CASE OF HIRST v. THE UNITED KINGDOM (No. 2)

Violation of P1-3;No separate issue under Art. 14;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

Matti Pellonpää;Nicolas Bratza;Simon Brown

The applicant was born in DATE and is currently serving a sentence of imprisonment in FAC , GPE .

On DATE , the applicant pleaded guilty to manslaughter on ground of diminished responsibility . His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral . He was sentenced to a term of discretionary life imprisonment .

The applicant ’s tariff ( that part of the sentence relating to retribution and deterrence ) expired on DATE . His continued detention is based on considerations relating to risk and dangerousness , ORG considering that he continues to present a risk of serious harm to the public .

The applicant , who is barred by CARDINAL of the Representation of the People Act DATE from voting in parliamentary or local elections , issued proceedings in ORG under section CARDINAL of LAW DATE , seeking a declaration that this provision was incompatible with LAW .

NORP The applicant ’s application was heard before ORG on CARDINAL and DATE , together with the application for judicial review of CARDINAL other prisoners , PERSON and Mr PERSON , who had applied for registration as electors and been refused by the Registration Officer and who also sought a declaration of incompatibility .

In its judgment dated DATE , ORG noted that in LOC CARDINAL countries , including GPE , did not give convicted prisoners a vote , while CARDINAL did not disenfranchise prisoners and CARDINAL imposed a more restricted disenfranchisement . Reference was made to ORG which had rejected a challenge to LAW disenfranchisement of convicted prisoners ( PERSON v. PERSON [ DATE ] CARDINAL GPE CARDINAL ) ; and to NORP precedents , in particular ORG which in the case of PERSON v. GPE ( No . CARDINAL ) ( [ DATE ] CARDINAL SCR CARDINAL ) struck down the disenfranchisement of prisoners as too widely drawn and infringing against the minimum impairment rule and ORG which upheld in PERSON ( No . CARDINAL ) ( [ DATE ] CARDINAL CF ) the subsequent legislative provision which restricted the ban to prisoners serving a sentence of DATE or more in a correctional institution . The cases before ORG and this ORG were also reviewed .

Lord Justice PERSON concluded :

“ ... I return to what was said by ORG in paragraph CARDINAL of its judgment in PERSON . Of course as far as an individual prisoner is concerned disenfranchisement does impair the very essence of his right to vote , but that is too simplistic an approach , because what LAW is really concerned with is the wider question of universal franchise , and ‘ the free expression of the opinion of the people in the choice of the legislature’ . If an individual is to be disenfranchised that must be in the pursuit of a legitimate aim . In the case of a convicted prisoner serving his sentence the aim may not be easy to articulate . Clearly there is an element of punishment , and also an element of electoral law . As the Home Secretary said , ORG has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed . ORG said that such prisoners had lost the moral authority to vote . Perhaps the best course is that suggested by ORG , namely to leave to philosophers the true nature of this disenfranchisement whilst recognising that the legislation does different things .

ORG also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate , and that is the point at which , as it seems to me , it is appropriate for this court to defer to the legislature . It is easy to be critical of a law which operates against a wide spectrum ( e.g. in relation to its effect on post - tariff discretionary life prisoners , and those detained under some provision of LAW DATE ) , but , as is clear from the authorities , those states which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody . ORG in this country could have provided differently in order to meet the objectives which it discerned , and like PERSON in GPE , I would accept that the tailoring process seldom admits of perfection , so the courts must afford some leeway to the legislator . As [ counsel for the Secretary of ORG ] submits , there is a broad spectrum of approaches among democratic societies , and GPE falls into the middle of the spectrum . In course of time this position may move , either by way of further fine tuning , as was recently done in relation to remand prisoners and others , or more radically , but its position in the spectrum is plainly a matter for ORG not for the courts . That applies even to the ‘ hard NORP of post - tariff discretionary life sentence prisoners ... They have all been convicted and if , for example , ORG were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear . ...

If section CARDINAL ( CARDINAL ) of the DATE Act can meet the challenge of LAW [ of LAW ] then LAW had nothing to offer , any more than LAW . ”

The applicant ’s claims were accordingly rejected as were those of the other prisoners .

On DATE , an application for permission to appeal was filed on behalf of Pearson and ORG , together with a CARDINAL-page skeleton argument . On DATE , Lord Justice PERSON considered the application on the papers and refused permission on the grounds that the appeal had no real prospect of success .

On DATE , the applicant filed an application for permission to appeal . On DATE , his application was considered on the papers by Lord Justice PERSON who refused permission for the same reasons as Lord Justice PERSON in relation to the earlier applications . The applicant ’s renewed application , together with the renewed applications of PERSON and ORG , were refused on DATE , after oral argument , by Lord Justice PERSON .

Section CARDINAL of the Representation of the People Act CARDINAL provides :

“ ( CARDINAL ) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election . ”

This section re - enacted without debate the provisions of LAW , the substance of which back dated to LAW of DATE , which in turn reflected earlier rules of law relating to the forfeiture of certain rights by a convicted “ felon ” ( the so - called “ civic death ” of the times of King PERSON ) .

The disqualification does not apply to persons imprisoned for contempt of court ( section CARDINAL(CARDINAL)a ) or to those imprisoned only for default in , for example , paying a fine ( section CARDINAL(CARDINAL)c ) .

During the passage through ORG of the Representation of the People Act CARDINAL , which permitted remand prisoners and unconvicted mental patients to vote , Mr PERSON MP , speaking for the Government , maintained the view that “ it should be part of a convicted prisoner ’s punishment that he loses rights and CARDINAL of them is the right to vote ” . The LAW was accompanied by a statement of compatibility under the section CARDINAL of LAW DATE , namely , a statement that in introducing the measure in ORG the Secretary of ORG considered its provisions to be compatible with the Convention .

On DATE , the Secretary of ORG gave his reasons for maintaining the policy of disenfranchising convicted prisoners :

“ By committing offences which by themselves or taken with any aggravating circumstances including the offender ’s character and previous criminal record require a custodial sentence , such prisoners have forfeited the right to have a say in the way the country is governed for that period . There is CARDINAL element to punishment than forcible detention . Removal from society means removal from the privileges of society , amongst which is the right to vote for one ’s representative . ”

Section CARDINAL of LAW DATE provides :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) NORP If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility . ”

Relevant provisions of the ORG provide :

“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW [ race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status ] and without unreasonable restrictions :

( a ) to take part in the conduct of public affairs , directly or through freely chosen representatives ;

( b ) to vote ... ”

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person .

NORP The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation . ”

In the General PERSON ( No . CARDINAL(CARDINAL ) ) adopted by ORG DATE ) of the ORG dated DATE , the ORG stated , inter alia , concerning the right guaranteed under LAW :

“ CARDINAL . In their reports , ORG parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote . The grounds for such deprivation should be objective and reasonable . If conviction for an offence is a basis for suspending the right to vote , the period of suspension should be proportionate to the offence and the sentence . Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote . ”

“ CARDINAL . Imprisonment is by the deprivation of liberty a punishment in itself . The conditions of imprisonment and the prison regimes shall not , therefore , except as incidental to justifiable segregation or the maintenance of discipline , aggravate the suffering inherent in this . ”

This document adopted by ORG ) at its CARDINALst Plenary Session ( DATE ) and submitted to ORG of ORG on DATE includes the ORG ’s guidelines as to the circumstances in which there may be deprivation of the right to vote or to be elected :

“ d. ...

i. provision may be made for depriving individuals of their right to vote and to be elected , but only subject to the following cumulative conditions ;

ii . it must be provided for by law ;

iii . the proportionality principle must be observed ; conditions for disenfranchising individuals of the right to stand for election may be less strict than for disenfranchising them ;

iv . The deprivation must be based on mental incapacity or a criminal conviction for a serious offence .

