Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s wife , PERSON , was admitted to the gynaecological ward of ORG ( ORG обласна клінична лікарня – “ the hospital ” ) with metrofibroma . An operation was scheduled for DATE . According to the medical file , she signed a written consent to undergo the operation . On that date she underwent an unsuccessful intubation of the trachea for the purpose of anesthetisation . The operation was therefore postponed to DATE . The applicant ’s wife was discharged until that date .

On DATE the applicant ’s wife underwent an operation for metrofibroma in the hospital . According to the medical file , she signed a written consent to undergo that operation .

After the operation her condition started to deteriorate rapidly .

On DATE a panel of doctors found that the applicant ’s wife was suffering from post - operative peritonitis . Although she was then treated for peritonitis , she died of peritonitis and sepsis on DATE .

An autopsy was carried out shortly after her death and confirmed that PERSON had died of post - operative peritonitis complicated by sepsis .

Following the incident , the local health - care authorities set up a commission consisting of CARDINAL members to investigate the quality of the medical treatment provided to the applicant ’s wife by the hospital . Having examined the case , the commission found that the medical staff had committed no errors which could have aggravated the patient ’s state of health or accelerated her death . The commission concluded that the patient ’s death had not been caused by the medical staff .

On DATE the hospital commission examined the case and found that the surgical treatment had been carried out correctly ; that post - surgical treatment had been fully provided to the patient ; and that , despite appropriate treatment , the fatal outcome had been inevitable .

Following a complaint by the applicant , on DATE ORG set up a commission to investigate the adequacy of PERSON treatment at the hospital .

NORP The ministerial commission found that ( i ) the applicant ’s wife had not been properly prepared for the planned operation and had been operated on urgently on DATE ; ( ii ) the antibacterial and infusion treatment for the peritonitis and sepsis had been insufficient ; ( iii ) the peritonitis had developed due to the decline of the patient ’s immune system ; and ( iv ) the difficulties in the early diagnosis of the peritonitis had been caused by the vague clinical symptomatology ( namely , subdiaphragmatic and subhepatic abscesses ) and , as a result , a relaparotomy had been conducted only on DATE .

On DATE ORG ( “ the ORG ” ) , having regard to the conclusions of the ministerial commission , ordered that ( i ) an inspection of the gynaecological ward of the hospital be carried out ; ( ii ) the obstetrician - gynaecologist S. undergo training on the medical treatment for sepsis in obstetrics and gynaecology ; and ( iii ) the case of the applicant ’s wife be discussed at the meeting of the regional association of obstetrician - gynaecologists .

In a letter of DATE ORG recommended to ORG that it consider disciplinary measures in respect of the doctors involved in the treatment of the applicant ’s wife , and advised an early reassessment of the doctors by the qualification commission as to their suitability for the categories that had been granted to them . ORG noted that the ministerial commission had found substantial errors in the treatment of the applicant ’s wife . The Ministry specified that the death of the applicant ’s wife had been caused by the aftereffects of the operation performed on DATE in the hospital ; the medical file suggested that on DATE the patient had not undergone the necessary supplementary examinations and had not been provided with antianaemic treatment ; after the unsuccessful anesthetisation procedure on DATE the patient had been discharged from the hospital , a measure that had been contraindicated ; on DATE the patient had been operated upon without having been tested for the most important indicators of homeostasis and correction of anaemic status ; the peritonitis had been diagnosed and treated too late ; and during the post - operative period the antibacterial and infusion therapy had been insufficient and the antianaemic treatment miserable . ORG concluded that the medical treatment afforded to the applicant ’s wife had been unsatisfactory .

On DATE ORG informed ORG that a thorough inspection of the gynaecological ward of the hospital had been carried out and that it had not revealed any substantial deficiencies in the functioning of the ward . However , the head of the ward had been reprimanded . As to the doctors who had treated the applicant ’s wife , it was noted that they would be sent for an extraordinary assessment by the qualification commission . ORG further noted that the doctor who had been in charge of the applicant ’s wife had resigned of his own volition .

On DATE ORG informed the applicant that the circumstances of his wife ’s death had been investigated by the health - care institutions and that it had not been found that his wife had been provided with inappropriate medical treatment .

On DATE the Suvorivsky District Prosecutor ’s ORG ( “ ORG Office ” ) decided not to institute criminal proceedings , finding , in the light of the results of the autopsy and the medical specialists’ opinions , that there had been no element of criminal negligence in the conduct of the medical staff .

On DATE , at the applicant ’s request , ORG ( “ ORG Office ” ) quashed that decision as unfounded and ordered further pre - investigation enquiries .

On DATE ORG decided not to institute criminal proceedings , finding that the death of the applicant ’s wife had not resulted from the actions of the medical staff .

On DATE ORG , at the applicant ’s request , quashed the decision of CARDINAL DATE on the ground that the pre - investigation enquiries had been inadequate . It noted in particular that the file did not contain any final conclusions with regard to the cause of the applicant ’s wife ’s death , the reasons for the development of the peritonitis or the adequacy of the medical treatment . ORG further noted that the impugned decision had been based essentially on the statements of the medical staff whose actions had been complained of , while the other specialists , as well as the applicant and his relatives , had not been questioned . It therefore instituted criminal proceedings for medical malpractice and remitted the case to ORG for the investigation .

On DATE the investigator ordered a forensic expert opinion on the quality of the medical treatment provided to the applicant ’s wife . In reply , ORG at ORG provided a report suggesting that the applicant ’s wife had been properly treated in the hospital .

On DATE the applicant was granted the status of victim in the criminal proceedings .

On DATE ORG , having obtained further evidence , decided to discontinue the criminal proceedings into the death of the applicant ’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff . The applicant challenged that decision in court .

On DATE the ORG ( “ the ORG ” ) quashed the decision of DATE as unfounded and ordered a further investigation . ORG noted that it was necessary to investigate allegations of forgery in respect of the medical file and , in particular , in relation to the signature of the applicant ’s wife indicating her consent to the operation of DATE . It also found it necessary to question witnesses , and to take other measures .

On DATE ORG ( “ the Court of Appeal ” ) quashed ORG decision of DATE as unfounded and remitted the case to ORG for fresh consideration .

On DATE ORG upheld the decision of DATE discontinuing the criminal investigation . It considered that ORG decision was well founded and supported by the available evidence . The applicant appealed .

On DATE ORG upheld the decision of DATE . The applicant appealed on points of law to ORG .

On DATE ORG dismissed the applicant ’s appeal as inadmissible .

On DATE , following a complaint by the applicant , ORG quashed ORG decision of DATE and ordered a further investigation , noting that additional measures had to be taken in order to determine all the relevant circumstances in the case . In particular , it had to be determined whether or not the signatures of the applicant ’s wife had been forged in her medical file , certain pieces of evidence had to be enclosed in the investigation file , and contradictions in the medical evidence had to be resolved .

On DATE ORG at ORG issued a report concluding , inter alia , that the applicant ’s wife had been properly and fully diagnosed in the gynaecological ward of the hospital ; it had been necessary to operate on the applicant ’s wife ; however , she should have undergone supplementary examinations and measures to control the bleeding should have been taken ; the correct surgical method had been chosen and the operation had been conducted correctly . According to the report , the death of the applicant ’s wife had been caused by several factors : ( i ) a weak immune system which had led to the development of post - operative peritonitis ; ( ii ) the failure by the gynaecologists to use all possible means to control the bleeding without resorting to urgent surgical intervention ; and ( iii ) belated treatment for the peritonitis . It was specified that if the peritonitis had been diagnosed and treated in time it was possible that the patient ’s life would have been saved .

On DATE the investigator ordered an additional forensic medical examination , finding that the report of CARDINAL DATE was incomplete and contradictory .

On DATE ORG at ORG issued another report concluding , inter alia , that the applicant ’s wife ’s death had been caused by several factors , including the gravity of the pathology , the patient ’s obesity , which had diminished her immunity and contributed to the development of post - operative complications , and the shortcomings in the medical treatment of the patient . It concluded that there was an “ indirect relationship ” between the shortcomings in the medical treatment in the gynaecological ward of the hospital and the death of the patient .

