CASE OF NIKOLOVA AND VELICHKOVA v. BULGARIA

Preliminary objection (victim) joined to merits and dismissed;Violation of the substantive aspect of Art. 2;Violation of the procedural aspect of Art. 2;No separate issue under Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicants are the wife and daughter of PERSON . Mr PERSON died on DATE as a result of assault and battery by CARDINAL police officers on DATE .

At TIME on DATE the CARDINAL members of the rapid response force of ORG were training just outside town . They spotted at a distance Mr PERSON , aged sixtytwo at the time , and PERSON , who were testing a homemade metal detector . The leader of the team , lieutenant PERSON , assumed that the CARDINAL were treasurehunters and sent a party to verify his suspicion . CARDINAL police officers approached PERSON , while CARDINAL others , chief sergeants PERSON and PERSON , moved towards Mr PERSON . None of the officers was in uniform . Chief sergeants PERSON and PERSON reached Mr PERSON as he was trying to hide a hoe in nearby bushes . Surprised by the sudden appearance of the CARDINAL men , Mr PERSON did not throw the hoe away , but held it in front of him , taking a defensive posture . Chief sergeant PERSON brusquely pulled it out of his hands and threw it to a safe distance . Each of the officers then proceeded to deliver blows to PERSON PERSON 's head . They then brought him to the ground , handcuffed him , and took him to their colleagues . A car was called and Mr PERSON and Mr GPE , who had also been apprehended , were taken to the LOC of ORG . At TIME , while waiting to be questioned on the precinct LOC , Mr PERSON fainted . An ambulance was subsequently called and he was taken to hospital , where it was found that he had slipped into a coma .

After an unsuccessful operation to evacuate a subdural haematoma , Mr PERSON died on DATE . A medical report drawn up in the course of the criminal proceedings opened pursuant to his death concluded that the cause of death was a severe cranial and cerebral trauma and internal brain haemorrhage .

On DATE criminal proceedings were opened into the incident by ORG . The offence was provisionally characterised as murder under LAW of DATE ( “ the ORG ” ) ( see paragraph DATE below ) .

On DATE the investigator in charge of the case questioned chief sergeants PERSON and PERSON was also questioned on the site of the incident in the presence of a medical doctor . The investigator took a number of pictures of the site .

Most of the other witnesses were interviewed in DATE and in DATE and DATE . Several expert reports were drawn up .

Chief sergeants PERSON and PERSON were charged and questioned again on DATE . They were released on bail .

The CARDINAL officers who had arrested PERSON were likewise charged and questioned on DATE .

On CARDINAL DATE the investigator in charge of the case drew up his final report , concluding that chief sergeants PERSON should be tried for wilfully inflicting grievous bodily harm on Mr PERSON and thus having negligently caused his death , contrary to LAW ( see paragraph CARDINAL below ) . He also concluded that the CARDINAL officers who had arrested PERSON should be tried for inflicting light bodily harm on him . He noted , inter alia , that all of the officers had denied any wrongdoing , in spite of the evidence to the contrary , had drawn no lessons from their act and had shown no signs of remorse . He also noted that chief sergeant PERSON and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm on another person on DATE , DATE before the act in issue in the proceedings . Reflecting on the conditions which had led to the perpetration of the alleged offences , the investigator expressed the opinion that these were “ the recent increase in crime which ha[d ] led lawenforcement officers to suspect a criminal intent in all citizens until proven otherwise ; the physicality of their training at the [ police officers ' school in the town of GPE ] , where DATE , they [ we]re instructed in how to deal with violent resistance but [ we]re inadequately trained on the legal aspects of law enforcement , a practice that ha[d ] been maintained within the newlyformed rapid response force centre in GPE , as evidenced by the curriculum attached to the case file : it abound[ed ] in physical training classes and lack[ed ] any classes in legal training ; the sense of authority that the law - enforcement officers ha[d ] over the public , who [ were ] expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens ; the sense of impunity ; the absence of any eyewitnesses to the CARDINAL offences , committed in a forested area out of the public 's sight , and the hope that all [ would ] be covered up ” .

In view of an amendment in DATE to LAW of DATE , whereby military courts were given jurisdiction to try police officers , on an unspecified date in DATE the case was sent to ORG . Apparently it was not processed there until DATE . The applicants complained about this inactivity to the President of the Republic , ORG and ORG . All of them forwarded the complaints to the military prosecution authorities .

On DATE ORG sent the case to a military investigator for further processing .

In a letter of CARDINAL DATE ORG informed the applicants that the work on the case had been held up until DATE because of staffing and backlog problems .

In DATE the military investigator in charge of the case was transferred to another post . For this reason , on DATE the case was assigned to another military investigator .

Having concluded his work on the case , on DATE the investigator drew up his final report , proposing that chief sergeants PERSON and PERSON be committed for trial . He noted , inter alia , that , by that date , chief sergeant PERSON was a unit commander at the riotpolice sector of ORG and that chief sergeant PERSON was a police officer at the specialised unit in charge of bank and cash transfer safety in GPE .

On DATE ORG issued an indictment against chief sergeants ORG and PERSON It noted , inter alia , that on DATE chief sergeant PERSON had resigned from the police force and that chief sergeant PERSON was still on the force , assigned as a guard in a commercial bank . Concerning the factors which had led to the perpetration of the offence , the prosecutor observed that these were “ the defendants ' sense of impunity as officers of the special force of the [ ORG ] , their lack of respect for human dignity and the health and inviolability of citizens and their habit of treating citizens as dummies for testing their physical force and abilities , which [ were ] only needed for apprehending dangerous criminals ” .

The trial at ORG started on an unspecified date in DATE .

On DATE the applicants and Mr PERSON 's son brought claims for compensation against the CARDINAL police officers ( MONEY ( ORG ) for the first applicant , ORG CARDINAL for the second applicant and ORG CARDINAL for Mr PERSON 's son ) and joined the proceedings as private prosecuting parties alongside the public prosecutor .

The court held a hearing on DATE . It heard the applicants , Mr PERSON 's son and the accused officers . It also heard the concluding argument of the parties . In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants PERSON and PERSON He requested that immediate custodial sentences , ranging CARDINAL imprisonment , be imposed . In their final statement the defendants said that they were not guilty and asked the court to acquit them .

