The applicant , Mr PERSON , is a GPE national , born in DATE and currently in prison in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

In DATE the applicant was convicted of rape , indecent assault , kidnapping and threats to kill in relation to CARDINAL girls , aged QUANTITY and CARDINAL respectively . He was sentenced to DATE imprisonment . In DATE he was again imprisoned having been found guilty of CARDINAL counts of indecent assault .

On DATE the applicant was convicted by ORG on CARDINAL counts of rape and CARDINAL counts of indecent assault concerning CARDINAL male minors , CARDINAL brothers aged QUANTITY and DATE . He was further convicted on CARDINAL charge , and he pleaded guilty to CARDINAL charges , of taking indecent photographs of CARDINAL of those minors .

He was sentenced to life imprisonment pursuant to section CARDINAL of ORG in relation to the rape conviction .

In that regard , the trial judge stated inter alia :

“ the evidence and your demeanour in the witness box throughout this case demonstrate that you are a scheming , manipulative and highly plausible paedophile with a quite appalling record behind you ... You are in my view a dangerous man when at large where young children of either sex are involved . Under LAW ... I have no alternative but to pass an automatic life sentence , which I do with no lack of conviction or enthusiasm . ”

The applicant was also sentenced to CARDINAL years’ imprisonment for each indecent assault conviction , DATE being concurrent to each other but consecutive to the rape sentence . For each of the indecent photograph convictions , he was sentenced to CARDINAL months’ imprisonment , concurrent with each other and with the indecent assault sentences .

In fixing the tariff in respect of the life sentence , the trial judge made it clear that if he had been required to set a determinate sentence , he would have chosen CARDINAL years’ imprisonment , made up of DATE in respect of the rape offences and DATE to run consecutively in respect of the indecent assault offences . He explained that the period of DATE had been chosen in view of :

“ the aggravating features , that is to say your previous convictions and indeed the rest of your track record , the breach of trust , the number of victims here , their youth , the frequency of the acts and the nature of them . ”

The trial judge accordingly fixed the tariff at DATE imprisonment since the applicant would normally have had to serve CARDINAL of any determinate sentence . Taking account of the period already spent in custody pending trial ( DATE ) , the minimum period to be served by the applicant was fixed at a further DATE and DATE . The trial judge stated that in matters of parole :

“ ... my present feeling is that great care should be exercised . I do not doubt that it always is , but in this case particular care should be exercised before you are let loose on the community . ”

The applicant applied for leave to appeal against conviction and sentence . Concerning his conviction , he argued that the judge was wrong to refuse to sever the indictment so that the jury would not be aware of the counts of the taking of photographs to which he had pleaded guilty as this was likely to have an overwhelmingly prejudicial effect on the jury so as to render a fair trial impossible . He also argued that the judge had been wrong to direct that the jury could consider the evidence of CARDINAL of the boys as probative in respect of the evidence of the other . Concerning his sentence , he argued that the life sentence was imposed in breach of ORG CARDINAL and CARDINAL of the Convention .

On DATE leave to appeal was refused by a single judge .

On DATE ORG dismissed his renewed application for leave to appeal against sentence and conviction . On the grounds of appeal against conviction , they found no point of merit , there being no ground to criticise the refusal to sever the indictment and the judge ’s direction being clear and appropriate concerning the relevance of the photographs and the supportive value of the PERSON evidence . As regarded the applicant ’s sentence , it stated that it had no doubt that this was a case which called for severe sentences . It reiterated the trial judge ’s remarks and stated :

“ So far as that is concerned , the applicant contends that the imposition of an automatic life sentence , pursuant to the then current LAW was contrary to the Articles CARDINAL and CARDINAL of the LAW in that it was arbitrary to impose that sentence without any specific assessment of whether the accused is dangerous . Of course that is wholly wrong . The sentencing remarks just quoted clearly indicated the judge ’s view as to the dangerousness of this particular applicant .

It is not the view of this ORG that these automatic life sentences were obviously contrary to LAW , the contentions are not supported by authority and are not supportable by authority and are not sustainable .

In any event , within the context of this case , as the Single Judge observed , a discretionary life sentence would not have been excessive in any event . ”

The applicant applied to ORG for a review of his conviction and sentence . In a decision dated DATE , the ORG found no grounds for referring his case to ORG on either sentence or conviction .

The DATE Act came into force on DATE . Section CARDINAL(CARDINAL ) and ( CARDINAL ) provide as follows :

“ ( CARDINAL ) This section applies where -

( a ) a person is convicted of a serious offence committed after the commencement of this section ; and

( b ) at the time when that offence was committed , he was DATE or over and had been convicted in any part of GPE of another serious offence .

( CARDINAL ) The court shall impose a life sentence , that is to say -

( a ) where the person is ORG over , a sentence of imprisonment for life ; ( b ) where he is DATE , a sentence of custody for life under section CARDINAL(CARDINAL ) of LAW DATE ,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so .

( CARDINAL ) Where the court does not impose a life sentence , it shall state in open court that it is of that opinion and what the exceptional circumstances are . ”

Section CARDINAL(CARDINAL ) listed the offences considered “ serious ” for the purposes of the section . The offences listed in section CARDINAL(CARDINAL ) were already punishable by a maximum of life imprisonment and they include rape .

Sections CARDINAL and CARDINAL of the DATE Act impose mandatory penalties of DATE for a third conviction on class A drug trafficking offences and domestic burglaries , respectively . Both sections oblige the court to impose the fixed sentence when the statutory conditions are fulfilled except :

“ where the court is of the opinion that there are specific circumstances which --

( a ) NORP relate to any of the offences or to the offender ; and

( b ) would make the prescribed custodial sentence unjust in all the circumstances . ”

In this case , decided after the entry into force of LAW DATE , ORG adopted a more flexible interpretation of the words “ exceptional circumstances ” in section QUANTITY of LAW .

The appellants contended that section CARDINAL was incompatible with , inter alia , Articles CARDINAL and CARDINAL of the Convention . ORG agreed that the manner of interpreting section DATE meant that that section could clearly operate in a disproportionate manner , it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence .

It considered that the problem would disappear if the words “ exceptional circumstances ” in section CARDINAL were construed in a manner which accorded with the policy of ORG in adopting the section . That policy was to protect the public . Accordingly , a finding that an offender does not constitute a significant risk to the public should be considered to constitute “ exceptional circumstances ” which approach , ORG considered , would accord with parliamentary intent and with the provisions of the Convention .


András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Riza Türmen

The applicant was born in DATE and lives in GPE .

At the time of the events the applicant was employed as an electrician in a private company .

On DATE the scaffolding on which the applicant was working collapsed and resulted in the applicant ’s total disability .

On DATE the applicant brought an action for damages in ORG .

On DATE ORG partially upheld the applicant ’s claims and awarded MONEY ( TRL ) for pecuniary damage and CARDINAL for non - pecuniary damage , plus interest at the statutory rate , running from the date of the incident .

The defendant appealed .

On DATE ORG quashed the judgment and remitted the case to ORG . It found that ORG had incorrectly calculated the amount of compensation and interest .

ORG rendered its second judgment on CARDINAL DATE , awarding the same amounts as before .

On DATE ORG quashed the judgment . It held that , although ORG had decided to conform to ORG previous decision , it had reached the same conclusion as before .

On DATE the applicant lodged an additional claim with the same court , requesting further damages . These CARDINAL cases were later joined .

ORG issued its third judgment on DATE . It upheld the applicant ’s additional claim lodged on DATE and granted TRL CARDINAL for pecuniary damage and CARDINAL for non - pecuniary damage , plus interest at the statutory rate , running from the date of the judgment and from the date of the incident respectively .

The defendant appealed .

On DATE ORG quashed ORG decision for the third time on the same ground as before .

On DATE ORG issued its fourth judgment , dismissing the applicant ’s pecuniary damage claims as a whole . In its reasoning , the court held that ORG assessment method was inapplicable to the incident . It also pointed out that its previous decision regarding the applicant ’s non - pecuniary damage claims had become final on DATE as the defendant had not challenged it .

The applicant appealed .

On DATE ORG quashed the first instance court ’s decision on the ground that it had not calculated the applicant ’s damage in compliance with the principles stated in its judgment of CARDINAL DATE .

