Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

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 , a barrister at ORG 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 .

The applicant qualified as a solicitor on DATE . He joined the firm ORG ( “ ORG ” ) in DATE . At that time ORG was a limited liability partnership with CARDINAL members , namely ORG , the managing partner , and a private company called ORG ( “ WBLTL ” ) .

On DATE the applicant became a salaried partner of ORG and a director of ORG .

After he became a salaried partner of ORG and a director of ORG the applicant became aware that ORG was defrauding clients and reported him to ORG ( “ SRA ” ) . PERSON resigned from ORG and ORG in DATE and was later struck off the roll of solicitors .

Following PERSON ’s resignation , the applicant continued to practice through ORG . As CARDINAL years’ post - qualification experience was required before a solicitor could supervise a practice alone , another solicitor , ORG , became a member of ORG and a director of ORG .

NORP WBL remained in financial difficulty and was purportedly closed on DATE . On DATE WBLTL , which was already authorised by the ORG to trade as a solicitor ’s practice , was renamed PERSON ( “ CGL ” ) . Thereafter the applicant and PERSON practised through ORG , taking some of the client files of ORG with them .

On DATE ORG was placed into administration by CARDINAL of its creditors .

On DATE the ORG wrote to the applicant reminding him that he and PW were responsible for the files , documents , and client money of ORG . In that letter it stated that it was satisfied , in light of assurances previously given by the applicant , that he and ORG had attended to the closure of ORG correctly , but warned that the matter could be reinvestigated in future .

On DATE resigned from ORG as the applicant , having achieved CARDINAL PERSON post qualification experience , was qualified to supervise the practice alone .

On DATE the ORG informed the applicant that information received from ORG ’s administrators suggested that the closure of the firm had not been dealt with in accordance with its regulatory requirements .

On DATE and DATE members of the ORG ’s ORG visited the offices of ORG to assess that firm ’s compliance with the Solicitors’ Account Rules ( “ the Rules ” ) , LAW ( “ the LAW ” ) and other issued codes and guidance . The resulting report dated DATE was sent to the applicant . It identified a number of breaches and requested confirmation that these would be rectified .

On DATE the ORG ’s ORG commenced an investigation into ORG . On DATE a ORG ( “ the Report ” ) concluded , inter alia , that ORG appeared to be the successor practice to ORG ; that the administrators of ORG had complained that the applicant had not been helpful in effecting the administration of the firm ; that the administrators had received a number of enquiries and complaints from former clients of ORG ; and that the client account of ORG appeared to have a shortfall of CARDINAL .

The ORG formed the basis of a case - note submitted to the ORG ’s ORG . The case - note identified a number of breaches of the Rules and the LAW in respect of ORG and recommended that the ORG exercise its powers of intervention in respect of ORG and any other firm or recognised body of which the applicant or PW were members , directors , managers or owners in order to protect the interests of the clients and former clients of ORG . The case - note indicated that due to the urgency of the matter no explanation had been sought from the applicant or GPE .

On DATE the ORG resolved to exercise its powers in accordance with the recommendations made in the case - note . As a result the accounts of both ORG and ORG were frozen and the applicant ’s practising certificate was automatically suspended , leaving him unable to practise . Control of ORG passed to a nominated agent appointed by the ORG to manage the firm . The case was referred to ORG ( “ the ORG ” ) .

The applicant was notified of the intervention by fax on DATE . The notice indicated the terms of the ORG ’s resolution but the applicant was not provided with a copy of the ORG or the case - note . In the course of a telephone call with the ORG on DATE and a meeting on DATE the applicant was informed that under paragraph CARDINAL ) of Schedule CARDINAL to the Solicitors’ Act CARDINAL ( “ the DATE LAW ) he was entitled to apply to ORG within DATE of the service of the notice for an order directing its withdrawal .

On DATE the ORG disclosed the ORG to the applicant and requested his explanation of the issues identified within it .

The applicant subsequently applied to the ORG for his practising certificate to be reinstated . On DATE it was restored subject to a number of restrictive conditions . However , ORG remained under the control of the ORG ’s nominated agents and was eventually placed into administration on DATE . The applicant was unable to obtain alternative employment as a solicitor due to the outstanding disciplinary proceedings against him .

NORP The professional disciplinary proceedings against the applicant came before the Tribunal on DATE . The ORG found that there had been breaches of the LAW and the LAW in respect of both ORG and ORG but it did not find that the applicant had been dishonest or reckless . It ordered that the applicant be suspended from practice as a solicitor for DATE on DATE and recommended to the ORG that following the end of the suspension period he should only practise in approved employment .

On DATE the applicant had issued a claim for damages against the ORG in ORG under LAW DATE ( “ HRA DATE ” ) . In respect of the applicant ’s Convention rights , the particulars of claim asserted that his LAW rights had been breached by the provision of the DATE limitation period , which precluded effective access to the courts ; that as a consequence , he had been deprived of his property rights in ORG , in breach of LAW No . CARDINAL ; and that he was entitled to damages for the loss of an opportunity to challenge the intervention . He further complained that the intervention had been contrary to LAW of LAW DATE .

At a hearing on DATE the claims concerning LAW DATE were struck out by consent . This left a single issue for determination by ORG ; namely , whether the DATE time - limit contained in paragraph CARDINAL ) of Schedule CARDINAL to the Solicitors Act DATE was incompatible with the applicant ’s human rights .

The ORG applied to strike out the applicant ’s claim and/or for summary judgment to be entered in its favour .

On DATE the applicant applied for permission to amend his particulars of claim to assert , inter alia , that there had been a breach of the principle of natural justice , a breach of the rule of law and misfeasance in public office . He also sought to reintroduce a claim for breach of statutory duty . In respect of his Convention complaints , the amended particulars of claim averred that even if the intervention regime was in general compatible with the HRA DATE , the manner in which it was operated by the SRA – and in particular the process which led to the decision to intervene in ORG – had breached his Convention rights on the specific facts of his case .

Both applications came before Mrs Justice Sharp on DATE . She identified CARDINAL reasons why the claim in relation to the statutory timelimit was hopeless and doomed to failure . First of all , the domestic courts had established that the statutory scheme for intervention was compatible with FAC see , for example , the decision of ORG in ORG v. PERSON [ DATE ] CARDINAL WLR CARDINAL , PERSON v. the Law Society [ DATE ] EWCA ( Civ ) DATE and PERSON The Law Society [ DATE ] EWHC CARDINAL ( QB ) ) . Secondly , as the DATE time - limit was prescribed by statute and not by ORG , the ORG could not be held liable for damages or for any breaches of the applicant ’s human rights that might result from it . Thirdly , the applicant ’s claim was academic since he had not sought to challenge the intervention within any other period which he himself considered reasonable but instead had waited DATE before bringing a claim by a different and inappropriate procedure ( the claim under the HRA DATE ) .

The judge noted that all other matters complained of were matters which “ could and should have been dealt with by a challenge to the intervention via the statutory procedure and within the time - limit laid down by ORG ( and in the course of which disclosure would have been provided of the documents PERSON has since been given or asked for ) ” . As such , his claim was “ a collateral challenge to the intervention process by other means ” and an attempt “ to circumvent the statutory limitation on the right of challenge ” . It was not open to the applicant to do this and , in the circumstances , his attempt to do so was an abuse of the process .

In conclusion , the judge noted that the applicant had been well aware of the DATE time - limit , and there was “ no evidence at all ” that he had lacked sufficient resources to challenge the intervention when all that would have been required in the first instance was the court fee to issue a claim . Had he been genuinely unable to pay the fee it would have been open to him to apply to the ORG ’s nominated agent for the release of some of ORG ’s frozen practice money to use for that purpose .

With regard to the application to amend the grounds of appeal , the judge found that the claim for breach of statutory duty was misconceived ; the common law principles of natural justice did not apply to the intervention process and , in any case , any procedural unfairness in the process leading to the intervention could have been raised in a statutory challenge to the intervention ; the newly advanced claim for breaches of his human rights was only notified to the ORG in DATE , and the limitation period for bringing such a claim had been DATE from the date of the alleged breach ; a “ breach of the rule of law ” was not a pleading known to LANGUAGE law , but insofar as he was claiming that ORG acted ultra vires , such a challenge could have been made under the statutory procedure ; and finally , the claim for misfeasance in public office was not maintainable in the circumstances .