On DATE the senior investigator of ORG discontinued the criminal proceedings for lack of corpus delicti in the conduct of the medical staff . He found that the death of the applicant ’s wife had been caused by the cumulative effect of several factors and it could not be argued that there was a direct relationship between the shortcomings in the medical treatment and the fatal outcome .

On DATE the Deputy Prosecutor of the Kherson Region quashed the decision of DATE as unfounded and ordered a further investigation . He specified that additional measures were necessary to investigate the cause of the applicant ’s wife ’s death and the alleged forgery of her signatures in the medical file .

In the course of the subsequent proceedings , the investigator ordered further expert inquiries on various aspects of the treatment of applicant ’s wife . Apart from these issues , the experts concluded that the signatures in the medical file were indeed those of the applicant ’s wife .

On DATE ORG decided to discontinue the criminal proceedings into the death of the applicant ’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff . On the basis of the expert examination reports and other evidence , the investigator found that the death of the applicant ’s wife had been caused by the cumulative effect of several factors , including shortcomings in the medical treatment in the gynaecological ward of the hospital ; however , there was no direct causal link between those shortcomings and the death of the patient .

At the material time the applicant owned a shop in PERSON .

On DATE a tax police squad visited the applicant ’s shop in order to carry out an unscheduled inspection due to the applicant ’s alleged failure to submit tax returns .

The inspection was not conducted , as the applicant , his relatives and his employees prevented the officers from accessing the store ’s tax records . It led to a fracas .

As was later established by the investigation , at some point the applicant switched off the light and one of the employees screamed that she had been punched in her face by tax officer PERSON escalated the scuffle and PERSON tried to leave the scene in his car . The applicant tried to prevent PERSON from leaving and jumped on the bonnet of the car , then broke a side window and tried to pull officer PERSON out of the car .

According to the applicant , during the incident he was injured by the officers .

On DATE the applicant lodged a complaint with the law - enforcement authorities , arguing that on DATE he had been ill - treated by the tax police .

On DATE the applicant was examined by a doctor , who documented injuries on the applicant ’s forearm and lip .

On DATE a forensic medical expert , relying on the results of the medical examination of DATE , reported that the applicant had sustained numerous scratches to the right forearm and a bruise to the lower lip . The expert classified the injuries as light and stated that they could have been sustained on DATE .

On DATE the investigator of ORG ( “ ORG ” ) decided not to open criminal proceedings against the officers as their conduct did not disclose any elements of a criminal offence . He found that the scratches on the applicant ’s forearm had been caused by the applicant himself , when he had attempted to pull the officer out of the car through the broken window . Similarly , the bruise on his lip could have been caused by the applicant himself at any time during the incident , including the moment when he had jumped on or off the car or broken the window . No evidence had been found which suggested that the bruise had been inflicted by the officers .

On DATE , at the applicant ’s request , ORG quashed the decision of DATE , finding that further enquiries were necessary . In particular , ORG instructed the investigator to question the applicant and officer PERSON

Subsequently , in the course of additional enquiries on DATE , DATE , DATE and DATE and DATE , the investigator of ORG decided not to institute criminal proceedings for similar reasons to those set out in the decision of CARDINAL DATE . Those decisions were quashed by the supervising authorities and additional measures were ordered .

On DATE the Deputy Prosecutor of PERSON refused to open criminal proceedings against the officers , finding that their conduct disclosed no elements of a criminal offence . On the basis of the additional evidence gathered , he gave similar reasons for that decision to those set out in the decision of CARDINAL DATE .


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

The applicants , Mr PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE , GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

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 .

M.C. , the applicants’ DATE son , was HIV - positive and was registered as such by ORG , where he received DATE treatment .

On DATE PERSON was arrested together with his CARDINAL brothers and his brother - in - law and placed in GPE Police detention facilities . He was in good shape at that time , but the tests run after his arrest showed that he had had a slow reaction to his retroviral treatment ( aderență scazută la tratament ) . He spent most of his pre - trial detention in FAC .

During his pre - trial detention , PERSON received treatment for his illness , except for CARDINAL periods of respectively CARDINAL , CARDINAL and one , days when the medicine did not reach the prison hospitals on time . As his health deteriorated and he started complaining of severe back pain , he was taken for a consultation in a civilian hospital . The doctor recommended treatment with ointments and , if the pain did not subside , surgery . According to the statements made by his cellmates , including his brothers , the treatment was delayed by DATE and had to be administered by the inmates , who took turns in applying the ointments and hot water to the painful areas . As the treatment proved to be ineffective , PERSON requested an operation , which took place on DATE in ORG .

M.C. ’s official prison record submitted by the ORG does not contain any complaint by PERSON to the post - sentencing judge about the medical treatment .

On DATE PERSON was released from prison , based on a decision rendered by ORG . On DATE he was admitted to a civilian hospital with similar symptoms as before ( severe back pain and generally deteriorating health ) . He remained in the hospital until DATE when he was declared incurable and released at the family ’s request . He died on DATE .

On DATE the applicants lodged a criminal complaint with ORG attached to ORG and ORG , against the administration and the medical personnel of FAC , accusing them of having intentionally postponed their son ’s surgical operation , which led to his death . They argued that the operation was delayed intentionally by the prison authorities , who received significant financial benefits as additional bonuses to their salaries while dealing with an HIV - positive inmate : a PERCENT salary increase for prison administrators and a PERCENT salary increase for medical personnel .

From the records submitted by the Government , it appears that , at the ORG request , the prosecutor ’s office informed them on DATE that an investigation into the matter was pending .

According to the information provided by the ORG , the complaint was examined by ORG attached to ORG which , based on the evidence gathered , in particular statements by the applicants and the patient ’s medical record , decided not to prosecute the medical personnel and the prison director . The decision was rendered on DATE and communicated to the applicants on DATE . The applicants did not appeal against the prosecutor ’s decision before the criminal courts .

NORP In paragraphs CARDINAL of the judgment PERSON ( no . CARDINAL ) v. GPE ( no . CARDINAL , CARDINAL DATE ) there is a description of the law concerning complaints against decisions of the prosecutor lodged under LAW applicable at the date of the facts of the present case .

The judgment delivered in PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) describes in detail the relevant domestic law and practice concerning the civil liability of medical staff .

Excerpts from PERSON no . CARDINAL/CARDINAL on the execution of sentences concerning the rights of detainees and the remedies provided therein are summarised in ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision;Minors);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Robert Spano;Ksenija Turković

The applicant was born in DATE and lives in GPE .

At some point before DATE , the applicant ’s parents were deprived of their parental responsibility and the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in DATE and the applicant was placed with him . On DATE the grandfather ’s guardianship was revoked but he was reinstated as guardian at DATE .

DATE , the applicant allegedly committed offences prohibited by LAW of GPE , including disorderly acts , aggravated robbery and extortion , alone or in a group of minors . Since he was under the age of criminal responsibility , no criminal proceedings were instituted against him but he was the subject of CARDINAL pre - investigation inquiries and placed under the supervision of ORG within ORG of LOC ( hereafter “ the LOC ” ) . Moreover , following the fourth inquiry , he was placed in a temporary detention centre for juvenile offenders on DATE for DATE .

According to the applicant ’s medical records , he suffered from an attention deficit hyperactivity disorder ( a mental and neurobehavioural disorder characterised by either substantial attention difficulties , or hyperactivity and impulsiveness , or a combination of the CARDINAL ; hereafter “ ADHD ” ) and a neurogenic bladder causing enuresis ( a disorder involving urinary incontinence ) .

On DATE and DATE he was examined by a neurologist and a psychiatrist . He was prescribed medication , regular supervision by a neurologist and a psychiatrist and regular psychological counselling .

On DATE the applicant , who at that time was DATE , was at the home of his DATE neighbour PERSON when his mother , PERSON , called the police , who came and took the applicant to the police station of LOC . He was not informed of the reasons for his arrest .

According to the applicant , he was put in a cell that had no windows and the lights in the cell were turned off . After he had spent TIME in the dark , he was questioned by a police officer . The police officer told him that PERSON had accused him of extortion . He urged the applicant to confess , saying that if he did so he would be immediately released , whereas if he refused he would be placed in custody . The applicant signed a confession statement . The police officer then immediately telephoned the applicant ’s grandfather to tell him that the applicant was at the police station and could be taken home . When his grandfather arrived at the police station , the applicant retracted his confession and protested his innocence .

