's task was exceptionally difficult , he having concluded that the applicant had been devious and dishonest in the ancillary case and having then refused to release the later proceedings to another judge . From a careful reading of the transcripts the court considered that the judge 's interventions had been plainly excessive , notwithstanding the submissions on behalf of the mother to the effect that the interventions had been necessary for the judge to retain control of the proceedings . At CARDINAL stage during cross - examination of the mother , there was an exchange between the judge and the applicant covering CARDINAL pages of transcript , during which the witness did not speak at all .", "The court did not accept , however , the submission that the applicant had had an equal or even a fair prospect of success in his application for residence , as on any objective analysis his application was an attempt at a radical departure from an established pattern of care and the conclusion of the children and family reporter was obviously an indicator of the probable outcome . The court went on to say ,", "“ We gain from the transcripts the distinct impression that in the relationship between the litigant and the judge there quickly emerged a conflict of strong personalities and a clash of arms that drew the judge transiently from the judgment seat to join [ counsel for the mother ] in the arena in harrying the husband . ... But the number of interventions that bear the mark of hostility or unfairness are small in the overall total and do not justify setting aside the fundamental order that these CARDINAL children should reside with their mother . We are satisfied based on the totality of the evidence that we have read that the judge reached the correct conclusion on this issue . ”", "The court found that the applicant had not discharged the high burden necessary for it to conclude that he had been driven to withdraw from the proceedings because the hearing was unfair . It did , however , consider that the applicant 's submission about the judge 's reaction to his withdrawal had “ great force ” . The judge had proceeded to make orders which were , individually and in their totality , “ immoderate ” . Mr Justice Singer in his judgment had rejected the applicant 's case without qualification and had marginalised the welfare report , without hearing from the author . The court found that the reduction in contact and the prohibition on communication had a punitive flavour and that there was no evidential basis for the non - molestation injunction . The application for an order under LAW of LAW and the suggestion that the applicant see a psychiatrist were nothing but flourishes of advocacy . Both the recital to the order and the requirement to surrender the passports served to stigmatise the applicant in an unwarranted way . The indefinite prohibition on publication was unnecessary . There was no sustainable basis for the order for indemnity costs .", "The court concluded however that the prospect of returning the case for trial in ORG , given the costs involved and the inevitable damage that was being caused to the children , was too unappealing to contemplate and it would therefore substitute its own order for that of DATE . The court also observed that , since DATE , the applicant had not seen the children except by chance , having declined to exercise contact on the basis of the judge 's order . The residence order was retained , but the recital and paragraphs CARDINAL to CARDINAL of the order were deleted . Contact was ordered on TIME and with CARDINAL the school holidays , as recommended by the welfare officer . Given the applicant 's unreasonable rejection of that proposal prior to the trial and his insistence on calling various lay witnesses the court considered it was not unfair that he should have to pay the costs , but they would be assessed on the standard basis ( by which any doubt as to whether costs were reasonably incurred or reasonable and proportionate in amount is resolved in favour of the paying party ) .", "A separate constitution of the Court of Appeal gave judgment in the ancillary proceedings on DATE . The applicant submitted , inter alia , that the judge had reached the wrong conclusions on the evidence , but even on the basis of his findings , the orders made were inexplicable and unjustified . He submitted that the personal animosity of the judge in the LAW proceedings had carried over into and affected the ancillary judgment .", "ORG considered that Mr Justice PERSON 's judgment was detailed and careful and that the judge 's conclusions were on the whole “ carefully reasoned and manifestly justifiable on the evidence ” . The judge 's extensive survey of the issues had led him to be strongly critical of the applicant 's disclosure and integrity . The court had reserved judgment so as to ensure that the applicant 's arguments as to bias in the Children Act proceedings could be aired first . The court noted that in those proceedings the appeal court had not found that the hearing had been unfair overall . Moreover , although the judge had referred in his judgment to his findings against the applicant in LAW proceedings , his conclusions in the ancillary case were not dependent on those findings .", "The court noted that Mr Justice Singer 's findings as to Site B were the crux of the judgment and lay behind the only real issue on appeal . The judge had accepted that there could be major difficulties with an attempted sale of Site B and broadly found in favour of the applicant 's submissions as to the potential effect of the title defect in this respect . The judge had clearly been suspicious about the fact that the applicant had not initially relied on the alleged title defects and considered that the applicant may not have revealed the full strength of his hand , so that the true position would only come to light when the applicant actually sought to realise the value of the property . However , he indicated that for valuation purposes he would not treat Site B as a readily realisable asset . The court noted the uncontested evidence to the effect that if a sale of Site B presented problems , then so would any attempt to borrow against it as security .", "The court concluded that the applicant 's submissions as to bias were generally without validity . In fact , up to its final conclusions , the judgment was a ' detailed and masterly appraisal ' . The court did however agree that , given his findings on Site B , it was difficult to see how the judge could have expected the applicant to raise the necessary funds immediately . The court further found that there was no justification for instant enforcement through receivership , which was almost unknown in ancillary relief proceedings . The provision for instant payment and enforcement was oppressive . Given the judge 's findings as to the potential problems with Site B , the applicant could only realistically be expected to satisfy the order from the rental income , which was a long term approach . The option of remitting the matter for retrial was unthinkable given the costs already incurred . The court considered that it would take DATE to pay off the lump sum by that route and amended the order , allowing the appeal to that extent . The powers of the receiver were also limited to collection and distribution of the income from Site B. The court did not interfere with the costs order .", "On DATE ORG dismissed the applicant 's petition seeking leave to appeal .", "In a case of alleged bias , the test for the court to consider was set out in NORP v. PERSON ( [ DATE ] A.C. CARDINAL ) . Having ascertained the relevant circumstances , the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal , in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration , a test confirmed in the case of GPE ( GPE ) Ltd. v. ORG ( [ DATE ] CARDINAL WLR CARDINAL ) . In the recent case of PERSON ; PERSON v. DATE ] CARDINAL AC CARDINAL , Lord Hope stated :", "“ The question is whether the fair - minded and informed observer , having considered the facts , would conclude that there was a real possibility that the tribunal was biased . ”" ]

[]

[]

[]

[]

[]

[]

[ "The applicant , PERSON , is a GPE national , born in DATE and living in GPE . He is represented before the Court by PERSON NORP PERSON , a lawyer practising in GPE . The respondent Government are represented by their agent , PERSON , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE CARDINAL the applicant was convicted by a jury at ORG of CARDINAL armed robberies committed DATE . He was sentenced to DATE imprisonment .", "The applicant was arrested at his mother ’s flat TIME after the fourth robbery . The police searched his room and claimed to have found clothing similar to that worn by the robber according to a photograph taken by a security camera at the fourth robbery . The applicant denied owning these articles and contended that they were not found in his room but were instead supplied by the police in order falsely to implicate him .", "Following his arrest the applicant was taken to ORG where he was interviewed by PERSON and PERSON . At trial , the applicant claimed that during this first interview , of which no note was made , the officers told him that CARDINAL of the robberies had been committed by CARDINAL men and that the get - away car had been a blue ORG , registration number ORG CARDINALN. During the trial the police denied that there had been such a “ first interview ” or that mention of a blue ORG had ever been made in the course of the investigation , except as a “ ploy ” to put the applicant off his guard .", "A second interview was not in dispute , and the applicant signed the note recording his account of his movements on DATE of the fourth robbery . The events which took place during a third interview were , however , also disputed as were certain incriminating statements which police officers claimed the applicant had made during a car journey to retrace that taken by the applicant in the red Escort . The applicant accepted that he signed a record of the conversation in the car , but claimed that the record had been written on alternate lines on a lined notebook . By the time of the trial , the blank lines had been completed , to include admissions by the applicant that he had hidden from the police and “ spent some of the money ” . Forensic examination carried out for the purposes of the applicant ’s appeal indicated that the lines containing the incriminating comments had been added at DATE .", "At trial , the applicant denied any involvement in the robberies and he gave evidence and called witnesses to show that he had been elsewhere at the relevant times . For the prosecution , in addition to the clothing and identification evidence referred to above , QUANTITY police officers gave evidence as to admissions allegedly made by the applicant in the course of interviews . The applicant was convicted by the jury ’s unanimous verdict .", "On DATE ORG refused the applicant leave to appeal against conviction or sentence .", "The applicant maintained his allegations against the police and in DATE GPE Police opened an inquiry to investigate them .", "In DATE the applicant ’s petition to ORG asking for his case to be referred to ORG was rejected .", "DATE the applicant secured reports by forensic scientists which cast doubt on the authenticity of some of the police interview records relied upon by the prosecution . On the basis of these reports , in DATE , he made a second petition to ORG .", "In DATE the West Yorkshire Police presented a report of its investigation to ORG . The applicant was informed that on the basis of this report it had been decided that no disciplinary action or proceedings were warranted against the officers involved in his case .", "In DATE , however , further forensic reports were completed which cast fresh doubt on the authenticity of the interview records . DATE ORG ordered ORG to conduct an investigation into the applicant ’s allegations . The investigating officers searched the lockers at FAC police station and discovered a file marked “ FAC ” which contained an envelope marked “ FAC ” and a note recording the name and address of an ambulance driver , PERSON , who had seen a dark blue car , “ possibly a Mark CARDINAL Cortina ” , driving at speed from the vicinity of the last robbery at the relevant time .", "On DATE the ORG Secretary referred the case to ORG . The appeal was heard in DATE . PERSON was traced and called to give evidence on behalf of the applicant . He testified as to an incident which had occurred at either TIME in which , while waiting in his ambulance , he had seen a blue ORG approaching from the direction of the estate agents’ offices . As the car pulled up at the kerb opposite him , a second man , carrying what looked like a blue cash bag of the type provided by banks , ran from the direction of the estate agents and got into the passenger seat . The car then drove off at speed . Mr L told the court that his assistant had made a note of DATE of the car registration number , and that he had immediately reported what he had seen to the police at FAC , stating that he thought that it had been a robbery in progress . He had never been asked to give a statement until he was contacted by the applicant ’s solicitors DATE after the event .", "ORG did not call the police officers involved in the original investigation and prosecution of the applicant to give evidence .", "Lord Justice PERSON in ORG observed in connection with the ambulance driver ’s evidence and the documents found by ORG in the lockers at FAC police station :", "Having heard [ Mr L ’s ] evidence , we were satisfied that at the time of the interviews referred to by the appellant no - one at FAC knew the index number of the blue ORG reported by [ Mr L ] . We are also satisfied that the index number ONT CARDINALN was an index number known to the appellant and introduced by him into evidence at the trial . On the information available to us , it was first mentioned either in the cross - examination of ORG or during the evidence in chief of the appellant . We are satisfied that at no time did [ Mr L ] have the full index number of the blue ORG which he reported , that in all probability interest in the blue ORG evaporated after the far more detailed report received from [ PERSON ] and that the first mention of the index number was made by the appellant as we have indicated . [ Counsel for the prosecution ] accepted that , had the prosecution been aware at the time of the existence of [ Mr L ’s ] report , the defence should have been told . But in the result his description of the type of bag carried by the person he saw was so different from the white plastic bag carried by the person who carried out the robbery ... that his evidence did not detract in any way from that of [ Mrs H ] who had noticed and clearly described the white plastic bag carried by the man who ran past her . Further , as the defence apparently knew the registration number of the vehicle , they could have made enquiries at the time . We are satisfied that the evidence of [ Mr L ] would not afford any ground for allowing the appeal , and that it was not consciously withheld from the defence . In the circumstances we do not think that the failure to disclose the report of [ Mr L ] was material . There remains the question whether , in stating at trial that the introduction of the blue ORG into the interview with the appellant was a ‘ ploy’ , ORG was telling CARDINAL the truth . It could , of course , have been the case that ORG both knew of [ Mr L ’s ] report and used it as a ploy . If we are correct in thinking that [ Mr L ’s ] report was not followed up in the course of the investigation , it seems to us not improbable that Inspector PERSON may subconsciously have referred to the blue ORG because he had heard a report of such a sighting but by the time of the trial he had dismissed that report from his mind as a reason why he had introduced the blue ORG . It is , however , a matter which we bear in mind when we have to assess the overall reliability of ORG evidence . ”", "In addition , ORG heard evidence from a number of expert witnesses . Having heard the evidence of CARDINAL experts who had examined the security camera photographs , the court decided that the robber could have been of a height similar to the applicant . It considered that further forensic evidence relating to a pair of shoes , said to have been found in the applicant ’s bedroom , served only to reinforce the view that they had been regularly worn by the applicant .", "Having heard forensic evidence suggesting that alternate lines of the record of the conversation between the applicant and police officers in the car might have been added at DATE , the court said :", "“ In approaching this aspect of the case we remind ourselves that the allegations made against police officers that they have deliberately falsified an interview are extremely serious . We do not feel that the evidence adduced is sufficiently cogent to lead to the conclusion that ORG added alternate lines to the record of the discussion during the journey in the car . We are certainly not prepared to reject the whole of the evidence given by police officers of ORG as suggested by [ the defence counsel ] . Whilst we think it unlikely that the words ‘ and ORG and ‘ where I spent some of the money’ were added to the record by ORG after the appellant had signed the record of the conversation , we also consider that it would be surprising if the appellant , who had persistently denied that he had committed the robbery , made these statements in an unguarded moment on this car journey . Accordingly we consider that we should disregard them altogether in deciding whether the conviction of the appellant was safe . ”", "ORG dismissed the appeal on DATE , because it did not find that the applicant ’s conviction was unsafe ( section CARDINAL(CARDINAL ) of LAW DATE as amended by LAW ) .", "The applicant had also applied to ORG for leave to appeal to ORG . He was informed by a letter dated CARDINAL DATE that ORG had refused to issue a certificate under section ORG ) of LAW DATE ( see below ) and had refused leave to appeal to ORG . By a letter dated DATE , the applicant ’s solicitors reapplied to ORG for leave to appeal to ORG and requested the court to hear oral argument on this question , since counsel had understood that an oral hearing was to have taken place before the court decided the issue in the first place . According to the applicants’ solicitors , this request was refused by telephone some time after DATE ( the date of the introduction of the application to ORG ) .", "In DATE ORG informed the applicant that its investigation had produced evidence suggesting that a number of officers had given false or misleading evidence at trial and that those officers still serving with the police would be reprimanded .", "In criminal cases , there is a right of appeal from ORG to ORG , if leave is granted by either court . LAW DATE provides in section ORG ) that “ leave shall not be granted unless it is certified by ORG that a point of law of general importance is involved in the decision and it appears to ORG or ORG ( as the case may be ) that the point is one which ought to be considered by the ORG ” .", "ORG was created by CARDINAL of ORG “ PACE ” ) . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges . Under section CARDINAL(CARDINAL ) of PACE the ORG is to have regard to any guidance given to it by the Secretary of ORG with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings ." ]

[]

[]

[]

[]

[]

[]

