No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant was born in DATE and lives in GPE .

The applicant has a son , PERSON , who was born in DATE . The applicant was not married to the child ’s mother , PERSON , and the relationship ended DATE after S. ’s birth . After the separation , PERSON continued to live with PERSON and the applicant maintained contact with him . On CARDINAL DATE PERSON stopped the applicant ’s contact with S.

NORP In DATE the applicant instituted proceedings before ORG seeking parental rights and responsibilities and residence or , alternatively , residential contact .

NORP In DATE the applicant and PERSON agreed that the NORP should reside with PERSON and that the applicant should have contact . The agreement was set out in a joint minute of agreement , on the basis of which ORG , in an interlocutor dated DATE , granted the applicant parental rights and responsibilities in respect of S. ; found that the applicant was entitled to residential and non - residential contact with PERSON on a basis and on dates specified in the interlocutor ; and held that PERSON was to consult with the applicant when making decisions of importance with respect to the health , welfare , education and upbringing of S. The interlocutor did not provide for the dates upon which the regular contact was to begin or when during each DATE period it was to occur . It also failed to take into account pre - arranged holidays .

Because of the ambiguity in the interlocutor , the relationship between the applicant and PERSON quickly deteriorated . On DATE the applicant lodged TIME at ORG : one to vary the DATE interlocutor by seeking a residence order in respect of S. ; the other seeking a finding that PERSON was in contempt of court for breaching the DATE interlocutor . A curator ad litem was appointed by the Sheriff to represent S. ’s interests .

The applicant was granted legal aid and was represented before ORG by PERSON ( counsel ) . The instructing solicitors were PERSON .

Following a number of procedural hearings , a substantive hearing began on DATE and concluded on DATE , after CARDINAL non - consecutive court days .

NORP The GPE ’s decision on the application to vary the DATE interlocutor was issued on DATE . He considered that having regard to S. ’s age , the history of the case and the influences at work on PERSON , he would derive no benefit from contact in such circumstances . The Sheriff therefore concluded that there had been a material change in circumstances since the interlocutor of DATE ; that it was in LOC ’s best interests that he did not have contact with his father ; and that the interlocutor of DATE required to be recalled .

The applicant appealed to ORG of ORG . He contested the ORG ’s decision and complained , inter alia , that the action had not been concluded within a reasonable time .

The applicant was granted legal aid to pursue his appeal . He was represented before ORG by Mr PERSON and Mr PERSON ( counsel ) . The instructing solicitors were PERSON , for PERSON .

The Inner House delivered its judgment on DATE . It did not uphold the applicant ’s appeal . However , it varied the DATE interlocutor to make it clear that it in turn only varied the DATE interlocutor in respect of contact but did not make any change to the finding that the applicant enjoyed parental rights and that he had to be consulted on matters concerning PERSON ’s health , welfare , education and upbringing .

NORP In DATE a note was prepared by counsel supporting an application for legal aid to pursue an appeal to ORG . On DATE a full application for legal aid was submitted to ORG , with counsel ’s note in support . Shortly afterwards an appeal to ORG was lodged and the appeal process was suspended pending the determination of the legal aid application .

The curator ad litem objected to legal aid being granted to the applicant . The applicant responded to the observations of the curator ad litem .

By DATE the legal aid application had not yet been determined . The applicant expressed concern about the delay and the impact it would have on his chances of contact being re - established with S. He was told that there would be no meeting of the committee charged with making the legal aid decision until DATE .

On DATE ORG intimated its refusal of legal aid to the applicant . On DATE the applicant lodged an application for internal review .

On DATE , after reconsideration , the ORG again refused legal aid . It found that there was no substantive issue of law arising to merit an appeal and that no practical benefit to the applicant could ensue .

On DATE the applicant ’s counsel and solicitors considered commencing judicial review proceedings in respect of the refusal to grant legal aid . It was decided on the applicant ’s behalf that , as the delay involved in judicial review was likely to be extensive and given that legal aid for judicial review proceedings would almost certainly not be granted , no judicial review proceedings would be commenced . Counsel and the solicitors were not prepared to act pro bono in judicial review proceedings since the prospects of success would be low . However , they agreed to act pro bono in pursuing the appeal before ORG without legal aid . ORG waived its fees in respect of the appeal .

The applicant was represented before ORG by PERSON PERSON and PERSON . The instructing solicitors were PERSON .

On CARDINAL DATE the court handed down its judgment . It refused to uphold the applicant ’s appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

She married GPE in DATE and they had CARDINAL children , born in DATE , DATE , DATE and DATE . According to the applicant , GPE was violent towards her and their children on numerous occasions throughout their marriage . In DATE , assaults against the applicant intensified during their divorce proceedings . The divorce was finalised on DATE .

On DATE and DATE the applicant was physically assaulted and threatened by her husband .

According to a forensic medical certificate issued on DATE , the applicant had numerous bruises on her face , arms , back and thorax , which required DATE of medical care . A second forensic medical certificate , issued on DATE , stated that the applicant had an excoriation ( scratches ) on her ear lobe and several bruises on her arm and thighs . It was possible the injuries had been caused on DATE . They required DATE of medical care .

On DATE the applicant was again physically assaulted by her husband . After the arrival of the police , she was taken to hospital by ambulance . She was diagnosed with an open facial trauma and a contusion of the nasal pyramid . According to a forensic medical certificate issued on DATE , the injuries might have been caused by impact with or on a hard object and required DATE of medical care .

In their duty reports for the above dates , the police officers called by the applicant noted that she had been injured in a domestic dispute and that they had informed her that she could lodge formal complaints against GPE In the report drafted on DATE , the police officer on duty also mentioned that when he had arrived at the scene of the incident he had found that GPE had locked the applicant out of their joint residence .

On DATE and DATE the applicant lodged complaints with the prosecutor ’s office attached to ORG , alleging that she had been physically assaulted by her husband in their home , in the presence of their children , on DATE , and CARDINAL and CARDINAL DATE . She attached copies of the medical certificates drawn up after the incidents .

On DATE the applicant also sent a letter to the GPE police chief , in which she alleged that she had been the victim of repeated acts of violence by her husband , who often assaulted her in the presence of their children . She mentioned that on several occasions he had locked her out of their home and asked for help from the police in solving these problems .

On DATE the applicant gave a detailed statement describing the CARDINAL assaults to the policeman in charge with the investigation . She stated that on DATE her husband had come home TIME and had started punching her in the face and head and threatened to kill her . She had managed to flee , but when she had returned TIME her husband had refused to let her back into the apartment . She also mentioned that he had told the children not to speak about it .

NORP In statements dated DATE , the applicant ’s mother and brother told the police that throughout DATE the applicant had very often come to their house , complaining that ORG had beaten her , threatened to kill her or that he had locked her out of their apartment .

On DATE the applicant ’s and GPE ’s adult daughters , C.B.A. and C.C.A. , told the police that the applicant used to drink and that she became aggressive when she got drunk . They also stated that their father had not hit their mother . C.C.A. mentioned that although she earned her own living , her father had always given her money . Her mother , on the other , had constantly been short of money and had debts to banks .

On DATE GPE was questioned by the police . He stated that he had argued with the applicant over their divorce , but had not laid a hand on her . He added that the applicant had not been cleaning the house properly and had a drinking problem . He also stated that “ I did not hit her so hard as to cause her injury ” and that “ she may have fallen in the bathroom ” . He alleged that the medical certificates submitted by the applicant had been forged .

On CARDINAL and DATE the applicant wrote to the head prosecutor of the prosecutor ’s office attached to ORG , complaining that GPE , who had moved out of their apartment and had taken CARDINAL of the children with him , had threatened to kill her when they had accidentally met on DATE before . She stated that she feared for her life and asked for the proceedings to be speeded up and for protection from GPE

On DATE , the prosecutor ’s office attached to ORG decided not to press criminal charges against GPE and imposed an administrative fine of CARDINAL NORP lei ( PERSON ) ( MONEY ( ORG ) ) on him . The prosecutor held that the applicant had provoked the disputes after drinking alcohol and referred to GPE ’s statements and those of the applicant ’s CARDINAL adult daughters . As regards the alleged threats , it was considered that the applicant had failed to prove her accusations .

The prosecutor concluded that , although ORG had committed the crime of bodily harm , his actions had not created any danger to society , because he had been provoked by the victim , had no previous criminal record and was a retired person ( pensionar ) .

The applicant ’s complaint against that decision was rejected as illfounded on DATE by the superior prosecutor .

On DATE the applicant lodged a complaint against the ORG decisions of DATE and DATE with ORG , asking that GPE be charged with bodily harm , be convicted and ordered to pay non - pecuniary damages for the suffering she had endured . She alleged that the administrative fine , which ORG had refused to pay , had not had a deterrent effect on him as he had continued to assault her after the prosecutor ’s decision of DATE . She also asked the court to impose criminal sanctions on him and requested permission to submit a recording of a conversation with ORG in order to prove that she had been assaulted and threatened by him in DATE . In the last paragraph of her submission , the applicant stated that she feared for her life and asked the court to “ punish [ GPE ] as provided for by law ... to forbid him from entering the apartment ... and to forbid him from coming near [ her ] ... ” .

