Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and subsequently placed in detention .

On DATE the ORG released the applicant from detention and imposed other preventive measures , namely bail , police supervision and prohibition on leaving the country , combined with the withholding of his passport . Those measures were imposed for an indefinite period of time .

On DATE the applicant and the other CARDINAL accused were indicted . The applicant was charged with running an organised criminal group and several counts of fraud , stealing cars and handling stolen goods . In the bill of indictment of CARDINAL pages the prosecutor requested the court to hear CARDINAL witnesses .

On DATE the applicant ’s lawyer requested the trial court to postpone the hearing scheduled on DATE , because of the applicant ’s state of health . The lawyer submitted that ORG had informed him that the applicant was in a psychiatric hospital in connection with depression and a suicide attempt . It is unclear whether the hearing was postponed .

On DATE the court decided that the trial should be restarted .

NORP The applicant ’s lawyer made CARDINAL requests for the measure preventing him from leaving GPE to be lifted ( he produced copies of the following CARDINAL requests : those of CARDINAL May , DATE , and DATE , CARDINAL DATE and CARDINAL DATE , and DATE ) . He relied on the fact that the applicant had been deprived of contact with his CARDINAL children , who lived in GPE , and on his poor state of health . He also considered that the prohibition on leaving GPE had already lasted too long and that the applicant ’s situation was getting worse with time : he had no work and no income in GPE , and thus no means of staying there for DATE .

The ORG refused each of the requests to lift the preventive measure in question , relying on similar grounds , which included a reasonable suspicion that the applicant had committed the offences with which he had been charged and the likelihood that a heavy penalty would be imposed on him . The court also considered that allowing the applicant to leave the country would impair the proper conduct of the proceedings . As regards contact with his family , the court considered that there was nothing to prevent the applicant ’s children from visiting him in GPE . The court also found that the concerns about the applicant ’s health had not been confirmed by any medical evidence .

All the appeals lodged by the applicant ’s lawyer were unsuccessful ; the decisions refusing to lift the preventive measure were all upheld .

On DATE the ORG upheld the decision of DATE , in which the same court had refused the applicant ’s lawyer ’s request to lift the prohibition on leaving the country .

On DATE ORG lifted the preventive measure applied in relation to the applicant . The court took the view that :

“ ( ... ) taking into account that the accused had already been heard , the period of time during which the measure was applied and the fact that the accused is a foreigner , a renewed application of this measure must be considered unnecessary to secure the proper conduct of the proceedings and too onerous for the accused . ”

On DATE the court decided again that the trial should be restarted .

After DATE the applicant left for GPE . On CARDINAL DATE and DATE the trial court held CARDINAL hearings , at which the applicant did not appear . His counsel was present .

On DATE the trial court held a further hearing . The applicant and his counsel appeared at the trial . However , the applicant and several other co - accused decided not to participate in the hearing and agreed that the court could continue the proceedings without their presence . The court held the hearing and heard CARDINAL witnesses .

The proceedings are pending before the first - instance court .

The DATE Code of Criminal Procedure defines prohibition on leaving the country ( zakaz opuszczania kraju ) as CARDINAL of the “ preventive measures ” ( środki zapobiegawcze ) . Those measures are , in addition to prohibition on leaving the country , pre - trial detention ( tymczasowe aresztowanie ) , bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , and a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) .

Paragraph CARDINAL of LAW provides , in so far as relevant , as follows :

“ A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding ; this prohibition may be combined with withholding the accused ’s passport or other travel document or with a prohibition on issuing such a document ... ”

Paragraph CARDINAL of LAW allows the court to proceed in the accused ’s absence and provides , in so far as relevant , as follows :

“ If an accused who has already been heard leaves a courtroom without the court ’s consent , the court may continue proceedings in the accused ’s absence and a judgment given in these circumstances will not be considered a default judgment ... ”

“ The above provision is applicable when an accused who has already been heard and informed of DATE postponed hearing fails to appear without giving any justification for his absence ” .


CASE OF THYNNE, WILSON AND GUNNELL v. THE UNITED KINGDOM

Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

C. Russo;Gaukur Jörundsson;N. Valticos;R. Pekkanen

ORG The first applicant , Mr PERSON , is a NORP citizen , born in DATE .

ORG On DATE he pleaded guilty at ORG , GPE , to rape and buggery . On DATE he was sentenced by the ORG to life imprisonment on each count .

ORG On DATE , within TIME of his release from prison , the applicant had gained entrance to a flat under the pretence that he was a policeman investigating a burglary that had just taken place there . The flat was occupied at the time by a DATE woman whom he threatened to kill with a knife if she made a noise . He told her to take her clothes off and then raped and buggered her as well as inflicting some minor puncture wounds with a pair of scissors he had found in the flat .

ORG The applicant had a long criminal record , having served various sentences of imprisonment for theft and burglary . In view of the nature of his personality disorder - described by a psychiatrist as " a severe psychopathic character disorder " - the Recorder considered both a hospital order and a long determinate sentence to be inappropriate . An indeterminate life sentence was imposed to enable the Home Secretary to release Mr Thynne once his condition had sufficiently improved for it to be reasonably safe to do so . The Recorder stated as follows :

" But for the psychiatric reports that I have seen I would impose on you a very long prison sentence . As it is , I am going to sentence you to life on each count in order that those in a position to observe any improvement in your personality disorder , those capable of carrying out any operative treatment which may [ be ] seen to be necessary , with your consent , on your frontal lobe , may judge the time when it is reasonably safe that you should be free . "

ORG The applicant applied to a single judge for leave to appeal to ORG ) against the life sentences on the ground that they were manifestly excessive and wrong in principle as they resulted in custody for a longer time than the appropriate determinate sentence . His application was refused and so he renewed it to the full court .

Refusing leave to appeal on DATE , the court stated as follows :

" Without going into any more detail as to the offences , it is quite clear and indeed is accepted ... on the applicant ’s behalf , that this was a very serious and violent attack upon this lady which involved not merely violence but the indecency and indignities to which she was subjected .

Life sentences are imposed in circumstances where the offence is so grave that even if there is little risk of repetition it merits such a severe , condign sentence and life sentences are also imposed where the public require protection and must have protection even though the gravity of the offence may not be so serious because there is a very real risk of repetition .

This case falls within neither of those categories which express extreme situations but undoubtedly the offences here were very grave indeed and undoubtedly , in the light of the medical reports on this man , the ORG can not be sure by any means that he would , in society , not give way to outbursts of this nature which would very seriously affect other persons .

In those circumstances the balancing exercise that the ORG has to do is indeed a difficult one when presented with facts of this nature . We do not see the life sentence in this case as necessarily involving detention in custodial conditions for a very long period of time . It depends upon the regime to which he is subjected and the treatment that he can get . If a determinate sentence were to be substituted , then the ORG would have to pass such a sentence as would ensure that he was kept in custody for a very long time indeed and , on the facts of this case as we see it , it will mean that probably the ORG would err on the side of passing a sentence so long that it would result in his remaining in custody for a longer time than he probably will remain under a life sentence . "

ORG In DATE Mr Thynne was accepted for treatment at PERSON , a psychiatric prison . However , he decided not to accept the place offered as , in the light of medical evidence that he was not amenable to surgery or psychiatric treatment , he was told that he would not automatically be given early release .

ORG Following representations made on the applicant ’s behalf , his case was referred to ORG . In DATE the ORG recommended that it should be referred to ORG in DATE by which time he would have been detained for DATE . ORG decided not to recommend release .

ORG On DATE the applicant absconded from an open prison and committed further offences . He was arrested on DATE and was subsequently sentenced to CARDINAL months’ imprisonment on charges of theft , unlawful possession of drugs and criminal damage . The sentence was to run concurrently with the existing life sentence .

ORG On DATE ORG recommended that his case again be referred to ORG DATE after his arrival at FAC . On DATE , however , he escaped when he was visiting his mother who was gravely ill . He was recaptured DATE and the date of referral to ORG was put back to DATE . In DATE he was transferred to ORG where he was examined by the prison department psychiatrist who found no evidence of mental illness and saw no need for psychiatric treatment . ORG did not recommend release .

ORG In DATE Ministers accepted that the punitive element of his sentence ( the " tariff"- see paragraphs CARDINAL and CARDINAL below ) had been satisfied and that risk was the sole remaining consideration in his continued detention .