[ "The application was introduced by Mr PERSON , a NORP national who was born in DATE and who lived in GPE . He was represented by PERSON , a lawyer practising in GPE . The applicant died on CARDINAL DATE . On DATE PERSON , the applicant ’s spouse , informed ORG her wish to continue the application in her late husband ’s stead . She authorised PERSON to represent her in the proceedings . The Government of GPE ( “ the Government ” ) are represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant and his wife started living in a family house which is owned by their son and the latter ’s wife . The house is situated in GPE street in GPE . The house is placed CARDINAL other family houses with street numbers CARDINAL and CARDINAL respectively and it had a plate with street number CARDINAL initially .", "The applicant and the other inhabitants of the house were disturbed by persons who thought that an important pharmaceutical company established in GPE in DATE had its headquarters there . In DATE the applicant learned that the company , whose premises were located partly at DATE same street QUANTITY away , used in its address the same street number as their house had . In addition , the same address was used by several other companies which leased LOC from the pharmaceutical company in issue .", "On DATE the applicant ’s son sought redress from both the Mayor of GPE and the company ’s management . He also requested the company to remove its information and advertisement board located in front of his house . On DATE the company ’s representatives replied that they were interested in solving the problem and that they had asked ORG in GPE for assistance .", "On DATE the GPE decided , with reference to sections QUANTITY , to assign street number CARDINAL to the house in which the applicant and his family lived . The document indicated that the decision was to be delivered to the house owner and to ORG in GPE . It contained no information as to the availability of any remedy . In a separate letter with DATE and addressed to the house owner ORG stated that the house should normally have street number CARDINAL . However , according to the relevant documents , the same street number had been assigned to the pharmaceutical company whose LOC were located in the same street . It resulted from the fact that the company ’s LOC had had street number CARDINAL from the moment of its establishment while further buildings had been built in the street subsequently without any change in the numbering . Given the position and activities of the company , ORG decided to assign a different street number to the house of the applicant ’s son . The company was to bear any costs related to the change of the number plate attached to the house .", "On DATE ORG informed the applicant ’s son that its employees would come to his house , on DATE , with a view to resolving the problem of the company ’s advertisement board .", "The applicant and his wife continued to be regularly disturbed throughout DATE by a large number of persons who thought that the above company or other companies which leased the latter ’s LOC ( and thus had the same street address ) had their offices there .", "In DATE the applicant complained of the situation to the Mayor of GPE . On DATE ORG sent copies of the above documents dated DATE together with a certificate that the inhabitants of the house had their permanent address at GPE street DATE . As the applicant continued insisting that the house should have street number CARDINAL , the Mayor of GPE decided to allocate street number ORG to the house in DATE . The documents submitted to the ORG indicate that the applicant ’s son and the members of his family had also registered their permanent address in the house at that time .", "Despite that change the applicant and his wife were regularly disturbed by persons looking for CARDINAL of the companies whose address was at GPE street CARDINAL . Such encounters sometimes resulted in misunderstandings and conflicts , for example with employment seekers . As a result , the health of the applicant and his wife deteriorated . In particular , the applicant submitted medical certificates according to which his wife had been undergoing long - term psychiatric treatment since DATE . Both the applicant and his wife underwent treatment in a sanatorium .", "On DATE the applicant asked ORG to express its opinion as to whether ORG had proceeded in an appropriate manner from the point of view of respecting the rights of the persons living in the house and whether the company concerned had violated the rights of those persons .", "In a letter of DATE , a constitutional judge informed the applicant that individuals could initiate proceedings before ORG under Articles CARDINAL and CARDINAL § CARDINAL of the LAW only . ORG was not entitled to express an opinion on the questions put by the applicant . The letter concluded that the applicant ’s submission did not meet the formal requirements for proceedings to be brought before ORG .", "In DATE a TV company reported on the case . In the broadcast the applicant explained that he and his family were regularly disturbed by persons looking for PERSON street DATE . On DATE CARDINAL persons rang their bell . The applicant held in his hands a standardised street number plate bearing the number CARDINAL . He stated that that number had originally been attached to their house and that he would not abandon the claim that it still belonged to them . The Mayor explained that the company had had street number CARDINAL in its address from the moment of its establishment . The municipality accepted that a change in the company ’s address would result in disproportionately high costs . The decision adopted in DATE to allocate street number CARDINAL to the house of the applicant ’s son seemed to be the most appropriate solution . The Mayor expressed the view that if the applicant ’s family had accepted the proposed solution including the placement of an additional board announcing where the company ’s LOC were situated , the problem would have been resolved . A lawyer whom the TV team consulted advised the applicant to indicate visibly on the house street number CARDINAL allocated by the municipality . The pictures of the house indicate that , unlike the neighbouring ones , the house in which the applicant lived had no identification number attached to it at the time when the broadcast was made .", "As from DATE the company in issue started using a new address - FAC street CARDINAL . That address indicates the main entrance to the company ’s newly built administrative building . However , the address of several other companies leasing the LOC remained unchanged .", "In a reply to the applicant ’s complaint , ORG GPE expressed the view , on DATE , that ORG in GPE had acted in accordance with LAW in that it had allocated street number ORG to the house .", "In his submissions to different authorities the applicant repeatedly indicated “ PERSON CARDINAL ” as his address .", "According to the Government , the applicant and his son disregarded the decision of DATE to allocate street number CARDINAL/A to the house . They submitted photographs taken by the employees of ORG , on DATE , showing that the house bears street number CARDINAL .", "The applicant contended that the number attached to the house had been carved in wood and bought by his son , and that they had not been provided with plates .", "Pursuant to LAW , as in force until DATE , ORG decided on complaints concerning final decisions made by , among others , local government authorities and local self - governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens , unless the protection of such rights fell under the jurisdiction of another court .", "Under LAW of the LAW , as in force until DATE , ORG could commence proceedings upon a petition ( podnet ) presented by any individual or corporation claiming that their rights had been violated .", "According to its case - law under former LAW of LAW , as in force until DATE , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights . It could neither grant damages to the person concerned nor impose a sanction on the public authority responsible for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .", "The lawfulness of decisions given by authorities charged with public administration can be reviewed by courts in accordance with Part CARDINAL of LAW which governs the administrative judiciary .", "Article CARDINAL ) provides that administrative courts review the lawfulness of decisions given by ORG administrative authorities or local selfgovernment authorities , as well as of other legal persons authorised by law to decide on individual rights and obligations in the context of public administration . As from DATE , this provision has been amended in that courts are also entitled to review the way in which administrative authorities proceed , including their failure to act .", "Under paragraph CARDINAL of Article CARDINAL , decisions of administrative authorities are decisions which such authorities delivered in the context of administrative proceedings as well as other decisions which establish , modify or annul the rights and obligations of natural or legal persons .", "Under LAW ) , courts are entitled to decide on actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all available ordinary remedies .", "Act CARDINAL/CARDINAL Coll . governed the territorial and administrative division of GPE . It was in force until DATE .", "Section CARDINAL(CARDINAL ) provided that , in order to facilitate orientation in streets , every building and every separate entry thereto were to be marked by an “ orientation number ” . Every street given a name was to have a separate series of orientation numbers .", "Section CARDINAL(CARDINAL ) provided that municipalities were to decide on and register the numbering of buildings .", "Pursuant to section DATE ) , a single type of plates with street orientation numbers is to be used in a municipality . The house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense . Paragraph CARDINAL of section CARDINAL provided that a street orientation number is to be placed to the right from the entrance to a building in a manner permitting it to be seen from public space .", "Act CARDINAL/CARDINAL on ORG of GPE entered into force on DATE and it repealed LAW .", "The following relevant provisions were in force until DATE .", "Under LAW , every building in a street or in a public place having a name and every separate entrance to such a building were to have an orientation number . Every street or public place having its own name was to have its own series of orientation numbers .", "Section CARDINAL(CARDINAL ) entrusted to municipalities the numbering of buildings and its registration . Municipalities decided also on the type of plates with street numbers to be used on their territory . Pursuant to paragraph CARDINAL of section DATE , house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense .", "Section CARDINAL provided that decisions under Act CARDINAL/CARDINAL were not covered by LAW of DATE .", "As from DATE the numbering of buildings has been governed by LAW , as amended by Act No . CARDINAL/CARDINAL .", "Pursuant to section CARDINAL ) , municipalities allcoate orientation and registration numbers to buildings , keep a register of such numbering and ensure that it corresponds to the factual situation .", "Section CARDINAL ) provides , inter alia , that decisions by which street numbers are assigned to houses are not covered by LAW of DATE .", "Regulation CARDINAL/CARDINAL was issued by ORG with reference to LAW and it governed , inter alia , the details of the numbering of buildings . It was in force from DATE until DATE .", "Regulation CARDINAL/CARDINAL repealed Regulation CARDINAL/CARDINAL with effect from DATE .", "Section CARDINAL(CARDINAL ) provides that a street orientation number can be changed or annulled in exceptional cases only and after the owner of the building has been duly notified ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant is the owner of a flat in GPE , which it had let to ORG", "In a writ served on the tenant on DATE , the applicant informed the tenant that it intended to terminate the lease on expiry of the term and summoned her to appear before ORG .", "By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE .", "On DATE , the applicant served notice on the tenant requiring her to vacate the premises .", "On DATE , the applicant informed the tenant that the order for possession would be enforced by a bailiff on CARDINAL DATE .", "DATE and DATE , the bailiff made DATE attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .", "On DATE , the applicant recovered possession of the flat .", "Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .", "As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .", "The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .", "The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .", "Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .", "The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :", "“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”", "NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .", "In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .", "The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE and DATE and live in GPE , GPE and PERSON , respectively .", "The applicants instituted separate sets of civil proceedings against their employers mainly claiming occupational disability allowances .", "On DATE the first applicant , a former miner , instituted civil proceedings in the NORP ORG ( “ the Mykytivsky Court ” ) against his former employer , a ORG - owned mine , seeking recalculation of his occupational disability payment .", "DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE and DATE and DATE were quashed by ORG on DATE , DATE and DATE for procedural irregularities and legal and factual errors . Accordingly , the case was remitted for fresh examination .", "On DATE ORG replaced the respondent in the case upon the applicant ’s request . In particular , the court ordered another company , the mine ’s successor , to stand as a respondent . The court also ordered the local social security fund to take part in the proceedings as a co - respondent .", "On DATE ORG delivered a judgment , ordering the fund to make DATE payments in respect of the applicant ’s occupational disability . By a separate procedural decision , the applicant ’s claims against the other co - respondent were left without consideration as the applicant withdrew them in the course of the court hearing .", "On DATE ORG quashed the judgment of DATE and ordered reconsideration of the case .", "On DATE ORG quashed the decision of ORG , finding that the latter had not complied with the rules of procedure .", "On DATE ORG reconsidered the case and adopted a new judgment reducing the payments awarded to the applicant by the first - instance court .", "On DATE ORG , acting as a court of cassation , rejected the applicant ’s appeal and confirmed the judgment of DATE .", "The applicant unsuccessfully tried to challenge the courts’ decisions in an extraordinary appeal , which was rejected by ORG on DATE .", "According to the Government , out of CARDINAL scheduled hearings , CARDINAL were adjourned for various reasons . In particular , the hearings were adjourned twice because of the failure of the applicant to appear , CARDINAL times due to the failure of the respondents or their representatives to appear , and twice because of both parties’ failure to appear . Additionally , CARDINAL hearings were adjourned as the judge was absent for health and business reasons . On several occasions the courts had to renew , at the applicant ’s and the respondent ’s request , the term for lodging an appeal which resulted in a delay of DATE . Lastly , due to the expert examination ordered at the applicant ’s request , the consideration of the case was delayed for DATE .", "According the applicant , the hearings were adjourned CARDINAL times due to the failure of the respondents or their representative to appear . The applicant also indicated that the case had not been heard DATE and DATE as the presiding judge ’s mandate had expired .", "On DATE the second applicant , then a miner , instituted civil proceedings in FAC ( “ FAC “ ) against her employer , a ORG - owned mine , asking the court to order the mine to issue her a certificate confirming that she had received an occupational injury .", "In the course of the proceedings the applicant amended her claims on several occasions . In particular , she sought compensation for pecuniary and non - pecuniary damage , resulting from her injury , to be paid by the mine and the local social security fund .", "DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE and DATE were quashed by ORG on DATE and DATE , respectively , for procedural irregularities and failure to accurately establish the circumstances . Accordingly , the case was remitted for fresh examination .", "By the judgment of DATE , ORG rejected the applicant ’s claims as unsubstantiated . Following CARDINAL reconsiderations of the case on appeal , the judgment was eventually confirmed by ORG on DATE .", "On DATE ORG rejected the applicant ’s appeal in cassation , finding no fault on the part of the lower courts .", "According to the Government , out of CARDINAL hearings scheduled in the course of the proceeding , CARDINAL were adjourned because of the failure of the applicant or her representative to appear , CARDINAL due to the respondents’ or their representatives’ failure to appear or requests to adjourn hearings , and CARDINAL because all the parties failed to appear .", "According to the applicant , she attended all the hearings ; her representative failed to appear at CARDINAL hearings and was later dismissed by the applicant .", "On CARDINAL occasions the courts had to renew , at the applicant ’s and respondents’ requests , the term for lodging an appeal which resulted in a delay of DATE .", "On DATE the applicant , then a miner , instituted civil proceedings in FAC of PERSON ( “ the Ternivsky Court ” ) against CARDINAL ORG - owned companies who were the successors of his former employer , a ORG - owned mine , and the local social security fund , seeking recalculation of his occupational disability payments and compensation for pecuniary and non - pecuniary damage .", "In the course of the proceedings the applicant amended his claims on several occasions . The amendments mainly concerned the amounts he claimed .", "DATE and DATE ORG reconsidered the case on CARDINAL occasions . Its judgments of DATE , DATE and CARDINAL DATE were quashed by ORG on DATE , DATE and CARDINAL DATE , respectively , for procedural irregularities and legal and factual errors . Accordingly , the case was remitted for fresh examination .", "The applicant ’s appeal in cassation against the decision of CARDINAL DATE was rejected by ORG on DATE .", "The case is currently pending before ORG .", "Out of CARDINAL hearings scheduled DATE and DATE , CARDINAL were adjourned because of the failure of the applicant or her representative to appear , CARDINAL were adjourned due to the respondents’ or their representatives’ failure to appear , CARDINAL times both parties failed to appear . On CARDINAL occasions the hearings were adjourned for the presiding judge was busy with another case ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "On DATE the NORP State expropriated an area of land measuring CARDINAL m² , located on the outskirts of the town of LOC ( LOC ) , for the purpose of building an airport . This area , which now falls within the jurisdiction of ORG , included plots of land which belonged to the applicants ' ascendants .", "The amount of expropriation allowance was set by judgments ORG . CARDINAL/CARDINAL and CARDINAL of ORG of First Instance , no . CARDINAL of ORG and no . CARDINAL of ORG .", "By judgment no . CARDINAL of the President of ORG , the applicants ' ascendants were recognised as being entitled to the compensation in question . However , the ORG refused to pay it . The airport was ultimately constructed elsewhere .", "On DATE , by a joint decision of the Minister of Finance and the Minister of Public Works ( no . E.CARDINAL/CARDINAL ) , the ORG went ahead with expropriation of the above - mentioned area , which included the disputed plots of land , with a view to building housing for workers . As the decision did not fulfil a public - interest aim , however , it was revoked on DATE .", "On DATE a royal decree designated the land for the construction of a sports centre .", "On DATE the LOC prefect modified the development plan ( ρυμοτομικό σχέδιο ) for the area , which he designated as a “ green area ” and “ sports and leisure zone ” . This decision was confirmed by a decision of the Minister of ORG dated DATE and by a presidential decree of CARDINAL DATE .", "On DATE the applicants or their ascendants applied to the GPE requesting that the development plan in force be amended to have the encumbrance affecting their land removed . The prefecture did not reply .", "On DATE the applicants or their ascendants applied to ORG , seeking to have set aside the authorities ' implicit refusal to remove the encumbrance affecting their land .", "On DATE the ORG filed its observations on the case . A hearing was held on DATE .", "On DATE ORG granted the applicants ' request . In particular , it found that , having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan , the authorities were duty bound to lift the encumbrance on the disputed properties . ORG sent the case back to the authorities , asking them to take the necessary measures to make available the applicants ' land ( judgments FAC . CARDINAL/CARDINAL , QUANTITY and TIME ) . Those judgments were finalised and certified as authentic on DATE .", "On DATE ORG lodged a third - party appeal ( τριτανακοπή ) against the above - mentioned judgments by ORG . This form of appeal , open to persons who have been neither parties to nor represented in proceedings , enables them to contest a decision which adversely affects them . Where the third - party appeal – which does not have suspensive effect DATE is found to be valid , the impugned judgments are set aside retrospectively and the application to the administrative court is re - examined . In the instant case , as the third - party appeal did not have suspensive effect , judgments nos . CARDINAL/CARDINAL , QUANTITY and QUANTITY thus remained immediately enforceable .", "On DATE ORG declared the third - party appeal inadmissible ( judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . It held that ORG could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case . The above - mentioned judgments were finalised and certified as authentic on DATE .", "On DATE the Minister for ORG modified the urban development plan of GPE municipality in order to designate the land in question as the site for a sports and leisure centre ( decision no . DATE ) .", "On DATE the applicants or their ascendants applied to ORG seeking to have the above - mentioned decision set aside . On DATE they submitted various documents in support of their application , including the title deeds to the properties . The hearing , initially scheduled for DATE , was postponed several occasions times . It was finally held on DATE . ORG has not yet delivered its judgment ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "On DATE the applicant arrived at FAC on a flight from GPE . On the same flight was his cousin , ORG Both men were stopped and searched by customs officials . ORG was found to be in possession of heroin with a street value of MONEY . He was interviewed and then arrested and charged . No drugs were found on the applicant . He too was interviewed , but made no admissions . He was released without charge . On DATE the applicant visited a friend , B. , in GPE . PERSON was under investigation for dealing in heroin . On DATE the installation of a listening device on B. 's premises had been authorised by the Chief Constable of GPE on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs . It was not expected or foreseen that the applicant would visit the LOC . Neither PERSON nor the applicant was aware of the aural surveillance equipment which had been installed by the police .", "By means of that device the police obtained a tape recording of a conversation , in the course of which the applicant admitted that he had been a party to the importation of drugs by ORG on DATE . The applicant was arrested on DATE . Again he made no admissions when interviewed , but subsequently he and ORG were jointly charged with offences under the ORG and Excise Management Act DATE and ORG DATE and committed for trial .", "The trial took place in DATE . The applicant pleaded “ not guilty ” . The applicant admitted that he had been present at the GPE address and that his voice was CARDINAL of those recorded on the tape . It was admitted on behalf of the ORG that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property . Thereupon , the trial judge conducted a hearing on the voir dire ( submissions on a point of law in the absence of the jury ) as to the admissibility in evidence of the conversation recorded on the tape . The ORG accepted that without it there was no case against the applicant .", "NORP The trial judge ruled that the evidence was admissible . Following an amendment to the indictment , the applicant was re - arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin . On DATE the applicant was sentenced to DATE imprisonment .", "The applicant appealed to ORG on the ground that the evidence ought to have been held to be inadmissible . On DATE ORG dismissed the applicant 's appeal against conviction but also certified , as a point of law of general public importance , the question whether evidence of tape - recorded conversations , obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers , was admissible in a criminal trial against the defendant .", "On DATE ORG of ORG granted the applicant leave to appeal from the decision of ORG dismissing his appeal against conviction . On DATE ORG dismissed the applicant 's appeal . ORG noted that the question before it gave rise to CARDINAL separate issues , the first being whether evidence of the taped conversations was admissible at all and the second whether , if admissible , it should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section CARDINAL of ORG “ PACE ” ) . As to the former issue , ORG held that there was no right to privacy in LANGUAGE law and that , even if there were such a right , the common - law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person 's privacy . As to the latter issue , it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of LAW was relevant to , but not determinative of , the judge 's discretion to admit or exclude such evidence under section CARDINAL of PACE . The judge 's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair , and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in LAW did not mean that the trial would be unfair . On the facts , the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained , even if they constituted a breach of LAW , were not such as to require the exclusion of the evidence . PERSON , giving the opinion of the majority of the ORG , added :", "“ The sole cause of this case coming to your Lordship 's ORG is the lack of a statutory system regulating the use of surveillance devices by the police . The absence of such a system seems astonishing , the more so in view of the statutory framework which has governed the use of such devices by ORG since DATE , and the interception of communications by the police as well as by other agencies since DATE . I would refrain from other comment because counsel for the respondent was able to inform us , on instructions , that the government proposes to introduce legislation covering the matter in the next session of ORG . ”", "The applicant was discharged from prison on DATE . His release was on licence until CARDINAL DATE .", "Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices . The Guidelines are available in the library of ORG and are disclosed by ORG on application .", "In each case , the authorising officer should satisfy himself that the following criteria are met : ( a ) the investigation concerns serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ; ( c ) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ; ( d ) the use of equipment must be operationally feasible . The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence .", "The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings .", "ORG was created by CARDINAL of PACE . It is an independent body empowered to receive complaints as to the conduct of police officers . It has powers to refer charges of criminal offences to ORG and itself to bring disciplinary charges .", "Section CARDINAL(CARDINAL ) of PACE provides as follows :", "“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”", "The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on CARDINAL DATE ." ]