At the second hearing before ORG , the applicant applied to be given a court - appointed lawyer because she did not have the financial means to hire CARDINAL . The court dismissed the application , holding that the subject matter of the case did not require representation by a lawyer .

By an interlocutory judgment of DATE , ORG decided to partially quash the prosecutor ’s decision of DATE in respect of the crime of bodily harm and the penalty imposed for it and to examine that part of the case on the merits . The prosecutor ’s findings in respect of the threats were upheld . The recording was not admitted as evidence because the court considered that it had no relevance to the case .

NORP The applicant and GPE gave statements before the court . GPE explained that on DATE the applicant had been drunk and had threatened him with a knife . In order to defend himself , he had pushed her but he denied having ever hit the applicant .

On DATE the court heard a statement from the applicant ’s daughter , C.B.A. , who testified as follows :

“ My father used to hit my mother [ the applicant ] and us , the children , many times . He used to do it when he had not come home at TIME and my mother asked him where he had been . Then he would get angry and hit her . The main reason he got angry was lack of money ... Even after DATE , when I moved out of my GPE apartment , my mother continued to be hit by my father ; I saw some of these incidents personally . Before DATE , my mother used to drink alcohol , but it was within normal limits , and in DATE she stopped drinking .

I retract the statement I gave during the criminal proceedings because I gave it after threats from my father . ”

On DATE ORG decided to acquit GPE of the crime of bodily harm . The court considered that C.B.A. ’s statement could not be taken into consideration , without mentioning any reasons for that decision . The court concluded as follows :

“ The injured party [ the applicant ] has not proved her allegations that on ORG , DATE and CARDINAL.CARDINAL.CARDINAL ... she was physically assaulted by the defendant . The court considers , also in view of the evidence collected during the criminal investigation , that such assaults by the defendant took place principally because of the injured party ’s alcohol consumption and because she was not taking adequate care of her CARDINAL children . The defendant ’s acts are not so dangerous to society as to be considered crimes and he shall therefore be acquitted of the CARDINAL counts of bodily harm and shall pay an administrative fine of RON CARDINAL . ”

The court further dismissed the applicant ’s claims for damages as ill - founded , without giving reasons . No mention was made in the judgment of the applicant ’s request for protective measures made in her complaint of DATE ( see paragraph CARDINAL above ) .

The applicant lodged an appeal on points of law ( recurs ) against that judgment . She alleged , among other arguments , that GPE was a violent person who continued to assault her , even after being punished with an administrative fine by the prosecutor on DATE .

On CARDINAL DATE ORG dismissed as illfounded the applicant ’s appeal on points of law and upheld the decision of CARDINAL DATE . The court held that the acts of violence committed by GPE had been provoked by the applicant and had therefore not reached the level of severity required for them to fall within the scope of the crime of bodily harm . For the same reason , an award for damages was not justified .

Between DATE and DATE the applicant made CARDINAL complaints to the Petroşani police concerning new incidents of assault or threats by ORG to which she attached medical reports .

In the meantime , on DATE , the applicant asked the GPE police to apply the measures provided by law in order to stop the constant assaults she was being subjected to by GPE She stressed that she felt that her life was in danger . A similar request was sent by the applicant to the police on DATE .

On DATE the prosecutor ’s office attached to ORG decided not to press charges against GPE for the CARDINAL incidents described by the applicant . He was however punished with an administrative fine of RON CARDINAL ( approximately EUR CARDINAL ) .

The applicant ’s letter of DATE , requesting the police to take the necessary measures in order to stop the constant assaults against her , was not taken into consideration . The prosecutor found that it could not be considered a formal complaint because , unlike the other complaints , it did not refer to a specific assault .

The applicant did not lodge any further complaints against the above - mentioned decision .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

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

The applicant , a medical doctor by profession , was born in DATE . She currently lives in PERSON , GPE , having lived in GPE , GPE , at the material time .

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

On DATE the applicant and her neighbour PERSON confronted each other in front of their houses following a verbal conflict between PERSON and the applicant ’s mother . While the applicant allegedly shouted obscenities at him , PERSON allegedly punched her in the face , causing her to fall down and lose consciousness . The medical records from the emergency ward showed that the applicant had sustained a number of injuries to her head . She was released from hospital DATE upon her own request .

On an unspecified date , the applicant lodged a criminal complaint ( krivičnu prijavu ) in respect of this event .

On DATE PERSON and his wife brought a private criminal action ( privatnu krivičnu tužbu ) against the applicant for insult and defamation ( zbog uvrede i klevete ) and against both the applicant and her mother for making serious threats ( zbog ugrožavanja sigurnosti ) .

On DATE ORG filed a bill of indictment ( optužnicu ) against PERSON with ORG for the crime of severe bodily injuries ( zbog nanošenja teških telesnih povreda ) .

On DATE ORG joined the CARDINAL sets of proceedings .

At some point in DATE the applicant lodged a civil compensation claim within the criminal proceedings ( istakla imovinsko - pravni zahtev ) .

Between DATE and DATE a total of CARDINAL hearings were held or adjourned .

At the hearing of DATE a medical expert stated that , based on the available documentation , on DATE the applicant had sustained a concussion as well as a contusion . She had also continued receiving medical treatment for DATE .

On DATE ORG convicted both the applicant and PERSON as charged and sentenced them to a fine and DATE imprisonment , respectively , both sentences suspended for DATE . The court instructed the applicant to pursue her civil claim in a separate civil suit . The applicant ’s mother was acquitted .

On DATE ORG quashed the convictions and ordered a new trial , but upheld the acquittal .

On DATE a new hearing was scheduled for DATE .

On DATE ORG terminated the proceedings against the applicant as time - barred , while the proceedings against ORG continued .

On DATE the main hearing started anew due to changes to the composition of the bench . Following the applicant ’s testimony , the proceedings were adjourned for an indefinite period , as ORG had to obtain certain missing medical documentation .

At the next hearing of CARDINAL DATE , ORG heard GPE , as well as CARDINAL witnesses . The court further decided to request ORG to give its opinion as regards the applicant ’s bodily injuries allegedly sustained at the material time . No new hearing was scheduled .

On DATE ORG received the relevant medical opinion dated DATE . The opinion stated that the attack had caused the applicant severe bodily injuries ( loss of consciousness , a concussion and a contusion of the zygomatic bone ) .

On an unspecified date ORG scheduled the next hearing for CARDINAL DATE . This hearing , however , was further adjourned on CARDINAL separate occasions , because of PERSON ’s or the trial judges’ absence .

On DATE ORG dismissed proposals for the examination of additional witnesses . On the same occasion the defendant requested that the entire trial bench be replaced by another . The case - file was subsequently forwarded to the President of the court for a decision .

On DATE ORG terminated the proceedings against GPE as time - barred .

The applicant never filed a separate civil compensation claim in respect of the underlying incident .

In DATE the applicant and her family moved to GPE .


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

M.K. , the applicant ’s son born in DATE , was taken to ORG on DATE suffering from an acute episode of paranoid schizophrenia . ORG is a public institution of GPE specialising in neurology , orthopaedics , psychiatry and pulmonology . It is situated on a vast area outside the city center in the west of the green - belt of GPE , consisting of CARDINAL hospital buildings with annexes , a church , a museum , a theatre and a large park .

NORP In a decision of DATE , ORG ( LOC ) ordered PERSON ’s involuntary placement in the psychiatric unit of that hospital pursuant to section CARDINAL of the Hospitalisation Act ( Unterbringungsgesetz ) .

On DATE TIME failed to return from an authorised walk in the hospital grounds . He had escaped from the LOC and died after jumping in front of a subway train .

Subsequently , in DATE the applicant brought a civil action in ORG ( PERSON für GPE ) under LAW ( Amtshaftungsgesetz ) against GPE ( PERSON ) as the authority responsible for the hospital , seeking compensation of MONEY ( ORG ) plus interest in respect of nonpecuniary damage .

She stated that in DATE and DATE her son had already undergone inpatient treatment for paranoid schizophrenia at ORG and ORG ) . Hospitalisation had been ordered on DATE because PERSON had posed a danger both to himself and others . He had attacked a chewing gum dispenser with a sledgehammer and appeared to be utterly confused when the police arrived on the scene . The expert PERSON , who was called to assess PERSON ’s mental state , diagnosed him with paranoid schizophrenia . Because of ORG delusional behaviour , there was a risk that he would harm himself or others . The expert concluded that ORG mental state required him to be placed in a closed psychiatric institution .

NORP However , on CARDINAL and DATE CARDINAL PERSON managed to escape from the closed ward of ORG and was found and brought back only after a search conducted by the police and the hospital staff . On DATE he escaped from the open ward to which he had been transferred in the meantime , and committed suicide by jumping in front of a subway train .

