The applicant , PERSON , is a GPE national who was born in DATE . At the time of the introduction of this application he was detained in prison . He is represented before ORG , a non - governmental organisation based in GPE . The respondent Government are represented by PERSON , ORG .

The facts of the case , as submitted by the parties , and as they emerge from the transcripts sent by the applicant of the domestic applications , rulings and judgments , may be summarised as follows .

In DATE the applicant , a prison governor , was convicted of obtaining property by deception and sentenced to DATE imprisonment .

While he was in prison , another inmate , PERSON ( “ PERSON ” ) , made contact and offered to introduce him to criminals who would deal with him after his release . Unknown to the applicant , PERSON was a registered police informer . Some of their conversations were recorded , and showed that , while the applicant was initially interested in credit card fraud and counterfeit currency , PERSON attempted to persuade him to become involved in the supply of heroin .

PERSON was released in DATE and the applicant in DATE . The applicant claims that after his release PERSON pressured him to meet . In DATE PERSON was again arrested on fraud charges . He was , however , released on bail and , on DATE , observed by the police , he met with the applicant . PERSON later introduced the applicant to an undercover police officer called “ PERSON ; PERSON introduced him to an undercover officer called “ NORP ” ; and PERSON introduced him to another undercover officer called “ PERSON . Over DATE the applicant had conversations with these officers during which , he alleges , they pressurised him into supplying drugs , although he was interested only in credit card fraud and counterfeit currency . Some , but not all , of these conversations were recorded .

The applicant agreed to sell heroin to PERSON . On DATE he provided PERSON with a small sample , which he claimed to have bought in a public house . Twice , DATE , he promised to sell LAW of heroin , but on each occasion he failed to deliver . In the light of these failures , on DATE the police detective in charge of the undercover operation decided to discontinue it .

On DATE , the operation having been discontinued , the applicant initiated contact with PERSON and again offered to supply a QUANTITY of heroin . After the meeting with PERSON applicant made a number of telephone calls to the Royal Cabs taxi firm in GPE - on - Trent , which was owned by NORP , and where PERSON had worked for DATE . Following these calls the applicant paged PERSON to tell him that the deal was on .

On DATE the applicant was seen driving to GPE from his home in GPE . His car was parked near the LOC of FAC for TIME . Towards the end of the afternoon , in response to a message , PERSON telephoned the cab office and the applicant was put on the line to confirm that everything had been arranged . TIME the applicant was observed driving away with CARDINAL passengers in the car , which he parked near the home of PERSON 's girlfriend . TIME the applicant drove home , accompanied by NORP It was the ORG 's case that PERSON had supplied the heroin , and that at this point it was in the possession of NORP

On DATE , H , driving R 's car , came to ORG near GPE shortly after TIME He and his girlfriend waited in the reception area all morning . At TIME the applicant and R arrived . H. showed no sign of recognition when they walked through the lobby . It was the ORG 's case that PERSON was there to supervise the drugs deal , but he claimed to have come to the hotel to collect NORP from an adulterous liaison .

After arriving at the hotel , NORP and the applicant separated , and the applicant made contact with PERSON . PERSON rejoined them with a bag containing a kilogram of heroin of PERCENT purity and all CARDINAL went to PERSON 's room in the hotel which had been fitted with covert surveillance equipment . NORP handed over the drugs , PERSON tested them and left the room , purportedly to fetch GBP CARDINAL in cash . The applicant and NORP were then arrested , as was H , still waiting in the hotel foyer .

During his initial interviews with the police , on CARDINAL and DATE , even after having been told that PERSON was an undercover police officer , the applicant denied any involvement with the supply of heroin and suggested instead that PERSON had brought the drugs to the hotel to falsely implicate him .

The applicant , NORP and PERSON were charged with being concerned in the supply of a Class A drug and indicted for trial in ORG .

It appears that in DATE PERSON , who was facing fraud charges , disappeared .

On DATE and DATE there were directions hearings , at which the defendants were ordered to disclose the outline of their defences . The applicant indicated at that stage that it was his case that he had been “ targeted by the police and pressurized into participation by [ the ] police ” . The defence also indicated that they would apply to exclude the police evidence on that basis .

On DATE NORP pleaded guilty , but the applicant and PERSON maintained their “ not guilty ” pleas .

On DATE the barrister who was acting for the applicant at the time wrote to ORG in connection with the applicant 's legal aid certificate . In the letter he stated , inter alia , that it was the applicant 's case that he had been enticed to commit the offence by PERSON , and he also indicated that the applicant claimed that PERSON had encouraged him to consider obtaining drugs to sell as an easy way of making money . This letter was seen and responded to by another judge , and the trial judge had no knowledge of it until he was shown a copy of it at the hearing on DATE .

In DATE the applicant 's legal representatives wrote to the prosecution requesting , inter alia , full particulars of all occasions when video or audio recording equipment had been used by the police . The prosecution responded on DATE that “ [ NORP details are included in PERSON 's witness statements ” , without mentioning that there had been other undercover agents involved in the operation whose conversations with the applicant had been recorded . In response to the defence request to “ provide the name , address and anything else known about [ NORP ] ” , the prosecution answered only that PERSON had not made a statement .

On DATE the prosecution successfully applied to the trial judge ex parte ( that is , in the absence of any representative of the defence ) for an order that the status of PERSON , PERSON and PERSON , together with transcripts of conversations between these undercover agents and the applicant , be withheld from the defence on the grounds of public interest immunity ( “ ORG ” ) . As the judge later explained during the hearing on DATE , before this ORG hearing on DATE he had read transcripts of all the tape - recorded conversations between the applicant , PERSON and PERSON . He granted the prosecution 's application to withhold evidence relating to these undercover officers because , as far as he knew at that stage , the applicant was alleging only that he had been enticed to commit the offence by PERSON , and it did not appear that evidence which the prosecution was not intending to use relating to the other undercover officers would be of any help to the applicant 's case , whereas there was a public interest in not disclosing it in order to protect police methods of investigation . He made it clear that his decision would have to be reviewed in the light of the pending application by the defence to exclude the police evidence .

On DATE the prosecution wrote to the defence informing them that an application had been granted “ for immunity from disclosing certain unused material in the possession of the police ” . On DATE the applicant 's solicitors wrote to the prosecution asking “ Do the ORG possess any information relating to PERSON , PERSON and PERSON ? ” but no information in this connection was disclosed at that stage by the prosecution .

On DATE the trial judge heard an application by the defence under section CARDINAL of ORG “ PACE ” ) to exclude the evidence of PERSON on the grounds that he had unfairly enticed the applicant into committing the offence , that he had failed to keep a proper record of his conversations with the applicant and that the status of PERSON ( who was believed by the defence to be the informant ) was unknown and untested . Defence counsel indicated that if the application did not succeed , the applicant would plead guilty : his only “ defence ” to the charge was that he had been enticed .

PERSON gave evidence and , on the judge 's instructions , revealed that PERSON was an undercover police officer . The applicant then gave evidence . During his cross - examination , his solicitor overheard prosecution counsel refer to the fact that PERSON had been the informant . Counsel for the applicant reported this to the trial judge and expressed his concern about the level of disclosure .

On DATE the trial judge adjourned the application to exclude the police evidence . He heard from prosecution counsel ex parte and ordered the ORG to make full disclosure of all the evidence relating to the role of the undercover police officers and the informant . The ORG indicated that if full disclosure were made and if the defence wished to continue with the application to exclude the police evidence at DATE , the ORG would call PERSON and PERSON to testify .