v. Furthermore , the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law . ”

Following the decision of ORG in the present case , ORG on DATE held by CARDINAL votes to CARDINAL that section CARDINAL(e ) of LAW DATE , which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of DATE or more , was unconstitutional , i.e. , infringing ORG CARDINAL and CARDINAL of LAW :

“ CARDINAL . LAW guarantees the rights and freedoms set out in subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society . ”

“ CARDINAL . Every citizen of GPE has the right to vote in an election of members of ORG or of a legislative assembly and to be qualified for membership therein . ”

NORP The majority opinion given by PERSON is summarised as follows in the headnote :

“ To justify the infringement of a LAW right under s. CARDINAL , the government must show that the infringement achieves a constitutionally valid purpose or objective , and that the chosen means are reasonable and demonstrably justified . The government ’s argument that denying the right to vote to penitentiary inmates requires deference because it is a matter of social and political philosophy is rejected . While deference may be appropriate on a decision involving competing social and political policies , it is not appropriate on a decision to limit fundamental rights . The right to vote is fundamental to our democracy and the rule of law and can not be lightly set aside . Limits on it require not deference , but careful examination . The framers of the LAW signalled the special importance of this right not only by its broad , untrammelled language , but by exempting it from legislative override under s. CARDINAL ’s notwithstanding clause . The argument that the philosophically - based or symbolic nature of the objectives in itself commands deference is also rejected . ORG can not use lofty objectives to shield legislation from LAW scrutiny . Here , s. CARDINAL ( e ) is not justified under s. CARDINAL of the Charter .

The government has failed to identify particular problems that require denying the right to vote , making it hard to conclude that the denial is directed at a pressing and substantial purpose . In the absence of a specific problem , the government asserts CARDINAL broad objectives for s. CARDINAL(e ) : ( CARDINAL ) to enhance civic responsibility and respect for the rule of law ; and ( CARDINAL ) to provide additional punishment or ‘ enhance the general purposes of the criminal sanction’ . Vague and symbolic objectives , however , make the justification analysis difficult . The first objective could be asserted of virtually every criminal law and many non - criminal measures . Concerning the second objective , nothing in the record discloses precisely why ORG felt that more punishment was required for this particular class of prisoner , or what additional objectives ORG hoped to achieve by this punishment that were not accomplished by the sentences already imposed . Nevertheless , rather than dismissing the government ’s objectives outright , prudence suggests that we proceed to the proportionality inquiry .

Section CARDINAL(e ) does not meet the proportionality test . In particular , the government fails to establish a rational connection between s. CARDINAL(e ) ’s denial of the right to vote and its stated objectives . With respect to the first objective of promoting civic responsibility and respect for the law , denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values . The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote . To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility . The government ’s novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness , equality , and citizen participation . That not all self - proclaimed democracies adhere to this conclusion says little about what the NORP vision of democracy embodied in the LAW permits . Moreover , the argument that only those who respect the law should participate in the political process can not be accepted . Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of NORP democracy and the LAW . It also runs counter to the plain words of s. CARDINAL of the LAW , its exclusion from the s. CARDINAL override , and the idea that laws command obedience because they are made by those whose conduct they govern .

With respect to the second objective of imposing appropriate punishment , the government offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment . Denying the right to vote does not comply with the requirements for legitimate punishment - namely , that punishment must not be arbitrary and must serve a valid criminal law purpose . Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender . Section CARDINAL(e ) qua punishment bears little relation to the offender ’s particular crime . As to a legitimate penal purpose , neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals . By imposing a blanket punishment on all penitentiary inmates regardless of the particular crimes they committed , the harm they caused , or the normative character of their conduct , s. CARDINAL(e ) does not meet the requirements of denunciatory , retributive punishment , and is not rationally connected to the government ’s stated goal .

The impugned provision does not minimally impair the right to vote . Section CARDINAL(e ) is too broad , catching many people who , on the government ’s own theory , should not be caught . Section CARDINAL(e ) can not be saved by the mere fact that it is less restrictive than a blanket exclusion of all inmates from the franchise .

Lastly , the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue . Denying prisoners the right to vote imposes negative costs on prisoners and on the penal system . It removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration . In light of the disproportionate number of NORP people in penitentiaries , the negative effects of s. CARDINAL(e ) upon prisoners have a disproportionate impact on GPE ’s already disadvantaged NORP population . ... ”

NORP The minority opinion given by PERSON is summarised , in extract , as follows :

“ ... In this case , while it has been conceded that s. CARDINAL(e ) of LAW infringes s. CARDINAL of the LAW , the infringement is a reasonable limit that is demonstrably justified in a free and democratic society . The objectives of s. CARDINAL(e ) are pressing and substantial . Both objectives are based upon a reasonable and rational social or political philosophy . The first objective , that of enhancing civic responsibility and respect for the rule of law , relates to the promotion of good citizenship . The social rejection of serious crime reflects a moral line which safeguards the social contract and the rule of law and bolsters the importance of the nexus between individuals and the community . The ‘ promotion of civic responsibility’ may be abstract or symbolic , but symbolic or abstract purposes can be valid of their own accord and must not be downplayed simply for the reason of their being symbolic . The second objective is the enhancement of the general purposes of the criminal sanction . Section CARDINAL(e ) clearly has a punitive aspect with a retributive function . It is a valid objective for ORG to develop appropriate sanctions and punishments for serious crime . The disenfranchisement is a civil disability arising from the criminal conviction .

Section CARDINAL(e ) meets the proportionality tests . First , the impugned legislation is rationally connected to the objectives . While a causal relationship between disenfranchising prisoners and the objectives is not empirically demonstrable , reason , logic and common sense , as well as extensive expert evidence , support a conclusion that there is a rational connection between disenfranchising offenders incarcerated for serious crimes and the objectives of promoting civic responsibility and the rule of law and the enhancement of the general objectives of the penal sanction . ... Further , the disenfranchisement of serious criminal offenders serves to deliver a message to both the community and the offenders themselves that serious criminal activity will not be tolerated by the community . Society may choose to curtail temporarily the availability of the vote to serious criminals to insist that civic responsibility and respect for the rule of law , as goals worthy of pursuit , are prerequisites to democratic participation . With respect to the second objective , the disenfranchisement is carefully tailored to apply to perpetrators of serious crimes , and there is evidence in the record indicating that the denial of the right to vote is perceived as meaningful by the prisoners themselves and can therefore contribute to the rehabilitation of prisoners . Lastly , many other democracies have , by virtue of choosing some form of prisoner disenfranchisement , also identified a connection between objectives similar to those advanced in the case at bar and the means of prisoner disenfranchisement .

Second , the impairment of the Charter right is minimal . ... Only ‘ serious ORG , as determined by ORG , are subject to disenfranchisement . Since ORG has drawn a DATE cut off line which identifies which incarcerated offenders have committed serious enough crimes to warrant being deprived of the vote , any alternative line will not be of equal effectiveness . ... The provision is reasonably tailored insofar as disenfranchisement reflects the length of the sentence and actual incarceration , which , in turn , reflect the seriousness of the crime perpetrated and the intended progress towards the ultimate goals of rehabilitation and reintegration . Section CARDINAL(e ) is not arbitrary : it is related directly to particular categories of conduct . The DATE cut off line also reflects several practical considerations . Further , since this ORG gave the impression that it was up to a ORG to do exactly this after the first PERSON case ... , there is a need for deference to ORG in its drawing of a line . The analysis of social and political philosophies and the accommodation of values in the context of the LAW must be sensitive to the fact that there may be many possible reasonable and rational balances . Line drawing , amongst a range of acceptable alternatives , is for ORG , ...