NORP In a judgment of DATE ORG convicted chief sergeants PERSON and PERSON of having negligently caused the death of Mr PERSON by wilfully inflicting grievous bodily harm on him , contrary to LAW . It sentenced each of them to DATE imprisonment , suspended for DATE . It also awarded the first applicant ORG CARDINAL,CARDINAL , the second applicant ORG CARDINAL,CARDINAL , and Mr PERSON 's son BGN CARDINAL,CARDINAL , payable jointly and severally by the CARDINAL officers . The court described in detail the events of DATE and held , as relevant :

“ ... the act was committed negligently ... The case at hand concerns a complex offence , where the intention in respect of the lesser outcome is combined with negligence in respect of the more serious outcome , in other words , the offence was committed with both forms of mens rea ... The court is of the opinion that both of the defendants wilfully inflicted grievous bodily harm on [ Mr PERSON ] , which later brought about his death . The intentions must be judged through their actions . Taking into account the subjective attitude of the defendants towards their act , the court deems that their intention did not go beyond inflicting bodily harm . They merely behaved negligently in respect of the ensuing death . The objective analysis of the defendants ' conduct shows that they did not foresee the imminent death of [ Mr PERSON ] and neither wished nor envisaged a fatal outcome , their intention being solely to inflict bodily harm ...

... The evidence in the case suggests that no persons other than the defendants were in physical contact with [ Mr PERSON ] ... All the traumatic injuries which were established were inflicted at the same time , in quick succession . The evidence shows that CARDINAL TIME on DATE in the area of LOC the defendants , ... , in their capacity as officers of ORG , arrested [ Mr PERSON ] using physical force , and in the process delivered numerous blows to his body , some of which were strong , as a result of their prior training in arrests . There is a direct and proximate causal link between the beating and [ Mr Nikolov']s traumatic injuries and the ensuing fatal outcome . In pursuing their direct aim of inflicting bodily harm on [ Mr PERSON ] , the defendants did not envisage the end result , but DATE in view of the force and the direction of the blows , they could have . It must however also be noted that , as members of the rapid response force , the defendants had acquired special skills for subduing and apprehending offenders . They were executing an order given by their immediate superior ... which included the arrest of [ Mr PERSON ] ... In this connection , the court finds that the conduct of the head of the team , lieutenant PERSON , is also reprehensible , because he was the individual who could and should have determined whether Mr PERSON and Mr GPE were offenders who had to be apprehended without fail . ...

The causes and the conditions for the commission of the offence are the defendants ' feeling of impunity as members of the special force of ORG .

In determining the type and the quantum of the penalty the court had regard both to the defendants ' young age and to their good character as mitigating circumstances .

The court deemed the unlawful use of physical force as an aggravating circumstance .

The court imposed the penalties having regard to the preponderance of mitigating circumstances ...

Taking into account the personality of the offenders , the gravity of the offence , and the fact that the defendants have no prior convictions , and bearing in mind the aims of punishment ... the court considers that the penalties do not need to be served immediately . For this reason ... the serving of the sentences is postponed ... The main purpose of punishment in our law is general deterrence , which is achieved through the imposition of just punishment . In matching the severity of the punishment to the gravity of the offence [ the court ] must have regard to the personality of the offender as an additional factor . In the case of a suspended sentence , [ the court ] must put the emphasis on individual deterrence , namely reform of the offender . In the instant case , the court , having regard to the facts as established above , the type of mens rea involved DATE , and the low level of public threat of the QUANTITY offenders , who perpetrated their act in the relatively distant past , concludes that there is no need for the penalties of imprisonment to be served immediately in order to achieve the aims of the criminal law . ... ”

Both the applicants and the officers appealed to ORG . The applicants submitted that the sentence was too lenient and that the compensation awarded was too low . They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty . In their view , the officers ought to be sentenced to an effective prison term of DATE .

Having held a hearing on DATE , in a judgment of CARDINAL DATE ORG partly upheld and partly reversed the lower court 's judgment . It increased the amount of compensation to BGN CARDINAL for the first applicant , ORG CARDINAL for the second applicant and ORG CARDINAL for Mr PERSON 's son , but upheld the sentence . The court described in detail the events of DATE and held that “ in view of the police officers ' numerical superiority , their younger age , their special training , the proximity of their colleagues , and the fact that in his further actions [ Mr ] PERSON [ had not ] resisted or refused to obey their lawful orders , the physical force used had been in breach of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) and section CARDINAL ) and ( CARDINAL ) of LAW [ DATE ] , in force at the material time ” ( see paragraphs CARDINAL and CARDINAL below ) . The court 's opinion continued , as relevant :

“ The factual findings of the [ lower ] court are based on the evidence gathered and are fully accepted by [ this ] court . In view of the facts , the acts committed by the defendants were properly characterised as an offence under LAW ...

I. Concerning the defendants ' appeal

In the indictment the prosecution brought charges against the CARDINAL defendants for an offence ... committed in concert . The prosecution has not taken into consideration that the offence under LAW ORG is only negligent as regards the graver consequence [ death ] . Complicity in a criminal offence is only possible in respect of wilful offences , as it presupposes the joint wilful participation of CARDINAL or more persons , whose actions lead in their entirety to the perpetration of the offence , provided always that these persons realise that they are acting in concert with others . The actus reus of the offence under LAW [ LAW ] is complex . The intention to achieve the lesser outcome [ bodily harm ] is combined with negligence in respect of the graver outcome , i.e. the offence is committed with differing types of mens rea , which excludes the possibility of complicity .

The defendants ' objection concerning the unfoundedness of the lower court 's judgment as regards the authors of the offence is groundless . The experts ' conclusion is that the cranial and cerebral traumas were caused by CARDINAL separate blows to the head , with or against a solid object , delivered with considerable force . The experts provide CARDINAL explanations as to its possible source . According to the first explanation , CARDINAL blow was to the head , either on the left temple or on the right occiput , followed by DATE to the ground and a further blow to the opposite side . According to the second explanation , the CARDINAL injuries may be due to CARDINAL separate consecutive blows with a blunt , solid object . The experts categorically exclude the possibility that the blows were inflicted with the sharp ( metal ) part of the hoe ...

The [ lower ] court was correct in accepting the second explanation , which is supported by the remaining evidence ... In their statements , including those made at the trial , the CARDINAL defendants admit the fact that they acted violently in apprehending [ Mr ] GPE . ... [ B]oth defendants state that the victim did not fall on the ground at any point . Both aver that [ Mr ] PERSON was standing or squatting . It was therefore impossible for one of the injuries ... to have been the result of a fall to the ground .

The defendants ' assertion that the victim 's death was the result of light and not grievous bodily harm , as accepted by the [ lower ] court , is groundless and completely unsubstantiated . The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall lifeendangering disruption to health , i.e. it corresponded to the medical and biological indications of grievous bodily harm .

The [ lower ] court has correctly found that the CARDINAL defendants wilfully inflicted grievous bodily harm resulting in death . Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death DATE are convincing and fully accepted by [ this ] court , so there is no need to repeat them .