The defence were then told that PERSON was the informant , that PERSON and PERSON were undercover police officers and that further covert recordings existed of conversations between the applicant and these CARDINAL officers . The applicant 's counsel immediately applied to have the proceedings stayed as an abuse of process on the basis , inter alia , that disclosure had not been made at the right time . The trial judge indicated that the application was premature until full disclosure had been made , and the applicant did not therefore pursue it at that time .

Throughout DATE and DATE the defence wrote to the prosecution requesting copies of the informant log , details of the case against PERSON and confirmation of whether or not he had been an informant prior to this case , as well as surveillance logs , the notebooks of PERSON and PERSON and confirmation as to whether the co - accused PERSON was an informant . The prosecution refused to provide any further information in relation to ORG , and invited the defence to come and inspect the logs and notebooks at the police station . In DATE the defence wrote to the prosecution asking them to confirm that full disclosure had been made . The prosecution replied by a letter dated DATE that they had made disclosure of all “ unused material which is considered relevant ” .

On DATE the applicant again applied to stay the proceedings as an abuse of process . It was argued on his behalf , inter alia , that the fact that full disclosure had not been made before DATE had materially prejudiced his chances of persuading the judge that he had been entrapped , because as a result of the lack of disclosure and his ignorance at that point that PERSON and PERSON were police officers , that recordings and transcripts of some of his conversations with him were in existence and that they could be called as witnesses , the applicant believed , at the hearing on DATE , that it was safe for him to give false evidence about his dealings with them without fear of discovery . The defence further argued that because of the circumstances in which the application under section CARDINAL PACE had been adjourned , the prosecution had gained an unfair advantage , because they had already heard the applicant 's testimony and would have a chance to prepare their case better were the application to be resumed .

During the course of the hearing of DATE the judge ordered that a tape recording of the ex parte ORG application of DATE be played in open court , to enable the applicant and his representatives to learn what material had originally been withheld from them and the reasons given by the judge for non - disclosure .

It is alleged by the applicant that during the hearing the prosecuting counsel stated in open court that PERSON had been sent to the same prison as the applicant specifically to target him . The Government deny that any such admission was made .

The judge rejected the application to stay the proceedings as an abuse of process . He held that the defence had been at fault in that there had been no indication prior to the hearing on DATE that it was the applicant 's case that he had been enticed to commit the offence by anyone other than PERSON . Since the transcripts of the conversations with the other undercover officers would have been more likely to harm the applicant 's case than to assist it , the prosecution had not acted wrongly in seeking to withhold them , and it had been reasonable for him ( the judge ) not to order disclosure on DATE . The defence had not established on the balance of probabilities that the applicant had been unduly prejudiced in his application under section CARDINAL PACE : if that application were to be renewed , and if the applicant 's evidence were to differ from that he gave on DATE , it would be for the trial judge to decide whether or not the inconsistency was understandable and resulted from his having been put in a difficult position because of the lack of earlier disclosure .

Finally , the defence counsel referred to the exchange of correspondence in DATE and asked for confirmation that all the sensitive material in the case had been disclosed . Prosecution counsel indicated that all the evidence considered by them to be relevant had been disclosed , and the trial judge ruled that this was sufficient : it was not open to the defence to go on a “ fishing expedition ” in an attempt to force disclosure of sensitive information peripheral to the case ; if they suspected that there was additional relevant material which had not been disclosed , they should write explaining their reasons for needing to know about it .

The applicant submits that the trial judge heard CARDINAL further ORG applications by the prosecution in DATE relating to information concerning PERSON and , possibly , PERSON 's status as an informant . According to the applicant , the judge ruled that save insofar as they related to PERSON ' involvement with the applicant , it was not in the public interest to disclose this information .

On DATE the applicant 's case was again listed for trial . The defence requested an adjournment on the ground that the prosecution should make further disclosure concerning PERSON ' criminal activities and his relations with his police “ handler ” . The judge could see no reasonable basis for adopting that course and accepted the prosecution contention that it was speculation and “ fishing ” on the part of the defence . It was further contended on behalf of the applicant that notes or counterfeit notes allegedly handed by PERSON to the officer in charge of the operation should be produced and tested for fingerprints . The judge described this matter as “ utterly peripheral ” , and refused the applications on the basis that the information sought was irrelevant to the issues in the applicant 's case .

The defence therefore proceeded with their application to exclude the police evidence under section CARDINAL PACE , on the ground that the applicant had been entrapped into committing the offence by the undercover police officers with the aid of a participating informer . The applicant , PERSON , PERSON and PERSON gave evidence , as did the police officer who had been both in charge of the undercover operation and PERSON ' “ handler ” . The applicant alleged that many of his conversations with the undercover agents which had not been recorded DATE or , at least , of which no transcripts had been produced by the prosecution – would have supported his claim to have been the victim of undue pressure to become involved in the supply of drugs . It was further argued on behalf of the applicant that the lack of disclosure before the hearing on DATE had given rise to an abuse of process .

On DATE the trial judge held that the submissions on abuse of process and under section CARDINAL of PACE went hand in hand . According to LANGUAGE law , entrapment or unfair incitement by an agent provocateur did not per se afford a defence to a criminal charge but it could constitute a ground for excluding prosecution evidence . The judge went on to review the facts of the case . He rejected the applicant 's evidence as to entrapment and said that he was “ entirely satisfied ” that the applicant had not been pressurised to commit the offence . He found that none of the officers had overstepped the mark and that PERSON was not a “ participating informant ” as that phrase was understood and clarified by a FAC . The trial judge also found that it was the applicant who had brought up the subject of drugs as one of the things he was interested in at a very early stage and that the applicant had been a willing supplier of drugs at all times .

Having made those findings , the judge went on to consider whether any of the evidence should nonetheless be excluded under section CARDINAL of PACE by reason of any procedural irregularity . He ruled against exclusion , finding that nothing had been done in the case by the prosecution which amounted to a deliberate or inadvertent abuse of process , and that the applicant had not been caused prejudice .

The applicant then changed his plea to CARDINAL of guilty of being concerned in the supply of a controlled drug of Class A. He offered to make a statement to the prosecution but the prosecution said they would not wish to call him in the trial of his co - accused , PERSON was sentenced to DATE imprisonment .

The applicant applied for leave to appeal , challenging the trial judge 's rulings . The single judge found as follows :

“ All the [ trial ] judge 's rulings were within his discretion , and in each case he directed himself correctly as to the applicable law . Specifically:-

( i ) on the information available to the prosecution on DATE , the existence and status of the undercover police officers was irrelevant .

( ii ) in DATE , the judge ruled that the defence had fallen far short of establishing prejudice and that the points raised had no real substance .

( iii ) the judge was right to reject the ( further ) application for an adjournment on DATE ( see e.g. ' utterly peripheral ' ... )

( iv ) in the main ruling on DATE , the judge , having summarised the law correctly , rejected the appellant 's evidence and found that the appellant was not pressured , and indeed that the appellant himself brought up the subject of drugs at an early stage . Given these findings , the admission of the evidence was inevitable . ... ”

The applicant appealed to the full ORG which refused leave to appeal in a judgment of CARDINAL DATE .

's rulings , which had formed the basis of the grounds of appeal , and expressed itself to be in agreement with the single judge , that each of the trial judge 's rulings fell plainly within the scope of the reasonable exercise of his discretion . ORG in addition dismissed the defence contention that the trial judge , in rejecting the applicant 's claim to have been entrapped , had taken into account inadmissible hearsay evidence , namely the investigating officer 's account of what he had been told by PERSON ; even if he did take such evidence into account , it was plainly not determinative of his decision , which would have been reached in any event given his “ emphatic rejection of PERSON 's evidence ” .