NORP The applicant claimed that she had suffered a massive shock as a result of her son ’s death . Before his involuntary placement in the hospital , GPE had lived with her in the same household and they had had a very close relationship . The applicant claimed that as a result of his death she had suffered from depression and insomnia and had been seeing a psychotherapist since DATE . Nonetheless , her mental state had not improved since .

The fact that her son had been able to escape from the hospital LOC led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties . Because PERSON ’s behaviour had been unpredictable , he should have been under strict supervision . In the circumstances , and especially because he had managed to escape twice before , restriction of his freedom of movement within a closed ward was proportionate , necessary and adequate . Furthermore , such restriction should have included a degree of supervision by the hospital staff . The contract for ORG treatment had included duties of protection and care . There had been signs of suicidal thoughts on the patient ’s part , and the hospital staff should therefore have prevented him from leaving the ward . However , the necessary diligence had not been exercised . For these reasons , the applicant claimed that GPE had been at fault and was therefore responsible for the non - pecuniary damage she sustained .

GPE asked ORG to dismiss the applicant ’s claim . It argued that GPE ’s involuntary placement in the psychiatric institution on DATE had been necessary as he had not been aware of his mental illness and had refused to be treated . At the time , he had been utterly confused and it had not been possible to reason with him . Because of the threat he posed to himself and others , he had repeatedly had his freedom of movement restricted whilst in hospital and had had to be medicated parenterally . On DATE he had left the acute station without permission and went to his GPE place . When the police and the ambulance brought him back to the hospital , he had had to be sedated intravenously because of the highly psychotic state he was in . On DATE , DATE , he escaped again from the acute station , but was apprehended by the hospital ’s security staff on the premises of the hospital . However , from DATE , ORG attitude changed and he became willing to take oral medication . From DATE on , his freedom of movement was no longer restricted . He had appeared well - adjusted and friendly . In view of the progress in his treatment , and as he appeared more reasonable and able to abide by agreements , he had been transferred from the acute station to the subacute ward on DATE . However , he had then succumbed to socalled “ dynamic exhaustion ” ( dynamische PERSON ) , which manifested itself in a noticeable loss of drive and the desire for a quiet environment . The hospital staff had therefore tried to animate PERSON through occupational therapy and recreational walks in the hospital grounds , which − on the basis of a well - documented medical order − he had been allowed to take on his own as of DATE . This medical order had taken into account the fact that PERSON had twice before escaped from his ward . Thereafter , however , PERSON had continued to receive treatment for DATE and there had been a considerable improvement in his condition . Moreover , he had been made aware that he was not allowed to leave the hospital LOC and had to notify the staff before going out for a walk and again upon his return . He had also been permitted to leave the building to smoke a cigarette . The hospital had maintained detailed documentary records of his medical treatment and progress . There had been no indication of suicidal thoughts . However , on CARDINAL DATE at CARDINAL.CARDINALpm the doctor on duty was informed by the hospital staff that the applicant ’s son had not returned from an authorised walk in the hospital grounds and had apparently taken his personal clothing with him . A search operation had immediately been initiated on the LOC and at the same time the police had been asked to search for him . At TIME the police informed the hospital that GPE had been killed in a subway train accident at TIME .

GPE submitted that under the provisions of LAW and in keeping with current practice in the treatment of mentally ill patients , “ open ” psychiatry was the norm and restriction of a patient ’s freedom of movement was permissible only in cases of absolute necessity and within the bounds of proportionality . In the present case , by CARDINAL DATE restriction of the physical movement of the applicant ’s son ( known as “ fixation ” ) , and/or the spatial restriction of his movement to the confines of a psychiatric bed , or his permanent supervision , were no longer medically indicated , nor would such measures have been reasonable or adequate . On the contrary , the lack of any indication of suicidal thoughts on the part of GPE would have rendered any further restriction of his freedom of movement unlawful under LAW .

During the oral hearing of DATE the applicant reduced her claim to CARDINAL ORG plus PERCENT interest per annum .

On DATE ORG granted the claim . It found that even shortly before his death on CARDINAL DATE , it could be assumed that GPE still posed a threat to himself and others , in particular because he still suffered from the delusional idea that he was a different person and did not recognise his parents as his own . Self - harming behaviour could occur outside the hospital environment , due to overstimulation , even in patients who had shown progress after a psychosis . It was no longer possible to determine whether the applicant ’s son had jumped in front of the subway train in order to deliberately commit suicide , or whether he followed a spontaneous impulse or a delusional thought to that end . In any event the hospital should have made sure that he was not able to leave the hospital grounds , even if therapeutic walks were medically indicated and permissible in the circumstances .

From a legal perspective , ORG affirmed that , as the authority responsible for ORG , GPE could be held accountable for any culpable action or omission by its organs or officials , pursuant to CARDINAL of LAW . At the material time , the applicant ’s son had been lawfully hospitalised by a decision of ORG of DATE , which remained valid until DATE . Sections CARDINAL and CARDINAL of LAW in force at the time provided that , in cases where hospitalisation had been ordered , it was also necessary to guard against threats potentially posed by the patient . Accordingly , the hospital was obliged to ensure restriction of the patient ’s freedom of movement in order to protect against potential damage . In the instant case , PERSON was allowed to take walks on the hospital premises because such walks were medically indicated . However , no measures were taken to ensure that he respected the restrictions on his freedom of movement . There was no effective supervision of his walks or their duration . By disregarding its duty of supervision , the hospital had implemented LAW incorrectly . It was immaterial that the applicant ’s son had not shown any signs of suicidal tendencies because the hospitalisation was originally effected because of the danger he posed to himself and to others . Therefore , even if he did not pose a threat to himself anymore , the requirement for hospitalisation was still valid because of the threat he posed to others . In the instant case , the lack of supervision of GPE resulted in the applicant having to suffer the shock of the death of her son . The court concluded that the civil claim was justified and granted the applicant LAW plus interest by way of compensation in respect of non - pecuniary damage .

GPE appealed , claiming that the court had wrongly assessed the evidence , that its finding of facts was incorrect , and that it had wrongly interpreted the law .

On DATE ORG ( Oberlandesgericht ) granted the defendant ’s appeal and dismissed the applicant ’s claim . In its view , there had been no causal link between the wholly unexpected suicide of the applicant ’s son and the alleged dereliction of the hospital ’s duty of supervision under LAW . Although it was stated in the hospital admission report that there was a danger of ORG putting himself and others at risk due to his disoriented state , it was also explicitly mentioned that he had no suicidal thoughts . According to the expert opinion by Dr P of CARDINAL DATE , the continuation of ORG hospitalisation on CARDINAL DATE was indicated only because of the threat he posed to others , in particular to his mother , but no longer to himself . This was the reason why his freedom of movement at that point had been restricted to the hospital LOC rather than just the closed ward . The court found that in the light of the improvement in his symptoms , it was not unusual that he had been allowed to take walks for therapeutic purposes , even if it might have been advisable to allow these walks only when accompanied by hospital staff .

The Court of Appeal further affirmed that there had been no indication of self - harm during PERSON ’s entire stay at the hospital . He had not voiced suicidal thoughts or undertaken any actions of a suicidal nature . It could not be established whether his jumping in front of the subway train was a suicide which he had planned even before he left the hospital premises , or whether it had been a spontaneous act of self - harm resulting from his psychosis . Naturally , PERSON would not have been able to commit suicide if he had been prevented from leaving the hospital grounds . Even with patients whose psychotic symptoms had improved , the phenomenon of overstimulation could occur if they left the therapeutic environment , whereas such a situation was much less likely to occur within the confines of a hospital . Section CARDINAL § CARDINAL of LAW referred , as its purpose , only to the protection of the life and limb of the mental patient himself and third parties . The behaviour of GPE had not been foreseeable because there had no longer been any indication of possible self - harm at the material time and his action was therefore not attributable to the hospital . The fact that the risk of self - harm could never be entirely excluded in the case of psychotic patients did not change this assessment .

The applicant appealed , arguing that at the time when PERSON had committed suicide , the initial decision by ORG on his hospitalisation had still been valid and was based on the assessment that he posed a danger to himself and others because of his paranoid schizophrenia . No new expert opinion had been obtained , and the hospital had not informed the guardianship court ( GPE ) that the threat of selfharm had ceased to exist . Consequently , the medical indication would still have been a restriction of GPE ’s freedom of movement . By failing to restrict his movement , the hospital had acted contrary to the court decision ordering his hospitalisation .