Third , when the objective and the salutary effects are viewed in the totality of the context , they outweigh the temporary disenfranchisement of the serious criminal offender . The enactment of the measure is itself a salutary effect . The legislation intrinsically expresses societal values in relation to serious criminal behaviour and the right to vote in our society . Value emerges from the signal or message that those who commit serious crimes will temporarily lose CARDINAL aspect of the political equality of citizens . Furthermore , the temporary disenfranchisement is perceived as meaningful by the offenders themselves and could have an ongoing positive rehabilitative effect . ... The statistical data mentioned by ORG indicate that the provision catches serious and repeat offenders and that most prisoners will only be deprived of participation in CARDINAL election . Because the duration of the disenfranchisement is directly related to the duration of incarceration , a serious criminal offender may never actually be denied the opportunity to vote if there is no election during the time he is incarcerated . In light of the special context of this case - that the justification advanced by ORG is rooted in a social or political philosophy that is not susceptible to proof in the traditional sense - deference is appropriate since the impugned provision raises questions of penal philosophy and policy . ... ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Prostějov . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

The applicant owns an apartment house in Prostějov .

On DATE ORG ( okresní soud ) granted the applicant ’s action of DATE by which he had requested that the tenancy of PERSON and PERSON , who occupied one of the flats in the house subject to the rent - control scheme , be terminated . The court held that the tenancy would terminate within DATE of the coming into force of the judgment . It ordered the defendants to vacate the flat within DATE of being provided with an alternative flat .

In a judgment of DATE ORG ( krajský soud ) modified the judgment specifying that the alternative flat had to be equivalent to the apartment which they were occupying . The judgment became final on DATE .

On DATE PERSON .

On DATE ORG , upon the applicant ’s request for enforcement of DATE , ordered execution of the judgment of DATE but held at the same time that the alternative flat which the applicant offered was not equivalent since even if it was of a higher category its total surface was PERCENT smaller than PERSON existing flat having CARDINAL room less , was situated on a higher floor and the rent was by CZK CARDINAL ( EUR CARDINAL.CARDINAL ) higher .

On DATE ORG rejected the applicant ’s fresh request for enforcement of DATE , finding that the alternative flat offered by him could not be considered as an equivalent apartment because the rent was by CZK CARDINAL,CARDINAL ( ORG CARDINAL ) higher than that which PERSON was currently paying for the apartment which was subject to the rent - control scheme . Her financial situation would drastically worsen given that her DATE pension amounted to CZK CARDINAL,CARDINAL ( EUR CARDINAL ) . On DATE ORG rejected the applicant ’s appeal as being introduced outside the statutory time - limit and upheld ORG decision .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) and an appeal on points of law ( dovolání ) .

On DATE ORG ( PERSON ) quashed the decision of ORG and remitted the case to it .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal given that the case was pending before ORG .

On DATE the applicant presented to ORG his complementary submissions and arguments requesting the court to alter the original condition and to declare that the eviction of PERSON should be conditional only on the provision of a shelter ( přístřeší ) .

On CARDINAL DATE ORG dismissed the applicant ’s appeal against the decision of ORG of DATE . On DATE ORG rejected the applicant ’s appeal on points of law .

In a ruling ( nález ) of DATE ORG , following the applicant ’s new constitutional appeal , quashed ORG decision of CARDINAL DATE and found a violation of the applicant ’s right to judicial protection under LAW ( Listina základních práv a svobod ) . It held that the situation on the flats market at the relevant time made it impossible for the applicant to find an equivalent flat subject to the rent - control scheme . Referring to its ruling no . III . ÚS CARDINAL/CARDINAL of DATE , the court held that the only duty incumbent on the applicant had been to deploy all his efforts , within the reasonable limits , in order to provide an alternative flat , which , under local conditions and all terms stated in the law , would meet as much as possible the standards of the vacated flat . Otherwise the right of the landlord to terminate the tenancy would become impossible . The ORG could not transfer its duty of social care onto landlords ; owners of flats subject to the rent - control scheme were entitled to obtain the enforcement of an order to vacate under the same conditions as those owning uncontrolled flats . The court also held that a rent only had to be usual for the given place and time .

On DATE ORG scheduled a hearing for DATE , inviting the applicant to submit , not later than at the hearing , documentary evidence that an alternative housing was assured to PERSON It also requested ORG ( domovní správa ) and a number of estate agents in that particular area to provide their opinions on the precognitions for the allocation of flats and on the then current housing situation on the market .

On DATE the applicant filed a claim for damages , under LAW then in LAW no . CARDINAL/CARDINAL ) , to compensate material damage caused by illegal decisions of lower courts and lengthy execution proceedings . On DATE ORG rejected the applicant ’s claim for damages . In a letter of DATE , the applicant informed ORG of his intention to initiate proceedings before domestic courts . However , there is nothing to show that he did actually turn to a court .

In the mean - time , on DATE , ORG had upheld ORG decision of CARDINAL DATE on the grounds that the applicant ’s request for assignment of a municipal flat had been withdrawn from the register . It appears that the dismissal of the request resulted from PERSON refusal to accept the flat offered by the applicant .

On DATE ORG rejected the applicant ’s appeal on points of law against ORG decision of CARDINAL DATE as having been filed outside the statutory time - limit .

On DATE the applicant filed a constitutional appeal alleging a violation of his right to judicial protection guaranteed by LAW , but ORG rejected his appeal as manifestly ill - founded on DATE .

On DATE the constitutional jurisdiction rejected the applicant ’s appeal against ORG decision of DATE and the decision of ORG of DATE .

On DATE ORG terminated the enforcement proceedings , PERSON having died on DATE .

On DATE the court evaluated her property to CZK CARDINAL,CARDINAL ( EUR CARDINAL ) and decided that the inheritance of CZK CARDINAL,CARDINAL ( ORG CARDINAL ) would pass on the ORG . The applicant was paid CZK MONEY ( ORG CARDINAL ) to compensate PERSON outstanding rent from DATE to DATE .

On DATE the applicant brought an action for unjustified enrichment with ORG against PERSON seeking payment of CARDINAL CARDINAL ( EUR CARDINAL ) which , according to him , corresponded to compensation for the use of the flat from DATE .

In a judgment of DATE ORG dismissed his action , but ORG quashed this judgment on DATE and sent the case back to ORG .

On DATE the latter ordered PERSON to pay CZK CARDINAL,CARDINAL plus PERCENT interest to the applicant while rejecting his claim to order PERSON to vacate the flat under the provision by the applicant of a shelter . It admitted that PERSON had failed to meet some of her duties as a tenant , but it held that the alteration suggested by the applicant would be immoral with respect to her age and health .

Law no . DATE on ORG liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings .

Section PERSON ) as in force until DATE provided that the ORG was liable for damage caused by an irregularity in the conduct of proceedings , including non - compliance with the obligation to perform an act or give a decision within the statutory time - limit . Under section CARDINAL ) a person who had suffered loss on account of such an irregularity was entitled to damages .

On DATE CARDINAL Act no . DATE entered into force amending , inter alia , section CARDINAL(CARDINAL ) which newly provides that the ORG is liable for damage caused by an irregularity in the conduct of proceedings , including non - compliance with the obligation to perform an act or give a decision within the statutory time - limit . If the law does not fix a time - limit for these purposes , it is considered that a violation of the duty to perform the act or give the decision within a reasonable time - limit is also considered as an irregularity in the conduct of proceedings . When using the notion of “ reasonable time ” , the LAW refers to ORG and CARDINAL of the Convention .

Act no . DATE also introduced a new section CARDINALa which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non - compliance with the obligation to perform an act or to adopt a decision within a reasonable time .

Section CARDINAL provides , inter alia , that a claim for damages is subject to the DATE statutory bar after the date on which the victim got knowledge of the damage and the authority liable for it .