The national law relevant to this application is set out in PERSON and PERSON v. the GPE [ ORG ] , ORG . CARDINAL and ORG , § § DATE , DATE ) .


CASE OF MIRAGALL ESCOLANO AND OTHERS v. SPAIN

Violation of Art. 6-1;Just satisfaction reserved;Pecuniary damage - reserved

NORP The profit margins for chemists in GPE were fixed by a ministerial order ( ORG ) on DATE .

On DATE the government published a ministerial order in ORG ( PERSON ) reducing the profit margins .

On DATE ORG of GPE ( ORG general ORG ) commenced proceedings for judicial review with a view to obtaining an order quashing the ministerial order of CARDINAL DATE . ORG ordered a stay on the implementation of the order concerned . On DATE it quashed the order on its own initiative . The judgment of ORG was served on ORG on DATE , but not on the applicants , as they were not parties to the proceedings .

The judgment of CARDINAL DATE became public when a ministerial order of CARDINAL DATE was published on CARDINAL DATE in edition no . CARDINAL of ORG , which reproduced the grounds of the judgment in question .

On DATE and DATE the applicants lodged claims ( dated DATE and DATE ) with ORG for the payment of compensation for the damage sustained as a result of the ministerial order , under LAW and section CARDINAL(CARDINAL ) of the PERSON on the Legal Regime governing the Administration of the ORG . Those claims were deemed to have been rejected as the authorities did not reply to them .

On DATE the applicants sought judicial review before ORG . They argued that the DATE limitation period for lodging their application had started to run on CARDINAL DATE , when ORG judgment of CARDINAL DATE was published in ORG , or , at the very least , DATE , when it was served on ORG . Their applications were , however , dismissed on the ground that the time - limit for making a claim for compensation to the administrative authorities had been DATE from the date of delivery of ORG judgment , namely CARDINAL DATE , and that they had lodged their applications out of time .

The dates ORG delivered its judgments were as follows : DATE ( application no . CARDINAL/CARDINAL ) ; CARDINAL DATE ( application no . CARDINAL ) ; CARDINAL DATE ( application no . CARDINAL/CARDINAL ) ; CARDINAL DATE ( application no . CARDINAL ) ; CARDINAL DATE ( application no . CARDINAL/CARDINAL ) ; CARDINAL DATE ( application no . PERSON ) ; CARDINAL DATE ( application no . CARDINAL ) ; CARDINAL DATE ( application no . CARDINAL/CARDINAL ) ; DATE ( application no . CARDINAL ) ; and CARDINAL DATE ( application no . CARDINAL/CARDINAL ) .

The applicants then lodged CARDINAL amparo appeals with ORG , arguing that the starting - point of the DATE limitation period for lodging their applications with the authorities had been either CARDINAL DATE , when ORG judgment was published in ORG , or DATE , when it had been served on ORG .

State Counsel 's lodged memorials that were favourable to the applicants , in which he said :

“ Whatever the position , ORG considers that the interpretation by ORG , an interpretation which led it to declare that the action for compensation was statute - barred and , consequently , to dismiss that claim , in fact reflected a formal restrictive approach which is not best suited to facilitate the right of access to a court . That is because , as ORG itself openly recognised in its decision of DATE , which was produced by the applicant , it is impossible to establish the date when a judgment will be delivered before it has been drawn up and signed . That means that in every case , even people who were parties to the proceedings in question ( which the applicant was not ) will only learn the content and date of the judgment when it is served on them . Thus , taking as the starting - point the date of delivery of a judgment ( which in practice is a fiction ) and not the date of its service results in a material reduction in the time allowed for lodging the relevant claim for compensation , a reduction which , depending on how long service is delayed ( which , admittedly , was for a very limited period in the present case ) , restricts and may even deny the effectiveness of the right to make a claim . Consequently , the decision of ORG entails a violation of the right to effective protection by the courts . ”

The Constitutional Court nonetheless dismissed the appeals on the ground that the applicants had lodged their claims with ORG DATE after the date ORG judgment was delivered . It held that a presumption arose that the applicants had been aware of ORG judgment of CARDINAL DATE in sufficient time , given their direct interest in it and the role played by ORG , which would have informed its members of the judgment .

The dates of delivery and service on the applicants of the decisions of ORG were as follows : DATE ; DATE ; CARDINAL DATE ; DATE ; DATE ; and DATE .

The judgments of DATE ( amparo appeal lodged by PERSON , application no . CARDINAL ) and DATE ( amparo appeal lodged by PERSON , application no . PERSON , Mr PERSON , application no . ORG , and PERSON , application no . CARDINAL/CARDINAL ) were delivered by ORG sitting as a full court . CARDINAL judges expressed an opinion dissenting from the judgment of DATE ( amparo appeal no . CARDINAL ) . CARDINAL of the judgments of DATE referred to the grounds of that judgment and to the dissenting opinion annexed to it . In the dissenting judges ' view the starting - point for the limitation period was the date the person relying on it could reasonably act . In the instant case , that could not have been the date of “ delivery ” of the judgment of CARDINAL DATE , that being the date when the judges had voted in the parties ' absence . Accordingly , in those sets of proceedings , the starting - point for the limitation period had to be the date of service of the decision , that being the point at which the parties had been able to act . With regard to LAW ( see paragraph CARDINAL above ) , the following view was expressed in the dissenting opinion :

“ ... If regard is had to the fact that this latter rule provides that the limitation period for all types of action shall be calculated from the date the actions could have been brought , it is obvious that that date can under no circumstances be the date of delivery of the judgment , for the simple reason that the parties are not invited to be present at that ' act ' , which in general takes place in practice at the same time as the vote which , with the exception of judgments made public ' in open court ' , enables it to be considered as a fiction devoid of purpose . ...

We therefore find ourselves confronted by a dangerous doctrine ( by reason of the legal uncertainty which it creates for the parties ) which , if extended to the calculation of the time - limits for appeals , may undermine the right to a remedy which is also fundamental . ...

If account is taken of the fact that rules governing procedural time - limits are mandatory , that an interested party is at liberty to bring an action at any time within that period , and that any change to the rules for calculating the time - limits will affect the constitutional principle of legal certainty ( Article CARDINAL [ of LAW ] ) , the conclusion that we are faced not with a mere problem of interpretation of an ordinary legal rule ( for which ORG has sole jurisdiction ) , but with an unreasonable interpretation of a procedural requirement that prevented the claim for compensation being considered by a court on the merits is inescapable . In our view , that situation amounts to a violation of the right to effective protection by the courts , since the requirement that the courts must examine a case can not be satisfied by a mere decision containing formal reasoning , but requires a decision satisfying the criteria of legal and substantive debate or which , in accordance with LAW , protects ' legitimate rights and interests ' .

The right to bring an action or to lodge an appeal must arise from the moment the parties may effectively become aware of a legal decision imposing an obligation on them or adversely affecting their legitimate rights or interests . As an act of communication between the court and the parties , service serves that purpose , namely to make the parties aware of the decision of the court and of the grounds for the decision . A pseudo - publication , a mere component of an esoteric judicial liturgy in which the parties play no role , can not constitute the act required by our LAW to enable the right to the effective protection by the courts or the right to a remedy to be exercised . ”

The dissenting judges concluded :

“ ... we have to conclude that we are not dealing with a mere problem of interpretation of an ordinary legal rule ... but with an unreasonable interpretation of a procedural requirement which prevented the claim for compensation being considered by a court , something which is , in our view , contrary to the right to effective protection by the courts ... ”

Article CARDINAL of the LAW provides :

“ CARDINAL . The courts shall supervise regulatory powers and the lawfulness of administrative acts and whether such acts are directed at aims which justify them .