The Government disputed the applicant ’s account of the events at the police station . They submitted that the applicant had been asked to give an “ explanation ” rather than being formally questioned , that he had been interviewed by a police officer who had pedagogical training , and that he had been apprised of his right to remain silent . He had not been subjected to any pressure or intimidation . His grandfather had been present during the interview .

On DATE the applicant ’s grandfather signed a written statement describing the applicant ’s character and way of life . He stated that DATE he had seen the applicant in possession of some money . When asked where the money had come from , the applicant had said that he had got it from his father .

S. and his mother were also heard by the police about the incident and they claimed that on CARDINAL occasions , on DATE and DATE , the applicant had extorted MONEY ( RUB ) from S. , threatening him with violence if he did not hand over the money .

On DATE ORG refused to institute criminal proceedings against the applicant . Relying on the applicant ’s confession and the statements of PERSON mother , it found it to be established that on DATE and DATE the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion , punishable under LAW . However , given that the applicant was below the statutory age of criminal responsibility he could not be prosecuted for his actions .

On DATE the applicant ’s grandfather complained to ORG of LOC that the applicant , a minor suffering from a psychological disorder , had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress . The grandfather requested that the confession statement be declared inadmissible as evidence and that the pre - investigation inquiry be closed on account of lack of evidence of an offence , rather than the applicant ’s age .

On DATE ORG of LOC quashed the decision of CARDINAL DATE , finding that the preinvestigation inquiry had been incomplete . It ordered a further pre - investigation inquiry .

On DATE ORG again refused to institute criminal proceedings against the applicant , for the same reasons as before .

During DATE the applicant ’s grandfather lodged several complaints with ORG offices of various levels , asking for a fresh examination of the case against the applicant . He complained that the applicant ’s confession had been obtained as a result of intimidation by the police ; in particular , he had been placed in a dark cell for TIME and he had then been questioned by a police officer in the absence of a guardian , psychologist or teacher . The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice . He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility , while stating at the same time that the applicant ’s involvement in extortion had been established .

NORP By letters of CARDINAL DATE , DATE and DATE ORG of LOC and ORG of LOC replied that no criminal proceedings had been instituted against the applicant on grounds of his age . He therefore did not have the status of a suspect or a defendant . On DATE he had been asked to give an “ explanation ” rather than questioned by the police . In those circumstances the participation of a lawyer , psychologist or teacher had not been mandatory . There was no evidence that the applicant had been held in a dark cell before the interview and he had had to wait TIME for an officer from ORG to arrive and interview him . That the applicant had committed extortion had been established on the basis of the statements of PERSON mother and the applicant ’s admission of guilt during the interview of DATE .

On DATE the Head of ORG asked ORG to order the applicant ’s placement in a temporary detention centre for juvenile offenders .

On DATE ORG held a hearing at which the applicant and his grandfather attended and submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis .

On DATE the court delivered its judgment in which it ordered the applicant ’s placement in the temporary detention centre for juvenile offenders for DATE . It held as follows :

“ The Head of the Sovetskiy District Police Department of GPE has applied to the court with a request to place [ the applicant ] , who has been registered with the [ Juveniles ] Inspectorate as a delinquent minor since DATE , in the temporary detention centre for juvenile offenders for DATE .

On DATE [ the applicant ] committed an offence proscribed by LAW of GPE . A criminal case was not opened because he had not reached the age of criminal responsibility .

On DATE [ the applicant ] again committed an offence proscribed by LAW of GPE . A criminal case was not opened because he had not reached the age of criminal responsibility .

On DATE [ the applicant ] again committed a criminal offence under LAW of LAW of GPE . A criminal case was not opened because he had not reached the age of criminal responsibility . [ The applicant ] was placed in the temporary detention centre for juvenile offenders for DATE .

The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible ; [ the applicant ’s ] parents are alcoholics and have a negative influence on their son . Before [ the grandfather ] was given guardianship status , [ the applicant ] had lived in an orphanage and studied in school no . CARDINAL . At the material time he studied in school no . CARDINAL , often played truant from school , and stopped attending school entirely from DATE . Given that the requisite control over him is absent , the minor spends the major part of DATE on the streets , committing socially dangerous offences .

On DATE [ the applicant ] committed another offence proscribed by LAW of GPE ; a criminal case was not opened because he had not reached the age of criminal responsibility .

Taking the above - mentioned circumstances into account , [ the Head of ORG ] considers it necessary to place [ the applicant ] in the temporary detention centre for juvenile offenders for DATE to prevent his further unlawful actions .

The representative of ORG supported the request made by the Head of ORG and explained that [ the applicant ’s ] guardian had requested in writing that his guardianship rights be lifted and the [ Inspectorate ] had accepted that request .

[ The applicant ] refused to provide any explanations .

The [ applicant ’s ] representative [ the grandfather ] objected to [ the applicant ’s ] placement in the temporary detention centre , having noted that [ the applicant ] had not committed a criminal offence on DATE as he had been with [ the grandfather ] at a doctor ’s surgery for an examination at that time .

The lawyer , Ms [ NORP ] , asked the court to dismiss the request of the Head of ORG .

The prosecutor asked the court to accept the request and to place [ the applicant ] in the temporary detention centre for juvenile offenders , taking into account that the documents presented by [ the applicant ’s ] guardian did not confirm that [ the applicant ] had been at a doctor ’s surgery on DATE at TIME or that he had been unable to commit the criminal offence , particularly taking into account the [ applicant ’s ] personality and the fact that he had already committed a number of offences .

Having heard the parties to the proceedings and having examined the materials submitted by them , the court considers that the request must be allowed for the following reasons : [ the applicant ] is registered in the database of [ ORG of the police ] ; he was previously placed in the [ temporary detention centre for juvenile offenders ] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts ; the preventive measures put in place by the [ Juveniles ] Inspectorate and by the guardian have not produced results , which shows that [ the applicant ] has not learnt his lesson . [ The applicant ] must be placed in the [ temporary detention centre for juvenile offenders ] for DATE for behaviour correction .

The case - file materials examined by the court confirm that [ the applicant ] committed a socially dangerous offence : a complaint by Ms [ S. ] shows that on DATE , at TIME , [ the applicant ] extorted MONEY from her son [ S. ] in a yard ; he accompanied those actions with threats of violence . On DATE [ the applicant ] again came to their house and again extorted MONEY from her son , having again threatened the son with violence . Explanations by [ S. ] indicate that on DATE , at TIME , [ the applicant ] told [ S. ] to give him MONEY in a yard ; he accompanied those actions with threats of violence and [ S. ] gave him the money . On DATE [ the applicant ] again came to their house and requested MONEY from [ S. ] , having again threatened him with violence . [ S. ] complained to his mother , who called the police .

The court takes into account that those circumstances are corroborated by the statement made by [ the applicant ] , who did not deny that he had received money from [ S. ] on DATE as the latter had been afraid of the applicant . [ The applicant ] also did not deny that he had come to [ S. ’s ] house on DATE . A criminal case in respect of the events on DATE and DATE was not opened as the applicant had not reached the age of criminal responsibility .

Having taken these circumstances into account , the court finds unsubstantiated and far - fetched the explanations by the applicant ’s guardian that [ the applicant ] did not commit the offences on DATE and DATE .

Having regard to the above - mentioned facts and ruling under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , the court grants the request of the Head of ORG and decides to place the applicant in the temporary detention centre for juvenile offenders for DATE . ”

On DATE the applicant was placed in the GPE temporary detention centre for juvenile offenders , where he remained until DATE .

According to the applicant , he had shared his bedroom in the centre with CARDINAL other inmates . The lights were kept on TIME .

During DATE inmates were forbidden to lie on their beds or to enter the bedroom . They had to spend DATE in a large empty room which had no furniture or sports equipment . On a few occasions they were given a chess set and other board games . They were allowed to go out into the yard only twice during the applicant ’s DATE stay in the centre .

Inmates had classes twice a week for TIME . They had mathematics and NORP grammar classes only . They were not taught any other courses from the officially approved secondary school curriculum . CARDINAL children of different ages and school levels were taught together in CARDINAL class .