On DATE ORG awarded the applicant GPE GPE for pecuniary damage plus interest at the statutory rate , running from the date of the judgment .

Both parties appealed .

On DATE ORG quashed ORG judgment for the fifth time , criticising the method of calculation applied by ORG .

On DATE ORG awarded the applicant CARDINAL,CARDINAL GPE ( YTL ) for his pecuniary damage claims , plus interest at the statutory rate , running from the date of the judgment .

NORP The applicant appealed .

On DATE ORG upheld ORG judgment in full without giving any reasons of its own .


Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies)

Mr PERSON , a NORP national , is a retired journalist . He currently lives in GPE .

Before the material time , he had been convicted by ORG of forgery , uttering and fraud , in DATE , and by ORG for insulting the authorities , in DATE . Furthermore , in DATE and CARDINAL eight separate sets of proceedings were brought against him in ORG for insulting a public officer , fraud , defamation , misappropriation , forgery , uttering and causing bodily harm . All these proceedings took place in the applicant ’s absence ; CARDINAL sets of them are in issue before the ORG .

On DATE in a telegram sent to several public figures , including the NORP President and various ministers , and to the press , the applicant described certain members of the public prosecutor ’s office and ORG as " collaborators of the PERSON regime " , " chief torturers " , " admirers of PERSON " , " perjurers " , " agents of death " , " fabricators of incriminating evidence against NORP " , " justicemongers " and " trainers of fascists " . The telegram , which was signed by PERSON , also gave his professional address at CARDINAL FAC , GPE .

An investigating judge at ORG summoned Mr PERSON for questioning in connection with an investigation he had started in respect of him . The court bailiff took the summons to CARDINAL Panepistimiou Street and as he did not find the applicant there , gave it to Mr PERSON , a lawyer who had his office at the same address . The applicant confirmed by telegram that he had been informed of the summons , but he failed to appear .

On CARDINAL DATE a police officer served on him a summons to appear before ORG to answer a charge of insulting a public officer . Since he was unable to serve it on the applicant in person , he gave the document to PERSON , CARDINAL of Mr PERSON ’s colleagues ( pursuant to LAW ) ; the applicant did not appear at the hearing on DATE .

After ruling that the defendant had been properly summoned , ORG decided to hear the case and to give judgment " as if [ the defendant ] were present " ( under LAW para . CARDINAL of LAW ) . After CARDINAL prosecution witnesses and the prosecutor had been heard , Mr PERSON was convicted and sentenced to CARDINAL years’ imprisonment . The judgment ( no . CARDINAL ) was filed at FAC on DATE , as the authorities regarded the applicant as having no known address ( Article CARDINAL para . CARDINAL of LAW ) .

On DATE an investigating judge at ORG decided to interview the applicant about a complaint lodged by a PERSON . The summons was taken to CARDINAL Panepistimiou Street and again given to PERSON ; Mr PERSON failed to appear .

On DATE PERSON , an employee of the applicant ’s , informed the investigating judge that Mr PERSON had been in GPE since DATE and gave him his address .

On DATE the public prosecutor ’s office served a summons to appear before ORG at the applicant ’s professional address in GPE ; it was handed over to PERSON ( pursuant to LAW previously cited ) .

On DATE ORG decided ( under LAW para . CARDINAL previously cited ) to proceed with the trial notwithstanding the absence of the defendant , who had , it ruled , been properly summoned . It imposed a sentence of CARDINAL months’ imprisonment , which it converted into a fine . The judgment ( no . CARDINAL ) was lodged on DATE at FAC on the ground that neither the prosecuting authority nor the authority responsible for effecting service knew Mr PERSON ’s address .

PERSON having made a second complaint , the applicant was charged with forgery and uttering in that he had altered the wording of a cheque he had received from her and had attempted to cash it .

On DATE a police officer delivered the summons to appear before ORG to CARDINAL Panepistimiou Street . When he found that the applicant was " unknown " at that address , had not communicated any other to the public prosecutor ’s office and had no relatives on whom service could be effected , he lodged the summons at FAC ( pursuant to Article CARDINAL para . CARDINAL previously cited ) .

ORG proceeded despite Mr PERSON ’s absence , and on DATE he was convicted and given an immediate custodial sentence of DATE . The judgment ( no . CARDINAL ) was delivered to FAC ( pursuant to Article CARDINAL para . CARDINAL previously cited ) .

Mr GPE states that he left GPE in DATE but he does not give the exact date of his departure . He went to GPE and then GPE , where he worked until DATE as a journalist . Following CARDINAL convictions by ORG , he went to GPE and then to GPE , where he was arrested on DATE and extradited to GPE on DATE . He was imprisoned at PERSON and later at GPE and was conditionally released on DATE .

While he was serving his sentence , he appealed against the CARDINAL judgments of ORG ( see paragraphs DATE and CARDINAL above ) . He complained that he had not been duly summoned and that he had therefore been unable to defend himself against the charges against him ; he also complained that service of the judgments had been irregular .

On DATE Mr Stamoulakatos appealed to ORG against judgment no . DATE ( see paragraph CARDINAL above ) .

In a judgment of CARDINAL DATE ORG declared the appeal inadmissible for the following reasons :

The judgment was served on him on DATE , as appears from the record of service made by the bailiff PERSON . He appealed on DATE , after the statutory time - limit , without indicating in his pleadings any valid reason for appealing out of time ;

The evidence discloses no circumstance that would justify a late appeal , and the court is not convinced that the defendant was prevented by force majeure from lodging an appeal in time . The appeal must consequently be declared inadmissible since , irrespective of the fact that the defendant has not stated what his known address was at the time of service or why he did not appeal in time , it has not been proved at all that the impugned service was void . It has been established , on the contrary , that it was lawful , as the prosecuting authorities did not know where the defendant lived . The allegation of forgery in respect of the record of service is wholly unfounded and ... an investigation of the point would clearly be devoid of purpose since , at all events , the defendant was aware of his conviction from DATE , when he was extradited to GPE .

The applicant lodged an appeal on points of law , which ORG dismissed on CARDINAL DATE , holding that ORG had provided sufficient reasons for its decision .

On DATE Mr PERSON made an application for a retrial ( aitissi epanalipseos tis diadikassias ) under LAW to ORG of ORG . He relied on DATE para . CARDINAL of Protocol No . CARDINAL ( PCARDINAL - CARDINAL - CARDINAL ) to the LAW and asked for judgment no . DATE ( see paragraph CARDINAL above ) to be set aside .

ORG dismissed the application on DATE . It noted that the impugned summons had been taken to Mr PERSON ’s professional address , which was known to the authorities at the time , and handed to CARDINAL of his colleagues . The trial in absentia which followed was therefore in no way contrary to LAW judgment of CARDINAL DATE in the NORP v. GPE case ( Series A no . CARDINAL ) .

The applicant appealed on points of law against that decision on CARDINAL DATE , but ORG dismissed the appeal on DATE for failure to comply with the DATE time - limit laid down in Article CARDINAL para . CARDINAL of the Code of Criminal Procedure .

On DATE ORG declared an appeal by the applicant against judgment no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) inadmissible . It said , inter alia :