On DATE ORG dismissed the applicant ’s appeal , upholding the legal and factual findings of ORG . It added that a lawful implementation of LAW was possible both inside and outside a closed ward . PERSON ’s hospitalisation had therefore not been unlawful , even though he had been placed in the open ward from DATE . Contrary to the applicant ’s line of argumentation , ORG had not had a duty to implement ORG decision on ORG hospitalisation in a manner which compelled it to restrict his movement . This followed from section CARDINAL of the Hospitalisation Act – according to which a hospitalisation order could be lifted at any time by the head of the institution – and section CARDINAL , which stated that restriction of movement was permissible in limited cases only . ORG decision had not defined the extent or duration of any specific restriction of movement . LAW of the Hospitalisation Act provided that a restriction of freedom of movement might only be used as an exceptional measure and “ last resort ” . Also , ORG and CARDINAL of the LAW restricted the permissibility of isolating mentally ill patients . Even within a closed ward , mentally ill patients had to have the widest possible amount of freedom of movement . Only the more restrictive measures under LAW of LAW were subject to judicial review .

ORG also stated that from a therapeutic perspective PERSON had been allowed to take unaccompanied walks because of the improvement in his condition . Moreover , from the time he had been authorised to take these walks , he had always returned without problems . This measure , which had been ordered by the psychiatrist treating him , had therefore been proportionate and necessary pursuant to section CARDINAL of LAW . In conclusion , the hospital had not acted culpably , for which reason the applicant ’s claim under LAW was not justified .


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives 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 DATE the applicant filed an application with ORG ( Zakład Ubezpieczeń Społecznych – “ the SSB ” ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with her application for a pension , she submitted , among other documents concerning her son ’s health , a medical certificate issued by a specialist doctor on DATE . The certificate stated that the child ( born in DATE ) suffered from hypothyroidism ( niedoczynność tarczycy ) and was in need of the parent ’s constant care .

On DATE the ORG issued a decision granting the applicant the right to an earlyretirement pension in the gross amount of MONEY ( PLN ) per month , starting from DATE .

The applicant was issued with a pensioner ’s identity card marked “ valid indefinitely ” and she continued to receive her pension without interruption until DATE of the revocation of the right .

On an unspecified date the ORG reviewed the applicant ’s pension application under LAW ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń DATE “ the DATE LAW ) .

The ORG requested ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child in question could not be considered as ever having required such care .

On DATE the ORG simultaneously issued CARDINAL decisions in respect of the applicant . By virtue of the first decision , the payment of the applicant ’s pension was discontinued starting from DATE . By virtue of the second decision , the ORG revoked the initial decision of DATE and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki DATE “ the DATE LAW ) .

The applicant appealed against the above - mentioned decision divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her child required constant care , as confirmed by the medical certificate attached to her original application for a pension .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal . On the basis of a report on the state of health of the applicant ’s child prepared by an expert in endocrinology the court found that the applicant ’s son had not required , as of DATE , a constant care of his mother . It held that the applicant had been rightfully divested of her right to an EWK pension .

On DATE ORG ( Sąd Apelacyjny ) dismissed the applicant ’s appeal against the first - instance judgment . It agreed with the first - instance ORG findings of fact . As regards the reopening of the proceedings , it observed that the ORG had acted in accordance with LAW . It considered that , in the applicant ’s case , the proceedings had been reopened because new evidence had been obtained by the authority , namely the documents relating to the course of the child ’s medical treatment .

The applicant did not lodge a cassation appeal with ORG ( Sąd Najwyższy ) .

Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of ORG ( PERSON ) of DATE declaring CARDINAL ( CARDINAL ) of the DATE Law unconstitutional ( see paragraphs DATE below ) .

Social security system

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of GPE GPE , no . CARDINAL , § § ORG , DATE and PERSON v. GPE , no . CARDINAL , § § ORG , DATE .

By virtue of the law of DATE on amendments to the law of DATE on retirement and disability pensions paid from ORG and to certain other acts ( LOC o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń LOC oraz niektórych innych ustaw – “ the DATE Act ” ) , which entered into force on DATE , a new paragraph CARDINAL was added to CARDINAL of the law . The amended section CARDINAL of the DATE PERSON provided as follows :

“ CARDINAL . The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances , which had existed before issuing the decision and which have an impact on the right to benefits or on their amount , are discovered .

Paragraph CARDINAL applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established . ”

On DATE , before paragraph CARDINAL was added to section CARDINAL of the DATE Law , ORG adopted a resolution in which it held :

“ A different assessment of the [ same ] evidence as attached to the application for a retirement or disability pension , carried out by a social security authority after validation of the decision awarding the right to a pension , is not one of the circumstances justifying the ex officio re - opening of the proceedings for a review of the right to a pension in accordance with section CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG . ”

In a judgment given on DATE ( case no . III GPE CARDINAL ) ORG held that , when applying section CARDINAL ( CARDINAL ) of the DATE Law , the domestic courts should take into account the criteria set out in the ORG ’s judgment in the PERSON case . They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned . In examining whether the social security authority was allowed to reopen the proceedings , they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted . When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual ’s right to a social benefit . Accordingly , where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual , the relevant decision should not be revoked .

In a judgment of CARDINAL DATE ( case no . I GPE CARDINAL/CARDINAL ) ORG reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under LAW of the DATE PERSON should be assessed in the light of the criteria set out in the ORG ’s judgment in the PERSON case . In this connection ORG underlined that ORG constituted an integral part of the NORP legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the ORG .

In a judgment of DATE ( case no . III GPE CARDINAL ) ORG held that section CARDINAL ( CARDINAL ) of the DATE PERSON should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with LAW CARDINAL ( CARDINAL ) . If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence , it would have to be considered incompatible with the principle of the rule of law set forth in LAW . ORG considered that its interpretation of the provisions of the DATE PERSON was further supported by the principles set out in the FAC judgment of the ORG .

On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL ) of the DATE Law to be declared unconstitutional . The ORG argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority .

On DATE ORG held that section CARDINAL ( CARDINAL ) of the DATE PERSON was in breach of LAW ( the principle of the rule of law ) and LAW ( the right to social security ) of LAW . It found that , as the provision in question allowed for an unlimited re - assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit , it was in breach of the principle of the rule of law as set forth in LAW .

Furthermore , ORG found that the provision in question did not strike a fair balance between the general interest and an individual ’s right to social security under LAW . The court considered that an interference with individual rights guaranteed by LAW , which pursued the aim of correcting the authority ’s own mistake , could only be justified under exceptional circumstances . However , on the basis of the impugned provision the social security authority could , at any time and without any limitations , review the decision concerning a social security benefit by means of re - assessment of the evidence before it .

In the grounds for the ruling ORG also referred to the ORG ’s PERSON judgment . It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings , which had been , however , based on section CARDINAL ( CARDINAL ) of the Law CARDINAL as LAW ( CARDINAL ) had not been in force at the material time . It further observed that the ORG ’s judgment had influenced the interpretation of LAW ( CARDINAL ) of the DATE PERSON by ORG ( see paragraphs DATE above ) .

Lastly , with regard to the consequences of its ruling , ORG noted that the breach of LAW should be remedied by restoring the state of conformity with the law ( wymaga przywrócenia stanu zgodnego z prawem ) . In that context , ORG explicitly stated that the finding of unconstitutionality of section CARDINAL ( CARDINAL ) of the DATE PERSON should be a ground for the reopening of proceedings in which final rulings had been based on this provision .

On DATE the judgment was published in ORG ( PERSON ) and entered into force on that date .

Article CARDINAL of the LAW , in so far as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published immediately .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final judicial decision , final administrative decision or ruling on other matters was given , shall be a basis for reopening proceedings , or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings . ”

( b ) Code of Civil Procedure

In accordance with LAW in conjunction with LAW of the Code of Civil Procedure ( Kodeks Postępowania Cywilnego ) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened , if ORG has found that the normative act on the basis of which this judgment was given was incompatible with LAW .

Pursuant to LAW , a request to that effect shall be lodged within DATE from the date on which the judgment of ORG has entered into force . Pursuant to LAW a request for the reopening of the proceedings must be lodged within DATE from the date on which the final judgment has been given , unless the party could not act in the proceedings or was not properly represented .

Under LAW , a reopened case is to be examined within the limits determined by the grounds for the reopening . According to LAW of this provision , after a fresh examination of the case , the court may either dismiss the request for reopening , or allow it and alter or quash the impugned judgment . If need be , it may reject the claim on formal grounds or discontinue the proceedings .


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

NORP The applicant company is a privately owned company registered in GPE , GPE .

NORP In DATE a call for tender for hotel “ Otrant ” in GPE was issued . The deadline for submitting bids was DATE . Together with CARDINAL other companies , the applicant company took part in the tendering process . On DATE , however , it was informed that the tender was awarded to another bidder .

On an unspecified date in DATE , the applicant company objected to this decision . On DATE ORG in GPE ( GPE sud u GPE ) rejected the applicant company ’s objection .

On DATE the Court of Appeal quashed this decision and remitted the case to the first instance .

On DATE ORG ruled against the applicant company . This decision was served on the applicant company on DATE .

On DATE ORG upheld the decision of ORG . The decision of ORG was served on the applicant company ’s lawyer on DATE .

On DATE the applicant company lodged an initiative urging ORG državno tužilaštvo ) to file a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) , but this motion was rejected on DATE .