Save in cases of force majeure , individuals shall be entitled in the circumstances and in the manner laid down by statute to compensation for any damage caused to their property and their rights whenever such damage results from the functioning of the public service . ”

At the material time , section CARDINAL(CARDINAL ) was worded as follows :

“ Where the damage results from administrative deeds or acts ... the right to make a claim shall lapse DATE after the event giving rise to the claim for compensation . ”

The relevant provisions of LAW read as follows :

“ Save as expressly provided otherwise , for the purposes of the limitation period in any action whatsoever , time shall start to run from the date the action may be brought . ”

“ For the purposes of the limitation period in actions for the execution of obligations arising under a judgment or decision , time shall start to run from the date the judgment or decision becomes final . ”

NORP The issue of the starting - point has been considered by ORG in a number of decisions .

“ ... The limitation period starts to run from the moment that a possibility of asserting the right exists , that is to say , from the moment the cause of action becomes a matter of public knowledge and the right can logically and legally be asserted , since it would be absurd and unjust if time started to run when the act giving rise to the cause of action was still unknown or concealed , when , as a consequence , it was impossible to challenge or contest that act effectively or when an obstacle prevented any challenge ... ”

“ ... Time shall start to run from the moment the parties are notified , that is to say , from the moment they become aware of the rights and obligations which the decision creates for them ... ”

“ ... [ For the purposes of the DATE time - limit laid down by section CARDINAL(CARDINAL ) of the Law on the Legal Regime governing the Administration of the State , time begins to run as soon as ] the judgment quashing the act or general administrative provision at the origin or constituting the cause of the pecuniary liability becomes final ... ”


Violation of Art. 6-1 (public hearing);No Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . He was an investor in NORP Credit , a private bank which is now insolvent .

In DATE and DATE the applicant won CARDINAL legal actions against the bank . Unable to recover his investment despite the judgments in his favour , the applicant instituted numerous sets of proceedings against the bank and various authorities involved in its insolvency .

NORP In DATE CARDINAL of the bank 's creditors joined together to form a union , obtained a settlement with the bank and asked ORG of GPE to ratify it . CARDINAL creditors disagreed with the settlement . Some of them , including the applicant , lodged their written objections with the court .

The Commercial Court of GPE heard the case in CARDINAL hearings which took place on CARDINAL , DATE , DATE , and DATE . The court gave notice of the hearings to the CARDINAL creditors who had objected to the settlement , representatives of the creditors ' union and representatives of the bank . Since the applicant received the notice only on DATE , he was able to participate in the last hearing only . According to the applicant , on DATE the judge refused to hear his pleadings on the ground that they were essentially the same as those of the other creditors .

Access to the court building was restricted throughout the proceedings . On DATE a policeman standing at the entrance turned away CARDINAL people who wished to enter the courtroom but who did not have a notice to appear or an identity card . On each of the following days CARDINAL people wishing to attend the hearings were refused access to the court building . At each hearing a number of seats in the courtroom remained free .

On DATE ORG of GPE ratiﬁed the settlement . The applicant appealed .

NORP On DATE ORG of ORG of GPE upheld the settlement . The applicant participated in the hearing , pleaded his case and submitted written arguments . Disagreeing with the judgment , the applicant appealed on points of law .

On DATE ORG of ORG dismissed the appeal on points of law . The applicant participated in the hearing , pleaded his case and submitted written arguments .

Public access to the appeal hearings was also restricted . Both appeal courts ignored the applicant 's complaint that the first - instance hearings had not been public .

The commercial courts ratified the settlement in accordance with LAW of GPE ( Law no . CARDINAL-FZ of CARDINAL DATE , in force at the material time ) . LAW required proceedings to be public :

“ Proceedings in commercial courts shall be public . A hearing in camera shall be possible if [ the case concerns ] ORG , commercial , and other secrets ... ”

Article CARDINAL of the Code required the commercial court to verify at the beginning of the proceedings whether the notice to appear had been properly dispatched to the absentee parties :

“ The presiding judge ... shall verify the presence of the parties and other participants at the hearing ... [ and shall find out ] whether persons who do not appear have been properly notified and if there is information available concerning the reasons for their failure to appear . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant company , PERSON , is a limited liability company under NORP law with its seat in GPE , GPE . Mr PERSON , a NORP national who was born in DATE and lives in GPE , is its managing director . The applicant company is represented before the Court by PERSON , a lawyer practising in GPE .

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

On DATE the applicant company was approached by ORG ( PERSON ) and asked to specify who had been driving a lorry owned by the applicant company on motorway no . CARDINAL at TIME on DATE . There was a standard notice printed on the form which read : “ Please indicate the name and address of the person responsible for the offence , by doing so you will avoid further investigations ” . The applicant company indicated the full name and address of the driver PERSON

On DATE ORG accused PERSON of having exceeded the maximum speed limit by QUANTITY / h at the named date and time while driving a lorry registered to the applicant company ; it imposed a fine of MONEY ( ORG ) on him for a speeding offence and suspended his driving licence ( Fahrverbot ) for DATE . PERSON objected to the fine , claiming that he had not been the driver of the vehicle at the relevant time .

On DATE the applicant company refused to hand over to the police the tachograph ( NORP ) that had been in use at the relevant time in the lorry at question .

On DATE ORG issued a search warrant to search the applicant company ’s business LOC and if necessary its cars in order to seize the specific tachograph which had been in use in the lorry in question on DATE . In its reasoning the court mentioned that the tachograph was indispensable for clearly identifying the driver of the lorry .

On DATE the police entered the office premises of the applicant company . The specific cabinet where the tachographs were stored was searched and the tachograph which was specified in the search warrant was seized .

The applicant company and PERSON appealed against the search and seizure warrant after the seizure took place . The applicant company argued that the search warrant had not been proportionate , as the company was not suspected of any infringement or regulatory offence . What was at stake , a fine of CARDINAL ORG and a temporary suspension of the driving licence for DATE , did not justify a search warrant for the premises of third persons . Besides , the search warrant had not been necessary , as the applicant company had previously specified the driver ’s name and address .

On DATE ORG dismissed the appeal . Whereas the appeal by PERSON was not admitted for lack of standing , the appeal by the applicant company was considered on the merits . The ORG acknowledged that the search order by its nature had infringed the right to respect for the company ’s domicile , which was an acknowledged right for legal persons also , even if to a lesser extent . However , the infringement had been justified as the search had served a legitimate interest and had been proportionate to the aim pursued . The court pointed out that the proportionality of a search warrant concerning a third person ’s domicile had to be scrutinised even more intensively when only a regulatory offence was at stake and not a criminal one . Nevertheless , the legislator had not excluded searches and seizures for regulatory offences in general . Otherwise , the identity of a driver suspected of a traffic offence would often remain unclear and the offence could not be prosecuted . There was a legitimate public interest in controlling road traffic and prosecuting offenders , as this protected the general public against the dangers inherent in road traffic . In this particular case the search had been proportionate as the police had merely looked for the cabinet where the tachographs were kept and taken only the tachograph in question . The functioning of the company had not been disturbed , nor had this particular tachograph been in any way significant for the proper functioning of the business . The court further underlined that in the particular circumstances of this case a tachograph had been an undisputable way to identity the person who had committed the regulatory offence as there had been no other means for the prosecution to establish his or her identity . For these reasons , the seizure of the tachograph was declared proportional .