ORG In DATE the applicant ’s case was referred to ORG which recommended a further review DATE . In DATE ORG again recommended that he remain in custody , but in DATE it recommended his release . However , following its further consideration of his case in DATE , ORG again recommended that he remain in custody with no release date but that there should be a further review DATE after his transfer to an open prison .

ORG The second applicant , Mr PERSON , is a NORP citizen , born in DATE .

ORG On DATE he pleaded guilty at ORG , GPE , inter alia , to CARDINAL count of buggery , CARDINAL counts of attempted buggery and CARDINAL counts of indecent assault on boys DATE . He had a very long history of sexual offences and was sentenced to life imprisonment for the offence of buggery and DATE on each of the other CARDINAL counts , to be served concurrently .

In passing sentence the Judge said :

" I entirely accept that , to a large extent , you can not help yourself . To that extent , your moral guilt is the less , but I have CARDINAL duties to perform . CARDINAL is a duty to find the correct sentence as far as you are concerned , having regard to your make - up , your physical and mental make - up . ’t control themselves .

I hope that , in the course of time a method of treatment for your particular freakish affliction can be found . I think it will be in the best interest of society generally , and yourself in particular , if some form of treatment for you could be found . What I am going to do in your case may sound harsh from your point of view , but it will be explained to you , no doubt , by your counsel hereafter , that it may in fact hold out more hope to you than if I merely went up to perhaps CARDINAL , DATE or DATE , or even DATE in a particular case .

The sentence of the court is that so far as the count of buggery is concerned , that is the eighth count on the indictment , you will go to prison for life . So far as the counts of attempted buggery and indecent assault are concerned , you will go to prison for DATE . All these sentences to be concurrent . Now I am sure that your counsel will have a word with you hereafter and will indicate what the situation is with regard to a life sentence , but as I say , I think my main duty in this particular case is to protect the public and the young public , in the light of what I have heard occurred in your case . I only hope that , in due course , some form of treatment , perhaps that to which the doctor refers in the medical report which I have seen , may help you . "

ORG In DATE the applicant ’s application to a single judge for leave to appeal to ORG ) was refused . Having renewed his application to the full court , he abandoned it in DATE , DATE before it was to have been heard . In DATE he applied to ORG to have his notice of abandonment set aside as a nullity . On DATE , ORG turned down his application , but did give some consideration to the merits of the substantive appeal . In the words of Lord Justice PERSON :

" ... the applicant has not established a situation in which this ORG could properly allow him to withdraw the notice of abandonment . The ORG has thought it right to go to some extent into the history of the matter in order to establish that even if such a withdrawal were permitted , it could not possibly be of advantage to the applicant , if we were to substitute for the life sentence a very long sentence that really would not be distinguishable from a life sentence . But if he wishes to take advantage of it , build himself up and strengthen his own character , he has far better prospects under an indeterminate sentence than under a long determinate sentence . "

ORG The applicant ’s case was first referred to the ORG after DATE of his sentence and they recommended that his case be reviewed by ORG after DATE of his sentence had been served .

Accordingly , in DATE , ORG heard his case and referred it to ORG , who , on DATE , recommended his release into a controlled protective environment with psychiatric supervision not later than DATE . On DATE , pursuant to the Secretary of ORG ’s authorisation of CARDINAL DATE , the applicant was released on licence on condition that he :

( i ) ORG live at a probation hostel ;

( ii ) co - operate with his probation officer ;

( iii ) attend appointments with his supervising consultant psychiatrist and take any prescribed treatment ; and

( iv ) refrain from any activity involving young boys without the permission of his probation officer .

ORG On DATE , DATE after his release on licence , ORG recommended his recall and on DATE the Secretary of ORG revoked his licence . The applicant on his return to prison was informed that he had been recalled because his conduct had given cause for concern and he had failed to co - operate with his supervising officer . The applicant exercised his right to make written representations against his recall , but on DATE , after referral by the Secretary of ORG , ORG declined to change the decision .

ORG On DATE the applicant commenced judicial review proceedings to have this decision quashed on the ground that he had not been provided with adequate details of the reason for his recall as required by section CARDINAL ) of LAW DATE and that he had accordingly been unable to make effective representations .

ORG conceded the inadequacy of the reasons given and provided a CARDINAL page statement on DATE , which included the allegations that :

( i ) ORG the applicant had sought to get himself evicted from the probation hostel by refusing to pay his rent , by other residents of his offences and thus risking attack from them and by leaving a schoolboy ’s cap in the sitting - room of the hostel as a warning that he intended to re - offend ;

( ii ) the applicant had protested against the probation officer ’s refusal to allow him to take part in activities at the local sports centre ;

( iii ) the applicant had shown an interest in watching boys play football and his psychiatrist suspected that he was exploring ways of contacting boys again .

ORG then agreed to allow the applicant the opportunity to make further representations to ORG , which he did , denying the allegations made against him . On DATE his solicitors requested disclosure of a number of reports which were before ORG when it made its decision .

ORG On DATE ORG considered the applicant ’s case . The court quashed ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) on the ground that it was flawed by a procedural impropriety , in that the applicant had not been given sufficient reasons to enable him to make proper representations .

ORG By letter of CARDINAL DATE the applicant ’s lawyer requested disclosure of the probation report which alleged non - cooperation and asked for his client to be given an oral hearing with legal representation . However , ORG did not answer this request and after a meeting on CARDINAL DATE maintained the decision not to release PERSON .

ORG In DATE ORG reconsidered the applicant ’s case but made no recommendation to release him .

ORG In DATE ORG recommended that his case should be referred to ORG in DATE . Accordingly , in DATE , ORG re - examined the applicant ’s case but did not recommend release . In DATE the case was considered by ORG which recommended a further review in DATE , with the proviso that should his health deteriorate to such an extent that he was no longer considered to be a risk , the case should be reviewed at an earlier date . The Secretary of ORG accepted this recommendation . The next review date is DATE .

ORG The third applicant , Mr PERSON , is a NORP citizen , born in DATE .

ORG On DATE , he was convicted at ORG , GPE , inter alia , of CARDINAL offences of rape and CARDINAL offences of attempted rape . He was sentenced to life imprisonment on each of the CARDINAL counts of rape . On the CARDINAL counts of attempted rape he was sentenced to DATE imprisonment , such sentences to run concurrently with each other and with the life sentences .

ORG A pattern was discernible in a number of those offences . In CARDINAL of them he entered houses , by some plausible excuse , where his victims , housewives and an au pair girl , were alone and by force - in CARDINAL instance at knife - point - or by the threat of force had sexual intercourse with them .

ORG According to uncontradicted medical evidence , the applicant was suffering from a " mental disorder " within the meaning of that term in LAW DATE ( namely psychopathy ) and needed constant care and treatment in a maximum security medical setting . Nevertheless the sentencing judge concluded that , because of the gravity of the offences , punishment had to be an element in this case , and that punishment could only be achieved by imprisonment . On passing sentence , the trial judge , Mr Justice PERSON , stated as follows :

" ... These must be amongst the worst cases of rape or attempted rape ever to come before a court in this country . But though I accept you have spent much of your early life in mental institutions , and I accept certain evidence I have heard TIME that you are suffering from psychopathic disorder , the evidence leaves no doubt and can leave no doubt in anybody ’s mind , that you did know what you were doing and you were well aware of the wickedness of what you had done .

I have listened with great attention to the medical evidence which I have had the opportunity of hearing TIME , and I have endeavoured to give all the weight to it that I properly can . It has been urged upon me that I should deal with you by making a hospital order and sending you to PERSON , where you will be kept in secure conditions and receive any treatment which you may require . In many cases it is clearly right for a court in discharging its responsibilities to have regard solely or mainly to the needs of the offender , but the present case in my view is one of such magnitude that I can not only have regard to such needs . It is true , to send you to ORG would involve you being kept under secure conditions and to that extent would keep the public from you . But there are other matters which I must take into account in the public interest , not the least of which is to make it clear that crimes of this kind committed against ordinary housewives in their ordinary homes doing their every day business while their men - folk are away at work are such as must , when brought home to a particular offender , be dealt with in such a way as to make plain that the law is concerned and ever will be concerned to protect people who suffer as you caused these women to suffer by these quite appalling sexual attacks that you made upon them . Punishment must be an element in this case , and that punishment can only be achieved by imprisonment . Imprisonment will afford security to the public from you , and the Home Secretary has ample power if and when the need for treatment arises , to transfer you to any institution where such treatment can be received .