No evidence has been adduced that justifies appealing out of time and the ORG is not persuaded that the defendant was prevented by force majeure from appealing before the statutory time - limit . More particularly , he alleged that on DATE his address was not unknown and that service of the judgment appealed against , effected according to the rules applicable to persons whose address is unknown , was not valid ; in the alternative , he submitted that it was not valid because it was lodged at FAC and not at the town hall of NORP PERSON . As to this contention , the court notes the following : from the record of service of DATE it appears that the officer responsible for service went to the defendant ’s last known address , namely CARDINAL FAC , GPE , and that finding neither the defendant nor his wife nor any of his relatives , he lodged the document to be served with the mayor of GPE , who displayed it on DATE in the appropriate place ... . It should be emphasised that the fact that the defendant formerly lived at CARDINAL Panepistimiou Street ... had been certified at the investigation stage and that this was why - as was disclosed in the record of service of the summons of CARDINAL DATE to appear before the investigating judge - service was effected at that address and on the person who shared that address with the defendant . It should furthermore be noted that the offices of the newspaper ORG were at that address , its headquarters - according to its issue of DATE - being in GPE , where the defendant was its correspondent ... . On DATE [ the defendant ] , in a complaint to the GPE public prosecutor ’s office , confirmed that he lived in GPE ( without giving any address ) and that he was temporarily living in GPE , at CARDINAL Summer Place , GPE SWCARDINAL , GPE . DATE before the impugned service ... , i.e. on DATE , ORG had drawn up a document giving the defendant ’s address ( evidently supplied by him ) as CARDINAL FAC , ORG SWCARDINAL . No other evidence was adduced concerning the defendant ’s permanent or temporary address ... during the period from DATE ... to CARDINAL DATE . Evidence was , on the other hand , brought from the period after [ this latter date ] ( such as the documents from FAC in GPE ... , which give the defendant ’s address as CARDINAL PERSON , GPE , ORG CARDINALTF , GPE , and an envelope from ORG date - stamped DATE and addressed to the applicant at CARDINAL , FAC , PERSON ) ; however , since this evidence refers to a period well after DATE , it does not suffice to establish that the defendant had a known address , in particular one known to the authorities responsible for service and for the prosecution . All the aforementioned evidence shows ... that on DATE the defendant ’s address really was unknown : he had left CARDINAL Panepistimiou Street in GPE , his known address until then , and was travelling between his ( unknown ) address in GPE and his temporary addresses in GPE , the nearest of which in time to DATE FAC , ORG SWCARDINAL - was known neither to the NORP prosecuting authority nor to the authority responsible for service .

The defendant ’s submission must therefore be rejected as being ill - founded .

Since nothing proves that the appeal was brought out of time owing to force majeure ( which the notice of appeal does not even claim ) ... , the appeal must be declared inadmissible .

Mr GPE brought an appeal on points of law , which ORG dismissed on DATE . Having been summoned to appear while he was serving his sentence , he did not attend .

On DATE he made an application for a retrial to ORG of ORG . He relied on DATE para . CARDINAL of Protocol No . CARDINAL ( PCARDINAL - CARDINAL - CARDINAL ) to the LAW and asked for judgment no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) to be set aside .

On DATE ORG dismissed the application on the ground that the file disclosed no procedural defect and that the trial in absentia had not in any way been contrary to LAW . It noted that the summons to appear before ORG , which had been delivered to the address at which the applicant submitted that it should have been served on him at the time , had been given to PERSON pursuant to LAW para . CARDINAL of the Code of Criminal Procedure . Furthermore , NORP national law did not oblige the court to assign counsel officially to defend a person accused of a criminal offence . Lastly , Mr PERSON had not pleaded any impediment such as would have justified adjourning the hearing ( LAW ) .

On DATE the applicant appealed on points of law against that judgment , but on DATE ORG dismissed the appeal for failure to comply with the DATE time - limit laid down in Article CARDINAL para . CARDINAL of the Code of Criminal Procedure .

On DATE the applicant lodged an appeal against judgment no . CARDINAL ( see paragraph CARDINAL above ) and made an application ( under LAW ) to have the judgment set aside . He withdrew the appeal on DATE . On DATE ORG ruled that the application was admissible but dismissed it as the applicant had not adduced any evidence to prove that he had a known address at the material time .

On DATE ORG held that an appeal on points of law brought by the applicant was barred by Article CARDINAL para . CARDINAL of LAW .

On DATE Mr PERSON applied to ORG of ORG for a retrial in respect of judgment no . CARDINAL .

On DATE , after considering the file forwarded by ORG , ORG noted that the applicant had properly been summoned as a person whose address was unknown ; that it had proved impossible to reach him at the address at which , by his own account , he was to be found ; that he had not notified the authorities of any change of address and the file did not disclose the existence of any relatives who could accept service ; and that after leaving his known address , he travelled from place to place , which made it impossible to pinpoint his whereabouts . Accordingly , the proceedings ending in his conviction were not in any way defective and the trial in absentia was contrary neither to LAW nor to the PERSON judgment . As to the new facts relied on by Mr PERSON in support of his application for a retrial , ORG concluded that , far from undermining the lower court ’s judgment , they confirmed its soundness .

On DATE Mr PERSON appealed on points of law against that judgment , but the appeal was dismissed by ORG on DATE for failure to comply with the DATE time - limit laid down in Article CARDINAL para . CARDINAL of the Code of Criminal Procedure .


Remainder inadmissible;No violation of Art. 6-1

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in the city of GPE .

On DATE the applicant issued her husband , PERSON with a power of attorney ( registered by a notary public under no . DATE ) which provided as follows :

“ I , PERSON , ... hereby authorise Mr PERSON , ... to act on my behalf ... in civil and criminal proceedings before all judicial bodies , with all the rights which the law confers on a plaintiff , defendant , third party or victim , including the rights to enter into a friendly settlement , to accept or to withdraw the claim in full or in part , to change the grounds of the claim , to lodge appeal against a judgment , to receive a writ of execution with the right to receive property and money , to sign documents on my behalf and to perform any other actions related to the fulfilment of this authority . ”

On an unspecified date the applicant left PERSON , where both she and PERSON had lived , and moved to GPE .

On DATE PERSON lodged an action on the applicant ’s behalf against a private company . He claimed that the company had overcharged the applicant ’s telephone communications and sought compensation of pecuniary and non - pecuniary damage . He enclosed the power of attorney mentioned above .

On DATE ORG disallowed the action with reference to LAW and stating as follows :

“ PERSON statement of claim is signed by her proxy , PERSON . However , the right to lodge an action with a court ( the right to sign the statement of claim ) is not listed in the submitted copy of the power of attorney ; this suggests that PERSON does not have the right to lodge a claim on behalf of Ms GPE . ”

On DATE ORG upheld that decision . It found that the applicant had not authorised PERSON to sign a statement of claim and to lodge it on her behalf .

On DATE PERSON lodged on behalf of the applicant an action seeking to void a contract for the sale of shares between her and a private company . He enclosed a copy of the power of attorney no . DATE .

On DATE ORG refused to entertain the action . It reasoned as follows :

“ On DATE the ORG received the statement of claim on behalf of PERSON ... The statement was lodged with the court and signed by PERSON on behalf of the plaintiff . However , the power of attorney no . CARDINAL of DATE produced to the court does not entitle PERSON to lodge an action on behalf of PERSON .

Thus , the judge disallows the action under LAW of LAW , as the statement of claim on behalf of the person concerned was lodged by a person who did not have the right [ to do so ] . ”

On DATE ORG upheld that decision and found as follows :

“ Under LAW a judge disallows an action if the action was lodged on behalf of the person concerned by a person who did not have the right to pursue the case .

As the power of attorney issued by PERSON to PERSON did not list the right of the representative to lodge statements of claim on behalf of the represented person , the judge lawfully disallowed the action . ”

DATE ( “ the DATE Code ” , as in force at the material time ) provided :

“ ORG may pursue their cases in court in person or through representatives ... ”

“ The powers of the representative should be set down in the power of attorney issued and formalised in accordance with the law ... ”

“ The authority to pursue a case in court entitles the representative to perform on behalf of the client all procedural acts , with the exception of seeking the transfer of the case to a LAW or an arbitration court ; withdrawing claims in full or in part ; admitting a claim ; varying the grounds of a claim ; entering into a friendly settlement ; transferring the power of attorney ; lodging an appeal against a judgment ; submitting the enforcement writ for execution ; obtaining the awarded property or money . The representative ’s authority to perform any of the acts listed in this LAW should be explicitly stated in the power of attorney issued by the client . ”

“ The judge decides ... whether to accept for examination the statement of claim in a civil case .

The judge refuses to accept a statement of claim for examination ...

CARDINAL ) if it was submitted on behalf of the interested party by a person not empowered to pursue the case ...

The judge ’s refusal to accept the statement of claim for examination on the grounds provided by paragraphs ... and CARDINAL ... does not prevent [ the party ] from reapplying to the court on the same ground , provided that the indicated shortcoming is rectified ... ”

DATE Code of Civil Procedure ( “ the DATE Code ” ) which replaced LAW from DATE provides :

“ The representative has the authority to perform on behalf of his client all procedural actions . However , the representative ’s authority to sign the statement of claim ; to lodge it with a court ; to seek transfer of the dispute to a court of arbitration ; to lodge a counter - claim ; to withdraw the claims in full or in part ... to enter in a friendly settlement ... should be specifically listed in the power of attorney issued by the client . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in NORP .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant made CARDINAL requests that a date be set for a hearing .