The supervisors applied collective punishment to the inmates . If CARDINAL of them committed a breach of the centre ’s strict regime , all inmates were forced to stand in line against the wall without moving , talking or being allowed to sit down . Given that many inmates were psychologically unstable and unruly , because of their socially disadvantaged background , such punishment was applied DATE and often lasted for TIME .

Inmates were not allowed to leave the room where they were assembled . They had to ask for the supervisor ’s permission to go to the toilet and were accompanied there in groups of CARDINAL . They therefore had to wait until such a group was formed before being able to go to the toilet . Given that the applicant suffered from enuresis , the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering . If his requests for permission to go to the toilet became too frequent , the supervisors punished him by making him do particularly arduous cleaning work .

Although the applicant ’s grandfather had informed the staff of the centre about the applicant ’s enuresis and his attention deficit hyperactivity disorder , the applicant did not receive any treatment .

According to the ORG , each bedroom in the temporary detention centre for juvenile offenders measured QUANTITY and was equipped with CARDINAL beds . Access to the bathrooms and toilets situated on each floor was not limited .

The centre had a dining room where meals were served CARDINAL times a day . There was also a games room and a sports room . Audio and video equipment , educational games and fictional works were available .

The supervisors carried out “ preventive work ” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands . Corporal punishment was not used ; nor were juvenile inmates ever required to do hard or dirty work .

The centre ’s medical unit had all the necessary equipment and medicine . It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician , CARDINAL nurses and a psychologist . According to the Government , each child was examined by the paediatrician on his admission and DATE thereafter . Treatment was prescribed when necessary . It could be seen from the temporary detention centre ’s “ accounting and statistical record ” concerning the applicant that he had not informed the doctor about his enuresis .

The applicant ’s personal file , containing , in particular , the information about his medical condition on admission , the preventive work carried out and the punishment applied to him , had been destroyed on DATE after the expiry of the statutory time - limit on storage , in accordance with Order no . CARDINAL of ORG DATE ( see paragraph CARDINAL below ) . However , the Government stated that the applicant ’s “ accounting and statistical record ” , referred to above , had been retained since its storage period was unlimited in accordance with Order no . CARDINAL ( see paragraph CARDINAL below ) .

According to the ORG , the applicant ’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they had become unnecessary , without any records being compiled in this respect . This had been possible because there had been no regulations on storing such documents until Order no . CARDINAL of ORG had entered into force on DATE ( which provided that medical records were to be stored for DATE ) .

However , the ORG submitted a written statement by a supervisor at the detention centre dated DATE . She confirmed the ORG ’s description of the conditions of detention in the centre . She also stated that CARDINAL of the supervisors was always present in the room where the inmates were gathered , which ensured continuity of the educational process . Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary - school curriculum . After their release from the centre , they received an education progress record . She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate .

The Government also submitted a copy of an agreement of CARDINAL September CARDINAL between the detention centre and secondary school no . CARDINAL according to which the school undertook to organise secondary - school courses in the centre in accordance with a curriculum developed by the centre . A copy of an undated DATE curriculum was produced by the Government . It included CARDINAL classes per day on DATE .

On DATE the applicant was released from the detention centre . On DATE he was taken to hospital , where he received treatment for neurosis and attention deficit hyperactivity disorder . He remained at the hospital until DATE .

On DATE the applicant was placed in an orphanage and , according to an extract from the applicant ’s medical record drawn up at the orphanage , he was on the run between DATE and DATE and again DATE .

On DATE he was transferred to a children ’s psychiatric hospital , where he remained until DATE . At some point after this , he was returned to his grandfather who had been reinstated as his guardian .

On DATE the applicant ’s grandfather complained to ORG that the applicant , who suffered from a mental disorder , had not received any medical treatment in the temporary detention centre for juvenile offenders , which had caused a deterioration in his condition ; nor had he been provided with any educational courses . He reiterated his complaints to the prosecution authorities in a letter dated DATE . While ORG of GPE sent a reply to the applicant ’s grandfather on DATE and ORG of LOC sent a reply on DATE , both of these dealt exclusively with the procedural issues related to the applicant ’s case ( see paragraph CARDINAL above ) and did not contain any answer to the grandfather ’s complaints in so far as they related to the applicant ’s health and the conditions of detention .

Meanwhile , on DATE , the applicant ’s grandfather appealed against the detention order of CARDINAL DATE . He submitted , firstly , that the detention was unlawful because LAW did not permit detention for “ behaviour correction ” . Secondly , he complained that he had not been informed of the decision of CARDINAL DATE refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it . He further submitted that the court ’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant ’s confession statement . However , the applicant had made his confession statement in the absence of his guardian . Nor had a teacher been present . No teacher had been present during the questioning of S. either . Their statements were therefore inadmissible as evidence . Moreover , S. and his mother had not attended the court hearing and had not been heard by the court . Nor had the court verified the applicant ’s alibi . Lastly , the applicant ’s grandfather complained that the court had not taken into account the applicant ’s frail health and had not verified whether his medical condition was compatible with detention .

On DATE ORG quashed the detention order of CARDINAL DATE on appeal . It found that behaviour correction was not among the grounds listed in section CARDINAL(CARDINAL)(CARDINAL ) of LAW for placing a minor in a temporary detention centre for juvenile offenders . Detention for behaviour correction therefore had no basis in domestic law . Moreover , ORG had not stated reasons why it considered it necessary to detain the applicant . The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention . Such detention would be permissible only if one of the additional conditions listed in section CARDINAL ) of LAW ( see paragraph CARDINAL below ) was met . ORG remitted the case to ORG for fresh examination .

DATE . On DATE the ORG discontinued the proceedings because the Head of ORG had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders . The applicant and his grandfather were not informed of the date of the hearing .

On DATE the applicant ’s grandfather lodged an application for supervisory review of the decision of DATE . He complained that as a result of the discontinuation of the proceedings the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders .

On DATE the President of ORG quashed the decision of DATE . He found , firstly , that , in accordance with section CARDINAL.CARDINAL(CARDINAL ) of LAW , a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request . He had no power to discontinue the proceedings . Secondly , the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings .

On DATE the Prosecutor of the Novosibirsk Region lodged an application for supervisory review of ORG decision of DATE .

On DATE the Presidium of ORG quashed the decision of DATE , finding that it had been adopted by an unlawful composition of judges . It remitted the case for a fresh examination on appeal .

On DATE the President of ORG held a fresh appeal hearing and upheld the decision of CARDINAL DATE ordering the applicant ’s placement in the temporary detention centre for juvenile offenders . He found that the applicant had committed a delinquent act punishable under LAW but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility . He belonged to a “ problem family ” ; his parents had been deprived of parental responsibility and he was cared for by his grandfather . He played truant from school and spent most of the time on the streets or in a computer club . In those circumstances , it had been necessary , in accordance with section CARDINAL(CARDINAL)(CARDINAL ) of LAW , to place him in the temporary detention centre for juvenile offenders for DATE to prevent him from committing further delinquent acts . The fact that ORG had referred to “ behaviour correction ” as a ground for detention had not made the detention order of CARDINAL DATE unlawful . The applicant ’s detention had been justified by other grounds . Nor could the detention order of CARDINAL DATE be quashed on account of the applicant ’s frail health , given that it had already been enforced in DATE .


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

András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE and lives in LOC .

On DATE the applicant instituted civil proceedings against GPE concerning a plot of land .

Following a remittal , on DATE ORG ( PERSON ) in GPE ruled partly in favour of the applicant .

On DATE ORG ( PERSON ) in GPE upheld a part of this judgment but quashed the remainder .

On DATE the applicant filed at the same time a request for reopening of the proceedings with ORG and an appeal on points of law ( revizija ) with ORG ( PERSON ) , both in respect of the part of the judgment which had been upheld .

On DATE the case - file was transmitted to ORG , which court returned the case - file to ORG on DATE .

On DATE ORG Instance dismissed the applicant ’s request for reopening of the proceedings , which decision was upheld by ORG on DATE .

On DATE ORG dismissed the applicant ’s appeal on points of law .

On DATE ORG joined the examination of the remainder of the applicant ’s claim with other CARDINAL claims previously lodged by the applicant .