II . Concerning the [ applicants ' ] appeal

The appeal is partially well - founded . The punishments imposed DATE imprisonment – although the minimum possible by law , are not disproportionately lenient . The [ lower ] court has examined and taken account of all the factors which are material in determining the sentence . On the one hand , it is true that a human life was taken in a situation which did not call for the use of such intense physical violence in respect of [ Mr ] PERSON . On the other hand , the defendants have no prior convictions , are of good character , each of them administered CARDINAL blow to the head of the victim , the death was caused negligently , the [ defendants ] acted with a view to arresting an offender pursuant to the direct orders of their immediate superior , [ Mr ] PERSON did not initially obey and did not throw away the hoe which he was holding and the defendants were discharged from the [ police ] . In view of all this the [ court ] finds that the [ lower ] court 's conclusions as to the quantum of the penalties are wellfounded , as is its conclusion that the correction and reform of the defendants do not call for the imposition of an immediate custodial sentence .

The appeal is ... wellfounded as regards [ the amount of compensation awarded ] . The quantum of the compensation for non - pecuniary damage is to be determined at the time of delivery of the judgment . At present the courts ' practice is to allow claims in respect of nonpecuniary damage for amounts higher than the claims submitted by the [ applicants ] . For this reason the [ court ] finds that the judgment should be revised , by increasing the sums awarded to each of the applicants up to the full amount of their claims . This level of compensation will reflect the actual pain and suffering which [ the applicants ] have sustained from the loss of their relative . ”

Both the applicants and the police officers appealed to ORG . The applicants again submitted , inter alia , that the suspended sentence was too lenient . They argued that the lower court 's characterisation of chief sergeant PERSON as a person “ of good character ” was questionable as he had been charged with the battery of a detainee DATE before the beating of PERSON . The police officers submitted , inter alia , that the lower courts had imposed a very severe punishment .

Having held a hearing on DATE , in a final judgment of DATE ORG upheld the lower court 's judgment in the following terms :

“ As regards the [ applicants ' ] appeal :

It is being argued that the [ lower ] courts have erred in ordering the suspension of the sentences of the CARDINAL defendants , and a request is made to order that they serve their sentences .

This ground of appeal ... is not supported by the materials in the case file and is illfounded . In applying LAW , [ the lower courts ] have weighed all the factors relating to the individual and general deterrence functions [ of the criminal law ] . Taking into consideration [ the defendants ' ] clean criminal record , their good character , the manner in which the offence was committed , namely CARDINAL blow each , the form of the mens rea , namely , negligence by each of the defendants , the behaviour of the victim , and in view of the aims of the punishment ... , the conclusion that the correction and reform of the defendants does not call for the sentence is lawful . This court fully shares it ...

As regards the appeal by the CARDINAL defendants :

The grounds of appeal are a breach of the substantive law and the obvious inequity of the sentences imposed and compensation awarded

Bearing in mind the [ lower courts ' ] findings of fact , which are not subject to review [ by this court ] , this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file . The authorship of the offence has been proven beyond doubt , and the legal characterisation is correct . Each of the accused ... has executed all the elements of the offence under LAW . The evidence – the statements of the defendants , the witness testimony , combined with the medical expert report and the other written evidence , correctly assessed by both levels of jurisdication ... has led them to hold that the CARDINAL have committed the offence independently of each other , in their capacity of police officers on active duty , in connection with the performance of their duties , thus negligently bringing about the death of [ Mr PERSON ] by wilfully causing him grievous bodily harm . The personal conviction of the courts has been based on objective , comprehensive and complete assessment of all the facts of the case , which have been subjected to a serious and through analysis . In view of the facts , as thus established by the appellate court , the conclusions concerning the actus reus and the mens rea are lawful .

In this connection , the defendants ' objection that death resulted from light bodily harm is unfounded . An identical objection was made before the appellate court , which reviewed it and ultimately rejected it . The reasons given are detailed and based on the evidence , and therefore shared by this court .

The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless . In determining the punishment of the CARDINAL defendants , [ the lower courts ] analysed all the mitigating and aggravating circumstances . They correctly found a preponderance of the former and have imposed [ a minimal suspended sentence , within the bounds provided for by law ] . Extra lenience would be unwarranted , as it would not further [ the deterrent and reforming purposes of the criminal law ] .

The amounts of compensation are likewise equitable . The reparation of the nonpecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and the principles of equity ... Taking into account the pain and suffering as well as the irreversibility of the loss sustained , this court considers that the amount set by the [ lower ] court is just and would recompense the [ applicants ] to the utmost degree . ”

The applicants obtained writs of execution against the QUANTITY police officers on DATE . As the latter apparently refused to pay the applicants of their own accord , on DATE the applicants issued enforcement proceedings against them . During the period DATE the enforcement judge at ORG tried to collect the amounts from the CARDINAL officers , but to no avail , since the officers did not own any seizable assets . For this reason the CARDINAL enforcement proceedings were discontinued towards DATE at the applicants ' request .

On DATE the CARDINAL applicants and Mr PERSON 's son brought a tort action against ORG and ORG before ORG . They sought nonpecuniary damages for Mr PERSON 's death in the amount of MONEY ( ORG ) for the first applicant , BGL CARDINAL for the second applicant and BGL CARDINAL for Mr PERSON 's son .

At the first hearing on DATE , ORG stayed the proceedings in anticipation of the outcome of the investigation against the officers . Following completion of the criminal proceedings on DATE ( see paragraph CARDINAL above ) , on DATE ORG resumed examination of the case .

The court held CARDINAL hearings , on DATE and DATE and CARDINAL DATE . It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the parties ' pleadings . In a bench ruling of CARDINAL DATE it discontinued the proceedings against ORG , holding that ORG , which had employed the police officers , was the only entity capable of being vicariously liable for their actions .

In a judgment of DATE ORG ordered ORG to pay ORG CARDINAL to the first applicant , ORG CARDINAL to the second applicant and ORG CARDINAL to Mr PERSON 's son , together with interest at the statutory rate , from DATE , the date of Mr PERSON 's death . It also awarded costs and expenses in the amount of BGN MONEY . It held that the facts surrounding Mr PERSON 's death and the nonpecuniary damage sustained by the applicants as a result had been fully established in the judgments of the criminal courts which had tried the police officers . These judgments , which assessed the applicants ' nonpecuniary damage at ORG CARDINAL,CARDINAL and ORG CARDINAL respectively , were binding on the civil court . The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers ' actions . It observed however that the applicants had claimed lesser amounts DATE BGN CARDINAL and ORG DATE and it was therefore unable to increase the amount of the awards .

On DATE ORG appealed . On DATE the applicants increased their claims to ORG CARDINAL,CARDINAL and ORG CARDINAL respectively . ORG held CARDINAL hearings , on DATE and DATE and on DATE , CARDINAL and DATE .