[ "13", "8" ]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant , Mr PERSON , is a NORP citizen who was born in DATE and is at present living in GPE in south - east GPE . His application to the Commission was brought on his own behalf and on behalf of his brother PERSON , who , he alleges , has disappeared in circumstances engaging the responsibility of the ORG .", "The facts surrounding the disappearance of the applicant ’s brother are disputed .", "The facts presented by the applicant are contained in LAW below . In his memorial to the ORG , the applicant relied on the facts as established by the ORG in its report ( former LAW ) adopted on DATE and his previous submissions to the Commission .", "The facts as presented by the Government are set out in LAW .", "A description of the materials submitted to the ORG is contained in Part C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant ’s brother as established by the ORG is set out in Part D.", "The Commission , with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant ’s brother , conducted its own investigation pursuant to former LAW ( a ) of the LAW . To this end , the ORG examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take the evidence of witnesses at hearings conducted in GPE on DATE and in GPE on DATE . The ORG ’s evaluation of the evidence and its findings thereon are summarised in Part E.", "On DATE , the applicant ’s brother , PERSON , was detained during an operation in the village of ORG carried out by gendarmes and village guards . When the operation commenced early in the morning , PERSON hid in a house near the fountain while the other men were gathered in an open area . The security forces began setting fire to the houses . PERSON retrieved money , MONEY ( TRL ) , which he had hidden in the roof of his house and was caught leaving the house . PERSON was taken from the village by the security forces . This was witnessed by the other villagers . The money was taken from PERSON by a first lieutenant . PERSON , PERSON wife , was told by a boy from the village that he had seen a gendarme take money from PERSON .", "PERSON was first taken to ORG , where he was kept TIME before being taken to ORG . In ORG , he was detained at the provincial gendarmerie headquarters . After DATE , he was held for DATE in the same room as PERSON , PERSON and ORG , who had been taken into custody on DATE by the security forces in an operation at GPE . PERSON had been beaten , a rib being broken and his head split open . He was taken out of the room for interrogation on several occasions , when he received electric shocks and was beaten . PERSON was also told by PERSON that a first lieutenant had taken money from him . At DATE , the other CARDINAL detainees were brought before the court . ORG and ORG were released and PERSON was remanded in custody . ORG did not see PERSON again .", "After DATE at the provincial gendarmerie headquarters , in or DATE , PERSON was taken back to ORG where he was detained for DATE . From there he was moved to the gendarmerie station at GPE . During a period of DATE in or DATE or DATE , PERSON , who was also detained at GPE , saw PERSON when they were taken out of the cells for meals . At the end of that period , PERSON was transferred to ORG .", "In DATE , following the transmission of Government submissions , the applicant learned for the first time that it was claimed by the authorities that PERSON had been killed in a clash DATE on PERSON , PERSON . The identification appeared to be based solely on the claim that PERSON identification card was found on CARDINAL of the bodies .", "The Government recall that at this time the ORG ( ORG ) had destroyed numerous villages , inflicted suffering on CARDINAL of innocent victims and exerted intolerable oppression over the population of the south - east region .", "They state that PERSON was not taken into custody by the security forces during the operation carried out at ORG on DATE and was not held in detention over any subsequent period . The custody records indicated that he was not held at ORG or at ORG provincial gendarmerie headquarters . Nor was he was taken to the gendarmerie station at GPE .", "PERSON was a militant member of the ORG organisation . Following an armed clash between the ORG and the security forces on CARDINAL to DATE , he had been found dead with CARDINAL other militants at PERSON . PERSON had been implicated in the killing on DATE of CARDINAL teachers from PERSON whom he had reportedly described as “ servile dogs of the State ” . He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the ORG .", "No complaint was made to the public prosecutor at GPE by any member of the applicant ’s family in respect of the alleged disappearance .", "In the proceedings before the ORG , the applicant and the ORG submitted a number of statements by the applicant , which he had made to ORG in GPE ( ORG ) and to the public prosecutor at ORG . Statements had also been taken by the ORG and the public prosecutor from PERSON , the wife of PERSON , and PERSON , who had been detained from DATE to CARDINAL DATE at ORG provincial gendarmerie headquarters . PERSON had also made a statement to a police officer . Statements had been taken by PERSON , on behalf of the applicant , from LOC , who had been detained at the same time as PERSON , and from CARDINAL villagers , PERSON and PERSON .", "The Government also provided an arrest report dated DATE concerning the apprehension of PERSON , PERSON and ORG , CARDINAL operation reports dated CARDINAL and DATE respectively concerning the operation at ORG village , documents concerning the witness FAC whom the ORG ’s delegates had summoned to give evidence but who did not appear and documents relating to inquiries made by the authorities into the allegations .", "The Commission requested copies of the custody records for the relevant period for ORG gendarmerie station , ORG gendarmerie station , ORG provincial gendarmerie headquarters and the gendarmerie station at GPE . The ORG ’s delegates further requested the opportunity to inspect the original records of ORG , GPE and GPE . The Government provided the original custody record of the NORP central gendarmerie station as well as copies of the custody record of ORG gendarmerie headquarters and ORG provincial gendarmerie headquarters for the relevant period . The Government did not provide the ORG ’s delegates with sight of the original custody record for ORG provincial gendarmerie headquarters , or with either a copy of , or sight of , the original custody record for the gendarmerie station of GPE .", "On DATE , PERSON , the father of the applicant and PERSON , submitted a handwritten petition to ORG requesting information as to what had happened to PERSON , who had been taken into custody on DATE by the security forces at the same time as PERSON , PERSON and ORG , who had been released DATE . An oral reply was given to him that PERSON was not on the list of persons in custody .", "By letter dated DATE , the NORP public prosecutor , PERSON , informed ORG at ORG that , on examination of their records , PERSON had not been taken into custody or detained on DATE .", "NORP By letter dated DATE to ORG at ORG , the NORP public prosecutor , PERSON , confirmed his letter of DATE and stated that no application had been filed by PERSON family to the effect that he was missing .", "By letter dated DATE , ORG ( ORG and ORG ) , referring to correspondence from ORG of DATE outlining the complaints made by the applicant to ORG , requested the ORG Attorney - General to have the applicant ’s complaints investigated and evaluated according to law .", "On DATE , the applicant ’s statement was taken by a public prosecutor at ORG . In his statement , he stated that his brother PERSON had been taken into custody by soldiers on DATE and that he had been seen by PERSON and PERSON , who were also detained . On DATE , the public prosecutor took a statement from PERSON . She stated that gendarmes had taken away her husband during an operation on DATE .", "NORP By letter dated DATE , Colonel PERSON of GPE provincial gendarmerie command informed the ORG Attorney - General , in reply to a letter of enquiry of DATE , that their records indicated that PERSON had not been detained on DATE [ error for DATE ] .", "NORP By letter dated DATE , Colonel PERSON reported to the ORG provincial authorities on the subject of the applicant ’s application to ORG . It was reported , inter alia , that police officers had been unable to find the addresses of the applicant , his father , PERSON , PERSON , PERSON ORG for the purpose of taking their statements . It had been established that PERSON , who was alleged to be missing , was involved with the ORG , having participated in killings . He was reported to have been a member of the NORP mountain team which , on DATE , kidnapped CARDINAL persons ( CARDINAL teachers , an imam and the imam ’s brother ) from GPE and killed CARDINAL of them . Their headquarters were looking for him .", "By letter dated DATE , Colonel PERSON forwarded to ORG district gendarmerie command documents found in the area and upon the bodies of CARDINAL terrorists found dead as a result of an operation carried out in the PERSON region from DATE .", "By letter dated DATE , ORG public prosecutor PERSON requested that the ORG public prosecutors investigate whether PERSON and ORG were detained by the gendarmes on DATE , and that they seek observations from PERSON concerning PERSON , who was alleged to have disappeared in custody .", "By letter dated DATE , NORP public prosecutor PERSON requested the NORP district gendarmerie command urgently to inform him concerning the operation carried out in ORG on CARDINAL DATE and to investigate and establish whether PERSON had been detained along with PERSON , PERSON and ORG .", "NORP By letter dated CARDINAL DATE , the ORG district gendarmerie command informed the ORG public prosecutor in reply that the operation on DATE had been intended to capture members of the ORG and those aiding and abetting them and that their records indicated that PERSON , PERSON , PERSON and ORG had not been detained .", "By letter dated CARDINAL DATE , the ORG public prosecutor requested the ORG district gendarmerie command as a matter of urgency to establish the whereabouts of PERSON .", "By letter dated DATE to the NORP public prosecutor , the district gendarmerie command at ORG referred to the prosecutor ’s enquiry dated CARDINAL DATE about the whereabouts of PERSON and to the letter dated DATE from the ORG provincial gendarmerie command . It stated that PERSON had been a member of the ORG . Following an operation carried out at FAC on DATE which resulted in the deaths of CARDINAL terrorists , PERSON identity was established by the identity card located amongst the documents found on the body of a terrorist . It was concluded that he was one of the terrorists .", "By letter dated DATE , the ORG public prosecutor informed the ORG Attorney - General , in reference to their letter of DATE and the letter of ORG of DATE , that an operation had been carried out on DATE in order to apprehend members of the ORG and those assisting them and that PERSON , PERSON and ORG had not been detained as claimed . Referring to the letter of DATE above , it was stated that PERSON was a member of the ORG and found dead during operations carried out in LOC , LOC , on DATE . The ORG public prosecutor had been requested to obtain a statement from PERSON , a response to which was still awaited .", "By letter dated DATE , the ORG public prosecutor ’s office informed ORG ( ORG ) of the information provided by the ORG gendarmes ( see paragraph CARDINAL above ) . It stated that a preliminary investigation ( no . MONEY ) had been started and was still pending .", "NORP By letter dated DATE , the ORG public prosecutor informed ORG that upon its request the ORG Attorney - General had been instructed to take a statement from PERSON .", "On DATE , a police officer took a brief statement from PERSON in which it was stated that he had not seen PERSON for DATE . On DATE , a public prosecutor at ORG took a statement from PERSON . In this statement , he stated , inter alia , that he had not seen PERSON in custody though PERSON might have seen him and referred to himself having been given electric shocks once while he was detained at ORG provincial gendarmerie headquarters .", "By decision of DATE , NORP public prosecutor PERSON issued a decision of lack of jurisdiction and transferred the file to ORG . The decision named the applicant and PERSON as the complainants and identified the victim as PERSON . The offence was described as ill - treatment , torture and confiscation of money of a detainee and the defendants as unidentified individuals of ORG gendarmerie station and village guards . It stated that the complainants claimed that soldiers from ORG gendarmerie command arrived in ORG on TIME CARDINAL DATE and detained the victim , that the victim had been taken to ORG where he was tortured and that a lieutenant had removed TRL CARDINAL from him . The investigation had established that the victim was a member of the ORG terrorist organisation and that following an operation by the security forces in LOC on CARDINAL and DATE the victim ’s identity card had been located on one of the dead terrorists , thus confirming the individual ’s identity as PERSON without doubt . PERSON had made a statement to the effect that he had not seen PERSON . The suspects fell under the PERSON on the prosecution of civil servants and following the withdrawal by the ORG prosecution the documentation was transferred to the Presidency of ORG for the necessary action .", "Since