In my judgment there is CARDINAL sentence which is appropriate in this case , and I will deal with count CARDINAL first . Upon count CARDINAL the sentence of the ORG is that you be imprisoned for the term of your natural life . There will be corresponding life - sentences on counts CARDINAL , CARDINAL and DATE , upon which you stand convicted of rape . "

PERSON CARDINAL DATE ORG ) refused the applicant leave to appeal .

In the course of his judgment the Lord Chief Justice PERSON said :

" It is a shocking case and there is no conceivable ground upon which he could succeed in his application for leave to appeal against conviction . Indeed , all he says is that he would like to call CARDINAL of the women complainants to challenge their evidence all over again . This court refuses the extension of time in which to apply for leave to appeal against conviction .

In regard to the application for leave to appeal against sentence in regard to the rapes and attempted rapes , the applicant is CARDINAL and , though he has committed offences before , none of them have been offences of violence or of a sexual nature , but he has a long mental history . As long ago as DATE he was committed to GPE , ORG , from which he escaped CARDINAL times . In DATE he was admitted to ORG . He absconded CARDINAL times . In DATE he was transferred to ORG where he made no attempts to escape , possibly knowing that it is difficult to do so . In DATE , however , he was released on licence from ORG and in DATE he was discharged from the operation of LAW DATE .

There was evidence , indeed it was uncontradicted , from the doctors that the applicant could be made the subject of a hospital order under LAW DATE , in that he was a psychopath who needed constant care and treatment in a medical setting of maximum security such as ORG and such a vacancy was then available . The learned judge refused to take that course and the ground of appeal here is that he was wrong in principle , when CARDINAL doctors certified that the applicant was a fit subject for a hospital order and that treatment was warranted , not sending him to hospital but sending him to prison ...

This court would like it to be known that they agree with every word that the learned judge there said , indeed in an earlier case of ORG ) CARDINAL QB CARDINAL , it was pointed out that there may be cases where although a court has powers to make a hospital order , yet where a punishment is required it would be right to send the offender to prison , it being recognised that the Home Secretary has ample powers under LAW of LAW DATE to cause him to be treated in hospital when the need arises .

This court would like to add CARDINAL further reason justifying the judge ’s order in the present case . The applicant is obviously a dangerous psychopath . It is clear unless he is kept in circumstances of strict security he is liable to be a menace to the public . True , ORG is said to be a secure hospital , but it does not mean that he would not get away from there . More important , it has to be observed that this dangerous psychopath has already been released on licence from ORG . Bearing the interests of the public in mind , this court thinks it far safer that he should be kept in prison for as long as is necessary rather than he should be left to be dealt with as a hospital might deal with him , on a doctor and patient relationship under which it might be considered safe for him to be free , whereas from the public angle he remains a menace .

This court is quite satisfied that the sentence was right and the application is refused . "

ORG In DATE the applicant ’s case was reviewed by ORG in accordance with the provisions of Part III of LAW DATE . They recommended his release in CARDINAL months’ time , subject to his continued good conduct , the satisfactory completion of periods in open conditions and on the pre - release employment scheme , and suitable resettlement arrangements being made . After consulting the judiciary in accordance with section CARDINAL ) of LAW ( see paragraph CARDINAL below ) , the Home Secretary accepted the ORG ’s recommendation and the applicant was given a provisional release date of CARDINAL DATE .

ORG In DATE the applicant was released on licence on condition that he :

( i ) ORG co - operate with his supervisory probation officer ;

( ii ) attend Dr Field ’s Clinic at ORG , GPE NCARDINAL for such care and treatment as recommended ;

( iii ) continue to take hormonal drug treatment , in tablet form , to control his sexual libido .

ORG The applicant was given no reason to believe that he had failed to keep the terms of his licence in any significant way . However , CARDINAL incidents occurred in DATE and DATE which led to the revocation of the applicant ’s licence and his recall to prison .

ORG The first incident was in DATE when he was stopped by a police officer and questioned about a woman ’s complaint to the police that he had been in her back garden looking through her rear window . The applicant maintained that his intentions were completely innocent and that he was merely signalling to the lady he had seen in the house that he would like a glass of water with which to take his hormone tablets , which she duly got for him while he waited at the door . It was never alleged that the applicant had done anything to this woman , but it was later to be alleged that he had acted " suspiciously " . On being told by the applicant that he had spent DATE in prison for rape , the police officer took him to the police station for questioning , but his release was authorised by a senior officer as there was no evidence of any crime having been committed .

ORG The second incident was in DATE when the applicant was again stopped and questioned by the police following information that they had received from FAC that he had been seen watching a woman cleaning her car and had then been found in her back garden . He was subsequently arrested some distance away and taken into custody by the same police officer who had arrested him in DATE . After TIME of detention , the Secretary of ORG revoked the applicant ’s life licence under LAW ( CARDINAL ) of LAW because of the similarities between the applicant ’s current behaviour and the circumstances in which the original offences were committed . He was taken to FAC where , on arrival , he was told by an Assistant Governor that he would go before a reception board . When he did he was told that he had been recalled because his licence had been revoked and that he would be seen by another Assistant Governor and a member of ORG and told the reasons for his recall when papers had been received from ORG .

ORG The applicant was subsequently transferred to FAC where an Assistant Governor , very soon after his arrival , had a number of conversations with him . PERSON , according to ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) , made it abundantly plain that he fully realised that he had been brought back to prison because of the events which had taken place in DATE . He protested that he had done nothing wrong on those occasions but showed every indication that he fully realised why it was that the authorities had taken the decision which they did .

ORG The applicant was interviewed on DATE by a member of ORG after having signed a standard form on DATE to the effect that he wished the report from that interview to be submitted to ORG as constituting his written representations , though he did in fact also himself make separate written representations .

The interviewer did not have the police reports in their full and final state , nonetheless they did contain sufficient information to acquaint him with what happened in DATE and DATE . He did not show the applicant the medical report nor the probation officer ’s report although the latter was discussed .

ORG On DATE the case was referred by the Secretary of ORG - under section CARDINAL ( CARDINAL ) of LAW - to ORG which then took a preliminary view confirming the revocation of the applicant ’s licence . On DATE ORG rejected the applicant ’s representations but made a non - binding recommendation ( see paragraph CARDINAL below ) that , subject to satisfactory resettlement arrangements being made and to continuing psychiatric supervision , he should be released in a DATE ’s time , namely on DATE .

ORG In DATE the Secretary of ORG - after consultations with the Lord Chief Justice and the trial judge in accordance with CARDINAL ( CARDINAL ) of LAW - did not accept the ORG ’s recommendation , but decided that the applicant ’s case should be reviewed in DATE . Mr PERSON subsequently petitioned the Secretary of ORG , complaining that he had not been allowed to defend himself . The petition was rejected in a reply dated DATE . The applicant states that the reply contained the first written explanations of the reasons for his recall and the first official account in any detail of the allegations made against him .

ORG On DATE Mr PERSON applied to ORG for leave to move for judicial review of the decisions of ORG and the Home Secretary confirming the initial revocation of the licence . He was granted leave on DATE .

At an interlocutory hearing on DATE , his applications for discovery of certain documents relating to the determination of his case by ORG and Home Secretary were refused . They were again refused at the hearing of the substantive application for judicial review which was also dismissed on DATE .

ORG An appeal against this decision to ORG was also dismissed on DATE . The applicant ’s case was reviewed again by ORG and the Home Secretary in DATE but he was not released . He was released on licence once more in DATE under the supervision of ORG .

ORG On DATE the applicant pleaded guilty at ORG , GPE , to CARDINAL charge of attempted rape , CARDINAL charges of indecent assault and CARDINAL charges of robbery . He was sentenced to life imprisonment , the life licence for his original offences having already been revoked .

ORG A sentence of life imprisonment must be passed on any person convicted of murder - a mandatory life sentence . It may also be passed , in the exercise of the court ’s discretion , on persons convicted of any of the offences for which life imprisonment is provided by the relevant legislation as the maximum penalty for the offence concerned - a discretionary life sentence . There are no statutory conditions for the imposition of a discretionary life sentence other than this , but its use in practice is reserved , broadly speaking , for cases where the offence is a very grave one in itself , and it appears that the accused is a person of unstable character likely to commit such offences in the future , thus making him dangerous to the public in respect of his probable future behaviour unless there is a change in his condition ( see PERSON ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL , ORG ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL ; PERSON ( DATE ) CARDINAL Criminal Appeal Reports ( S ) CARDINAL ) .