DATE and DATE he lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed a medical expert . The court also sought an additional opinion from the appointed expert .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court dismissed the ORG ’s appeal , allowed in part the applicant ’s appeal , and increased the amount of the costs and expenses awarded . The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the court rejected the appeal .


CASE OF RISTESKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE she complained to her employer about her treatment at work .

On DATE the employer dismissed the applicant , considering her complaint as a request for resignation . The applicant 's objection remained undecided .

On DATE she claimed before ORG ( “ the first - instance court ” ) annulment of the dismissal decision , her reinstatement and payment of unpaid salary .

On DATE the court ordered expert examination of the applicant 's mental state of health on DATE , the date when she had submitted her complaints to the employer . The applicant was ordered to pay the expert fees within DATE . On DATE the first - instance court noted that the applicant had failed to pay the fees .

On DATE the court ordered expert examination of the applicant 's mental health again . The applicant paid the expert fees on DATE . The expert opinion was submitted on DATE .

During the trial proceedings , CARDINAL hearings were adjourned due to the incorrect delivery of court summons to the applicant and her lawyer .

On DATE the first - instance court dismissed ( одбива ) the applicant 's claim as having been submitted out of the DATE statutory time - limit . On DATE ORG quashed this decision since the applicant 's claim should have been rejected ( отфрла ) instead .

On DATE the first - instance court rejected the applicant 's claim as out of time . On DATE the applicant was exempted of court fees ( судска такса ) . On DATE ORG dismissed the applicant 's appeal of DATE .

On DATE the applicant submitted to ORG an appeal on points of law ( ревизија ) arguing that the DATE time - limit had been of a non - binding ( инструктивен ) nature . In this connection , she referred to a decision of DATE in which ORG allegedly had given such reasoning .

On DATE ORG dismissed the applicant 's appeal stating that the statutory time - limit had been of a preclusive nature . This decision was served on the applicant on DATE .


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

NORP The application concerns the shooting by a police officer of the applicant ’s son , PERSON ( “ Mr PERSON ” ) , born in DATE .

CARDINAL .

Mr PERSON lived with his parents in GPE . He had mental health problems and in DATE there was some question of his being admitted ( possibly even voluntarily ) for treatment to a psychiatric institution . On DATE , at approximately CARDINAL.CARDINALpm , PERSON was shot dead on the first - floor walkway of a block of residential flats in GPE , GPE , in the following circumstances .

On DATE two police officers , Officers A and B , received a message from a member of the public about a heavily built black man , with dreadlocks and dark clothes , carrying a handgun in the area . They immediately headed for the area .

They saw PERSON from their vehicle as he was walking away from them and up a pedestrian ramp to the flats . He matched the description they had been given . They got out of their vehicle and followed him up the ramp to the first floor walkway , where Officer В shouted in a very loud voice “ Stop , armed police . ” Initially , PERSON carried on walking . Officer В repeated his challenge more loudly and PERSON stopped and turned towards the officers . Officer В again shouted at him to show him his hands . PERSON took hold of a man who was passing by , held him around the neck and pointed what appeared to be a firearm at his neck .

Officer A drew his firearm . At this point PERSON pushed the passer - by aside or the man escaped ( this was not clarified in the domestic proceedings ) . Officer A said in evidence later that he was afraid PERSON had discarded the man in order to shoot him and said “ I thought my life was in imminent danger . I shot twice because he was moving so violently I could not be confident that I would have hit him with the first shot . . . he was moving so fast . . . I felt it was absolutely necessary to stop him there ” . Mr PERSON ran away but did not drop his firearm and went behind a pillar , from which Officer A described him as looking out in a crouched position . Officer A shot again and his evidence was that he feared again that he would himself be shot . PERSON then turned and ran again this time into the recess of a nearby doorway . Officer A ’s evidence was that he approached PERSON from round a pillar and saw PERSON moving frantically at the doorway and he feared he was trying to gain entry and he believed PERSON had not dropped his firearm . Officer A ’s evidence was that he saw PERSON arms come round to chest height and he feared PERSON was going to shoot and Officer A fired again . It was then that an object fell from PERSON hand . It was , in fact , a cigarette lighter shaped like a gun . PERSON collapsed . An ambulance was called while Officer В gave first aid . PERSON was taken to hospital where he was pronounced dead at CARDINAL .

In sum , Officer A fired at PERSON on CARDINAL separate occasions : he discharged a total of CARDINAL rounds , CARDINAL of which hit PERSON in the back and side ( CARDINAL of which was fatal ) and CARDINAL of which missed him . It was later found to be impossible to say in which order the shots had been fired namely , when the fatal shot was fired in the sequence of shots . In all , TIME separated the sighting of PERSON and the firing of the shots .

A post - mortem was conducted on DATE and PERSON was found to have CARDINAL firearms wounds to the back of the chest .

Following the shooting , the police referred the matter under section CARDINAL of LAW ( as amended ) to ORG ( “ PCA ” , the forerunner to ORG , “ ORG ” ) . An Initial Investigating Officer was appointed to complete immediate policing and investigative matters including securing evidence at the scene . Once Northumbria Police were appointed by the ORG to investigate , the ORG approved the appointment of a Senior ORG ( “ ORG ” ) from that police force to investigate , inter alia , the circumstances of the fatal shooting as well as other matters such as the notification of the deceased family after the shooting and a leak to the press . Extensive enquiries were made including CARDINAL statements , CARDINAL material exhibits and CARDINAL substantial expert reports by independent police and firearms experts , all of which was analysed in the ORG ’s Report on the ORG . This evidence and the ORG ’s Report were submitted to the Inquest .

The Inquest into PERSON death was heard DATE , concluding on DATE . The Coroner heard evidence , inter alia , from Officers A and B , PERSON ( from the same unit as ORG and B , who had debriefed those officers TIME after the shooting ) , PC PERSON ( who had come on the scene after the shooting but who made notes DATE ) , the Pathologist as well as several ballistics and firearms experts .

Following lengthy submissions from representatives and almost all of the evidence having been concluded , the Coroner gave a written ruling on DATE giving reasons for her decision that a verdict of “ unlawful killing ” would not be left to the jury , but leaving to the jury the verdicts of “ lawful killing ” and an “ open verdict ” .

In the course of that ruling the Coroner recalled this ORG ’s judgment in the PERSON case to the effect that an Inquest could discharge a ORG ’s investigative obligation under LAW ( PERSON v. GPE , no . CARDINAL , ORG CARDINALIII ( extracts ) ) . She observed that the safeguards of LAW were not in place at an Inquest , that evidence before her might not be admissible in a criminal trial and that this produced unfairness in leaving to a jury a verdict of unlawful killing : unfairness for the deceased ’s family if a prosecution did not follow and unfairness for the individual against whom the verdict was given . In paragraphs CARDINAL - CARDINAL of her ruling she continued :

“ CARDINAL . All this leads to what in my view may be seen as a most unsatisfactory situation . A jury carrying out a relatively broad inquiry are required to carve out a part of the evidence and make a determination on criminal liability . That is extremely difficult for them and can lead to unfairness for all concerned .

In the past , a Coroner would not have been able to put such considerations into the balance when deciding on verdicts .... Since the case of [ inter alia , NORP ( PERSON ) ν GPE [ DATE ] CARDINAL A.C. CARDINAL ] , that situation has changed . As a result , if I was of the view that it was a borderline case , I would be able to take all these matters into account in deciding whether the conclusion should go to a jury . This might be called a ‘ good ORG approach , but I prefer to call it a balancing exercise . ”

The Coroner ’s ruling went on to examine whether there was sufficient evidence to leave the option of an unlawful killing verdict to the jury . As regards the evidence from PC PERSON , the Coroner noted :

“ CARDINAL . PC PERSON was an CARDINAL colleague of Officer A who arrived on the walkway shortly after the shooting . In a statement made DATE he recalls Officer A saying ‘ he grabbed a member of the public and held a gun to his throat , I ’ve shot him as he ’s run NORP . Officer A said he could not recall this . ... In my view , even if [ Officer ] A spoke these words , it does not necessarily contradict his account , and can not amount to evidence that he deliberately fired at PERSON whilst he was running away . The comment was not contemporaneously recorded or shown to Officer PERSON It is not set in context of any kind , and it might well be ruled as inadmissible in any criminal trial . This of course is not a criminal trial , but the jury ought not to be asked to consider a verdict of unlawful killing based only on evidence that would not be admissible in such a trial . ”

The Coroner ’s ruling concluded that :

“ I am in no doubt that there was insufficient evidence to invite the jury to consider a verdict of unlawful killing . If I had decided that the case was borderline , then I may well have exercised my discretion to withhold it from the jury , because of the difficulties that I have outlined above . I must stress however that the evidence does not reach the threshold , and I therefore have no discretion to exercise . ”

The Coroner ruled therefore that she had therefore decided to leave to the jury an open verdict and a lawful killing verdict .