the facts of the case were disputed , particularly concerning the events in or around DATE , ORG conducted an investigation , with the assistance of the parties , and accepted documentary evidence , including written statements and oral evidence taken from CARDINAL witnesses : the applicant ; PERSON , previous muhtar of ORG ; PERSON , the wife of PERSON ; PERSON , who had been detained at ORG provincial gendarmerie headquarters from DATE to DATE ; PERSON , who had been gendarmerie commander of ORG in DATE and had commanded the operation at ORG on DATE ; PERSON , a villager from ORG ; PERSON , public prosecutor in GPE from DATE ; PERSON , the ORG central station commander at ORG district gendarmerie headquarters from DATE to DATE ; PERSON , the gendarme responsible for keeping the custody records at ORG provincial gendarmerie headquarters since DATE ; PERSON , a gendarme who had served at GPE station from DATE to DATE ; and PERSON , the brother of the imam who had been kidnapped with CARDINAL teachers from PERSON .", "A further CARDINAL witnesses had been summoned but did not appear : PERSON , ORG public prosecutor in DATE ; Colonel PERSON , ORG provincial gendarmerie commander ; PERSON , who was alleged by the applicant to have seen his brother in detention at GPE ; PERSON , the father of the applicant and PERSON ; PERSON and PERSON , who had both been detained at ORG provincial gendarmerie headquarters from DATE to CARDINAL DATE . It appeared that PERSON had died prior to the hearing . The Government claimed that they were unable to locate the witness FAC for the hearing in DATE despite the fact that they had been provided with information from the applicant that he was detained in FAC . The Government stated that FAC was served with the summons for the hearing to take place before the delegates on DATE but that he refused to sign the acknowledgment of service and was released from prison on DATE . The Government failed to provide the Commission with any explanation as to the timing and reason for his release . PERSON had informed the ORG by letter that he had no direct or indirect knowledge of the incident and that he did not consider himself obliged to attend . At the hearing in DATE , ORG explained to the delegates that they were unable to require public prosecutors to attend , nor could they oblige a senior officer such as PERSON to attend either .", "The ORG made a finding in its report ( at paragraph CARDINAL ) that the ORG had fallen short of their obligations under former LAW CARDINAL ( a ) of the LAW to furnish all the necessary facilities to the Commission in its task of establishing the facts . It referred to", "( i ) the Government ’s failure to provide the ORG ’s delegates with the opportunity to view original custody records ( see paragraph CARDINAL above ) ;", "( ii ) the Government ’s failure to facilitate the attendance of the witness FAC ;", "( iii ) the Government ’s failure to secure the attendance of the witnesses PERSON and PERSON .", "In relation to the oral evidence , the ORG was aware of the difficulties attached to assessing evidence obtained orally through interpreters . It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates .", "In a case where there were contradictory and conflicting factual accounts of events , the Commission particularly regretted the absence of a thorough domestic judicial examination . It was aware of its own limitations as a first - instance tribunal of fact . In addition to the problem of language adverted to above , there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region . Moreover , the Commission had no power to compel witnesses to appear and testify . In the present case , while CARDINAL witnesses had been summoned to appear , CARDINAL gave evidence . The lack of documentary materials is adverted to above . The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant testimony and evidence .", "The Commission ’s findings may be summarised as follows .", "GPE was in a district where terrorist activity was intense in DATE . On or about DATE , members of the ORG kidnapped CARDINAL teachers , an imam and the imam ’s brother , PERSON , from the village of PERSON and marched them across country , passing near the village of GPE . PERSON was required to shelter CARDINAL of the teachers , who was of NORP origin , TIME before allowing him to leave . The ORG shot and killed CARDINAL teachers and the imam , while PERSON , though wounded , was able to reach safety . He gave the gendarmes at ORG gendarmerie headquarters descriptions of the persons whom he had seen , including the villagers who had brought food and stood guard . ORG was a village under the jurisdiction of ORG gendarmes . The kidnap victims had also passed close to the village of ORG , QUANTITY from GPE , but which was under the jurisdiction of the ORG gendarmes .", "ORG The gendarmes from ORG and ORG conducted a coordinated operation on DATE . This operation concerned the collecting of evidence and information relating to the kidnapping and murder and the apprehension of persons suspected of involvement . PERSON was in command of the gendarmes from ORG . The operation order drawn up by him on DATE indicated that the purpose of the operation was the capture of ORG terrorists and their collaborators and the destruction of shelters , and it named PERSON as the place of the operation . The Commission rejected the testimony of ORG that they were not looking for PERSON when they went to ORG . The delegates assessed his evidence as evasive and unhelpful , and demonstrating a lack of sincerity . The Commission had regard to the evidence from CARDINAL other gendarmes that PERSON was already wanted by the authorities in relation to suspected ORG involvement before this operation and found that in all probability the ORG gendarmes went to ORG with the intention of locating and apprehending PERSON in relation to the kidnapping incident .", "The Commission assessed the evidence of the witnesses from the village , PERSON , PERSON and PERSON , who stated that they saw PERSON being taken from the village by the gendarmes , as being on the whole consistent , credible and convincing . They found the ORG ’s objections to their credibility to be unfounded on examination . Accordingly , the ORG found that when the gendarmes arrived in ORG on DATE , PERSON attempted to hide but was found and taken from the village in custody by the ORG gendarmes . Meanwhile , in GPE , the ORG gendarmes took into detention CARDINAL individuals , PERSON , PERSON and ORG .", "PERSON , PERSON and Tahsin Demirbaş were taken to ORG gendarmerie headquarters where they spent TIME . They were not entered into the custody records . DATE , on DATE , they were taken to ORG provincial gendarmerie headquarters , where entries in the custody record stated that they had been detained on DATE .", "The ORG gendarmerie station custody record made no entry on CARDINAL DATE with respect to PERSON . Nor did the copies of the entries for the period DATE at the ORG provincial gendarmerie headquarters . The ORG examined in detail the entries for both . It found disturbing discrepancies . In particular , it found that entries were not in sequential or chronological order ; that all the entries in the ORG custody record were in the same handwriting ; and that the number of persons recorded as detained in ORG exceeded the officially available number of cells . This gave rise , inter alia , to a strong suspicion that entries were not made contemporaneously . The oral explanations of PERSON , who was responsible for the ORG provincial gendarmerie records , were found by the ORG to be highly unsatisfactory , indicating that an entry in the register did not necessarily indicate the physical presence of a suspect and that no entries were made to reflect the movements of suspects in and out of the custody area . It concluded that the record did not constitute an accurate or comprehensive record of the persons who might have been detained over that period and the absence of PERSON name in the ORG and ORG records was not sufficient to prove that he had not been taken into custody .", "The Commission accepted the oral evidence of PERSON , who stated that while he was detained at ORG provincial gendarmerie headquarters he saw and spoke to PERSON , who was detained over a period of DATE in the same room . It also accepted his evidence that PERSON looked in a bad condition , with dried blood on his clothes , and that PERSON had told him that he had been beaten , CARDINAL of his ribs broken , his head split open and that he had been given electric shocks twice . Supporting evidence for the fact that PERSON had been detained and ill - treated was to be found in the written statement of PERSON , taken by the ORG .", "The Commission gave consideration to the written statements made by PERSON and relied on by the Government as undermining his oral testimony . It found the first statement taken from PERSON by a police officer on DATE to be a brief and imprecise denial . The statement taken by a public prosecutor on CARDINAL DATE was also brief and contained contradictory and ambiguous phrasing . It concluded that this statement was not a full and frank reflection of PERSON testimony and did not destroy the credibility of his evidence to the delegates . It accordingly found it established that PERSON was taken after his apprehension at ORG to ORG where he spent TIME CARDINAL DATE and that he was transferred to ORG provincial gendarmerie headquarters where he was last seen by PERSON on or DATE when the latter was released .", "The Commission made no findings as to the allegation made by the applicant that PERSON was taken from ORG provincial gendarmerie headquarters to ORG and from ORG to GPE gendarmerie station . These allegations were based on oral statements made to the applicant by PERSON , who did not appear before the delegates and who had not produced any written statement . While there were some supporting elements , the ORG found that the evidence failed to reach the requisite standard of proof .", "The family of PERSON were not informed of his alleged death in a clash between the ORG and the security forces on CARDINAL to DATE . Although Colonel PERSON had been requested to provide the authorities with information as to the whereabouts of PERSON , he made no official report as to the alleged finding of PERSON identity card on the body of CARDINAL of the dead terrorists at FAC . The first report as to the finding of the identity card was made by the ORG gendarmes , who had been passed information that the clash had occurred , accompanied by unspecified documents , by Colonel GPE . There were however no documents provided to the Commission relating to the identification of the body or release of the body for burial . The Commission was not prepared to find it established that PERSON was killed as alleged or that his body was amongst those found at PERSON .", "The ORG found that the applicant and his father , PERSON , made petitions and enquiries to ORG prosecutor at ORG in relation to the disappearance of PERSON . The only steps taken by the authorities were to verify whether the ORG records contained the name of PERSON and for an enquiry to be sent to the ORG public prosecutor , who examined his records .", "Following communication of the application to the ORG , further enquiries were made by the ORG and ORG public prosecutors . Statements were taken from PERSON , PERSON and the applicant . The addresses of ORG and PERSON were not discovered . ORG found that the ORG public prosecutor made enquiries from the ORG district gendarmerie as to their alleged apprehension of PERSON but that he did not inspect the original custody record . Nor was any inspection carried out by a public prosecutor of the ORG provincial gendarmerie custody records . No steps were taken to verify the information submitted by the ORG district gendarmerie that PERSON was amongst the dead terrorists at PERSON .", "In reaching his decision of lack of jurisdiction of DATE , the ORG public prosecutor had available to him the statements taken from PERSON , PERSON and the applicant and the information from the ORG gendarmerie with regard to the alleged discovery of PERSON body . He also may have had documents relating to the applicant ’s application to the ORG and copies of custody records .", "The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case . The ORG refers to the overview of domestic law derived from previous submissions in other cases , in particular the PERSON v. GPE judgment of CARDINAL DATE , Reports of Judgments and Decisions CARDINAL , pp . DATE , § § DATE , and the ORG v. GPE judgment of DATE , Reports CARDINAL-IV , pp . DATE , § § DATE .", "Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .", "CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .", "The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”", "Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :", "“ All acts or decisions of the administration are subject to judicial review ...", "…", "The administration shall be liable to make reparation for any damage caused by its own acts and measures . ”", "This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .", "LAW makes it a criminal offence :", "– to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;", "– to issue threats ( LAW ) ;", "– to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;", "– to commit unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .", "For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages awarded under LAW .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .", "NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case ." ]