The applicant was born in DATE and lives in GPE .

Since DATE the applicant has been receiving an old - age pension . From CARDINAL DATE the amount of her pension was to be determined by the PERSON on Calculating and ORG ( the “ Pensions Law ” ) . LAW introduced a new method of upgrading retirement benefits—“Individual Pensioner Coefficient ” ( “ the ORG ” ) . The ORG , established for the purpose of calculating individual pensions , was the ratio between the individual ’s final wages at retirement and the national average wage , and was meant to maintain a link between a person ’s pension and previous earnings .

The authority in charge of the applicant ’s pension — the ORG of LOC of GPE ( “ the Agency”)—decided that the ORG to be applied to her should be CARDINAL . The applicant considered this decision arbitrary as it conflicted , in her opinion , with LAW . On DATE she brought an action against the ORG .

On DATE , ORG ( “ the ORG ” ) found in the applicant ’s favour . It held that since the defendant had misinterpreted LAW , the applicant ’s pension should be recalculated with an ORG of PERCENT . The ORG appealed against the judgment to ORG ( “ the ORG ” ) . It alleged that ORG had misinterpreted LAW .

While the appeal was pending before ORG , on DATE the ORG requested ORG to re - consider its judgment of DATE due to discovery of new circumstances . The ORG claimed that on DATE ORG ( “ ORG ” ) had passed the Instruction on the Application of Limitations established by LAW ( “ the Instruction ” ) . The LAW specified how LAW should be applied . The ORG contended that since it had been unaware of these circumstances at the moment when the judgment was passed , the judgment should be re - considered .

On DATE the ORG withdrew its application because the judgment of DATE had not by that moment come into force , having been appealed against to ORG .

On DATE ORG upheld the judgment having agreed with the interpretation of the relevant laws given by ORG . The decision of ORG contained no reference to the ORG . The judgment of DATE accordingly came into force as from DATE .

On DATE the ORG submitted a new application for reconsideration of the judgment of DATE due to discovery of new circumstances . This time the ORG claimed , in addition , that on DATE and CARDINAL DATE ORG had confirmed the lawfulness of the Instruction .

On DATE ORG granted the ORG ’s application . The court applied LAW according to which judgments could be re - considered in case of discovery of significant circumstances which were not and could not have been known to the party concerned . The court found that the Instruction , as upheld by ORG , could serve as such a circumstance . No appeal lay against this decision .

After a fresh examination on DATE , ORG rejected the applicant ’s claims in full having applied the ORG . On DATE ORG upheld the judgment on appeal .

The Code of Civil Procedure of DATE ( “ CCivP ” ) in force at the material time :

“ The court of cassation instance shall verify the lawfulness and validity of the judgment of the first - instance court in the scope of the cassation appeal . It may examine new evidence and establish new facts . The court shall examine newly submitted evidence if it considers that the evidence could not have been submitted to the first - instance court ... ”

“ [ Judgments ] which have come into force may be re - considered on the basis of newly - discovered circumstances . The grounds for re - consideration ... shall be :

significant circumstances which were not and could not have been known to the party who applies for re - consideration ; ...

cancellation of a court [ judgment ] or of another authority ’s decision which served as legal basis for the [ judgment ] in question . ”

“ ... [ An application for re - consideration of a [ judgment ] due to discovery of new circumstances ] is to be made within DATE after the discovery of the circumstances . ”

On DATE ORG dismissed a complaint lodged by a number of individuals against the Instruction . ORG found that , contrary to the complaint , ORG had not trespassed its authority when it issued the ORG , and that the ORG ’s interpretation of LAW had been correct . On DATE the Cassation Section of ORG upheld this judgment on appeal .


Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE a criminal investigation was started in respect of the applicant ’s violent behaviour towards her partner . Allegedly , on DATE , she had repeatedly punched him and broken his nose .

On DATE another criminal investigation was started in respect of the applicant ’s allegedly violent behaviour towards her partner on DATE . The CARDINAL proceedings were subsequently joined .

According to the applicant , her partner had physically attacked her and she had acted in self - defence .

On DATE the applicant was admitted to the admissions ward of ORG of ORG .

On DATE the psychiatric clinic filed an application with ORG for the authorisation of the applicant ’s involuntary psychiatric treatment . The application was accompanied by an opinion signed by CARDINAL doctors , according to which the applicant had been suffering from a mental illness for DATE . She had been treated in different hospitals and had been making outpatient visits to psychiatrists . When not in hospital , she had used medicines irregularly . According to the ORG opinion , the applicant was suffering from delusions of grandeur , she was paranoid and her condition had become acute . She had attacked her partner and had been travelling with her DATE child all over GPE , including doing so TIME , and had repeatedly taken the child to a shelter . She had been hospitalised on DATE but as she had refused inpatient treatment , had behaved in a restrained manner and had undertaken to follow outpatient treatment , she had been allowed to leave the hospital on DATE . However , the applicant had failed to undergo adequate treatment . She had become aggressive and , after having attacked her partner again , she had been hospitalised by ambulance . The doctors affirmed that at the time of her involuntary admission to the clinic on DATE the applicant had demonstrated uninhibited and threatening behaviour . Thereafter , she had remained psychotic , had demonstrated signs of delusions of grandeur and had been paranoid . The doctors affirmed in their opinion that the applicant had refused inpatient treatment .

On DATE ORG decided to apply interim measures ( esialgne õiguskaitse ) and authorised the applicant ’s involuntary psychiatric treatment for as long as necessary , but for no longer than DATE . The relevant part of the court ’s decision read as follows :

“ The court , having examined the evidence presented to it , finds that there are circumstances [ warranting ] involuntary emergency psychiatric treatment pursuant to the procedure for the application of interim measures . According to the application of the health care institution and the accompanying letter from the attending physicians , [ the applicant ] was taken to ORG by ambulance on DATE because she had attacked her partner . She had also been roaming around GPE with her DATE child , thereby exhausting [ the child ] and damaging the child ’s health . On admission the patient was noisy , agitated and very angry with her partner : she did not deny having punched him , but argued that she had done so in self - defence . As [ the applicant ’s ] behaviour was threatening and uncontrollable , involuntary emergency psychiatric treatment was applied in respect of her from DATE , as she posed a danger to herself and to those around her . Previously , [ the applicant ] had received inpatient treatment [ at a psychiatric hospital ] in ORG and [ had also been treated ] in DATE in GPE . She had also been making outpatient visits to psychiatrists . Since DATE [ the applicant ] had received treatment at ORG [ of ORG ] on CARDINAL occasions .

At the time of the lodging of the application the patient ’s condition had not improved . [ She ] is agitated and stressed , and does not understand the need for treatment .

Considering [ the applicant ’s ] mental state and the fact that her treatment is not possible by other means , the court finds that there are grounds to apply interim measures pursuant to LAW that is , before hearing the person herself and the other persons [ involved ] , and before appointing a representative for her . Based on the above , involuntary emergency psychiatric treatment shall be authorised in respect of [ the applicant ] for as long as necessary , but for no longer than DATE . ”

On DATE , the decision was sent to the psychiatric clinic by fax .

On DATE , after having taken the above decision , ORG appointed a lawyer to defend the applicant at the ORG ’s expense .

According to the applicant , she gave her consent to undergo treatment and signed a consent form on DATE .

According to the psychiatric clinic , as stated in the reply to the applicant ’s subsequent appeal against ORG decision ( see paragraph CARDINAL below ) , the applicant had said that she consented to the treatment on DATE , after having been informed of ORG decision . She had signed a consent form to that effect which had been placed in her medical file .

