Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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

NORP The applicant joined the ORG in DATE at DATE and served until the expiry of his contract in DATE . He had competed internationally as a boxer . He served in ORG and held the rank of gunner . He married in DATE and had CARDINAL children with his wife .

NORP The applicant claims that he was the victim of a series of sexual assaults ( groping and inappropriate touching ) by his superior officer , ORG , who held the rank of ORG . This began in DATE at a time of alleged personal difficulty for the applicant . At this time , he had been involved in a hit - and - run accident for which he was prosecuted as well as for driving under the influence of alcohol . The abuse typically involved ORG touching the applicant intimately , rubbing his own private parts against the applicant ’s body and physically forcing the applicant ’s hand to touch ORG ’s private parts , all of this through clothing . The abuse occurred in ORG ’s office and it continued until DATE .

The applicant claims that ORG could not have been unaware of ORG ’s proclivity to interfere with his subordinates . He alleges that he and CARDINAL other gunner were subjected to protracted ridicule in the mess ( canteen ) as the officer ’s “ bum boy ” . He did not at any time during his military career make a complaint about ORG ’s conduct . This , he claims , was partly out of shame and partly because ORG had , allegedly , threatened that he would be locked up if he reported the abuse and that the word of a gunner would not be taken over that of a Sergeant Major . In the applicant ’s view , the culture in ORG at that time was against making complaints . In the applicant ’s subsequent proceedings against the army , his wife gave evidence to ORG that his behaviour at that time began to deteriorate and that he had changed from being a model father and husband to being unrecognisable . In or DATE the applicant and his wife separated .

After the applicant had left the army , CARDINAL other complaints were made against ORG by CARDINAL soldiers , GPE and GPE .

NORP In DATE ORG filed a complaint of sexual assault by ORG which had allegedly occurred DATE during a room inspection and he sought to be discharged from the army because of it . The complaint was investigated by the military police who interviewed ORG and another officer involved in the room inspection .

NORP In their investigation report , dated DATE , the military police noted that while ORG claimed that the incident with ORG was the reason for his seeking discharge he had , in fact , already been seeking civilian employment for DATE before that time . It also noted ORG ’s disciplinary record . It noted Captain S ’s testimony that when he left the room the door was ajar and that ORG had followed him out of the room TIME . It had regard to the fact that ORG had a service record of DATE and had never before been the subject of any allegations . The report concluded that it had not been possible to prove ORG ’s allegation . ORG went on leave after this investigation and then decided to retire , leaving the army in DATE .

NORP In DATE RM confided in CARDINAL colleagues that he had had similar experiences to CP , but he declined to identify the person responsible . The colleagues DATE both of whom later gave statements to the police – raised their concerns with Captain PERSON He undertook to deal with the complaint and arranged for RM to meet with the army psychiatrist . He also asked if ORG was involved but RM was unwilling to discuss this and did not make any complaint against ORG at this time .

At DATE , the applicant happened to meet a former colleague of his , JW , who told him about the allegations that had been made concerning ORG . The applicant then told him of his experience with ORG but swore him to secrecy . PERSON , nevertheless , raised the matter immediately with his superior officer , Lieutenant Colonel C.

In DATE RM made a statement to the police about sexual assaults committed against him by ORG DATE .

The police commenced an investigation during which they became aware of the allegations made by ORG and the applicant . They took statements from all CARDINAL men DATE . The police also interviewed several military officers and took statements from the CARDINAL soldiers who had brought ORG ’s situation to the attention of the military authorities , as well as from Captain PERSON

NORP The police interviewed PD on DATE . He denied the allegations . DATE , however , during a second interview , he confessed to having sexually assaulted RM . He was then arrested . He continued to deny the allegations made by the applicant and by ORG .

In DATE the investigation file was submitted to ORG ( “ ORG ” ) in respect of the CARDINAL complainants . In DATE the ORG directed ORG ’s prosecution in respect of RM ’s complaints and sought further information from the police concerning the applicant and ORG . The information was furnished in DATE . The initial decision of the ORG was not to prosecute ORG in respect of complaints made by the applicant and ORG . However , upon a request by the police the file was reviewed by the ORG who then issued a new direction in DATE to prosecute ORG in respect of the applicant ’s complaints .

NORP In DATE ORG pleaded guilty to CARDINAL charges of sexual assault upon RM . On DATE he was formally convicted and sentenced to CARDINAL years’ imprisonment , suspended on condition that he enter a bond and agree to be of good behaviour and keep the peace for DATE . He was also fined ORG CARDINAL , which was to be paid to ORG , and was placed on the register of sexual offenders .

Following a criminal trial in DATE , the jury acquitted ORG in respect of certain charges and it failed to reach a verdict on other counts . A nolle prosequi ( withdrawal of charges ) was then entered in DATE in respect of the charges on which the jury had failed to reach a verdict .

NORP In DATE the applicant issued civil proceedings for damages against ORG , the Minister for Defence , GPE and the Attorney General . He was legally represented and his claim against ORG was settled in DATE in the sum of € MONEY without admission of liability .

The applicant ’s claim against the remaining defendants ( the “ ORG defendants ” ) was heard by ORG and was based on CARDINAL alternative grounds . Firstly , he alleged that the ORG was vicariously liable for the actions of ORG . Secondly , he alleged that the ORG was directly negligent in that he claimed it had knowledge of ORG ’s behaviour such as would have alerted a reasonable person to take steps to inquire into or prevent the activities of ORG and that it had failed so to do . The trial commenced in ORG in DATE and heard numerous witnesses over the course of DATE .

The High Court ( PERSON ) gave judgment on DATE , dismissing the applicant ’s claims .

The court accepted that , on the civil standard of proof , that is , on the balance of probabilities , ORG had assaulted the applicant causing posttraumatic stress disorder . It then considered whether the ORG should be held vicariously liable for this . ORG reviewed all the relevant legal authorities that were opened to it on the question of vicarious liability , including NORP , NORP and NORP jurisprudence and it found :

“ All of the above cases were cases which related to young and vulnerable children , which is not the situation in this case . The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the ORG . I have come to this conclusion after a good deal of consideration and some doubt . The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff , but overall I feel that the balance in this particular case lies against vicarious liability . ”

The High Court then considered the separate question as to whether the ORG had been directly negligent and addressed this issue in terms of whether the authorities had been or should have been aware of ORG ’s behaviour at the relevant time . It stated :

“ ... [ T]he evidence of the [ applicant ] and many of his witnesses is that there was general chat on a continual basis about [ ORG ’s ] activities , that it was well known and that it was the chat of the barrack room and the camp .

This has been completely denied by all of the defendant ’s witnesses . Whereas I grant there is a distinction in rank between the [ applicant ’s ] witnesses and the defendant ’s witnesses , I came to the conclusion that all of them appear to be attempting to tell the truth .

Therefore , I am satisfied that there was banter , possibly name calling and certainly general slagging , I think would be the correct way of putting it , and , though that may have been prevalent in the mess room at times , none of it was taken sufficiently seriously by any of the men , the ORG ’s and any other officers who may have heard it to be considered anything other than of a humorous nature .

It is necessary to look at the incidents and at the evidence in light of the times as they then were . These events took place in the DATE ’s and DATE , at a time when the antenna of the ordinary reasonable person was far less acute to the potentials for sexual abuse or sexual assault than they are DATE . We must remember that , for DATE , the country has been subject to continual reports of sexual exploitation , sexual abuse and sexual assaults , all of which have tended to make the population a great deal more sensitive to matters which DATE would not have drawn any attention whatsoever .

I am quite satisfied that had any of the ORG ’s or others , any real apprehension regarding the behaviour of [ ORG ] , they would have given notice of such apprehension one way or another through the preferred route as laid down in the ORG code or otherwise . I am reinforced in this view by the speedy action of [ JW ] , when informed by the [ applicant ] of the events which occurred , he immediately repeated to ORG and laid the [ applicant ’s ] claim before them , despite the fact that he had been bound by the [ applicant ] to secrecy . It is for this reason , I have come to the conclusion that , on the balance of probabilities , the [ applicant ] failed to discharge the onus of proof on him that , at the time of the incidents when the subject matter of these proceedings occurred , the level or content of the activities which were described in the mess room , in the bar and in the canteen were such as would have alerted a reasonable person and cause them to take steps to either enquire into or prevent the activities of [ ORG ] . ”

NORP The applicant appealed to ORG , which dismissed the case in a judgment of DATE .

On the negligence claim , ORG ( PERSON ) reviewed the evidence and did not interfere with the findings of fact made by ORG . The court acknowledged the evidence in support of the applicant ’s claims that the proclivities of ORG were known in army circles and that there was no satisfactory method of bringing a complaint . It also acknowledged the large number of witnesses for the defendants who had contested these claims , meaning there was also ample evidence against the applicant ’s case . The court referred to the various avenues of complaint that had been available to the applicant and the persons to whom he could have turned , in confidence , for help , such as the army chaplain or the social worker . The court recalled that its appellate role meant that it should only ensure that the primary findings of fact at trial and the inferences drawn from them were supported by the evidence . The trial judge had heard the witnesses directly and could assess their demeanour . He had been entitled to have regard to the fact that the applicant had never made a complaint about ORG , even though he had used the complaints procedure regarding another unrelated matter , thus demonstrating that he was aware of the existence of a complaints procedure and had been ready to use it . The evidence did not support the claim that soldiers were reluctant to make complaints or that the army was unreceptive to them . An expert witness had confirmed that the complaints procedures in place at that time in the army were good and sufficient by the standards then prevailing . The court also agreed with the trial judge ’s remarks about the importance of considering the issues in the light of the times as they then were and observed that it was “ a dangerous exercise in hindsight to apply knowledge and standards of DATE to events which occurred DATE ” .

On the question of vicarious liability , ORG noted that the applicant did not challenge the correctness of the legal principles as emerged from the case law and as outlined by ORG . He had only challenged that court ’s application of those legal principles . The applicant had argued that , while his case did not concern a child , the environment of the armed forces was such that the normal rules of adult interaction did not apply given , inter alia , disparities in rank . ORG , however , concluded that the employment relationship between the applicant and ORG did not support finding of vicarious liability . It stated :

“ While undoubtedly [ PD ] exercised a supervisory and disciplinary role where the [ applicant ] was concerned , he was not in the same position as a school teacher or boarding house warden in relation to a child . Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as , for example , might arise if [ ORG ] had been a swimming instructor in close physical contact with young recruits . There was no intimacy implicit in the relationship between the [ applicant ] and [ PD ] nor was there any quasiparental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established . To hold otherwise would be to extend to ORG a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee . ”

ORG went on to distinguish the relationship in issue in the applicant ’s case from that of a teacher and a child referring back to the case of O’Keeffe v. PERSON [ DATE ] DATE . It held that while the O’Keeffe case had involved a vulnerable child who was sexually abused by a teacher at school , the facts of the relationship between the parties in the instant case could hardly be more different . The applicant in this case was at all material times an adult . He had elected to accept the rigours , the discipline and the camaraderie associated with the life of a professional soldier . It must be accepted that the ORG require an atmosphere of discipline in order to function . A wide extension of liability would undermine the whole operational basis of any army .

ORG concluded that the applicant ’s case fell short by a considerable margin of establishing the prerequisites for a finding that the ORG defendants should be held vicariously responsible for the criminal activities of ORG .

According to the Government , the applicant took legal proceedings against the army on CARDINAL previous occasions while he was serving member of ORG . The first was a claim to ORG for damages for personal injuries ( deafness ) for which he was awarded compensation . CARDINAL military personnel had sued for damage to hearing caused by inadequate protective material . He also brought a personal injuries action against ORG arising from a road traffic accident and the case was settled .

The applicant submitted a claim for compensation to ORG ( “ CICT ” ) in respect of the injury caused by the sexual assaults of ORG . His claim was rejected in DATE on the grounds of delay in reporting the crime . The applicant appealed . A hearing took place on DATE , leading to a decision of CARDINAL DATE in which he was awarded € CARDINAL compensation .

A general formal complaint system was established by CARDINAL of the CARDINAL Act :

“ ( CARDINAL ) If an officer thinks himself wronged in any matter by any superior or other officer , including his commanding officer , he may complain thereof to his commanding officer and if , but only if , his commanding officer does not deal with the complaint to such officer ’s satisfaction , he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon .

( CARDINAL ) NORP If any man thinks himself wronged in any matter by any officer , other than his company commander , or by any man he may complain thereof to his company commander , and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter , he may complain thereof to his commanding officer , and if he thinks himself wronged by his commanding officer , either in respect of his complaint not being redressed or in respect of any other matter , he may complain thereof in the prescribed manner to ORG , who , if so required by the man , shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon .

( CARDINAL ) Every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into , and shall , if on inquiry he is satisfied of the justice of the complaint so made , take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of , and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of . ”

The CARDINAL Act also provided for the trial of military and criminal charges by court - martial including within DATE of the retirement from ORG of the accused ( section CARDINAL of the CARDINAL Act ) . Section CARDINAL of the DATE Act provided that anyone subject to military law who illtreated any subordinate was guilty of an offence against military law and would , on conviction by court - martial , be liable to imprisonment for a term not exceeding DATE or to any less punishment awardable by a courtmartial .

The Defence Forces Regulations ACARDINAL , adopted by the Minister under LAW , provided general guidance to commanding and other officers as to their responsibilities regarding discipline and misconduct . It also set out ( section CARDINALC ) a procedure for the submission of grievances during the general DATE inspection of the military unit by a General Officer Commanding . Notice of such inspections was given in advance with a reminder of the opportunity to bring forward any complaints .

In DATE the “ Administrative Instruction ACARDINAL ” was adopted pursuant to Regulations ACARDINAL . It was headed “ ORG in the LAW ” and it codified detailed procedures for making complaints in relation to unacceptable interpersonal behaviour to a company commander . Paragraph CARDINAL of that ORG accepted that the requirement to obey all lawful orders had to be counterbalanced by ensuring respectful and professional treatment and relationships between superiors of subordinates . Paragraph CARDINAL defined what was unacceptable sexual behaviour and gave specific examples including sexual assault and attempting to engage in or engaging in sexual activity by force , coercion or intimidation . Separate provisions governed “ sexual harassment ” including defining the notion , giving concrete examples and providing particular provisions for complaints having regard to the specific difficulties attached thereto .

ORG in the present case summarised the relevant principles applicable to the issue of vicarious liability by listing the factors for establishing whether or not impugned acts were carried out within the course and scope of employment . These principles are set out in the NORP cases of GPE v. PERSON ( DATE ) CARDINAL ( CARDINALth ) CARDINAL ; and PERSON v. PERSON ( DATE ) CARDINAL D.L.R. ( CARDINALth ) CARDINAL ) , both of which concerned the sexual abuse of infant children .

In GPE case , ORG noted that the established common - law test was that employers were vicariously liable for employee acts authorised by the employer or unauthorised acts “ so connected with authorised acts that they may be regarded as modes ( albeit unauthorised modes ) of doing an authorised act ” . In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom , ORG set out the principles by which the sufficiency of the connection between the employer ’s creation and enhancement of the risk and the wrong complained of was to be determined . These included :

“ ( a ) NORP The opportunity the enterprise afforded the employee to abuse his or her power ;

( b ) The extent to which the wrongful act may have furthered the employer ’s aims ( and hence be more likely to have been committed by the employee ) ;

( c ) The extent to which the wrongful act was related to friction , confrontation or intimacy inherent in the ORG enterprise ;

( d ) The extent of power conferred on the employee in relation to the victims ; and

( e ) The vulnerability of potential victims to wrongful exercise of the employee ’s power . ”

The PERSON case provided CARDINAL further principles :

“ ( a ) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls .

( b ) If prior cases do not clearly suggest a solution , the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability . ”

Both of these cases were analysed by ORG in GPE v. ORG ( [ DATE ] ORG DATE ] CARDINAL A.C. CARDINAL ) and cited by ORG in the present case as the leading GPE authority on the issue . The plaintiffs in that case were residents in a school owned and managed by the defendants and they had been sexually abused by the warden .

Lord PERSON stated ( § CARDINAL of the judgment ) :

“ Employing the traditional methodology of LANGUAGE law , I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in ORG to the warden . The question is whether the warden ’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable . On the facts of the case the answer is yes . After all , the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in ORG . Matters of degree arise . But the present case clearly falls on the side of vicarious liability . ”

A victim can apply for compensation for injury suffered as a result of violent crime under the statutory Scheme of Compensation for Personal Injuries Criminally Inflicted . The Scheme is administered by the ORG . The prescription period is DATE but it can be extended , exceptionally . Compensation is paid without any inquiry into liability and on an ex gratia basis . It covers expenses and losses and , since DATE , it does not include compensation for non - pecuniary loss . The ORG will deduct sums received by a victim in compensation from another source including from a civil action against the offender .


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Independent tribunal)

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

The applicant , a parent of CARDINAL young children , is a homeless person in priority need of accommodation within the meaning of Part VII of LAW ( “ the DATE LAW ) .

ORG ( “ the Council ” ) is a local housing authority within the meaning of the DATE Act and is required , under Part VII of that LAW , to perform statutory functions in relation to homeless persons in its area .

The applicant applied as a homeless person to ORG for assistance in DATE . By letter dated DATE the ORG determined that the applicant was homeless , eligible for assistance , in priority need and not intentionally homeless . The authority therefore accepted that it owed the applicant the “ main housing duty ” to provide accommodation to her and her family . On DATE the authority made the applicant an offer of accommodation which she refused because she was unhappy with the location . The authority told the applicant that in its view the accommodation was suitable but following a review of that decision , which was determined in the applicant ’s favour , they agreed to make her another offer .

On DATE a Housing Officer informed the applicant by telephone that another offer was being made , that a viewing had been arranged and that a letter would follow . The authority claims that on that same day a written offer of accommodation at CARDINAL GPE , GPE was sent to the applicant . That letter contained a statement to the effect that if the applicant refused the offer without good cause the authority would consider that it had discharged its duty to her under Part VII of the CARDINAL Act . However , the applicant denied receiving the letter ; instead , she claimed that she had to telephone the housing office to obtain the address and arrange the viewing appointment . She viewed the property on DATE but declined the offer as she was not happy with the condition of the communal area .

NORP By letter dated DATE the ORG notified the applicant that , by reason of her rejection of its offer , pursuant to section CARDINAL of LAW its duty to her under Part VII of LAW had been discharged . By letter dated DATE the applicant notified the ORG that she had not received an offer in writing and requested that the ORG review its decision .

While the applicant ’s case was pending before the review panel , a further offer of accommodation was made to her pursuant to a different scheme , namely the scheme for the provision of housing accommodation under Part VI of LAW . She did not accept this offer .

On DATE a ORG Officer employed by the ORG conducted a telephone interview with the applicant to establish her reasons for refusing the offer of accommodation at CARDINAL FAC . The Officer claimed that in the course of this conversation the applicant accepted that she had in fact received the offer letter but refused the offer of accommodation because there was no lift and the entrance to the property was dirty , which could put her youngest son ’s health at risk . However , the applicant claims that at the time she had thought she was being questioned about the subsequent offer of accommodation , in respect of which she did not deny having received a letter .

NORP By letter dated CARDINAL DATE the Homelessness Review Officer upheld the decision that the applicant ’s refusal of the offer of accommodation had discharged the ORG ’s main housing duty to her under section CARDINAL(CARDINAL ) of LAW . In particular , the Officer found that the applicant had been sent an offer letter from the ORG which complied with the mandatory requirements of section CARDINAL of LAW prior to her refusal and there was no reason to believe that she had not received it . In any case , she noted that the applicant had not refused the accommodation because she had not received a written offer but because she did not consider the accommodation to be suitable for her family ’s needs .

The applicant appealed to ORG under section CARDINAL of the CARDINAL Act , which allowed for an appeal on a point of law only . The jurisdiction exercised by ORG under section CARDINAL was that of judicial review . In her grounds of appeal the applicant claimed that the ORG , in reaching its decision , had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact ; that the ORG had acted unlawfully as it had failed to make adequate inquiries to enable it to reach a lawful decision ; that its decision was one which no rational ORG would have made ; that it had fettered its discretion ; and that it had acted in breach of natural justice .

The appeal was heard on DATE , on which date the judge noted that the only ground of appeal argued before him was that the letter of offer had failed to arrive . The applicant submitted that ORG should hear evidence on the matter so that it could determine it for itself . However , although the judge accepted that ORG was not an independent or impartial tribunal , he found that the decision whether or not the letter had been received was properly and fairly to be made by her and he declined to hear evidence on the point . Although it was not specifically stated in the correspondence between the ORG and the applicant , the judge appeared to consider whether or not the ORG had discharged its duty under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) .

The applicant subsequently appealed to ORG and then to ORG . At each level , the grounds of appeal were that the decision taken by ORG had constituted a determination of the applicant ’s civil rights for the purposes of LAW ; that the Officer had not been an independent or impartial tribunal as required by LAW ; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact , involving no application of specialist knowledge ; that pursuant to ORG v. GPE , no . CARDINAL/CARDINAL , DATE , LAW required that the applicant be able to appeal that simple factual determination ; and , alternatively , that the restriction of all statutory appeals to points of law , no matter what the nature of the decision , was incompatible with LAW .

Both ORG and the ORG decision on the applicant ’s appeal followed the decision of ORG in Runa Begum v. GPE of GPE [ DATE ] ORG CARDINAL . In PERSON ORG found that judicial review of a ORG Officer ’s decision that a claimant had been unreasonable in rejecting the accommodation offered to her provided “ sufficiency of review ” for the purposes of LAW . ORG stressed that although the Officer had been called upon to resolve some disputed factual issues , these findings of fact were “ only staging posts on the way to the much broader judgments ” concerning local conditions and the availability of alternative accommodation , which the Officer had the specialist knowledge and experience to make . Although the Officer could not be regarded as independent , since she was employed by the ORG which had made the offer of accommodation which the claimant had rejected , statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted , free from improper external influences . Any significant departure from the procedural rules would have afforded a ground of appeal .

The applicant submitted that the present case could be distinguished from that of PERSON because it concerned the simple question of a finding of primary fact rather than an evaluative judgment , such as a qualitative assessment of “ suitability ” .

On DATE ORG dismissed the applicant ’s appeal . In doing so , it proceeded on the assumption that the case involved the determination of the applicant ’s civil rights for the purposes of LAW . In relation to the question whether the decision of ORG had turned on the resolution of a simple question of primary fact , or whether it required the application of specialist knowledge , PERSON stated that :

“ i ) It is far from easy to draw the distinction advanced in practice . A finding of suitability is itself a finding based on conclusions of primary fact ...

ii ) There would be considerable complexity in administering a scheme with these distinctions . A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ...

iii ) ... [ I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding , or whether that finding required expertise or whether that finding was determinative , the room for argument and uncertainty would be considerable ...

v ) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ...

vi ) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence .

viii ) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system , if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by ORG ; funds are provided for their finance by ORG ...

ix ) The present scope of the appeal provides a real measure of protection for homeless appellants . It is clear from the careful judgments of Judge PERSON and Judge PERSON that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact . This conclusion reinforces the view I have expressed that the review by ORG in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in PERSON . It demonstrates , as Lord PERSON observed at paragraph CARDINAL , that the scheme properly operated should ensure fair treatment . I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts ( such as a conclusion on suitability ) . ”

PERSON therefore concluded that the decision of ORG in PERSON applied to all ORG appeals under section CARDINAL of LAW , no matter whether the decision turned on a simple issue of primary fact or not . He further held that the decision in Tsfayo , which concerned the housing benefit scheme , did not affect appeals brought in homelessness cases :

“ CARDINAL . ... In the first place ORG relied on the decision in PERSON in reaching its conclusion and said nothing that cast doubt on the correctness of the decision . Secondly , the decisions in PERSON and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case . Thirdly , it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit , central government reimbursed the local authority PERCENT of what it was required to pay , it only reimbursed PERCENT of backdated awards ( see paragraph CARDINAL of the decision ) ; this fact had been heavily relied upon in argument ( see paragraph CARDINAL of the decision ) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay PERCENT of the benefit if it made an award in the applicant ’s favour ; the ORG was not independent of the parties . Finally when the housing benefits scheme was looked upon as a whole , it was readily apparent that a conclusion could be reached , in contradistinction to the scheme under Part VII of LAW , that the particular scheme was not compliant with Article CARDINAL . ”

On DATE ORG dismissed the applicant ’s appeal , finding that the determination by the ORG , that its duty to secure accommodation for the applicant had ceased , was not a determination of her civil rights within the meaning of Article CARDINAL . Lord Hope of PERSON with whom ORG and Lord PERSON agreed , stated that :

“ ... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder , but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met , do not engage article CARDINAL(CARDINAL ) . In my opinion they do not give rise to ‘ civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article . ”

NORP In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the CARDINAL Act were intended to achieve . He observed that :

“ ... It provides a right to assistance if the relevant conditions are satisfied . But this is not a pecuniary right , nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute . Even where the full homelessness duty arises under section CARDINAL , the content of the statutory duty lacks precise definition . There is no private law analogy . The duty is expressed in broad terms – to secure that ‘ accommodation is DATE which leaves much to the discretionary administrative judgment of the authority . ”

He continued , following a review of the jurisprudence of the ORG , by noting that :

“ CARDINAL . There are however ... a number of straws in the wind since PERSON that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by PERSON v GPE whose substance the domestic law defines precisely and those benefits which are , in their essence , dependent upon the exercise of judgment by the relevant authority ... ”

Later in his judgment , Lord Hope , for completeness , set out some observations on whether the scheme of decision - making was Article CARDINALcompliant . He commented that the possibility , foreshadowed in argument , of separating simple , formal questions of “ gateway ” facts , such as the letter issue , from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer .

NORP The court went on to observe that the fact that a ORG did not have a full fact - finding jurisdiction when hearing an appeal under section CARDINAL of LAW did not mean that the applicant was deprived of what was required to satisfy the guarantees of LAW . In this connection , Lord Hope said this :

“ DATE . ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined . An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation ’s suitability . ... These cases are quite different from ORG , where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered . In these circumstances I would hold that the ratio of the decision in PERSON should be applied and that the absence of a full fact - finding jurisdiction in the court to which an appeal lies under section CARDINAL does not deprive it of what it needs to satisfy the requirements of article CARDINAL ) . ”

Unlike ORG , ORG appeared to consider whether or not the ORG had discharged its duty to the applicant under LAW ) ; however , it appeared to accept that a formal letter of offer was required by that subsection .


CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and is currently detained in FAC .

NORP In DATE the applicant was detained in FAC , serving a combined sentence of DATE imprisonment for aggravated murder , lewd acts , aggravated theft and car theft .

He suffers from many chronic medical conditions and a personality disorder which manifested itself in , inter alia , several attempts at self - harm and some suicide threats .

NORP In DATE the applicant was treated on the psychiatric ward of FAC .

Following his placement in an isolation cell in DATE , he again threatened to harm himself and for DATE was kept almost constantly immobile by having his hands and feet handcuffed to a bed ( see Dimcho GPE v. GPE , no . CARDINAL/CARDINAL , DATE , where the ORG found violations of the substantive and procedural limbs of LAW in that regard ) .

NORP In DATE the applicant was part of a prisoner group that included Mr GPE The latter was serving a combined sentence of DATE for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism . According to a later psychological report , PERSON PERSON had previously been admitted many times to the psychiatric ward of FAC and he suffered from a mixed personality disorder with elements of dissocial behaviour , paranoia and emotional instability .

On TIME the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate . When he entered the cell , PERSON , with whom he had had a conflict since DATE that year , began arguing with him , telling him that he had no right to come in and remove items . A guard intervened and took the applicant out of the wing , leaving him in the prison barbershop . According to statements made by the applicant later , Mr PERSON followed him , grabbed him by the collar through the bars separating the barbershop from the corridor , and hit him on the head and nose . In a report drawn up DATE , the social worker in charge of the applicant ’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant ’s allegations , and the applicant had not requested a medical examination .

Alerted by the guard , the social worker came and talked with the applicant , repeating that he could not go back into that wing . According to her report about the incident , her words upset him and he began arguing with her in a loud voice . That in turn irritated Mr GPE , who began to shout at the applicant . The social worker took Mr GPE and CARDINAL other inmates to a cell , where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures . They agreed that they had overreacted and undertook to make efforts to put relations in the group right . After that , the social worker had a talk with the applicant , who was in a highly emotional state . She told him of Mr PERSON ’s undertaking to calm the conflict . The applicant began shouting and insulting PERSON PERSON , who heard him and shouted back . To calm things down , the social worker had the applicant isolated in a cell .

DATE , the social worker received complaints from CARDINAL other inmates from the group . They protested against the applicant ’s return to the group , saying that he had systematically bullied and assaulted them . The applicant also filed a complaint , saying that he could no longer remain in the same group as Mr GPE

As a result , on DATE the social worker recommended that the prison governor move the applicant to another group . She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr PERSON , which would also be bad for his emotional well - being and security . In the meantime , the applicant was provisionally held in a cell on another floor .

DATE after the first incident , on DATE , a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker . According to the guard ’s report , filed DATE , the applicant swore at and threatened Mr PERSON when passing him by . The latter , upset , punched the applicant on the jaw . The social worker carried out an enquiry over DATE at the request of the prison governor and obtained statements from CARDINAL other inmates , confirming the events . She proposed that Mr GPE be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the CARDINAL . As a result of the blow he had received the applicant suffered a fractured jaw , but this was not detected immediately ( see paragraphs CARDINAL , DATE and DATE below ) . DATE after the incident , on DATE , the prison governor issued Mr PERSON with a disciplinary warning .

The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on DATE .

After the incident on DATE he was brought to ORG medical centre , where he was seen by the feldsher as the prison ’s only doctor was on long - term sick leave at the time ( see paragraph CARDINAL below ) . The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw . The feldsher noted some redness in his ear , but reported nothing more serious . She also noted that the applicant had no signs of other traumatic injuries to his body . She wrote a note to the prison administration , detailing her findings . According to a statement which he made in the course of the ensuing criminal proceedings against Mr PERSON ( see paragraph CARDINAL below ) , the applicant asked the feldsher to send him for an X - ray , but she refused .

On DATE the applicant went to the medical centre again and was given vitamins , an anti - inflammatory drug , a muscle relaxant and antibiotics .

He visited the centre once more on DATE and was given a painkiller .

According to a statement by the applicant in the criminal proceedings against Mr PERSON ( see paragraph CARDINAL below ) , he repeatedly asked to be sent to an external medical specialist for an examination .

His next visit to the centre was on DATE , when he complained of a loss of hearing in his right ear . The feldsher decided to refer him to an external specialist . The consultation took place DATE , on DATE ( see paragraph CARDINAL below ) . The Government said the delay was because the applicant ’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison .

The applicant went to the prison ’s medical centre again on DATE and threatened to go on a hunger strike . According to a statement which he made in the course of the criminal proceedings against PERSON PERSON ( see paragraph CARDINAL below ) , he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist .

His next visit to the centre was on DATE , when he obtained a painkiller but apparently did not complain further about his health .

On DATE the applicant was seen by an external otolaryngologist , who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing . He also noted that the applicant had some redness on his eardrums . He prescribed painkillers and antibiotics , and suggested that the applicant be seen by a maxillofacial surgeon . The prison paid for the consultation .

On DATE and CARDINAL and CARDINAL DATE the applicant again visited the prison ’s medical centre and obtained antibiotics and analgesics . On CARDINAL DATE he was taken out of prison for a consultation with a psychiatrist .

On CARDINAL DATE the prison ’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon . The ORG explained that that had been necessary because such consultations were not covered by GPE ’s health insurance scheme and the prison had to make a special payment for such a consultation .

On DATE the applicant was examined by a maxillofacial surgeon and given a panoramic X - ray . The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post - traumatic arthritis of the right temporomandibular joint . He recommended that the applicant have physiotherapy for that joint . The consultation and the X - ray were paid for by the prison administration .

On DATE the prison feldsher offered to send the applicant to ORG for physiotherapy . He refused .

On DATE the applicant agreed to be sent to ORG , and was admitted on DATE . He was examined and given an X - ray of the skull . It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on , and a deviated nasal septum . He was treated with antipsychotic , anticonvulsant and moodstabilising drugs , and had physiotherapy for his temporomandibular joints . He was in the hospital until DATE , when he returned to FAC .

DATE the applicant visited the prison medical centre on several occasions . He was generally given pain medication and further on request external medical consultations were discussed .

The second consultation with an otolaryngologist took place on DATE . She noted that the applicant complained of poor hearing and pain in the right ear . She found that he had normal eardrums but poor teeth , which caused luxation of the temporomandibular joint , and also had a dysfunction of that joint . She prescribed painkillers .

In a medical report drawn up on DATE , the FAC doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it . In DATE the applicant had surgery for the deviated nasal septum in a hospital in GPE .

On an unknown date in DATE the applicant complained to the GPE district prosecutor ’s office about the incidents on CARDINAL and DATE . In DATE the prosecutor ’s office refused to open criminal proceedings . It found that no prison staff had committed any offences during the incidents . On appeal by the applicant , the ORG regional prosecutor ’s office upheld that decision in DATE . The applicant appealed further and , on DATE , the FAC appellate prosecutor ’s office quashed the refusal to open criminal proceedings against Mr PERSON , but upheld the refusal to open proceedings against prison staff . It noted that the internal inquiry had established that the incident involving the CARDINAL inmates had been promptly dealt with and that there had been no culpable omissions by prison staff . It referred the case back with instructions to the lower prosecutor ’s offices to check whether Mr GPE ’s actions had amounted to causing moderate bodily harm .

Following a criminal investigation and delays in the resulting trial due to Mr PERSON ’s mental health , in DATE ORG found Mr NORP guilty of causing moderate bodily harm to the applicant by breaking his jaw . It sentenced him to CARDINAL years’ imprisonment and ordered him to pay the applicant MONEY ( ORG ) in respect of nonpecuniary damage . The court noted that the fracture had impaired the applicant ’s chewing and speech functions for DATE and had caused him considerable pain and suffering ( see прис. № DATE от CARDINAL г. по н. о. х. д. № DATE г. , ORG ) .

In DATE , following an appeal by PERSON , ORG fully upheld the lower court ’s judgment ( see реш. № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по в. н. о. х. д. № CARDINAL г. , ОС-Варна ) .

In DATE the applicant brought a claim for damages against ORG at ORG . He alleged that over DATE the authorities at FAC had failed to provide him with adequate medical care for pain in the right ear , his fractured jaw and numbness in his left arm .

ORG heard the case on DATE and DATE , when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings .


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

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


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)

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

The applicant was born in ORG in DATE . He is currently serving a prison sentence .

In DATE the applicant was implicated in the commission of the criminal offence of setting up and being a member of an armed gang and of other criminal offences .

On DATE the prosecutor charged him with the offences of membership of an armed gang , attempted intentional murder and other crimes . The notification of the prosecutor ’s charges was acknowledged by the applicant ’s officially appointed lawyer .

It appears that throughout the investigation proceedings the applicant was represented by an officially appointed lawyer .

On DATE ORG ordered the applicant ’s arrest . However , the order could not be enforced as the applicant could not be traced .

On DATE ORG declared the applicant a fugitive from justice after unsuccessful attempts to locate him . The decision stated that it was impossible to find him as it appeared that he had escaped to an unknown destination ( këto kërkime nuk kanë bërë të mundur kapjen e të pandehurit pasi ai rezulton të ketë ikur në drejtim të paditur ) .

On an unspecified date the prosecutor decided to commit the applicant for trial .

On DATE ORG transferred the case for examination to ORG .

On DATE the applicant ’s father appointed a lawyer to represent the applicant before the domestic courts .

The trial proceedings against the applicant were conducted in absentia and he was represented by a lawyer appointed by his family in accordance with LAW of LAW ( “ ORG ” ) .

On DATE ORG convicted the applicant in absentia of establishing and participating in an armed gang and attempted intentional murder . He was sentenced to DATE imprisonment . The decision was based on evidence from documents and witness testimony .

The applicant ’s family - appointed lawyer and the other co - accused appealed against the conviction to ORG ( “ the ORG ” ) . On DATE ORG declined to examine the applicant ’s appeal on the grounds that the applicant ’s family had not given any express authority to the lawyer for such a procedure . However , ORG examined the applicant ’s case as part of its overall examination , having regard to the appeals of the other defendants . It convicted the applicant of the same offences as before and sentenced him to DATE imprisonment .

On DATE ORG dismissed appeals by the applicant and other co - accused against ORG decision of DATE .

On DATE the applicant was arrested by the NORP authorities on the basis of an arrest warrant issued by GPE .

On DATE the applicant was extradited to GPE .

On DATE the applicant was officially informed of his conviction in absentia .

On DATE the applicant lodged a constitutional appeal against the conviction in absentia .

On DATE ORG , sitting in camera , declared the appeal time - barred as the DATE time - limit had started to run on DATE . ORG reasoning stated that throughout the proceedings the applicant had been represented by a courtappointed lawyer or a family - appointed lawyer and that accordingly he had had the opportunity to become acquainted with the proceedings brought against him .


Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Erik Møse;Eva Brems;Ganna Yudkivska;Giovanni Bonello;Guido Raimondi;Helena Jäderblom;Khanlar Hajiyev;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Robert Spano;Georges Ravarani;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On the basis of a contract signed on DATE and governed by the provisions of LAW , the applicant became an employee of ORG .

On DATE , the ORG ’s authorised representative requested ORG ( Národní bezpečnostní úřad – “ the ORG ” ) to issue the applicant with security clearance ( osvědčení ) giving him access to ORG classified information in the “ secret ” category ( tajné ) in accordance with the duties to be carried out by him .

On DATE the applicant took up his duties as director of the ORG of administration of the ORG ’s property ( PERSON správy majetku PERSON obrany ) .

On DATE the ORG issued the applicant with security clearance , valid until DATE , confirming that he had access to ORG classified information in the “ secret ” category .

During DATE the applicant was appointed deputy to the first Vice - Minister of Defence ( zástupce Prvního náměstka ministra obrany ) , while continuing to carry out his duties as director of ORG of the ORG property .

On DATE the ORG received confidential information from the intelligence service , classified “ restricted ” ( vyhrazené ) and dated DATE . It started an investigation in order to verify the information received . In the course of that investigation the intelligence service provided the ORG with other information , dated DATE , classified “ restricted ” and annexed to the security file ( bezpečnostní spis ) under CARDINAL . On the basis of that information the ORG revoked the security clearance on DATE . There were CARDINAL unrelated reasons for that decision : firstly , the applicant had failed to indicate , as he should have done when applying for security clearance , that he held directorships in a number of companies and accounts in foreign banks ; and secondly , the applicant was considered to pose a national security risk , within the meaning of section CARDINAL(CARDINAL)(d ) of PERSON no . ORG . With regard to that risk , the decision did not however indicate which confidential information it was based on , as this was classified “ restricted ” and could not therefore legally be disclosed to the applicant . The decision indicated that the facts established in respect of his conduct , as documented in the information received by the ORG on DATE , cast doubt on his suitability for security clearance and his ability not to be influenced and to keep sensitive information secret , and thus indicated that he was no longer trustworthy .

On an administrative appeal ( rozklad ) by the applicant , the director of the ORG , after obtaining an opinion from the appeals board , confirmed on DATE the ORG ’s decision of CARDINAL DATE , but on partly different grounds . He dismissed as unfounded the complaint that the applicant had failed to disclose certain information prior to being issued with security clearance . However , he agreed with the ORG ’s conclusions regarding the existence of a security risk , which had transpired from the investigation carried out by the ORG and from the classified documents .

In the meantime , on DATE , the applicant had asked to be discharged , for health reasons , from his duties as deputy to the first Vice - Minister of Defence , and from those of director of ORG of the ORG property . He was removed from office on DATE under LAW ( see paragraph CARDINAL below ) . On DATE he signed an agreement , under LAW , terminating his contract by mutual consent with effect from DATE .

On DATE the applicant lodged an application with ORG ( městský soud ) for judicial review of the decision revoking his security clearance . He and his lawyer were permitted to consult the file , but the parts classified as confidential were excluded . However , the documents containing information about the existence of a risk , including the confidential documents , had been sent by the ORG to the court , which had access to them . At the public hearing the applicant was given the opportunity to make his submissions and to state what he thought were the reasons for revoking his security clearance . He stated that he believed the information in question had been provided by a military intelligence service which had sought to take revenge on him for his refusal to accept a proposal to co - operate in a manner exceeding his statutory obligations .

In a judgment of CARDINAL DATE the court dismissed the application for judicial review . It observed that in a procedure revoking security clearance the relevant authority could only disclose reasons for revoking clearance that were based on non - classified documents and that as regards grounds based on classified documents it had to confine itself to referring to the relevant documents and their level of confidentiality . It found that the approach taken by the ORG , which had not disclosed to the applicant the contents of the information on the basis of which the security clearance had been revoked , had not been illegal as disclosure of such information was prohibited by law . It added that the applicant ’s rights had been sufficiently respected because the court had power to obtain knowledge of the classified information and assess whether it justified the decision taken by the ORG .

In a judgment of DATE ORG ( GPE správní soud ) dismissed an appeal on points of law ( kasační stížnost ) lodged by the applicant as unfounded . It considered that the classified documents in question had shown beyond any doubt that the applicant did not satisfy the statutory conditions to be entrusted with secret information . It observed that the risk in his regard concerned his conduct , which affected his credibility and his ability to keep information secret . ORG added that disclosure of the classified information could have entailed the disclosure of the intelligence service ’s working methods , the revelation of its information sources or the risk of influencing possible witnesses . It explained that there was a statutory prohibition on indicating where exactly the security risk lay and on specifying the considerations underlying the conclusion that such a risk existed , the reasons and considerations underlying the ORG ’s decision being based exclusively on classified information . Accordingly , the reasons for the decision had to be limited to a reference to the documents on which it was based and the level of confidentiality of the information used . It went on to observe that , owing to the special nature of proceedings where classified information was concerned , not all the applicant ’s procedural rights could be guaranteed but that the non - disclosure of the exact reasons underlying the decision to revoke security clearance was counterbalanced by the guarantee that the administrative courts had unlimited access to the classified documents . ORG pointed out that the report on the result of the investigations carried out by the intelligence service , included in the file under no . DATE , contained specific , comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk . It observed , further , that the information did not in any way concern the applicant ’s refusal to co - operate with the military intelligence service .

On DATE the applicant lodged a complaint with ORG ( Ústavní soud ) , complaining of the unfairness of the proceedings . In a judgment of CARDINAL DATE the court dismissed his complaint as manifestly ill - founded . Referring to its earlier case - law on the subject , it observed that given the special nature and the importance of decisions adopted in respect of classified information where national security interests were manifest , it was not always possible to apply all the guarantees relating to fairness of proceedings . It considered that in the present case the NORP conduct had been duly justified and the reasoning in their decisions comprehensible and in conformity with the LAW ; that they had not departed from procedural standards and constitutional rules to an inordinate degree ; and that ORG was not therefore required to intervene in their decision - making procedure .

On DATE the prosecution service lodged a bill of indictment against the applicant and CARDINAL other persons on charges of influencing the award of public contracts at ORG from DATE to DATE . The applicant was indicted for participation in organised crime ( účast na zločinném spolčení ) ; aiding and abetting abuse of public power ( pomoc k trestnému činu zneužívání pravomoci veřejného činitele ) ; complicity in illegally influencing public tendering and public procurement procedures ( pomoc k trestnému činu pletich při veřejné soutěži a veřejné dražbě ) ; and aiding and abetting breaches of binding rules governing economic relations ( pomoc k trestnému činu porušování závazných pravidel hospodářského styku ) .

In a judgment of DATE the České Budějovice Regional Court ( krajský soud ) found the applicant guilty and sentenced him , inter alia , to CARDINAL years’ imprisonment . In a judgment of CARDINAL DATE the Prague High Court ( Vrchní soud ) upheld the first - instance judgment convicting the applicant , but suspended execution of his prison sentence for a DATE probationary period . That judgment became final .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation)

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in GPE . He is of GPE origin .

On DATE at TIME the applicant was taken to ORG after he and his accomplices had been apprehended while driving a car containing goods apparently stolen from a nearby summer house .

The applicant submitted that shortly afterwards , for TIME , he had been ill - treated by CARDINAL police officers ; at TIME the CARDINAL officers had returned and had continued hitting and kicking him for TIME or so . TIME the CARDINAL officers had escorted the applicant to another room for questioning , but had then continued beating him , together with several other officers . In the applicant ’s account of the events , altogether CARDINAL officers and CARDINAL security guards took part in the ill - treatment , with the apparent intention of extracting his confession to further offences . He stated that he had been hit in the face , forced to his knees and kicked repeatedly ; a paper bag had been pulled over his head and the soles of his feet had been hit many times with a piece of wood . The officers had insisted that he admit to CARDINAL counts of theft in order for them to stop hitting him , and they had repeatedly insulted him , making references to his GPE origin . CARDINAL of them had said that they would not mind if he died DATE there would just be CARDINAL Gypsy less .

The applicant eventually signed the record of the questioning , which stated that the questioning had taken place TIME

TIME , at TIME , the applicant was allegedly escorted to the toilet , where he said the officers had again started hitting and kicking him . CARDINAL of them had removed a towel - holder from the wall and hit the applicant ’s hand with it . Again , references were allegedly made to the applicant being a GPE .

The applicant was released at TIME

DATE , at the request of the applicant ’s mother , the general practitioner of the neighbouring village , PERSON , came to the applicant ’s house and examined him . Since she had apparently been told only about chest complaints , she did not examine the applicant ’s legs or feet . She did not identify any marks indicating external injury on the applicant but found that his ribs were sore and suggested that he go to hospital if he wished to obtain a medical certificate recording his injuries . Dr PERSON herself did not produce a medical report on the LOC .

On TIME the applicant went to the emergency room of ORG in GPE . At TIME he was issued with a medical certificate , for which he paid the fee due , stating that he had bruises on the forehead , the nose and the left shoulder and an abrasion on the right hip ; both his hands and arms were swollen and hyperaemic ; and the rear surface of both thighs , as well as the soles of his feet , were swollen , red and sore . According to the certificate , the applicant had numerous contusions that had been inflicted by other persons .

Still on TIME , at TIME , X - rays were taken of the applicant at ORG in GPE , a town at a distance of QUANTITY , where the applicant was driven by his family members . He was diagnosed with a “ chest contusion ” , a “ skull contusion ” and “ bodily injury inflicted by human force ” .

The applicant stated that he had been unhurt at the time that he had been taken to the police department . He added that between his release and the medical inspection , he had been continuously accompanied by his relatives , who testified in the ensuing proceedings that he had not suffered any injuries outside the police department .

On DATE the applicant lodged a criminal complaint alleging that he had been brutalised by police officers . The applicant alleged that during the ill - treatment the officers had made repeated references to his GPE origin . The case was being investigated by ORG .

On DATE the applicant was heard as a witness and shown , for the purposes of his identifying his alleged assailants , the photos of police officers serving at ORG . The applicant acknowledged from the outset that he would be able to identify with certainty CARDINAL of the several perpetrators . Nevertheless , he finally identified CARDINAL persons as the perpetrators DATE police officers ( GPE , ORG , PERSON . PERSON , GPE , GPE and GPE ) and CARDINAL security guards employed by the police department ( ORG and GPE ) . Subsequently , the applicant became uncertain about the involvement of ORG

The prosecutor ’s office appointed a forensic expert . This expert had at his disposal the medical reports issued by PERSON and PERSON . In his opinion given in retrospect , he made the following statement as to the time when the applicant ’s injuries had been sustained :

“ The exact time of the infliction of the injuries can not be established . Given that the doctor examining the applicant did not document any lesions characteristically pointing to an inveterate injury , it can only be said that the injuries had been sustained within a CARDINAL - CARDINAL-hour - time - frame preceding the medical care . Since , according to the police report on the application of coercive measures , the local police constable handed the applicant over to the officer on duty without any complaints or injuries , the injuries were likely to have occurred after this point in time . ”

“ A sérülések pontos keletkezési ideje nem határozható meg . Tekintettel arra , hogy a vizsgáló orvos idősülőben lévő sérülésre jellegzetes elváltozásokat nem dokumentált , GPE valószínűsíthető , hogy a sérülések az orvosi ellátást megelőző QUANTITY időtartamon belül alakultak ki . Mivel a kényszerítő eszköz alkalmazására írt rendőri jelentés adatai szerint a körzeti megbízott panasz és sérülésmentesen adta át nevezettet GPE ügyeletes tisztnek , a sérülések valószínűsíthetően ezen időpontot követően keletkeztek . ”

On DATE ORG discontinued the investigation , holding in essence that the applicant ’s version of events was not plausible . The prosecutor emphasised the fact that since the applicant had been apprehended just after he had committed the crime in question ( and still in possession of the proceeds of that crime ) , coercive interrogation by police officers with the intention of extracting his confession to the offence in question seemed pointless and thus hardly plausible . Relying on the internal records of the police department recording the shifts of the officers , the prosecutor was satisfied that CARDINAL of the alleged perpetrators , PERSON . PERSON , GPE and GPE , had alibis for the time of the incident , in that early in the morning of that day , they had been assigned to patrol service . Therefore , they could not possibly have been present at the applicant ’s questioning . Furthermore , the CARDINAL security guards ( FAC and Z.A. ) were not allowed to leave their station and thus could not have been present at the incident . The prosecutor also observed that a general practitioner had examined the applicant between his release from the police department and the first hospital inspection , but had recorded no injuries . The prosecutor also found it material that the applicant had been uncertain of the identities of the alleged perpetrators when shown photos of the Gyöngyös police officers ; that he had contradicted himself on several occasions ; and that he had complained about the alleged incident only on DATE , not before .

On DATE the Borsod - Abaúj - Zemplén County Public Prosecutor ’s Office dismissed the applicant ’s complaint against the discontinuation order . The prosecutor was satisfied that the investigation had been adequate and comprehensive , and that the obtaining of further evidence – in particular , by questioning the applicant ’s brother and friend , who were present at his release – was superfluous . The applicant ’s allegations about racist motives behind the ill - treatment were not addressed .

This decision was served on the applicant on DATE .

On DATE the applicant brought a substitute private prosecution against the CARDINAL presumed perpetrators – that is to say , QUANTITY police officers and CARDINAL security guards – on charges of coercive interrogation . The motion included assertions about racial insults being uttered during the incident .

The Eger High Court held a hearing on DATE . At that hearing the applicant stated that he did not recognise the defendants ORG and Z.A. and that he was not certain if PERSON had beaten him , so he dropped the charges against them . Accordingly , the court terminated the proceedings against these CARDINAL defendants .

The remaining defendants either denied the charges or refused to make any statements . The High Court heard Dr C.S. , who confirmed that she had not seen any marks of external injury on the applicant ’s body when examining him on DATE of the incident . A court - appointed medical expert stated that if the applicant had had the injuries in question when examined by PERSON then the latter must have noticed them . The court also obtained testimony from the applicant ’s mother and brother and a friend ( the CARDINAL latter had not been heard during the investigation ) , who had been waiting for him in front of ORG on his release . They all stated that the applicant had already had those injuries at the moment of his release .

The High Court was satisfied that PERSON . PERSON , ORG had alibis for the time of the incident . As to the charges against the CARDINAL other officers , GPE and GPE , the court highlighted that even though the applicant said that he had been ill - treated in order to force him to admit to CARDINAL counts of theft – which he finally did – there was actually no reference in the record of the questioning to any further counts of theft . The court also emphasised that , contrary to the statements of the applicant , the CARDINAL officers could not have been continuously present in FAC because TIME they had been carrying out some onsite inspections in another town , PERSON .

On DATE the ORG acquitted the officers for want of sufficient evidence . According to the reasoning of the judgment , the court relied on documentary evidence relating to the applicant ’s apprehension and questioning , documents relating to the service particulars of the officers involved , the testimony of the applicant , medical documentation , and the testimony of the officers .

The applicant did not appeal .

As a consequence of the applicant lodging , but subsequently withdrawing , a criminal complaint against GPE , criminal proceedings on charges of false accusation were conducted against the applicant . On DATE the ORG found him guilty as charged and placed him on DATE probation . The judgment was upheld in essence by the ORG on DATE ; however , the applicant ’s sentence was altered to DATE of community work .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary;Yonko Grozev

The first applicant is a professional photographer . Since DATE he has owned and managed a single - member limited liability company through which he operates a photography studio in GPE .

NORP In DATE the NORP authorities informed the NORP Border Police that a NORP national who had a permit to reside in GPE was suspected of forging NORP identity documents and providing them to NORP nationals residing unlawfully in GPE . Electronic surveillance had showed that he had exchanged email messages with an alleged accomplice whose email account was hosted by a NORP Internet service provider .

Enquiries by ORG revealed that the email account belonged to the first applicant and his company . A wiretap placed on the NORP national ’s NORP mobile telephone showed that on DATE he had called the photography studio ’s landline and talked with a woman who spoke NORP with a NORP accent . They discussed the receipt of the photographs of CARDINAL people .

On DATE the NORP national travelled from GPE to GPE by car , and was arrested shortly after entering NORP territory . A search of his car revealed CARDINAL fake NORP identity cards , CARDINAL fake NORP drivers’ licences and CARDINAL fake NORP passports .

DATE , on DATE , the GPE district prosecutor ’s office applied for warrants to search the photography studio , the first applicant ’s car and the applicants’ house , and seize evidence there . It set out the above developments , and said that it was investigating the forging of identity documents in which the main suspect was the above - mentioned NORP national . According to the available information , he had received assistance from the first applicant . The applications were worded as follows :

“ In the course of the proceedings , the need has arisen to carry out a search and seizure in [ the applicants’ house , the first applicant ’s car , and the photography studio ] , since the available evidence gives probable cause to suspect that [ these places ] contain items of relevance to the case – items relating to the subject matter of the case . I therefore ... ask for permission for an investigator to search [ these places ] with a view to finding and seizing the above - mentioned items . ”

DATE , a judge of ORG , sitting in private , issued CARDINAL warrants authorising the searches and seizures in the following terms :

“ The submitted materials make it clear that it is necessary to carry out a search and seizure in [ these places ] with a view to finding the items set out in the ORG ] relating to the forging of identity documents and others , relevant to the case which is the subject matter of the criminal proceedings . ”

At TIME DATE , DATE , just as the first applicant was leaving his house , he was intercepted by QUANTITY police officers , QUANTITY in plain clothes and CARDINAL in uniform .