On DATE the applicant company lodged a constitutional appeal . On DATE ORG rejected this appeal as having been lodged out of time .


CASE OF SKIDAN AND ZINKOVSKYY v. UKRAINE

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

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law . The applicant in application no . CARDINAL/CARDINAL also raised another complaint under LAW concerning the conditions of his detention .


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

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

Background

NORP Since DATE the applicant has resided in a flat located in a building in GPE in GPE : first due to his employment at the property and , as from DATE , on the basis of a rental agreement with GPE ( the owner of the property and the building ) . The GPE area is considered to be cultural heritage of national interest and has been recognised as such by ORG ( GPE ) .

NORP In DATE the applicant appealed against a detailed development plan ( detaljplan ) adopted by ORG ( kommunfullmäktige ) of GPE which would allow for the construction of a tunnel under GPE as part of a motorway project called “ PERSON ” . The appeal was rejected by the Government , for which reason the applicant applied for judicial review before ORG ( Högsta förvaltningsdomstolen ) . He claimed , inter alia , that he , and others living within or close to the area , would be negatively affected by the construction of the tunnel as it would cause various disturbances , particularly during the construction . Moreover , he contended that the nature and landscape of the park would be affected in violation of the Law on Natural Resources ( lag om hushållning med naturresurser m.m . , CARDINAL:CARDINAL , which was subsequently replaced by LAW [ ORG , CARDINAL ] ) . On DATE ORG repealed the ORG ’s decision , finding that the planned construction would constitute a breach of the law invoked in that the construction would encroach upon an area classified as a National City Park ( nationalstadspark ) .

Consequently , the Government annulled the detailed development plan in question and , later , ORG adopted a new detailed development plan which gained legal force in DATE . Subsequently , ORG adopted an amendment to this detailed development plan . However , the amendment required changes to LAW and , in DATE , such changes were adopted .

NORP The proceedings relating to the amendment of the detailed development plan

On CARDINAL DATE ORG adopted the amendment to the detailed development plan concerning PERSON . The amendment allowed for the construction from above ground of a tunnel through FAC . ORG noted that the amendments were focused on the method of constructing the tunnel . It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished . Thus , there would be no considerable impact on the environment , nature , cultural heritage or people ’s health and , hence , a formal environmental evaluation would not be necessary .

The applicant appealed against the decision to ORG ( länsstyrelsen ) , claiming essentially that the amendment was not in accordance with LAW and that a formal environmental evaluation should have been carried out . In his opinion , the negative effects on the environment and nature outweighed the benefits of the construction of the tunnel .

On DATE ORG rejected the appeal . It agreed with ORG that there was no need for a formal environmental evaluation . Moreover , having weighed the applicant ’s individual interests against the general interests that the amendment sought to protect , ORG concluded that the applicant ’s submissions did not suffice to repeal the decision of ORG . Lastly , it found that no other circumstances had been presented which could lead it to repeal the decision .

The applicant appealed against the ORG ’s decision to the Government . He noted that he had not claimed that his individual interests were of any significance . However , he stressed the general interest in preserving the park and in particular a number of trees in the park . In his view , these general interests had not been considered properly and ORG had completely ignored his claim that the decision breached certain provisions in LAW .

On DATE the ORG rejected the appeal . It first observed that the purpose of the amendment to the detailed development plan was to render possible the construction of the tunnel from above ground and , at the same time , to ensure that the intrusion would be temporary and limited to the period of the actual construction . The landscape was to be restored immediately afterwards according to an adopted quality programme which was based on an historical park plan from DATE . The Government then observed that , although the area affected by the amendment was part of ORG , the amendments to LAW of DATE allowed for certain measures that would cause only temporary encroachment or damage to the park . Having regard to all , the ORG found no reason to depart from the ORG ’s assessment that the plan complied with the provisions of LAW . As concerned the applicant ’s other submissions , the Government considered that they did not give reason to alter or repeal the ORG ’s decision .

The applicant then requested a review of the ORG ’s decision by ORG under LAW ( lagen om rättsprövning av vissa regeringsbeslut , CARDINAL ; hereafter “ the CARDINAL Act ” ) . He submitted that the ORG ’s decision violated LAW as well as LAW . He particularly stressed that the construction of the tunnel meant that several old trees in the park would be cut down , causing irreparable harm .

On DATE , ORG dismissed the applicant ’s request for judicial review . The court noted that , according to LAW , an individual may apply for judicial review of such decisions by the Government that concern the individual ’s civil rights or obligations within the meaning of LAW . It then observed that the property where the applicant resided was located outside the area covered by the detailed development plan . He also did not own property within or adjacent to the area covered by the plan . The court concluded that the ORG ’s decision did not concern the applicant ’s civil rights or obligations within the meaning of LAW and , therefore , he did not have locus standi before the court .

The judicial review procedure

On DATE , LAW replaced LAW ( lagen om rättsprövning av vissa förvaltningsbeslut , GPE , hereafter “ the DATE LAW ) .

According to the preparatory work to LAW , the purpose of judicial review was to provide access to court as regards decisions which should be subject to judicial review under the Convention , but where NORP national law did not provide such a right beyond the possibility to apply for the extraordinary remedy of relief for substantive defects ( Government PERSON p. CARDINAL ) . The preparatory works further noted that the scope of application of LAW had been too narrow in some cases , while in other cases its application went further than required by the LAW in relation to “ civil rights and obligations ” ( ibid . , p. CARDINAL ) . Thus , the provision on right of action was formulated differently in LAW compared to LAW .

Consequently , under LAW , an individual can only apply for judicial review of decisions by the Government when they involve a determination of the individual ’s civil rights or obligations within the meaning of LAW .

Section CARDINAL of the CARDINAL Act states that ORG shall annul the ORG ’s decision if the decision contravenes a legislative provision either in the way alleged by the complainant or in a way that is clearly apparent from the circumstances . However , this does not apply if the error obviously lacks significance for the decision .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in DATE .

The applicant arrived in GPE in DATE . He was subsequently convicted of criminal offences on several occasions . He was released on DATE after serving his most recent prison sentence .

On DATE ORG issued an exclusion order , declaring the applicant ’s presence in GPE undesirable and prohibiting his return to GPE until DATE . Further to the exclusion order , on DATE the migration authorities issued a deportation order in respect of the applicant and he was later arrested . On DATE a judge authorised his further detention until DATE , with a view to enforcing the deportation order . His detention was then extended until DATE .

On DATE the NORP authorities informed the NORP migration authority that the applicant was not a NORP national and that they would not assist in his return to GPE . The applicant was released on DATE following the expiry of the latest detention order .

On DATE the applicant was accused of an offence under LAW ( ORG ) on account of his presence in GPE without the necessary documents . On DATE the ORG of GPE convicted the applicant and ordered his administrative removal from GPE ( without specifying the destination country ) . The judge noted that the applicant was a stateless person but held that he had to comply with a statutory obligation to leave GPE , having no valid legal basis for being there . Lastly , the judge ordered that the applicant be placed in a detention centre for foreigners , with a view to enforcing his administrative removal .

The judgment was amenable to appeal within DATE of receipt by the defendant .

On DATE the applicant appealed , arguing , inter alia , that the penalty of administrative removal could not be enforced in the absence of NORP or any other nationality and that it was therefore unjustified to place him in detention and keep him there .

On DATE GPE upheld the judgment of DATE . The appeal court considered that the applicant could still be removed to the country from which he had arrived in GPE if there was a readmission agreement with that country ; that he could be held in detention for a maximum of DATE , which was the statutory period for the enforceability of a penalty ; and that the ORG had not required the trial judge to set any time - limit when ordering his placement in a detention centre for foreigners .

On DATE the NORP authorities again informed the NORP migration authority that they would not assist in providing documents for the applicant ’s return to GPE as he was not a NORP national and there were no other legal grounds for such assistance .

The applicant sought a review of the decisions of DATE and DATE . On DATE the deputy President of ORG upheld them on review under LAW ORG .

On DATE ORG dismissed an application from the applicant to terminate the proceedings to enforce the judgment of DATE . The court held that there was no statutory basis in the ORG or other legislation for granting such an application . On CARDINAL DATE ORG upheld that decision .

In the meantime , on DATE , referring to LAW , the applicant lodged an application for release and again sought termination of the enforcement proceedings . By a letter of CARDINAL DATE a judge of ORG returned his application without examination .

The applicant lodged an individual complaint with ORG ( see paragraph CARDINAL below ) .

On DATE the applicant ’s lawyer lodged an application with ORG of GPE in order to obtain the applicant ’s release , referring to the above - mentioned constitutional ruling . On DATE ORG ordered his release .