[ "13", "2", "3", "5" ]

[]

[]

[ "14", "18", "3" ]

[]

[]

[ "The applicants , Mr PERSON ( “ the first applicant ” ) , Mr ORG ( “ the second applicant ” ) , Mr PERSON ( “ the third applicant ” ) , Mr PERSON ( “ the fourth applicant ” ) , Mr PERSON ( “ the fifth applicant ” ) , Mr PERSON ( “ the sixth applicant ” ) , Mr Ljubiša Janićijevic ( “ the seventh applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the ninth applicant ” ) , Mr PERSON ( “ the tenth applicant ” ) , Mr PERSON ( “ the eleventh applicant ” ) , PERSON ( “ the twelfth applicant ” ) , Mr Predrag Todić ( “ the thirteenth applicant ” ) , Mr PERSON ( “ the fourteenth applicant ” ) , Mr PERSON ( “ the fifteenth applicant ” ) , Mr PERSON ( “ the sixteenth applicant ” ) , Mr PERSON ( “ the seventeenth applicant ” ) , Mr PERSON ( “ the eighteenth applicant ” ) , Mr PERSON Đorđević ( “ the nineteenth applicant ” ) , Mr PERSON ( “ the twentieth applicant ” ) , Mr PERSON ( “ the QUANTITY - first applicant ” ) , Mr PERSON ( “ the QUANTITY - second applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr ORG ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ FAC applicant ” ) and Mr PERSON ( “ the thirtieth applicant ” ) are all NORP nationals .", "All applicants are employed as police officers with ORG of GPE ( ORG unutrašnjih poslova PERSON , hereinafter “ the NORP ” ) . They reside and work in GPE .", "The facts , as submitted by the parties , may be summarised as follows .", "On DATE and DATE , respectively , ORG adopted CARDINAL decisions whereby , inter alia , all of its employees who resided and worked in GPE were to be paid double salaries .", "On DATE the ORG issued a decision stating that the police officers in question were entitled to have their salaries increased based on a coefficient of CARDINAL or CARDINAL.CARDINAL , depending on the circumstances .", "In reality , the applicants only received the increase approved by ORG , amounting to significantly less than the envisaged doubling of their salaries .", "In DATE and DATE , therefore , they filed separate civil claims against ORG with ORG ( PERSON opštinski sud ) in GPE , seeking payment of the difference between the salary increase received and the CARDINAL granted by the Government ( the value of the seventh , thirteenth , seventeenth , DATE , CARDINAL and CARDINAL applicants ' claims , respectively , exceeded QUANTITY , whilst the claims of all other applicants were below this threshold ) . The applicants further requested payment of unspecified amounts on account of the related pension and disability insurance contributions .", "Certain applicants were successful before ORG ; others were not . However , all the applicants were unsuccessful at second instance before ORG ( Okružni sud ) in GPE ( hereinafter “ the ORG ” ) . The applicants received those decisions on the following dates :", "- the first applicant on DATE ;", "- the second and third applicants on DATE ;", "- the fourth applicant on DATE ;", "- the fifth applicant on DATE ;", "- the sixth applicant on DATE ;", "- the seventh applicant on DATE ;", "- the eighth applicant on DATE ;", "- the ninth , tenth and eleventh applicants on DATE ;", "- the twelfth applicant on DATE ;", "- the thirteenth and fourteenth applicants on DATE ;", "- the fifteenth applicant on DATE ;", "- DATE and DATE applicants on DATE ;", "- the seventeenth applicant on DATE ;", "- the eighteenth applicant on DATE ;", "- the twentieth applicant on DATE ;", "- the twenty - second applicant on DATE ;", "- the CARDINAL applicant on DATE ;", "- the twenty - fourth and CARDINAL applicants on DATE ;", "- the CARDINAL applicant on DATE ;", "- the CARDINAL applicant on DATE ;", "- the twenty - seventh and thirtieth applicants on DATE ;", "- the DATE applicant on DATE .", "Many of the applicant 's colleagues ( hereinafter “ the plaintiffs ” ) had brought separate claims concerning the same issue ; some were successful whilst others were unsuccessful in ORG .", "In its reasoning in the applicants ' cases , ORG held , inter alia , that the applicable domestic regulation was contained in the decision of ORG adopted on DATE .", "NORP However , in CARDINAL other judgments , rendered DATE and DATE , the same ORG ruled in favour of the plaintiffs , notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues . In its reasoning in these other cases , ORG held , inter alia , that the plaintiffs ' salaries had to be paid in accordance with ORG decisions of DATE and/or DATE .", "Of the CARDINAL judgments mentioned above , in CARDINAL cases the respondent lodged appeals on points of law ( revizije ) with ORG ( PERSON , see paragraphs CARDINAL and CARDINAL below ) . In the remaining CARDINAL cases , however , the respondent lodged no such appeal , apparently in the light of the statutory threshold ( see paragraph CARDINAL below ) .", "The Government provided relevant case - law adopted by ORG , in particular CARDINAL separate judgments of which CARDINAL was issued on DATE and the remaining CARDINAL between DATE and DATE . In each case , deciding upon appeals on points of law , ORG ruled against the plaintiffs , albeit with somewhat different reasoning compared to that employed by ORG . In particular , ORG held , inter alia , that the ORG 's decision of CARDINAL DATE had not been directly applicable .", "In the meantime , on DATE , ORG ( PERSON odeljenje ) of ORG held a meeting which was meant to resolve the issue of how to rule in all cases such as the applicants ' ( see paragraph CARDINAL below ) . In TIME of this meeting , it was noted inter alia that in CARDINAL cases registered in DATE , where appeals on points of law had been considered , ORG had in fact confirmed the lower courts ' rulings rendered in favour of the plaintiffs ( PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) . The meeting , however , was ultimately adjourned pending the outcome of a case which had been brought before ORG ( ORG ) concerning the abstract review of the constitutionality of the ORG 's decision adopted on DATE . On DATE ORG held that the impugned decision was unconstitutional .", "In DATE separate cases the plaintiffs thereafter lodged their appeals with ORG ( ustavne žalbe ) , but , according to the information contained in the case file , these proceedings are all still pending .", "None of the applicants lodged an appeal on points of law or attempted to obtain constitutional redress .", "The relevant provisions in this respect are set out in the PERSON and Others v. GPE judgment ( nos . CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , GPE , ORG , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL , CARDINAL/CARDINAL , GPE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , § § DATE , DATE ) .", "Article CARDINAL § CARDINAL provides , inter alia , that all parties shall be entitled to the equal protection of their rights .", "Articles CARDINAL - CARDINAL provide details as regards an appeal which may be filed against a judgment rendered at first instance ( žalba ) . Article CARDINAL § CARDINAL , in particular , provides that such an appeal must be filed within DATE .", "Article CARDINAL , however , provides that an appeal ( žalba ) in a labour dispute must be filed within DATE .", "Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL provide that parties may file an appeal on points of law ( revizija ) with ORG . They may do so within DATE following receipt of a final decision rendered at second instance , and only if the relevant legislation , procedural or substantive , has been breached by the lower courts .", "Article CARDINAL § CARDINAL provides , inter alia , that an appeal on points of law is “ not admissible ” in pecuniary disputes ( kad se tužbeni zahtev odnosi na potraživanje u novcu ) where the “ value of the part of the final judgment being contested ” does “ not exceed QUANTITY ” .", "Article CARDINAL provides that an appeal on points of law shall be admissible in labour cases which concern one 's hiring or dismissal or the “ existence ” of one 's employment ( u parnicama o sporovima o zasnivanju , postojanju i prestanku radnog odnosa )", "In accordance with Articles CARDINAL and CARDINAL - CARDINAL , inter alia , the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn and/or amend the impugned judgment or quash it and order a re - trial before the lower courts .", "Article CARDINAL provides that a case may be re - opened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .", "Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for all panels ( veća ) of the division in question ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants are Ms A. GPE , Mr P. GPE , Ms H.A. Liljeroos , Ms H.M. Liljeroos , Mr NORP Liljeroos , Ms S. PERSON , PERSON PERSON , Mr R.T.J. Nurminen and Mr R.R.K. PERSON . They are NORP nationals , born in DATE , DATE , DATE , DATE , DATE and DATE , respectively , and living in LOC in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In the DATE ’s construction work was started in order to build a road to LOC , which has no connection to the mainland . The part of the road ( the Kattilaniemi road ) which is situated on the mainland , and in the construction of which the applicants also participated , was finished at DATE .", "On DATE , ORG ( vesioikeus , vattenrätt ) of LOC entitled the applicants to build a bridge from ORG to a place called GPE on LOC as it was found to be the most advantageous place to build the road with a view to connecting with the network of public roads .", "ORG ( lääninhallitus , länsstyrelsen ) of LOC , represented by PERSON , appealed against ORG decision to ORG ( vesiylioikeus , vattenöverdomstolen ) which , on DATE , upheld ORG decision .", "On DATE , the proceedings concerning the construction of the private road to PERSON concluded and established the right to the road of those who owned property in the area in which the road was to be built , excluding the owners of such property which was used only for leisure activities and who had objected to the road plan . CARDINAL private persons as well as ORG appealed against the decision in the road construction proceedings to ORG ( maaoikeus , jorddomstolen ) , claiming , inter alia , that the road would , if built as planned , destroy conservable nature values in the area .", "ORG decided , in its decision of CARDINAL DATE , not to examine the appeals lodged by ORG and CARDINAL of the private individuals as it found that they were not parties to the road construction proceedings in question . The rest of the appeals were rejected as ORG found , inter alia , that there was an important public interest to build a connecting road from the island to the mainland . Some of the private individuals whose appeals had been rejected by ORG applied to ORG ( korkein oikeus , högsta domstolen ) for leave to appeal . ORG granted them leave to appeal on DATE . On DATE , ORG rejected the relevant appeals and upheld ORG decision .", "Meanwhile , on DATE , to prevent the enforcement of the ORG decision , ORG had issued an interim order prohibiting works in the area , for DATE , for the purpose of protecting the habitat of the white - backed woodpecker . ORG decision was signed by , inter alia , PERSON who had represented ORG in the appeal proceedings against ORG decision . The road construction work which had already started was thus discontinued .", "CARDINAL of the applicants and the administrative committee for the maintenance of forest roads in NORP appealed against the order to ORG on the grounds that an error had allegedly taken place in the hearing of the parties and that the construction of the road would not endanger the protection of the white - backed woodpecker . On DATE , ORG found that no error had taken place in the hearing of the parties , noting that trees had already been cut down . Insofar as the decision depended on the assessment of the appropriateness of the decision , it transferred the issue to ORG .", "Following the transfer , ORG ( ympäristöministeriö , miljöministeriet ) found , on DATE , that there was no reason to change the decision of ORG . The ORG ’s decision was appealed to ORG , inter alia on grounds that the Minister for Environment , PERSON , was biased as she had already participated in the decision - making before ORG in so far as the prohibition was concerned . On DATE , ORG rejected the appeal . The applicants’ request to reopen the proceedings was refused by ORG on DATE .", "As the owner of the PERSON estate had refused to sell her real estate to the ORG , ORG granted , on DATE , permission for the expropriation of the PERSON estate with a view to protecting the white - backed woodpecker even though the municipality of GPE had , in its statement of DATE , objected to the expropriation , taking the view that the prohibition against building the NORP road would render the relevant part of the municipality more and more isolated and deserted as living there would become too difficult and unsafe . According to ORG , the expropriation would violate the general sense of justice if the interests of a species of a bird were preferred to those of the inhabitants of the municipality . It was also noted in the statement that ORG had already decided to allow the road to be constructed and that a contrary decision would be surprising and dubious .", "The applicants appealed to ORG which , on DATE , dismissed the ORG appeal and upheld the expropriation . It held that the land was part of a larger area which was , due to its natural features , a suitable habitat for the white - backed woodpecker and that observations of the species had been made there . Thus the area was , with respect to the protection of the white - backed woodpecker , of such importance that it could be defined as a special protection area within the meaning of LAW , subsection CARDINAL of the DATE LAW . On DATE , the applicants asked for the annulment of this decision . The matter is pending .", "By letter dated DATE , the administrative committee of PERSON requested ORG to lift the expropriation insofar as the right to the road was concerned . By reply dated DATE , ORG stated that it was impossible to establish a right to a road in the area , as it was so small that that no measures changing the nature of the forest could be allowed without endangering the existence of the bird which had been sighted in the area since DATE .", "The applicants’ request to reopen the proceedings was refused by ORG on DATE .", "The expropriation proceedings concerning the PERSON estate were completed on DATE . The area concerned QUANTITY and was delimited so that , as a biotope , it covered the habitat of the white - backed woodpecker only . The compensation paid to ORG amounted to ORG CARDINAL,CARDINAL with costs and expenses of ORG .", "On DATE , the executors of the expropriation of the ORG estate decided , after a vote , to expropriate the right to the road attached to the estate in accordance with the Ministry decision and then to establish a new right to a road for the same area to which the earlier right to a road was attached . In his dissenting opinion , the engineer considered that a right to the road could not be established for the same area as there was an alternative .", "On DATE , ORG lodged an appeal with ORG ( acting as ORG ) , which on DATE upheld the decision of the executors . On DATE , ORG suspended the execution of the decision of ORG . On DATE ORG reversed the judgment of ORG and returned the matter to the executors stating that the right to a road could not be re - established on an area which under a decision of ORG had been expropriated . The executors were to take up the matter without delay in order to establish another route . On DATE , the applicants appealed for the annulment of ORG judgment . The matter is pending .", "Meanwhile , the inhabitants of LOC continued to live on their island without any connection to the mainland during time when there was no open water or the ice was too thin to build an ice - road from the island to the mainland . Such a period could last for DATE each DATE and DATE . In DATE , when the water areas were not frozen , boats were used , for example , for delivering the DATE mail and groceries as well as the medication needed by the elderly islanders . There was no medical care nor fire and rescue service available to the islanders . The closest shop was CARDINAL ( CARDINAL ) kilometres away .", "The applicants referred to a number of incidents as illustrating the risk to human life arising from the lack of proper connection to the mainland . A mailman was drowned in the lake when delivering the mail to LOC and a father , forced to leave the island by foot to get medicine for his sick child , was also drowned in the lake as the ice was too thin to carry him . On DATE , a local cabdriver risked his life by driving his cab to the island to fetch an islander to the hospital even though the ice was thin at the time . Allegedly , the islander in question would have died in a matter of hours if he had not been taken to hospital in time . It has also happened that a fire brigade was forced to watch from the other side of the lake when a barn was burned down by lightning as they could not reach the island with their equipment .", "On DATE a question concerning the justification of the prohibition in terms of the cost of human lives was put in the ORG by a Member of ORG , Mr PERSON . The question was answered by ORG at the time , Ms S.Hassi , on DATE . She referred to the decisions given by ORG and found that the road could and should be constructed to the island but through another estate than the PERSON estate . She also noted that the loss to the islanders would be compensated for in accordance with LAW ( lunastuslaki , inlösningslag ) . PERSON and another Member of ORG , Mr PERSON , repeated the question in ORG on DATE , requesting that the Minister for Environment would herself visit the island . The question has been left unanswered . The applicants also sent an invitation to the Minister for Environment to visit the island .", "The applicants in addition twice approached the Chancellor of ORG , who on DATE and DATE rendered decisions rejecting their complaints ." ]

[]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the applicant ’s neighbour caused a flood in the applicant ’s flat . According to the applicant , she sent a statement of claims to ORG of GPE by regular mail in DATE . She sought compensation for damage caused by her neighbour . It is unclear whether the applicant ’s statement was received by ORG .", "On DATE the applicant resubmitted her tort action against her neighbour to ORG of GPE . On DATE the proceedings were stayed pending an expert examination . They were subsequently resumed on DATE with no examination having been performed .", "From DATE to CARDINAL DATE several hearings were adjourned either because the defendant had not attended or because the judge was busy on another case .", "On DATE another expert examination was ordered . The parties refused to pay for it . The examination was not performed and on CARDINAL DATE the experts returned the case file to ORG . On DATE and DATE the court made an offer to the applicant to pay for the expert report . According to the Government , she did not reply to the offer .", "On DATE ORG resumed the proceedings .", "On DATE the hearing was adjourned because the parties had not attended . On DATE ORG refused to examine the action because the parties had again failed to appear .", "On DATE the applicant complained to ORG that she had not been properly notified of the hearing of DATE and had been unable to attend .", "On DATE ORG quashed the decision of CARDINAL DATE and ordered the proceedings to be resumed . A hearing was listed for DATE .", "From DATE to DATE several hearings were adjourned either because the defendant had not attended or had asked for an adjournment or because the judge was busy on another case .", "On DATE ORG of GPE granted the applicant ’s action in part and awarded her MONEY as compensation for damage .", "On DATE ORG upheld the judgment on appeal .", "On many occasions in DATE the applicant complained to various domestic officials , including ORG , ORG of ORG of GPE , ORG , and ORG , of the excessive length of the proceedings in her case .", "It appears that her complaints were either left unanswered or redirected to ORG of GPE ." ]