NORP The parties’ accounts of the ensuing events differ widely . According to the applicants , the police did not identify themselves , roughly pinned down and handcuffed the first applicant behind his back , scared his CARDINAL daughters , the third and fourth applicants , who were minors , and then searched the house in a rude and chaotic manner , without presenting the warrant authorising them to do so . According to the Government , whose account was based on a statement informally obtained from CARDINAL of the officers who took part in the search , the first applicant attempted to run back to the house , possibly to conceal evidence , and was only handcuffed for that reason . The officers searched the house with restraint , specifically endeavouring not to frighten the CARDINAL children . They were only looking for computers , mobile telephones and similar devices , and did not rummage needlessly through things in the house .

According to the record of the search , it lasted TIME and took place in the presence of CARDINAL certifying witnesses . The police seized CARDINAL ORG cards , identity and other documents , a laptop computer , CARDINAL mobile Internet dongles , and a mobile telephone .

According to the applicants , after the search the officers dragged the first applicant into the street , bent over with his hands handcuffed behind his back , in sight of many neighbours and passers - by . CARDINAL and TIME they searched his car , from which they did not seize anything . The officers then put the first applicant in a police car and drove to the photography studio , very close to the corner of a busy pedestrian street in the centre of GPE , which they searched TIME They again refused to allow the first applicant to acquaint himself with the search warrant . According to the record of that search , the officers seized CARDINAL desktop computers , CARDINAL video cameras , CARDINAL still cameras , several flash memory cards , flash memory drives , and cash .

At about the same time , TIME the police searched the first applicant himself , without a judicial warrant . They seized CARDINAL flash memory drives and CARDINAL mobile telephones . They submitted the search record to a judge of ORG , who approved it at TIME .

The officers then took the first applicant to a police station for a “ conversation ” . According to the first applicant , he was kept in handcuffs the whole time . The Government denied this , noting that if that had indeed been the case , the first applicant would not have been able to sign the search records and produce a handwritten statement in the police station .

In the statement the first applicant explained , inter alia , that he used the email account in which the police were interested ( see paragraphs CARDINAL and CARDINAL above ) to exchange computer files , mostly image files , with clients of his photography studio . He stated that he agreed to provide access to the account for the needs of the investigation , so that the police could subject the messages in it relating to the NORP national to examination by an expert , and then gave his password . The Government submitted that the police had used the password to go through the email account , but had not seized any messages from it . The first applicant was released at TIME The police did not issue a written order for his detention .

The first applicant ’s wife , the second applicant , came back to GPE TIME . According to her , she had been contacted earlier during DATE by telephone by her older daughter , the third applicant , and had become worried at the news that her husband had been arrested and their daughters left alone , frightened , in the house . She kept calling her daughters and trying to call her husband throughout DATE .

On DATE the investigator in charge of the case asked a computer expert to copy the data from CARDINAL of the seized flash memory cards to an optical disk . In his report , submitted DATE , DATE , the expert said that he had copied all the files from CARDINAL of the cards and that the third card did not contain any files .

On DATE the investigator asked the same expert to copy the data from the laptop computer seized in the applicants’ house to an external hard drive and to inspect the CARDINAL desktop computers seized in the photography studio for the presence of software or files which could be used for the forging of documents . In his report , submitted on DATE , the expert said that he had copied CARDINAL files with a total size of QUANTITY from the laptop computer to an external hard drive , which he enclosed with his report , and that his inspection of the desktop computers had revealed that CARDINAL of them contained software programs which could be used to edit image files , and that the third computer was defective and could not be booted up .

It is unclear what happened with the data copied from the laptop computer and the CARDINAL memory cards .

On DATE the first applicant asked the GPE district prosecutor ’s office to order the return of all the seized items . He submitted that they were not relevant for the case and that he urgently needed them for his work as a photographer . On DATE the prosecutor ’s office partly allowed the request and ordered the return of some of the items – CARDINAL cameras , QUANTITY flash memory cards , and CARDINAL video cameras – but only after the police had made copies of their contents . DATE , DATE , those items were given back to the first applicant . On DATE he appealed to the GPE regional prosecutor ’s office , complaining of the refusal of the lower prosecutor ’s office to order the return of the remainder of the seized items . It does not appear that he received a formal reply to his appeal , but on DATE , DATE after the seizure , the investigator in charge of the case gave him back CARDINAL mobile telephones , CARDINAL mobile Internet dongles , QUANTITY ( ORG ) , MONEY , CARDINAL flash memory cards , and CARDINAL flash memory drives . The remainder of the seized items were given back to the first applicant DATE after the seizure , on DATE , immediately after their contents had been inspected by the expert ( see paragraph CARDINAL above ) .

On DATE the police sent the case file to the GPE district prosecutor ’s office , recommending that the proceedings be discontinued . On DATE that office disagreed and instead decided to stay the proceedings on the grounds that the author of the presumed offence had not been identified . On DATE it sent the case file back to the police for further investigation . On DATE the police again transmitted the case file to the GPE district prosecutor ’s office . It appears that the proceedings are still pending . Neither the first nor the second applicant has been charged with an offence .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicants are spouses who were born in DATE and DATE respectively and live in the village of ORG , in LOC .

Late in the evening of DATE , the applicants’ son ( born in DATE ) , died in a traffic accident . According to the applicants , on DATE NORP , the driver of the car , compelled A. to sit in the vehicle and travel with him . During the drive , NORP exceeded the speed limit and the car turned over . The applicants’ son died from his injuries . The driver and other passengers survived .

Between TIME and TIME on DATE the police prepared a site inspection report . They also questioned witnesses on DATE .

On DATE the police instituted criminal proceedings related to the death of the applicants’ son .

On DATE NORP was charged with violating traffic safety rules and causing the death of the applicant ’s son . Given that NORP had not appeared before the police and that his whereabouts were unknown , the investigator , following approval by the prosecutor of LOC ( “ the FAC ” ) , on DATE ordered the placing of NORP in custody as a preventive measure .

On DATE NORP was placed on the list of wanted persons .

On DATE NORP visited the police department in charge of the criminal case and stated that DATE he had been undergoing medical treatment outside GPE . On DATE the investigator , following approval by ORG , changed the preventive measure from pre - trial detention to a written undertaking not to abscond .

On DATE the first applicant brought civil claims for damages and requested that NORP ’s property be held as security for the claims . The claims were joined to the criminal case file .

NORP In DATE the case was referred to ORG ( “ the ORG ” ) for consideration on the merits .

On DATE ORG put NORP on the list of wanted persons , stating that he had failed to appear for court hearings on several occasions . The court ordered that he be placed in custody .

On DATE the police informed the president of ORG that NORP had been arrested and taken to the local pre - trial detention centre .

On DATE the applicants brought new civil claims , seeking damages within the criminal proceedings against NORP

On DATE ORG closed the criminal proceedings on the basis of LAW passed in DATE , releasing NORP from criminal liability and punishment . ORG dismissed the civil claims without considering them on the merits .

The applicants appealed .

On DATE the ORG upheld ORG decision concerning the termination of the criminal case against NORP As to the civil claims , it found that ORG dismissed them unlawfully and ordered that they be considered further by ORG in accordance with civil procedure .

On DATE ORG dismissed the appeal by the applicants on points of law as unsubstantiated .

On DATE ORG partly allowed the applicants’ civil claims . Referring to the results of the criminal proceedings , the court found that NORP had been responsible for the traffic accident , causing the death of the applicants’ son . It awarded each applicant CARDINAL NORP hryvnias ( ORG ) in respect of non - pecuniary damage and a further ORG CARDINAL to the first applicant in respect of pecuniary damage .

On DATE ORG considered an appeal by NORP and reduced the non - pecuniary damage award to ORG CARDINAL,CARDINAL for each applicant .

On DATE ORG dismissed an appeal on points of law by the applicants , who sought to increase the amount of damages .

On DATE ORG returned letters of execution to the applicants , stating that no funds or property belonging to the debtor could be found .