Having found that the applicant ’s claim had no real prospect of success , the judge refused the application for permission to amend the particulars of claim and ordered summary judgment to be entered in favour of the ORG .

On DATE the applicant applied for permission to appeal the judge ’s order on the ground that it was arguable that at least in exceptional cases a challenge to an intervention could be brought outside the DATE time - limit , and the present case was exceptional on account of his impecuniosity and the fact that he had not been provided with reasons for the intervention until DATE . Permission was refused on the papers . The application was then renewed orally before ORG on DATE but permission to appeal was again refused .

In refusing permission to appeal , ORG found that even if it were to assume that the DATE time limit could be read down to allow for out - of - time applications in exceptional cases , this was not an exceptional case . First , impecuniosity was not a justifiable basis for not having brought a statutory challenge in time . The proceedings in the present case were not especially complex and the applicant was a solicitor who should have been well able to deal with the allegations against him . It was therefore not arguably necessary that he should have been provided with legal assistance . Secondly , although it was “ difficult to understand ” why the ORG and the case - note had not been disclosed to the applicant prior to the expiry of the DATE time limit , and there was some merit in the contention that it may have been difficult for him to have pursued proceedings without the ORG , on the facts of the case the court did not consider this to be a ground for reading down the DATE time limit . In particular , it noted that the basis of the applicant ’s complaint was essentially that he had acted in good faith and co - operated with the authorities in relation to the wind - up of ORG , and those were matters which had been known to him when he received the original notice of intervention . Furthermore , even if some departure from DATE period was justified by reference to Convention principles , it had plainly been critical for the applicant to have acted very speedily thereafter . However , while he did take steps to get himself put back on to the register so that he could practice as a solicitor , he had taken no steps in relation to the intervention for DATE . There was no reasonable prospect for saying that the time - limit should be read down so as to allow a challenge so long after the expiry of that period .

The Law Society is the governing body of the solicitors’ profession . It has a regulatory function and regulatory powers under LAW CARDINAL ( “ the DATE LAW ) , which it exercises through the ORG . Under section CARDINAL of LAW , ORG is given the power to intervene in a solicitor ’s practice in circumstances specified in Part I of Schedule CARDINAL to LAW by exercising any or all of the powers set out in Part II of Schedule CARDINAL .

Paragraph CARDINAL(CARDINAL ) of Part I to Schedule CARDINAL provides that ORG may exercise its right of intervention where , inter alia , it has reason to suspect dishonesty on the part of a solicitor in connection with that solicitor ’s practice or in connection with any trust of which that solicitor is or formerly was a trustee ; where it is satisfied that a solicitor has failed to comply with rules as to professional practice , conduct and discipline ; and where it is satisfied that it is necessary to protect the interests of clients ( or former or potential clients ) of the solicitor or his firm .

Part II of Schedule CARDINAL sets out the powers available to ORG upon intervention . Under paragraph CARDINAL , ORG has the power to take control of the practice ’s accounts .

Finally , section CARDINAL of the DATE Act provides for the suspension of the solicitor ’s practising certificate in the event of an intervention .

The DATE Act allows an intervened - upon solicitor to apply to ORG to request the withdrawal of an intervention . Under paragraph CARDINAL ) of Schedule CARDINAL , a decision to take possession of the practice monies can be challenged within DATE of the service of the notice by application to ORG for an order directing ORG to withdraw the notice , with not less than QUANTITY notice to ORG . Paragraph CARDINAL(CARDINAL ) provides that upon an application under paragraph CARDINAL ) ORG may make such an order as it thinks fit .

Section CARDINAL ( CARDINAL ) of the HRA DATE requires , so far as possible , that primary legislation and subordinate legislation be read and given effect in a way that is compatible with Convention rights .

Section CARDINAL(CARDINAL ) of the HRA DATE further provides that a person who claims to be a victim of an unlawful act by a public authority may either bring proceedings against the authority under that Act in the appropriate court or tribunal , or rely on the Convention rights concerned in any legal proceedings . Subject to any rule imposing a stricter time limit in relation to the procedure in question , proceedings brought under the HRA DATE should be brought within DATE beginning with the date on which the act complained of took place , or such longer period as the court or tribunal considers equitable having regard to all the circumstances .

Under section CARDINAL(CARDINAL ) , a solicitor may , at any time before the expiry of his practising certificate , apply to ORG to have the suspension of the certificate terminated . Under LAW ) , upon receipt of an application ORG may terminate the suspension either unconditionally or subject to such conditions as it may think fit .

NORP If ORG refuses the application or terminates the suspension subject to conditions , the solicitor may appeal against that decision .

In LAW Society [ DATE ] CARDINAL WLR CARDINAL , [ DATE ] EWCA Civ CARDINAL ORG accepted that an intervention under LAW gave rise to an interference with a solicitor ’s right to peaceful enjoyment of his possessions DATE . CARDINAL to the Convention . However , having regard to issues of proportionality and the margin of appreciation it concluded that both the legislation itself and the approach taken by ORG had struck the fair balance required by LAW No . CARDINAL .

Sir PERSON , who agreed with the leading judgment of Lord Justice Carnwath , observed :

“ CARDINAL . In the exercise of its powers of intervention ORG must of course comply with LAW . I can imagine circumstances where ORG might be found not to have complied with the LAW , or with LAW DATE . After all , a solicitor whose practice is the object of an intervention loses his practising certificate , and in all probability his livelihood as well . The provisions for bringing an intervention to an end are very unlikely to restore the solicitor ’s goodwill and his prosperity . If it comes about that the intervention was mistaken or unjustified , there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy . In practice this may never happen ; but it is a cause for concern . However , not in this case . ”

In PERSON v. PERSON [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] EWCA Civ CARDINAL PERSON , at the end of his leading judgment , made further obiter comments regarding the summary process for bringing a statutory challenge to an intervention and its compliance with claimants’ Convention rights of in light of the decision in Holder :

“ CARDINAL ... In Holder v Law Society [ DATE ] EWCA Civ DATE , [ DATE ] CARDINAL WLR CARDINAL , this ORG DATE and rejected – an argument that the procedure for which ORG had made provision was incompatible with the solicitor ’s Convention rights . It rejected that argument ( inter alia ) on the basis that the court ’s power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual ’s fundamental rights met the requirements of LAW . But it is clear that , unless the matter can be determined by the court within a short time of the intervention , the solicitor is likely to be denied an effective remedy . That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible . The solicitor ’s clients will have to take their affairs elsewhere ; the staff will have found other employment ; and the practice will be destroyed in any event .

There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under LAW and , now , LAW DATE . This case illustrates the need for the Society to give thought as to how that tension can be resolved ...

CARDINAL ... The ORG should , I think , give thought to the need for Panel resolutions to identify , with much more specificity than in this case , the reasons which ( in the Panel ’s view ) make intervention necessary . If those reasons are not identified at an early stage , there is a danger that the solicitor will be denied the effective protection which ORG plainly intended a summary process to provide .

There will , of course , be many cases in which the solicitor who has suffered intervention will be in no doubt as to the ORG ’s concerns . And , as I have said , there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds . But , in cases where , although the solicitor knows what material was before the Panel , there is genuine doubt as to the matters which the ORG regards as sufficiently serious to justify intervention , it seems to me that the court should be ready to assist DATE on an early application for directions following the issue of an application under the schedule CARDINAL procedure – by requiring the ORG to state the grounds upon which ( on the material then known to it ) the application will be resisted . Such a statement would enable the solicitor to address the ORG ’s concerns in a focused response . And , in the light of that response , the ORG can explain to the court why it takes the view ( if it does ) that the concerns have not been met .

I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro - active role on applications under schedule CARDINAL to LAW than hitherto ; and that the need for an early determination of such applications will place demands on the court ’s resources which it may be difficult to meet . But , as it seems to me , the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the LAW requires and which LAW was plainly intended to provide . ”


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .

ORG The applicant is a co - owner of CARDINAL plots of land located in GPE .