[ "13", "6" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in Ploieşti .", "NORP The applicant suffers from haemophilia A which was diagnosed at birth . Haemophilia A is a congenital hereditary disorder characterised by delayed clotting of the blood and severe bleeding following even minor injuries . It requires treatment with the specific coagulant , factor VIII .", "The applicant was working as an official in a local hospital .", "Starting in DATE , ORG and ORG ( “ the Board ” ) attached to ORG examined the applicant once a year and issued him each time with a temporary certificate stating that he suffered from a seconddegree disability .", "This certificate served as the basis for obtaining from GPE ( “ the Bureau ” ) the entitlements provided for by PERSON no . CARDINAL on special protection for disabled persons DATE which included free medical assistance , transport and telephone rental – together with tax relief under PERSON no . CARDINAL in the form of exemption of the disabled person 's salary from income tax .", "On DATE the ORG confirmed the applicant 's seconddegree disability by means of a certificate bearing the handwritten endorsement “ valid for PERSON no . CARDINAL ” . According to the information supplied by the applicant , endorsements of this kind were commonly added by ORG , since the same certificate was used to obtain the entitlements under PERSON no . CARDINAL and tax relief under PERSON no . CARDINAL .", "NORP In a letter of DATE the ORG informed the applicant that its accounting department had decided to suspend his entitlements under PERSON no . TIME , on the ground that the certificate issued on CARDINAL DATE referred only to PERSON no . CARDINAL and could therefore be used only to obtain the entitlements provided for by that law .", "NORP By letter of CARDINAL DATE ORG informed the applicant that “ in the absence of any provision to the contrary , there [ was ] no legal impediment preventing persons who [ held ] a certificate attesting to a degree of disability requiring special protection from enjoying all the entitlements and concessions for which they [ were ] eligible by law ” .", "On DATE the ORG confirmed the applicant 's seconddegree disability . The certificate it issued on that occasion was again marked “ valid for PERSON no . CARDINAL ” .", "Following a sharp deterioration in his condition owing to his lack of treatment the applicant , in a memorial lodged with ORG on DATE , challenged the suspension of his entitlements under PERSON no . TIME .", "In a reply dated DATE ORG informed the applicant that no statutory provision barred the aggregation of entitlements under LAW . CARDINAL and CARDINAL , and that persons suffering from a second - degree disability should be able to benefit from the entitlements available under both laws .", "In an administrative action brought before ORG on DATE against the ORG and ORG , the applicant requested recognition of his status as a disabled person requiring the special protection provided for by PERSON no . CARDINAL/CARDINAL and claimed compensation for the pecuniary and nonpecuniary damage caused by the suspension of his entitlements DATE which , he alleged , had resulted in a serious and rapid deterioration of his condition . He requested that ORG be ordered to pay him the sum of CARDINAL NORP lei ( ROL ) , representing the cost of the treatment he would have received free of charge had the ORG not suspended his entitlements under PERSON no . CARDINAL , and a sum of ROL CARDINAL corresponding to the value of the transport and telephone rental which he was no longer entitled to receive free of charge .", "Following a hearing held on DATE , the applicant 's lawyer requested that delivery of the judgment be adjourned to enable him to file written pleadings .", "The Court of Appeal delivered its judgment on DATE . It observed that ORG had issued the applicant with DATE certificates stating that he had a second - degree disability . The court therefore considered that the applicant had been recognised as having the status he requested during the period in question ; accordingly , it rejected the first request as unfounded .", "As to damages , the court held that it did not have jurisdiction to consider the issue and returned the case file to ORG .", "DATE the applicant received in - patient treatment for haemorrhaging in ORG in GPE .", "During the proceedings before ORG , on DATE , CARDINAL May and DATE , the applicant 's lawyer requested an adjournment to enable him to add evidence to the case file and file written pleadings .", "In a judgment of DATE ORG in its turn declined jurisdiction in favour of ORG . ORG , called upon to resolve the conflict of jurisdiction , delivered a judgment on DATE in which it held that FAC had jurisdiction . The case was re - entered in that court 's list .", "The Court of Appeal heard evidence from CARDINAL witnesses called by the applicant and ordered a medical expert report on the applicant 's health .", "The expert report was prepared by the forensic medical service of the city of Ploieşti . It noted numerous episodes of internal bleeding which had led to very severe bone deformation , immobilised joints and impaired mobility . In conclusion , the report stated that “ the discontinuation of treatment [ had ] resulted in a sudden worsening of the disease , promoting the onset of very serious complications , namely internal and external bleeding , intracranial bleeding with haematomas , paralysis , phlebitis and asphyxia ” .", "During the proceedings before ORG , on DATE , the applicant requested an adjournment to enable him to hire a new lawyer . On DATE his lawyer requested a further adjournment so that he could file written pleadings .", "In a judgment of DATE ORG , basing its findings on the certificates issued by ORG in DATE and DATE , found that , for the period in question , the applicant had been recognised as having a second - degree disability . It dismissed the applicant 's claim for damages on the ground that he “ [ had ] not dispute[d ] using a statutory remedy [ section CARDINAL of Government Ordinance no . CARDINAL of DATE , replacing PERSON no . CARDINAL ] his assignment to CARDINAL of the categories of disability ” and pointed out that he could “ dispute and request revision of his classification in a given category if it no longer corresponded to the reality ” . The court added that the applicant could only bring an action before the courts seeking to assert his rights if the competent authorities , after deciding to assign him to a different disability category , subsequently refused to award him the entitlements provided for by law . The court concluded that , in so far as the applicant “ [ had ] not furnish[ed ] proof that he now belonged to the category of persons with a more severe disability , which might have qualified him for a wider range of entitlements ” , his complaint was unfounded . It dismissed the action accordingly .", "The applicant appealed to ORG on the ground that ORG had misconstrued the subject of his action , that it had omitted to rule on his complaint concerning the suspension of his entitlements under PERSON no . CARDINAL and that the second - degree disability he had been recognised as suffering from made him eligible for the aggregate of entitlements under the CARDINAL laws .", "At a hearing held on DATE the applicant requested that examination of his appeal be adjourned on account of his state of health , which allegedly prevented him from attending the hearing . The hearing was scheduled for CARDINAL DATE and then for DATE . It took place on the latter date .", "From DATE the applicant received in - patient treatment in the emergency ward of ORG .", "In an order dated DATE ORG decided that the applicant should be granted a retirement pension on grounds of invalidity .", "On DATE the ORG found that the applicant 's condition had worsened and that he now suffered from a first - degree disability .", "In a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal and upheld ORG judgment of DATE . It considered that “ since the appellant [ had ] not dispute[d ] [ the certificate attesting to his disability ] before ORG , in accordance with the statutory provisions , ORG [ had ] correctly held that he could not claim the entitlements provided for by Ordinance no . CARDINAL/CARDINAL ” .", "Following further episodes of bleeding the applicant was again admitted to the emergency ward of ORG , where he remained from DATE and from DATE . CARDINAL May and DATE he again received in - patient treatment in ORG in GPE .", "LAW ( Law no . CARDINAL ) provides , in its relevant parts :", "“ Individuals or legal entities who consider that their rights have been infringed by an administrative act or by the unjustified refusal of an administrative authority to respond to a request concerning those rights may bring an action before the competent court seeking to have the act in question set aside , to have the alleged right recognised and to be awarded compensation for any damage sustained . ”", "“ The court shall give an urgent ruling on the action ... ”", "The relevant extracts from Law no . CARDINAL on special protection for disabled persons read as follows :", "“ Classification in one of the categories of disabled persons requiring special protection shall be based on a certificate issued by CARDINAL of the medical expert reports and occupational rehabilitation boards attached to the county hospitals ... ”", "“ Disabled persons shall have the right to :", "( a ) medical assistance and medication free of charge ... in the case of persons whose DATE income is below the gross minimum wage guaranteed by the ORG ...", "...", "( e ) free use of urban ... and inter - urban public transport ...", "...", "( f ) exemption from payment of the costs of telephone installation , transfer and rental ... ”", "The relevant provisions of Government Emergency Ordinance no . CARDINAL of DATE on special protection and access to employment for disabled persons , which replaced PERSON no . TIME , read as follows :", "“ Classification in one of the categories of disabled persons requiring special protection ... shall be based on a certificate issued by the [ county ] boards on medical expert reports and disability issues . ”", "“ ... adults suffering from a disability shall qualify for the following entitlements :", "...", "( f ) exemption from payment of the costs of telephone installation , transfer and rental ...", "( g ) free use of urban public transport ...", "( h ) free use of inter - urban public transport ...", "...", "( j ) medical assistance in accordance with the provisions of ORG and the regulations of ORG and ORG . ”", "“ The boards on medical expert reports and disability issues shall be attached [ from DATE ] to the county disabled persons ' bureaux . ”" ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , GPE . He works as a notary .", "On DATE a certain PERSON filed with ORG a request that the co - ownership of an estate be dissolved .", "The court held hearings on DATE , CARDINAL DATE , DATE , DATE , DATE and CARDINAL DATE .", "On DATE the applicant purchased a share in that estate .", "On DATE he requested the court to allow him to participate in the proceedings .", "On DATE , as a party to the proceedings , he requested the court to appoint a guardian ad litem for those co - owners whose place of residence was not known and for the heirs of a late co - owner . The applicant further raised a claim to establish the title to the disputed property and to evict CARDINAL individuals .", "On DATE the court granted the applicant leave to participate in the proceedings .", "In DATE the case was transferred to ORG .", "Hearings were held on DATE and DATE .", "On DATE the court refused to allow the former co - owners of the applicant 's share to participate in the proceedings . On DATE ORG dismissed an appeal against that decision lodged by Mr X.", "ORG held hearings on DATE , as well as on CARDINAL DATE and DATE .", "On DATE it refused certain co - owners ' request for an interim measure . They appealed and on DATE ORG quashed that decision and ordered the re - examination of the request . On CARDINAL and CARDINAL DATE ORG ordered interim measures .", "On DATE the court stayed the proceedings , considering that it was first necessary to carry on inheritance proceedings concerning the estate of a late co - owner in order to establish the identity of the heirs and their shares in the estate . The applicant and certain other co - owners appealed and on DATE ORG quashed that decision . In its decision it also ordered ORG to exclude from those proceedings the issue of the ownership title to the estate and to initiate separate proceedings in this respect . It considered that in the light of a suspicion that PERSON and certain other participants in the proceedings could not be co - owners of the estate it was necessary to establish who had the genuine ownership title to the share allegedly owned by them .", "ORG carried out that order on DATE . On DATE the court stayed the proceedings concerning the dissolution of the co - ownership until the proceedings concerning the establishment of the title to the disputed share were completed .", "On DATE the ORG declared its lack of jurisdiction over the case and transferred it to ORG .", "On DATE ORG refused the applicant 's request , lodged on DATE , to appoint a guardian ad litem . On DATE ORG quashed that decision and ordered the re - examination of the request .", "On DATE ORG , on the request of CARDINAL of the defendants , excluded the judges of ORG from participation in the proceedings concerning the establishment of ownership title . The court found , inter alia , that the applicant used to work as a judge on that circuit and was acquainted with the judges of that court .", "On DATE ORG held a hearing , at which it decided to examine the case - file of the proceedings concerning the dissolution of the co - ownership and consider whether the case dealt with by it could be joined to those proceedings .", "On DATE and DATE the court held hearings .", "On DATE it gave judgment . The court dismissed the applicant 's claim . He and other plaintiffs appealed .", "On DATE ORG quashed the judgment of ORG and remitted the case for re - examination .", "On DATE ORG gave a final judgment ." ]