From DATE to CARDINAL DATE ( when the application was lodged with ORG ) and then further until DATE the applicant was kept in the FAC for ORG ( Центр временного содержания иностранных граждан ) in GPE . From DATE to mid - February CARDINAL he was kept in cell no . FAC and from DATE to CARDINAL August DATE he was in cell no . CARDINAL . According to the applicant , each cell measured QUANTITY and accommodated CARDINAL people . The cells were equipped with bedside boards and beds but there were no chairs , tables or other furniture . On CARDINAL DATE the applicant was transferred to cell no . CARDINAL , measuring QUANTITY , where he was kept alone . From DATE to CARDINAL DATE he shared cell no . CARDINAL , measuring QUANTITY , with another detainee . From DATE he was in cell no . CARDINAL and from DATE to CARDINAL DATE he was kept in cell no . CARDINAL with CARDINAL other detainees .

During the period of his confinement CARDINAL DATE the applicant was locked in his cell most of the time , being taken to a courtyard ( measuring QUANTITY ) DATE for TIME . He was taken there every third day from DATE . The yard had no equipment for sport or leisure activities , no benches and no shelter from the rain or snow .

The toilets in the cells were separated from the main area by a fixed partition . There was no proper , ceramic toilet bowl , just a “ hole ” with a flusher set on a small base so the toilet had to be used in a squatting position . According to the applicant , the partition was not high enough and the toilet area remained visible . There were also unpleasant odours .

Shower facilities were accessible for TIME DATE in DATE and once every seven to ten days from DATE . There were no facilities for washing or drying clothes and no toilet paper , toothpaste , soap or the like was provided . PERSON was changed once a month . Subsequently , the applicant also stated that the cells became infested with bugs , cockroaches and mice , although it was not clear to what period of time he referred to . He submitted a photograph showing CARDINAL captured mice in containers .

Food was brought to the cells but was cold , particularly in DATE , and of mediocre quality . In the absence of tables , detainees had to eat on their beds . There was no supply of drinking water and no facilities for boiling water or cooking food . It was not possible to purchase food .

He had been allowed to leave cells CARDINAL and CARDINAL and move within the corridor and shower area but had been prohibited from entering other cells .

No radio , television , newspapers or the like were provided in the detention centre . The applicant and his co - detainees were apparently allowed to have a television set during his most recent period of detention .

The applicant has submitted several photographs of the cells , a statement written by his cellmate after DATE , a statement from a detainee written in DATE and a recent news report about the detention centre .

In DATE the detention facility was visited by members of a public oversight committee . They noted that the toilets ( consisting of a “ hole ” ) in the cells on the fourth floor were separated from the main area by a low partition or curtain and that it was not possible to switch the lights on or off from inside the cells . They also noted that the detention centre had no courtyard for detainees .

According to the ORG , as of DATE the applicant was being held in cell no . CARDINAL , which measured QUANTITY ( not CARDINAL as submitted by the applicant ) . The cell was equipped with a toilet , a sink with hot and cold water , beds and a table . The main lights were switched off at TIME . The detention centre had a library and detainees could borrow books . Food was prepared and delivered by an external catering company . Hot food was brought in special containers .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)

Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

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

The applicant and his mother entered GPE on DATE and were granted CARDINAL months’ leave to enter as visitors . Following the expiry of their leave they remained in GPE as overstayers .

The applicant ’s father entered GPE in DATE .

The applicant ’s siblings were born in GPE on DATE and DATE .

On DATE the applicant ’s mother claimed asylum on undisclosed grounds . The applicant and his CARDINAL siblings were named dependents on that claim . The Secretary of ORG for ORG refused the asylum claim on DATE . Following a reconsideration of the case in DATE , the Secretary of ORG again refused the asylum claim but granted the family CARDINAL years’ exceptional leave to remain in GPE .

In DATE and DATE the applicant , who was then DATE , received police cautions for offences of assault occasioning actual bodily harm and robbery .

On DATE he was convicted of robbery and assault occasioning grievous bodily harm .

On DATE the applicant , his mother and his siblings were granted indefinite leave to remain in GPE . His mother and siblings have since become NORP citizens .

On DATE the applicant was convicted of disorderly behaviour or using threatening / abusive / insulting words likely to cause harassment , alarm or distress . He was fined GBP CARDINAL .

On DATE he was convicted of burglary , theft and impersonating a police officer . He was sentenced to a community punishment order of TIME .

On DATE the applicant was convicted of robbery and was sentenced to CARDINAL years’ detention in a ORG .

NORP In or around this time the Secretary of ORG considered instigating deportation proceedings against the applicant . On DATE he decided not to pursue such proceedings owing to the length of his residence in GPE . However , he warned him that should he come to the adverse attention of the authorities through criminal offending in the future , he could be liable to deportation .

In DATE the applicant ’s father was granted indefinite leave to remain in GPE .

On DATE the applicant pleaded guilty to the supply of Class A drugs . On DATE he was sentenced to CARDINAL years’ imprisonment . The sentencing judge addressed him in the following terms :

“ this case has been a copy - book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names , preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no - one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in GPE ... Your nickname of ‘ Bruiser’ ensured that when the ‘ workers’ as you called those who sold drugs on your behalf , ‘ messed up’ it was your policy , to use your own words , of ‘ roughing them up a little bit’ . You told the jury , with some satisfaction , that this policy was successful ... I regard you as close to the source of supply and wholesaling to retailers in GPE on a persistent and regular basis . ”

The applicant ’s appeal against conviction and sentence was dismissed on DATE . However , on CARDINAL DATE ORG substituted the applicant ’s sentence of CARDINAL years’ imprisonment with CARDINAL of CARDINAL years’ detention in a ORG . While in detention he received CARDINAL adjudications , which included the use of threats and abusive behaviour , disobeying lawful orders , fighting with other inmates , and attempting to commit / incite another inmate to commit assault on staff .

He was released on licence on DATE .

Pursuant to section ORG ) of GPE DATE ( “ the DATE LAW ) , the Secretary of ORG was required to make a deportation order in respect of foreign criminals sentenced , inter alia , to a period of imprisonment of DATE , unless CARDINAL of the exceptions in section DATE namely that removal would breach their rights under either LAW or LAW applied ( see paragraphs CARDINAL and DATE below ) .

On DATE the Secretary of ORG notified the applicant of his liability to automatic deportation and asked him to submit reasons why he should not be deported . His representatives responded to that letter ; however , on DATE he was served with both a deportation order dated DATE , and a decision that section ORG the DATE Act applied ( that is , he was liable to automatic deportation and removal would not breach his rights under either LAW or LAW ) .

In a section of the decision headed “ Consideration under ORG ” , the Secretary of ORG had regard to her obligations under LAW . Although she accepted that the applicant had family ties in GPE with his mother , father , brother and sister , in the absence of further elements of dependency she found that these ties did not constitute family life . She did accept that he enjoyed private life in GPE but did not consider that his removal would be disproportionate to the legitimate interest of preventing disorder and crime . In particular , she noted that he had an elderly grandmother in GPE and as an adult he could be expected to readjust to life there . Furthermore , as LANGUAGE was one of the official languages of GPE , he would not face a language barrier on return . Finally , she had regard to the seriousness of his criminal record , the CARDINAL adjudications he had received while in detention , and the fact that he had been warned about the risk of reoffending in DATE . She therefore concluded that his deportation would not be in breach of LAW .

The applicant appealed against this decision . In support of his appeal , he submitted a report by PERSON , a consultant forensic psychiatrist . The report indicated that he suffered from dyslexia ; that he had developed Adolescent Conduct Disorder which could manifest itself in antisocial behaviour but was not inevitably associated with continued offending in adult life ; and that although he presented a medium risk of reoffending , there existed a number of positive factors which would decrease the likelihood of continued criminal involvement , including his family ’s abstention from criminal activity , his sustained and supportive parental relationships , his wish to improve himself , and the absence of substance misuse .

On DATE the First - tier ORG ( ORG ) allowed the applicant ’s appeal on LAW grounds , having found that his deportation would be neither proportionate nor necessary in a democratic society . It found that the applicant did enjoy family life with his parents and younger siblings , his unfortunate history having resulted in a particular dependency on them , since he required their support to “ help him to change from being a criminal offender to an employed adult and useful member of society ” . In addition , it found that he had also established a private life in GPE ; that he had no experience of living in GPE , save for a short period as a baby and DATE in DATE ; that he had no close relatives in , and no ties to , GPE ; that he had indicated his remorse and given assurances that he would not offend again ; and that his working and studying whilst in detention supported those assurances .

NORP The Secretary of ORG was granted permission to appeal on DATE .

On DATE ORG ( ORG ) found there to have been a material error of law in the decision of the First - tier ORG . The decision was set aside in its entirety and the case submitted for a full rehearing before ORG .

On DATE ORG dismissed the applicant ’s appeal against the deportation order .

The ORG considered the principles established by this ORG in GPE v. GPE , no . CARDINAL , ECHR CARDINALIX , GPE v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALXII and PERSON v. GPE [ ORG ] , no . DATE . In its view , the single most compelling factor in the applicant ’s favour was the length of his residence in GPE . It also had regard to his family ties . Although it did not accept that there was any additional element of dependency which would enable it to find the existence of family life for the purposes of LAW , it nevertheless accepted that the applicant ’s parents and siblings were an important part of his private life .