In his judgment in R v. PERSON , Lord Chief Justice PERSON said :

" It seems to us that the sentence of life imprisonment , other than where the sentence is obligatory , is really appropriate and must only be passed in the most exceptional circumstances . With few exceptions ... it is reserved broadly speaking ... for offenders who for CARDINAL reason or another can not be dealt with under the provisions of LAW , yet are in a mental state which makes them dangerous to the life or limb of members of the public . It is sometimes impossible to say when that danger will subside , and therefore an indeterminate sentence is required , so that the prisoner ’s progress may be monitored by those who have him under their supervision in prison , and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large . "

ORG The use of the discretionary life sentence is distinguished in the practice of the LANGUAGE courts from the use of the determinate or fixed - term sentence of imprisonment . In fixing the length of a determinate sentence the most important principle is that it should be related to the gravity of the offence . It is subject to CARDINAL remission of sentence for good behaviour and there is the possibility of parole once a third of the sentence has been served .

ORG In CARDINAL recent decisions ( NORP v. Secretary of ORG for ORG , ex parte ORG ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL ; NORP v. Secretary of ORG , ex parte ORG ( DATE ) and R v. Secretary of ORG , ex parte ORG ( DATE ) as yet unreported ) , ORG has recognised that a discretionary life sentence prisoner should be required to serve no longer as punishment for his offence than the " tariff " . This expression denotes the period of detention considered necessary to meet the requirements of retribution and deterrence .

ORG In the case of PERSON , Lord Justice Stuart - Smith gave the following elucidation of the nature of the discretionary life sentence :

" The rationale or justification for a discretionary life sentence must surely be this : that in exceptional cases the interests of public safety can not be sufficiently protected by imposing a determinate sentence even to the maximum extent permissible - i.e. the tariff sentence merited in the way of punishment , uplifted to a limited extent allowed by established case - law for the protection of the public . Rather it is necessary to cater for the presently perceived risk that , upon completion of any lawful determinate sentence , the prisoner would , if freed , remain a grave danger to society . This is achieved by passing a life sentence so as to ensure that the public will be protected and the risk reassessed after the tariff period expires .

... the sentencing ORG recognises that passing a life sentence may well cause the offender to serve longer , and sometimes substantially longer , than his just desserts . It must then not expose him to that peril unless there is compelling justification for such a course . That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness . But , of course , the ORG ’s perception of that risk is inevitably imprecise . It is having to project its assessment many DATE forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by ORG . When at the post - tariff stage the assessment comes to be made by ORG they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoner ’s release . "

ORG By virtue of LAW CARDINAL of LAW DATE , the maximum penalty for rape , and , by virtue of section CARDINAL ) and schedule CARDINAL of the same Act , for buggery of a boy under the age of DATE , is life imprisonment .

ORG According to the opinion of an expert in sentencing policy of the LANGUAGE courts , the practice of ORG showed that , in the absence of evidence of mental instability and dangerousness , the sentence imposed was unlikely to exceed CARDINAL years’ imprisonment for offences of buggery and DATE in cases of serious rape ( Affidavit of Dr PERSON sworn on DATE ) .

ORG Under LAW of LAW DATE the Secretary of ORG may only release on licence a person sentenced to life imprisonment if recommended to do so by ORG , and after consultation with the Lord Chief Justice of GPE and the trial judge if available . By virtue of section CARDINAL(CARDINAL ) the Secretary of ORG may revoke the licence of a person whose recall to prison is recommended by ORG . A prisoner recalled in such circumstances is entitled to be informed of the reasons for his recall and of his right to make representations . If he makes representations the Secretary of ORG must refer his case to the ORG . Under section CARDINAL ) the Secretary of ORG may himself revoke such a licence without consulting ORG if it appears expedient in the public interest to do so before such consultation is practicable ; but the case of a prisoner so recalled must be referred to the ORG .

If ORG recommends the immediate release on licence of a recalled prisoner whose case is referred to it under section CARDINAL , the Secretary of ORG is bound to give effect to the recommendation .

Section CARDINAL sets out the constitution and functions of ORG and of local review committees :

" ( CARDINAL ) For the purposes of exercising the functions conferred on it by this part of this LAW as respects GPE and GPE there shall be a body known as ORG ... consisting of a chairman and not CARDINAL other members appointed by the Secretary of ORG .

( CARDINAL ) It shall be the duty of the ORG to advise the Secretary of ORG with respect to -

( a ) the release on licence under LAW ) or DATE , and the recall under section DATE , of this LAW of persons whose cases have been referred to the ORG by the Secretary of ORG ;

( b ) the conditions of such licences and the variation or cancellation of such conditions ; and

( c ) any other matter so referred which is connected with the release or recall of persons to whom the said section CARDINAL or CARDINAL applies .

( CARDINAL ) The following provisions shall have effect with respect to the proceedings of ORG on any case referred to it , that is to say -

( a ) the ORG shall deal with the case on consideration of any documents given to it by the Secretary of ORG and of any reports it has called for and any information whether oral or in writing that it has obtained ; and

( b ) if in any particular case ORG thinks it is necessary to interview the person to whom the case relates before reaching a decision , ORG may request CARDINAL of its members to interview him and shall take into account the report of that interview by that member ; ...

( CARDINAL ) The documents to be given by the Secretary of ORG to the ORG under the last foregoing subsection shall include -

( a ) where the case referred to the ORG is CARDINAL of release under section CARDINAL of this Act , any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection ;

( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representation made under that section .

( CARDINAL ) The Secretary of ORG may by rules make provision -

( a ) for the establishment and constitution of local review committees having the duty of reviewing at such times or in such circumstances as may be prescribed by or determined under the rules the cases of persons who are or will become eligible for release under LAW or CARDINAL of this LAW and reporting to the Secretary of ORG on their suitability for release on licence ; and

( b ) for the interview of such persons by a member of any such committee ( not being a prisoner officer ) ;

and rules under this subsection may make different provision for different cases . "

As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :

" CARDINAL . ORG shall include among its members -

( a ) a person who holds or has held judicial office ;

( b ) a registered medical practitioner who is a psychiatrist ;

( c ) a person appearing to the Secretary of ORG to have knowledge and experience of the supervision or aftercare of discharged prisoners ; and

( d ) a person appearing to the Secretary of ORG to have made a study of the causes of delinquency or the treatment of offenders . "

ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , each of which in the case of life prisoners includes a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL(CARDINAL ) of LAW ) after consultation with the Lord Chief Justice .

ORG Under LAW ( CARDINAL ) the Secretary of ORG has established for every prison a ORG with the function of advising him on the suitability for release on licence of prisoners . It is the practice to obtain this assessment before referring a case to ORG . Before ORG review a case , a member of the ORG shall interview the prisoner if he is willing to be so interviewed .

ORG The review procedures applicable to all life sentences within the framework of LAW DATE have evolved in CARDINAL stages :

( a ) ORG When LAW of LAW DATE came into operation it was the practice to refer all life sentence cases to ORG when the prisoner had served not longer than DATE , irrespective of whether there was any prospect of early release . In making its recommendations to the Secretary of ORG as to the release of a life prisoner , the ORG took into account the views of the judiciary as required by LAW .

( b ) ORG In DATE a ORG was set up to recommend to the ORG Secretary a date for the first formal review by ORG as the first stage in a review by ORG ( see paragraph CARDINAL above ) . They gave initial consideration to the timing of the first review usually after the prisoner had been detained for DATE , but this system became less and less effective as the ORG only recommended dates in CARDINAL the cases referred to it . Under these arrangements , the judiciary were consulted - as required by LAW - only at the stage when release seemed a realistic possibility .

( c ) ORG In DATE , ORG was disbanded and new arrangements were made for fixing the date of the first formal review by ORG . Under these arrangements the judiciary were consulted , usually , after a life prisoner had been detained for DATE , and asked for their views on the period necessary to meet the requirements of retribution and deterrence for the offence - the tariff period . In the light of these views the ORG Secretary would decide the date of the first reference of the case to ORG , normally set for DATE before the expiry of the tariff period .