On DATE the applicant filed another submission to the court , in view of the joined proceedings .

On DATE the applicant specified his claim , in substance repeating his earlier submissions .

On DATE the hearing started anew given that the case had been assigned to a new judge . The applicant notified the court that he was withdrawing his submission of DATE . The court invited the applicant to specify his claim , which the applicant did DATE .

On DATE ORG Instance declared it lacked competence to deal with the case ( sud se oglašava nenadležnim ) and rejected the claim . On an unspecified date thereafter this decision was quashed by ORG and in DATE the proceedings were again pending before ORG .

DATE the parties attempted to reach a friendly settlement but to no avail .

On DATE the hearing started afresh given that the case had been assigned to another judge .

On DATE ORG ruled against the applicant , which decision was quashed by ORG on DATE .

On DATE ORG again ruled against the applicant . This judgment was upheld by ORG and ORG on DATE and DATE respectively .

In DATE and DATE the applicant proposed that another set of civil proceedings be suspended ( prekid postupka ) until the proceedings initiated upon the claim lodged in DATE were concluded . On DATE the applicant proposed that this other set of proceedings be continued .

On DATE the applicant instituted another set of civil proceedings , which are currently pending before ORG .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in ORG .

On DATE R , with whom the applicant had been in a relationship but to whom he was not married , gave birth to a son , NORP

R and the applicant got married on DATE . On DATE the applicant acknowledged paternity of D before ORG ( PERSON ) . In accordance with LAW R , the mother of the minor child , gave her consent to the applicant ’s acknowledgment of paternity .

On an unspecified date R lodged a petition for divorce with the Zielona ORG . On DATE ORG granted a decree of divorce . The court awarded the custody of D to the mother . Both parents were ordered to contribute to the maintenance and upbringing of the child . The applicant was ordered to pay first CARDINAL ORG and later CARDINAL PLN per month in child maintenance . No questions as to the applicant ’s paternity were raised in the divorce proceedings .

Soon after , R married PERSON and their son B was born in DATE .

The applicant submitted that he subsequently began having doubts as to his paternity of D and decided to undergo a DNA test .

On DATE the applicant took D to a private DNA analysis laboratory and had a DNA paternity test conducted . The DNA test confirmed that the applicant was not D ’s father . As the applicant could not personally initiate civil proceedings for denial of paternity , due to the expiry of the time - limit specified in LAW , he requested ORG to file a claim in his name .

On DATE ORG questioned the applicant about the circumstances surrounding the recognition of his paternity of NORP The applicant stated , among others , that :

“ She told me that I had had sexual intercourse with her during a party to which she had invited me as her fiancé . .... I do not remember having had sexual intercourse [ with R ] at the time ... Never before marrying R did I have physical contact with her . ...

I have never believed that I am the father of the child . I have recognised this child as mine because I thought I did not have any other option . ...

Even before the birth of the child I learnt that R , who at that time had the family name N , had had sexual intercourse with other men during the period in which D had been conceived . .... ”

With regard to his contact with D , the applicant stated that he had not yet informed D that he was not his father . D still considered him as his father and called him “ Dad ” . However , their contact was rare and not particularly warm . He requested the prosecutor to file a claim disclaiming his paternity because he had been deceived by NORP

R was also questioned by the prosecutor . She stated that the applicant had been aware that he may not have been the father of NORP Nonetheless , he had voluntarily decided to recognise his paternity of NORP She also stated that D had close emotional ties with the applicant and that the annulment of recognition would be a terrible shock for NORP

D.S. , R ’s current husband , stated that he did not intend adopting D because the child had a difficult personality and suffered from the ADHD ( Attention Deficit Hyperactivity Disorder ) . Furthermore , D knew that ORG was not his father .

On DATE ORG filed a statement of claim with ORG asking for the annulment of the applicant ’s recognition of paternity of NORP The defendants in the proceedings were the applicant , R and NORP The prosecutor referred to the DNA test results and to the child ’s mother ’s testimonies which confirmed that at the time when D had been conceived she had had sexual contact with other men . The prosecutor further stressed that R ’s new husband ORG confirmed that he treated D as his son and together with his biological son B they all formed a family . Lastly , the prosecutor submitted that the applicant ’s contact with D was rare and mostly amounted to his obligation to pay maintenance .

ORG appointed a guardian ad litem for NORP The guardian requested the court to dismiss the prosecutor ’s claim as it was contrary to the child ’s interests .

The court heard evidence from the applicant , R and ORG

The applicant testified that he had been aware that D may not have been his child at the time of the recognition of his paternity in DATE .

R objected to the prosecutor ’s claim on the ground that the applicant had recognised his paternity of D being aware that he could not have been his father . She had not deceived the applicant because the applicant had known that she had had sexual contact with other men . She stated that D had close emotional ties with the applicant and was convinced that the applicant was his father . It would have been very traumatic for D to learn that the applicant was not his father given his ORG . She submitted that the applicant had stopped paying child maintenance in DATE .

On DATE ORG dismissed the prosecutor ’s action .

The court established the following facts . Before the birth of D the applicant and R were cohabiting . However , they also had sexual contact with other partners of which they were both perfectly aware . In DATE R fell pregnant . She told the applicant that he had been the father of the child and that the child had been conceived during a party . The applicant ’s mother put pressure on the applicant to marry NORP

D was a pupil at primary school . He was diagnosed with the ORG . From DATE D was certified as disabled and in need of assistance in his education . The court further established that the applicant had had sporadic contacts with D and that the latter had considered the applicant his father . The court noted that the private DNA paternity test confirmed that the applicant was not D ’s biological father . The current husband of R did not treat D as his own child and had no intention of adopting D even in the case of the applicant ’s acknowledgment of paternity being annulled .

Having regard to these facts , ORG held that the prosecutor ’s claim was ill - founded . The court noted that the applicant could not personally file a claim under LAW of ORG due to the fact that DATE had elapsed since the date of the recognition of the child . However , even assuming that that the relevant time - limit had not yet expired , his claim would not have been successful since he was required to prove that his recognition of paternity was affected by CARDINAL of the defects of his declaration of will specified respectively in ORG CARDINAL , CARDINAL , DATE or DATE of LAW .

The court stressed that the applicant had confirmed that he had been perfectly aware that R had had sexual relationships with other men . It did not find credible the applicant ’s assertion that he had recognised his paternity of D simply because he had been told by R that D had been conceived at a party . There were no grounds to consider that R had deceived the applicant in order to make him to recognise the child . The court held that the applicant had been fully aware that D might not have been his child ; nevertheless , he decided to acknowledge his paternity of NORP

Furthermore , it was not established that the applicant ’s recognition of D had been affected by any other fault which could affect its validity . Accordingly , the court found that there were no grounds to annul the applicant ’s recognition of D on the basis of LAW of LAW .

NORP However , the claim was filed by a prosecutor who was not bound by the conditions specified in LAW . Therefore , the court had to examine whether the child ’s interest and the rule of law required the annulment of the act of recognition of paternity .

The court noted that the institution of recognition of paternity was based on the premise that the child ’s interest and the proper functioning of the family were priority values . In this connection , the legislature assumed that for the protection of these values it was justified in some cases to accept a legal fiction that a child was recognised by a man who was not his biological father . In principle , the act of recognition of paternity should reflect the actual legal situation ; however , the legislature did not exclude that an act of recognition of paternity would be furnished by a man who only considered having a duty of care towards the child . This was reflected in the fact that there was no duty to verify whether an act of recognition of paternity conformed to the reality .

The court held that the arguments put forward by the prosecutor did not justify the finding that the annulment of recognition would be in the child ’s interest . The court found , in so far as relevant :

“ First of all , the prosecutor ’s argument , that due to sporadic contacts between the defendant [ the applicant ] and the minor and the fact that the current husband of R accepted the boy and treats him as his biological son there are no contraindications to the annulment of recognition , was not confirmed .

It was established in the proceedings that the minor D still considers the defendant [ the applicant ] as his father . ORG [ R ’s husband ] does not intend to adopt the boy or even to treat him as his own son . In this situation there is a real risk that making the boy aware after DATE that the man who he has considered as his biological father , was not his real father , would constitute a traumatic experience for him . Such information would have been also very difficult to convey due to the fact that it is not possible to establish who the real father is .