In a final judgment of CARDINAL DATE ORG upheld the lower court 's judgment . It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers . Concerning the increase in the applicants ' claims , the court held that this could not be taken into account , since it had been made for the first time on appeal and as only the defendant had appealed against the firstinstance judgment .

ORG paid the award of damages to the applicants shortly after the end of the proceedings .

Article CARDINAL § CARDINAL of the ORG provides that whoever negligently causes the death of another by wilfully inflicting bodily harm on him or her is punishable by a term of imprisonment ranging from DATE in the case of grievous bodily harm , from DATE in the case of intermediate bodily harm , and DATE in the case of light bodily harm .

Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG differentiate bodily harm as grievous , intermediate or light , on the basis of various medical criteria .

Under LAW , murder is punishable by DATE imprisonment . Under LAW ( CARDINAL ) of the ORG , murder committed by police officers in the performance of their duties is punishable by DATE imprisonment or life , with or without parole .

Article CARDINAL § CARDINAL of the ORG directs the criminal court to determine the sentence within the bounds provided for by law , taking into account the general rules of criminal law , the dangerousness of the offence and of the offender , the motives for committing the offence , and the remainder of the mitigating and aggravating circumstances .

Under LAW ORG , the court may suspend a sentence of DATE imprisonment for DATE , provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence , and also provided that the court finds that the aims of the criminal law ( in particular , reform of the offender ) may be furthered without the sentence being served immediately .

The relevant part of section CARDINAL(CARDINAL ) of the now repealed LAW DATE ( „ Закон за националната полиция “ ) , as in force at the material time , provided :

“ ... police [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] , in cases of :

NORP resistance or refusal [ by a person ] to obey a lawful order ;

NORP arrest of an offender who does not obey or resists the police [ officers ] ;

NORP attack against citizens or police [ officers ] ; ... ”

Under section CARDINAL ) of the LAW , the use of force had to be commensurate to , inter alia , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) of the LAW directed police officers to “ protect , if possible , the health ... of the persons against whom [ force was being used ] . ” Section CARDINAL(CARDINAL ) of the LAW provided that the use of force had to be discontinued immediately after its aim had been attained .

Under section DATE of ORG DATE ( „ Закон за задълженията и договорите “ ) , legal persons – including public bodies – are vicariously liable for the tortuous conduct of individuals employed by them .


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE , GPE .

On DATE the NORP police arrested the applicant . On DATE ORG in ORG accused her of forgery and attempted fraud . She and another person were suspected of having attempted to cash CARDINAL cheques for QUANTITY ( ORG ) and MONEY ( ORG ) in DATE . Those cheques were considered to have been forged .

The applicant denied involvement in any unlawful action . She maintained that the cheques had been issued by foreign investors interested in a business activity which she had been planning to launch in GPE . She further argued that the NORP bank concerned had never contested the validity of the cheque in pounds sterling .

On DATE the ORG remanded the applicant in custody with effect from DATE . Her detention was considered necessary as there was a risk of her absconding within the meaning of LAW ( a ) of LAW . The judge considered it relevant that the applicant was a foreign national and that she risked a prison term of DATE for the offences in issue . Reference was also made to LAW . ORG heard the applicant and referred to the statement of the applicant 's co - accused and available documentary evidence .

On DATE ORG extended the applicant 's detention to DATE . It held that , in addition to the above - mentioned grounds , her detention was also necessary as she might influence witnesses or otherwise hamper the investigation within the meaning of LAW ( b ) of LAW . In particular , important witnesses had to be heard in GPE whom the applicant had contacted by phone and fax prior to her detention . ORG found no delays in the investigation and noted that the authorities of GPE , GPE and GPE had to be asked for assistance .

On DATE ORG extended the applicant 's detention until DATE . As the NORP authorities had not complied with the requests for legal assistance it had been impossible to complete the investigation . It risked being jeopardised if the applicant was released .

On DATE the Banská Bystrica Regional Court granted a further extension of the detention , until DATE . That decision was justified by the fact that ORG had requested the assistance of the NORP authorities in obtaining witness statements and that those statements had not yet been submitted . The statements were necessary to establish the relevant matters in respect of which the statements of the accused differed . Reference was also made to the applicant 's nationality , the serious nature of the offence of which she was accused and the risk that she might influence witnesses if released . ORG relied on Articles CARDINAL § § CARDINAL(a ) , ( b ) and CARDINAL of ORG .

On DATE ORG extended the applicant 's detention until DATE . It noted that no procedural steps had been taken DATE . That was , however , due to the absence of a reply from the NORP authorities . ORG expressed the view that the applicant 's detention was strictly necessary until DATE only and that the preliminary proceedings should be completed before that date .

On DATE the applicant lodged a request for release , with reference , inter alia , to LAW ) , CARDINAL and CARDINAL of the Convention . She argued that the reasons invoked for her detention had fallen away and requested that the court dealing with the request hear her .

On DATE the ORG dismissed the request . With reference to the applicant 's arguments , the evidence and the statements of witnesses and the applicant 's co - accused it considered that the accusation of the applicant was justified and that the reasons for her detention , as specified in the earlier decisions , persisted . In particular , the applicant might influence witnesses and the law foresaw a minimum penalty exceeding DATE imprisonment for the offence imputed to her .

ORG decided in camera . Its decision was served on the applicant 's counsel on DATE and DATE . The applicant lodged a complaint on DATE and again on DATE . On DATE the ORG dismissed the complaint .

In the meantime , on DATE the applicant and her co - accused were indicted before ORG . On DATE that court dismissed the applicant 's request for release . It pointed to the applicant 's nationality and the heavy penalty for the offence of which she was accused . It had been established in the course of preliminary proceedings that in her correspondence the applicant had attempted to influence witnesses . ORG decision was served on counsel for the applicant on CARDINAL DATE . The applicant lodged a complaint . On DATE ORG dismissed that complaint .

In parallel , on DATE the Prosecutor General petitioned for a further extension of the detention of the applicant and her co - accused , until DATE . The applicant contested that request . She stated , in particular , that all witnesses had been heard and that her foreign nationality did not in itself justify her deprivation of liberty . She argued that the case was not complex and that there had been delays in the proceedings .

On DATE , ORG extended the applicant 's detention until DATE . It noted that the applicant was accused of having attempted to cash CARDINAL forged cheques and that the suspicion against her and her co - accused persisted . It invoked the risk of the applicant 's absconding with reference to the heavy penalty for the offences imputed to her and the fact that she was a foreign national . Her detention was therefore necessary within the meaning of LAW ) of LAW .