( d ) ORG On DATE , in a parliamentary written answer to ORG , the ORG Secretary made the following statement in response to the ORG judgment in the case of GPE and Others ( see paragraph CARDINAL above ) :

" I accept the conclusion of ORG that there are strong arguments for carrying out this consultation exercise " - with the judiciary on the question of the period necessary to meet the requirements of retribution and deterrence - " as soon as practicable following the imposition of a discretionary life sentence .

Following consultation with the Lord Chief Justice it has been agreed that the most satisfactory way of obtaining the judicial view is to ask the trial judge to write to me , through him , in every case where a discretionary life sentence is passed giving his view on the period necessary to meet the requirements of retribution and deterrence . This view will be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and will also take account of the notional period of the sentence which a prisoner might expect to have been remitted for good behaviour had a determinate sentence been passed . The date of the first formal review by ORG machinery will then be fixed in accordance with the judicial view on the requirements of retribution and deterrence , and the review will , as before , normally take place DATE before the expiry of that period . I have agreed with the Lord Chief Justice that this new procedure will be introduced with effect from DATE .

... I shall arrange for a review to be undertaken of all discretionary life sentence cases with a first formal review date of DATE or later . Where account has been taken of factors other than the judicial view on the requirements of retribution and deterrence in fixing the date , the date will be adjusted to bring it into line with the judicial view .

... In cases of prisoners serving life sentences for murder , where the sentence is not at the discretion of the court , the question of the notional equivalent determinate sentence does not arise . I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others ( including the need to maintain public confidence in the system of justice ) to be weighed in the balance in setting the first review date . I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving life sentences for the worst offences of violence fully reflects public concern about violent crime .

... no life sentence prisoner will be detained for DATE without a formal review of his case even where the period thought necessary to meet the requirements of retribution and deterrence exceeds DATE .

... However , as was made clear by ORG , the release of a life sentence prisoner is solely at my discretion and it is for me to decide , after receiving ORG recommendation and after consulting the judiciary as required by LAW ( CARDINAL ) of LAW DATE , when actual release should take place . "

ORG In addition to his right to make representations to ORG under the provisions of LAW DATE ( see paragraphs CARDINAL above ) , a prisoner detained pursuant to a discretionary life sentence may take proceedings in ORG to obtain the judicial review of any decision of ORG or of the Home Secretary on the ground that it is tainted by illegality , irrationality or procedural impropriety ( see judgment of CARDINAL DATE in the DATE case , Series A no . CARDINAL , pp . CARDINAL , paras . DATE ) .


CASE OF SAMARDZIC AND AD PLASTIKA v. SERBIA

The first applicant was born in DATE and lives in GPE . The second applicant is a joint stock company with its seat in GPE .

On DATE the second applicant directly instituted enforcement proceedings in ORG ( PERSON u ORG ) against a certain company ORG

On DATE the court issued an enforcement order . Since ORG filed an objection , the case was transformed into civil proceedings .

The second applicant amended its claim on CARDINAL occasions : on DATE and DATE , DATE and DATE .

On DATE the court gave a judgment in the second applicant ’s favour , accepting its claim in part . On DATE the court gave a supplementary judgment ( dopunska presuda ) in the case .

On CARDINAL DATE the ORG ( PERSON u ORG ) quashed the first - instance judgment and remitted the case because of factual shortcomings .

By this time , CARDINAL different judges had been assigned to hear the second applicant ’s case , the last change of judges having occurred on DATE .

On DATE the court appointed an expert , ordering him to prepare his opinion within DATE . This expert submitted his opinion on DATE .

NORP The court subsequently held hearings on DATE , CARDINAL DATE and DATE . The hearing scheduled for DATE was adjourned because the second applicant failed to appear .

On DATE the court closed the main hearing and gave a judgment dismissing the second applicant ’s claim .

On appeal , on DATE the Beograd High Commercial Court again quashed the first - instance judgment and remitted the case .

In the resumed proceedings , on DATE ORG stayed the proceedings because , meanwhile , on DATE ORG ( PERSON ) had opened bankruptcy proceedings against the second applicant .

The proceedings resumed on DATE , when ORG declared that it no longer had territorial jurisdiction in the matter and sent the case file to ORG .

Article CARDINAL provides that “ [ t]he parties have the right to have the ruling of the court in respect of their claims and proposals within a reasonable time ” and , further , that “ [ PERSON is incumbent upon the court to conduct the proceedings without undue delay ... ”

Articles CARDINAL , CARDINAL and CARDINAL of this Code incriminate “ abuse of office ” ( zloupotreba službenog položaja ) , “ judicial malfeasance ” ( kršenje zakona od strane sudije ) and “ official malfeasance ” ( nesavestan rad u službi ) , respectively .

The substance of Articles CARDINAL , CARDINAL and CARDINAL corresponds to that of the provisions of LAW mentioned above .

This Code entered into force on DATE , thereby repealing LAW .

Article CARDINAL § CARDINAL provides that a legal entity ( “ pravno lice ” ) , which includes the ORG , is liable for any damage caused by CARDINAL of “ its bodies ” ( “ njegov organ ” ) to a “ third person ” .

Under ORG CARDINAL and CARDINAL of LAW , inter alia , anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of “ personal rights ” ( “ prava ličnosti ” ) may , depending on their duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .


Violation of Art. 8;Not necessary to examine Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicants were born in DATE and DATE respectively and live in PERSON . They have a son , born on DATE .

NORP The parents chose the name “ PERSON ” for their son . On DATE ORG ( maistraatti , magistraten ) refused the applicants ' application to register this forename under section CARDINALb , subsections CARDINAL ) and CARDINAL(CARDINAL ) , of LAW ( nimilaki , namnlagen – see paragraph CARDINAL below ) as this form of spelling did not comply with NORP naming practice .

The applicants appealed to the then ORG ( lääninoikeus , länsrätten , later replaced by ORG ( hallinto - oikeus , förvaltningsdomstolen ) ) . They argued that the name “ PERSON ” was common in GPE and GPE , and it was also used in GPE and GPE . It was pronounceable in the NORP language and was not incompatible with NORP naming practice . There were CARDINAL persons with that name registered in ORG ( väestötietojärjestelmä , befolkningsdatasystemet ) of GPE . Furthermore , they might move abroad later .

The ORG representative appointed by ORG ( lääninhallituksen määräämä asiamies , ombudsman förordnad av länssyrelsen ) was invited to submit an opinion to ORG . In his opinion , the name should have been accepted for registration since owing to increasing international contacts and cooperation , registration of a name could not be refused on the sole basis that it was contrary to domestic naming practice .

In its submissions to the court ORG on Names ( nimilautakunta , nämnden för namnärenden ) considered that the proposed name was incompatible with NORP naming practice and that the applicants had not adduced adequate reasons for choosing it .

NORP In response to these observations , the applicants maintained that they should be allowed to name their son “ PERSON ” as ORG had registered various other forenames , such as “ PERSON ” , “ NORP ” , “ GPE ” and “ NORP ” , which , in the applicants ' view , were modified forenames and contrary to NORP naming practice in these forms .

ORG dismissed their appeal on DATE . The court referred to LAW , by which a name could be accepted , even if incompatible with domestic naming practice , where a person had a connection with a foreign State on the basis of nationality , family relations or some other special circumstance and the proposed forename accorded with the naming practice of that ORG . The name could also be accepted for other valid reasons ( see paragraph CARDINAL below ) . The court concluded that the arguments submitted by the applicants were insufficient to allow the forename to be registered .

In their application to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) the applicants claimed that it was open to interpretation whether the name “ PERSON ” was contrary to LAW . They contended that some priests and population registration authorities would have accepted the name . Furthermore , CARDINAL NORP persons already had that name . In their view the name “ PERSON ” should have been accepted for their son because it had been accepted for other persons . The name fulfilled the criteria of LAW in that it was clearly a male name and could not cause any harm to their son . Further , they had used the name in family circles .

On DATE ORG upheld the decision .

LAW No . DATE , as amended by LAW . CARDINAL/CARDINAL ) , contains provisions on names . Under section CARDINALa , a child has to be given CARDINAL forenames upon his or her birth . The chosen name must be declared to ORG or the church for registration .