[ "6" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicants were born in DATE , DATE , DATE and DATE respectively and live in LOC .", "On DATE , PERSON , the then DATE son of the first and second applicants and the brother of the third and fourth applicants , sustained a serious head injury while playing near a construction site in GPE , GPE . After the incident he was taken to ORG ( PERSON centar Vinkovci ) where cranial surgery was performed without the consent of the parents .", "On DATE a doctor on duty at FAC informed PERSON Vukovarsko - srijemska ; hereinafter : the “ police ” ) about the incident . The police interviewed the doctor and the second applicant concerning the circumstances of the incident and drafted an official note of their findings .", "NORP The police also interviewed TIME , a friend of PERSON , who was an eyewitness to the event . He described how they had been playing near a construction site in their neighbourhood when PERSON had fallen on some metal netting and a piece of metal had pierced his head .", "PERSON health deteriorated on DATE when he fell into a coma . He was then transferred to ORG bolnički centar GPE ) for further treatment .", "On DATE the police took photographs of the construction site and interviewed PERSON , an employee of the construction company , ORG s.p.o . ( “ company A ” ) , in charge of the construction site at issue .", "PERSON died in ORG on DATE .", "On DATE the applicants brought a civil action before ORG ( PERSON ) against company ORG , ORG ( PERSON financiranje stambeno - komunalnih djelatnosti ) and ORG , claiming damages for the death of their relative .", "They claimed that A. , as the construction company , and ORG , as the investor , were liable for not having secured the construction site despite being aware that people with children lived nearby . They also held ORG responsible for medical negligence in the treatment of PERSON ’s injuries .", "A hearing scheduled for DATE was adjourned because the parties informed the trial court that they could not attend the hearing .", "At the hearing held on DATE the defendants denied any responsibility for the death of PERSON . At the same hearing the applicants asked the trial court to commission a medical report concerning the circumstances of PERSON ’s treatment . On DATE they further substantiated their request and asked that the medical report be commissioned from ORG ( PERSON fakultet GPE ) .", "On DATE ORG ordered the hospital and the police to submit all the relevant documents and reports concerning the death of PERSON . Documents were submitted on DATE and DATE respectively .", "On DATE ORG found that the police had failed to submit all the relevant documents and requested them again to submit all their documents and reports . The police complied with ORG order on DATE and submitted the requested documents .", "On DATE ORG asked ORG to submit the documents concerning the medical treatment of PERSON . ORG complied with the order and submitted the documents on DATE .", "On DATE ORG commissioned a medical report from ORG concerning the circumstances of the medical treatment of PERSON .", "On DATE the applicants urged ORG to continue with the proceedings , which had been pending for DATE . They also pointed out that if the medical experts had been unable to submit their report within a reasonable time , the trial court should have commissioned a new report by other experts .", "The Medical Faculty of ORG informed ORG on DATE that they had been unable to provide the medical report because they had not had all the relevant documents and reports concerning the medical treatment of PERSON .", "At a hearing on CARDINAL DATE a representative of ORG informed the trial court that that ORG had ceased to exist and that its successor was GPE ( Grad Vinkovci ) . A representative of ORG also informed the trial court that it had now become ORG ( NORP zdravlja Vinkovci ) and ORG ( PERSON ) .", "On DATE the applicants amended their civil action by naming GPE , ORG and ORG as the defendants .", "Another hearing was held on DATE , at which the trial court ordered that a further medical documentation shall be requested from ORG . On DATE ORG complied with that request .", "At a hearing on DATE the trial court asked the parties to submit the further documents to which they had referred in their submissions .", "On DATE the representative of company A. informed ORG that on DATE insolvency proceedings had been opened in respect of that company in ORG ( Trovački sud u GPE ) .", "At a hearing on DATE the trial court informed the parties about the change in the legal status of company A.", "On DATE ORG ordered that the proceedings be stayed until the insolvency administrator of company ORG had decided whether to participate in the proceedings . The insolvency administrator informed ORG on DATE that it would participate in the proceedings .", "On DATE ORG referred the case to ORG on the grounds that the insolvency proceedings had been opened in respect of company A.", "On DATE the applicants lodged an appeal with ORG ( Županijski sud u Vukovaru ) against the decision of ORG , arguing that ORG had been competent in the matter .", "On DATE ORG dismissed the applicants’ appeal as ill - founded .", "On DATE a hearing was held before ORG at which the parties made preliminary oral submissions .", "On DATE the ORG commissioned a new medical report from ORG of ORG ( PERSON društvo za medicinska vještačenja PERSON liječničkog zbora ) concerning the medical treatment of PERSON .", "On DATE a medical expert of ORG , GPE , submitted his report to ORG . He found that there had been flaws in the Vinkovci Medical Centre ’s treatment of PERSON , which had eventually resulted in PERSON ’s death . The relevant part of the report reads :", "“ If treated properly , with the available medical equipment , the injury [ sustained by PERSON ] could have been treated with minimum , even barely noticeable , consequences .", "The decision to carry out an exploration of the skull under full endotracheal anaesthetic without a neurological preparation ( GPE ) , and without the appropriate instruments and a qualified brain surgeon , on a patient who was conscious , had no neurological deficit and whose life was not in imminent danger , was absolutely wrong , all the more so since it was done without the consent of his parents . ”", "On DATE ORG lodged an objection against the medical report , arguing that it was substantially flawed . ORG forwarded the objection to ORG for reply .", "On DATE the expert witness , GPE , submitted an additional report to ORG , reiterating all his previous findings .", "At a hearing on DATE the trial court ordered the applicants to specify their civil action given the fact that insolvency proceedings had been opened in respect of company A. The applicants complied with this order and submitted their specified civil action on DATE .", "A hearing scheduled for DATE was adjourned because the defendants failed to appear .", "On DATE ORG , acting in the insolvency proceedings concerning company A. , terminated the proceedings and ordered that company A. be deleted from the register of companies .", "At a hearing on CARDINAL DATE the applicants were again requested to specify their civil action and to provide evidence as to the legal connection between the defendants against which they had initially lodged their civil action and the defendants indicated in their specified civil action of DATE .", "On DATE the applicants submitted an amended civil action to ORG .", "At a hearing on DATE the parties made further oral submissions and the hearing was adjourned .", "On DATE ORG terminated the proceedings against company A. on the ground that it had ceased to exist . The court also found that it had no competence in the matter and ordered that the proceedings against GPE , ORG and ORG be referred to ORG .", "On DATE a hearing was held before ORG at which the parties made further oral submissions .", "On DATE ORG asked ORG to commission a further medical report from another expert witness , arguing that the previous medical report had numerous flaws .", "At a hearing on DATE the ORG representative asked the trial court to allow her additional time to submit her reply to the objections raised by the defendants . Her request was granted and she submitted her observations on DATE .", "On DATE another hearing was held at which the trial court heard oral evidence from the first and second applicants .", "On DATE the judge conducting the proceedings inspected the scene of the accident .", "On DATE the applicants urged ORG to decide on their civil action , arguing that all the relevant facts had been sufficiently established .", "At a hearing on DATE the trial court commissioned another medical report from ORG on the grounds that the defendants had a number of objections concerning the report of ORG .", "On DATE CARDINAL medical experts of ORG , DATE and ORG , submitted their medical report to ORG . They found that there had been no flaws in the medical treatment of PERSON in FAC and that the further health complications could not be attributed to the doctors .", "The applicants lodged an objection to the findings of the medical experts on DATE . They argued that the CARDINAL medical expert reports , the first drafted by GPE and the second by TIME and ORG , were contradictory and asked that the experts be confronted to clarify and adjust their findings .", "At a hearing on DATE ORG dismissed the ORG request and terminated the proceedings on the grounds that all the relevant facts had been sufficiently established .", "On DATE ORG adopted a judgment dismissing the applicants’ civil action . In respect of the applicants’ action against GPE , the court noted :", "“ Under section CARDINAL of LAW the investor and the constructor have joint liability for all damages to a third party in connection with the construction .", "...", "The person who is indicated as the investor in the construction contract has joint liability with the constructor for any damages in connection with the construction ( [ ORG judgment ] Vs NORP of CARDINAL DATE , PSP-CARDINAL/CARDINAL ) .", "In the case at issue , regard being had to the contract of CARDINAL DATE , section CARDINAL of LAW is inapplicable in respect of the second defendant – the ORG , now GPE DATE since the second defendant was neither the investor nor the constructor on the construction site at issue . It is undisputed that the second defendant transferred , for a sum of money , the construction to the first - defendant A. and that therefore PERSON was the constructor and the investor .", "Moreover , the said contract obliged company A. to ensure that the construction was carried out according to the relevant technical requirements necessary for this type of work . If the construction site was not properly secured ( and this court , based on the evidence from the case file , considers that it was not ) and if there were flaws in the organisation of the work ( security ) which had caused the injury of PERSON , then the sole responsibility would be on A. as the investor and the constructor .", "However , during the course of these proceedings , insolvency proceedings were opened in respect of the first defendant , company A. , and this court had no competence to rule on its liability ... ”", "As to the applicants’ action against ORG and ORG , ORG held that the medical expert report drafted by TIME and ORG had revealed that all the measures taken by the doctors were appropriate and that they could not be held responsible for PERSON ’s death , and therefore the hospital could not be held responsible either . As to the inconsistencies between this medical report and the CARDINAL drafted by the expert GPE , the court noted :", "“ Since the defendants submitted a number of objections to the report drafted by expert GPE from GPE , and since that expert failed to provide a detailed reply to those objections during the proceedings before ORG , this court considered that another medical report should be commissioned from ORG .", "The medical experts from that institution , TIME , a specialist in brain - surgery and ORG , a specialist in forensic medicine , drafted an objective medical report , in which they sufficiently substantiated their findings concerning the medical treatment of PERSON . Therefore this court accepts their report . ”", "On DATE the applicants lodged an appeal with ORG ( Županijski sud u Vukovaru ) against the firstinstance judgment of ORG , arguing that it had a number of substantive and procedural flaws . They pointed out in particular that ORG had failed to address all the obvious inconsistencies between the CARDINAL medical reports and sought an explanation .", "On DATE the applicants lodged a complaint about the length of the proceedings before ORG , arguing that the proceedings had been excessively long .", "On DATE ORG dismissed the applicants’ appeal and upheld the first - instance judgment in respect of ORG and ORG . It quashed the first - instance judgment and ordered a retrial in respect of GPE . ORG found that the first - instance court had to establish whether company A. or ORG was the owner of the construction site at the time of the accident . ORG considered that the first - instance court had sufficiently substantiated its decision in respect of the applicants’ complaint concerning the expert reports .", "On DATE the applicants lodged an appeal on points of law with ORG ( PERSON ) against the part of ORG judgment concerning ORG and ORG . They argued that the lower courts’ judgments had been based on contradictory medical reports and that the lower courts had failed to address their complaints concerning those inconsistencies .", "On DATE ORG dismissed the first and second applicants’ appeal on points of law as ill - founded , endorsing the reasoning of the lower courts . It declared the third and fourth ORG appeal on points of law inadmissible ratione valoris .", "On DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the judgment of ORG . The applicants contended that their individual rights and the rule of law had been violated by the lengthy and unfair proceedings before the lower courts in which CARDINAL contradictory medical expert reports concerning the death of their child had not been confronted and clarified , and no explanation for that had been given by the lower courts .", "On DATE a hearing was held before ORG in the retrial concerning the applicants’ civil action against GPE .", "Another hearing was held on DATE . The trial court heard evidence from the parties and their oral submissions , and concluded the hearing .", "On DATE ORG dismissed the applicants’ civil action against GPE on the ground that , pursuant to a contract dated DATE between company ORG and ORG , ownership of the construction site had been formally transferred to company A. on DATE , before the accident had occurred . The court therefore noted :", "“ Since for the event at issue , in the view of this court , a third person was responsible , company PERSON , and not the defendant GPE , this court dismisses the civil action under LAW as ill - founded . ”", "On DATE the applicants lodged an appeal with ORG , arguing that there had been a number of procedural and substantive flaws in the retrial before ORG .", "On DATE ORG dismissed the ORG appeal as ill - founded and upheld the judgment of ORG .", "The applicants lodged an appeal on points of law with ORG against the judgment of ORG , requesting that the lower courts’ judgments be quashed .", "On DATE ORG dismissed the first and second applicants’ appeal on points of law as ill - founded and declared the third and fourth ORG appeal on points of law inadmissible ratione valoris .", "DATE . On DATE ORG upheld a lengthofproceedings complaint lodged by the applicants on DATE . It found the length of the civil proceedings excessive and awarded the first and second applicants jointly CARDINAL NORP kunas ( HRK ) in damages .", "On DATE ORG issued a separate decision in respect of the costs of the proceedings , ordering the applicants to pay HRK CARDINAL,CARDINAL.CARDINAL to ORG .", "On DATE the applicants lodged an appeal with ORG against ORG decision .", "On DATE the applicants lodged a constitutional complaint with ORG against ORG judgment of DATE . The applicants argued , inter alia , that the lower courts had minimised any responsibility of those involved in the death of their child . In their view , that had violated their human rights and breached the relevant domestic law .", "On DATE ORG dismissed the first and second applicants’ constitutional complaint of DATE as ill - founded and declared the third and fourth ORG complaint inadmissible as it had been lodged out of time . They had had no right to lodge an appeal on points of law and thus the time for lodging a constitutional complaint had started to run from the date of the ORG decision .", "On DATE ORG dismissed the applicants’ appeal against the decision of ORG concerning the costs of the proceedings , holding that all the relevant facts regarding the costs had been correctly established .", "On DATE ORG dismissed the first and second applicants’ constitutional complaint of CARDINAL DATE as illfounded and declared the third and fourth ORG complaint inadmissible as it had been lodged out of time . The court reiterated its previous arguments .", "On DATE the applicants lodged a constitutional complaint with ORG against ORG decision of CARDINAL DATE dismissing their appeal concerning the costs of the proceedings .", "DATE . On DATE ORG declared the applicants’ constitutional complaint inadmissible ratione materiae , on the grounds that the decision on the costs of the proceedings had not represented an individual act against which a constitutional complaint could be lodged .", "On DATE the ORG found that it had omitted to include the third and fourth applicants’ length - of - proceedings complaint in its decision of CARDINAL DATE . Therefore , finding the length of the civil proceedings excessive , it awarded the third and fourth applicants jointly HRK CARDINAL in damages .", "On an unspecified date in DATE the applicants lodged an appeal with ORG against the above - mentioned decision , arguing that the amount awarded was insufficient , and on DATE ORG dismissed their appeal as ill - founded .", "The LAW of GPE ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE ) in DATE , under LAW , Part DATE Personal and Political Rights and Freedoms , provides :", "“ Every human being has the right to life .", "... ”", "The relevant part of section CARDINAL of LAW ( Ustavni zakon o FAC PERSON , ORG nos . CARDINAL/CARDINAL , CARDINAL , DATE ) reads :", "“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a decision of a ORG body , a body of local and regional selfgovernment , or a legal person with public authority concerning his or her rights and obligations , or about a suspicion or an accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : a constitutional right ) ...", "NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , the constitutional complaint may be lodged only after that remedy has been exhausted .", "NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law is allowed , remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given . ”", "The relevant parts of LAW ( NORP zakon PERSON , ORG nos . CARDINAL , CARDINAL/CARDINAL ) provide :", "“ ( CARDINAL ) Anyone who , in the design , supervision or construction of a building or in the execution of construction work , by acting contrary to regulations or generally recognised professional standards , endangers people ’s lives or property of considerable value shall be punished by a fine or by imprisonment for a period of DATE .", "( CARDINAL ) NORP If the offence referred to in paragraphs CARDINAL and CARDINAL of this Article was CARDINAL of negligence , the perteptrator shall be punished by imprisonment for a period of DATE . ”", "“ ...", "( CARDINAL ) A person responsible for a mine , factory , workshop , or another place where work is carried out who does not install safety equipment , or does not maintain it in working condition , or fails to make it available for use if needed , or fails to act in accordance with the regulations on safety measures at work , thereby endangering the life and limb of people or property of considerable value , shall be punished by imprisonment for a period of DATE .", "( CARDINAL ) Anyone who commits the criminal offence referred to in paragraphs ... and CARDINAL of this Article by negligence shall be punished by imprisonment for a period not exceeding three years .", "... ”", "“ ...", "( CARDINAL ) NORP If the death of one or more persons has been caused as a result of the criminal offence referred to in Article ... CARDINAL , paragraph CARDINAL , and LAW , paragraphs CARDINAL and CARDINAL , of this Code , the perpetrator shall be punished by imprisonment for a period of DATE .", "... ”", "“ ( CARDINAL ) A doctor who , in rendering medical services , applies an obviously inadequate remedy or method of treatment , or fails to apply relevant hygienic measures , or in general acts carelessly , thus causing the deterioration of an illness or the impairment of a person ’s health , shall be punished by imprisonment for a period of DATE .", "...", "( CARDINAL ) If the offence refered to in DATE and QUANTITY of this Article was CARDINAL of negligence , the perpetrator shall be punished by a fine or by imprisonment for a period of DATE . ”", "“ ...", "( CARDINAL ) NORP If the death of one or more persons has been caused as a result of the criminal offence referred to in ... Article CARDINAL , paragraphs CARDINAL and CARDINAL ... of this LAW , , the perpetrator shall be punished by imprisonment for a period of DATE", "... ”", "The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provided :", "“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...", "( CARDINAL ) In respect of criminal offences subject to public prosecution , the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences subject to private prosecution , the qualified prosecutor shall be a private prosecutor .", "( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .", "... “", "The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG , ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) provided :", "“ ( CARDINAL ) For any physical pain or mental suffering concerning the ... death of a close person ... the court shall , if appropriate under the circumstances of a given case , and particular if the intensity of the pain or fear and their duration so require , award nonpecuniary damages ... ”", "“ ( CARDINAL ) In the event of the death of a person entitled to damages , the court can award appropriate non - pecuniary damages to the members of his or her immediate family ( spouse , child , or parent ) .", "( CARDINAL ) The same damages can also be awarded to the person ’s brothers and sisters if sufficient family ties existed between them .", "... ”", "The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) provided :", "“ ( CARDINAL ) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next level of jurisdiction .", "( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .", "( CARDINAL ) The proceedings for deciding on a request under sub - section ( CARDINAL ) of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .", "( CARDINAL ) If the court referred to in LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending shall decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time .", "( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE on which the party ’s request for payment is lodged .", "( CARDINAL ) An appeal , to be lodged with ORG within DATE , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against a ORG decision , but a constitutional complaint may be lodged . ”" ]

[ "2" ]

[]

[]

[]

[]

[]