At the beginning of her summing up to the jury , the Coroner noted :

“ Well , this is not a case of homicide or suicide or natural causes or industrial disease , and I am only going to offer CARDINAL substantive conclusion for you to consider . But I should tell you , you do not have to follow any suggestion that I make ; you can use any form of words you wish , although it should be relatively brief in paragraph CARDINAL [ of the Inquisition Form ] and not judgmental . The conclusion that is available to you on the evidence in this case is CARDINAL of lawful killing . This has a special meaning in the [ Inquest ] , and so , in order to help you , I have prepared a handout setting out the relevant law ... ”

The handout was given to the jury and , in so far as material , it reads :

“ A lawful killing occurs if the evidence shows that it is probable ( that is , more likely than not ) that the deceased died by the deliberate application of force against him and that the person causing the injuries used reasonable force in self - defence or defence of another , or to prevent a crime or to assist in the lawful arrest , even if that force was by its nature or the manner of its application likely to be fatal . ”

The Coroner went on to direct the jury on what was involved in self - defence and defence of another . In so doing , she responded to the applicant ’s Counsel that :

“ We are not concerned with whether this death was in breach of LAW . That is not my role or the jury ’s . The jury are concerned to know whether this killing was a lawful killing . That is the direction we are looking at . Whether it might have been in breach of LAW or not is another matter entirely . ”

In determining whether it was self - defence or defence of another , the Coroner held that the first question was whether the individual believed , or may have honestly believed , that it was necessary to defend himself or another , having regard to the circumstances which he honestly believed to exist ( subjective test ) , although the reasonableness ( objective ) of the belief was somewhat relevant because , if the belief on the facts was unreasonable , it might be difficult to decide that it was honestly held . The second question , which arose if the first question was answered favourably to the individual , was whether the force used was reasonable having regard to the circumstances which were believed to exist ( objective test ) . ORG and ORG later found this direction to be consistent with LANGUAGE law .

The Coroner continued as follows :

“ If you decide that there is insufficient evidence to return a substantive conclusion , then you may return an open conclusion . The definition of this conclusion means that the evidence does not further or fully disclose the means whereby the cause of death arose . In other words , there is not sufficient evidence for you to return any substantive conclusion .

As you can appreciate , an open verdict is an unsatisfactory outcome of any Inquest , particularly one of this length , so only use this conclusion if you genuinely find that the evidence is insufficient to record a substantive verdict .

In such a situation that is a failure of the evidence , not of yours , but do not use an open verdict because you can not establish a peripheral point about the death , related perhaps to precise timings or positions . Do not use an open verdict because you disagree amongst yourselves . You must all agree on your verdict . And most especially , do not use an open verdict as a mark of censure or disapproval . Your duty , as I say , is to find the facts and a conclusion from the evidence , and this must transcend any feelings that you have in the matter . ”

In the absence of the jury , the Coroner later addressed the parties :

“ Did anyone have any more thoughts about what I think I am going to have to say to [ the jury ] ? Much as none of us want to see an open verdict , I think I am obliged to tell them that , so I have put here :

‘ If you felt that A was acting in self - defence in relation to some of the shots but not all , you would have to record an open verdict.’ ”

Accordingly , during the Coroner ’s later summing up , she noted :

“ Members of the jury , when applying the law on lawful killing in self - defence , you need to bear in mind that CARDINAL of these shots was the fatal shot , the second one that I have described . There is no evidence , sadly , as to the order of the shots , because , even once the fatal wound was inflicted , he could have been moving quite vigorously for a matter of TIME . That means that , if you decide that Officer A was acting in self - defence for some of the shots and not others , you would have to return an open verdict . ”

DATE of the Inquest were spent on evidence of Officer A ’s training and that training as well as the ORG ( “ ORG ” ) PERSON were referred to at length in the Coroner ’s summing up .

At the end of the summing - up to the jury , the Coroner discussed the verdict options : she did not explicitly refer to the “ open verdict ” option , but referred to the “ lawful verdict ” as the only “ substantive ” option open :

“ The conclusion , as I said , is a brief summary of the death in a few words [ that is a direction of how the jury should fill in the Inquisition Form ] , and there is CARDINAL substantive conclusion that I consider is available to you on the evidence . Nevertheless , subject to what I am about to say , no precise form of words are required so long as they are brief and non - judgmental . You may use you own words ....

I have told you that I can offer CARDINAL substantive conclusion to you , that of lawful killing . That has a special meaning in the Coroner ’s Court , and that is why I have given you a handout to explain that meaning [ the handout detailing the approach on self - defence ] . I have deliberately not given you guidance about a conclusion of unlawful killing . That is because I have ruled , as a matter of law , that unlawful killing is a conclusion that is not available to you . ”

On DATE the jury retired to consider their verdict . That afternoon the jury put a question to the Coroner ( as to whether they had to examine self - defence at any point or throughout the entire incident ) . The Coroner clarified :

“ Of course , question CARDINAL , on the balance of probability , did the person who caused the death believe or may he honestly have believed that it was necessary to defend himself or another . The answer is : it is throughout the entirety of the incident . And the reason for that is because we do not know which shot was the fatal shot . We do not know the order in which these shots were inflicted .

You may remember I said to you DATE : if you felt that Officer A was acting in self - defence for some of the shots but not all , you would have to record an open verdict , and that is because , as I say , we have this difficulty , we do not know which was the fatal shot . So , in order to return a verdict of lawful killing , you must be satisfied , on the balance of probability , that Officer A was acting in self - defence throughout the entirety of the incident . ”

The jury retired and TIME returned , by a majority ( CARDINAL - CARDINAL ) , a verdict of lawful killing . ORG noted as follows as regards the “ time , place and circumstances at or in which the injury was sustained ” :

“ The time was NORP . The place was ORG , PERSON , ORG , ORG . The circumstances : The deceased , [ Mr ] PERSON , was shot by an armed policeman who acted on information concerning a male suspect carrying a firearm when challenged by the police [ Mr ] PERSON used what is now known to be an imitation firearm to threaten a hostage resulting in shots being fired , CARDINAL of which caused the death of PERSON . ”

Leave to apply for judicial review was granted to the applicant on CARDINAL points : whether the Coroner ’s direction on self - defence was adequate given LAW since it referred to “ reasonableness ” and not “ absolute necessity ” and whether the Coroner had correctly applied the test laid down in R v PERSON ( [ DATE ] CARDINAL All ER ) in refusing to leave the “ unlawful killing ” verdict to the jury . On DATE the ORG gave judgment dismissing the applicant ’s claim .

As to the direction on self - defence , ORG noted the CARDINAL - limb definition of self - defence or defence of another given by the Coroner and accepted it as a correct direction under LANGUAGE law . ORG noted the approval of this test by ORG ( ORG and Others v. GPE , DATE , § § CARDINAL - CARDINAL , Series A no . CARDINAL ; and GPE v. GPE , no . CARDINAL , § § CARDINAL , PERSON CARDINALII ( extracts ) ) and further that ORG , before the jury , had been drafted to reflect LAW and obliged police officers to use firearms only if “ absolutely necessary ” so that a trained officer had to bear this in mind at all times when engaged in activities which might necessitate the use of firearms . It was clear to ORG that ORG had considered the domestic definition of self - defence and had not suggested that there was any incompatibility with LAW . ORG continued :

“ In truth , if any officer reasonably decides that he must use lethal force , it will inevitably be because it is absolutely necessary to do so . To kill when it is not absolutely necessary to do so is surely to act unreasonably . Thus , the reasonableness test does not in truth differ from the LAW test as applied in ORG . There is no support for the submission that the court has , with hindsight , to decide whether there was in fact absolute necessity . That would be to ignore reality and to produce what the ORG in ORG indicated was an inappropriate fetter upon the actions of the police which would be detrimental not only to their own lives but to the lives of others . ...