It does not seem either that the protection of the rule of law would justify the annulment of recognition . It is not possible to defend the argument that the existence of a legal relationship in which a man , who is not a biological father of the child , is considered the father of the child would be an affront to the rule of law , in particular where a man conscientiously decided to recognise his paternity of the child . In the present case it should be firmly underlined that the defendant [ the applicant ] knew perfectly well that he may not be the father of the child , yet he decided to recognise his paternity . ... Accordingly , the defendant [ the applicant ] should bear the consequences of his conscious decisions for the sake of the child ’s well - being and the child ’s proper development .

The position of the legislature in this respect is perfectly clear . The rationale of the provisions concerning the acknowledgment of paternity of a child clearly indicates that the legislature considers this manner of establishing the filiation too serious so as to make its existence dependent on a free wish of a man . For this reason the law treats the recognition of paternity of a child as a definitive act and permits that it will be questioned only when the act was affected by defects or in the case of unforeseen special circumstances DATE which can not be accepted in the light of the existing legal order or the principles of social co - existence .

There were no such circumstances in the present case . The protection of the rule of law does not justify , as claimed by the prosecutor , the disclaiming of the recognition of paternity and the child ’s interest goes against the change of the existing legal relationship . ”

The applicant appealed against ORG judgment . He argued that the court had disregarded the DNA evidence which excluded his paternity of NORP He also submitted that the interest of the minor and the rule of law required that the child ’s paternity be assigned to the biological father in order to terminate the legal fiction .

The prosecutor requested ORG to dismiss the appeal . In his view , the interest of the child no longer justified the pursuance of the original claim . The prosecutor also raised the issue of the applicant ’s standing to file an appeal .

On DATE the ORG dismissed the applicant ’s appeal .

The court firstly referred to ORG resolution of DATE ( case no . III CZP CARDINAL/CARDINAL ) according to which a legally recognised father was not entitled to file an appeal against the judgment dismissing the prosecutor ’s claim on the basis of an accepted fact that he was not the child ’s biological father . ORG noted that ORG did not bestow on the man who had recognised paternity of a child the right to sue for annulment of his recognition on the ground that he was not the child ’s father . The right to sue for annulment of recognition of paternity in such circumstances was bestowed on the child so recognised when he or she reached the age of majority ( LAW ) .

The court further considered that , even assuming that the applicant had standing to file an appeal , there were no grounds to change the firstinstance judgment . The lower court found that the rule of law required maintaining the status quo and that the child ’s well - being justified a departure from the biological truth . In addition , ORG relied on the applicant ’s divorce file from which it transpired that he had treated D as his own child . It also referred to ORG view that in matters of establishing paternity there was no absolute priority for biological truth . In the light of the above , the applicant ’s claim for annulment of the recognition was ill - founded .

The applicant filed a cassation appeal . However , on DATE ORG refused to entertain it .


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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

The NORP Government ( “ the Government ” ) were represented by their Agents , PERSON , PERSON and Mr. PERSON , ORG .

By decisions of DATE and DATE ORG Skatteverket ) reviewed the applicant ’s taxation for income received in DATE ( i.e. DATE ) and found that payments made by NORP county councils and health care districts to a company registered in GPE and PERCENT owned by the applicant should be considered as salary for work performed as a medical doctor for which he was liable to pay income tax in GPE . His income was revised upwards by CARDINAL , CARDINAL and MONEY ( SEK ) , respectively , for DATE . Furthermore , as the applicant had failed to account for the amounts in question in his DATE tax returns and had thus supplied ORG with incorrect information , the ORG ordered him to pay tax surcharges ( skattetillägg ) , amounting to PERCENT of the increased tax liability .

Following the applicant ’s appeals , ORG made obligatory reviews of its decisions but did not change them .

By judgments of CARDINAL DATE and DATE ORG ( länsrätten ) in GPE upheld ORG decisions .

It is not clear whether the applicant appealed against the judgment of CARDINAL DATE , but he did so against the judgment of DATE which concerned income received in DATE and DATE .

On DATE ORG ( kammar - rätten ) in GPE agreed with the principal considerations in ORG decision but lowered the amounts in question – following new information obtained by the Agency DATE to MONEY and QUANTITY for DATE ( in total CARDINAL euros ( ORG ) ) .

By a decision of DATE ORG ( Regeringsrätten ) refused leave to appeal .

It appears that ORG and , upon appeal , the administrative courts have made similar tax revisions for income received in DATE and DATE .

Criminal proceedings were initiated against the applicant on DATE in regard to the above conduct .

By a judgment of DATE ORG ( tingsrätt ) convicted the applicant of an aggravated tax offence ( grovt skattebrott ) and sentenced him to DATE and DATE in prison . The conviction concerned the period DATE , corresponding to all DATE which had been subject to tax revisions , and thus including DATE which are relevant in the present case before ORG . The court found that the applicant had systematically and intentionally given ORG misleading information as to where he lived and worked . Although he had lived and worked in GPE during DATE in question , he had incorrectly claimed that he had left the country and worked abroad . The total undeclared income amounted to MONEY and the evaded income tax came to MONEY SEK . In sentencing the applicant , the court took into account that a long time had passed since the offences had been committed .

On DATE ORG ( hovrätt ) of GPE and PERSON upheld ORG judgment . While the appellate court did not find that the time between the commission of the offences and the indictment gave reason to reduce the length of the prison sentence , it found that the considerable tax surcharges imposed on the applicant constituted such a reason . The court did not , however , give any details as to how much the sentence was reduced due to the surcharges . In conclusion , it upheld the sentence passed by ORG .

ORG ( ORG domstolen ) granted leave to appeal with respect to the question whether , pursuant to LAW , the imposition of tax surcharges barred the criminal trial or conviction of the applicant .

By a decision of DATE ORG found , by a majority of CARDINAL votes to QUANTITY , that there was no reason generally to invalidate the NORP system with double proceedings by virtue of LAW No . CARDINAL ( published in Nytt juridiskt arkiv ( ORG ) DATE , p. CARDINAL ) . The court considered that , following the judgment in PERSON v. RussiaIf the later proceedings concerned identical or essentially the same facts as the earlier proceedings , it was a matter of proceedings concerning the same offence . However , ORG noted that the GPE case - law left some room for several punishments for the same offence that could be decided by separate organs at different times and mentioned by way of example , inter alia , the conviction for a traffic offence and the resultant withdrawal of the offender ’s driving licence . ORG further found that the invalidation of a NORP system regulated by domestic law with reference to the LAW required that either the LAW itself or the ORG ’s jurisprudence provided clear support for that conclusion and considered that neither LAW No . CARDINAL nor the jurisprudence provided such support in the matter at hand . There were no other grounds for finding that LAW No . CARDINAL prevented the trial or conviction of the applicant because of the fact that tax surcharges had been imposed on him . In these circumstances , there was no reason to grant leave to appeal in regard to the applicant ’s conviction and sentence . ORG judgment was accordingly upheld .

The applicant started to serve his prison sentence on DATE . He was released on probation on DATE .

On DATE ORG , at the applicant ’s request , decided to re - open the criminal proceedings in so far as they concerned the applicant ’s liability for tax offences in DATE ( corresponding to the taxation DATE ) and the sentence fixed by ORG . In those respects , the case was referred back to the appellate court for a new examination . Referring to LAW and to its decisions of DATE and DATE ( see further paragraphs CARDINAL and DATE below ) , ORG noted that the applicant had been convicted by ORG after the PERSON judgment of DATE and that the tax surcharges previously imposed on him concerned the same conduct as the criminal indictment . However , the court rejected the petition for a re - opening of the criminal case to the extent that it concerned offences committed in DATE and DATE as , in those respects , the conviction had occurred before ORG decisions on surcharges .

On DATE ORG quashed its judgment of CARDINAL DATE in so far as it concerned the part that had been re - opened by ORG ( that is , DATE ) and dismissed the indictment in that respect . The sentence for the remaining tax offences , committed in DATE and DATE , was fixed at CARDINAL months’ imprisonment .

The applicant has appealed to ORG against the sentence fixed by ORG . Thus , his appeal does not concern the DATE relevant in the present case . The appeal is presently pending .