NORP legislation does not contain any provisions as to how a forename has to be chosen . There exist , however , almanacs on NORP , NORP , PERSON and NORP names , outlining domestic naming practice . A forename which is not mentioned in an almanac may also be accepted for registration if there are no general obstacles to permitting it under section CARDINALb of LAW , subsections CARDINAL and CARDINAL of which read as follows :

“ CARDINAL . In the absence of a reason mentioned in subsection CARDINAL the following categories of names can not be accepted for a forename :

( CARDINAL ) a name which by virtue of its form or spelling is incompatible with domestic naming practice ;

( CARDINAL ) a female name for a boy and a male name for a girl ;

( CARDINAL ) a surname ... ;

( CARDINAL ) a name if it has already been given to a person 's sibling .

A forename which does not comply with the requirements in subsection CARDINAL may , however , be permitted :

( CARDINAL ) on the grounds of a religious tradition ;

( CARDINAL ) if a person , on the basis of nationality , family relations or some other special circumstance , has a connection with a foreign ORG and the proposed forename accords with the practice of the said ORG ; or

( CARDINAL ) if some other valid reason is considered to exist . ”

ORG on Names , subordinate to ORG , gives advisory opinions to the authorities and courts on the application of LAW . It also monitors domestic naming practice and proposes legislative amendments .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Esbo . He was represented before the ORG by Mr PERSON , a lawyer practising in Helsingfors . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON Kosonen of ORG .

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

On DATE ORG unsuccessfully tried to recover debts from the applicant .

On DATE a property company petitioned ORG ( tingsrätten , käräjäoikeus ) for the applicant to be declared bankrupt .

The Bailiff tried to reach the applicant CARDINAL times at his registered home address in order to serve the notice on the bankruptcy proceedings . The applicant 's telephone number could not be found by the directory service and he did not answer the door intercom . The Bailiff managed to get into the staircase and saw light coming from the applicant 's apartment but he did not answer the doorbell . The Bailiff left a meeting request in his post box , to which the applicant also failed to react .

As the applicant could not be reached during the service period set by ORG and running from DATE to DATE , a letter was sent to the applicant 's address on DATE , confirming that the notice had been served and that the documents were kept available at the local police station .

On DATE the applicant submitted a letter to ORG requesting that the case documents be translated from NORP into NORP . The letter was sent from the same address where the Bailiff had attempted to serve the notice .

On an unspecified date the applicant requested that ORG extend the deadline for his written reply . The deadline was accordingly extended until DATE .

On DATE the applicant applied for an adjustment of his debts . As required by the domestic legislation , the bankruptcy proceedings were postponed and were continued only after ORG had refused to grant the debt adjustment . Thereafter , on DATE , the applicant was again requested to submit a written reply by DATE .

When attempting to serve the above - mentioned request at the applicant 's address , the Bailiff learned that the applicant had moved . He tried to reach the applicant at his new address in DATE .

Following a request made by the Bailiff on DATE , the service period was extended until DATE . On DATE the applicant was informed by letter that the request had been served and that the documents were again made available at the local police station .

ORG resumed the bankruptcy proceedings . The applicant did not request that the deadline for his written reply be extended , nor did he submit any reply . According to the Government , the applicant was personally present at ORG when swearing to the accuracy of the inventory of the estate .

On DATE ORG declared the applicant bankrupt . It noted that the applicant , who had been invited to reply to the petition within a given time , had failed to do so . It also noted that the claim was based on a final default judgment and on the fact that the claims mentioned therein had been transferred to the company . The company also had in its possession promissory notes signed by the applicant and which he had not contested . The court found that the applicant was insolvent since the debt recovery on DATE had been unsuccessful and the petition for bankruptcy had been lodged within DATE from that date .

The file does not disclose whether or not ORG held an oral hearing .

On DATE the applicant appealed , applying for an injunction and an oral hearing in the appellate court with a view to hearing witnesses as to whether he was insolvent . He argued that although he had moved to a new address in DATE , the court had sent to his old address a letter dated DATE in which he was invited to submit his reply by DATE . This letter had never reached the applicant . On DATE the Bailiff had sent a letter to the applicant informing him that documents to be served had been deposited at the police station . The letter did not mention what those documents concerned . The applicant claimed that he had received the letter at the earliest on DATE but as he had been travelling he had learned about the documents and the fact that they related to the bankruptcy proceedings only on DATE when he contacted the police station .

As to the merits of the appeal , he relied on LAW , section CARDINAL , of LAW ( konkurslagen , konkurssilaki ; Act no . CARDINAL/CARDINAL ) according to which a debtor can not be declared bankrupt if the creditor has a protective lien . He also argued that the creditor had failed to produce evidence of his insolvency as ORG attestation was not sufficient for the purposes of LAW . At the material time , the applicant had assets outside ORG district which did not appear in the attestation .

On DATE ORG ( hovrätten , hovioikeus ) dismissed the request for an injunction . On DATE it dismissed the applicant 's renewed request to the same effect .

In its decision of DATE ORG noted first that the applicant had been able to establish a probability , in accordance with LAW , section CARDINAL , of the Code of Judicial Procedure ( rättegångsbalken , oikeudenkäymiskaari ) , that he had not been able to refer to the circumstances and evidence relied on in his appeal in ORG . For this reason the court considered all circumstances and evidence relied on in the applicant 's appeal . As concerned the serving of the documents , ORG noted that in DATE the Bailiff had looked for the applicant at the address which the latter had communicated to ORG . Subsequently , the Bailiff had found out that the applicant had moved to another municipality following which he had unsuccessfully looked for the applicant at his new address in DATE . In the circumstances , the Bailiff could assume that the applicant was trying to avoid the service of the documents . The court also observed that ORG in a precedent ( ORG CARDINAL:CARDINAL ) had taken the view that it was irrelevant for the purposes of the application of LAW , section CARDINAL , of LAW whether the person concerned later shows that he was not avoiding trial . ORG therefore concluded that , in the present case , it had been justified to serve the documents by leaving them with the local police and rejected the applicant 's view that there had been a procedural error .

As to whether the conditions for declaring the applicant bankrupt were met , it endorsed the lower court 's reasons , adding , inter alia , that it was clear from the appeal documents that the unemployed applicant 's assets amounted to CARDINAL euros ( ORG ) whereas his debts ran to some EUR CARDINAL . It was therefore unnecessary to hold an oral hearing in order to examine whether the applicant was insolvent .

The applicant sought leave to appeal , maintaining the grounds for his appeal . On DATE ORG ( högsta domstolen , korkein oikeus ) refused such leave .

According to LAW , LAW , subsection CARDINAL , of LAW ( rättegångsbalken , oikeudenkäymiskaari ; as amended by Act no . CARDINAL/CARDINAL ) :

“ The summons shall state that the written response is to be delivered to the court registry before a deadline counted from the service of the summons . An extension may be granted for a special reason , if the request for this has been submitted before DATE . ”

LAW , section CARDINAL , of MONEY ( as amended by Act no . CARDINAL/CARDINAL ) provides the following :

“ ( CARDINAL ) When a process server , for the purpose of service of a notice , has sought a person with a known residence in GPE , but has not found him or her or any person competent to receive service in his or her stead , and on the basis of the circumstances it may be assumed that he or she is evading the service of the notice , the process server may serve the notice by delivering the documents to a household member who has attained DATE , or , if the said person conducts a business , to a person employed in this business . If none of the above can be found , service of the notice may be performed by delivering the documents to a local police authority .

( CARDINAL ) When the process server has performed the service of the notice pursuant to subsection CARDINAL , he or she shall notify the recipient of the same by a letter sent to the home address of the recipient .

( CARDINAL ) The service of the notice shall be deemed to have taken place when the letter referred to in subsection CARDINAL has been given to be delivered by post .