Accordingly , I reject the submission that the LAW requires that a different test be applied in the case of state agents such as police officers to that applicable in general to the issue of self - defence . ”

As to the second issue , the applicant argued that a verdict of unlawful killing should have been left to the jury given several pieces of evidence which , taken together , were capable of causing the jury to disbelieve Officer A ’s account that PERSON was facing towards him on each of the CARDINAL separate occasions when Officer A fired . The applicant referred , inter alia , to the forensic evidence , evidence by the pathologist and ballistics expert ; to the testimony of PC PERSON ; and to the evidence of Chief PERSON ( who testified that Officer A told him that Mr PERSON “ turned and ran away ” and that Officer A then advanced to a position “ past or adjacent to [ the passer - by ] , stopped and fired CARDINAL shots , I think ” ) . Officers A and В and the Commissioner of Police of the LOC relied , inter alia , on the opinion evidence of ORG to the ORG to the effect that in any firearms training , there were often bullet marks at the back of targets .

ORG noted that the jury would have had to have been satisfied to the criminal standard of proof that Officer A did not act in self - defence or in defence of another in order to prevent crime to return a verdict of unlawful killing . It remarked that , while Inquests were not to identify individual responsibility , in cases concerning a lethal shooting by a police officer , an Inquest jury verdict of unlawful killing was unhelpfully reported as a finding of responsibility for murder . ORG noted that it :

“ was bound to say that I seriously wonder whether the time has not come to abolish the verdict of unlawful killing altogether . ”

It went on to note , inter alia , the criteria laid down for deciding if a verdict of unlawful killing should be left to an Inquest jury ( R v PERSON ( [ DATE ] CARDINAL All ER CARDINAL ) and R v ORG Coroner Ex parte PERSON ( [ DATE ] CARDINAL All ER CARDINAL ) ) . It examined whether there was sufficient evidence which could justify a verdict of unlawful killing and accepted that there was some evidence to support the contention that Mr PERSON had been shot in the back . ORG found the Coroner was wrong in suggesting that the jury were determining criminal liability and noted :

“ That , in my judgment , was wrong . The Coroner is concerned , and concerned only , with the verdict in the inquest before her . The Coroner is not concerned to consider whether a criminal conviction might ensue , or indeed whether the verdict of the Coroner ’s jury was akin to a verdict showing criminal liability . It is , as I have said , an unsatisfactory feature of the system that we operate that there should be scope for the difference in the verdicts , because it may seem to the lay person that the Coroner ’s verdict is indeed establishing criminal liability . It is not . It is merely indicating that , in the view of the jury on the material put before them at the inquest , the death of the deceased has resulted from an unlawful killing . Whether anyone in the circumstances should be prosecuted in respect of that is a matter not for the jury . The use of such a verdict as an equivalent to a committal for trial and a trial resulting from it has long since been abolished , and it should not be regarded as such . Accordingly , the Coroner was referring to matters which were not material to the consideration whether a jury should have left to them the opportunity of reaching a verdict of unlawful killing . ”

Since the Coroner found that it was not a borderline case , she had not taken those erroneous considerations into account .

ORG itself considered that it was indeed a borderline case : although the Coroner excluded consideration of PC GPE evidence as it would be inadmissible in a criminal trial , ORG considered PC GPE evidence as being relevant to and admissible for the Inquest regardless of its admissibility or use in any later criminal proceedings . In assessing therefore , with PC GPE evidence , the evidentiary basis for any jury verdict of unlawful killing , ORG reiterated that , if the jury were to return a verdict of unlawful killing , it would have had to be sure beyond reasonable doubt that for each shot the officer did not honestly believe that his life was being threatened or that he reacted unreasonably to the threat he perceived . ORG found that the evidence of this could “ properly be described as tenuous ” so that a verdict of unlawful killing would properly be regarded as CARDINAL which was unsafe and , thus , was not an option to be left to the jury .

The High Court went further : even if a verdict of unlawful killing had been left to the jury , it was impossible that the jury would have adopted that conclusion . The judge rejected the applicant ’s submission that the Coroner , in directing the jury as she did , did not in reality leave any alternative to the “ lawful killing ” verdict . ORG examined the ORG ’s directions and , although criticising those in some respects , found that :

“ It seems to me that that direction could not possibly have left any doubt in the jury ’s minds as to what they were obliged to do . If , but only if , they were persuaded , on the balance of probabilities , that throughout the incident when he fired all the shots , Officer A was acting in self - defence , could they bring in a verdict of lawful killing . If they were not so satisfied , then the only verdict that would have been proper for them to bring in was an open verdict . ”

In those circumstances , it was clear to ORG that the jury was simply not persuaded , on the balance of probabilities , that this was anything other than a lawful killing . It was therefore quite impossible to believe that the jury could have been persuaded that it was clear beyond any reasonable doubt that this was an unlawful killing . It was simply logically impossible . Thus , the jury ’s verdict , having regard to the manner in which they were directed , showed that they rejected the suggestion that Officer A had killed the deceased unlawfully . Accordingly , ORG found that , even if the Coroner had erred in not leaving unlawful killing to the jury ( which ORG did not accept , see paragraph CARDINAL above ) , no purpose would have been served by quashing the verdict or by sending the case back for reconsideration since the Inquest jury had , by implication , clearly rejected the unlawful killing option .

On DATE a single judge of ORG granted leave to appeal to ORG on the question of whether the Coroner ought to have left an unlawful killing verdict to the jury . On CARDINAL DATE a hearing took place before the full ORG ( Lord Justice PERSON , Lord Justice PERSON and Lord Justice PERSON ) . On DATE judgment was handed down by Lord Justice PERSON dismissing the applicant ’s appeal ( the other CARDINAL judges concurred ) .

As to the argument that the Coroner was wrong in not incorporating DATE LAW ( “ absolutely necessity ” ) into the direction on self - defence , ORG noted that the applicant did not challenge the correctness of the GPE jurisprudence ( that the existing test under LANGUAGE law was LAW ) nor ORG analysis of that Convention jurisprudence . Rather the applicant argued that , since the current ORG used the language “ absolutely necessary ” , it was a misdirection not to direct the jury to consider whether ORG claim to have acted in self defence was reasonable in the light of the requirement continually to reassess whether “ it was absolutely necessary ” to fire .

ORG found :

“ This argument is not in reality an LAW argument at all . It is not because LAW uses the language “ absolutely necessary ” that there might be some requirement to draw the jury ’s attention to what is stated in the ORG manual . If the standard direction relating to self defence complies with LAW as it does ... LAW can not at the same time require a different use of language . However as to whether a police officer honestly believed a particular state of facts and as to whether he acted reasonably by reference to the facts as he honestly believed them to be , the fact the officer was trained and understood the ORG manual would be material .

But the short answer to the criticism made of the Coroner in this regard is that DATE were spent on the evidence as to the training Officers A and B had had , and the training and ORG manual were referred to at length in the Coroner ’s summing up . The jury can not have been under any illusion as to the context in which they were considering the questions put to them . Furthermore , hardly surprisingly , no point was taken by [ the applicant ] either when shown the written direction that Coroner proposed to give on self defence or after the summing up had been completed , that some further direction should be given by reference to the ORG manual or the training given . ”

As to whether , even if unlawful killing might have been left to the jury , that was a verdict which they could ever have adopted and the applicant ’s related submission that the Coroner ’s directions essentially “ bulldozed ” the jury into a lawful killing verdict , ORG again reviewed the ruling and directions of the Coroner as well as the findings of ORG and concluded :

“ The jury must have been quite clear as to what they were obliged to do . Ultimately they ... brought in a verdict of lawful killing i.e. they were satisfied on a balance of probabilities that throughout the incident , when firing each shot , Officer A honestly believed his life or that of a third party was threatened , and that his reaction was reasonable in the situation he honestly believed to exist .

I agree with the [ High Court ] that that being the jury ’s view , it is quite impossible to conceive that the jury could have been persuaded , if a verdict of unlawful killing had also been left to them , that it was clear beyond reasonable doubt that in relation to each shot Officer A in fact did not believe he or a third party was threatened , or that he acted unreasonably to the threat he believed to exist . ”

While that conclusion meant that the argument about failing to leave the “ unlawful killing ” verdict to the jury was moot , ORG went on to consider the “ PERSON point ” since it was the issue on which leave to appeal had been granted . Noting the above - cited PERSON judgment as well as that of GPE J in PERSON v HM Coroner for LOC ( [ DATE ] EWHC CARDINAL(Admin ) ) , ORG indicated that the essence of what Lord PERSON was saying in PERSON was that Coroners should approach their decision as to what verdicts to leave on the basis that the facts are for the jury , but that they were entitled to consider the question whether it was safe to leave a particular verdict on the evidence to the jury namely , to consider whether a verdict , if reached , would be perverse or unsafe and to refuse to leave such a verdict to the jury .

The Court of Appeal therefore agreed with ORG that the question was an evidential one and that certain considerations ( whether an Inquest was a satisfactory form of process in identifying whether criminal conduct had taken place or whether evidence might or might not have been admissible at a criminal trial ) were irrelevant . ORG reviewed the evidence heard by the Coroner and agreed with ORG that “ any suggestion that Officer A was not giving truthful evidence in describing his fear for his own safety had support of only the most tenuous nature ” . The Coroner was right to consider that a verdict of unlawful killing could not have been safely left to the jury .

ORG also noted certain “ incontrovertible points ” supporting that conclusion . TIME separated the sighting of the Mr PERSON and the shots ; the experts on both sides explained how the entry wounds could be in the back or side even if PERSON was facing Officer A when he fired ; all shots were fired while PERSON had what was honestly thought to be a gun ; PERSON had held what was thought to be a gun to the neck of a passer - by ; PERSON had given no indication that he was not intending to use what was thought to be a gun ; and , if a verdict of unlawful killing were to be brought in , the jury would have had to be satisfied beyond reasonable doubt in relation to each shot that Officer A had not honestly believed he was under threat or that Officer A had reacted unreasonably to that honestly held view . It concluded that to “ bring in a verdict of unlawful killing would have been perverse , and the reality is that the jury ’s actual verdict confirms that view ” .

The ORG evidence and Report on the Investigation were also submitted to ORG ( “ ORG ” ) who , by letter dated DATE , explained in some detail why there was insufficient evidence for a realistic prospect of conviction against any person . Following the rejection of the judicial review proceedings , the ORG confirmed that it would not be changing its decision not to prosecute .

Having reviewed this evidence and ORG in the context of police disciplinary proceedings , the ORG indicated by letter dated DATE that it was satisfied with the conduct of that investigation . By letter dated DATE , ORG ( which replaced the ORG ) recommended that neither of the Officers should face misconduct hearings ( although the officers involved in the shooting were to receive advice about the use of computerised checks of the police national computer ) . By letter dated DATE the ORG accepted that recommendation .

In DATE the family of PERSON ( including the applicant ) brought civil proceedings for damages in a ORG arguing that the police had acted negligently in shooting Mr PERSON . On DATE the parties agreed to discontinue those proceedings , although it is not known whether this was on the basis of a settlement .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW to hold an Inquest in circumstances where there are grounds to suspect that the person ( a ) has died a violent or an unnatural death or ( b ) has died a sudden death of which the cause is unknown .

As to the scope of an Inquest , section CARDINAL(CARDINAL)(b ) of the DATE Act outlines the content of the Inquisition Form ( a document completed by ORG jury at the end of the evidence ) . It must set out , so far as such particulars have been proved ( i ) who the deceased was ; and ( ii ) how , when and where the deceased came by his death . Rule CARDINAL of LAW requires that proceedings be directed solely to ascertaining : ( a ) who the deceased was ; ( b ) how when and where he came by his death ; and ( c ) the particulars required by LAW to be registered concerning the death , Rule PERSON ) specifically noting that neither the Coroner nor the jury shall express any opinions on any other matters .

Rule DATE provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person . Accordingly , Inquests in GPE are able to return verdicts of unlawful killing ( without publicly naming the person responsible ) because such a conclusion describes the immediate and operative cause of death .

Domestic case - law has consistently emphasised that an Inquest is an inquisitorial fact - finding exercise and not a method of apportioning guilt . Lord Justice PERSON declared in NORP v. GPE , ex parte PERSON ( [ DATE QB CARDINAL ] ) :

“ It is not the function of a coroner or his jury to determine , or appear to determine , any question of criminal or civil liability , to apportion guilt or attribute blame . This principle is expressed in Rule CARDINAL of the DATE Rules . ”

The test for leaving a verdict of unlawful killing to a jury was laid down in R v PERSON ( [ DATE ] CARDINAL All ER CARDINAL ) and applied to an Inquest jury in R v ORG , ex parte PERSON [ DATE ] CARDINAL All ER , CARDINAL ) . The relevant part of PERSON reads as follows ;

“ How then should the judge approach a submission of ‘ no ORG ? ( CARDINAL ) If there is no evidence that the crime alleged has been committed by the defendant , there is no difficulty . The judge will of course stop the case . ( CARDINAL ) The difficulty arises where there is some evidence but it is of a tenuous character , for example because of inherent weakness or vagueness or because it is inconsistent with other evidence . ( a ) Where the judge comes to the conclusion that the prosecution evidence , taken at its highest , is such that a jury properly directed could not properly convict upon it , it is his duty , upon a submission being made , to stop the case . ( b ) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness ’s reliability , or other matters which are generally speaking within the province of the jury and where on CARDINAL possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty , then the judge should allow the matter to be tried by the jury ... There will of course , as always in this branch of the law , be borderline cases . They can safely be left to the discretion of the judge . ”

In the PERSON case , Lord PERSON decided that that test was appropriate for a Coroner and clarified the extent of the discretion of a Coroner not to leave to the jury what is , on the evidence , a possible verdict :

“ There is no prosecutor in relation to an inquest and while an inquest is a court , the ORG ’s role is more inquisitorial , even when sitting with a jury than that of a judge . A prosecutor has a considerable discretion as to what charges he prefers and the trial takes place on those charges . There are no charges at an inquest and a Coroner must decide the scope of inquiry which is appropriate and the witnesses to be summoned . He therefore must at least indirectly have a greater say as to what verdict the jury should consider than a judge at an adversarial trial ... The strength of the evidence is not the only consideration and in relation to wider issues the ORG has a broader discretion . If it appears there are circumstances which in a particular situation mean in the judgment of the Coroner , acting reasonably and fairly , it is not in the interest of justice that a particular verdict should be left to the jury he need not leave that verdict . He , for example , need not leave all possible verdicts just because there is technically evidence to support them . It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole . To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the Coroner ’s conclusion he can not be criticised if he does not leave a particular verdict . ”

There is no right of appeal from an Inquest and ORG role is limited to review : this may be by way of judicial review or statutory review ( sections CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ) . This statutory right applies where , on an application by or under the authority of the Attorney - General , ORG is satisfied as respects a Coroner either :

“ ( a ) that he refuses or neglects to hold an inquest which ought to be held ; or

( b ) where an inquest has been held by him , that ( whether by reason of fraud , rejection of evidence , irregularity of proceedings , insufficiency of inquiry , the discovery of new facts of evidence or otherwise ) it is necessary or desirable in the interests of justice that another inquest should be held .

ORG may –

order an inquest or , as the case may be , another inquest to be held into the death ... ”

The above - cited language of Lord PERSON in PERSON was quoted by Mr Justice PERSON ( High Court ) in a case also concerning the killing of a man by police officers in the mistaken belief that he was armed ( PERSON v HM Coroner for LOC ( [ DATE ] EWHC CARDINAL(Admin ) ) . An Inquest into the death took place in DATE . The verdict of that Inquest was quashed by ORG in DATE . There was a second Inquest before a different Coroner in DATE , which resulted in a verdict of unlawful killing . Mr Justice PERSON quashed the verdict : the Coroner should not have left the verdict of unlawful killing to the jury and his summing up on that central issue had been inadequate . ORG later refused leave to appeal ( [ DATE ] EWCA Civ CARDINAL ) .

Having described the duty of the Coroner to act as “ a filter to avoid injustice ” , Mr Justice PERSON said :

“ In a difficult case , the Coroner is carrying out an evaluation exercise . He is looking at the evidence before him as a whole and saying to himself , without deciding matters which are the province of the jury , ‘ Is this a case where it would be safe for the jury to come to the conclusion that there had been an unlawful killing?’ If he reaches the conclusion that , because the evidence is so inherently weak , vague or inconsistent with other evidence , it would not be safe for a jury to come to the verdict , then he has to withdraw the issue from the jury . ”

NORP The ingredients of the possible verdicts were formulated as follows :

“ Thus , assuming that there was sufficient evidence for the jury to consider , the proper way to articulate the ingredients of the possible verdicts is:-

i ) unlawful killing : a finding beyond reasonable doubt that the firearm was not discharged in the belief that one of the officers was under imminent threat of being shot . . . . ;

ii ) lawful killing : a finding , on the balance of probabilities , that [ the police officer ] believed , albeit mistakenly , that he or [ another ] was under imminent threat of being shot . . . . ;

iii ) open verdict : a rejection of the proposition that [ the police officer ] may have believed that he or [ another ] was under imminent threat of being shot . . . but an inability to conclude , beyond reasonable doubt , that such was not the case . ”

Mr Justice PERSON went on :

“ I have put the matter in that way in order to formulate the test which must be considered by the Coroner in deciding whether to leave the verdict of unlawful killing . It is whether there is sufficient evidence upon which the jury could safely come to the conclusion beyond reasonable doubt that the firearm was not discharged in the belief that CARDINAL of the officers was under imminent threat of being shot with a sawn - off shot gun . ”

The test for the lawful use of force in defence of others is the statutory test under LAW DATE :

“ A person may use such force as is reasonable in the circumstances in the prevention of crime , or in affecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large . ”

The test for lawful self - defence is the common law test and it has CARDINAL limbs namely , the defendant must honestly believe that defensive action is necessary and the defendant is entitled to use such force as is reasonable in the circumstances as he perceives them to be ( see , for example , PERSON v. R [ DATE ] ORG , at CARDINAL - CARDINAL ) .

Chapter CARDINAL of ORG provides , in so far as relevant , as follows :

“ CARDINAL . Firearms are to be fired by AFOs [ Authorised Firearms Officers ] in the course of their duty only when absolutely necessary after conventional methods have been tried and failed or must , from the nature of the circumstances , be unlikely to succeed if tried .

The ultimate responsibility for firing a weapon rests with the individual officer who is answerable ultimately to the law in the courts . Individual officers are accountable and responsible for all rounds they fire and must be in a position to justify them in the light of their legal responsibilities and powers . ...

When it is considered necessary to open fire on a subject , police officers need to shoot to stop an immediate threat to life , research has indicated that only shots hitting the central nervous system , which is largely located in the central body mass , are likely to be effective in achieving rapid incapacitation . Shots which strike other parts of the body can not be depended upon to achieve this . Research has also shown that the accuracy of shots fired under training conditions is generally greater than in operational circumstances . Police officers are therefore normally trained to fire at the largest part of the target they can see which , in most cases , will be the central body mass . Officers should reassess the need for further action after each shot to ascertain whether an ongoing threat exists . "


Violation of Article 5 - Right to liberty and security

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in DATE and lives in GPE .

On DATE , in the course of a police operation , an undercover police officer bought a substantial quantity of cannabis from the applicant . The applicant was immediately arrested in accordance with Article CARDINAL of LAW for a violation of the drug circulation rules which constituted an administrative offence laid down in DATE . Following a body search and a search of the applicant ’s car , the police found further quantities of the drug .

On DATE the local police office instituted criminal proceedings against the applicant for drug trafficking .

On CARDINAL DATE the GPE ORG of Odessa ( hereinafter “ the ORG ” ) considered a request by the investigator for the applicant to be placed in pre - trial detention and rejected it . However , it extended DATE applicant ’s arrest up to a total of DATE , ordering the investigative authorities to obtain more information on the identity of the applicant and establish further circumstances justifying his detention pending trial .

On DATE ORG ordered the applicant ’s pre - trial detention on the ground that the applicant was charged with a serious crime and , if at large , would continue his criminal activity and abscond from the investigation and trial .

On DATE ORG extended the period of the applicant ’s pre - trial detention until DATE as the investigative authorities needed more time to complete the case file , namely , to complete the biological expert examination , to order and carry out a narcotics forensic examination , to question Mr. Sh . , who was the witness in the case , to familiarise the applicant with the case file , and to draw up the bill of indictment . ORG also found that , given the character of the applicant and the gravity of the crime that had been committed , the preventive measure should be left unchanged .

On DATE the applicant was provided with access to the criminal case file to prepare his defence .

On DATE the applicant lodged a complaint against the investigation authorities with ORG , claiming that there had been no legal basis for his detention , in so far as the period of his detention , fixed in the ORG decision of DATE , had expired on CARDINAL DATE and had not been extended . This complaint was joined to the criminal case file .

On DATE the applicant finished studying the case file .

On DATE the supervising prosecutor approved the bill of indictment and the case file was referred to ORG for adjudication .

On DATE ORG considered the applicant ’s complaint of DATE in the course of the preliminary hearing and found that the applicant ’s detention after DATE had been lawful . In particular , the ORG established that during the period DATE and DATE the applicant had been studying the case file and , in accordance with Article CARDINAL of LAW , this period was not taken into account in calculating the overall period of his detention pending trial . It further noted that on DATE the case file had been referred to ORG and therefore the applicant ’s complaint was unsubstantiated . ORG did not specify the reasons or legal basis for the applicant ’s detention after the case had been referred to the court . At the same hearing ORG considered that there had been no grounds for changing the preventive measure in respect of the applicant , but did not state this conclusion in the operative part of the decision . The preliminary hearing was held in the presence of the prosecutor ; the applicant and his lawyer were absent .

According to the Government , on several occasions in the course of the trial , namely DATE , CARDINAL DATE , DATE , DATE , and CARDINAL DATE , ORG considered the applicant ’s requests for release and rejected all of them because he was charged with a serious crime and might abscond from the investigation and trial if at liberty .

On DATE ORG found the applicant guilty of drug trafficking and sentenced him to CARDINAL years’ imprisonment , having included in the sentence the period of the applicant ’s detention from DATE .

On DATE ORG issued a separate ruling to the effect that the applicant ’s arrest on DATE conducted under LAW had not been lawful since LAW , relied on by the police officers , did not cover drug trafficking and was therefore evidently inapplicable to the applicant , who had been arrested when selling the drug to the undercover agent . ORG notified the Odessa ORG of the established violation of the procedural law committed by the police officers and ordered that an internal inquiry into the circumstances of the applicant ’s arrest be carried out .

DATE of the ORG prohibits the fabrication , purchase , storage , transport , or dispatch of drugs or psychotropic substances in small quantities without the purpose of trafficking . A breach of this provision is punishable by a fine of up to CARDINAL tax - free DATE incomes .

Article CARDINAL of the ORG provides , inter alia , that anyone who violates drug - circulation rules may be arrested for TIME for the purpose of drawing up a report on the administrative offence . However , in order to identify the perpetrator of the offence , subject him to a medical examination , clarify the circumstances of purchase of the drugs or psychotropic substances and examine them , the arrest may be extended DATE . In such cases the prosecutor shall be informed of the extension in writing within TIME . In case the arrested person does not have identity documents , the arrest may be extended DATE pursuant to an order of the prosecutor .

Article CARDINAL of the ORG provides , inter alia , that an arrest on grounds of an administrative offence may be challenged by the aggrieved person before the supervising authority , the prosecutor or the court .

Article CARDINAL of the ORG provides , inter alia , that the period of detention during pre - trial investigation shall expire on DATE the court receives the case file ; however , the time taken by the accused and his or her representatives to familiarise themselves with the materials in the criminal case file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure .

Save where the period has been extended pursuant to the procedure established by the ORG , in the event of the expiry of the maximum period of detention as a preventive measure allowed by the ORG , the body of inquiry , the investigator or the prosecutor shall be obliged to release the person from custody without delay .

Governors of pre - trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by the ORG expires . They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation .

In DATE this Article was amended as regards the rules on calculation of time , taken by the detainee and his or her representative for studying the case file .

In accordance with LAW ORG , detention as a preventive measure shall be applied only by a reasoned decision or ruling of the court .