ORG further admitted that witnesses had been heard . Nevertheless , the applicant 's detention within the meaning of Article CARDINAL § CARDINAL(b ) of LAW remained necessary as the file contained correspondence , which had been written by the applicant or addressed to her , indicating that she had attempted to influence the investigation in the case . The criminal activity imputed to the accused persons was inseparable . There was a risk that they could influence each other or witnesses even at the trial stage of the proceedings . No particular delays in the proceedings had been established ; the relevant procedural steps had been delayed for objective reasons . ORG decided in camera in accordance with the relevant law .

On DATE the ORG petitioned ORG for a further extension of the applicant 's detention . It was argued that the reasons for her and her co - accused 's detention still existed and that the proceedings risked being jeopardised if they were released . On DATE the applicant 's counsel submitted written observations on that request . She argued that there had been no progress in the case following the indictment and that the length of the proceedings and her detention was excessive . The applicant also requested that ORG hear her .

On DATE ORG , at a meeting held in camera , extended the applicant 's detention until DATE . It based its decision on the fact that the applicant was a foreign national and held that the indictment indicated that her prosecution was justified . Both the applicant and her co - accused were foreign nationals residing abroad . Considering also the heavy penalty set down in law for such offences , their detention was justified within the meaning of LAW ) and QUANTITY of the Code of Criminal Procedure . Specific reasons for which it had been earlier concluded that the accused might influence witnesses and hamper the proceedings persisted . Reference was also made to ORG decision on the applicant 's request for release given on DATE ( see paragraph CARDINAL above ) .

ORG further noted that the case was complex from both the factual and the legal point of view . The file comprised CARDINAL pages . Given the short period of time which had lapsed after the filing of the bill of indictment , ORG had not yet had sufficient time to prepare the main hearing and decide on the case . The above extension by DATE of the applicant 's detention should suffice to bring the criminal proceedings to a close .

On DATE the ORG returned the case to the public prosecutor for further investigation . It decided that the applicant should remain in custody .

On DATE ORG quashed ORG decision in the part ordering the case to be returned to the public prosecutor . In particular , it did not consider relevant the argument that the file , to the extent that it concerned the applicant 's co - accused , had to be translated into LANGUAGE . ORG ordered ORG to examine the charges against the applicant and her co - accused and dismissed their complaint against the decision ordering their continued detention .

The applicant was released on DATE following the belowmentioned order of ORG ( see paragraph CARDINAL ) . She returned to GPE .

The main hearing in the criminal proceedings was scheduled for CARDINAL and DATE . The applicant was absent for health reasons . ORG decided to deal with the charges against her in a separate set of proceedings .

On DATE the applicant informed ORG that she insisted on the charges against her being determined in her presence and that she still could not attend a hearing for health reasons .

On DATE the ORG discharged the applicant 's co - accused and ordered his release . On DATE ORG quashed that judgment and returned the case to the public prosecutor for further investigation . ORG noted that witness statements included in the file were contradictory . The facts of the case had not been sufficiently established . In particular , the public prosecutor had proceeded erroneously in that he had abstained from having a witness examined in GPE prior to the filing of the bill of indictment on DATE . Such evidence could have shed light on the matter .

On DATE ORG returned the applicant 's case to the public prosecutor for further investigation , with reference to ORG judgment of DATE . Subsequently the charges against the applicant and her co - accused were again examined jointly and the authorities of GPE , GPE and GPE were asked for assistance .

On DATE the applicant informed the investigator that she was unable , because of serious health problems , to undergo a crossexamination with a witness scheduled for DATE .

In DATE the NORP authorities decided to request their NORP counterpart to hear a representative of the bank concerned as a witness . The proceedings are pending .

On DATE the applicant lodged a complaint with ORG . She specified that she sought the finding of a breach of LAW ( c ) and CARDINAL of the Convention in the proceedings leading to ORG above - mentioned decision of DATE . In the reasons for her complaint the applicant also invoked LAW and CARDINAL of the LAW . She argued that there had been no relevant reasons for her continued detention , that she had not been released , that ORG had neither heard her nor had it addressed the arguments which she had submitted in writing , and that she had been informed of the decision in issue on DATE only .

On DATE ORG rejected the complaint as being manifestly ill - founded . It held that neither the way in which ORG had proceeded nor the conclusion which it had reached were contrary to the applicant 's rights under LAW and CARDINAL of the Convention a breach of which she had formally ORG considered to be relevant and sufficient , that her continued detention was still necessary within the meaning of the relevant provisions of LAW .

On DATE the applicant lodged a second complaint with ORG . She alleged a breach of LAW ( c ) , CARDINAL and CARDINAL of the Convention in the proceedings leading to ORG decision of DATE to extend her detention to DATE . In particular , the applicant argued that there had been no relevant reasons for her continued detention , that it had lasted an excessively long time , and that ORG had not heard her . The applicant requested ORG to order reimbursement of the costs of her legal representation in the constitutional proceedings , which amounted to CARDINAL NORP korunas ( CZK ) , plus value - added tax .

In a judgment of CARDINAL DATE ORG held that ORG had breached the applicant 's right under LAW in that it had failed to hear her prior to its decision of DATE to extend her detention . It quashed that decision , ordered ORG to release the applicant immediately and to reimburse CARDINAL NORP korunas ( the equivalent of CZK CARDINAL,CARDINAL ) in respect of the costs of her legal representation . In view of this conclusion ORG considered the examination of the applicant 's other complaints unnecessary .

The following provisions of LAW applicable at the material time are relevant in the present case .

Under LAW , a person charged with a criminal offence can be detained , inter alia , where there are reasonable grounds for believing that he or she would abscond ( sub - paragraph ( a ) of LAW ) , influence the witnesses or the co - accused or otherwise hamper the investigation ( subparagraph ( b ) ) or continue criminal activities , complete an attempted offence or commit an offence which he or she had prepared or threatened to commit ( sub - paragraph ( c ) ) .

Article CARDINAL § CARDINAL provides that an accused person can be remanded in custody where he or she is being prosecuted for an offence punishable with a minimum prison sentence of DATE .

Article CARDINAL § CARDINAL provides that a person 's detention in the context of both preliminary proceedings and during trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and , in cases of particularly serious offences , DATE .

Article CARDINAL § CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person 's detention persist .

Section CARDINAL(CARDINAL ) provides that a request for proceedings to be started before ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain , specify the reasons for the request and indicate evidence in support .

Under paragraph CARDINAL of section CARDINAL , ORG is bound by a request from a plaintiff for proceedings to be started unless the LAW expressly provides otherwise .

Pursuant to section CARDINAL(CARDINAL)(a ) , a complaint must indicate , in addition to the information mentioned in LAW , the fundamental rights or freedoms the violation of which a plaintiff alleges . Paragraph CARDINAL of section CARDINAL requires that plaintiffs who seek a just satisfaction award should specify its extent and indicate the reasons for their claim .