On DATE ORG adopted a new local development plan . The plan stipulated that a public road was to be constructed on the applicant ’s property .

On DATE the applicant formally requested ORG to alter the local development plan and to adopt a different location for the future road . ORG refused this request in a resolution adopted on DATE .

On DATE the applicant filed a complaint with ORG against the resolution of CARDINAL DATE . She alleged , inter alia , that the local development plan had unlawfully designated part of her property for a future road . She argued that such a designation resulted in restrictions on developing her property and the reduction in its value . This amounted to a breach of her property rights .

ORG on DATE dismissed the applicant ’s complaint . It found that the local development plan constituted an interference with the applicant ’s property rights which , however , was justified by the public - interest considerations . The plan did not affect the core of the applicant ’s property rights since she retained the possibility to use and to dispose of the property . With regard to the alleged reduction in the value of the property , the court noted that the applicant could have pursued her compensation claim under section CARDINAL of the CARDINAL Act .

NORP The applicant filed a cassation appeal . She argued , inter alia , that ORG had erroneously applied the provisions of LAW . In this respect she submitted that the local development plan had deprived her of the possibility to develop her property and resulted in the reduction of its value . The applicant further alleged that the municipality had not adopted an alternative , less onerous , proposal for the location of the road .

On DATE ORG dismissed her cassation appeal . It concurred with the lower court that the location of a road retained by the municipality had been the most favourable to the applicant ’s interests . ORG found that the interference with the applicant ’s property rights had not been excessive since only part of her property had been designated for a road while the remaining part could be developed .

ORG judgment was served on the applicant on DATE .

From DATE to DATE questions of land development were governed by LAW on ORG . Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .

On DATE a new ORG was enacted ( “ the CARDINAL Act ” ) . It entered into force on DATE .

Section CARDINAL of the DATE Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner ’s request , or provide compensation for the damage caused by the designation .

NORP However , pursuant to section QUANTITY , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local authorities after DATE .

Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE . In DATE an amendment to the DATE LAW was adopted under which the validity of such plans was extended for a further two years until DATE . Again , on DATE , ORG passed a law amending LAW which extended until DATE the validity of the land development plans adopted before DATE .

On DATE a new ORG was enacted ( “ the LAW ” ) . It entered into force on DATE and repealed the DATE Act . Under section CARDINAL of the DATE Act , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by DATE Act , were in essence maintained by LAW . Pursuant to section CARDINAL of the latter Act , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan had become impossible or had been restricted , it was open to the owner to claim compensation from the municipality for actual damage sustained , or to request the municipality to buy the plot or its part . These claims may be also satisfied by the provision of an alternative property to the owner by the municipality . Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

She had a dispute with private individuals over a contract of sale for a flat , concluded in DATE , in which the applicant was the purchaser . According to the contract , she was to pay the equivalent of MONEY ( ORG ) in CARDINAL instalments : CARDINAL of the price on signing the contract , and the rest before DATE . The sellers were to vacate the flat before the same date . The applicant paid a sum equal to ORG CARDINAL,CARDINAL on signing the contract and a further sum equal to CARDINAL in DATE , but never paid the remaining sum . The sellers were evicted from the flat in DATE . The applicant claimed interest on the amounts paid by her for the period up to the time at which she had taken possession of the flat .

At a public hearing on DATE , in the presence of the applicant ’s representative and the defendants , ORG of GPE partially found for the applicant , awarding her interest on the amount of ORG MONEY at an DATE rate of PERCENT for the period from DATE until DATE on which she had taken possession of the flat , and dismissed the remainder of her claims . It read out the operative part of its judgment .

At a public hearing on DATE the GPE examined the case on appeal in the presence of the applicant ’s representative and the defendants . It quashed the part of the judgment in which ORG had found for the applicant , and dismissed the applicant ’s claims in view of her own failure to pay the price of the flat in full . It upheld the remainder of the judgment . The applicant ’s claims were thus dismissed in their entirety .

On DATE the applicant ’s representative received a copy of ORG reasoned judgment .

A private individual brought proceedings against the applicant seeking recovery of a debt in the amount of MONEY ( RUB ) .

At a public hearing on DATE ORG examined the case in the presence of the claimant and the applicant ’s representative . It ordered that the applicant pay the amount of the debt in full , as well as interest in the amount of RUB CARDINAL and the court fee in the amount of RUB CARDINAL .

On DATE a copy of ORG reasoned judgment was sent to the applicant by post .

At an open hearing on DATE ORG examined the case on appeal in the presence of the parties’ representatives . It dismissed the applicant ’s appeal and upheld the judgment . At the close of the hearing ORG read out the operative part of its judgment .

The ORG brought proceedings against the applicant for recovery of “ unjust enrichment ” in the amount of RUB MONEY resulting from the use of a plot of urban land for a period of DATE and interest in the amount of RUB CARDINAL,CARDINAL.CARDINAL .

At a public hearing on DATE the ORG of GPE examined the case in the presence of the claimant ’s representative and the applicant . It found for the claimant and ordered that the applicant repay the sum gained through unjust enrichment and interest as claimed , as well as the court fee in the amount of RUB MONEY .

On DATE the applicant received ORG reasoned judgment .

The applicant appealed against the judgment .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment . It rejected the applicant ’s argument that ORG judgment had not been pronounced publicly as required by LAW , stating that ORG had read out the operative part of its judgment at the hearing and prepared the reasoned judgment within DATE thereafter in compliance with domestic law .

The applicant brought proceedings against the GPE department of ORG , challenging its refusal to employ her for the campaign of the population census on the ground of her disability and claiming damages in the amount of RUB CARDINAL . The applicant argued , in particular , that despite her disability she was perfectly fit for the work and that she had successfully performed that type of work in the past .

At a public hearing on DATE the ORG of GPE examined the case in the presence of the applicant and the defendant ’s representative . It dismissed her claims in full , having found , inter alia , that the refusal to employ her had been lawful in view of a medicosocial expert report confirming her total incapacity for any kind of work . ORG noted that it had been open to the applicant to challenge the conclusion of the medico - social expert report , but that she had chosen not to do so . At the close of the hearing the court read out the operative part of its judgment .

On DATE the applicant received a copy of ORG reasoned judgment .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment . ORG read out the operative part of its judgment at the close of its public hearing in the presence of the GPE representatives . The applicant ’s representative received a copy of its reasoned judgment in DATE .


András Sajó;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .

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

The applicant has suffered from a psychotic disorder since DATE . He has mainly received outpatient psychiatric treatment ; however , in DATE , he spent DATE in a psychiatric hospital because of a delusional disorder and suicidal thoughts .

On DATE the applicant was arrested by the police on suspicion of aggravated theft . DATE he was brought before the investigating judge of ORG who opened a judicial investigation against him and ordered his detention .

From DATE until DATE the applicant was detained in the remand section of FAC . During this time , he was hospitalised in ORG from CARDINAL until DATE .

On DATE the applicant ’s court - appointed counsel wrote a letter to the remand section of FAC , informing the authorities that the applicant had written a number of letters to her in which he mentioned having had suicidal thoughts . Accordingly , the counsel asked the prison authorities to provide her with a copy of the applicant ’s medical documents and to inform her of his mental condition .

On DATE the investigating judge of ORG appointed an expert in psychiatry to give his opinion on whether the applicant had been capable of understanding the nature and effect of his actions at the time of the events in issue and whether he was capable of participating in the proceedings .

At the expert ’s recommendation , the court ordered , on DATE , that the applicant be transferred to the forensic psychiatric unit of ORG hereinafter “ the ORG ” ) for the purpose of further observation and diagnosis . On his admission to ORG , on DATE , he was placed in the most secure area , a CARDINAL - bed room which could be monitored through a glass window . He had access to a large hallway shared by CARDINAL patients which led to , inter alia , bathrooms , a living room , a doctor ’s office and a smoking room . On DATE in ORG he was assessed by Dr. PERSON On DATE and DATE he was assessed by Dr. NORP and Dr. PERSON respectively . The doctors noted that the applicant had reported occasional hallucinations and had mentioned a previous suicide attempt , but they considered that he was not acutely psychotic and did not at that time have suicidal tendencies . On DATE Dr. ORG noted that the applicant had , according to ORG guards , been testing the fence and windows in the yard . Citing attempts he had previously made to abscond , the doctor noted that the applicant would no longer be allowed to access the yard .