Balanced against his long residence and established private life , the ORG considered the applicant ’s criminal record . It noted that he had a long history of offending , beginning at DATE ; that he had received fair warning from the Secretary of ORG in DATE that any further offending would not be tolerated ; that notwithstanding that warning and the subsequent assurances given to the Secretary of ORG that he was turning his life around , he was already engaged in drug dealing ; that his criminal behaviour had not only continued but had also escalated ; that whilst serving his most recent sentence , he had received CARDINAL adjudications , the majority of them for violence and disobedience ; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending ; and that whilst the majority of his offending had occurred when he was a child , his most recent and most serious had occurred after he had attained his majority .

With regard to the issue of future offending and risk to the public , the ORG found it difficult to accept his assurances that he had had a genuine change of heart and no longer posed a risk to the public . He had made similar assurances when faced with deportation in DATE , and since his criminal associates were in prison the fact that he did not see them was not a weighty factor indicating a lifestyle change . Furthermore , there was no evidence that either of his parents would be able to exert any positive influence over him , as they had been unable to do so in the past . Although he was in employment on DATE , there was no evidence of a contingency plan should he not progress into more secure employment .

Therefore , whilst accepting that the applicant ’s removal would be difficult , the ORG concluded that he was of an age where he could be expected to “ stand on his own QUANTITY and make a life for himself ” . His family could visit him in GPE and there was evidence to suggest that he had a number of relatives living there . The ORG further noted that he had no girlfriend or children in GPE , he was in good health , and he would not face any language difficulties as there was a universal use of LANGUAGE in GPE . Consequently , the ORG concluded that in spite of his long residence and family circumstances , serious reasons ( as required by ORG in PERSON , cited above , § DATE ) existed to justify the applicant ’s expulsion , and that the public interest in effecting deportation outweighed his Article CARDINAL rights .

On DATE ORG refused to grant the applicant permission to appeal . ORG similarly refused permission to appeal on DATE , and again on DATE following an oral hearing . It found that although the case had required a difficult and delicate balancing exercise , ORG had provided a thorough and careful determination , and the conclusion reached was CARDINAL which had been open to it .

On DATE the Secretary of ORG amended ORG ( see paragraphs DATE below ) . In so far as relevant , the new Rules ( which have since been further amended ) provided that the deportation of foreign criminals would be conducive to the public good if they were sentenced to CARDINAL or more GPE imprisonment . In such cases , the public interest would only be outweighed in “ exceptional circumstances ” .

On DATE and DATE the applicant submitted further representations to the Secretary of ORG based on his DATE relationship with a NORP national , who had no connection to GPE , and the birth of their son on DATE . The Secretary of ORG treated those representations as an application to revoke the deportation order and refused it on DATE . She also certified the applicant ’s claim , which meant that he was not afforded an automatic incountry right of appeal .

On DATE the applicant sought permission to apply for judicial review of the Secretary of ORG ’s decision to certify his claim . Along with his application , he provided medical evidence that his son required an operation in DATE to correct an umbilical hernia , and that he had been diagnosed with respiratory syncytial virus and bronchiolitis .

On DATE the Secretary of ORG agreed to withdraw the certification decision and to issue a new decision taking account of the applicant ’s further representations of DATE and those lodged with the judicial review application in DATE .

NORP The Secretary of ORG considered the applicant ’s further representations in light of the amended Immigration Rules . In a decision dated DATE , she refused to revoke the deportation order since there were no “ exceptional factors ” which outweighed the public interest . In particular , she noted that the applicant had entered into a relationship in the full knowledge of the intention to deport him ; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances ; that no valid reason had been given to explain the applicant ’s failure to make submissions regarding his relationship at either ORG hearing in DATE or ORG hearing on DATE ; that if the applicant ’s partner wished to continue the family unit in GPE , suitable medication would be available in that country to treat their son ’s bronchiolitis condition ; that there was no evidence of any exceptional , compelling or compassionate factors ; and that deportation remained a proportionate response to the applicant ’s serious criminal offending .

The applicant appealed . He submitted a number of documents in support of his case , including a further psychiatric report by PERSON dated DATE . The report indicated that he had continued to make progress in adopting a “ pro - social lifestyle ” , that he had addressed his tendency to violence , that he no longer had any criminal associates , that he had demonstrated a commitment to his partner and their son , that he had secured employment , and that the risk of re - offending and of harm to the public was very low .

The First - tier ORG , having heard oral evidence from the applicant , his partner , mother , father , brother and sister , and having considered the evidence before it , dismissed the applicant ’s appeal on CARDINAL DATE .

Using a CARDINAL - stage approach , the ORG first considered the applicant ’s case under LAW . It noted that the applicant ’s most recent conviction was for a serious offence which had attracted a sentence of DATE detention ; that following the amendment of ORG , “ exceptional circumstances ” would be required to prevent deportation ; and that those “ exceptional circumstances ” were inextricably bound up with the applicant ’s LAW .

In this regard , the ORG recalled that the applicant ’s family and personal circumstances had been examined with the most careful and thorough consideration by ORG in DATE . It had considered them in the context of the exceptionality requirements set out in PERSON ( the requirement of “ very serious reasons ” to justify the expulsion of a settled migrant : see PERSON , cited above , § DATE ) and concluded that his deportation was justified . The ORG noted , however , that the applicant ’s personal circumstances had since changed . It therefore gave careful consideration to his CARDINAL - and - a - DATE relationship with his partner and the birth of their child . Nevertheless , it concluded that neither the relationship nor the birth of the child amounted to an “ exceptional circumstance ” within the context of ORG . Although it accepted that there would be an inevitable interference with the family life said to exist between the applicant , his partner and their child , it found there to be nothing “ exceptional ” about this . Consequently , the ORG did not consider that his family and personal circumstances amounted to the “ exceptionality ” required by ORG .

The ORG moved on to consider LAW as a separate issue , having regard to the findings of ORG in DATE . It agreed with ORG that language would not be an obstacle for the applicant since LANGUAGE was widely spoken in GPE . It further noted that while the evidence as to the existence of family in GPE was somewhat confusing , it was perhaps not of fundamental importance for an adult quite capable of standing on his own QUANTITY ; that the applicant would continue to receive support from his parents following his removal to GPE ; and that his parents could visit him there as often as they wished .

In respect of the applicant ’s relationship with his partner and their child , it observed that he had failed to disclose his immigration status to his partner until after she had fallen pregnant ; that he and his partner had never lived together ; that his partner and child had the full support of her family in GPE , with whom they lived , and that support would continue following the applicant ’s deportation ; and that his child could visit him in GPE and maintain such a relationship as deemed appropriate . Therefore , having carefully considered the issue of proportionality , including “ section CARDINAL [ of the Borders , LAW DATE see paragraph CARDINAL below ] and the best interests of the Appellant ’s child ” , the ORG concluded that the Secretary of ORG had a legitimate interest in maintaining appropriate immigration control and social order within GPE , and that the interests in effecting the applicant ’s deportation were not outweighed by his LAW .

The applicant sought permission to appeal on the ground that the ORG had erred in concluding that his circumstances were not “ exceptional ” for the purposes of ORG . The First - tier ORG refused permission to appeal on DATE . The applicant made a further application for permission to appeal to ORG , raising the same grounds as before the First - tier ORG . In addition , he also submitted that the application raised an important point of principle : namely , whether the decision of the ORG was contrary to the principle of double jeopardy , or constituted discriminatory punishment , since a NORP national could not be excluded from GPE . On DATE ORG refused the application for permission to appeal . Both Tribunals found that the applicant ’s grounds sought , in essence , to reargue the merits of the appeal and that no error of law had been disclosed .

The applicant then sought permission to apply for judicial review of ORG refusal of the application for permission to appeal . Following ORG judgment in R ( on the application of ORG ) v. ORG ; R ( on the application of PERSON ( GPE ) ) v. ORG ) and Secretary of ORG for ORG [ DATE ] ORG , ORG could only review decisions of ORG if the “ second appeal ” test was satisfied ; that is , if the appeal raised an important point of principle , or there was another compelling reason to allow it to succeed . In the present case the applicant once again submitted that the “ double jeopardy ” argument raised an important point of principle . However , on DATE ORG refused the application for permission to apply for judicial review . In refusing permission the judge expressly stated that while it was “ apparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the GPE in the light of his family ties and length of residence ” , that was “ not the test for the grant of permission ” .

Following the refusal of the application for permission to apply for judicial review , the applicant had no right to renew the application at an oral hearing in ORG . However , it would have been possible for him to apply to ORG for permission to appeal against ORG decision .

Removal directions scheduled for DATE were cancelled owing to the absence of a valid travel document .

On DATE the applicant advised the ORG that his relationship with his partner had broken down and that he had court - ordered direct contact with his son on DATE .