On DATE the applicant company raised a constitutional complaint with ORG . It pointed out that , contrary to the assumption of ORG , there had been other ways to identify the driver in question . Firstly , ORG could have requested a photograph of PERSON in order to compare it with a radar photograph . Secondly , the applicant company could have identified its employee by the radar photo . In its legal reasoning the applicant company explicitly referred to the ORG ’s reasoning in PERSON , no . MONEY , ECHR CARDINALIV . It further mentioned that the execution of the search and seizure warrant had had negative effects for the company ’s public reputation .

On DATE PERSON conceded that he had been driving the lorry and confessed to the traffic offence in a hearing before ORG .

On DATE a panel of CARDINAL judges of ORG refused to admit the complaint . In its reasoning the ORG mentioned that there was no appearance of arbitrariness or disproportionality in the prior court decisions , in particular the decision of ORG . It pointed out that the applicant company had in fact not fully cooperated with the investigating authorities as it had refused to hand over the tachograph voluntarily . The court added that the applicant company itself had mentioned in the proceedings before ORG that the identity of the driver who had committed the regulatory offence might not have been determined without the contested measures .

According to section CARDINAL § CARDINAL of LAW ( ORG ) , a violation of a regulation of ORG ) , is considered a regulatory offence ( PERSON ) . Under regulation CARDINAL § CARDINAL traffic signs have to be complied with .

Regulatory offences are governed by ORG ( Ordnungswidrigkeitengesetz ) . According to its section CARDINAL § CARDINAL , the provisions of ordinary law governing criminal procedure - in particular LAW - are applicable by analogy to the procedure in respect of regulatory offences , subject to the exceptions laid down in the said LAW .

LAW ( Strafprozessordnung ) provides that the home and other LOC ( GPE und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence , to investigate traces of an offence or to seize specific objects , provided always that there are facts to suggest that such person , traces or objects is or are to be found on the LOC to be searched .


The applicants were born in DATE respectively and are currently in GPE .

They arrived in GPE on DATE and applied to ORG ( Migrationsverket ) for asylum on DATE . The first applicant submitted that he was of NORP origin , NORP , and had lived with his family and worked in GPE ( GPE ) since DATE . He claimed that in DATE he and CARDINAL of his brothers had been arrested by the NORP security police and imprisoned in GPE ( GPE ) for DATE because the police wanted information about another brother who had absconded while performing military service in DATE . He further alleged that he had been tortured and ill - treated in prison and had only been released after being hospitalised as a result of the ill - treatment . After his release , he returned to GPE to stay with his family . DATE he was arrested CARDINAL times by the security police , questioned about his brother 's whereabouts and beaten . However , on each occasion , he was released after DATE . In DATE the applicants moved to GPE , where they remained until they left GPE in DATE .

The applicants stated that they had left GPE legally , flying from GPE to GPE and then on to GPE . They had travelled using their own passports but had destroyed them upon their arrival in GPE .

On DATE ORG rejected the family 's application for asylum and their request for residence permits and ordered their deportation to GPE . It noted , firstly , that the general situation of NORP in GPE was not such as to satisfy the requirements for asylum since , inter alia , NORP who were NORP nationals had the same rights as all other citizens . Moreover , the majority of the population in GPE were NORP . ORG then found that the applicants had not shown that they risked persecution if they were sent back to GPE . It observed that , except for the first occasion in DATE , the first applicant had been released shortly after each interrogation by the security police . Moreover , as the interrogations had concerned his brother and not himself , ORG considered that he was not personally in need of protection . In this connection , it noted that the first applicant had not been able to explain why his brother had left the army or why the security police was so interested in him . ORG also observed that the applicants had left GPE legally .

The applicants appealed to ORG ( Utlänningsnämnden ) , relying on the same grounds as they had before ORG and adding that NORP were being persecuted and discriminated against in GPE . They also claimed that they had paid CARDINAL United States dollars for false passports which they had subsequently discarded . Furthermore , the second applicant had been admitted to an emergency psychiatric clinic for DATE in DATE owing to panic attacks .

On DATE ORG dismissed the appeal on the same grounds as ORG , stating that the new reasons advanced by the applicants did not alter the position . The deportation order was also upheld .

The applicants subsequently lodged a new application with ORG which was rejected on DATE .

Further , during DATE , ORG ( tingsrätten ) of PERSON convicted the first applicant of threatening behaviour against his DATE daughter and a neighbour . It gave him a suspended sentence and made an order for his deportation from GPE . However , he appealed to ORG ( hovrätten ) of GPE and PERSON , which on DATE upheld the conviction and the suspended sentence but quashed the deportation order as it did not consider that the offence in itself merited deportation .

On account of ORG decision on deportation , the police authorities had begun preparations to enforce it . In that connection , the NORP embassy in GPE ascertained that the applicants had left GPE legally on DATE using their own passports but had in fact travelled via GPE , not GPE .

In DATE the family lodged a new application for asylum to ORG and requested a stay of execution of the deportation order . They referred to a judgment that had been delivered on DATE by ORG in GPE which stated that the first applicant had been convicted , in absentia , of complicity in a murder and sentenced to death pursuant to LAW .

On DATE ORG granted a stay of execution of the deportation order against the applicants until further notice and requested them to submit an original of the judgment and other relevant documents in support of their application .

On DATE the applicants submitted to ORG a certified copy of the judgment in which it was stated that the first applicant and his brother had , on several occasions , threatened their brother - in - law because they considered that he had ill - treated their sister and paid too small a dowry , thereby dishonouring their family . In DATE the first applicant 's brother had shot the brother - in - law , after planning the murder with the first applicant , who had provided the weapon . The NORP court , which noted that the CARDINAL brothers had absconded , found them guilty of the charges and sentenced them to death . They were also ordered to pay QUANTITY to the victim 's family and were deprived of their civil rights and all their assets were frozen . The first applicant was also charged with unlawfully possessing a military firearm , a charge which the NORP court had instructed the military prosecutor to proceed with . Lastly , the court went on to state : “ [ T]his judgment has been delivered in the accused 's absence . [ It ] can be reopened . ” It would appear that the judgment has gained legal force .

The applicants also submitted some further documents concerning the proceedings in GPE , including a summons dated DATE requiring the first applicant to present himself before the court within DATE , failing which he would forfeit his civil rights and the control of his assets . The first applicant claimed that he had not been involved in the murder as he had been in GPE at the material time . He also explained that he had , in fact , spent DATE in custody in DATE on suspicion of complicity in the murder and had been released on bail on DATE . He insisted that he had not mentioned this before because it concerned the family 's honour and his sister 's humiliation . The applicant was represented by a lawyer in GPE whose contact details had been provided to ORG .

On DATE ORG requested the NORP embassy in GPE to verify whether the judgment was authentic and , if so , whether it was possible to appeal or to have the case reopened . They further enquired if a reprieve was possible and whether death sentences were normally carried out in GPE .

By a letter dated DATE , the NORP embassy in GPE informed ORG that a local lawyer ( förtroendeadvokat ) they had engaged had confirmed that the judgment was authentic . He had also carried out research into the NORP criminal law on sentences for murder and manslaughter , the results of which were attached to the embassy 's letter .