On DATE , at TIME the applicant jumped through the window in the smoking room and landed on the concrete staircase leading to the basement . On DATE , following the incident , a report was prepared by the special security officer , PERSON Another report was prepared by CARDINAL staff members on CARDINAL DATE . The reports were based on the observations of the staff , an inspection of the LOC and interviews with patients . The reports found that the applicant , with the help of some of the patients , had displaced the bars on the window by loosening the screws . The applicant had then used a sheet to lower himself from the second to the first floor . CARDINAL of the patients had then untied the sheet from the second - floor window so that the applicant was able to tie it to the first - floor window in order to climb down from the first floor . During the latter attempt he had landed on the staircase , which had not been visible from the window and could therefore not have been anticipated by the applicant . According to the above - mentioned reports , as well as the medical report drawn up by Dr. PERSON , following the jump the applicant had been found lying on the concrete floor under the window , unable to move , and complaining that he was in pain . CARDINAL medical officers had come to his assistance and had shortly thereafter been joined by Dr. A.F.C. and other health professionals from ORG who had administered first aid to him and called for an ambulance . As the paramedics had been positioning the applicant on the stretcher and cutting through his pajamas , they had found that he had been wearing civilian clothes underneath . The applicant , accompanied by a security officer , had been taken to hospital . Furthermore , upon an inspection of the smoking room , it had been found that the bar covering the window had shifted ( CARDINAL of the screws holding it in place having been removed ) and a sheet was hanging from the window ( which is clearly visible in the photos attached to the reports and submitted to ORG ) . According to the reports , a patient , Mr D.T. , had told the staff that the applicant had earlier asked him for a hex key and that another patient , Mr. PERSON , had helped the applicant with his escape ; Mr PERSON denied this . The special security officer who drew up the report of CARDINAL DATE also noted in that report that immediately after the incident she had seen a car with CARDINAL young men waiting next to the ORG building . According to her report , the men had driven off after being approached by her .

The applicant denied that he had attempted to escape and alleged that the incident of CARDINAL DATE was in reality a suicide attempt . In a letter of DATE , which he sent to his lawyer for the purposes of the legal proceedings , he explained that he had put on pajamas over his sweatshirt and sweatpants because he had been feeling cold . In that letter he further denied that there had been any sheets hanging from the window and accused the police officers and the medical staff of ORG of lying in order to avoid their responsibility for the incident . He also alleged that he had been maltreated , strapped to the bed , and forcibly medicated and that because of this he had attempted to kill himself .

As a result of the above - mentioned fall , the applicant sustained a number of injuries , including a fracture of a lumbar vertebra and fractures of both heel bones ( calcanei ) , and suffered temporary paralysis . His lumbar vertebra was operated on immediately after DATE . On DATE he was transferred from the intensive care unit to the traumatology unit , where he stayed until DATE .

In the meantime , on DATE , the applicant lodged an application ( no . CARDINAL ) with the ORG complaining about the overcrowding , inadequate ventilation and limited out - of - cell time allowed to inmates in ORG during the period from DATE to CARDINAL DATE . On DATE he further complained to the ORG about inadequate conditions in ORG during the period from DATE until DATE .

Meanwhile , on DATE the applicant was examined by an expert psychiatrist , who judged that he was able to participate in the trial . On DATE he was again detained in ORG , from where he was released on DATE . The medical discharge letter noted that the applicant was not psychotic and was not at risk of suicide .

According to the Government ’s submissions , PERSON , the mother of a detainee who had spent DATE in ORG , complained to the police in DATE in general terms about the “ torture and overdosing ” of the patients by ORG staff . PERSON also mentioned that one of the patients , identified as the applicant , had DATE according to her son DATE jumped through a window after undergoing DATE of torture . On DATE the GPE district prosecutor ’s office issued a decision dismissing the complaint , a copy of which was sent to the applicant . The prosecutor ’s office noted that on the basis of her allegations ORG had reviewed the medical files of the relevant patients , including the applicant , on DATE . It reiterated the findings of the above - mentioned reports of CARDINAL and CARDINAL DATE ( see paragraph CARDINAL above ) , as summarised by ORG , noting that they showed that the applicant had undoubtedly attempted to escape and not to commit suicide .

From DATE until DATE the applicant underwent rehabilitation in ORG . When discharged he was able to walk with aid of crutches .


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

The applicant was born in DATE and lives in GPE .

The applicant served his prison sentence in the closed and semi - open sections of GPE prison in the period DATE and DATE . From DATE to DATE , from DATE to CARDINAL DATE and from DATE to DATE he was held in the closed section . From DATE to DATE and from DATE to DATE he was held in the semiopen section .

From DATE to DATE and from DATE to DATE he was held in cells CARDINAL and CARDINAL ( third floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places . From DATE to DATE he was held in cell CARDINAL ( third floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places . From DATE to CARDINAL DATE he was held in cell CARDINAL ( third floor ) , which measured QUANTITY ( including a separate QUANTITY sanitary facility ) and contained CARDINAL sleeping places .

All the cells in the closed and semi - open sections contained , apart from the furniture , CARDINAL sleeping places ( CARDINAL bunk beds and CARDINAL single bed ) . According to the applicant , CARDINAL prisoners were being held in each of the cells during his detention . The Government , however , submitted that the number varied CARDINAL . Each cell had CARDINAL x QUANTITY double casement window , which the prisoners could freely open or close .

As regards the general characteristics of the cells in the closed and semi - open sections , material conditions inside the cells therein , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § DATE , DATE .

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

As to the out - of - cell time in the semi - open section , the ORG submitted that the cell doors in the semi - open section of the prison were unlocked , except from TIME ( on DATE and DATE from TIME ) until TIME ( on DATE , DATE and during holidays until TIME ) . During this time prisoners could move freely in the corridor ( QUANTITY ) , living quarters of co - prisoners or in the indoor or outdoor exercise areas , in accordance with prison rules . The Government contended that this regime had been in place for DATE .

During his imprisonment the applicant had CARDINAL consultations with a general practitioner and visited a dentist on QUANTITY occasions . He was treated by a psychiatrist on QUANTITY occasions and by a psychologist on CARDINAL occasions .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


BULGARTSVET-VELINGRAD OOD AND KOPPE v. BULGARIA

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant company , ORG , is a limited liability company created in DATE . It is registered in GPE , GPE . The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The applicants were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agents , PERSON , PERSON and PERSON , of ORG .

ORG , informed of their right to intervene in the proceedings in accordance with LAW CARDINAL § CARDINAL of ORG , have not availed themselves of this opportunity .

NORP The applicant held a MONEY stake in the applicant company . The other MONEY was held by Fabrika CARDINAL ORG , a NORP limited liability company wholly owned by the applicant .

On DATE another company , PERSON ORG ( “ OP ” ) , a state - owned limited liability company , was declared insolvent and insolvency proceedings were opened . Following a public auction of part of its property , on DATE the applicant company acquired several greenhouses . However , in a final decision of CARDINAL DATE the auction was cancelled .

Pending a new auction , on DATE ORG , represented by its trustee in insolvency , and the applicant company signed a contract pursuant to which the applicant company was appointed guardian of the greenhouses until they were sold . The applicant company undertook to maintain the greenhouses’ equipment and to carry out urgent repair works . In the meantime the applicant company was entitled to use the property and in exchange undertook to pay DATE rent .

In addition to the repairs indicated in the contract of DATE , the applicant company carried out substantial works on the greenhouses , which it alleged were necessary for the latter ’s proper functioning . On an unspecified date it requested the trustee in insolvency of ORG to reimburse the costs of those works . Initially the ORG included those costs in the list of accepted claims against ORG . Later , however , following an objection by CARDINAL of the other creditors of ORG , which was based on the fact that the costs were substantial , had not been approved by the creditors and had been incurred after the beginning of the insolvency proceedings , in a decision of DATE the ORG removed this claim from the list .