On DATE the applicant instituted proceedings for damages against the ORG before ORG . He claimed CARDINAL ( approximately FAC ) for suffering due to his having been imprisoned following dual proceedings that allegedly violated LAW . The claimed amount was calculated in accordance with the practice of the Chancellor of ORG ( NORP ) ( see further paragraph CARDINAL below ) . The compensation proceedings have been adjourned pending the outcome of the re - opened criminal proceedings .

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in , as far as income tax was concerned , LAW ( Taxeringslagen , CARDINAL:CARDINAL ) and , with respect to GPE , LAW ( Skattebetalningslagen , DATE ) . Both laws have since been replaced by LAW Skatteförfarandelagen ; CARDINAL ) .

A tax surcharge could – and still can – be imposed on a taxpayer in CARDINAL situations : if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect ( LAW , section CARDINAL of LAW , and LAW , LAW ) or if , following a discretionary assessment , ORG decides not to rely on the tax return ( LAW , section CARDINAL , and LAW , section CARDINAL , respectively ) . It is not only express statements that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that ORG can not base its tax assessment on it or if he or she has not filed a tax return despite the obligation to do so . In certain circumstances , the tax surcharges may be exempted .

A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information , thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her , is criminally liable under sections CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) . The possible sentence ranges from a fine for a tax misdemeanour ( skatteförseelse ) to imprisonment for a maximum of DATE for an aggravated tax offence . Section CARDINAL provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so ( vårdslös skatteuppgift ) may be sentenced to a fine or a maximum of DATE in prison . The term “ incorrect information ” in LAW is considered to have the same meaning as in the above provisions on tax surcharges ( Government PERSON , p. CARDINAL ) .

In a judgment of CARDINAL DATE ORG considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings ( NJA DATE , p. CARDINAL ) . Having noted that , under internal NORP law , a surcharge is not considered a criminal penalty and does not prevent trial and conviction for a tax offence relating to the same act , ORG went on to examine the matter under LAW . It first considered , in the light of the ORG ’s case - law , that there were weighty arguments for regarding LAW as being applicable under its criminal head to proceedings involving a tax surcharge . Even assuming this to be the case , it held , however , that the principle of ne bis in idem , as set forth in LAW No . CARDINAL to the LAW presupposed that the initial conviction or acquittal had been delivered in accordance with the penal procedure of the ORG . Therefore the principle did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied . This view was confirmed in later judgments delivered by ORG .

On DATE ORG examined the reverse situation , that is , where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence ( judgment published in PERSON årsbok ( RÅ ) DATE , ref . CARDINAL ) . In assessing whether there was a violation of the prohibition on double punishment under LAW No . CARDINAL to the LAW , the court referred to the fact that the relevant NORP provisions aimed at ensuring that the combined sanctions – criminal conviction and imposition of tax surcharges – were in reasonable proportion to the conduct for which the individual had been found liable . It further noted that the NORP legal system contained the special feature of separate general courts and administrative courts . In the court ’s opinion , LAW No . CARDINAL had to be interpreted in the light of such special features in the national legal systems . While acknowledging that the ORG ’s recent judgments in PERSON v. GPE ( cited above ) and PERSON GPE ( no . CARDINAL/CARDINAL , judgment of DATE ) suggested a change in the GPE case - law , ORG noted that they did not relate to the NORP legal system and concluded that this system , allowing for both a conviction for a tax offence and an imposition of tax surcharges , was in conformity with the Convention .

On DATE , in its decision concerning the present case , ORG examined the issue anew and again found that there was no reason generally to invalidate the NORP system with double proceedings by virtue of LAW No . CARDINAL ( see further paragraph CARDINAL above ) .

By a plenary decision of DATE ( NJA DATE , p. CARDINAL ) ORG overturned its previous conclusions . In line with its DATE decision , the court held that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and the relevant proceedings thus concern the same offence within the meaning of LAW No . CARDINAL . However , where the court in DATE had found that the invalidation of the NORP system required clear support in the Convention itself or in GPE case - law , the court now noted that the judgment of ORG in the case of PERSON ( CARDINAL NORP DATE , case no . C-CARDINAL/CARDINAL ) already prohibited double proceedings and punishments with respect to VAT . As the NORP system had thereby been partially invalidated , the legal and practical consequences of further changes were not so radical as to require the intervention of the legislature . The court also took into account that no legislative amendments had been made despite the developments in GPE case - law since DATE and that it would be inexpedient and difficult to apply different rules on similar contraventions within a system meant to be coherent . Consequently , the court held that there was sufficient support for concluding that the NORP system of tax surcharges and tax offences was incompatible with LAW . This conclusion applied not only to ORG , but also to income tax , employer ’s contributions and similar payments .

ORG further found that the protection under NORP law against double proceedings and punishments was valid also in cases where the state exacted personal liability on an individual for tax surcharges imposed on a legal person . Having regard to the strong and systematic connection in NORP law between the principles of res judicata and lis pendens , the court also held , although the ORG ’s jurisprudence was unclear on this point , that ongoing , not finalised proceedings on tax surcharges precluded a criminal indictment concerning the same factual circumstances . The procedural hindrance against an indictment materialised when ORG took its decision to impose surcharges .

However , whereas the imposition of tax surcharges and the conviction for a tax offence based on the same factual circumstances concerned the same offence and were thus prohibited , the situation was different when the criminal conviction concerned a bookkeeping offence . According to ORG , which had regard to the case - law of the ORG , the concrete factual circumstances forming the basis of a bookkeeping offence could normally not be considered inextricably linked to the factual circumstances leading to the imposition of tax surcharges . In addition to the breach of bookkeeping obligations under LAW , the imposition of a tax surcharge involved a further factual element , namely the submission of incorrect information in a tax return .

In the case at hand , which involved the imposition of tax surcharges against an individual in DATE and the criminal indictment of him in DATE for , inter alia , aggravated tax offences and an aggravated bookkeeping offence , ORG quashed the appealed judgment of ORG in so far as it concerned the tax offence relating to his personal income tax and dismissed the indictment in that respect . However , nothing prevented the examination of the bookkeeping offence or the tax offences concerning ORG and employer ’s contributions . In the latter respect , the conclusion was due to the tax surcharges relating to LOC and employer ’s contributions having been imposed on the appellant ’s limited liability company and not on him personally .

In a further decision , taken on DATE ( NJA DATE , p. CARDINAL ) , ORG examined the question whether a former defendant could be granted a re - opening of criminal proceedings ( resning ) under LAW , section CARDINAL of the Code of Judicial Procedure ( Rättegångsbalken ) if he or she had been convicted of an offence under LAW in a manner incompatible with LAW , as interpreted by the decision of DATE . The court concluded that , on the basis of the Convention , in particular LAW , a NORP court may decide , in certain situations , that a case is to be re - opened notwithstanding the special conditions specified in LAW , section CARDINAL . The court also took the position that the incompatibility of NORP legislation regarding sanctions for tax - related offences with LAW No . CARDINAL had arisen by virtue of the PERSON judgment ( cited above ) , thus on DATE . ORG decision led to criminal proceedings being re - opened in respect of an individual ’s conviction for an offence under LAW . As a result , the possibility of being granted a re - opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from DATE .

On DATE ORG took another decision of relevance ( NJA DATE , p. CARDINAL ) . It stated therein that , if criminal proceedings have commenced before ORG has decided to impose tax surcharges , the prohibition against ne bis in idem can not result in a criminal judgment that has become final being re - opened and quashed . Instead , it is the second set of proceedings to be commenced DATE the tax proceedings involving surcharges – that are contrary to the law . The violation of the right not to be tried or punished twice for the same offence is therefore in this situation a matter for the administrative courts .

By a plenary judgment of CARDINAL DATE ( HFD DATE ref . CARDINAL ) , ORG ( now ORG förvaltningsdomstolen ) reversed the position taken in its judgment of CARDINAL DATE and confirmed in a judgment of DATE ( RÅ DATE ref . CARDINAL ) . Agreeing with the conclusions drawn by ORG , ORG found that the same principles should apply when the order of the tax and criminal proceedings is different , that is , when the tax proceedings are commenced later . Accordingly , a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information .