On DATE , in the course of the criminal proceedings , the police ordered the applicant ’s forensic psychiatric examination . According to an expert report drawn up on DATE , the applicant suffered from paranoid schizophrenia and , at the time of committing the acts she was accused of ( that is , the alleged assaults on CARDINAL DATE and DATE ) , she had been mentally incompetent . Furthermore , she was unable to participate in the pre - trial investigation , give evidence in court or serve a punishment .

On DATE ORG heard the applicant ’s brother .

On DATE the applicant ’s lawyer and a judge from ORG paid a visit to the applicant in the clinic . According to a note made by the judge in the case file concerning the hearing of the applicant , she was satisfied with her treatment , particularly satisfied with her doctor , and had no complaints .

On DATE , following a telephone call from ORG ( “ the ORG ” ) , the applicant was given a copy of ORG decision of DATE . On DATE , represented by an ORG lawyer , she appealed against the decision , arguing that the court had not reliably established the existence of the circumstances required for involuntary emergency psychiatric care under LAW of LAW ( Psühhiaatrilise abi seadus ) . She also complained that there had been procedural violations , arguing that she had not been heard at the earliest opportunity , that both the hearing and the appointment of a lawyer had been of a merely formal nature and that the principle of equality of arms had not been complied with .

On DATE the psychiatric clinic submitted a reply to the applicant ’s appeal , explaining with reference to her medical record that the conditions for placing her in involuntary psychiatric treatment had been met . It was noted , inter alia , that the applicant ’s consent to her voluntary treatment , given on DATE , had been disregarded as this had not been her true will .

On DATE the applicant ’s treatment in the psychiatric clinic was terminated and she was transferred to the ORG psychiatric hospital where she stayed until DATE . The legal basis for her treatment in GPE was ORG decision of CARDINAL DATE , made in the context of the criminal proceedings . The court found that the applicant had committed the unlawful acts she had been charged with . However , she had been mentally incompetent at the time . Therefore , the criminal proceedings were terminated and the applicant was subjected to coercive psychiatric treatment under LAW ( Karistusseadustik ) .

On DATE , in a written procedure , ORG dismissed the appeal by the applicant against ORG decision of DATE .

The applicant appealed to ORG , reiterating her earlier complaints . In addition , relying on LAW , she complained that she had received ORG decision DATE after it had been adopted and that it had taken DATE for ORG to decide on her appeal .

On DATE ORG dismissed the applicant ’s appeal . It found that the elements required under LAW of LAW to involuntarily admit the applicant to a closed institution had been established by the lower courts which in their decisions had referred to ORG opinions . As regards the DATE delay that had elapsed before ORG had heard the applicant , ORG stated as follows :

“ CARDINAL . In response to the claim in the [ present ] appeal concerning a violation of the second sentence of LAW of LAW the ORG ” ] , the [ ORG ] notes the following . In the event of the admission of a person to a closed institution pursuant to the procedure for the application of interim measures , the person himself or herself , and those close to him or her , have to be heard ( Article CARDINAL § CARDINAL ( CARDINAL ) of the ORG ) . The second sentence of LAW of the ORG allows for an exception from this rule to be made if the hearing may cause significant damage to the health of the person or if the person is clearly not able to express his or her will . According to the first sentence of LAW of the ORG , due to the potential danger resulting from a delay ( the meaning of the provision indicates that reference is made to danger to the person ’s own life or other ORG lives , health or safety ) , interim measures may be applied before hearing the person himself or herself and the other persons , and before appointing a representative for him or her . According to the second sentence of LAW of the ORG , such [ hearing and appointment ] must be performed promptly thereafter . The [ ORG ] considers that the main purpose of LAW ( CARDINAL ) and the second sentence of § MONEY ( CARDINAL ) of the ORG is the need to prevent an unfounded admission of a person to a closed institution or the opportunity to decide on the termination of the admission pursuant to LAW ORG .

In the present case , ORG heard the person concerned DATE after the decision to apply interim measures had been taken . The [ ORG ] finds that in the present case ORG has not given reasons for the DATE delay . Although the second sentence of LAW of the ORG obliges the court to promptly perform certain acts ( hear the person himself or herself and the other persons named in the law , and appoint him or her a representative ) , the meaning of the law is that the person concerned has to be heard in the first place . Since the person concerned , as a rule , will have been admitted to the closed institution by that time , his or her whereabouts will be known to the court . If there were any objective circumstances preventing the court from hearing the person concerned herself , or if there were any circumstances mentioned in the second sentence of LAW of the ORG ( hearing the person concerned would cause significant damage to his or her health , or he or she is clearly not able to express his or her will ) , pertinent reasons should have been set out in the decision . However , the aforementioned violation of the norms of procedure is not so important that it would result in quashing the ruling . ORG has heard the person concerned and , based on the materials in the case file and the rulings made , the courts have not had doubts as to the existence of the prerequisites for the person ’s admission to the closed institution or as to their cessation . ”

LAW ( Psühhiaatrilise abi seadus ) , as in force at the material time , provided :

“ ( CARDINAL ) A person may be admitted to the psychiatric department of a hospital for emergency psychiatric care without the consent of the person or his or her legal representative , or the treatment of a person may be continued regardless of his or her wishes , only if all of the following circumstances exist :

NORP the person has a severe mental disorder which restricts his or her ability to understand or control his or her behaviour ;

NORP without inpatient treatment , the person may endanger the life , health or safety of himself or herself or others due to the mental disorder ; and

NORP other psychiatric care is not sufficient .

( CARDINAL ) ORG treatment may be applied only on the basis of a court ’s decision . Involuntary care may be applied in the absence of a court ’s decision if this is unavoidable for the protection of the person or the public and a court ’s decision can not be obtained sufficiently promptly .

( CARDINAL ) A decision to apply involuntary treatment in the absence of a court ’s decision shall be made by a psychiatrist on the admission of the person to the psychiatric department of the hospital ... promptly after his or her medical examination . ...

( CARDINAL ) ORG treatment on the basis of a decision referred to in subsection CARDINAL may be applied for TIME from the beginning of the involuntary treatment .

“ ( CARDINAL ) A request to apply involuntary treatment and admit a person to a hospital ’s psychiatric department under the procedure for the application of interim measures shall be made to the court in the area where the hospital is located by the hospital ’s chief doctor . ... ”

Admission of persons to closed institutions is dealt with in LAW of LAW ( GPE seadustik ) . As in force at the material time , it provided :

“ Pursuant to the procedure provided in this LAW , the court shall conduct proceedings concerning the following matters based on a petition by the rural municipality or city government of the residence of the person :

NORP the admission of a mentally ill person to a psychiatric hospital or a social welfare institution against his or her will , together with deprivation of the liberty of the person ;

NORP other matters concerning the admission of a person to a closed institution provided by law . ”

“ ( CARDINAL ) Based on the request of the petitioner , the court may [ order the ] admission of a person to a closed institution pursuant to the procedure for the application of interim measures , if :

NORP the conditions of admission to a closed institution are clearly met and a delay is likely to result in danger , and

documents exist concerning the person ’s state of health , and

a representative has been appointed for the person [ concerned ] in the proceedings , and

NORP the person himself or herself , and the persons specified in LAW , have been heard .

( CARDINAL ) ... A person need not be heard if this may cause significant damage to his or her health or if the person is clearly not able to express his or her will .

( CARDINAL ) If a delay could result in danger , the court may apply interim measures even before hearing the person himself or herself and the other persons , and before appointing a representative for him or her . In such a case , such [ hearing and appointment ] must be performed promptly ( viivitamata ) thereafter .

( CARDINAL ) Interim measures may be applied for a period of DATE . After hearing an expert , such term may be extended to DATE . Such term shall also include the time the person is admitted to a closed institution for examination .

