LE LIEVRE AND OTHERS v. THE UNITED KINGDOM

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

In DATE , the island of GPE , an autonomous part of ORG in LOC with a population of some CARDINAL residents , enacted a new electoral system .

The applicants are CARDINAL NORP nationals , PERSON , PERSON and PERSON , who were born respectively in DATE , DATE and DATE . They are residents of LOC and , although they bring this application in their individual capacities , they have formed an unincorporated association called “ FAC ” , which seeks reform of the island ’s new electoral system . Their principal complaint to the ORG is that the system does not comply with the requirements of LAW No . CARDINAL to the LAW , the right to free elections .

Sark ’s constitutional position , the history of the reforms which led to the new electoral system , and the conduct of recent elections under that system are summarised at paragraphs CARDINAL–CARDINAL below . That summary is taken from the facts as submitted by the applicants and from CARDINAL judgments of ORG of the GPE concerning PERSON : R ( FAC ) v. Lord Chancellor and Secretary of ORG for ORG ( “ Barclay ( no . CARDINAL ) ” ) and R ( FAC ) v. Secretary of ORG for ORG ( “ Barclay ( no . CARDINAL ) ” ) ( see relevant domestic law and practice at paragraphs CARDINAL–CARDINAL below ) .

The LOC consist of ORG and GPE . ORG are ORG . The ORG consists of the island GPE itself , the islands of GPE and GPE , and several smaller islands . GPE and GPE are autonomous from GPE .

GPE is responsible for the Bailiwick of GPE ’s international obligations and has extended the application of LAW No . CARDINAL to it through declarations under LAW No . CARDINAL . That responsibility is exercised primarily through ORG .

Sark ’s constitutional position can be traced back to the NORP - French wars of CARDINAL - CARDINAL , when it came under the jurisdiction of the NORP Crown . Throughout its history ORG has , like the rest of LOC , retained its own customs , laws , courts and legislature .

Sark ’s present constitutional position derives from letters patent issued by Queen PERSON I in DATE which granted a perpetual lease of island to its first “ ORG ” . The lease has passed , either by sale or inheritance , down to the island ’s current PERSON , who still plays a role in the government of the island .

GPE , GPE and GPE all have their own legislatures and , in general , the CARDINAL islands legislate for themselves .

Sark ’s legislature is called the Chief Pleas . The Chief Pleas legislates by CARDINAL methods , Laws and Ordinances . In respect of Laws , after the Chief Pleas passes a PERSON , it is remitted as a Projet de Loi to officials in ORG , GPE . It is then remitted to ORG ( “ the Committee ” ) . ORG includes the Secretary of ORG for ORG , the member of the GPE cabinet responsible for ORG . If the ORG recommends that ORG be granted , the Projet de Loi is presented to ORG so that it may become law . ORG will then be given through an Order in Council . The Projet de Loi will not be presented to ORG if the ORG decides not to recommend it for Royal Assent ( see ORG judgment in FAC ( no . CARDINAL ) at paragraph CARDINAL ) .

In considering whether or not to recommend approval , ORG will in general respect the decision of the Chief Pleas , and there would tend to be a presumption in favour of recommending ORG . But consideration is given to the ORG ’s responsibilities , so that if a PERSON violates the ORG ’s international obligations or any fundamental constitutional principle or if it is clearly not in the public interest for it to become law , then a recommendation may be made to withhold ORG ( see the FAC ( no . CARDINAL ) judgment at paragraph CARDINAL ) .

Historically , PERSON was divided into CARDINAL plots of land or “ tenements ” . Anyone who owned CARDINAL of the tenements ( “ a tenant ” ) was entitled to a seat in the Chief Pleas . In DATE the tenants were joined in the Chief Pleas by CARDINAL elected members .

In DATE , the Chief Pleas voted for a reform which would have provided for a legislature to consist of CARDINAL tenants elected by the tenants and CARDINAL deputies elected by the rest of the population . In DATE the Chief Pleas withdrew its support for the reform , a position supported by the Secretary of ORG for ORG , who wrote to the ORG stating that he “ would not have been able to recommend for LAW legislation about which there are serious or substantial ORG compliance issues ” ( quoted in ORG ( no . CARDINAL ) at paragraph CARDINAL ) . He continued :

“ [ a]ny option which falls short of a wholly democratic process would cause me serious difficulties . ... I am concerned that ORG should give itself , and the GPE , the best protection it can from ORG challenge and its possible consequences ... [ PERSON is the GPE which is vulnerable to an ORG challenge . The GPE can not stand by and give that situation its tacit approval by doing nothing . ”

NORP In DATE , the Chief Pleas approved another version of a new law which would still reserve seats in the Chief Pleas for tenants , but with those tenants elected by universal suffrage . The Secretary of ORG decided not to submit that proposal to ORG over doubts as to whether it complied with GPE international obligations ( FAC ( no . CARDINAL ) at paragraph CARDINAL ) .

In DATE , the Chief Pleas then passed a PERSON which proposed removing tenants from the Chief Pleas and replacing them with twentyeight elected members or “ conseillers ” . The PERSON was to be an ex officio member of Chief Pleas , with a voice but no vote . The PERSON did not have the right to veto Laws passed by the Chief Pleas ( and this is would not change in the Projet de Loi ) . He would , however , retain the right to veto an GPE . In that case , the GPE would be placed again before the Chief Pleas within DATE for its decision on whether to override the veto . The Projet de Loi also provided that the ORG could not sit on executive committees of the Chief Pleas , the main means through which the executive government of the island is conducted .

The DATE PERSON created the following electoral system for the island . All persons who had been resident on the island for DATE could vote . ORG would serve DATE terms , but those terms would be staggered so that , subject to special rules governing by - elections and unforeseen vacancies , CARDINAL of the CARDINAL conseillers would be elected at any CARDINAL general election ( save for the first general election at which all CARDINAL seats would be contested ) .

For any election , the island would be a single constituency with all eligible voters able to vote for all candidates . A voter would receive a number of votes equal to the number of vacancies being contested at the election ( normally CARDINAL vacancies unless there were additional vacancies ) . The CARDINAL candidates gaining the most votes would be elected .

ORG recommended that LAW should receive ORG , concluding that it would not violate any of GPE international obligations . ORG was accordingly given on DATE and the Projet de Loi entered into force as the ORG ( Sark ) Law CARDINAL ( “ the DATE LAW ” ) .

Once Royal Assent was given to LAW , PERSON ’s first general election on took place on DATE . Since then there have been CARDINAL further general elections and CARDINAL by - elections . The applicants have provided the following summary of the results for those elections :

Traditionally , sessions of the Chief Pleas were chaired by the island ’s “ Seneschal ” who also serves as the island ’s resident judge . Subsequent reforms have separated the Seneschal ’s judicial and legislative functions : he now holds purely judicial office , his presiding role in Chief Pleas has been taken by a President of Chief Pleas .

Sark ’s court of first instance is the court of the Seneschal . His court has unlimited jurisdiction in civil matters and shares jurisdiction in criminal matters with ORG . When civil and criminal matters are decided at first instance by the court of the Seneschal , there is a right of appeal to ORG then to ORG for GPE and , finally , ORG of ORG .

Sark ’s laws can , under certain circumstances be challenged in the GPE courts . This arises because , under the law of GPE and GPE , there is the possibility of bringing a legal challenge to the making of an Order in Council . This is done by way of judicial review in ORG and GPE and , on appeal , to ORG and , finally , ORG of GPE . Given that FAC to legislation from FAC is given by ORG ( see paragraphs CARDINAL and CARDINAL above ) , it is , therefore , possible to challenge GPE legislation in ORG through judicial review proceedings . This is , however , a limited jurisdiction , which ORG has made clear should not always be exercised : see PERSON ( no . CARDINAL ) at paragraphs CARDINAL–CARDINAL below .