( CARDINAL ) The summons in a criminal case may not be served on the defendant in the manner provided in this section . ( CARDINAL ) ”

LAW , LAW , of the same Code regulates service procedure in a civil matter with multiple respondents the following manner :

“ In a civil case involving CARDINAL or more parties jointly , the notices shall be separately served on each party as provided in sections CARDINAL—CARDINAL . If a notice is to be served on so many recipients that separate service on each of them can not be done without difficulty , the court may order that the notice is to be served on CARDINAL of them . A summary of the contents and the name of the person on whom the notice has been served , as well as information on the place where the documents to be served are kept available , shall be published as provided in section CARDINAL . The service shall be deemed to have been performed when the public notice has been published in ORG . ”

As concerns the possibility to present new material in ORG , according to LAW , section CARDINAL , subsection CARDINAL , of the same LAW ( as amended by LAW no . PERSON ) :

“ In a civil case , the appellant may not refer in ORG to other circumstances or evidence than those presented in ORG , unless he or she establishes a probability that he or she had not been able to refer to the circumstance or evidence in ORG or that he or she has had a justifiable reason for not doing so . ”

In its judgment of CARDINAL DATE ( ORG CARDINAL:CARDINAL ) , ORG addressed the issue of serving a notice on a presumably absent applicant in a civil case . In that precedent case the applicant had not been reached by the Bailiff but had for legitimate reasons been temporarily residing abroad and had notified ORG of his temporary place of residence . A certificate on the applicant 's domicile issued by the registry office did not however include information on his temporary address . As relatives and neighbours had not known about the applicant 's temporary address either , ORG held that the Bailiff had rightly assumed , for the purposes of the serving of the notice , that the applicant was attempting to hide from the authorities . The applicant 's later clarification of the issue was not relevant in this regard . It followed that the notice could legitimately have been served on the applicant in accordance with the requirements of LAW , LAW , of LAW .


HUSSEIN v. ALBANIA, BULGARIA, CROATIA, CZECH REPUBLIC, DENMARK, ESTONIA, HUNGARY, ICELAND, IRELAND, ITALY, LATVIA, LITHUANIA, THE NETHERLANDS, POLAND, PORTUGAL, ROMANIA, SLOVAKIA, SLOVENIA, TURKEY, UKRAINE AND THE UNITED KINGDOM

The applicant , Mr PERSON , is an NORP national who was born in DATE . He is the former President of GPE and is currently detained in GPE .

On DATE coalition forces , led by a GPE General , invaded GPE . While the greater part of the forces and support came from GPE ( “ GPE ” ) and GPE ( “ GPE ” ) , it will be assumed for current purposes that the coalition forces included support from each of the respondent States during the relevant period . The coalition forces were composed of Divisions , each with military responsibility for a particular zone of GPE . The GPE divisions controlled the LOC and LOC zones ( the latter including the GPE and GPE regions ) and the CARDINAL multi - national divisions , one commanded by the GPE and the other by GPE , were charged with the south zone and south central zone , respectively .

In DATE GPE forces captured GPE . On DATE a NORP General issued a “ Freedom Message ” announcing the creation of ORG ) , a civilian administration that would exercise powers of government temporarily in GPE . On CARDINAL DATE the GPE Secretary for Defence appointed Ambassador PERSON as Administrator of the CPA . On DATE ORG ( “ IGC ” ) was formed : the Administrator of the CPA could veto all decisions of the ORG . The CPA was to co - ordinate with the ORG on all matter involving the temporary governance of GPE .

On DATE the applicant was captured near GPE by GPE soldiers ( ORG and members of Task Force CARDINAL ) during an operation called “ Operation Red Dawn ” .

On DATE ORG adopted Resolution CARDINAL ( CARDINAL ) whereby it endorsed the formation of a sovereign interim Government of GPE which would assume , by DATE , full responsibility and authority for governing GPE ; it welcomed the end of the occupation and the cessation of the CPA ( also by DATE ) when GPE would reassert its full sovereignty ; and it noted that , pending the assumption of full security responsibility by the NORP security forces , the presence of the multinational force in GPE was at the request of the incoming Interim Government of GPE ( Articles CARDINAL , CARDINAL , DATE and CARDINAL of the ORG ) .

DATE than foreseen , on DATE all CPA authority was transferred to the new NORP Interim Government .

On DATE the applicant was transferred by GPE troops to ORG for trial .


Violation of Article 8 - Right to respect for private and family life

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant was detained pending trial from DATE to DATE . During this period he corresponded with his lawyer .

The following envelopes sent to the applicant by his lawyer were marked “ censored ” in handwriting , stamped with the stamp of the Gorzów Wielkopolski Regional Prosecutor ’s Office and signed in an illegible manner :

the envelope bearing a post office stamp of DATE , “ censored ” on DATE ,

the envelope bearing no post office stamp , “ censored ” on DATE ,

the envelope bearing a post office stamp of DATE “ censored ” on DATE ,

the envelope bearing no post office stamp , “ censored ” on DATE .

The applicant also submitted CARDINAL other envelopes . CARDINAL of them bear a note “ no censorship ” ( “ bez cenzury ” ) followed by the stamp of ORG and an illegible signature . They also bear post office stamps of DATE and DATE , respectively . The third one bears a stamp of ORG , a hand - written date of DATE and an illegible signature with no information as to whether the contents had been censored .

The applicant submitted CARDINAL of the “ censored ” envelopes to ORG . On DATE ORG informed ORG about the incident . On DATE ORG issued an explanatory note ( “ notatka służbowa ” ) stating that in spite of the word “ censored ” written on the envelope , the applicant ’s correspondence had not been censored and a note “ censored ” on the envelope had probably been made by mistake .

The applicant continued to inform the authorities about the alleged censorship of his correspondence .

On DATE ORG who had put her signature on the envelopes ( PERSON ) made a declaration ( “ oświadczenie ” ) stating that she had never censored the applicant ’s correspondence .

On DATE the applicant requested that criminal proceedings be instituted against ORG ( PERSON ) alleging censorship of his correspondence with his lawyer .

By a letter of DATE ORG informed the applicant that his request had been treated as a hierarchical complaint and that it had been found unsubstantiated .

On DATE the applicant notified the police authorities of the offence committed by the Regional Prosecutor J.W.

On DATE , in reply to the letter of DATE , the applicant stated that he had not intended to lodge a complaint but had requested the institution of criminal proceedings .

On DATE ORG again informed the applicant that all the applicant ’s requests for the institution of criminal proceedings against PERSON were to be treated as hierarchical complaints .

On DATE the applicant again requested the institution of criminal proceedings against the Regional Prosecutor PERSON

On DATE ORG refused to institute criminal proceedings against PERSON stating that no offence had been found as the “ censored ” note had been probably written by mistake . On DATE the applicant appealed .

On DATE the Gorzów ORG upheld the contested decision . In its reasons for its decision the court stressed that the “ censored ” note had been written only on envelopes and not on letters and thus no evidence had been adduced that the applicant ’s correspondence had been censored . In consequence , it found that PERSON had not committed an offence of unlawful access to confidential information .

The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG ’s judgments in the cases of Michta v. GPE , no CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no CARDINAL , § DATE , CARDINAL DATE .


Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)

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

The applicant was born in DATE and lives in GPE . He stood for the elections to ORG ( PERSON ) of DATE as a candidate of the opposition bloc GPE .

The applicant was registered as a candidate by ORG ( “ the ConEC ” ) for the single - mandate ORG no . CARDINAL .

There were a total of CARDINAL polling stations in the constituency . At the end of election day , the applicant was only able to obtain copies of official records of election results ( səsvermənin nəticələrinə dair protokol ) drawn up by QUANTITY ORG ( “ PECs ” ) .

According to the applicant , he received the majority of votes in the constituency . Specifically , he received a total of CARDINAL votes . His closest contender received CARDINAL votes . All unofficial exit - polls indicated that the applicant had won the election .

An official tabulation of results was carried out by the PERSON after DATE , but the applicant was not provided with a copy of the ConEC record of election results . It appears that the ConEC did not officially declare a winner in the applicant ’s constituency following the tabulation of results .

On DATE a representative of the NORP bloc applied to ORG ( “ the ORG ” ) with a request for the invalidation of the election results in FAC . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE ( CARDINAL polling stations in total , for which the applicant did not receive ORG records of results ) and to declare the applicant the winner of the election as , according to copies of those ORG results records which were in the applicant ’s possession , he had obtained the highest number of votes in the constituency .

It appears that , at a later unspecified date , the applicant obtained copies of all the ORG results records , except those for ORG . CARDINAL and DATE .

On DATE the ORG acknowledged receipt of the PERSON bloc ’s request and notified it that it had issued a decision to invalidate the election results for the entire ORG no . CARDINAL . The decision , in its entirety , stated as follows :

“ Pursuant to Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL.CARDINAL.CARDINAL of LAW and sections CARDINAL of the PERSON of CARDINAL DATE on Approval and Entry into Force of LAW , ORG decides :

To invalidate the election results in Polling Stations nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL of ORG no . CARDINAL due to impermissible alterations [ “ yolverilməz düzəlişlər ” ] made to the ORG records of election results [ “ protokollar ” ] of those polling stations as well as infringements of the law [ “ qanun pozuntuları ” ] which made it impossible to determine the will of the voters .