( CARDINAL ) In the cases and pursuant to the procedure provided by law , a person may be admitted to a closed institution without a court ruling if this is strictly necessary for the protection of the person himself or herself or the public , and a court ruling can not be obtained promptly enough . In such a case , a petition for obtaining a court ruling shall be submitted no later than during the following DATE . ”

“ ( CARDINAL ) If it is clearly necessary in the interests of the person and the person is not represented by another person with full legal capacity [ to take part in ] civil proceedings , the court shall appoint a representative for the person [ concerned ] in proceedings for the admission of the person to a closed institution .

“ ( CARDINAL ) Before a person is admitted to a closed institution , the person must be heard in person by the court and the court shall explain the course of the proceedings to him or her . If necessary , the court shall hear the person in his or her usual environment . ...

( CARDINAL ) Before a person is admitted to a closed institution , the court shall also hear the opinion of the rural municipality or city government , and the following persons :

NORP the spouse of the person , and other family members who live or have lived together with the person ;

NORP the guardian or caregiver of the person ;

NORP the trustee appointed by the person ;

NORP the head of the closed institution in which the person has been admitted , or an official appointed thereby .

“ ( CARDINAL ) The court shall terminate the admission of a person to a closed institution by a ruling after the prerequisites thereof have ceased to exist . The court may also terminate admission to a closed institution based on an application by the person himself or herself , the petitioner or at the initiative of the court . Before terminating a person ’s admission to a closed institution , the court shall obtain the opinion of the rural municipality or city government .


Violation of Art. 3;Violation of Art. 5-1

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and is now serving his sentence in LOC .

At TIME on DATE the cashier desk of the NORP psychiatric hospital in LOC was robbed by CARDINAL men armed with a submachine gun and a sawn - off shotgun . CARDINAL police patrols arrived at the scene less than TIME later .

NORP The police officers who apprehended the applicant described the events in the following manner . Officer PERSON stated , in particular ( his statement to the investigator is dated DATE ) :

“ I saw CARDINAL men cross the motorway and disappear behind the forest shelter belt ... I started running across the forest to intercept the criminals . At that moment I heard a burst of submachine gun fire . As I emerged out of the forest , I saw CARDINAL men in front of me who later turned out to be PERSON and [ the applicant ] . PERSON wore light - blue jeans and a dark jacket , and [ the applicant ] wore dark tracksuit bottoms . PERSON carried a PERSON submachine gun with no butt , and [ the applicant ] had a sawn - off rifle ... I told the criminals to freeze , drop the guns and offer no resistance . PERSON and [ the applicant ] ... crossed the motorway . Then I shot a few rounds in burst mode in the direction of the criminals but above their heads and told them again to freeze . [ The applicant ] fell on the roadside , and the rifle flew out of his hands ... PERSON turned around , saw the police car and fired several shots in its direction . Then he slipped and fell . I ran up to him , pointed my gun at him and told him to stop resistance and drop the weapon . The muzzle of his submachine gun was pointed at my face , so I kicked the gun out of his hand and used physical force on him in accordance with LAW of LAW ... During that time , [ Officer PERSON ] was trying to tie up [ the applicant ] because he was trying to get up and run away ... During the arrest we had to use physical force on PERSON , [ the applicant ] , and PERSON . because they actively resisted us . As a result , they sustained injuries but I can not say what injuries and where because they were covered in mud . ”

Officer PERSON , in his statement to the investigator made on DATE , testified as follows :

“ CARDINAL men were running QUANTITY ahead of us ... CARDINAL of them – the one who was a bit taller , in light - blue jeans and black jacket DATE turned to us and fired a burst from his submachine gun in our direction ... [ Officer PERSON ] fired CARDINAL shots at the running men ... The men had already crossed to the roadside in the direction of PERSON ... but the man in tracksuit bottoms fell on the roadside and covered his head with his hands . The man in blue jeans and black jacket fired a burst at the police car and started going down towards the forest but slipped and fell on his back ... He pointed his submachine gun at [ Officer PERSON ] who , in turned , pointed his gun at him and told him to drop the weapon . Meanwhile , I ran up to the second man who had fallen on the ground , covered his head with his hands and pushed away his sawn - off rifle ... and I told [ Officer PERSON ] to cuff his hands which he did . I ran up to [ Officer PERSON ] and told the man in blue jeans to throw the gun away . The man reclined on his back and put the gun aside . I kicked it away and , using martial arts , bent his arm behind his back , led him away and put him on the ground where handcuffs were applied to him ... ”

On DATE Officer PERSON testified in the same vein :

“ ... the man in tracksuit bottoms fell on the roadside and covered his head with his hands ... [ Officer PERSON ] and I ran up to the second man who had fallen on the ground and covered his head ; [ Officer PERSON ] kicked aside the sawn - off rifle and told me to use handcuffs on him which I did ... ”

It appears from Officer PERSON . 's statement of DATE that he did not take part in the applicant 's arrest :

“ ... [ Officers B. , PERSON , and S. ] were running after them through the forest . [ The applicant ] fell on the roadside and [ Officer PERSON ] or someone else , I do not remember who , arrested him ... ”

According to the applicant , he had fallen to the ground immediately after the police started firing , and covered his head with his arms . The applicant claimed that a police officer had approached him and kicked him in the head . His head had jerked and his face had hit gravel , chipping CARDINAL teeth .

NORP The applicant and CARDINAL other men were brought to the LOC police station in LOC of LOC .

The applicant submitted that he had been brought to an office on the second floor . CARDINAL riot - squad ( “ OMON ” ) and CARDINAL operational officers had entered the room . They had worn camouflage fatigues and woven hats . The ORG officers had made him kneel down with his hands cuffed behind his back . The officers had kicked and punched him , dealing blows all over his body , including his face and lips . CARDINAL officer had hit him several times with a chair leg , another officer had straightened his right leg out and dealt a strong blow on his knee . He had been told to strip down and an officer had pushed the chair leg into his rectum .

At TIME the investigator PERSON . carried out a visual examination of the applicant 's person in the presence of CARDINAL attesting witnesses and a chemistry specialist . He noted that the applicant 's face was covered with a “ grey substance ” and also with a “ blood - like brown substance ” . CARDINAL of his front teeth was chipped . There were no injuries on the anterior side of his body , but his other side was covered with bruises and haematomas . The applicant had a bruise on his right hip and abrasions on both knees .

On DATE , DATE , the applicant was placed in the temporary detention ward of the NORP district police station . The applicant wrote a complaint to the prosecutor about the beatings .

On DATE the investigator PERSON . refused to institute criminal proceedings into the applicant 's allegations . Referring to the arresting officers PERSON . and PERSON who claimed that the applicant had forcefully resisted the arrest , and to the statements by CARDINAL operational officers who denied that the applicant had been beaten at the police station , the investigator adopted the view that the visible injuries had been caused during the arrest .

At TIME on DATE a medical expert commissioned by the investigator of the NORP district prosecutor 's office Mr M. carried out a detailed examination of the applicant 's injuries . The expert recorded multiple bruises and abrasions on the applicant 's face , lips , left ear , right temple and cheek - bone , back , arms , wrists , right hip and shin , haemorrhage in the sclera of both eyes , and a broken tooth on the upper jaw . According to the expert , those injuries had been caused by CARDINAL blows of a hard blunt object and no earlier than seven days before the examination .

On DATE the applicant was transferred from the NORP district police station to remand centre no . IZ-CARDINAL/CARDINAL in GPE . On arrival at the remand centre he was examined by a doctor . According to the medical certificate of the same date , the applicant had a bruise around his right eye , as well as an abrasion and an injury on his right hip . He told the doctor that he had been beaten at the police station .

On DATE a deputy NORP district prosecutor issued a new decision refusing to institute criminal proceedings into the applicant 's allegations of ill - treatment . The text of the decision was identical , word by word , to that of the decision of DATE .