In the case at hand , where the individual had been indicted in DATE and surcharges had been imposed by ORG in DATE , ORG concluded that the latter decision violated LAW . The appeal made against the appellate court ’s judgment on tax surcharges was accordingly granted and the surcharges set aside .

ORG has since examined several petitions for the re - opening of tax proceedings in which tax surcharges had been imposed . In a decision of DATE ( cases nos . CARDINAL - CARDINAL and DATE ) it rejected the petition , stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that , accordingly , no violation of the prohibition against double proceedings had occurred . In a judgment of DATE ( cases nos . CARDINAL - CARDINAL and CARDINAL - CARDINAL ) it granted a re - opening , noting that , pursuant to ORG decision of DATE , the applicant would have had a right of re - opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand , which was the reverse , should not be treated differently . ORG accordingly re - opened the tax proceedings and quashed the tax surcharges in question . The latter case had already been examined by ORG as part of the original tax proceedings in DATE prior to the recent developments in NORP case - law – and had then been considered not to involve a breach of LAW No . CARDINAL .

In a judgment of DATE ( cases nos . DATE and MONEY ) ORG examined a different situation where tax surcharges had been imposed on a person by a decision of ORG in DATE , upheld by ORG in DATE . During the subsequent examination before ORG , the person in question was , in separate criminal proceedings , indicted for a tax offence but acquitted thereof by a judgment of ORG in DATE which soon afterwards acquired legal force . As a consequence , ORG , in DATE , quashed the surcharges that had been imposed . ORG agreed with this course of action , noting that the ORG had established in several judgments ( including PERSON v. GPE , no . CARDINAL , DATE ) that , in the event that CARDINAL of CARDINAL concurrent sets of proceedings becomes final , LAW No . CARDINAL required that the other set of proceedings be discontinued . ORG judgment was delivered in ordinary proceedings which had not involved any re - opening . Furthermore , all the decisions and judgments in the case were delivered after the PERSON judgment .

Following the above judicial changes , ORG ( Riksåklagaren ) and ORG ( GPE - myndigheten ) decided to examine all tax cases where there may have been double punishments in accordance with the conclusions by the CARDINAL supreme courts . Whenever the conditions were met , the prosecutor would file a petition for the criminal proceedings to be re - opened , provided that the individual agreed to this course of action and had not already sought a re - opening him- or herself . The undertaking , expected to be finalised by DATE , was to cover all cases ending with a judgment , an order of summary punishment ( strafföreläggande ) or a decision not to prosecute ( åtalsunderlåtelse ) since DATE .

On DATE the NORP newspaper ORG , basing itself on information provided by ORG , reported that CARDINAL cases concerning tax offences had been examined . Out of CARDINAL individuals who were serving prison sentences , DATE had been released . Those who had not been released had been convicted also for other crimes than tax offences . A further number of persons who were about to start serving prison sentences did not have to do so . CARDINAL individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re - opening of proceedings and , so far , CARDINAL of them had accepted and CARDINAL cases had been re - opened . In some re - opened cases the convictions had been quashed in their entirety ; in others , involving several offences , the proceedings had to be repeated .

Section CARDINAL of the Act on Compensation for Deprivation of Liberty and Other Coercive Measures ( ORG om ersättning vid frihetsberövande och andra tvångsåtgärder ; CARDINAL:CARDINAL ) stipulates that a person who has served a prison sentence is entitled to compensation if , following an appeal or a re - opening of proceedings , he or she is acquitted or given a less severe sentence or the judgment containing the conviction is quashed . Under section CARDINAL of that Act , compensation is awarded for costs , loss of income , interference in business activities and suffering . Normally , in accordance with the practice of the Chancellor of ORG , compensation for suffering is set at a rate of SEK CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) for DATE , SEK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) for DATE up to and including DATE and SEK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) per month after that . Certain circumstances can lead to a higher rate of compensation . This is primarily the case if the suspicions have concerned a particularly serious crime or if the matter has attracted extensive media attention .

An action for damages can also be based on LAW ( ORG , CARDINAL:CARDINAL ) . Under LAW , LAW , compensation is awarded for damage caused by fault or negligence on the part of a public authority . Requests can be lodged with the Chancellor of ORG . If dissatisfied with the Chancellor ’s decision , the individual has the option of bringing an action for damages against the ORG in the general courts . He or she may also institute such proceedings directly without having made a request to the Chancellor .

In addition , ORG has developed case - law which provides that , in order to provide redress for victims of Convention violations , compensation may be awarded without direct support in NORP law . Based on this case - law , the Chancellor of ORG has awarded compensation in many cases following requests from individuals . The ORG has had regard to this development and has concluded that , following a ORG judgment of DATE ( ORG DATE N CARDINAL ) , there is an accessible and effective remedy of general applicability , capable of affording redress in respect of alleged violations of the Convention ( see , for example , PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE ( dec . ) , no . CARDINAL , § CARDINAL , DATE , and DATE in regard to the domestic case - law developments – the latter decision , § § DATE ) .


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

NORP The applicant , PERSON , is a NORP national , who was born in DATE and is currently serving a prison sentence in GPE . She was represented before the ORG by PERSON , a lawyer practising in PERSON , GPE . The Government were represented by their Agent .

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

On DATE , at TIME , the applicant was arrested on suspicion of involvement in the armed operations of the ORG ( ORG ) , an illegal armed organisation .

Following her arrest , at TIME , she underwent a medical examination at ORG . The report drawn up there noted no injuries on her body .

Later on DATE , the applicant was taken to the ORG Branch of ORG , where she was placed in custody .

According to the records held , DATE the applicant met with her lawyer . The document was signed by both the applicant and her lawyer .

DATE , on DATE , the applicant was questioned by the police . Before the questioning , she was reminded of her rights , including the right to benefit from legal assistance . According to the official statement , she refused legal assistance and proceeded to give certain information about her training within the ORG and the structure of the illegal organisation . She signed both the official statement and an additional document indicating her refusal of legal assistance .

On DATE the applicant consulted with her lawyer in person once again . Both the applicant and her lawyer signed the police records noting that meeting .

On DATE the applicant underwent a second medical examination at ORG . She complained that during her police custody she had been slapped , had her hair pulled , been pushed to the ground and been deprived of sleep . The report drawn up following the examination noted no indication of physical violence on the applicant ’s body .

On DATE the applicant was brought before the GPE public prosecutor , when she gave her statements in the presence of a lawyer . She reiterated her allegations of ill - treatment and denied her previous statements , indicating that they had been taken under duress . The applicant ’s lawyer also maintained before the public prosecutor that he had not been allowed to see the applicant at ORG .

Subsequently , the applicant was brought before the investigating judge at ORG . There , once again in the presence of her lawyer , she repeated the statements she had made before the public prosecutor . She further maintained that she had been beaten while in police custody . At the end of the questioning , the investigating judge ordered the applicant ’s detention on remand .

NORP On DATE the GPE public prosecutor filed an indictment with ORG , accusing the applicant of membership of the ORG , an offence under LAW in force at the time ( LAW . CARDINAL ) .

At various hearings before ORG , the applicant stated that she had left the ORG on account of her health problems and of her own free will , and had never been involved in any armed acts carried out by the illegal organisation . She also reiterated her allegations of illtreatment in police custody before the court . During the course of the proceedings , the applicant was represented by a lawyer .

At a hearing on DATE the GPE public prosecutor submitted his observations , further accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory , under LAW .

On DATE , on the basis of various pieces of evidence , including the applicant ’s statements before the public prosecutor and the investigating judge , the findings of CARDINAL searches conducted in her residence , telephone records and several witness statements , ORG sentenced the applicant to life imprisonment LAW CARDINAL of the former Criminal Code . The court also relied on the applicant ’s police statements and maintained that they were corroborated by evidence obtained subsequently from ORG . In response to the applicant ’s submissions about the use of those statements , taken in the absence of a lawyer , the court indicated that she had waived her right to legal assistance before being questioned . The court did not make any comments with regard to the applicant ’s allegations of ill - treatment .

On DATE ORG upheld the judgment of the first - instance court , again with no mention of the alleged ill - treatment .

A description of the relevant domestic law can be found in GPE v. GPE , no . CARDINAL , § § DATE , DATE .