[ "The applicant was born in DATE . She was retired and living in GPE before her death on DATE .", "On DATE the applicant , aged DATE at the time , was attacked , bitten and knocked to the ground by a pack of around CARDINAL stray dogs in front of her home in the GPE neighbourhood , a residential area in GPE . As a result of DATE , the applicant suffered a head injury and fractured her left thigh bone which required CARDINAL days’ hospitalisation in ORG in GPE . After being discharged from hospital she was prescribed medical treatment which proved to be too expensive for her .", "Following the incident , the applicant started suffering from amnesia and shoulder and thigh pains and had difficulty walking . In addition , she lived in a constant state of anxiety and never left the house for fear of another attack . By DATE she had become totally immobile .", "At the time of the incident the applicant and her husband were retired and their entire DATE income amounted to the equivalent in NORP lei ( ROL ) of QUANTITY . They claim that this amount was wholly insufficient for her medical treatment , and that they had to live at subsistence level . As a result , the applicant had lost weight .", "The applicant ’s state of health continued deteriorating with the result that DATE after the incident , on DATE , she was declared disabled by a medical panel of ORG and was offered financial aid and free access to medical assistance and medicines .", "On DATE the applicant , represented by her husband , filed a civil action with ORG ( PERSON CARDINAL ) requesting damages of ROL CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) under the provisions of LAW on civil liability for torts , and claiming that , as a result of the attack , she had become disabled . The applicant filed the action against ORG because , according to the words embossed on the stamp used on a letter from ORG ( PERSON ) , the latter was a body under the authority of ORG .", "At the first hearing the court noted that the applicant had not paid the statutory court fee and ordered the payment of ORG ) . Being unable to pay this sum , which amounted to her entire family income for DATE , the applicant paid MONEY ( EUR CARDINAL ) , which she borrowed from various acquaintances .", "By a judgment of DATE the court declared the applicant ’s civil action invalid for non - payment of the full court fee .", "On DATE ORG ( ORG ) allowed an appeal by the applicant against the judgment of DATE . ORG held that the first - instance court should have decided the case within the limits of the court fee paid and that in any event , the applicant was exempted by law from paying a court fee for this type of action . The court further held that the amount already paid should have been treated as a deposit , to be returned at the end of the proceedings . With respect to the merits of the case , the court held that the ORG , a public body under the authority of ORG , had indeed not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity , and had thus violated the provisions of ORG decision no . CARDINAL . According to that decision , the ORG had a duty to capture , control and sterilise all stray dogs in order to prevent any danger they may pose to the life , health and physical integrity of the population . The court further held that the attack had endangered the applicant ’s life and health , causing her physical and psychological suffering and depriving her of a normal life because she was so traumatised that she did not dare leave her apartment for fear of another attack .", "Lastly , ORG ordered ORG to pay the applicant non - pecuniary damages , within the limits of the deposit paid , namely , ROL CARDINAL,CARDINAL,CARDINAL ( approximately LAW ) , which was PERCENT of the damages claimed by the applicant .", "The Bucharest City Hall lodged an appeal on points of law ( recurs ) against the judgment of DATE , claiming that it did not have legal capacity as defendant because the ORG was placed under the authority of ORG , and not ORG .", "By a final judgment of DATE , ORG allowed the appeal on points of law and dismissed the applicant ’s action on the grounds that it had been lodged against a party who did not have legal capacity as defendant . The court found that the ORG had been created by decision no . CARDINAL of ORG and that therefore the latter institution was the one against which the applicant should have brought her court action .", "On DATE the applicant , represented by her husband , filed a civil action with the GPE ORG requesting damages of ROL CARDINAL ( ORG CARDINAL ) from the ORG and ORG . The applicant did not pay the court fee .", "On DATE ORG dismissed the action , holding that ORG did not have legal standing as defendant . With regard to the ORG , the court found that on DATE ORG had adopted decision no . CARDINAL by which the ORG was closed down and the control of stray dogs was transferred to the mayor ’s offices of the CARDINAL GPE districts .", "By a final judgment of CARDINAL DATE , ORG dismissed an appeal on points of law lodged by the applicant and upheld the judgment of the first - instance court .", "NORP Under LAW of ORG of DATE ( Law no . DATE ) , local self - government was conferred on the local councils as legislative authorities and the mayor ’s offices as executive authorities .", "That Act was replaced on DATE by a new LAW ( Law no . CARDINAL/CARDINAL ) . LAW of that LAW provides :", "“ The local public administration authorities which ensure local self - government in municipalities and towns are the municipal authorities and the local town councils as legislative authorities , and the ORG offices as executive authorities . ”", "Section CARDINAL of Law no . CARDINAL of DATE provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled , inter alia , to “ organise the capture and destruction of stray dogs ” .", "Section CARDINAL of Law no . PERSON was amended on DATE to provide that the local authorities were in charge of “ organising the capture of stray dogs and employing , for this purpose , specific techniques authorised by international veterinary norms ” .", "On DATE Emergency Decree no.CARDINAL/CARDINAL on the stray dogs management programme entered into force . Its relevant provisions provide :", "“ CARDINAL . The local councils must create , within DATE from the entry into force of this decree , specialised services in order to manage the stray dogs situation .", "[ ... ]", "Stray dogs shall be captured and transported to the shelters of specialised services set up for [ this purpose ] , where they will be kept for DATE [ ... ] .", "( CARDINAL ) Following an examination by the veterinary doctor , any stray dogs that are aggressive or suffer from chronic or incurable illnesses shall be euthanised immediately [ ... ] .", "[ ... ] .", "( CARDINAL ) Dogs which have not been claimed or adopted after the expiry of the DATE time - limit referred to in DATE above shall be euthanised .", "[ ... ] . ”", "", "Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL on the protection of animals , which entered into force on DATE , provided that the rules governing stray dogs on the territory of GPE would be adopted by means of a specific law .", "On DATE Law no . CARDINAL/CARDINAL , amending Law no . CARDINAL , entered into force . It forbade , inter alia , the euthanasia of stray dogs .", "In DATE a draft PERSON on stray dogs was put on the agenda of ORG . The draft , which provided , inter alia , for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population , was rejected by the ORG on CARDINAL DATE .", "It is currently pending before ORG , without any date set for its discussion so far , according to the web page of ORG .", "Article CARDINAL of Decision no . CARDINAL of DATE of ORG on the breeding , maintenance and circulation of animals in GPE provides as follows :", "“ With effect from the date of the present decision , ORG shall be renamed ORG , a public body with legal status functioning under the authority of ORG and staffed by CARDINAL employees . ”", "Annex no.CARDINAL , LAW , of Decision no . CARDINAL of DATE of ORG on the breeding , maintenance and circulation of animals in GPE provides , in its relevant parts , as follows :", "“ a ) The service provider within ORG has a duty to capture stray dogs on the basis of written complaints received from private or legal persons .", "...", "c ) The captured animals shall be sterilised , vaccinated , disinfested and identified in an integrated database , with the exception of those that are to be euthanised .", "d ) Dogs shall be returned to the area in question upon request by the community ( private or legal persons ) ; these dogs shall have the protected status of community dogs ( câini comunitari ) .", "e ) Responsibility for community dogs shall be assumed by the community requesting the ORG return . ”", "Article CARDINAL of Decision no . CARDINAL of DATE , issued by ORG regarding the programme for the sterilisation of stray dogs in GPE , provides :", "“ Bearing in mind that ORG is placed under the authority of ORG , the analysis , supervision and monitoring of compliance with the programme for the sterilisation of stray dogs in GPE shall henceforth be entrusted to the commission created for this purpose by ORG .... ”", "Article CARDINAL of Decision no . CARDINAL of DATE of ORG on the improvement of the ORG ’s activities provides :", "“ ORG shall cease its activity with effect from DATE .", "From that date onwards , the organisation , control and monitoring of animals shall be undertaken by the mayor ’s offices of GPE districts nos . CARDINAL to CARDINAL , each within its own area of authority . ”", "LAW no . CARDINAL of DATE of ORG on the functioning of the ORG provides as follows :", "“ With effect from DATE , ORG , as a legal person having the aforesaid purpose , shall be placed under the authority of ORG . ”", "Article CARDINAL of LAW , ratified by GPE on DATE ( ORG GPE , CARDINAL DATE ) , provides :", "“ When a ORG considers that the numbers of stray animals present it with a problem , it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain , suffering or distress .", "a Such measures shall include the requirements that :", "i if such animals are to be captured , this is done with the minimum of physical and mental suffering appropriate to the animal ;", "ii whether captured animals are kept or killed , this is done in accordance with the principles laid down in this Convention ;", "b Parties undertake to consider :", "i providing for dogs and cats to be permanently identified by some appropriate means which causes little or no enduring pain , suffering or distress , such as tattooing as well as recording the numbers in a register together with the names and addresses of their owners ;", "ii reducing the unplanned breeding of dogs and cats by promoting the neutering of these animals ;", "iii encouraging the finder of a stray dog or cat to report it to the competent authority . ”", "Since DATE the NORP and foreign printed , on - line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued : attacks by stray dogs resulting in serious injuries to many people or even death in some cases ; huge indignation caused in GPE and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs ; organisation of donation campaigns in favour of the sterilisation of stray dogs , and so on .", "By DATE , the population of stray dogs in the city of GPE alone numbered CARDINAL .", "In DATE the mayor of GPE decided to have recourse to euthanasia , in the light of statistics for the city of GPE indicating that the population of stray dogs had doubled DATE ; that in DATE CARDINAL persons had received medical care following attacks by stray dogs ; that from DATE CARDINAL persons had been bitten by stray dogs ; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people . The international media widely reported on the mayor ’s attempt to tackle this issue , as well as on the other solutions envisaged by candidates in local elections throughout the country , and on the criticism of euthanasia measures by certain international public figures , such as the actress PERSON , who in DATE had donated MONEY to GPE for the purpose of sterilising stray dogs instead of killing them .", "The euthanasia campaign in GPE was stopped in DATE , after CARDINAL dogs had been euthanised .", "In DATE the media reported that the population of stray dogs had again risen alarmingly , and that CARDINAL complaints of dog attacks were being registered DATE by the animal control service in GPE .", "The issue of the situation of stray dogs in GPE , as a public health issue , and the proposed ways of tackling it by legislative measures , was reportedly raised by various NORP politicians with ORG bodies .", "Specific incidents were also widely and regularly covered by the media from DATE . Thus , national newspapers such as GPE , GPE and PERSON reported on their internet pages the death of a CARDINAL - year - old NORP businessman after being bitten by a stray dog in the centre of GPE and the death of a DATE boy and DATE schizophrenic , both bitten by stray dogs in GPE . Several news agencies , such as GPE and ORG , and most newspapers reported on the death in similar circumstances of a DATE girl and of CARDINAL other elderly persons in various major cities throughout GPE . In DATE , an elderly woman was bitten to death by stray dogs in the centre of GPE .", "According to the news agency ORG , the number of persons bitten by stray dogs in GPE has kept on increasing DATE ; for instance , it is reported that DATE and DATE , CARDINAL persons were bitten by stray dogs in GPE alone .", "The Government have not submitted any official statistics or reports on the issue of stray dogs in GPE .", "On DATE , the advisory body to the prefect , ORG , met and discussed , inter alia , the issue of stray dogs on the streets of GPE . In a statement published on the website of ORG following this meeting , the prefect stated that the problem of stray dogs was not yet solved and mentioned that :", "“ ... although they have been sterilised and have an identification microchip , they can still bite and therefore pose a threat to our health , our children ’s health and to visitors to GPE . ”", "The Prefect of GPE further stated that the data received from ORG of GPE were worrying and showed that a total of CARDINAL persons had been bitten by stray dogs in GPE during DATE , of which CARDINAL were children . He also quoted a report by ORG , according to which PERCENT of the dogs collected by that authority from the streets of GPE in DATE were infested with leptospirosis , an infectious disease transmissible to humans and which can cause meningitis , liver damage and renal failure .", "On DATE , in a press release published on the website of ORG , the same prefect stated that there were CARDINAL stray dogs in GPE and that CARDINAL people were bitten DATE .", "NORP In an interview of DATE the prefect of GPE indicated that , according to the latest statistics , the number of stray dogs in the streets of GPE was DATE , according to the NGOs , and CARDINAL , according to the local administration , that in DATE around CARDINAL , CARDINAL persons had been bitten in GPE by stray dogs , that in DATE the number of persons bitten by stray dogs was CARDINAL , and the costs for the treatment of these persons was QUANTITY per year . The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances ." ]

[ "6", "8" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The applicant , PERSON , has both NORP and NORP nationality . He was born in DATE and is living in GPE , the GPE . He is represented before the ORG by Mr GPE , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "In DATE the applicant , when living in GPE , entered into a traditional / religious marriage ( i.e. a non - civil marriage ) with a NORP woman . Out of this relationship twins were born in DATE , PERSON and GPE PERSON . In DATE the relationship between the applicant and his partner ended . The applicant submits that their mother did not wish to continue to take care of the twins and that he has since taken care of them . He has not been in contact with the mother since and her whereabouts are unknown to him .", "In DATE the applicant entered the GPE for the first time . On DATE he was expelled from the GPE on the grounds that he was staying in the country illegally .", "On DATE the applicant married Ms. PERSON , a NORP national . The wedding took place in GPE and the couple lived there for a short period together with the applicant ’s children . At DATE the applicant ’s wife decided to move back to the GPE . The applicant followed her and entered the GPE on DATE .", "On DATE the applicant obtained a residence permit to stay with his wife . CARDINAL child was born to the applicant and Ms. PERSON . Their marriage lasted until DATE , when it was dissolved . On CARDINAL May CARDINAL the applicant obtained NORP nationality .", "On DATE the applicant married Ms. PERSON . They were divorced on DATE .", "In DATE the applicant entered into a traditional / religious marriage with Ms. PERSON of NORP nationality . Ms. PERSON has since obtained NORP nationality . On DATE they concluded a cohabitation contract ( samenlevingscontract ) .", "The applicant submits that his CARDINAL former partners , Ms. PERSON and Ms. PERSON , did not want to have his children brought into the family and refused to take care of their upbringing , whereas Ms. PERSON had no objection to taking care of them and loves them as if they were her own . The applicant further submits that he was unable to let the children come to the GPE earlier as this would have been refused on the grounds of his lack of sufficient means of subsistence as required under NORP law .", "Upon the applicant ’s departure from GPE , his CARDINAL children were initially , and temporarily , housed with a friend of the applicant ’s in GPE . After DATE the children could no longer be taken care of by that friend and had to move to the house of another friend - a Mr Aboya - who , after having started a family of his own , no longer wanted to take care of the applicant ’s children .", "The applicant submits that his friends merely provided temporary accommodation for his children and were not effectively exercising parental authority over them . He took parental decisions , and he also paid all his children ’s living expenses . From DATE he has been visiting his children CARDINAL times per year , being employed by an airline company enabling him to travel at cheaper rates .", "The relation between the applicant and PERSON worsened when he discovered that in the latter ’s family , funds , which he had sent for his children , were used for other purposes . Thus , money intended to cover school fees was allegedly appropriated by PERSON , as a result of which the children were unable to go to school in GPE .", "In DATE the then DATE twins travelled to the GPE on a tourist visa . They have been living with the applicant and Ms. PERSON ever since . On DATE the applicant applied for a residence permit ( vergunning tot verblijf ) for his children .", "On DATE the ORG Secretary of ORG ( ORG ) rejected the request , finding that the conditions under which family reunification could be allowed had not been fulfilled . Thus , no evidence had been produced either as to the existence of family ties prior to the applicant ’s residence in the GPE , or of contacts between the father and the children having been maintained . Neither was there any evidence that the applicant had supported his children financially . The ORG Secretary noted , inter alia , that the applicant , since his arrival in the GPE , had formed a new family twice . The situation in GPE was not found to be of such a nature that the children could not return there , and neither had they become integrated in the GPE to such an extent that a return to GPE could not be expected of them .", "On DATE the applicant filed an objection ( bezwaar ) with the ORG Secretary against his decision . On DATE the ORG Secretary rejected the objection , finding that the family ties between father and children had been broken in view of the fact that the applicant ’s leaving the twins in the care of friends for DATE could not be considered to have been a temporary measure . The ORG Secretary concluded that even if the situation in GPE was less favourable for the children than the one in the GPE , they should nevertheless be presumed capable of fending for themselves without requiring intensive supervision and , if necessary , with financial support from the GPE .", "On DATE the applicant lodged an appeal with ORG ( ORG ) sitting in GPE . He argued that the interpretation given by the domestic authorities of “ family ” was not in line with LAW and the case - law of the Court . He further emphasised the difficulties which his children would face if returned to GPE , with no adequate accommodation or care , whereas he was capable of taking care of them in the GPE .", "On DATE a person responsible for the children at school reported that they were suffering emotional problems as a result of their experiences in GPE and that especially PERSON would benefit from a social rehabilitation programme .", "On DATE a hearing took place before ORG during which it appeared that , contrary to earlier statements by the applicant , the children had stayed with their grandmother in GPE for DATE and that regular contacts also existed between the children and their mother .", "ORG rejected the applicant ’s appeal on DATE . It held that the burden of proof as to the continued existence of family ties lay with the applicant and that he had failed to produce sufficient evidence of such family ties . In addition , no evidence confirming the applicant ’s financial support or the actual exercise of parental authority over the children had been produced .", "In respect of LAW found that the current level of family life between the applicant and his children had been created at a time when the children were not allowed to be in the GPE . Therefore , the decision to refuse them residence was not aimed at depriving them of a previously granted right to family reunification . ORG concluded that LAW did not impose a positive obligation on the ORG to respect an alien ’s choice to exercise his family life in the GPE . It was further held that sufficient facilities for the care of the children existed in GPE .", "On DATE temporary guardianship ( voorlopige voogdij ) of the applicant ’s daughter GPE was attributed by the ORG Judge ( kinderrechter ) of PERSON to a child care organisation , on the grounds that the applicant was not properly fulfilling his parental duties .", "On DATE ORG ( PERSON ) filed a request with ORG ( kantongerecht ) of PERSON for the applicant nevertheless to be awarded parental authority ( ouderlijk gezag ) over his daughter GPE .", "On DATE ORG judge awarded the applicant parental authority over his daughter GPE and issued a supervision order ( ondertoezichtstelling ) whereby a child care organisation was charged with providing the applicant and his daughter the necessary support .", "On DATE ORG ( GPE ) of GPE confiscated the children ’s passports and ordered them to leave the country .", "LAW ( Vreemdelingenwet ) provides that a provisional residence visa ( machtiging tot voorlopig verblijf ) is required for an alien who wishes remain in the GPE for a period of DATE .", "The policy for admission for family reunification purposes is laid down in LAW of FAC ( Vreemdelingencirculaire ) . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted to a parent of NORP nationality with minor children , when the children factually belong to his / her family and family ties with one of the parents already existed abroad . Family ties are considered to have definitely ceased to exist in case of long - term integration of the child into another family while the parent(s ) no longer exercise parental authority and no longer provide for the cost of upbringing and care of the child ." ]

[]

[]

[]

[]

[]

[]