NORP The embassy provided the following information in their letter to ORG . According to the local lawyer it was probable ( sannolikt ) that the case would be retried in court once the accused were located and it would then be very likely ( troligt ) that new witnesses would be called and the entire case reheard . Further , the fact that a case was “ honour related ” was usually considered a mitigating factor leading to a lighter sentence . The embassy said that the lawyer had also stated that it was not unusual for the NORP courts to impose the maximum sentence possible when an accused failed to appear for trial after being summoned to do so . It added that , according to their sources , it appeared that the accused had to be present in person in order to obtain a retrial . In this respect , the NORP judicial system was marked by considerable ( betydande ) arbitrariness and the death sentence was carried out for serious crimes such as murder . However , every execution had to be approved by the President . The embassy had no reliable information about how frequently death sentences were enforced as they were normally carried out without any public scrutiny or accountability . However , the local lawyer had claimed that it was very rare for the death sentence to be imposed at all by the NORP courts DATE .

On DATE , in response to the information provided by the embassy , the applicants initially noted that the first applicant was wanted in GPE under the judgment . They then observed that the local lawyer had only given his own opinion on the matter and on what he considered was likely to happen . However , there were no guarantees that the case would be reopened or that the outcome would be different . They also stated that it would now be very difficult for the first applicant to find any witnesses to testify on his behalf and that , since the murdered man 's family was very wealthy , they would be able to bribe the prosecutor and witnesses and , for that matter , the judge . The first applicant alleged that the murdered man had not been his brother - in - law , contrary to what had been stated in the NORP judgment ( see paragraph CARDINAL above ) , but that the man 's family had relied on forged documents before the NORP court , stating that the first applicant 's sister had been married to him . Thus , the murder was considered to be of the most serious kind . Furthermore , the fact that the first applicant was of NORP origin would also expose him to discrimination by the court and possibly to a harsher sentence . The applicants argued that , in view of the fact that the NORP legal system was arbitrary and corrupt , they had a well - founded fear that the first applicant would be executed if he were returned to GPE and that the family would thereby be destroyed .

On DATE ORG , by CARDINAL votes to one , rejected the applicants ' request for asylum . The majority considered , on the basis of the local lawyer 's research , that it had been established that , if the first applicant returned to GPE , the case against him would be reopened and he would receive a full retrial , at the end of which , if convicted , he would be given a sentence other than death , as the case was “ honour related ” . Under those circumstances , the majority found that the applicants did not have a well - founded fear and were thus not in need of protection .

The dissenting member of ORG considered that , having regard to all the facts of the case , the applicants did have a well - founded fear that the first applicant would be executed if returned to GPE and the family should therefore be granted residence permits in GPE .

On DATE , following the ORG 's indication under LAW , ORG granted a stay of execution of the deportation order until further notice . The stay is still in force .

The basic provisions concerning the right of aliens to enter and remain in GPE are to be found in LAW ( Utlänningslagen , CARDINAL ) . An alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( chapter CARDINAL , section QUANTITY ) . The term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who is unable or , owing to such fear , unwilling to avail him- or herself of protection in that country . This applies irrespective of whether or not persecution is at the hands of the authorities of the country , if the authorities can not be relied on to offer protection against persecution by private individuals ( chapter CARDINAL , section CARDINAL ) . By “ an alien otherwise in need of protection ” ( chapter CARDINAL , section CARDINAL ) is meant , inter alia , a person who has left the country of his or her nationality because he or she has a well - founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment .

In addition , when it comes to enforcing a decision to refuse entry to or to deport an alien , regard must be had to the risk of torture and other inhuman or degrading treatment or punishment . According to a special provision on bars to enforcement ( chapter CARDINAL , section CARDINAL ) , an alien must not be sent to a country where there are reasonable grounds ( skälig anledning ) for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment .

According to LAW , a person convicted of intentionally killing another person will be sentenced to capital punishment .

In its Concluding Observations on the third periodic report by GPE under LAW ( ORG , dated DATE ) , ORG expressed its concern about the nature and number of offences which carried the death penalty in GPE . It was further “ deeply concerned at the de facto reinstitution of death sentences and executions in DATE ” and noted that GPE had submitted insufficient information relating to the numbers of persons whose death sentences had been commuted , and the number of persons awaiting execution .

According to ORG Reports DATE : GPE ) , the NORP authorities had , on DATE , announced that CARDINAL people had been executed in DATE and CARDINAL in DATE . Moreover , on DATE , it was reported that CARDINAL persons had been executed in GPE , but no further details had been made public .


Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant is CARDINAL - limb deficient as a result of phocomelia due to thalidomide . She also suffers from problems with her kidneys . On DATE , in the course of civil proceedings in ORG for recovery of a judgment debt , she refused to answer questions put to her concerning her financial position and was committed to prison for DATE for contempt of court . In the applicant 's recollection , the judge ordered that she should be taken directly to FAC . Before leaving the court the applicant asked a court officer if she could take the battery charger for her wheelchair with her . She alleges that the officer told her that this would be considered a luxury item and that she would not , therefore , be able to bring it .

Because the applicant 's case had been heard during TIME DATE , it was not possible to take her to prison until DATE and she spent TIME in a cell in FAC . This cell , which contained a wooden bed and a mattress , was not specially adapted for a disabled person . The applicant alleges that she was forced to sleep in her wheelchair since the bed was hard and would have caused pain in her hips , that the emergency buttons and light switches were out of her reach , and that she was unable to use the toilet since it was higher than her wheelchair and therefore inaccessible .

The custody record states that on arrival , at TIME , the applicant informed the custody officer that she suffered from kidney trouble and a recurring ear infection but that she did not require any medication or to see a doctor at that time . At TIME she declined a meal and a hot drink . At TIME the applicant said she was cold so the officer wrapped her in CARDINAL blankets . When she was checked on again at TIME the applicant was still complaining of being cold . At TIME , since she was still cold and had a headache caused by the cold , another blanket was wrapped around her . She was offered a hot drink which she refused . The applicant was asleep at TIME , but by TIME she was awake again , complaining about the cold , and again refused a hot drink . At TIME she asked to see a doctor , who arrived at TIME The doctor 's note of his examination of the applicant at TIME states :

“ Patient complained of feeling cold , headache and queasy ( no food since DATE offered but refused ) . Talking quite sensibly , not obviously hypothermia , seated in wheelchair . Tells me unable to lie flat and sleeps on sofa , sitting up , at home . On Erythromycin for ear infection . On examination ears PERSON . Unfortunately the facilities available in the cells for this type of disabled person ( sic ) . Really requires a room temp in the high CARDINAL 's as not moving / not able to move around . Insulated with ' space blanket ' and extra blankets . Offered / given Paracetamol and [ bn ] stemetil as no co - proxamol available . ”

According to the custody record , the applicant slept until TIME , when she was moved to another cell and offered food and drink , which she refused . At TIME she was taken to ORG , GPE , where she was detained until TIME DATE .

The applicant was not placed in a normal cell in FAC , but was instead detained in the prison 's health care centre . Her cell had a wider door for wheelchair access , handles for the disabled in the toilet recess and a hydraulic hospital bed . On arrival at the prison the applicant completed a medical questionnaire . She stated that she had health worries but that they were “ under control – takes it as it comes ” . Staff PERSON , who countersigned the questionnaire , wrote :

“ Admitted into hospital mainly for mobility problems . Inmate has thalidomide and uses an electric wheelchair which would be difficult to use in the main prison due to steps e.g. to dining room . Has not brought chair charger with her as she says police would n't let her .

She suffers from urological problems and has intermittent renal failure ... Is able to feed herself if food is cut up , is able to use cup . Manages on and off the toilet to ORG [ pass urine ] but will need assistance with ORG [ opening bowels ] in order to clean herself .