DATE . On DATE the Secretary of ORG advised the applicant that an application to the NORP authorities for a travel document , required to effect his deportation from GPE , was pending .


Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant was deputy chairman of ORG . He stood in the elections to ORG as a candidate of the opposition bloc PERSON . He was registered as a candidate by ORG ( “ the ConEC ” ) for the singlemandate ORG no . CARDINAL .

There were a total of CARDINAL polling stations in the constituency , QUANTITY of which were ordinary polling stations . Polling Station no . CARDINAL was set up on the premises of a temporary detention centre so that persons detained there could vote . Polling Stations nos . CARDINAL and CARDINAL were set up shortly before the elections exclusively for military servicemen belonging to CARDINAL military units stationed within the constituency . Those military units were permanently stationed in the Bayil and PERSON suburbs of GPE .

According to TIME of the PERSON meeting of DATE , a copy of which was submitted by the Government , on that date the ConEC decided , inter alia , to appoint members to the precinct ( polling station ) electoral commissions ( “ the ORG ” ) for ORG . CARDINAL and DATE . It appears from TIME CARDINAL members of each ORG in question were military officers or personnel of those military units , with the exception of CARDINAL member nominated to each ORG by an opposition party . In each ORG , CARDINAL of the CARDINAL “ military members ” were nominated by the ruling party . According to the applicant , prior to the proceedings before the ORG , he had never been provided with the full text of the minutes of the PERSON meeting of DATE .

The official election results in the constituency showed that the applicant had received an overall total of CARDINAL votes and finished in second place . Of those votes , CARDINAL had been cast in FAC . CARDINAL to CARDINAL and CARDINAL had been cast in LOC . CARDINAL , DATE and DATE .

The winning candidate ( PERSON ) received an overall total of CARDINAL votes . CARDINAL of those , a total of CARDINAL votes , had been cast in FAC . CARDINAL , DATE and DATE . Of those , CARDINAL votes , which constituted over a third of his total vote count , had been cast in the polling stations ( CARDINAL . CARDINAL and DATE ) created exclusively for military voting ( CARDINAL and CARDINAL votes respectively ) .

On DATE the applicant lodged a complaint with ORG ( “ the ORG ” ) alleging a number of violations of electoral law in his constituency . He requested that the election results in FAC . CARDINAL , DATE and DATE be invalidated . He complained , inter alia , of the following :

( a ) that the setting up of Polling Stations nos . CARDINAL and CARDINAL exclusively for military voting was in breach of LAW , which required that military servicemen should vote in ordinary polling stations and which stipulated that special military polling stations should be set up only in exceptional circumstances . In this case , there were no such exceptional circumstances and the personnel of each military unit in question should have voted in CARDINAL or more of the several ordinary polling stations already located within very short walking distances of their barracks ;

( b ) that the PECs of Polling Stations nos . CARDINAL and DATE , consisting mostly of military officers , had acted as if they were accountable to ORG and not the superior electoral commissions , and that CARDINAL of the duly appointed ORG members , nominated by the opposition , had been denied access to the polling stations ;

( c ) that in the CARDINAL “ closed ” polling stations ( nos . CARDINAL , DATE and DATE ) the elections had been unfair , and military servicemen and detainees had voted under coercion . It was noted by observers in FAC . CARDINAL and CARDINAL that high - ranking military officers had pressured military servicemen to vote for M. Similarly , undue pressure had been put on detainees in FAC no . CARDINAL . As a result , PERSON received about as many votes in those CARDINAL “ closed ” polling stations as in all twenty - nine of the other ( ordinary ) polling stations of the constituency ( where he had clearly lost to the applicant by a large margin ) , which allowed him to pull slightly ahead in the overall vote count . The results of the voting in the CARDINAL “ closed ” polling stations and their effect on the election clearly showed that the election had been rigged in favour of the candidate supported by the ruling party .

NORP In support of the above complaints , the applicant submitted copies of written observations made by several observers at those polling stations .

On DATE the ORG issued a decision invalidating the election results in Polling Stations nos . CARDINAL and DATE of ORG no . CARDINAL , having found that the electoral law had been breached in those polling stations . It did not provide any details as to the exact nature of those breaches . That decision did not affect the overall election results in the constituency . The ORG ’s decision did not mention the applicant ’s complaints concerning ORG . CARDINAL , DATE and DATE .

On DATE the applicant lodged an appeal against the ORG decision , reiterating the complaints that he had made before the ORG . During ORG hearing , a representative of the ORG argued generally , without addressing any of the applicant ’s factual arguments in detail , that the elections in ORG . CARDINAL , DATE and DATE had been lawful and that there were no grounds for invalidating the votes cast in those polling stations .

On DATE ORG dismissed the applicant ’s complaint , finding that he had failed to substantiate his allegations . In particular , the judgment read as follows :

“ Under LAW ORG , the court may examine , and rely on , only the evidence submitted by the parties .

Despite the requirement of the above - mentioned LAW , the claimant , PERSON , and his counsel , [ S.T. ] , have not been able to produce before the court any reliable evidence in support of the allegations made in the claim .

Under Article CARDINAL of the ORG , each party must prove the facts to which it refers as a basis for its claims and objections .

Under LAW , the court may rely in its judgment only on the evidence examined at the court hearing .

Having regard to the above , the court does not find any grounds for upholding the claim and rejects as unsubstantiated [ the applicant ’s ] claim against [ the ORG ] requesting the invalidation of the election results in ORG . CARDINAL , DATE and DATE of ORG no . CARDINAL ... ”

The applicant appealed to ORG , reiterating his complaints .

On DATE ORG dismissed the appeal , essentially on the same grounds as ORG .

On DATE ORG confirmed the election results in the majority of the electoral constituencies , including ORG no . CARDINAL .


Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

A list of the applicants is set out in the appendix .

On DATE the ORG father was hit by a car while he was crossing a street . On DATE , he succumbed to his injuries and died .

Criminal proceedings were brought against ORG , who had hit the applicants’ father while driving his company car , for causing death by negligence .

According to an expert report dated DATE prepared by a university professor who was a former traffic expert at ORG ( ORG ) , the driver had been PERCENT responsible for the accident , and the remaining responsibility lay with the applicants’ father , who had been hit when crossing the street while the pedestrian “ do n’t walk ” red light was showing .

In a report subsequently prepared by the traffic branch of ORG on DATE , the driver was found to have been PERCENT responsible for the accident .

On DATE ORG Instance found M.S.A. guilty of causing death by negligence , and imposed a fine on him .

Following an appeal by the parties , on DATE ORG quashed that judgment on procedural grounds and remitted it to ORG .

On DATE ORG again sentenced M.S.A. to a fine ; that judgment was also quashed by ORG on DATE on procedural grounds .

On DATE ORG Instance decided to discontinue the proceedings , as the prosecution of the offence in question had become time - barred . On DATE ORG upheld that judgment . The applicants claim to have learned of that decision on DATE .

On DATE the applicants , together with their mother ORG , lodged a claim before ORG of First Instance for compensation against ( i ) the driver , M.S.A. , ( ii ) ORG ’s employer ( that is to say , the company that employed him ) , which owned the car which M.S.A. had been driving at the time of the accident , and ( iii ) the latter ’s insurance company . They requested a total of MONEY ( GPE ) in respect of non - pecuniary damage , and GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL in respect of pecuniary damage .

NORP On DATE ORG of First Instance decided to suspend the compensation proceedings pending the outcome of the criminal proceedings .

An expert report submitted to ORG on DATE found the driver M.S.A. to have been PERCENT responsible for the accident , in line with the reports submitted to the criminal case file .

On DATE ORG of First Instance accepted the applicants’ claim in part and , having regard to the limited degree of M.S.A. ’s responsibility for the accident , awarded them a total of MONEY ( TRY ) in respect of non - pecuniary damage and TRY CARDINAL in respect of pecuniary damage , plus interest on both amounts running from the date of the accident .

On DATE the applicants’ mother , PERSON , died , leaving the CARDINAL applicants as her sole heirs .

On DATE and DATE the applicants received TRY CARDINAL ( MONEY ( ORG ) at the material time ) and TRY CARDINAL ( approximately ORG CARDINAL,CARDINAL at the material time ) , respectively , from the defendants in respect of pecuniary and non - pecuniary damage , in accordance with the judgment of ORG .

On DATE ORG upheld the judgment of the first - instance court . That decision was served on the applicants on DATE .

On DATE the ORG decided to declare the ORG complaint under LAW concerning the length of the compensation proceedings inadmissible for failure to exhaust the available domestic remedies , in the light of its conclusions in the case of GPE and Others v. GPE ( ( dec . ) , no . CARDINAL , § § CARDINAL ) .

Accordingly , the applicants applied to ORG established by Law no . DATE in respect of their complaints concerning the length of the compensation proceedings .

On DATE the applicants were paid TRY CARDINAL ( approximately ORG CARDINAL at the material time ) by ORG in respect of nonpecuniary damage arising from the undue lengthiness of the compensation proceedings .