To invalidate the election results in ORG no . CARDINAL due to the fact that the number of polling stations in which the election results have been invalidated constitutes CARDINAL of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes CARDINAL of the total number of voters in the constituency .

To forward the relevant materials concerning this electoral constituency to ORG for investigation . ”

On DATE the applicant lodged an appeal against that decision with ORG , arguing that the findings in the ORG decision were wrong . He argued that , while the ORG decision noted that “ impermissible alterations ” had been made to the ORG records of results for ORG . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE , the photocopies of the same ORG records which were in his possession did not contain any such alterations or changes . According to those ORG records , he had obtained the highest number of votes in each of those polling stations . As to FAC . CARDINAL and DATE , he noted that the PECs in those polling stations had refused to provide him with copies of their records of results . Nevertheless , according to the information provided by observers and ORG members , the applicant had obtained the highest number of votes in those polling stations as well .

The applicant argued that the invalidation of the election results had been arbitrary and that the only reason for the invalidation had been to prevent him , as an opposition candidate , from winning the election . He asked the court to examine all the relevant records of election results , quash the ORG decision and declare him the winner of the election in the constituency .

During the hearing held on DATE , the judges of ORG refused to independently examine the originals of the ORG and ConEC records of results which had allegedly contained “ impermissible alterations ” . ORG upheld the ORG decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful .

The applicant lodged a cassation appeal . Apart from the arguments advanced in his appeal before ORG , he also complained , inter alia , that ORG had refused to independently examine the primary evidence ( the originals of the relevant official records of election results ) and had simply taken the ORG ’s findings as fact .

On DATE ORG rejected the applicant ’s appeal and upheld ORG judgment as lawful .

On DATE ORG ordered repeat elections to be held on DATE for all electoral constituencies in which the results had been invalidated , including the applicant ’s constituency .

In the meantime , criminal proceedings were instituted against the ConEC chairman and the chairman of ORG no . CARDINAL , for tampering with official electoral documents and abuse of official authority .

On DATE the ORG convicted both defendants under Articles CARDINAL ( falsification of election documents ) and MONEY ( abuse of official power ) of LAW . Both defendants were fined and sentenced to CARDINAL months’ imprisonment .

The factual findings in the ORG judgment revealed that the majority of falsifications in the ORG results records had been made at the ConEC level by its chairman , after the submission of those records to the ConEC . These falsifications affected a total of CARDINAL polling stations and were all made in favour of CARDINAL of the applicant ’s opponents , but not the applicant .

After the votes in a polling station have been counted at DATE , the ORG draws up an official record of election results ( in CARDINAL original copies ) documenting the results of the vote in the polling station ( Articles CARDINAL - CARDINAL.CARDINAL ) . CARDINAL copy of the ORG record , together with other relevant documents , is then submitted to the relevant ConEC within twentyfour TIME ( Article CARDINAL ) . The ConEC verifies whether the ORG record complies with the law and whether it contains any inconsistencies ( Article CARDINAL.CARDINAL ) . After submission of all ORG records , the ConEC tabulates , within DATE of DATE , the results from the different polling stations and draws up a record reflecting the aggregate results of the vote in the constituency ( Article CARDINAL ) . CARDINAL copy of the ConEC record of results , together with other relevant documents , is then submitted to the ORG within DATE of DATE ( Article CARDINAL ) . The ORG checks whether the PERSON records comply with the law and whether they contain any inconsistencies ( Article CARDINAL ) and draws up its own final record reflecting the results of voting in all constituencies ( Article CARDINAL ) .

NORP If within DATE of DATE the ORG discovers mistakes , impermissible alterations or inconsistencies in the records of results ( including the accompanying documents ) submitted by ConECs , the ORG may order a recount of the votes in the relevant electoral constituency ( LAW ) .

Upon review of a request to declare invalid the election of a registered candidate , an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials ( Article CARDINAL ) .

In the event of the discovery of irregularities aimed at assisting candidates who were not ultimately elected , such irregularities can not be a basis for the invalidation of the election results ( Article CARDINAL ) .

The CARDINAL or ORG may invalidate the election results for an entire single - mandate constituency if election results in CARDINAL of polling stations , representing CARDINAL of the constituency electorate , have been invalidated ( Article CARDINAL.CARDINAL.CARDINAL ) .

According to former Article CARDINAL of LAW , in force at the material time , during the initial vote - counting at a polling station at DATE , if a voting ballot which had not been properly placed in the corresponding envelope was found in the ballot box , the vote on that ballot was considered to be invalid . Article CARDINAL was subsequently repealed on DATE .

The relevant excerpts from the report read as follows :

“ Although constituency aggregate results were made available within the legal deadline , detailed results by polling station were only released on DATE , DATE after the election , despite the computer networking of all ConECs with the ORG . This made it difficult for candidates and observers to check that results had been reported accurately . Protocols from CARDINAL constituencies , CARDINAL and DATE , were never posted publicly . ...

The ORG invalidated the results of CARDINAL constituencies [ including ORG no . CARDINAL ] under LAW , which states that if a ConEC or the ORG cancels CARDINAL of PECs representing CARDINAL of the total electorate in a constituency , then the entire constituency result is considered invalid . ...

At least ... CARDINAL ConEC chairpersons [ ConECs CARDINAL and DATE ] were dismissed after DATE for involvement in electoral malfeasance . The CARDINAL ConEC chairpersons were arrested and charged with forging election documents . ... The ORG forwarded materials on possible criminal violations to ORG Office regarding CARDINAL PECs . ...

The process of invalidation of aggregated results in CARDINAL constituencies by the ORG did not have sufficient legal grounds or an evidentiary basis , nor was the process transparent . The ORG decisions on the invalidation of the election results in the CARDINAL constituencies concluded that there were “ unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters ” but did not provide any factual basis to support this conclusion . ...

Furthermore , when it invalidated results , the ORG did not make the required initial factual inquiry [ as required by LAW ] , and ignored LAW , which authorizes the ORG to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “ mistakes , inadmissible corrections and inconsistencies . ” Protocols of ConECs and PECs were not examined or reviewed at ORG sessions . Invalidation of results in a polling station was premised solely on the conclusion of an individual ORG member as to whether a protocol should be invalidated . The judgment of a single ORG member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved . Accordingly , there was no factual basis presented publicly for invalidating results in any of the CARDINAL constituencies , which is particularly troubling since the ORG registered few complaints that alleged violations in these constituencies . ...

The adjudication of post - election disputes in the courts largely disregarded the legal framework , and fell short of internationally accepted norms . ... In most cases , complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both ORG and ORG .

Opposition candidates appealed the ORG ’s invalidation of results in constituencies CARDINAL , DATE and CARDINAL . ORG upheld the CARDINAL ORG decisions without any investigation or review of the primary documents and evidence , such as the ORG protocols . In constituency CARDINAL , the appellant petitioned ORG to examine the protocols , which had been forwarded to ORG office by the ORG . This petition was denied . In constituency DATE , the appellant made an identical request and the court again denied the petition , ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline . The ORG was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation . ...

Proceedings in ORG did not correct the shortcomings noted above . ORG upheld each ORG decision . ”


Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

On DATE the applicant was dismissed from work . Considering his dismissal arbitrary , he challenged it before ORG ( “ the ORG ” ) . The applicant did not seek an award of pecuniary damage .

By a judgment of DATE , which became final , ORG found the dismissal void due to a flawed procedure and ordered the applicant ’s reinstatement . That judgment was never enforced .

In separate proceedings , which were pending before the domestic courts by the time this ORG adopted the principal judgment , the applicant sought payment of salary arrears since DATE .

By a decision of CARDINAL DATE , ORG found in the applicant ’s favour as regards his request for payment of salary arrears . Since the employer had paid the applicant salary arrears for the period DATE and DATE , ORG found that the employer had to pay the applicant salary arrears for the period between CARDINAL DATE and DATE , the date on which the applicant had retired .

Until DATE the applicant had been paid salary arrears in the amount of CARDINAL NORP leks ( ALL ) for the period DATE and DATE . To date , the remainder of salary arrears ( ALL CARDINAL for the period DATE and DATE ) has not been paid to the applicant .