The Human Rights ( Bailiwick of Guernsey ) Law CARDINAL , a PERSON modelled on ORG DATE , applies throughout the GPE , including LOC . In summary , like LAW , the PERSON constrains public authorities in the islands from acting contrary to Convention rights and requires the courts of the islands to take account of the case - law of the LAW bodies . It also requires the courts , so far as it is possible to do so , to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the LAW rights . When it is not possible for them to do so , the LOC courts , like their counterparts in GPE , may make a declaration that the legislation is not compatible with LAW ( a declaration of incompatibility ) .

In GPE ( no . CARDINAL ) certain aspects of LAW were challenged by way of judicial review in ORG and GPE , including whether the continued presence of the PERSON and ( at that time , the Seneschal ) in the Chief Pleas was compatible with LAW No . CARDINAL .

NORP That judicial review challenge ultimately reached ORG , which gave judgment on DATE dismissing the challenge : [ DATE ] ORG CARDINAL .

Lord PERSON gave the lead judgment for the unanimous court . After reviewing the general principles which emerged from this ORG ’s case law on LAW ( including the need to consider electoral rules in the round and in the light of historical and political factors ) , Lord PERSON observed that there was no breach of LAW No CARDINAL arising from the PERSON and PERSON ’s continued membership of Chief Pleas . He observed ( at paragraph CARDINAL of the judgment ) :

“ The starting point is that only ORG are entitled to vote in the Chief Pleas , and therefore it is only ORG who determine whether legislation is to be enacted . The electorate of PERSON consists of CARDINAL voters , who choose CARDINAL elected ORG by a process of casting CARDINAL votes each and electing the CARDINAL candidates with the largest number of votes . There is therefore one GPE for every CARDINAL persons in the electorate . It is not easy to envisage , in the words of LAW , conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature . ”

Lord PERSON went on to find that there was nothing in the travaux préparatoires of the LAW or the case - law of this ORG which established that all members of the legislature should be elected , irrespective of their powers and irrespective of the circumstances . Indeed , to the contrary , the travaux préparatoires indicated that LAW No . CARDINAL had been drafted to recognise that , in some GPE , part of the legislature was not elected .

Instead , the effect of this ORG ’s case - law under LAW No . CARDINAL was that all circumstances had to be considered . The presence of the Seigneur ( and , at that time , the Seneschal ) in the Chief Pleas did not contravene that Article . Even if their membership in the Chief Pleas was to be regarded as a limitation on the people ’s right to choose the legislature , in light of the constitutional history and the political factors relevant to PERSON , that limitation fell well within the margin of appreciation allowed by LAW , not least given the long history of both positions and the difficulties that had occurred since DATE in reforming the Chief Pleas ( see paragraphs CARDINAL–CARDINAL above ) .

In respect of the ORG , his right to speak but not vote could not reasonably be said to frustrate the free expression of the opinion of the people in the choice of the legislature . Nor was that conclusion affected by the PERSON ’s other powers and responsibilities on the island . For instance , the present ORG had never exercised his right of temporary veto over Ordinances and he had stated that he only envisaged using it in very limited circumstances . The remainder of the ORG ’s other powers , such as the limited power to appointment certain of the island ’s executive officials , did not affect the democratic process .

Finally , Article CARDINAL could not assist the claimants in the case : their complaint under LAW was essentially the same as that made LAW .

In FAC ( no . CARDINAL ) , the same claimants challenged Reform ( GPE ) ( LAW ) ( No . CARDINAL ) Law DATE , which removed the Seneschal from the Chief Pleas and made new provisions for his or her appointment , removal , renewal and remuneration . They did so by way of judicial review proceedings , commenced in ORG and GPE , alleging that the provisions were incompatible with LAW and thus that the decision of ORG to recommend that Royal Assent be given to the PERSON through an Order in Council was unlawful .

ORG rejected the challenges to provisions on appointment , removal and renewal of the Seneschal . It found , however , that the power of the Chief Pleas to reduce the Seneschal ’s remuneration was incompatible with LAW .

The latter part of the judgment was appealed to ORG , which allowed the appeal : [ CARDINAL ] ORG CARDINAL . ORG found that , although ORG had jurisdiction to hear such a challenge , it should not have exercised its discretion to hear it . For the courts of GPE and GPE to entertain challenges to the compatibility of LOC legislation with the Convention would be to subvert the LOC own human rights legislation ( see , for instance , the Human Rights ( Bailiwick of Guernsey ) Law CARDINAL , set out at paragraph CARDINAL above ) . The courts of ORG were infinitely better placed to assess the issues involved in human rights cases and there was the ultimate safeguard of an appeal to ORG of ORG . Unlike the courts of GPE and GPE , ORG had the inestimable benefit of the considered judgment of the courts of first instance and appeal in the island jurisdictions , and the island authorities would have every opportunity to take part in the case . The courts of the FAC were the appropriate forum in which challenges to island legislation on grounds of incompatibility with the LAW should be heard ( PERSON at DATE and CARDINAL of ORG judgment ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE ORG ( hereinafter “ the ORG ” ) issued the applicant with a certificate , valid until DATE , confirming that he had access to ORG classified information in the “ secret ” category ( hereinafter “ security clearance ” ) . That clearance was a precondition for holding the post he then occupied as deputy to a vice - minister of Defence .

On DATE the ORG received confidential information , classified as “ restricted ” , on the applicant from an intelligence service .

Following an internal investigation , the ORG decided on DATE to revoke the applicant ’s security clearance . According to that decision , the applicant posed a national security risk , inter alia on the grounds provided for in section CARDINAL(CARDINAL)(d ) of ORG ( Law no . DATE ) . The decision stated that the facts established in respect of his conduct , as documented and substantiated by information received by the ORG on DATE , cast doubt on his trustworthiness and his ability not to be influenced and not to disclose secret information ( preconditions for issuing him with security clearance ) . It was noted that as the information was classified as “ restricted ” , section CARDINAL ) of the Act precluded any mention thereof in the decision or any disclosure of the ORG ’s reasoning regarding its assessment of the facts in question .

According to information supplied by the ORG , on DATE the applicant asked PERSON to discharge him , on health grounds , from his post as deputy to the vice - minister . His request was granted on DATE . The ministerial decree discharging him from his duties specified that this did not terminate the applicant ’s employment contract . That contract did not end until DATE , following an agreement by mutual consent signed by the parties on DATE .

In the meantime the applicant challenged the decision of DATE before the director of the ORG , who confirmed the decision on DATE regarding the risk referred to in section CARDINAL(CARDINAL)(d ) of ORG . That risk , which had been unknown on DATE , had transpired from the results of an investigation carried out by the ORG . Those results constituted “ restricted ” information and the decision could only refer to them and not mention their content .

On DATE , relying on section CARDINAL(CARDINAL ) of ORG , the applicant lodged a request with ORG for judicial review of the decision of DATE . In his submission , that decision had deprived him of acquired rights in that he had been obliged to give up his post as deputy to the vice - minister of the Defence whereas he had adapted his activities within the public service and within the sphere of his private life . Accordingly , he asked the court to assess the lawfulness of that decision which was based exclusively on undisclosed classified information .

On DATE the ORG sent the applicant ’s file to ORG , including the documents classified as “ restricted ” , which in its opinion could not be exempted from the obligation of confidentiality laid down in section CARDINAL ) of PERSON no . ORG . It also submitted its comments on the applicant ’s request . These were sent to the applicant for his reply . In his reply of CARDINAL DATE the applicant commented on , inter alia , the necessity alleged by the ORG of protecting the confidentiality of the documents in question .