Usually sleeps on a couch at home and her dog helps her up during TIME . Will need assistance here during TIME to get off bed to use the toilet . Will try to use the hospital bed with backrest out . Contacted Dr PERSON re help for night nurse . Memo done to ORG and Security re assistance at TIME and need to unlock ...

She is allergic to many antibiotics ... Needs frequent changes of clothes due to urinary problems .

Has settled into unit and eaten dinner .

PS : Can not be lifted in normal fashion as she has a persistently dislocated shoulder due to an old injury . ”

NORP The applicant was examined by PERSON , whose notes stated :

“ New reception .

Thalidomide victim with numerous deformities including absent arms upper / lower with dislocating L shoulder and no use in R upper limb . Both lower limbs are absent with small feet .

Bladder – is unable to empty completely and gets frequent retentions ( when she needs catheterisation ) and infection ...

Bowels – ... unable to manually clean herself .

At home she is relatively independent tho ' has numerous services including electric wheelchair DATE which may need recharging MONEY [ weekend ] .

In hospital has difficulty with

bed – too high

sink – unable to reach

mobility – battery running down

fluid intake – likes to take juice and there is none

diet – vegetarian

general hygiene – needs help ...

Needs : fluid intake

batteries recharged

adequate temperature ... ”

A “ continuous medical record ” on the applicant was kept during her detention . The first entry , dated DATE , stated :

“ I asked duty Governor , PERSON , to give permission for a battery charger for PERSON 's wheelchair to be brought in if we could arrange it . He agreed to this and whilst here we pointed out the numerous problems staff may encounter with this inmate i.e.

( CARDINAL ) Needs lifting in and out of bed and she says this is usually done by CARDINAL person standing behind her with arms around her midriff then lifting her either onto the bed or onto her wheelchair .

( CARDINAL ) She has , at home , a device worked by compression that gets her in and out of the bath . If she does n't have a DATE bath she risks developing sores , especially where her foot lies across her ' leg ' .

( CARDINAL ) Because of recurrent urinary infections she should take QUANTITY of fluid daily but usually has juice and does n't like water , therefore will probably reduce her fluid intake . After some consideration Mr PERSON decided that if we could find PERSON a suitable place in outside hospital he would licence her to go , but we do not have any medical condition to admit her to hospital with . PERSON will review PERSON DATE , as he thinks there is a likelihood she will develop a UTI [ urinary tract infection ] . ”

The nurses who cared for the applicant during her detention kept a contemporaneous record , which stated for TIME QUANTITY DATE :

“ Impossible to toilet during TIME . Have been into PERSON 's cell twice . Took TIME to toilet her then could not get her back on the bed . Given analgesia and she is getting a great deal of pain through lying on a solid mattress . Very difficult to care for her with CARDINAL nurse . ”

The applicant alleged that on TIME of QUANTITY DATE she was lifted onto the toilet by a female prison officer , but was then left sitting on the toilet for TIME until she agreed to allow a male nursing officer to clean her and help her off the toilet . The Government submitted that on DATE there was only one female nurse on duty , ORG , and that she enlisted the help of CARDINAL male members of staff , Senior Officer PERSON and Officer PERSON , and that the CARDINAL male members of staff assisted ORG in sitting the applicant up and then left the room while the applicant moved her bowels . ORG then cleaned the applicant and laid her back down . It is unclear from the ORG 's submissions whether Senior Officer PERSON and Officer PERSON were nursing staff or whether they were prison officers without nursing qualifications . The applicant further claimed that TIME , a female nurse who was assisting her onto the toilet removed her bedclothes in the presence of CARDINAL male prison nursing officers , thereby exposing her , naked from the chest down , to the male officers . The Government denied that these incidents occurred . They pointed out that prior to her release the applicant made a complaint to the prison governor concerning the lack of adequate facilities , but containing no mention of the above events .

An agency nurse was employed to care for the applicant during TIME to DATE . The entries in the nursing record for CARDINAL DATE stated :

“ Says she finds bed uncomfortable and there is a risk of her developing bed sores , but she is not completely immobile and is able to shift her weight about the bed . No problems with diet but fluid intake diminished due to her not liking water . There is a need for us to separate PERSON 's little whims from her genuine problems .

Bowels opened , says she 's in retention and has not PU'd [ passed urine ] since TIME , refusing to drink water , refuses to get ready for bed until TIME

Night – CARDINAL.CARDINAL asked to be put to bed . When asked why she was not in bed says day staff said agency nurse was going to wash her and put her to bed .

CARDINAL asked to be moved as she was having pains in ' legs ' . PERSON given and sat up . Settled and slept later . Has not ORG . Has been drinking . ”

The remission provisions in sections CARDINAL and CARDINAL of LAW DATE meant that the applicant had only to serve CARDINAL the sentence imposed , namely , DATE . Prior to her release , on DATE , the applicant was examined by PERSON who found she needed catheterising due to urine retention . The medical record stated :

“ For release TIME as soon as transport arrangements can be made . ...

To have bath and bladder emptied via catheter before leaving .

When asked if she had any specific medical complaints – she only asked for a bath and to be catheterised .

She had some complaints about her sleeping arrangements . PERSON that PERSON . PERSON had said that she could sleep on a chair and have her cell door open all night . Given that she is due for release DATE she said her Governor 's application was immaterial . ... ”

The applicant was collected from prison by a friend . She claimed to have suffered health problems for DATE as a result of her treatment in detention , but has not provided direct medical evidence in support of this claim .

On DATE the applicant consulted solicitors with a view to bringing an action in negligence against ORG . She was granted legal aid , limited to obtaining evidence and seeking counsel 's opinion as to merits and quantum . In his opinion dated DATE , her counsel referred to the difficulties which the applicant was likely to face in proving that she had suffered the ill - treatment which she alleged , and referred to a judgment of ORG ( ORG and ORG and Another [ DATE ] CARDINAL All England Law Reports CARDINAL ) which held that , given the lack of resources , the standard of care required of a prison hospital was lower than that which would be required in an equivalent outside institution . Counsel advised that , in the light of this case - law and the difficulties of proof which she faced , the applicant had a limited prospect of success in her claim and that , even if successful , damages were not likely to exceed MONEY . In the light of this advice , the applicant 's legal aid certificate was discharged on DATE .

It is not normal practice for ORG to give any direction as to where a particular defendant should be detained . Section CARDINAL(CARDINAL)-(CARDINAL ) of FAC provides that it is for the Secretary of ORG to allocate a prisoner to any prison :

“ CARDINAL ( CARDINAL ) A prisoner , whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise , may be lawfully confined in any prison .

( CARDINAL ) Prisoners shall be committed to such prisons as the Secretary of ORG may from time to time direct , and may by the direction of the Secretary of ORG be removed during the term of their imprisonment from the prison in which they are confined to any other prison . ”


Violation of Article 6 - Right to a fair trial

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

The applicants live in GPE , ORG , PERSON and PERSON .

NORP The applicant PERSON died in DATE . The applicant PERSON is her sole heir .

The applicant PERSON died in DATE . His heirs PERSON , PERSON and PERSON declared their intention to pursue the claim .

The applicants are heirs to a property ( a plot of land with a creamery ) situated in central GPE on FAC ( previously PERSON ) .

The property belonged to PERSON and after his death on DATE it was inherited by his daughters : PERSON ( legal predecessor of the applicants PERSON , PERSON , PERSON and PERSON ) , PERSON ( mother of the applicant GPE ) , PERSON ( mother of the applicant PERSON ) , ORG ( grandmother of the applicant PERSON ) , PERSON ( mother of the applicant PERSON ) . They all worked in the creamery until DATE .