ORG has declared itself bound , in accordance with section CARDINAL(CARDINAL ) of LAW DATE , by a party 's submission aimed at initiating proceedings before it . ORG has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined ( see , for example , decisions III . ÚS CARDINAL of DATE or III . ÚS CARDINAL of DATE ) .


Remainder inadmissible;Violation of Art. 3;Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants are CARDINAL NORP nationals who live in PERSON . The first applicant , PERSON , was born in DATE . She is the mother of the second applicant , PERSON . S. , the third applicant , PERSON . PERSON , and the fourth applicant , PERSON . S. , who were born in DATE , DATE and DATE respectively .

On DATE the applicants left the apartment in which they lived with PERSON , who was the first applicant ’s husband and the father of the second , third and fourth applicants . The first applicant moved the second , third and fourth applicants away from the apartment to protect them from physical and sexual abuse by PERSON

On DATE the first applicant filed for divorce against her husband in the PERSON I ORG . On DATE ORG placed the second , third and fourth applicants in her care pending the outcome of the divorce proceedings . On DATE ORG granted the petition for divorce . The divorce was finalised on DATE . The first applicant was granted custody of the second , third and fourth applicants on DATE .

On DATE the first applicant filed a criminal complaint against her husband on the ground that he had ill - treated both her and the children and had sexually abused CARDINAL of their daughters .

On DATE the first applicant requested that the PERSON I ORG issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy . In making the request , the first applicant referred to her husband ’s behaviour in respect of the children and submitted the opinion of an expert , which indicated that the second , third and fourth applicants had suffered from physical and psychological ill - treatment on account of their father ’s behaviour and expressed the view that it was absolutely necessary to separate the CARDINAL applicants from him .

Articles DATE and CARDINAL of LAW permitted the courts to issue an interim measure requiring the parties to perform something , forbear from something or bear something . On DATE ORG dismissed the first applicant ’s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it . As a consequence , the applicants had to move away from their home , their family and their friends and the second and third applicants had to move to a new school .

The first applicant appealed to ORG in PERSON . She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father .

NORP On DATE ORG in PERSON upheld the first - instance decision not to issue an interim measure . It held , with reference to the relevant law and practice , that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings . Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband . ORG indicated , however , that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them .

The applicants complained to ORG . On DATE , shortly before ORG issued its judgment , the first applicant ’s former husband was convicted by ORG in PERSON of ill - treatment , violence and sexual abuse . He was sentenced to CARDINAL years’ imprisonment . An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second , third and fourth applicants’ health and development .

In a judgment dated DATE , ORG found that the PERSON I ORG and ORG in PERSON , by failing to take appropriate action with a view to protecting the second , third and fourth applicants from ill - treatment by their father , had violated their rights under LAW torture , inhuman or degrading treatment or punishment ) and CARDINAL § § CARDINAL and CARDINAL ( inviolability of home ) of the LAW as well as their rights under LAW , which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence , including sexual abuse .

The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant . The decision stated that the second , third and fourth applicants had not been parties to the proceedings concerning the interim measure . In view of the facts of the case , the ordinary courts should , nevertheless , have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill - treatment by their father . Such an obligation resulted from the relevant provision of LAW as well as from LAW .

ORG held that the finding of a violation provided in itself appropriate just satisfaction to the CARDINAL applicants concerned . It therefore dismissed their request for compensation for non - pecuniary damage .

As regards the first applicant , ORG decision stated that an interim measure could have been granted had she phrased her request in a different manner . In reaching that conclusion ORG had not , in ORG view , acted contrary to the first applicant ’s constitutional rights .

In DATE the relevant legislation had been amended specifically to provide that the domestic courts could order a party “ not to enter temporarily a house or an apartment occupied by a close person or person in his / her care or education in relation to whom there are reasons for he / she being suspected of violence . ” DATE before ORG issued its judgment , the first applicant lodged with the PERSON I ORG a motion for an interim measure ordering , inter alia , her former husband not to enter the common apartment . On DATE PERSON I ORG issued an interim order in those terms , starting with the date of the delivery of the decision and expiring DATE after the order became enforceable . Moreover , the court ordered the first applicant to file an action for exclusion from the apartment within DATE from the date of delivery of the decision . The decision became enforceable on DATE .

On DATE the first applicant filed an action with the PERSON I ORG to exclude her former husband from using the apartment . On DATE she filed with the PERSON I ORG an action for cancellation of the right to joint lease of the apartment . On DATE the PERSON I ORG cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof . Furthermore , the court ordered the applicant ’s former husband to move from the apartment within DATE from the date of final judgment .

Article CARDINAL ( CARDINAL ) of LAW , provides as follows :

“ Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties , or if there is a concern that the exercise of judgment would be threatened .

The competent authority to issue an interim measure is the court which is competent to deal with the case . The parties to the proceedings are those who would be the parties if it concerned the merits . ”

Article CARDINAL provides that through an interim measure the court may impose upon the party , within the time assigned by the court , to perform something , to forbear from something , or to bear something .

The amended LAW provided :

The amended LAW specifically provides that the court may order a party “ not to enter temporarily a house or an apartment occupied by a close person or person in his / her care or education in relation to whom there are reasons for he / she being suspected of violence . ”

Article CARDINALa ( CARDINAL) of the Civil Code provides :

“ If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband , who is the joint user of an apartment , or from a close person jointly using an apartment , based on a motion of CARDINAL of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him / her totally from the right of use of an apartment .


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

The applicant is a NORP national , born in DATE and living in GPE . She is an art dealer . At DATE , she obtained through a transfer of a sales commission a painting that was to be sold by DATE . A statement of DATE , according to which the painting was an authentic work of PERSON ( a famous NORP artist ) , was attached on the back of the painting .

On DATE , the original owner of the painting reported to the police that the applicant had refused to return the painting despite the expiry of the sales commission and his repeated requests . He considered that a crime had been committed . Subsequently , a police investigation was initiated . The police questioned the applicant and the original owner of the painting . As it appeared that the applicant had sold the painting to a third person , the police questioned him , too . Furthermore , the painting was seized .

The applicant was charged with aggravated fraud and aggravated embezzlement , committed concurrently , contrary to LAW , section CARDINAL ( CARDINAL ) , and chapter DATE , section CARDINAL ( CARDINAL ) , of LAW ( rikoslaki , strafflag ) . According to the indictment , the applicant had on DATE stolen the painting , worth MONEY ( ORG ) , entrusted to her , by selling it to a third person , deceitfully as her own , for FIM CARDINAL,CARDINAL . Her intention had been to obtain an unjust pecuniary advantage , and the action had caused financial loss to the buyer . The Prosecutor considered that both the embezzlement and the fraud were aggravated in particular since the property in question was very valuable and since considerable benefit had been sought .

On DATE the court proceedings in ORG ( kihlakunnanoikeus , häradsrätten ) of GPE commenced . The court ordered that the painting remain seized . The court heard the applicant , the original owner and the buyer . The applicant pleaded not guilty to the above - mentioned charges , claiming that there was only a dispute over the ownership and payment of the painting . Furthermore , CARDINAL witnesses were questioned relating to the circumstances of the sales commission and the applicant 's business activities . Later , the applicant was accused of CARDINAL additional counts of embezzlement and fraud .

On DATE , the applicant , who now had doubts as to whether the painting was authentic , requested the court to authorise and order the examination of its authenticity . ORG ruled , as far as relevant , as follows :

( Translation )

" ... the examination of the authenticity of the painting at this stage does not concern [ the applicant 's ] interests and rights and thus the request concerning such an interlocutory decision can not be complied with . ... "

On DATE , ORG convicted the applicant on all CARDINAL charges brought against her , i.e. also on the charge of aggravated embezzlement and aggravated fraud now at issue . The court sentenced her to imprisonment totalling DATE and DATE . The seizure of the painting was lifted , and the court ordered that it be returned to the estate of the buyer .

On DATE , the applicant appealed to ORG ( hovioikeus , hovrätten ) of GPE requesting that she be acquitted or her sentence be reduced . She submitted that the first charge had led to the other CARDINAL charges . She stated that she would attempt to obtain new evidence concerning the authenticity of the painting and requested that an oral hearing be held or that the case be returned to ORG in case such new evidence appeared .

On DATE , the applicant , represented by counsel , requested the Prosecutor to order an investigation into the authenticity of the painting . Following her request an investigation was initiated . The police obtained from ORG a statement , dated DATE , according to which the painting was not authentic . On DATE , the police questioned the original owner of the painting . The applicant was not questioned .

On DATE , the Prosecutor submitted a supplementary police report , including ORG statement , to ORG . In the accompanying letter the ORG asked ORG to take the report into account by virtue of chapter CARDINAL , section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalk ) . The Prosecutor found that , from the angle of criminal law , the non - authenticity of the painting did not essentially affect the assessment of the case . He stated further that the police had made attempts in order to question the applicant but they had not been able to reach her . The Prosecutor did not specify these attempts any further .

On DATE , ORG upheld the judgment of ORG without inviting the applicant to submit comments or holding an oral hearing . Furthermore , neither the original owner nor the estate of the buyer were heard . The court did not make any separate decision as to whether the supplementary police report had been taken into account as evidence or not . ORG approved ORG reasoning without making any changes to it and , consequently , in its own reasoning it did not in any way mention the content of the supplementary police report or of ORG statement .

The applicant found out about the above - mentioned ORG statement in DATE . Following her request , the Prosecutor sent it to her on DATE .

On DATE , the applicant , assisted by counsel , requested leave to appeal to ORG ( korkein oikeus , högsta domstolen ) . She referred to the fresh statement and maintained that if this information had been available in the lower courts the outcome of the case would have been a different one . She invoked the concept of a fair trial guaranteed by human rights conventions .

In his comments to ORG stated that the authenticity of the painting was not relevant for the assessment of the criminal case at issue .

On DATE , ORG on DATE refused the applicant leave to appeal .

On DATE , the applicant lodged a petition with ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) concerning the ORG 's failure to communicate to her the police report concerning the authenticity of the painting .

On DATE , the Deputy Parliamentary Ombudsman ( apulaisoikeusasiamies , biträdande justitieombudsman ) found that the Prosecutor , by failing to communicate the supplementary police report to the applicant or her representative , had shown negligence in respect of his official duties . The Deputy Parliamentary Ombudsman took into account that the supplementary police investigation concerned the value of the painting , this being an important element when considering the nature of the offence and the punishment thereupon . As a result , the Deputy Ombudsman addressed a critical remark ( huomautus , anmärkning ) to the Prosecutor .

NORP The applicant served CARDINAL of the total DATE imprisonment , which means that she spent DATE and DATE in prison .

According to chapter CARDINAL , section CARDINAL , of LAW , the court of appeal may take into account a written pleading or other documents submitted to it after a time - limit has expired if special grounds therefor exist . If the pleading or document can affect the outcome of the case the court of appeal is obliged , under LAW , to request the parties to give written comments , if such a measure is not considered to be manifestly unnecessary .


CASE OF KAZAKEVICH AND OTHER "ARMY PENSIONERS" CASES v. RUSSIA

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

NORP The applicants’ names and other details are indicated in the table below . All the applicants except PERSON are NORP retired servicemen entitled to payment of pensions by the ORG . PERSON is the widow of a colonel who died in the crash of a training aircraft .

On various dates the applicants sued the military commissions in their regions and , in case of PERSON and ORG , ORG and ORG ( ORG ) respectively , claiming payment of a pension or increase of pensions on account of their military service and , in the case of PERSON , on account of her husband ’s death .

The domestic courts granted the ORG claims ( see details of the judgments in the table below ) . The judgments in cases of GPE and PERSON were upheld on appeal ; other judgments were not appealed against by the defendant authorities . All the judgments in the ORG favour thus became binding and enforceable on the dates indicated in the table below .

On various dates the ORG of higher courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments in the ORG favour , considering that the lower courts misapplied the material law ( see details of the judgments in the table below ) . In the cases of Odintsova and ORG dismissed the ORG claims by the same judgments . In the other cases the ORG sent the cases back to the first instance courts , which later dismissed the ORG claims .

In CARDINAL cases ( PERSON , PERSON , ORG , ORG , the judgments in the ORG favour were not enforced . In CARDINAL cases ( GPE , GPE , ORG , ORG and PERSON ) , the judgments in the applicants’ favour were enforced as regards the lump sum and/or DATE awards . It appears that the payment of DATE awards was stopped a short time before or after the quashing of the judgments on supervisory review .

In the case of PERSON , LOC of PERSON delivered on DATE another judgment in the applicant ’s favour , granting pension arrears and a sum of MONEY ( RUB ) as compensation for non - pecuniary damage and costs . The judgment was not appealed against and became enforceable on DATE . The ORG submitted that all awards had been credited to the applicant ’s bank account on CARDINAL DATE and that a separate sum of RUB CARDINAL had again been credited to the applicant ’s account on DATE as a result of a clerical error . The applicant submitted that the pension arrears awarded by the court had been credited to her account on DATE but the remainder award of RUB CARDINAL had only been credited in DATE .

On DATE PERSON filed a separate lawsuit against ORG , claiming compensation in respect of pecuniary and non - pecuniary damage . On DATE the ORG of PERSON rejected her claims . On DATE ORG upheld the judgment on appeal .

The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG ’s judgment in the case of Sobelin and Others ( see Sobelin and Others v. GPE , nos . CARDINAL/CARDINAL et al . , § § DATE , CARDINAL DATE ) .

In DATE judgments delivered against the public authorities were executed in accordance with a special procedure established , inter alia , by the ORG ’s Decree No . CARDINAL of DATE and , subsequently , by Decree No . CARDINAL of DATE , entrusting execution to ORG ( see further details in PERSON and Others v. GPE , nos . PERSON . , § § DATE , DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

In DATE the applicant arrived in GPE . On DATE he was granted a residence permit on the grounds that he lived with a NORP woman and they had had a child , born on DATE . The residence permit was valid until DATE . On an unspecified date the applicant and his partner separated . The applicant and his former partner agreed on access arrangements .

On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) rejected the applicant ’s application to renew his residence and work permit on the ground that he had repeatedly committed offences . He unsuccessfully appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of GPE .

On DATE ORG ordered the applicant to be deported as he was staying in GPE without the required residence permit . He was further made subject to a DATE prohibition on entry into GPE . He appealed to ORG , requesting that the decision be rescinded . He stated that he had lived in GPE for DATE and that he had a child who had a right to visit his father . In GPE he allegedly had no home or close relatives apart from a brother .

On DATE the access arrangements as previously agreed by the parents were confirmed by ORG ( sosiaalivirasto , socialbyrån ) of GPE , and DATE by ORG ( sosiaalilautakunta , socialnämnden ) . The applicant was granted a right to visit his child every other DATE and during holidays .

On DATE ORG rejected his appeal against the refusal of a residence permit . On DATE ORG refused leave to appeal .

On DATE ORG rejected his appeal against the deportation order . It referred to LAW and reasoned , inter alia , that the deportation of the applicant did not amount to an interference with his right to family life , and did not affect the rights of his child contrary to LAW . It concluded that when balancing the interests for and against his expulsion , and taking into account the reasons why his residence permit was not renewed , the applicant could be deported to GPE .

He applied for leave to appeal to ORG , claiming , inter alia , that he had not committed any recent offences and was capable of supporting himself and his child .

On DATE he married a woman who had a permanent residence permit in GPE .

On DATE ORG refused leave to appeal . In its written submissions to ORG the Directorate of Immigration noted that the applicant had been ordered to be deported as he had committed CARDINAL petty offences . After the deportation order he had committed a further CARDINAL offences , namely driving a motor - vehicle without a licence and was further suspected of misleading an official by using a false identity .

According to the information provided by the ORG , which was not denied by the applicant , the applicant re - entered GPE in DATE . Subsequently he applied twice for a new residence permit on the basis of his new marriage , his son and his family ties . His applications were rejected . In its decision of CARDINAL DATE ORG found that the applicant endangered public order and security and considered that his marriage was a sham . On DATE the ORG agreed , noting , furthermore , that the spouses’ divorce was pending . Further , according to that information , the applicant ’s prohibition on entry into GPE remains in force until DATE .

Section CARDINAL , subsection CARDINAL ( PERSON ) of LAW ( ulkomaalaislaki , utlänningslagen ; CARDINAL , “ the LAW ” ) , as in force at the relevant time , provided that the application of the LAW should not restrict aliens’ rights any more than necessary .

Section CARDINAL , subsection CARDINAL ( CARDINAL ) of the LAW provided that an alien could be deported if he resided in GPE without the required passport or a residence permit . According to subsection CARDINAL ( CARDINAL ) an alien could be deported , inter alia , if he or she had committed an offence for which the minimum penalty was DATE imprisonment , or if he or she had repeatedly committed criminal offences .

Section CARDINAL of the Act provided that circumstances such as the length of the alien ’s stay in GPE , the existence of a parent - child relationship , family and other ties with GPE , or , in connection with section CARDINAL , subsection CARDINAL(CARDINAL ) of the LAW , the nature of the offence or offences committed , had to be taken into account as a whole when deportation was being considered .

Section CARDINAL ( NORP ) of the Act provided that an expulsion may be ordered by ORG if so requested by the police . ORG could in certain exceptional circumstances order an expulsion even if the measure had not been requested by the police . The person concerned had to be heard .

Section CARDINAL ( NORP ) of the Act provided that an alien could be prohibited from entry into GPE for a maximum of DATE or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by ORG . Such an order could be revoked by ORG , either entirely or for a limited period , owing to changed circumstances or for an important personal reason .

The Government referred to the following decisions of ORG .

ORG DATE A CARDINAL : The applicant had repeatedly committed offences . After being informed of a deportation order , he had married a NORP citizen . He had a child with another NORP citizen . He also studied at a university . Considering all the facts of the case , the circumstances as a whole and especially the type of the offence , the applicant ’s deportation did not violate his right .

ORG DATE A CARDINAL : The court found no sufficient reasons for deporting the applicant family from GPE on the ground that they had no visa or residence permits , given their long stay in GPE and their other circumstances and ties with the NORP society .

ORG DATE A CARDINAL : The court did not find grounds for deporting the applicant , given his ties with GPE , including his marriage - like relationship with a NORP citizen of the same sex .

KHO DATE A CARDINAL : The court did not find sufficient grounds for deporting the family , given the children ’s interests and the family ’s circumstances as a whole . In that case , the applicant had been granted a residence permit for his studies at a university . The residence permits of the applicant and his family members were not extended because the applicant had not pursued his studies . ORG found that the family had lived together in GPE DATE , during which it had integrated into NORP society and its way of life . The elder child went to a NORP school and the younger child was at a kindergarten . The family members spoke NORP and had relatives in GPE . The parents carried on business in GPE , and therefore their subsistence was secured at least partly .

Decision No . CARDINAL of DATE : The court found no sufficient grounds for deporting the applicant , who had immigrated to GPE together with his mother in DATE at DATE . The court stated , inter alia , that the then NORP husband of the applicant ’s mother had adopted him abroad in DATE . He had a child with a NORP citizen , and they had joint custody of the child . He did not live together with the child or the child ’s mother . The applicant had committed a number of offences , including an aggravated narcotics offence . He had also undergone narcotics detoxification . However , the applicant had a permanent residence permit for GPE since DATE . At the time of the court ’s ruling he had lived in GPE for DATE . In the overall assessment of the case , the court paid particular attention to his long stay in GPE and to the fact that he had received his school education in GPE . He had integrated into NORP society and had no ties with his home country .

KHO CARDINAL:CARDINAL : The court found that the facts speaking against deportation of the applicant had more weight than the CARDINAL aggravated narcotics offences , consisting of the smuggling of a large amount of hashish , which he had committed in DATE . The court took into account , inter alia , the applicant ’s family life with a NORP citizen and their CARDINAL children , the problems they would have if they had to settle in the applicant ’s home country , the length of time taken to process the case and the fact that the applicant had not committed any other offences .