The applicant complained to a higher prosecutor . On DATE the acting NORP district prosecutor upheld the decisions of CARDINAL DATE and DATE as lawful and justified .

NORP In DATE , counsel for the applicant complained about the ill - treatment to the ORG town prosecutor , the NORP regional prosecutor , ORG , ORG of ORG , ORG , and other authorities . On DATE and DATE and DATE the applicant also sent complaints about ill - treatment to the NORP regional prosecutor .

On DATE a deputy NORP regional prosecutor replied to the applicant 's lawyer that his complaints about ill - treatment had already been examined and that a decision refusing to institute criminal proceedings had been made .

On DATE the applicant complained to the trial court about illtreatment and the authorities ' failure to investigate his allegations . It is unclear whether any formal response was received .

On DATE Officers B. , PERSON , and GPE . and the investigator PERSON . were heard in the witness stand by the trial court . Officer PERSON . stated that the defendants had not offered any resistance during the arrest and that they had been immediately handcuffed . He denied using any physical force during the arrest and pointed out that PERSON had been dirty but had had no visible injuries . Officer PERSON submitted that no force had been employed but he had bent PERSON 's arms and handcuffed him . Officer PERSON confirmed that , once on the ground , the defendants had no longer resisted the arrest and that there was no attempt to punish them after the arrest . Officer PERSON testified that CARDINAL of the defendants had been handcuffed , and the other 's hands had been tied with a belt . The investigator PERSON . said that he was unable to remember any injuries on the defendants .

On DATE the applicant challenged the investigator 's decision of DATE before a court of general jurisdiction . He submitted that the inquiry had been incomplete because the investigator had never interviewed him about the alleged ill - treatment . The statements by the arresting officers had been contradictory : in the criminal proceedings they had denied that he had offered any resistance , whereas the investigator had found that the injuries had been caused during the arrest . The applicant enclosed the medical certificates dated DATE and DATE .

On DATE ORG of GPE dismissed the applicant 's complaint without taking cognisance of the merits . It held , firstly , that the contested decision did not restrict the applicant 's constitutional rights or impede his access to justice and therefore was not amenable to review LAW . Secondly , it stated that an inquiry into the applicant 's allegations of ill - treatment had been carried out in the framework of criminal proceedings against him and therefore concerned the evidence in the criminal case which was pending before the trial court . ORG declared itself incompetent to examine the matters which were being examined by the trial court .

The applicant was not present or represented at the hearing before ORG . He filed an appeal , in which he complained that ORG had not ensured his representation at the hearing and failed to examine the evidence of ill - treatment he had submitted .

On DATE ORG upheld , in summary fashion , ORG judgment . It noted that there had been no violation of the applicant 's right to defence because both he and counsel for him had been informed of the hearing date but had not sought leave to appear .

On DATE ORG of GPE remanded the applicant in custody for an initial DATE period .

On DATE the applicant was charged with an armed robbery of the hospital .

On DATE , DATE , DATE , and DATE the ORG extended the applicant 's detention until DATE . On DATE it granted a further extension until DATE .

On DATE the case against the applicant and his co - defendants was submitted to ORG for trial .

On DATE the applicant complained to the NORP regional prosecutor that , following the expiry of the last detention order on DATE , there was no legal basis for his continued detention . He did not receive a reply .

On DATE the ORG gave a decision fixing the date of the preliminary hearing . The decision did not mention the question of the applicant 's detention .

At the preliminary hearing on CARDINAL May CARDINAL ORG ruled that the bill of indictment was procedurally defective in that it contained incorrect information about the applicant 's personal details . The court decided to return the case to the prosecutor for DATE so that he could remedy these defects . It also rejected applications for release by the applicant and his co - defendants , noting that the preventive measure had been imposed lawfully and that there were no grounds for varying it .

On DATE the prosecutor again sent the case for trial . On CARDINAL DATE the ORG set the opening date for the trial and held that all the defendants should remain in custody , without citing any grounds for the continuation of their detention on remand or setting a time - limit for it .

On DATE the ORG heard the prosecutor 's application for a further extension of the applicant 's detention . The applicant and his co - defendants applied for release , maintaining that the initial DATE period of their detention pending trial had expired on DATE .

ORG held that the DATE period of detention should be calculated from the date when the case had been sent for trial again , that is , from CARDINAL DATE . It extended all the co - defendants ' detention by DATE , citing as the ground the complexity of the case and the large number of victims and witnesses who had not yet been examined . The applicant filed an appeal . He submitted that , if the DATE period were to be calculated from CARDINAL DATE , his detention from DATE to CARDINAL DATE must have been unlawful . On DATE ORG rejected his appeal in summary fashion , endorsing the reasoning of ORG .

On DATE the ORG granted a further extension of the defendants ' detention until DATE . On DATE ORG upheld that decision on an appeal by the applicant .

On DATE the ORG convicted the defendants of CARDINAL robberies and sentenced the applicant to DATE imprisonment in a high - security institution . On DATE ORG upheld the conviction on appeal .

The applicant submitted copies of CARDINAL articles published in the regional press in DATE . The articles described the robbery of the hospital and CARDINAL other robberies imputed to the applicant and his co - defendants . The perpetrators were described as “ jackals from LOC , “ robbers ” or a “ gang ” . The same photograph accompanied all CARDINAL articles ; the face and upper body of the person on the photograph were covered with a jacket .

The investigator 's or prosecutor 's decision refusing institution of criminal proceedings or discontinuing criminal proceedings , as well as any other acts capable of impairing the constitutional rights or freedoms of parties to criminal proceedings or impeding citizens ' access to justice , are amenable to judicial review by the court located at the place where the pre - trial investigation is being carried out ( LAW ) .


Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to length of proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE the applicants ' house in the village of GPE ( GPE ) was destroyed by an explosion .

On DATE the applicants brought an action for damages against GPE in ORG ( PERSON ) .

A hearing was held on DATE .

On CARDINAL DATE the applicants asked the court to request ORG FAC uprava ORG ) to submit their report concerning the events that had led to the destruction of the applicants ' property . On DATE the court requested the report .

On DATE the NORP parliament introduced an amendment to LAW which provided that all proceedings concerning actions in respect of damage resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts could not be sought . So far , the NORP authorities have not enacted any new legislation regulating the matter .

It appears that several constitutional claims were lodged , though not by the applicants in the present case , challenging the above legislation . ORG has not yet reached any decision .

On DATE ORG stayed the proceedings in accordance with the above legislation . No appeal was lodged against that decision .

On DATE the applicants ' garage and the adjacent storage room and a meat - curing shed in Bjelovar were destroyed , also as a result of an explosion .

On DATE the applicants brought an action for damages against GPE in ORG .

A hearing was held on DATE . The court requested ORG to submit their report concerning the events that had led to the destruction of the applicants ' property .

On DATE the court stayed the proceedings . No appeal was lodged against that decision .

The relevant part of LAW ( Zakon o obveznim odnosima ) reads as follows :

“ Responsibility for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from violent acts or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

The relevant parts of the LAW amending LAW ( Zakon o izmjenama i dopunama PERSON o obveznim odnosima – Official Gazette no . CARDINAL/CARDINAL ) read as follows :

“ Section CARDINAL of LAW ( Official Gazette nos . CARDINAL , CARDINAL and DATE ) is repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in the first paragraph of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts . ”

The relevant part of LAW provides :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE , DATE and DATE respectively .

On DATE and DATE respectively the applicants were taken into police custody by police officers from ORG of ORG .

On DATE the applicants were brought before the public prosecutor at ORG and subsequently before the investigating judge . After taking their statements , the investigating judge ordered that the applicants be placed in detention on remand .