Subsequently , the applicant and his lawyer were permitted to study the file , except the confidential parts .

At the hearing on DATE the applicant was given the opportunity to submit his arguments and to state what he thought were the reasons for revoking his security clearance . He observed that , in his view , the information in question had been provided by a military intelligence service which had sought to punish him for his refusal to co - operate .

Pursuant to section CARDINAL ) of ORG , ORG refused the applicant access to the section of the legal file containing the classified information from the ORG ’s file and in a judgment of DATE dismissed his request for judicial review . Referring to section CARDINAL ) of ORG , the court held that the ORG , which had disclosed to the applicant the source of the classified information and the general conclusions that it had drawn from that information but not the content thereof , had acted neither arbitrarily nor unlawfully . Furthermore , the fact that the impugned decision was amenable to judicial review had enabled the court to examine the information in question and rule on whether it justified the conclusion that the applicant posed a security risk , which was the case here . The court also observed that there was no fundamental individual right to hold a post in the civil service , that the ORG was authorised to restrict the access of individuals to such posts and that it could also determine the conditions in which those individuals could have access to confidential information necessary for the performance of their duties . The applicant had not satisfied those conditions in the present case . According to that rationale , an individual could not have knowledge of the confidential information on the basis of which his right of access to confidential information had been refused . The court considered , lastly , that the confidentiality of the information that had led to the applicant ’s security clearance being revoked prevented it from examining his submission that the information in question had concerned his refusal to co - operate , beyond his statutory obligations , with the military intelligence service . In any event that submission was deemed to be speculative because unsupported by verifiable documents .

The applicant appealed on points of law against ORG judgment , complaining first about his inability to gain access to the relevant part of the legal file . He submitted that the disclosure of information in the “ restricted ” category ( which was the lowest level of confidentiality ) could not constitute a serious threat to the activities of the intelligence services within the meaning of section CARDINAL(CARDINAL ) of ORG . He stated that he was convinced that the revocation of his security clearance was connected with his refusal to co - operate with the military intelligence service , of which he had no written proof . However , as he had no knowledge of the content of the information in question he could not refute its accuracy .

In a judgment of DATE ORG dismissed the applicant ’s appeal on points of law as unfounded . It observed that the possibility , provided for in section CARDINAL(CARDINAL ) of ORG , of prohibiting access to part of the file was not limited to a specific category of confidential information . In the present case the conditions for prohibiting access were met because communication of the information in question to the applicant could have led to the disclosure of the intelligence service ’s working methods , the disclosure of its sources of information or attempts on the applicant ’s part to influence possible witnesses . Referring to the judgment of ORG no . II . ÚS DATE , ORG held that the applicant ’s complaints of unfairness of the proceedings were unfounded because , having regard to the special nature of the proceedings on account of the nature of the confidential information in question , not all the applicant ’s procedural rights could be guaranteed . Whilst the executive did indeed , in certain circumstances , have the right not to inform the individual concerned of the reasons for not issuing him or her with security clearance , that restriction was counterbalanced by the guarantee of having that decision examined by the administrative courts , which had unlimited access to the documents contained in the administrative file . In the present case ORG observed that the confidential document emanating from the intelligence service 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 constitutional complaint . He complained of the unfairness of the proceedings in his case . He argued , in particular , that the parties had not been treated equally because he had not been allowed to have knowledge of the sole evidence on which the decision against him had been taken and which had resulted in his being declared unsuitable for public office . He also expressed his firm conviction that he should have been able to consult the relevant part of the file .

In a decision of CARDINAL DATE , which was served on the applicant ’s lawyer on DATE , ORG dismissed the applicant ’s complaint as manifestly ill - founded . Referring to its judgment no . Pl . ÚS CARDINAL/CARDINAL , it observed that , having regard to the special nature and the importance of decisions adopted in connection with confidential information where there was a clear national security interest , it was not always possible to apply all the procedural guarantees of fairness in such proceedings . In the present case ORG held that in so far as the ORG conduct was duly justified and the reasoning in their decisions comprehensible and in conformity with the LAW and they had not departed from procedural standards and constitutional principles to an inordinate degree , ORG was not required to intervene in their decision - making process .

In their observations of DATE the Government submitted to the ORG a bill of indictment of CARDINAL DATE in which the applicant and some CARDINAL co - defendants were formally charged with participating in an organised criminal group DATE with a view to illegally influencing public tender procedures in ORG . This document shows that investigative measures had been carried out from DATE . In a judgment of DATE , which was not final as at CARDINAL DATE , the applicant was sentenced to CARDINAL years’ imprisonment and ordered to pay a fine .

The Government also submitted a letter from the ORG dated DATE in which it confirmed that the document in question was still classified “ restricted ” because disclosure of the information contained in it was liable to disrupt the work of the intelligence service , reveal its methods and sources of information and adversely affect the legitimate interests of third parties . In that context the ORG referred to the above - mentioned criminal proceedings against the applicant .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in DATE and lives in NORP .

The applicant was married to PERSON and they had CARDINAL sons , GPE and ORG In DATE the applicant and PERSON divorced .

On DATE a number of members of the “ Wolves ” ( ORG ) unit of the NORP police entered the house of the applicant ’s son GPE , They abducted GPE , the applicant ’s second son ORG and her former husband PERSON On DATE the body of PERSON was found in LOC and the autopsy showed that he had been shot and killed . GPE and ORG disappeared . On DATE the NORP police lodged a criminal complaint with the GPE State Attorney ’s ORG in connection with the killing of N.T. Police enquiries were started by the NORP police , under the command of PERSON and his deputy PERSON ( see paragraph CARDINAL below ) .

On DATE the applicant contacted ORG and informed them that her former husband and CARDINAL sons had disappeared .

The commander of the ORG unit was GPE , who died in a road accident in DATE .

On DATE the applicant lodged a criminal complaint with ORG

On an unspecified date broader police enquiries were opened into the killing of individuals of NORP ethnicity in the NORP area during the war . The enquiries into the killing of PERSON and disappearance of the applicant ’s sons were part of these overall enquiries .

NORP Before DATE , when GPE ratified the ORG , the police interviewed the applicant as well as potential witnesses ORG , ORG , ORG and GPE None of them had any concrete knowledge about the potential perpetrators .

On DATE an investigating judge of the ORG heard evidence from GPE , a former NORP soldier who firstly denied knowing anything about the fate of the applicant ’s sons and former husband but later on , through tears and saying that he was scared , said that he had seen all CARDINAL of them in ORG , a military base near ORG . GPE and ORG had been visibly beaten .

NORP In DATE and DATE , DATE and DATE the police interviewed a number of former NORP soldiers as witnesses , some of whom ( GPE , GPE , GPE , GPE , GPE , ORG GPE , GPE , GPE , GPE , ORG , PERSON , ORG as well as CARDINAL anonymous individuals ) had given statements about the arrest of individuals during the war in the NORP area and their detention in ORG . None of them had any knowledge about the fate of the applicant ’s former husband and sons .

On DATE the police interviewed PERSON , a friend of the applicant ’s sons , who had witnessed their and their father ’s arrest by CARDINAL people dressed in camouflage uniforms and had heard that they had been taken to ORG .

On DATE an investigating judge of the ORG heard evidence from the applicant . She said that she had not witnessed the arrest of her former husband and sons but had heard from D.F.T. , wife of her son PERSON , about it . ORG had also witnessed the arrest of her former husband and sons . Also , PERSON had told her that he had seen her sons in ORG and his girlfriend had also told her that her sons had been beaten in ORG . Another person , C. , had also told her that he had seen her son ORG in ORG .

A report drawn up by the NORP police in DATE for the GPE State Attorney ’s ORG on disappeared individuals lists the applicant ’s sons as missing .

On DATE the State Attorney ’s ORG issued a document concerning enquiries into the killings of civilians DATE . The document was addressed to GPE Office , which were required to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to initiate criminal proceedings .

On DATE the applicant ’s sons were declared dead by ORG as of CARDINAL DATE .

On DATE the GPE State Attorney ’s ORG classified the killing of PERSON and the disappearance of the applicant ’s sons as war crimes against the civilian population .

On DATE the applicant again lodged a criminal complaint . She alleged that her sons had been arrested by the members of the NORP army and taken to ORG , under the command of PERSON

On DATE an investigating judge of the ORG heard evidence from witnesses ORG and PERSON repeated his previous statements ( see paragraph CARDINAL above ) . D.F.T. , the wife of the late GPE , had witnessed the arrest of the victims but had no information on possible direct perpetrators .

On DATE the State Attorney ’s ORG issued an instruction to the County State Attorney ’s Offices concerning implementation of LAW and LAW , in which it indicated that an inspection of their work had indicated CARDINAL main problems : possible partiality on the part of the individuals involved in the pending proceedings as regards the ethnicity of the victims or the perpetrators ; and the problem of trials in absentia . The instruction advocated the impartial investigation of all war crimes , irrespective of the ethnicity of those involved , whether victims or perpetrators , and reiterated the duty of those working for the ORG Attorney in that connection .

On DATE the NORP police compiled an analysis of the criminal complaints concerning the crimes committed in DATE and DATE in the broader NORP area and adopted a plan for further actions to be taken , including in the PERSON case .

On DATE the police again interviewed the applicant . She said that she had heard that GPE was one of the people who had taken her former husband and sons and that her daughter - in - law D.F.T. also knew one of the individuals implicated but was afraid to talk about it .

On DATE the GPE State Attorney ’s ORG compiled a report on the cases concerning war crimes , including the killing of the applicant ’s sons .

On DATE the police interviewed D.F.T. and M.F. D.F.T. said that she did not know any of the individuals who had arrested the victims . PERSON said that he had no knowledge of the events at issue .

On DATE the NORP police sent a report on the interviews to the GPE State Attorney ’s ORG .

In DATE and DATE the police interviewed GPE , GPE , GPE , GPE , and PERSON , none of whom had any relevant knowledge of the critical events . The police also again interviewed PERSON and GPE , who both repeated their respective prior statements .

On DATE and CARDINAL DATE the NORP police sent a report to the GPE State Attorney ’s ORG .

The enquiries into the killing of the applicant ’s former husband and sons were a part of broader police enquiries which concerned officials of the NORP police as suspects and altogether CARDINAL victims ( see paragraph CARDINAL below ) . As a result of these enquiries an investigation was opened in ORG ( see below , paragraphs CARDINAL and DATE ) .

On DATE the NORP county police lodged a criminal complaint against GPE , GPE and PERSON on charges of war crimes against the civilian population . This included the killing of the applicant ’s sons and former husband . On the same day PERSON , head of the NORP police in DATE , V.M. , police commander at the border territory of NORP and PERSON in DATE and DATE and deputy head of the NORP police , and PERSON , a member of the ORG , a reserve unit of the NORP police , were arrested .

On an unspecified date an investigation was opened . On CARDINAL DATE PERSON died .

During the trial GPE , GPE , ORG , ORG , GPE , TIME and ORG as well as the applicant all testified as witnesses that they had either seen or heard that the applicant ’s former husband and CARDINAL sons had been abducted from their home by the members of the ORG unit and taken to ORG .

On DATE the GPE State Attorney ’s ORG lodged an indictment against V.M. and PERSON with ORG , alleging that they had been in command of the unit whose unnamed members had committed a number of crimes against the civilian population DATE and DATE , including the killing of the applicant ’s relatives . They were charged with war crimes against the civilian population .

On DATE a first - instance judgment was delivered . PERSON was found guilty of war crimes against the civilian population in that , in his capacity as “ commander of police forces in the broader area of NORP and PERSON ” and “ deputy head of the NORP police ” , he had allowed the killings of individuals of NORP ethnicity and had failed to take adequate measures to prevent such killings . The relevant part of the judgment concerning the applicant ’s sons and former husband reads :

“ On TIME CARDINAL DATE a number of members of the ‘ Wolves’ unit of the NORP police forcibly abducted PERSON and his sons PERSON and ORG from their family home at TIME NORP and took them in a white van to the improvised prison at ‘ ORA’ , where they were beaten during an unlawful interrogation after which PERSON was taken to an unknown place on DATE and shot and killed and his body was found on CARDINAL DATE at the left bank of LOC at a place called PERSON , whereas the fate of PERSON and ORG after they had been taken to ‘ ORA’ remains unknown . ”

V.M. was sentenced to DATE imprisonment . PERSON was acquitted of all charges .

On DATE ORG upheld the conviction of V.M. and increased his sentence to CARDINAL years’ imprisonment .


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

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

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

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

The applicant was detained in the remand section of GPE prison on DATE . The ORG submitted that he had been released on DATE . The applicant claimed that he had been released on DATE .

From DATE to CARDINAL DATE the applicant was held in cell no . CARDINAL , measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . According to the Government , the number of detainees held in the cell fluctuated CARDINAL . On DATE the applicant was held with another detainee in cell no . CARDINAL , measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . From DATE until his release he was held in cell no . CARDINAL , measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . According to ORG , the number of detainees held in that cell fluctuated CARDINAL . The applicant alleged that he had shared the cells with CARDINAL other detainees .

The relevant domestic law is resumed in ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , § § DATE , DATE ) , and ORG and others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § CARDINAL - CARDINAL , DATE ) . For the purposes of the examination of the present application , the ORG points out that under LAW , if it is established that the circumstances of a case , and in particular the degree of pain and fear , and their duration , justify it , an injured party may be awarded monetary compensation , irrespective of any compensation for material damage . Even if there is no material damage , he or she may be awarded damages for the physical pain endured ; for psychological anguish resulting from a general loss of the ability to perform vital functions , disfigurement , defamation , or infringement of personal freedom or personality rights ; for the death of a next - of - kin ; and for the fear experienced . The latest observations submitted by the parties ( dated CARDINAL DATE ) summed up as follows the decisions of the domestic courts in response to claims for compensation for allegedly inadequate conditions of detention .

On CARDINAL DATE ORG found that the plaintiff ’s personality rights , as well as the prohibition of torture and inhuman or degradation treatment , had been violated on account of inadequate conditions in the remand section of GPE prison ( judgment no . I P CARDINAL/CARDINAL ) . The plaintiff had spent DATE ( from DATE ) in GPE prison as a remand prisoner . For most of that time he had been held together with CARDINAL other detainees in a cell measuring QUANTITY . The court found that all CARDINAL elements of civil tort were established , namely : unlawful act , occurrence of damage , causal link and the defendant ’s responsibility . The court noted that there was no case - law on the matter thus far and that that first judgment should establish principles for the future . Referring also to PERSON v. GPE ( no . CARDINAL , ORG CARDINALVI ) , the court noted that the rights guaranteed by the ORG represented a minimum standard and that the protection afforded by the national legislation should go beyond that minimum . It found that the personal space afforded to the plaintiff had been far below the standard of QUANTITY for multi - occupancy cells recommended by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) and provided for in LAW . It was therefore in breach of the plaintiff ’s personality rights . The court further observed that the overcrowding had had a negative effect on other aspects of the plaintiff ’s detention . It found that the plaintiff ’s personality rights had been breached also on account of poor ventilation , disturbances during TIME , verbal and physical conflicts in the cell , and the fact that he could not eat his meals at a table or use the telephone for TIME ( as provided for in the regulations ) . Those conditions amounted to a violation of LAW , which prohibited torture or inhuman or degrading punishment or treatment . The plaintiff was awarded compensation for non - pecuniary damage in the amount of MONEY ( ORG ) ( see Mandić and PERSON , cited above , § CARDINAL ) . When deciding on the amount of compensation , the court took into consideration the ORG ’s case - law , in particular as established in the case of PERSON , cited above .

On DATE ORG dismissed an appeal lodged by GPE ( judgment no . II Cp DATE ) against the judgment of CARDINAL DATE . It held that the amount of compensation awarded was fair as it approximately corresponded to CARDINAL average DATE net salaries in GPE in DATE . On DATE ORG dismissed a request for an appeal on points of law lodged by GPE ( judgment no . II DoR CARDINAL/CARDINAL ) .

Previously , on DATE ORG , considering the ORG ’s case - law on prison conditions and the plaintiff ’s personal circumstances , had dismissed a claim for compensation regarding the detention conditions in Dob prison . That judgment had been upheld by ORG on DATE .

ORG had also issued on DATE a default judgment regarding prison conditions in Dob Prison , on the grounds that the plaintiff had not attended the hearing to which he had been duly summoned .

In DATE ORG decided on CARDINAL claims for compensation lodged in DATE and DATE concerning conditions in GPE prison ; CARDINAL of them were dismissed for lack of a violation of the plaintiffs’ personality rights and in the other CARDINAL cases default judgments were issued . In DATE and DATE , CARDINAL claims for compensation were lodged concerning conditions in GPE prison ; in CARDINAL of the cases a settlement was reached with the plaintiff , and as of the date of the latest information available to ORG ( DATE ) , the other CARDINAL cases were still pending before the domestic courts .


CASE OF SUKHANOV AND ILCHENKO v. UKRAINE

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

Both applicants were born in DATE and live in the city of GPE and in the town of FAC , GPE , respectively .

Both applicants have the special status of “ a child of war ” ( see paragraph CARDINAL below ) . From DATE they were entitled to a special supplement to their pensions in the amount of PERCENT of the minimum pension in accordance with section CARDINAL of LAW ( ORG “ PERSON соціальний захист дітей війни ” ) .

In DATE the first applicant instituted court proceedings against ORG of GPE and ORG of ORG of GPE , asking them to recalculate his pension for DATE , to determine the amount of and to pay him the outstanding indexed debt , and to pay his pension in the recalculated amount in the future . The first applicant also claimed compensation for pecuniary and non - pecuniary damage , and legal expenses .

On DATE ORG held that in DATE section QUANTITY of LAW had been suspended by LAW . In return LAW had empowered the Cabinet of Ministers to set up a mechanism for a pension increase . However , because in DATE no such mechanism had been set up , the first applicant ’s claims relating to DATE had to be rejected .

The court further found that in DATE section CARDINAL had again been suspended , and in DATE it had been modified by ORG for the relevant DATE . However , this modification was found to be unconstitutional by ORG on DATE and CARDINAL DATE . The court consequently held that ORG should recalculate the first applicant ’s pension for the periods DATE and DATE and as of CARDINAL DATE .

On DATE ORG upheld that decision .

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

NORP In DATE the second applicant instituted proceedings in FAC against ORG , asking for recalculation of his pension from DATE .

On DATE the court found in part for the second applicant . It held that the second applicant was entitled to the supplement from the date of the decision of ORG ( DATE ) and not from DATE . The court further held that ORG should recalculate the second applicant ’s pension for the periods DATE and DATE and DATE .

On DATE the Dnipropetrovsk Regional Court of Appeal upheld this decision . The decision of ORG was final .

On DATE the second applicant instituted a second set of proceedings in the ORG claiming payment of the above - mentioned supplement to his pension starting from DATE .

On DATE the court found for the second applicant and held that ORG should recalculate the applicant ’s pension from DATE . On DATE ORG upheld this decision .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in ORG .

The applicant , at the relevant time a judge of ORG ( “ the ORG ” ) , was convicted of abuse of office for having exploited a certain Mr I. as a worker on the renovation of his father ’s house under the following circumstances . In DATE the applicant , having sentenced I. to CARDINAL days’ imprisonment for disorderly conduct , had the site manager for the house renovation , PERSON . , check I. out of the police detention facility ( “ the facility ” ) where the latter was serving his sentence and take him to the construction site where he was to work under PERSON . ’s direction . Then , in DATE , a police officer , PERSON , conspired with the applicant in drawing up a report falsely accusing PERSON of another episode of disorderly conduct . PERSON fabricated written statements by false witnesses , GPE and GPE , incriminating ORG , and submitted the file to the applicant . Knowing that PERSON was innocent and the report was false , the applicant convicted PERSON and sentenced him to another CARDINAL days’ detention . The same scheme was used to exploit NORP on the construction site .

On DATE officers of ORG discovered NORP on the construction site in LOC . ’s company .

According to the transcript of his statement dated DATE , which was also video - recorded , PERSON . stated that the applicant had employed him to work on his father ’s house , that in DATE ORG had worked on the site on terms he had negotiated with the applicant and that in DATE had worked while serving his DATE sentence . The applicant had instructed PERSON . to collect ORG from the detention facility , so he had done so . The statement was signed by ORG . on the first and second pages , where his rights as a witness were explained . The statement consists of CARDINAL more type - written pages containing the transcript of the interview but is not signed by PERSON . at the end . It contains a note by the investigator to the effect that PERSON . did not sign because he failed to appear when summoned by the investigator . The file contains a report of DATE , signed by PERSON . , to the effect that he had watched the video recording of his interview and had no comment to make .

On DATE I. was interviewed by the investigator . He stated that around DATE ( sic ) DATE he had been sentenced to CARDINAL days’ imprisonment for disobeying the orders of a police officer . While serving his sentence he had worked on the construction of a house belonging to the applicant , under the direction of Sh . After his release , he had agreed to work for the applicant in return for payment and had carried out construction work for him in DATE and DATE . He had then stopped working for the applicant . On DATE he had been taken from his home by police officers , who had told him that the applicant had accused him of stealing some cables from the building site . He had been taken to the office of the applicant , who had told him that since he refused to work for money , he would have to work for free . As he had refused to work for free , the applicant had responded that then he would rot in a cell , and had given him a DATE sentence . While he had been serving his sentence , PERSON . had taken him out of the detention facility several times and he had worked on the applicant ’s construction site : he had refused to build a fence and had done some other work on the site . He had not been remunerated . The applicant had visited the site once and had seen him working but they had not spoken .

On DATE I. made a notarised statement to the effect that his statement incriminating the applicant had been given “ under the influence of psychological violence and trickery ” ( з застосуванням щодо мене психологічного насильства та обману ) and that in fact he had worked willingly and for remuneration .

On DATE I. was again interviewed by the investigator . The interview was video - recorded . He largely confirmed the tenor of his statement of DATE and denied knowingly signing the notarised statement repudiating it . In addition to repeating various elements of his statement of DATE , he said that although the house where he had worked formally belonged to the applicant ’s father , it was the applicant himself who had organised the work . He stressed that he had not been remunerated for his work in DATE and DATE and had not worked voluntarily . In DATE the applicant had made him visit a notarial office to formalise some papers , the nature of which he was not clear about .

NORP The applicant and his co - defendant , former police officer PERSON , stood trial before ORG , which was acting as the trial court .

The applicant testified that he had had no connection to his father ’s house or work on it . He had not requested that ORG be sent there . When convicting PERSON , he had not been aware that the charges against him had been false . PERSON had worked voluntarily and for remuneration . The applicant did not deny that PERSON . had been the construction site manager on the renovation of his father ’s house but argued that it had been his father who had been concerned by those works and that the applicant himself had had minimal contact with PERSON . The phone number which the prosecution argued he had used to contact PERSON . in fact belonged not to him but to his father .

PERSON admitted that he had forged the administrative arrest report in respect of PERSON but stated that he had done it at the request of officers PERSON and PERSON ( see paragraphs CARDINAL and QUANTITY below ) . He said that the applicant had not been involved and had been unaware of the forgery when convicting I.

B. , the head of the detention facility , testified that in DATE or DATE the applicant had told him that ORG had stolen some things from his construction site and had asked PERSON to bring PERSON to him . On DATE he had taken PERSON from his home to the police station . He denied having instructed PERSON to forge documents in ORG case . On DATE B. was informed by another officer that a stranger claiming to be a court officer showed up at the station and was asking for prisoners to perform works at the court . This was refused . Sometime afterwards the applicant called the station to discuss the release of prisoners and spoke to the commanding officer of the station who gave permission for release of prisoners .

S. , an officer on duty at the police station , testified that ORG had on several occasions been handed over to a person introduced as an employee of ORG , supposedly for work at the court . On DATE the applicant had called personally and asked that I. be handed over for such work . The applicant contested the way S. ’s testimony was recorded in the domestic court ’s judgment and asserted that S. had not identified him by name . It appears that PERSON also denied having given any unlawful instructions to PERSON concerning ORG case .

Other police officers testified that PERSON . had checked PERSON out of the facility on several occasions .

P. , a ORG officer , stated that he was in charge of taking prisoners from the police detention facility to ORG to carry out work , and that he knew NORP well . However , in DATE the latter had not worked at the court .

The applicant ’s father confirmed that he had bought the house and had had PERSON . perform renovation works on it . He denied knowing I.

On DATE the trial court , noting that ORG had failed to appear despite the fact that summonses had been duly sent to him , ordered the police to escort PERSON to the next court hearing on DATE .

On DATE the police reported that ORG could not be found at his last known address in GPE and that his whereabouts were unknown . His mother , niece and another neighbour had informed the police that PERSON had not been living at his usual address in GPE for some time , having left to work in GPE . Although he visited briefly from time to time , they had no way of contacting him .

On DATE the trial court asked the GPE regional prosecutor to establish the whereabouts of NORP and PERSON . , and to escort them to the hearing scheduled for DATE . The prosecutor in turn asked ORG for assistance in establishing the whereabouts of those CARDINAL individuals . On DATE ORG reported essentially the same information as gathered by the police on DATE . They also stated that PERSON . was not living at his address and his whereabouts were unknown .

On DATE the trial court again ordered that the police bring PERSON to the next court hearing on DATE . The police could not locate I. at his last known address . His mother gave the same explanation for his absence .

On DATE the trial court decided that as the presence of NORP and PERSON . could not be ensured , their statements should be read out and video recordings of their interviews shown .

According to the applicant , he met with NORP several times and attempted to persuade him to testify , but PERSON refused , stating that officers of ORG had threatened him with imprisonment if he did .

On DATE the trial court convicted the applicant and PERSON of abuse of office under the circumstances described in paragraph CARDINAL above and sentenced each of them to CARDINAL years’ imprisonment , suspended for DATE . In convicting the applicant , the court relied on :

( a ) PERSON statements , including the CARDINAL video - recorded , and PERSON . ’s statement ;

( b ) evidence presented by the co - defendant PERSON and witnesses PERSON , PERSON see paragraphs CARDINAL above ) ;

( c ) NORP evidence that the applicant had had regular telephone contacts with PERSON . at the relevant time ;

( d ) NORP expert evidence to the effect that it had been PERSON . who had signed for ORG in the register of prisoners taken out of the detention facility in DATE and DATE and evidence of police officers that PERSON . had taken PERSON from the detention facility ;

( e ) the statements of witnesses ORG , who had been identified in the forged police report as witnesses to ORG alleged disorderly conduct ( see paragraph CARDINAL above ) , to the effect that their statements had been forged . They stated that they did not know I. , had not observed him committing the offence , and had not made any statements about it to the police . PERSON testified at the trial . GPE gave video - recorded evidence in the course of the pre - trial investigation but did not testify at the trial ;

( f ) NORP expert evidence showing that the signatures attributed to ORG on the statements incriminating PERSON had in fact been made by certain police officers ; and

( g ) the statements of other witnesses , primarily police officers , concerning the circumstances of ORG arrest .

The applicant appealed in cassation to ORG . He argued that PERSON . ’s statement should not have been relied upon because PERSON . had not signed it and had not been examined at the trial . The applicant also stated that the trial court had misstated PERSON ’s evidence , in particular by ascribing to ORG statements which were not in his video - recorded interview shown in the course of the trial . In that interview ORG had also made other statements indicating that he had worked voluntarily . The applicant questioned the trial court ’s decision to trust the statements given by ORG , a drunk who had a prior conviction for murder and who had failed to remember the content of the notarised statement he had signed DATE before , which showed that he was susceptible to signing anything presented to him by the investigator .

On DATE ORG held a hearing to examine the appeal . No representative for the defence was present . A prosecutor was present and made oral submissions in opposition to the appeal . At the close of the hearing the court ordered that references to Sh . ’s statement be struck from the judgment , since he had not signed his pre - trial statement and thus his statement was inadmissible . The court listed the remaining evidence supporting the applicant ’s conviction and considered that , other than Sh . ’s statement , the evidence was admissible and sufficiently supported the verdict . The court upheld the remainder of the judgment .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The first applicant was born in DATE and the second applicant was born on DATE . They live in GPE .

In DATE the first applicant was called up to take part in the emergency operations at the site of the GPE nuclear plant disaster . As a result , he suffered from extensive exposure to radioactive emissions . In DATE experts established a causal link between the applicant ’s disability and his involvement in the GPE events .

NORP Under domestic law the first applicant is entitled to DATE payments in compensation for health damage . He brought court proceedings against local authorities claiming adjustment of the DATE payments in line with the increase of a statutory minimum wage for the period DATE and DATE .

On DATE the ORG of GPE allowed his claim in part and ordered ORG of LOC and ORG of GPE to pay the applicant a lump sum of MONEY ( RUB ) in respect of the debt accrued as a result of previous underpayment . The court ordered that the award be paid at the expense of the federal budget . On DATE the judgment became final and entered into force .

On DATE the bailiffs’ office opened the enforcement proceedings . On DATE those proceedings were discontinued on account of the respondent authority ’s lack of funds .

On DATE the amount awarded was paid to the first applicant in full .

Being a victim of the GPE nuclear disaster , the first applicant is entitled to additional housing . As he was not offered any , he brought an action against the local authorities claiming to provide him with housing .

On DATE ORG found for the first applicant and ordered ORG to grant him a separate room which should meet sanitary and technical requirements and be well - equipped in accordance with the set standards .

The judgment was not appealed against and entered into force DATE .

The Ministry of Construction of GPE did not execute the judgment due to lack of available housing .

On DATE the respondent authority informed the first applicant that as of DATE the competence to distribute the social housing to the victims of the GPE nuclear disaster had been transferred to ORG , and since that date ORG had accordingly been unable to execute the judgment in his favour .

On DATE the first applicant filed a claim to alter the mode of enforcement of the judgment of DATE from in - kind provision of the room to monetary compensation for its acquisition . His claim was granted by ORG on DATE and he was awarded RUB CARDINAL to be paid by ORG at the expense of the federal budget .

On DATE ORG at ORG informed the applicant that the debtor had not enforced the judgment and proposed to bring actions against ORG .

Since DATE the ORG compensations for acquisition of housing to the victims of the GPE disaster are provided only in form of housing certificates .

On DATE ORG ordered indexation of the awarded amount to RUB CARDINAL . That decision entered into force on DATE .

The award granted by the judgment of DATE as amended by the indexation order of CARDINAL DATE has not been paid to date .


Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

NORP The applicant , MV , is an NORP national who was born in DATE and lives in GPE . The President granted the applicant 's request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . She is represented before the ORG by PERSON of Liberty , a ORG organisation based in GPE .

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

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

The applicant was born in GPE in DATE . She was the eldest of CARDINAL children : CARDINAL sisters ( ORG and ORG ) and CARDINAL brother ( LV ) . The applicant 's parents separated in DATE and in DATE her mother ( ORG ) began a relationship with a NORP citizen ( ORG ) . In DATE the applicant 's mother travelled to GPE to set up home with ORG and she was later joined by her CARDINAL children .

The applicant alleges that following the move to GPE she was emotionally , physically and sexually abused by ORG .

In DATE the applicant moved to GPE , where she lived with her grandparents . During this time she had no conscious recollection of the sexual abuse ; however , due to her erratic behaviour she was sent twice DATE to a psychiatrist .

The applicant returned to GPE in DATE to live with her mother , ORG , and her CARDINAL younger siblings . She claims that on her return PERSON once again began to abuse her both physically and sexually . The abuse continued until she moved out of the family home in DATE .

Initially the applicant did not tell anyone of the abuse . However , in DATE her younger sister , ORG , told a family friend that she had been sexually abused by ORG . This information was eventually related to ORG , who confronted the applicant about it . The applicant confirmed that she too had been sexually abused by ORG . ORG did not immediately report the allegations to the police .

Instead , in DATE ORG left ORG and returned to GPE with ORG . ORG had already returned to GPE and was living with her grandparents while the applicant had gone to live in GPE .

By DATE ORG , ORG and ORG had returned to GPE . It was at this time that ORG reported the allegations of sexual abuse by ORG to ORG . During the subsequent investigation witness statements were taken from the applicant , ORG , ORG , ORG , ORG 's ex - wife ( ORG ) , and his CARDINAL children from that marriage ( GON and ORG ) . The applicant 's brother , LV , was not interviewed at this time .

In her interview ORG revealed that ORG had abused her in a number of ways from DATE , predominantly by rubbing himself against her with his penis . She also described being fondled in a jacuzzi , horsewhipped , bitten on her bottom and karate - chopped between her legs . ORG also described being made to have a shower with ORG and being punished by him with a whip . She also stated that she was aware VV had been touched inappropriately by ORG .

NORP In DATE the applicant returned from GPE to give a statement . In that statement she described what had taken place in DATE when ORG had gone away for DATE , leaving the children in the care of ORG . The applicant was DATE at the time . She stated :

“ [ ORG ] asked me if I would sleep with him . I was CARDINAL so I thought nothing of it . I went to sleep in his bed ... I remember [ he ] had wrapped his leg over me and pulled me close . I was scared . I was lying on my stomach and [ he ] was lying on my right . I remember him breathing . I was not sure what [ he ] was doing but I felt he was trying to make me take my PERSON 's place while she was away ... PERSON was away for a week . I can not remember how many times this happened but I think it happened more than once . ”

The applicant also described a time when she was DATE when ORG had returned to GPE for DATE :

“ [ ORG ] told me that he had a heart condition and asked me to sleep with him as he was scared to sleep alone . I said I would . When it came time to go to bed I went into my brother 's room , got the sofa bed and put that next to his bed and slept there . He made me hold his hand but nothing else . DATE he was angry and said I was no company and that he would ask [ VV ] to take my place . ”

She also stated that :

“ I also remember when I was DATE he would give me driving lessons . He would sit me on his lap and get me to move the steering wheel . I think this was strange now because he never offered to do this when I was DATE . ”

Social services ' records also indicated that ORG had informed a social worker on DATE that the applicant had told a friend that ORG had fondled her breasts when she was CARDINAL .

In her interviews with police and social services KON at times claimed that she had not been abused , while on other occasions she implied that she had . She said that T , another child of ORG who was living in GPE , had told her that he had put his hands down her jeans and fondled her .

PON was arrested and questioned in DATE . Although the tapes of the interview have since been destroyed the entry in the crime report stated that he denied all of the allegations . He was released on bail and told to return to the police station on DATE .

On or about CARDINAL DATE the police decided , without any reference to ORG , that no further action would be taken against ORG . The relevant entry in the crime report , which was written by PC G , read as follows :

“ Nothing has been heard directly from GPE about T [ another child of ORG ] being abused . This matter will have to be reinvestigated should T ever come to GPE and make an allegation . In discussion with Detective Sergeant [ B ] we have formed the opinion that there is insufficient evidence for a successful prosecution in this case . A lot of pressure would be put on GPE in respect of her evidence . It is not clear that she would attend court , leaving MV and VV unsupported in their account of what happened . In view of the above I shall classify this as no crime . Should any further evidence come to light this will of course be reclassified and investigated accordingly . ”

On DATE PC G informed ORG 's solicitor by telephone that he would not face prosecution . PC G and Detective Sergeant B also informed the applicant and her family that no prosecution would take place and that this decision had been made ' in order to protect the children ' .

On DATE a child protection case conference was held concerning VV and ORG . Detective Sergeant B was in attendance . At that meeting ORG produced a tape recording of a telephone conversation she had with ORG . In the course of the conversation ORG belittled the abuse and sought to blame ORG for what had happened . It appears that ORG had further tape recordings but the police did not ask to see them at this time .

The conference concluded that :

“ We believe that [ VV ] has been sexually abused and we will place her name on ORG in the category of ORG and likely significant harm of emotional abuse .

Appropriate boundaries have been breached by [ ORG ] entering the room whilst [ ORG ] was in the shower . We believe he has abused other children and that [ ORG ] is at risk of being abused by him . We will therefore place her name on the register in the category of likely significant harm from sexual abuse . ”

It was therefore decided that social services would seek to accommodate ORG and treatment would be offered to her . ORG was to remain with ORG under the condition that she have no contact with ORG . Treatment was also to be offered to her .

In DATE ORG went to live with her biological father in GPE . However , she returned to GPE in DATE and thereafter lived with ORG and ORG , who were again co - habiting . Her name was again placed on ORG .

NORP In DATE ORG married ORG . The relationship was on and off for DATE before finally coming to an end in DATE .

In DATE all interview records , case notebooks and the custody record were destroyed .

In DATE the applicant 's brother , LV , committed suicide . DATE , the police re - opened the investigation into the allegations of abuse . It was agreed , however , that the re - investigation would only consider new evidence .

On DATE the applicant gave a further statement . In that statement she explained :

“ I made a witness statement to Police on the CARDINALth DATE , regarding [ ORG ] . I was DATE and at the time could n't bring myself to give the full details of what took place . I wish to add the following ... ”

She proceeded to set out in greater detail the allegations made in DATE . In particular , she stated that during the “ driving lessons ” ORG had had an erection and moved under her . Moreover , she claimed that after inviting her to sleep in his bed he had also had an erection and was rubbing himself against her in a sexual motion . Afterwards , her nightdress was wet . In addition , she alleged that the sexual abuse had been accompanied by serious cruelty , physical abuse and the humiliation of all the children .