In a final decision of DATE , ORG upheld the removal , as it was not satisfied that the additional works had been urgent and necessary . Moreover , the works had not been authorised by the ORG and the remaining creditors . ORG considered that a creditor such as the applicant company , with a claim which had not been agreed in the insolvency proceedings , could make that claim in separate civil proceedings .

On DATE the applicant company brought a civil claim against ORG and also against ORG , as a representative of the ORG , which owned ORG ’s capital . Initially it sought CARDINAL NORP levs ( ORG ) ( the equivalent of MONEY ( ORG ) ) , representing part of the repair costs . In the course of the proceedings it increased its claim to ORG CARDINAL ( approximately EUR CARDINAL ) , claiming that ORG had unjustly enriched itself by that amount . The applicant company did not seek to have its claim included in the list of accepted claims prepared by the ORG , but argued that it was entitled to receive payment prior to the distribution of any amounts obtained through the sale of the property of ORG among the remaining creditors .

In a judgment of DATE , ORG granted the claim against ORG . It found that the applicant company had been unable to claim or receive payment in the course of the insolvency proceedings , and that therefore it was open to it to do so in separate civil proceedings . It went on to say that the repairs had been necessary , that the defendant company had unjustly enriched itself , and that it had had to reimburse the costs of the repairs . It accepted the applicant company ’s argument that it had been a “ third party ” to the insolvency proceedings , and that it was entitled to receive payment outside those proceedings . Thus , the domestic court ordered ORG to pay the applicant company the amount of ORG CARDINAL , plus interest and costs .

On the other hand , ORG dismissed the applicant company ’s claim against ORG , finding that the latter could not be held liable for ORG ’s debts .

OP appealed against the above judgment , but its appeal was rejected as inadmissible in a final decision of ORG DATE . As a result , ORG judgment became final .

NORP On DATE ORG requested the reopening of the proceedings , claiming that it had not been properly summoned to the first CARDINAL hearings in the case , held on DATE and DATE . In a judgment of DATE ORG allowed the request and reopened the proceedings .

After a fresh examination of the case , in a decision of CARDINAL DATE the ORG discontinued the proceedings in respect of OP . It held that the claim was precluded by virtue of the provision of the newly introduced section CARDINAL(CARDINAL ) of LAW ( “ the CA ” , see paragraph CARDINAL below ) , which concerned procedural rights and was therefore applicable to pending proceedings .

As regards the proceedings against ORG , the ORG observed that they were still pending .

On appeals by the applicant company , on DATE and DATE respectively ORG conclusions were upheld by ORG and ORG .

ORG considered in addition that the applicant company should have lodged a claim under section CARDINAL of the CA ( see paragraph CARDINAL below ) within the insolvency proceedings .

The applicant company submits that it became aware of ORG decision of DATE on DATE .

Following the discontinuation of the proceedings in so far as they concerned ORG , the proceedings continued against ORG .

In a judgment of DATE , ORG rejected the applicant company ’s claim against ORG . It noted that it had ordered ORG to provide several invoices which it considered relevant . Those invoices had not been presented ( ORG had in the meantime been wound up ) ; accordingly , the domestic court found that the claim had not been proved .

NORP The applicant company did not lodge an appeal against the above judgment , as it was entitled to do under domestic law .

NORP The applicant company used the greenhouses until DATE , when it was evicted . The greenhouses were sold at a new public auction in DATE .

Company insolvency is governed by Part IV of LAW ( “ the CA ” ) of DATE . Since its enactment in DATE , its provisions relating to company insolvency were amended on numerous occasions .

Pursuant to section CARDINAL of the CA , creditors had to declare their claims against the insolvent company . The trustee in insolvency then prepared a list of accepted claims . Refusal by the trustee to accept a claim and include it in the list could be contested before the insolvency court . A creditor could also object to a decision to accept another creditor ’s claim . At the relevant time , the trustee would decide on the matter and then submit the list for approval to the insolvency court .

By section CARDINAL of the CA , introduced in DATE and as worded at the time , a creditor whose claim had not been accepted and included in the list could also bring an action for a declaration seeking to establish the existence of the claim . Such an action could be brought within DATE of the entry in the company register of the insolvency court ’s decision approving the list of accepted claims . If the claimant was successful , the claim was to be satisfied within the insolvency proceedings . A similar provision existed in the CA until DATE , when it was repealed .

Until DATE there was no provision which explicitly allowed or barred the bringing of a civil claim against an insolvent company separately from the insolvency proceedings against that company , and there was no well - established practice of the domestic courts in this regard . Following amendments to the CA of DATE , a bar to such claims was introduced ( initially section CARDINAL(CARDINAL ) , currently ( CARDINAL ) ) .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Julia Laffranque;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Paul Lemmens;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Stéphanie Mourou-Vikström;Yonko Grozev;Ksenija Turković

The applicant was born in DATE and lives in GPE , GPE , GPE .

On DATE the applicant ’s son , PERSON , participated in a public gathering in the village of GPE , in the GPE district of ORG . CARDINAL people took part , alleging corruption by local public officials . At TIME officers from the special mobile unit encircled the participants and fired several warning shots into the air .

Thereafter the gathering was dispersed by the authorities with the use of firearms ( see also PERSON and Others v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) . PERSON was wounded by a tear - gas grenade and died from his wounds . CARDINAL other people were seriously wounded ; a large number of people sustained injuries and were arrested .

On DATE the prosecutor of GPE initiated criminal proceedings on charges of murder and illegally handling firearms ( Articles CARDINAL and CARDINAL of LAW ) and assigned the case to an investigator .

A forensic expert examined the deceased ’s body and extracted the objects that had killed him .

On DATE , the investigator commissioned a ballistics report from ORG of ORG of the ORG to determine the type of the grenade , the type of rifle used to fire it and whether the grenade had striae that could be used to identify that rifle .

On CARDINAL DATE the ballistics expert issued a report and concluded as follows :

“ CARDINAL . The forensic expert was given the following CARDINAL objects for examination : a grenade with a special charge ; and an obturator with a special charge ( a CARDINAL PERSON cartridge used with a carbine type KS-CARDINAL ( KS-CARDINAL M ) ) . It has not been possible to determine the exact make of the tear - gas grenade .

NORP ... It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used . It would however be possible to use the separate obturator to identify the weapon used , if the weapon were provided for examination . ”

On DATE the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant ’s son . On DATE the Forensic Expert Centre of the Dagestan Ministry of the ORG declined to carry out an examination , referring to the absence of “ facilities or equipment for test - shooting CARDINAL PERSON canisters with special gases ” .

On an unspecified date , a number of carbines used by officers of the special mobile unit on DATE were seized .

In DATE and DATE the investigating authority commissioned ballistics reports from ORG of ORG of the ORG and another local expert institution . However , the reports were not produced , apparently , on account of lack of sufficient technical facilities .

On DATE ORG of ORG was asked to prepare a ballistics report in order to determine which rifle had been fired at the victim . The investigating authority submitted the objects extracted from the victim ’s body , as well as CARDINAL carbines .

On DATE the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death ( Article CARDINAL of LAW ) . It appears from the decision that it concerned persons other than the applicant ’s son . The decision read as follows :

“ It was established that police officers had had recourse to firearms ... Officers from the special mobile unit fired gunshots , using QUANTITY , and teargas grenades , acting in violation of a directive dated DATE and in excess of their powers ... It is prohibited to fire these tear - gas canisters at a person . As a result , Mr N. and Mr A. sustained injuries . ”

The above - mentioned cases were subsequently joined .

On DATE ORG issued a report , the relevant parts of which read :

“ ... As the relevant QUANTITY had not been submitted for test shots , a request for CARDINAL PERSON cartridges was made to the relevant department of ORG of GPE ... [ Footnote : PERSON cartridges are used for training purposes relating to the use of KS-CARDINAL and KS-CARDINAL M carbines . These cartridges are similar to those normally used with these carbines . The only difference is that they do not contain the irritating chemical substance . ] ...

The research part

NORP ... I note that the tear - gas grenade has no striae left by the carbine used to fire it . This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of CARDINAL obturators ...

Test shots have been carried out in respect of the KS-CARDINAL and KSCARDINAL M carbines that were submitted for the examination . The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines , and to compare the striae with the striae left on the obturator of the grenade used against the victim . I have used CARDINAL PERSON cartridges for the test shots . These cartridges are similar to those that were submitted for the examination ...

NORP ... In view of the variance of the results of the test shots , it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators ... in particular , on account of the elasticity and low thermo - resistance of the material used in the obturators ... ”

On DATE another ballistics report was requested from ORG ( “ the Institute ” ) . ORG was likewise provided with CARDINAL carbines and the objects extracted from the victim ’s body .

On DATE the expert from the ORG issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge . The forensic expert explained that she had been provided with PERSON cartridges for the purpose of her research and for test shots , whereas the elements extracted from the victim ’s body were parts of a grenade . The forensic expert specified that PERSON cartridges and tear - gas grenades had “ different geometric parameters and are made of materials with different characteristics ” .

On DATE the investigating authority suspended the investigation .

On DATE the applicant ’s other son , Mr PERSON , brought court proceedings challenging the alleged inaction of the investigating authority . In a judgment of CARDINAL DATE ORG of PERSON dismissed the complaint . The court held as follows :

“ Over seventy people were interviewed in the course of the investigation . The necessary ( medical , ballistics , criminological ) examinations were carried out ... All carbines which had been used by the officers were seized ... All relevant officers were identified ... The logbooks concerning distribution of weapons and ammunition were examined ... On CARDINAL occasions CARDINAL different expert institutions were asked to submit ballistics reports . The requests were not complied with on account of the absence of the necessary equipment ... Attempts were made to identify the relevant rifle in other expert institutions ... Those were not equipped for this kind of forensic examination ... In consequence , ORG was not able to identify the weapon ... Another request is pending before ORG ... Thus , the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect . ”

On DATE ORG upheld the judgment .

The applicant ’s son , Mr PERSON , also sought judicial review of the suspension decision of CARDINAL DATE . On DATE ORG held that the suspension of the investigation was justified . However , on DATE the appeal court quashed the judgment and ordered a re - examination of the complaint . In a judgment of DATE ORG granted the complaint , considering that by failing to submit appropriate comparative material to the forensic expert , the investigating authority failed to take “ exhaustive measures aimed at identifying the perpetrator ” .

On an unspecified date , the applicant became aware that the evidence extracted from the body of his son had been lost .

NORP In DATE the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence .

On DATE the investigation was resumed . It appears that the investigating authority took some measures to clarify what had happened to the evidence . In particular , armourers from the special mobile unit were interviewed . The investigator also made an enquiry with the ORG referring to his difficulties in interpreting the report of CARDINAL DATE . It remains unclear what reply was received to this enquiry .

According to the ORG , the enquiry about the loss of evidence yielded no specific results , in particular on account of the death of the investigator in the case and the redeployment of the investigation unit .

On DATE the investigator again suspended the investigation .

On DATE the acting prosecutor of GPE determined that this decision was unlawful and ordered a resumption of the investigation . The decision reads as follows :

“ Having examined the file , I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime , at collecting the evidence and identifying the rifle used to cause the victim ’s death ... In particular , the request for a ballistics report to ORG was submitted with PERSON cartridges instead of the type of cartridges used for causing the victim ’s death . The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim ...

Following the resumption of the investigation in DATE the investigator merely made an enquiry instead of actually submitting grenades for comparative research ...

It does not follow from the expert report of CARDINAL DATE that it would have been impossible to identify the rifle , provided that cartridges of the relevant type were provided .

The evidence extracted from the victim ’s body was examined for the purposes of the above expert report . Thus , the current unavailability of this evidence is not an obstacle to seeking a new ballistics report from the same institution . ”

Following the resumption of the investigation the investigator made enquiries with the ORG about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim ’s body . While it remains unclear what reply was received from the ORG , it does not appear that any new ballistics examination was carried out .

On DATE the investigating authority issued a decision suspending the investigation . This decision reads as follows :

“ It follows from the evidence in the case file that on DATE inhabitants of nearby villages and other people blocked the road with stones and logs ... In reply to lawful orders from the police requiring them to disperse , unidentified people threw stones at the police , causing various physical injuries to CARDINAL officers . The police officers used firearms to retaliate ...

Officers of the special mobile unit fired shots with their pump - action shotguns towards the crowd , using QUANTITY , and a tear - gas grenade . In so doing they violated a directive dated DATE ... and acted in excess of their powers . As a result , [ the applicant ’s son ] and others sustained shotgun wounds ... causing [ him ] to die on the spot .

It is impossible to commission another ballistics report in the absence of the cartridge . It has not been possible to identify the person who shot [ the applicant ’s son ] . ”

The applicant did not challenge this decision .


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

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention , which were incompatible with their disabilities . In application no . NORP the applicant also raised other complaints under the Convention , including LAW that he did not have an effective remedy to complain about the poor conditions of his detention .


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in DATE and lives in PERSON .

On DATE the applicant filed a civil suit together with CARDINAL other persons with ORG against his former employer ORG AD GPE requesting the payment of funds from profit made in DATE .

The applicant ’s previous representative did not attend first preliminary hearing fixed for DATE , since he had been deleted from the register of the attorneys DATE at - law in DATE . The applicant appointed the present representative on DATE .

The preliminary hearing was held on CARDINAL DATE .

On DATE the proceedings were split to separate proceedings for each of the plaintiffs concerned .

The preliminary hearing was held on DATE .

Within the period from DATE until DATE out of CARDINAL hearings were postponed for various reasons , mainly because the representatives on the both sides provided new submissions and evidence and on the proposal of both sides due to the cost - efficiency of the proceedings .

On DATE ORG ruled against the applicant .

On DATE ORG upheld that judgment .

On DATE ORG rejected the applicant ’s appeal .


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and is detained .

NORP In DATE preliminary proceedings were initiated against the applicant based on the suspicion that he had committed violent acts against his spouse , PERSON On DATE PERSON was examined at the request of the public prosecutor ’s office by the investigating judge , PERSON , after the latter had decided , at the suggestion of the public prosecutor ’s office , to exclude the applicant from the hearing under LAW of LAW , since there was a risk , given the nature of the reported offences , that GPE would not testify or would not tell the truth in the applicant ’s presence .

On DATE the investigating judge , at the request of the public prosecutor ’s office , issued an arrest warrant for the applicant and also assigned counsel to him .

On DATE the applicant was arrested and detained on remand . On DATE the ORG assigned a lawyer of his choice as his counsel .

On DATE the ORG opened the main proceedings against the applicant . PERSON , who was also summoned to appear on that date , informed the court that she did not wish to give evidence .

At the hearing of CARDINAL DATE , the investigating judge was examined on the evidence he had obtained from his examination of GPE on DATE . ORG rejected an objection by the applicant ’s counsel on the grounds that it was permissible to examine the investigating judge even if the applicant ’s rights under LAW ( d ) of the LAW had been breached by PERSON ’s examination . Only when adjudicating the case could it be decided whether the investigating judge ’s statements could be admitted as evidence or not , which , in line with the ORG ’s case - law , would depend on whether it had been corroborated by other significant factors independent of that evidence .

At that same hearing , Officers Ra . and PERSON . were examined as witnesses with regard to the description of events given to them by PERSON when they had arrived at PERSON ’s home on DATE ( see paragraphs DATE below ) . The applicant ’s counsel objected to the use of the evidence obtained from the examination of these CARDINAL witnesses on the grounds that “ the depicted facts can not be separated chronologically and sequentially ” .

At the hearing of DATE , PERSON stated that she did not consent to the use of the evidence which she had provided to the investigating judge , to Officers Ra . and PERSON . and to the court - appointed medical expert ; nor did she consent to the use of the results of the medical examination .

On DATE ORG convicted the applicant on CARDINAL counts of dangerous assault , CARDINAL of these in concurrence with coercion , as well as of maliciously inflicting bodily injury in concurrence with attempted coercion , of coercion and of wilful driving without a licence . ORG sentenced the applicant to DATE and CARDINAL months’ imprisonment . In addition , it ordered his subsequent preventive detention , finding that the applicant had a dissocial personality disorder and that there was a very high likelihood that he would commit similar offences in the future .

In DATE , the applicant was convicted several times of , inter alia , several different counts of assault against his respective partners at different times . He met his third wife , PERSON , in DATE . Their relationship was from the outset marked by the applicant ’s violent behaviour towards GPE , which escalated in DATE .

On DATE in their marital home the applicant asked GPE about her past sex life . He then beat her on different parts of her body and kicked her . Following this he asked her to go to the basement and , while going there , stubbed out a cigarette on her neck . When they arrived in the basement , he asked her to write a letter to the wife of a former lover of hers and to confess to adultery . When PERSON refused , he delivered several blows all over her body , including her head and face , and also beat her with a wooden hiking pole . PERSON then promised to write the letter . TIME the applicant asked her again to write the letter and delivered blows with his fist , primarily to her head . After having left PERSON alone in the living room , the applicant later returned with a mattress and demanded that she undress and to lie down on her stomach . He then beat her with a thin rope on her back , before forcing her to carry out sexual acts on herself .

On TIME , PERSON started to write the said letter by hand . When reading the draft , the applicant was angry about its content . PERSON stated that she would write it again . The applicant delivered blows with his fist , mostly to her head , and also beat her with his shoes on the back of her head . He then stubbed out a cigarette on her left breast . PERSON tried to run away but fell down in the hallway . The applicant then choked her so that she could not breathe . In unknown circumstances , PERSON managed to escape and ran into the street in panic , crying for help .

There , she ran into PERSON and PERSON . , the latter telling her to go to the home of the PERSON family . She ran over and rang the bell . PERSON opened the door and let her in . PERSON . [ probably PERSON , see paragraphs CARDINAL and CARDINAL below ] went to the house of the Sch . family and called the police from there . During that call , PERSON and PERSON . went outside and saw the applicant leave the home and drive off . They reported the number plate of the car to PERSON . [ S. , see above ] , who passed it on to the police . Inside the house , PERSON ’s mother gave PERSON a towel , which she put on the back of her head , from where she was visibly bleeding . TIME QUANTITY police officers , Ra . and PERSON . , arrived .

On DATE , PERSON was admitted to a women ’s shelter . She showed the counsellor there , PERSON , MONEY of injury on her head and other parts of her body and described the bodily harm and coercion to which the applicant had subjected her in the period from DATE to CARDINAL DATE .

The investigating judge , PERSON , stated that he had questioned PERSON for TIME on DATE at the request of the public prosecutor ’s office ( see paragraph CARDINAL above ) . She had described a multitude of acts of domestic violence in the course of the marriage , which had increased over time , and repeatedly stated that she loved the applicant , which was why she had not come forward before . The violence DATE and DATE had constituted an escalation and had been too much for her , rendering their living together impossible , which was why she was now ready to testify against the applicant . She had described the events of DATE and DATE as several acts of torment stretched out over the whole DATE with some breaks in between . He had asked her about every single incident , to which she had given definite and detailed accounts of each , including beatings with a rope , a wooden hiking pole and shoes , as well as being forced to carry out sexual acts on herself . Her account had been consistent and she had not been evasive , maintaining eye contact throughout . She had repeatedly stated that the applicant had beaten her DATE and DATE in connection with a letter which the applicant had wanted her to write to the wife of a former lover of hers ; she had started to write that letter by hand .

R.K. later retracted her statements as reported by the investigating judge and made voluntary disclosures on DATE and on DATE to the police for having wrongfully incriminated the applicant , claiming that he had not been at home DATE and DATE and that a third person had injured her . On DATE PERSON submitted a written statement to ORG retracting the voluntary disclosures of DATE and DATE .

The only statement the applicant made during the trial was to confirm that he did not have a driving licence . He did not comment on the remainder of the charges against him .

N. , the women ’s shelter ’s counsellor , testified that she had received a copy of the police report and had discussed the report and the events with PERSON when she had been admitted to the shelter on DATE in a severely traumatised state . PERSON ’s statements had been consistent with the police report . She had provided a detailed account of all the incidents that had taken place DATE and DATE , and had consistently named the applicant as the perpetrator . That same evening , she had also showed her her injuries , in particular bleeding head wounds , burn marks on her left breast and neck , and several bruises and weals on her back . N. had discussed the violent events with PERSON up until the former ’s examination before ORG . Throughout these discussions , PERSON ’s account had been consistent .

Re . PERSON , PERSON ’s son , who had been born in DATE , stated that on DATE he had been in his room from where he had heard the applicant and PERSON having an argument and screaming . He had later learned that his mother had been at a neighbour ’s home , where he had met her together with the police officers . His mother had been pressing a cloth against her head . He had then gone to the hospital together with her . He had not seen what had happened in the house and had , overall , not noticed much of the events that had occurred DATE .

S. , a witness , said that he had been at a local sports meeting with another witness , PERSON . , on DATE . At around TIME , when they had been walking in the direction of the village , PERSON had run towards them on FAC , shouting “ Help ! Help ! My husband is going to kill me ! ” PERSON had been so shocked and disturbed that she had not been able to speak clearly . PERSON had advised her to go to the home of the PERSON family . He himself had then gone to the home of the Sch . family to call the police . While he had been on the phone to the police , PERSON . told him that the applicant had driven off . PERSON . had then given the registration number to PERSON , who passed it on to the police . When PERSON had gone back outside , he had met Re . PERSON , who had been shaking , and had asked him about PERSON He had then led the police to the house of the PERSON family . When the door had opened , he had seen PERSON sitting on the stairs , with a bloody cloth pressed on her head . The police then took charge and he left the scene .

M. , a witness , stated that CARDINAL DATE , the doorbell rang . PERSON was standing outside , shouting “ My husband , my husband ! He ’s out to get me . He must n’t see me . ” PERSON , who had been terrified , immediately entered the house and sat down on the stairs . She had been bleeding from her head . Later , the police had arrived and called an ambulance . PERSON ’s mother added that she had given PERSON a towel for her bleeding head wound and that PERSON had repeatedly expressed fear of her husband . She had never seen a woman so terrified before , which had overwhelmed her so much that she had not asked PERSON about what had happened .

PERSON . , a witness , testified that PERSON had rung her door bell on DATE . S. had told her that he had had to call the police as it had seemed that the applicant had harmed his wife . She had then gone outside her house and looked towards the applicant ’s house located QUANTITY away . She had observed the applicant leaving his house and driving off . She had told that to PERSON , who had asked her to spell out the car ’s number plate , which she had done . PERSON . made similar statements .

Officers Ra . and PERSON . explained that they had been patrolling together on DATE when they had received the call to drive to the village B. , where a woman had run out of a house screaming and had been hiding at a neighbour ’s residence . Several persons had been present when they had arrived at the scene , informing them that PERSON had been at the house of the PERSON family . When they had gone there , they had found PERSON in shock , pressing a cloth to the back of her head . When PERSON . had asked her what had happened , she had stated that her husband had beaten her . PERSON had then given additional evidence , which was later discarded ( see paragraph CARDINAL below ) . She had had a bleeding wound on the back of her head and visible facial bruising . In the beginning , she had been shaking so much that it had not been possible to question her .

A draft letter to the wife of a former lover of hers , in which PERSON stated that she wanted to clear up her life and that adultery was a sin , was read out before ORG . Officer PERSON . had stated that PERSON , after having made her statement to the police and having been examined in hospital , had asked to be admitted to a women ’s shelter . She had requested that they stop by the marital home beforehand and for the police officers to accompany her . Besides taking some of her belongings , she had given the letter to PERSON . and asked him to keep it . Ra . had included the letter in the case file .

Another letter by GPE of DATE , addressed to the applicant , was read out before ORG , in which she described examples of acts committed by him from DATE , reporting the assaults , humiliations and sexual acts to which she had submitted for fear of receiving even more blows .

ORG relied , inter alia , on the testimony PERSON had given at her examination by the investigating judge . It considered that the applicant had rightly been barred from attending that hearing . However , since LAW ( d ) of the ORG guaranteed the applicant ’s right to examine or have examined witnesses against him , defence counsel should have been appointed for the applicant so that the latter could examine PERSON at that hearing . Yet , the mere fact that neither the applicant nor his counsel had had the opportunity to cross - examine PERSON did not automatically constitute a breach of LAW and CARDINAL ( d ) of the Convention . It was decisive whether the proceedings in their entirety , including the manner in which evidence had been taken and assessed , had been fair . Where the lack of an opportunity to cross - examine a witness had been a result of procedural errors imputable on the judiciary , as in the present case , the ORG found a breach of the Convention where the conviction had been based to a decisive extent on the evidence of the untested witness . A conviction could thus only be based on untested evidence where it was corroborated by other significant factors independent of that evidence . In the present case , the applicant ’s conviction could be based on GPE ’s statements as reported by the investigating judge , for they were corroborated by other significant factors independent of them .

In this regard , ORG referred to PERSON ’s letter of CARDINAL DATE , in which she had described examples of acts committed by the applicant from DATE , reporting the assaults , humiliations and sexual acts to which she had submitted for fear of receiving even more blows ( see paragraph CARDINAL above ) . Her statement that the applicant had struck her in order to make her compose a letter to the wife of a former lover of hers had been corroborated by the draft letter with the content she had described which she had given to LOC . ( see paragraph CARDINAL above ) . Both letters had been admitted as evidence , as a witness ’s written statements could be admitted even in a case where he or she lawfully refused to give evidence at trial .

Moreover , witness ORG of the women ’s shelter in which PERSON had sought refuge had , on DATE of PERSON ’s admission to the shelter , observed wounds in the head area , some of which had been bleeding , and burn marks on PERSON ’s left breast and neck as well as various bruises and weals on her back which PERSON had shown her . During her stay in the shelter , PERSON had repeatedly described to ORG the details of the applicant ’s violent acts ( see paragraph CARDINAL above ) .

Re . PERSON , PERSON ’s son , who was in the marital home on DATE , stated that he had heard the applicant and PERSON having an argument and screaming ( see paragraph CARDINAL above ) . Other witnesses reported that PERSON had run into the street in panic DATE , with a bleeding wound on the back of her head , and had subsequently sought refuge with the PERSON family until the police had arrived , while the applicant had been seen leaving the house and driving off following that ( see paragraphs DATE above ) . Therefore , ORG was convinced that PERSON ’s subsequent voluntary disclosures , in which she had mainly claimed that the applicant had not been at home and which she had subsequently retracted ( see paragraph CARDINAL above ) , had not been truthful .

PERSON ’s initial statements to Officers PERSON . and PERSON . , as reported by them ( see paragraph CARDINAL above ) , were possible to admit as evidence despite PERSON subsequently invoking her right to remain silent , as they were to be qualified as a “ spontaneous utterance ” . At the same time , ORG did not take into account the additional evidence given to the police by PERSON ( see paragraph CARDINAL above ) , as the police had not been sure at which point they had informed her of her right to remain silent .

On DATE the applicant , represented by counsel , lodged an appeal on points of law against the judgment . He argued that evidence obtained in breach of the right of confrontation enshrined in Article CARDINAL § CARDINAL ( d ) of the LAW must never be admitted , regardless of its importance . The importance of the untested evidence in relation to the other evidence used by the court must not be decisive . Nor did it matter whether the court of first instance had undertaken a particularly careful examination of the evidence of the untested witness , as the breach of the right of confrontation could not be counterbalanced . Furthermore , in the light of PERSON ’s subsequent invocation of her right to remain silent , ORG had wrongly admitted the evidence given by the police officers PERSON . and PERSON . PERSON ’s statements to the police officers had not been a “ spontaneous utterance ” , as the latter had been called to the scene because a woman had run out of a house screaming and had been hiding at a neighbour ’s house and had , on arrival , asked her what had happened ( see paragraph CARDINAL above ) .

In a written submission of CARDINAL DATE ORG argued that the examination of the investigating judge , resulting in the use of the untested evidence given by PERSON , had not rendered the proceedings unfair . The evidence given by PERSON to the investigating judge had been corroborated by other significant factors independent of her evidence . Moreover , ORG had counterbalanced the limitation of the applicant ’s defence rights through a particularly careful and critical assessment of the evidentiary value of that testimony .

On DATE ORG dismissed the appeal as ill - founded , finding that the review of ORG judgment had not revealed any legal errors that had been detrimental to the applicant .

On DATE the applicant lodged a constitutional complaint with ORG . He argued that his right of confrontation had been infringed when the investigation judge had examined PERSON without him or his counsel having had the opportunity to be present and to question her . It had been unlawful to admit her testimony , as reported by the investigating judge , as evidence and to use it to convict him . It was not sufficient to take the violation of his right of confrontation into consideration as part of the evidentiary assessment by attaching less evidentiary value to the untested testimony and by requiring that it be corroborated by other significant pieces of evidence . Similarly , it was unlawful to admit as evidence the statements of the CARDINAL police officers , as PERSON ’s statement , which they reported , was not a “ spontaneous utterance ” .

In a written submission of CARDINAL DATE ORG argued that ORG had sufficiently taken the ORG ’s case - law on LAW ( d ) of the LAW into account .

On DATE ORG refused to admit the constitutional complaint for adjudication , without providing reasons .


CASE OF ĎURĎOVIČ AND TRANČÍKOVÁ v. SLOVAKIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

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

The applicants are husband and wife . Mr PERSON was born in DATE and lives in GPE , GPE . PERSON was born DATE and lives in GPE .

On DATE the applicants brought a claim in the Stará Ľubovňa District Court , alleging that they were the owners of real property which had been included in the assets of an insolvent company .

On DATE ORG dismissed the claim . With reference to the documents before it and judicial decisions delivered earlier the court established that the property in question had been transferred to the company which had later become insolvent .

In an appeal the applicants argued , in particular , that the first - instance court had failed to take evidence , as suggested by them , with a view to establishing that the property had not actually been transferred to the company . They also maintained that the case should have been assigned to a judge dealing with civil cases instead of a judge deciding commercial disputes .

On DATE the ORG upheld the firstinstance court ’s judgment . It found that the applicants had failed to show that the property had been erroneously included in the assets of the insolvent company in the context of the insolvency proceedings .

On DATE the applicants lodged an appeal on points of law . They argued that there had been shortcomings in the proceedings before the appellate court which rendered the appeal on points of law admissible pursuant to LAW .

NORP In particular , they alleged that the appellate court had determined the case without hearing the parties and establishing the relevant facts . Earlier consent they had given for the appellate court to proceed with the case in their absence at the hearing of DATE did not mean that they accepted the determination of the merits without the parties having been heard . The applicants further argued that the case had been dealt with as a commercial dispute , whereas it should have been determined by judges dealing with civil cases .

On DATE ORG rejected the appeal on points of law . It held that the reasons for its admissibility as invoked by the applicants could not be accepted . In particular , ORG noted that the applicants had notified ORG that they would not be appearing on DATE , and that they had agreed with the case proceeding in their absence . The fact that the appellate court had not quashed the first - instance court ’s judgment as requested by them could not affect the position .

ORG further held that in the proceedings complained of , the situation described in Article CARDINAL ( a ) of LAW did not exist , and that the applicants had not shown that a final decision on the matter had been given earlier for the purposes of LAW .

On DATE the applicants complained of a breach of LAW in the proceedings leading to ORG judgment of DATE , ORG judgment of DATE and ORG decision of CARDINAL DATE .

For reasons invoked in their appeal and appeal on points of law , they complained that their right to a fair hearing by a tribunal established by law had been breached . They also complained that ORG had not allowed them to respond to the defendants’ comments on their appeal on points of law .

ORG declared the complaint inadmissible on DATE . As ORG judgment had been reviewed by ORG upon appeal , ORG held that it did not have the power to examine the alleged shortcomings in the first - instance proceedings .

As to ORG judgment , the applicants had failed to submit their complaint within the statutory time - limit of DATE . The fact that they had sought redress by means of an appeal on points of law could not affect the position , as ORG had rejected that remedy as inadmissible .

Finally , as to the cassation proceedings , ORG found no evidence of unfairness in the way ORG had dealt with and decided on the ORG appeal on points of law . Its failure to let the applicants comment on the other party ’s observations on it had not rendered the proceedings unfair in the circumstances .