NORP In an indictment dated DATE , the public prosecutor at ORG initiated criminal proceedings against the applicants and accused them of being members of an illegal armed organisation , namely the TIKP ( the Revolutionary Communists’ Union of GPE ) . The applicants were further accused of carrying out activities on behalf of the PERSON , such as taking part in demonstrations on CARDINAL May and DATE ( Women ’s Day ) during which they had chanted slogans and distributed TIKB leaflets . The public prosecutor asked the court to convict the applicants pursuant to LAW .

On DATE ORG , composed of CARDINAL civilian judges and a military judge , held that there was insufficient evidence to conclude that the applicants were members of the TIKP , but found them guilty under LAW for aiding and abetting an illegal organisation . The first , second and third applicants were sentenced to DATE and CARDINAL months’ imprisonment , while the second applicant was sentenced to DATE and CARDINAL months’ imprisonment .

The applicants appealed . The chief public prosecutor at ORG submitted his opinion on the merits of the appeal on DATE . This opinion was not served on the applicants , but read out during the hearing which took place on DATE .

On DATE ORG , upholding ORG reasoning and assessment of evidence , dismissed the applicants’ request for appeal . The decision was pronounced on DATE .

NORP The applicants’ request for rectification was further rejected on DATE .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


The applicants , PERSON and PERSON are NORP nationals , who were born in DATE and DATE respectively and live in GPE and PERSON . They were represented before the ORG by Mr A. ORG , a lawyer practising in GPE . The respondent Government were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

In DATE the applicants concluded a sales contract with the A. company in respect of real estate situated in GPE .

On DATE the applicants requested to be entered in the land register as owners .

On DATE bankruptcy proceedings were opened as regards the A. company .

On DATE ORG ( Bezirksgericht ) ordered the entry of the applicants as owners in the land register . Consequently , the applicants were entered in the land register .

On DATE the ORG ( PERSON ) quashed this decision upon the appeal of the A. company 's bankruptcy trustee . It noted that a chair lift was situated on the real estate . It therefore qualified as a railway facility within the meaning of LAW of LAW ( Eisenbahngesetz ) and no entry could be made in the land register until the sales contract had been approved by the competent authority under LAW . The applicants did not appeal to ORG against this decision .

Thereupon , on DATE ORG amended the land register , cancelling the entry of the applicants as owners .

On DATE the A. company , represented by its bankruptcy trustee , requested ORG ( ORG ) to approve the sales contract .

On DATE ORG refused the request , finding that due to the sales contract the ORG company could no longer fulfil the legal obligations resulting from its licence to run the chair lift on the real estate at issue . Therefore , the transaction ran counter to the public interest . This decision was served on the A. company but , erroneously , not on the applicants . On DATE the A. company filed an appeal .

On DATE the Federal Minister of ORG ( FAC öffentliche ORG ) dismissed the ORG company 's appeal . This decision was served on the applicants .

Subsequently , on DATE , the applicants filed a complaint with ORG ( Verwaltungsgerichtshof ) . In these and the subsequent proceedings the applicants were represented by counsel .

On DATE ORG rejected the applicants ' complaint . It noted that the applicants had not appealed against ORG decision of DATE and had therefore not exhausted available remedies .

On DATE the second applicant requested ORG to approve the sales contract .

On DATE the ORG dismissed the second applicant 's request .

On DATE the Federal Minister for Science , Traffic and Art ( ORG , ORG ) rejected the second applicant 's appeal . Subsequently , the latter lodged a complaint with ORG .

On DATE ORG refused to deal with the second applicant 's complaint for lack of prospects of success and transmitted the case to ORG .

On DATE the second applicant supplemented his complaint to ORG .

On DATE ORG dismissed the second applicant 's complaint . Noting that the Regional Governor 's decision of DATE had become binding in respect of the A. company , it found that a separate request for approval of the sales contract by the second applicant did not justify a review of the case . However , according to the relevant provision of ORG ( see domestic law part below ) , the second applicant had been party to the above proceedings . He had been “ omitted ” in the proceedings , as the Regional Governor 's decision had not been served on him . In accordance with the relevant case - law , it was up to him to request that a copy of that decision be served on him , so as to enable him to file an appeal against it .

On DATE , upon the applicants ' requests made in DATE , they were served the Regional Governor 's decision of DATE .

On DATE the Federal Minister for Science and Traffic ( ORG ) dismissed the applicants ' appeals .

On DATE and on DATE , respectively , the applicants filed a complaint with ORG ) .

On DATE the applicants supplemented their complaints .

On DATE ORG declined to deal with the applicants ' complaints and transmitted the case to ORG .

On DATE the applicants supplemented their complaint with ORG . On DATE ORG instituted preliminary proceedings . On DATE the applicants submitted supplementary observations . On DATE the Federal Minister filed his comments . On DATE the first applicant filed further submissions . On DATE the Federal Minister commented on these statements .

On DATE ORG quashed the Federal Minister 's decision of DATE . It noted , in particular , that the Minister had wrongly applied LAW of LAW . The transaction did not run counter to public interest as the bankruptcy trustee of the A. company had returned the licence for operating the chair lift in DATE and the real estate at issue did therefore no longer qualify as a railway facility .

On DATE the Federal Minister for Traffic , ORG ( ORG , ORG ) quashed ORG decision of DATE .

In the meantime , the relevant legislation was changed and an approval of the transaction under LAW was no longer required at all .

On DATE the applicants requested ORG to enter the contract into the land register .

On DATE ORG dismissed the applicants ' request .

On DATE the ORG dismissed the applicants ' appeal . It noted that the sales contract had not been approved under LAW before the expiry of the validity of the rank of creditors in the bankruptcy proceedings concerning the A. company . Therefore , the real estate at issue had fallen into the bankrupt 's assets and had been sold by the bankruptcy trustee .

On DATE ( served on DATE ) ORG rejected the applicants ' extraordinary appeal on points of law .

Under LAW ( Allgemeines Bürgerliches Gesetzbuch ) the procedure for the acquisition of real property is the entry of the acquisition title in the land register ( see also LAW ) .

Under LAW can not proceed to enter a transaction in the land register until the transaction which is subject to approval has been approved by the competent authority .

NORP Under the LAW and CARDINAL of LAW ( Eisenbahngesetz ) as in force at the relevant time , a sales contract concerning a train , a railway or real property qualified as railway facility was subject to approval by the competent authority . A sales contract without this approval was null and void ( § CARDINAL ) .

The procedure concerning the approval was governed by LAW DATE ( Allgemeines Verwaltungsverfahrens - gesetz ) , section CARDINAL of which reads as follows :

" Persons who ... take part in the proceedings on the basis of a right granted to them or an interest protected by the law ... are parties [ to the proceedings ] . "

According to the case - law of ORG a person is regarded as a party whenever an administrative measure has a direct bearing on his or her personal rights .

Section CARDINAL of LAW provides that decisions of administrative authorities can be issued either by oral announcement or in a written form . According to the constant doctrine and the case - law of ORG , a decision of an administrative authority does not produce any legal effects on a party to which it had not been notified ( see PERSON , ORG , third edition , pp . CARDINAL , CARDINAL , with reference to ORG GPE CARDINALA/CARDINAL , DATE , CARDINAL , CARDINALA/CARDINAL , CARDINAL and GPE , DATE ORG ) . An “ omitted party ” ( übergangene ORG ) can , therefore , in principle not take any legal remedies against the decision at issue . This party can , however , request a declaratory decision concerning its standing as a party in the proceedings at issue or request the service of the decision and file an appeal once the decision had been served upon it . ( see ORG , PERSON , cited above , p. CARDINAL with reference to ORG FAC ) .

By virtue of LAW ( Bundesverfassungsgesetz ) , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful . Pursuant to LAW the application may be brought by any person claiming a violation of his or her rights by the administrative decision , provided that this person has exhausted all other remedies .