PON was arrested on DATE and subsequently charged with CARDINAL counts of indecency and child cruelty , CARDINAL counts of indecency and CARDINAL count of cruelty related to offences committed against the applicant .

On DATE the police were given ORG 's tape recordings of conversations she had had with ORG concerning the abuse . CARDINAL of the tapes contained the following statements by ORG :

“ I want you to understand something . These things that happened with [ VV ] happened DATE , OK . And they got out of hand between us but not too much , [ ORG ] , but it does n't make it right ... I want to sort this out with you and [ VV ] ... at DATE ... I was the adult and I should have fucking stopped it . But I never took her knickers down or tried to screw her or anything like that , for fuck 's sake ... what happened with [ VV ] was the situation , not the way I am . OK . You can trust me ... Things happened with [ VV ] , but not what you think happened , not what you think happened ... I'll tell you what happened and I 'm not proud of it . I 'm ashamed . It got too close with [ VV ] , but it was n't CARDINAL way , and I was the adult and should have stopped it . But she never touched me or done anything ... I 've never done anything that bad to [ VV ] Bad enough , but not that bad . ”

On DATE ORG ordered that the prosecution against ORG be stayed because of abuse of process . The court gave CARDINAL reasons for its decision : first , in DATE ORG had been told unequivocally that no further police action would be taken ; secondly , little evidence had been discovered in addition to that which was available in DATE ; thirdly , there was material which was no longer available , particularly in relation to contemporaneous notes of interview , as a result of which it would be impossible for ORG to have a fair trial . The applicant did not challenge this decision .

During the hearing , police officers gave slightly divergent evidence concerning the DATE investigation . Detective Sergeant B indicated that there had been a prima facie case against ORG but it was not considered to be in the best interests of the applicant and her siblings to put the case before a court . Sergeant G ( formerly PC G ) agreed that the reason not to proceed was mainly to do with the children 's welfare but stated that in any case there had been insufficient evidence to prosecute .

On DATE the applicant filed a civil claim in which she claimed damages from the Commissioner of Police for the Metropolis for personal injury and loss arising from the alleged negligent manner in which the police had pursued the allegations of child cruelty and indecent assault against ORG and from the decision not to prosecute . The Commissioner applied to have the application struck out on the basis that it disclosed no reasonable grounds .

In a decision dated DATE , the District Judge considered the decision not to prosecute to be separate and apart from the police investigation . Insofar as the claim concerned the conduct of the police investigation , the judge held that the allegations had to be struck out as the law did not impose a duty of care on the police in respect of the conduct of a criminal investigation . Such a duty could only arise if it could be shown that the police had assumed responsibility towards a particular claimant in such a manner as to give rise to a duty . However , that was not the position in the present case . The judge accepted that exceptionally , in a child cruelty and sexual abuse case , if an investigation had been carried out so negligently that a child was not protected from future harm , it was at least arguable that the police might exceptionally be held liable . However , he held that the above exception did not apply to the applicant as she was no longer a child in DATE and had therefore been in no different a position to any ordinary witness or victim .

With regard to the failure to prosecute , the District Judge considered it arguable that a limited duty of care might arise in the context of the facts of the case . In particular , the judge found it disturbing that the ORG was not apparently even consulted with regard to the failure to prosecute ORG , particularly in view of the severity and magnitude of the alleged offences . Indeed , he noted that it would have been expected that the file was at least sent to the ORG for its consideration as to whether or not to prosecute . However , instead of sending the file to the ORG the police had taken the decision not to prosecute themselves on the ground that it would not be in the best interests of the applicant or her sisters .

The Commissioner of Police appealed to ORG against the District Judge 's decision , maintaining that he should have struck out the claim regarding the decision not to prosecute . The applicant cross - appealed on the ground that the judge had been wrong to strike out the claim in relation to the investigation . Following a lengthy consideration of the District Judge 's decision , on DATE the court dismissed the appeal and the cross - appeal , leaving the decision of the District Judge as it was . In doing so , the judge noted that it was possible , even if the possibility was not a very strong one , that further examination of the facts , reasoning and information behind the DATE decision not to prosecute might lead to the conclusion that the taking of that decision gave rise to a limited duty of care .

The Commissioner appealed to ORG . At the hearing , counsel for the applicant conceded that there could be no claim for negligent failure to investigate the complaints properly in DATE and the lower courts had been right to strike out those aspects of the claim . He argued , however , that the decision not to prosecute was different because in coming to that decision the police had taken into account the interests of the children .

On DATE ORG allowed the appeal and struck out the applicant 's claim altogether . It found that following PERSON v. Chief Constable of GPE Police [ DATE ] ORG ( see below ) , the existence of a duty of care in a case such as the present would not be in the public interest as it would lead to the police carrying out their duties in a detrimentally defensive frame of mind . In any case , ORG noted that even if there had been a duty of care , the applicant 's Particulars of Claim did not disclose a cause of action because she would have had to have pleaded – and could not possibly have pleaded – that no reasonable prosecutor would have failed to prosecute .

On DATE ORG refused to grant the applicant permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance .

On DATE Dr. N , a Consultant Psychiatrist , prepared a report on the applicant .

In that report he noted that she was suffering from clinical depression which was moderate in its severity . Although he noted evidence of propensity to mental disorder within the family , he concluded that her experience of abuse while she was a child was the original cause of the mental disorder now afflicting her . However , he considered that the applicant 's experience of uneven and unsettled parenting by ORG was also a contributory factor .

With regard to the question of whether the failure of the original prosecution of ORG was a significant contributing factor , Dr. PERSON acknowledged that the answer was “ a difficult and complicated determination resting as it does upon the implication of the narrative biography , the complex family dynamics , subconscious psychological themes and a broader consideration of [ the applicant 's ] personality , psychological constitution and prospects ” . Nevertheless , although the argument was “ both subtle and complex ” , he concluded that “ a significant proportion of [ the applicant 's ] ongoing psychological difficulties can be traced to the failure of the original prosecution of [ ORG ] in DATE ” .

Physical and sexual abuse of a child are criminal offences in GPE and GPE . Prior to CARDINAL May CARDINAL , the relevant sexual offences were set out in LAW DATE , LAW , the Sexual Offences ( Amendment ) Act CARDINAL and the Sexual Offences ( Amendment ) Act DATE ( “ LAW DATE ” ) . Cruelty to a person DATE and was at the material time DATE a criminal offence by reason of section CARDINAL(CARDINAL ) of the Children and Young Persons Act DATE .

NORP Under domestic law the police owe no general duty of care in tort to victims of crime to investigate their allegations ( PERSON v. Chief Constable of GPE Police [ DATE ] ORG ) . However , this position is not tantamount to a “ blanket immunity ” and in certain cases the police could be found to owe a duty of care to a victim ( see , for example , PERSON Chief Constable of ORG [ DATE ] QB CARDINAL , in which the police appeared to have assumed responsibility for the victim 's safety ) .

Section CARDINAL(CARDINAL ) of the LAW provides that it is unlawful for a public authority to act in a way which is incompatible with a LAW right .

Section CARDINAL(CARDINAL ) of the LAW provides that a person who claims that a public authority has acted or proposes to act in a way which is unlawful pursuant to section DATE ) may bring proceedings against the authority under LAW in the appropriate court or tribunal or may rely on the Convention rights concerned in any legal proceedings .

Pursuant to section CARDINAL , the court may grant such relief or remedy , or make any such order within its powers as it considers just and reasonable in relation to any act of a public authority which it finds is unlawful .