By virtue of the Decree of DATE on the Ownership and Use of Land in GPE ( “ the DATE Decree ” ) the ownership of all private land was transferred to GPE . The applicants’ creamery was also nationalised .

On DATE the applicants and/or their legal predecessors requested to be granted the right of temporary ownership ( własność czasowa ) of the property pursuant to section DATE Decree .

On DATE ORG ( PERSON ) refused the request .

On DATE the applicants requested annulment of the decision of DATE .

On DATE the Minister of Planning and Construction ( Minister PERSON i GPE ) declared the decision null and void , finding that it had been issued in breach of law .

On DATE the applicants lodged a request to have their property returned under LAW .

On DATE the GPE Deputy Mayor transferred the applicants’ request to the ORG Mayor .

NORP In letters dated DATE and DATE , PERSON requested the speedy examination of her application .

On DATE PERSON ( the niece of PERSON and mother of PERSON ) , one of the legal heirs to the property , complained to the GPE Deputy Mayor about the lack of response on the part of the PERSON - Wola Mayor .

On DATE the GPE Deputy PERSON requested the PERSON - Wola Mayor to deal with the ORG request by DATE .

Apparently , on DATE , the applicants were requested to submit relevant documents confirming their rights to the property .

On DATE and on DATE , in letters to the GPE municipality , ORG demanded that the applicants’ request for the return of the property or for compensation be examined .

On DATE she was informed that , due to the need to confirm the inheritance rights of the alleged heirs to the property and due to PERSON death in DATE and the resulting need to establish the identity of her heirs , the examination of their application could not be undertaken before DATE the date on which ORG had submitted all required documents .

On DATE , ORG complained to ORG against ORG about the inactivity of the body and lack of any decision concerning the title to the property .

On DATE , the municipal council informed PERSON that her complaint had been transferred to ORG and that , due to the complex nature of her case , it would not be possible to examine her complaint within DATE .

On DATE PERSON , on behalf of ORG , lodged a complaint with the Minister of ORG against FAC and ORG .

On DATE the Minister transferred the complaint to ORG ( PERSON ) .

On DATE ORG , finding that it had lacked competence to deal with the complaint , transferred it to the ORG .

On DATE PERSON and PERSON complained to ORG about the inactivity of the administrative authorities and their failure to issue an administrative decision .

On DATE ORG ordered the Mayor of GPE to issue a decision concerning the grant of the right of perpetual use of the property within a period of DATE .

On DATE PERSON and PERSON lodged a complaint with ORG against the Mayor of GPE for failure to issue an administrative decision .

On DATE ORG informed PERSON that the court could not rule on the complaint of DATE because the administrative authority in question had not yet submitted their observations on the ORG complaint .

On DATE ORG fined the Mayor of GPE PLN CARDINAL .

On DATE ORG ordered the Mayor of GPE to issue within DATE a decision concerning the perpetual use of the property .

On DATE the Mayor of GPE stayed the proceedings concerning the right of perpetual use pending the outcome of civil proceedings before ORG for acquisition by prescription , instituted by a “ GPE ” co - operative .

On DATE the applicants appealed against the decision of DATE to ORG .

On DATE ORG of Appeal quashed the decision of DATE finding that there had been no reason to stay the proceedings and to delay the delivery of the decision on the merits . ORG noted that the co - operative ’s request to re - open the proceedings terminated by the decision of DATE of the Minister of Planning and Construction had been refused on DATE .

On DATE PERSON and PERSON instituted enforcement proceedings against the Mayor of GPE .

On DATE the Mayor of GPE issued a decision granting the perpetual use of the property to the applicants for DATE , with the exception of a part of the property which had been intended for the building of a road .

The “ GPE ” co - operative appealed to ORG . On DATE ORG discontinued the appeal proceedings due to lack of legal standing on the part of the “ GPE ” co - operative . The decision of DATE issued by the Mayor of GPE became final .

On DATE , PERSON and the other heirs lodged with ORG ( PERSON i PERSON ) an action for damages resulting from the administrative decision of DATE . At the same time , they demanded from the GPE municipality compensation for unlawful use of their property .

On DATE ORG complained to the ORG about their failure to examine her claim of DATE . On DATE ORG rejected the claim .

On DATE PERSON and the other applicants ( “ the plaintiffs ” ) lodged with ORG a claim against ORG for compensation under LAW . The amount of compensation claimed ( ORG ) was later modified .

The first hearing in the case was scheduled for DATE . CARDINAL hearings were held up until DATE .

On DATE the proceedings were stayed upon the plaintiffs’ request and resumed on DATE .

On DATE the court delivered a judgment and awarded compensation to the plaintiffs .

On DATE the Mazowiecki Governor appealed . The appeal hearing was scheduled for DATE . On DATE the proceedings were stayed due to the death of CARDINAL of the plaintiffs – PERSON .

ORG rejected the appeal on DATE .

On DATE the applicants lodged with ORG requested the court to order the GPE municipality to issue a statement confirming the applicants’ right of perpetual use of the property at FAC , and to pay compensation for lost profits ( lucrum cessans ) .

Certain delays in the preliminary phase of the proceedings were due to the fact that one of the plaintiffs , PERSON , who lived in the GPE , had not signed the claim properly and had not established an address for correspondence in GPE ; the court had to obtain assistance of NORP Consul in the GPE to contact the plaintiff and to remedy the shortcomings of the pleadings .

The first hearing in the case was held on DATE .

On DATE the proceedings were stayed upon request of PERSON ( in relation to her mother ’s death ) . The proceedings were resumed on DATE .

On DATE ORG rejected the GPE claim in part and stayed the proceedings concerning the remainder of the claim pending the outcome of the administrative proceedings . The plaintiffs appealed .

On DATE ORG quashed the decision of ORG .

On DATE ORG dismissed the claims . The plaintiffs appealed .

On DATE ORG quashed the judgment of ORG and remitted the case for re - examination .

The case is pending .

On DATE PERSON , PERSON , GPE and PERSON lodged with ORG a complaint under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . They complained about the excessive length of the first and second sets of civil proceedings .

On DATE ORG issued CARDINAL decisions .

In a decision concerning the first set of proceedings the court acknowledged that the impugned proceedings had been excessively lengthy . The court observed that the applicants’ right to a trial within a reasonable time had been breached . However , in the court ’s view , the plaintiffs had partly contributed to the length of the proceedings and their overall length resulted from objective circumstances which could not be attributable to ORG . The court ordered ORG to accelerate the proceedings and awarded each applicant ORG CARDINAL,CARDINAL as just satisfaction .

In a decision concerning the second set of proceedings the court acknowledged that the impugned proceedings had been excessively lengthy . In particular , the applicants’ appeal against the decision of DATE had not yet been transferred to ORG . However , ORG took into account the complexity of the case resulting from the large number of plaintiffs . The court ordered ORG to accelerate the proceedings and awarded each applicant ORG CARDINAL,CARDINAL as just satisfaction .

For a presentation of the domestic law concerning inactivity of administrative authorities , see : PERSON v. GPE , no . CARDINAL , DATE , and PERSON v. GPE , no . CARDINAL , DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.

The relevant domestic law and practice relating to administrative proceedings concerning the grant of the right of perpetual use of land can be found in the ORG ’s decisions in the cases PERSON and PERSON v. GPE DATE . ) , no . CARDINAL , DATE and PERSON v. GPE DATE . ) , no . CARDINAL , DATE and the judgment in the case PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE .