CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM

Mr GPE , Mr NORP and PERSON , all NORP citizens , were born in DATE and DATE respectively . Mr ORG died on DATE .

ORG In DATE , in the course of routine investigations into other matters , the police came into possession of a number of video films which were made during sado - masochistic encounters involving the applicants and CARDINAL other homosexual men . As a result the applicants , with several other men , were charged with a series of offences , including assault and wounding , relating to sado - masochistic activities that had taken place over a DATE period . CARDINAL of the charges involved a defendant who was not yet DATE - the age of consent to male homosexual practices at the time . Although the instances of assault were very numerous , the prosecution limited the counts to a small number of exemplary charges .

The acts consisted in the main of maltreatment of the genitalia ( with , for example , hot wax , sandpaper , fish hooks and needles ) and ritualistic beatings either with the assailant ’s bare hands or a variety of implements , including stinging nettles , spiked belts and a cat - o’-nine tails . There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring .

These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification . The infliction of pain was subject to certain rules including the provision of a code word to be used by any " victim " to stop an " assault " , and did not lead to any instances of infection , permanent injury or the need for medical attention .

ORG The activities took place at a number of locations , including rooms equipped as torture chambers . Video cameras were used to record events and the tapes copied and distributed amongst members of the group . The prosecution was largely based on the contents of those videotapes . There was no suggestion that the tapes had been sold or used other than by members of the group .

ORG The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the " victims " as an answer to the prosecution case .

ORG On DATE , the defendants were convicted and sentenced to terms of imprisonment . On passing sentence , the trial judge commented : " ... the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them . The homosexuality of the defendants is only the background against which the case must be viewed . "

Mr ORG was sentenced to imprisonment for DATE and DATE . This included a sentence of CARDINAL years’ imprisonment for aiding and abetting keeping a disorderly house ( see paragraph CARDINAL below ) and a consecutive term of CARDINAL months’ imprisonment for possession of an indecent photograph of a child . Under section CARDINAL of the ORG against LAW ( " LAW " - see paragraph CARDINAL below ) , Mr ORG also received concurrent sentences of CARDINAL months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm .

Mr NORP was sentenced to imprisonment for DATE . He received CARDINAL years’ imprisonment for aiding and abetting unlawful wounding - contrary to section CARDINAL of LAW ( see paragraph CARDINAL below ) - , and a further CARDINAL months’ imprisonment for assault occasioning actual bodily harm , aiding and abetting the same offence , and unlawful wounding .

Mr PERSON was sentenced to imprisonment for DATE and DATE . He received CARDINAL months’ imprisonment for aiding and abetting assault occasioning actual bodily harm , a further CARDINAL months’ imprisonment for assault occasioning actual bodily harm , and a further CARDINAL months’ imprisonment for further assaults occasioning actual bodily harm .

ORG The applicants appealed against conviction and sentence .

ORG On DATE , ORG , dismissed the appeals against conviction . Since , however , the court found that the applicants did not appreciate that their actions in inflicting injuries were criminal , reduced sentences were imposed .

ORG Mr ORG ’s sentence was thus reduced to CARDINAL months’ imprisonment as regards the charge of aiding and abetting keeping a disorderly house . This sentence was to run concurrently with another CARDINAL months’ sentence in respect of the various counts of assault and consecutively with CARDINAL months’ imprisonment for the possession of an indecent photograph of a child , totalling CARDINAL years’ imprisonment .

ORG Mr NORP ’s and PERSON sentences were reduced to CARDINAL months’ and CARDINAL months’ imprisonment respectively .

ORG The applicants appealed to ORG on the following certified point of law of public importance :

" Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado - masochistic encounter , does the prosecution have to prove lack of consent on the part of B before they can establish A ’s guilt under LAW or section CARDINAL of LAW ? "

ORG On DATE , the appeal , known as the case of NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , was dismissed by a majority of ORG , CARDINAL of the CARDINAL law lords dissenting .

Lord Templeman , in the majority , held after reviewing the case - law that :

" ... the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under LAW . They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities . The question is whether the defence should be extended to the infliction of bodily harm in the course of sado - masochistic encounters ...

Counsel for the appellants argued that consent should provide a defence ... because it was said every person has a right to deal with his own body as he chooses . I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken . It is an offence for a person to abuse his own body and mind by taking drugs . Although the law is often broken , the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally . In any event the appellants in this case did not mutilate their own bodies . They inflicted harm on willing victims ...

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty . The violence of sado - masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims . Such violence is injurious to the participants and unpredictably dangerous . I am not prepared to invent a defence of consent for sado - masochistic encounters which breed and glorify cruelty ...

Society is entitled and bound to protect itself against a cult of violence . Pleasure derived from the infliction of pain is an evil thing . Cruelty is uncivilised . "

Lord GPE of GPE found that :

" In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by LAW , with the result that consent of the victim is no answer to anyone charged with the latter offence ... unless the circumstances fall within CARDINAL of the well known exceptions such as organised sporting contests or games , parental chastisement or reasonable surgery ... the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer .

... Notwithstanding the views which I have come to , I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest .

Considerable emphasis was placed by the appellants on the well - ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention . There was , it was said , no question of proselytising by the appellants . This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice :

‘ They [ ORG and PERSON ] recruited new participants ; they jointly organised proceedings at the house where much of this activity took place ; where much of the pain inflicting equipment was stored .

PERSON was a voyeur rather than a sado - masochist , but both he and ORG through their operations at the PERSON premises were responsible in part for the corruption of a youth " K " who is now it seems settled into a normal heterosexual relationship.’

Be that as it may , in considering the public interest it would be wrong to look only at the activities of the appellants alone , there being no suggestion that they and their associates are the only practitioners of homosexual sado - masochism in GPE and GPE . This ORG must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claiming to be . Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring . Wounds can easily become septic if not properly treated , the free flow of blood from a person who is HIV - positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented . Your Lordships have no information as to whether such situations have occurred in relation to other sadomasochistic practitioners . It was no doubt these dangers which caused PERSON to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity . In my view such a restriction is quite unjustified . When considering the public interest potential for harm is just as relevant as actual harm . As PERSON said in Coney CARDINAL Queen ’s Bench CARDINAL , CARDINAL :

‘ There is however abundant authority for saying that no consent can render that innocent which is in fact dangerous.’

Furthermore , the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships . "

Lord PERSON and Lord PERSON of GPE dissented . The first considered that the case should not be treated as falling within the criminal law of violence but rather within the criminal law of private sexual relations . He gave weight to the arguments of the appellants concerning LAW ( article CARDINAL) , finding that the decisions of the NORP authorities clearly favoured the right of the appellants to conduct their private life undisturbed by the criminal law . He considered after an examination of the relevant case - law that it was appropriate for ORG to tackle afresh the question whether public interest required penalising the infliction of this degree of harm in private on a consenting recipient , where the purpose was not profit but gratification of sexual desire . He found no convincing argument on grounds of health ( alleged risk of infections or spread of AIDS ) , the alleged risk of the activities getting out of hand or any possible risk of corruption of youth which might require the offences under LAW to be interpreted as applying to this conduct .

Lord PERSON of GPE found that as the law stood adults were able to consent to acts done in private which did not result in serious bodily harm . He agreed that it was in the end a matter of policy in an area where social and moral factors were extremely important and where attitudes could change . It was however for the legislature to decide whether such conduct should be brought within the criminal law and not for the courts in the interests of " paternalism " to introduce into existing statutory crimes relating to offences against the person concepts which did not properly fit there .

ORG The proceedings were given widespread press coverage . All the applicants lost their jobs and Mr NORP required extensive psychiatric treatment .

Section CARDINAL of the Offences against LAW ( " LAW " ) provides :

" Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person , either with or without any weapon or instrument , ... shall be liable ... to [ imprisonment ] ... for not DATE . "

ORG According to the case - law , to constitute a wound for the purposes of the section , the whole skin must be broken , not merely the outer layer or epidermis .

ORG By section CARDINAL of LAW :

" Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for not DATE . "

Actual bodily harm is defined as " any hurt or injury calculated to interfere with health or comfort " ( PERSON , in NORP v. PERSON [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL , at CARDINAL ) .

ORG In the case of NORP v. PERSON ( [ DATE ] CARDINAL ORG Bench Reports , at CARDINAL ) , the accused had beaten with a cane a girl for the purposes of sexual gratification , with her consent . PERSON held :

" It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence , and when such an act is proved , consent is immaterial . "

ORG In Attorney - General ’s Reference ( No . CARDINAL of DATE ) ( [ DATE ] ORG Bench Reports , at CARDINAL ) where CARDINAL men quarrelled and decided to fight each other , Lord PERSON in ORG had held :

" It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason . Minor struggles are another matter . So , in our judgment , it is immaterial whether the act occurs in private or in public ; it is an assault if actual bodily harm is intended and/or caused . This means that most fights will be unlawful regardless of consent . Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports , lawful chastisement or correction , reasonable surgical interference , dangerous exhibitions , etc . These apparent exceptions can be justified as involving the exercise of a legal right , in the case of chastisement or correction , or as needed in the public interest , in the other cases . "

ORG In PERSON ( [ DATE ] CARDINAL Weekly Law Reports , at CARDINAL ) , where a man had been convicted of assault occasioning actual bodily harm for having branded his initials with a hot knife on his wife ’s buttocks with her consent , ORG , allowed the appeal . In the course of the court ’s judgment , Lord Justice PERSON stated :

" ... there is no factual comparison to be made between the instant case and the facts of either PERSON or PERSON : PERSON not only consented to that which the appellant did , she instigated it . There was no aggressive intent on the part of the appellant ...

We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing ...

Consensual activity between husband and wife , in the privacy of the matrimonial home , is not , in our judgment , a proper matter for criminal investigation , let alone criminal prosecution . "

ORG Keeping a " disorderly house " is a common law offence . A disorderly house is defined as

" one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order . There must be an element of ‘ open house’ , but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house , it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort ( a ) amounts to an outrage of public decency , or ( b ) tends to corrupt or deprave , or ( c ) is otherwise calculated to injure the public interest so as to call for condemnation and punishment " ( [ DATE ] ORG ’s Criminal Pleading , Evidence and Practice CARDINAL , at CARDINAL ) .


No violation of Art. 8;No violation of P7-5

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

On DATE the applicant 's wife gave birth to a daughter A.

NORP In DATE the applicant moved from GPE to ORG in GPE to live with his parents .

In DATE the applicant 's wife , still residing in GPE , began living together with another man , GPE , and in DATE brought divorce proceedings against the applicant .

On DATE the competent court dissolved the marriage and awarded custody of their daughter to the mother .

On DATE the applicant 's former wife married S.A. On DATE they had a child together .

At DATE or in DATE S.A. instituted proceedings before ORG of GPE ( ORG районный суд г. ORG ) seeking adoption of NORP The court invited the applicant to join the proceedings as a third party and to submit his views on the matter .

In his reply to the adoption request , filed on DATE , the applicant stated that he was strongly opposed to the adoption . The child already had a father whom she knew . On CARDINAL occasions he had sent money to support her and telegrams for holidays . Due to the distance of GPE from GPE , as well as financial problems , he could not travel often to GPE to visit his daughter . After he had left PERSON , he had seen her in DATE . Furthermore , his former wife and mother - in - law had expressed their displeasure at his contacts with his daughter .

By a judgment of CARDINAL DATE ORG allowed ORG application . The court observed :

“ [ ORG ] has lodged with the court an adoption request . In the reasons for his request , he stated that the underage child [ A. ] , born on DATE , is living in GPE ... [ GPE ] has been married to the child 's mother , [ O.A. ] since DATE . They have CARDINAL child from that marriage – a daughter ... who was born on DATE .

The child 's father , [ the applicant ] , has not lived with the child since DATE . He lives in PERSON , in the FAC region . Since that time he has not participated in the child 's upbringing or provided financial support . Since DATE the child 's upbringing and financial support have been provided by [ GPE ] . The child considers him her father , and is not aware of any other father .

[ ORG ] requested authorisation to adopt the girl , who was to be assigned the first name [ A. ] and the patronymic [ S. ] , and to be registered as her father .

He is aware of the consequences of adoption and the requirements made of an adoptive father .

At the court hearing , [ S.A ] spoke in support of his requests . He asked for authorisation to adopt [ the child ] without her father 's consent , inasmuch as , without good reason , the latter was not providing for her upbringing or financial support . Throughout the entire period in issue , her father had sent a few telegrams with greetings , and in DATE he had sent MONEY , which he borrowed from his wife while travelling to ORG . [ S.A. ] considers that adoption would be in the child 's interests .

[ O.A. ] supported the adoption request . She explained that [ the applicant ] has not brought up the child since DATE , and had left for his parents ' home when the child was not yet DATE . He had left her with the child in PERSON . He had not , and did not , provide financial support . He had sent MONEY , which he had borrowed when visiting GPE in DATE . She had not prevented [ the applicant ] from meeting the child or being involved in her upbringing . The child knew the applicant as her real father , and a father - child relationship had developed between them .

She considers that adoption would be in the child 's interest .

A third party , the ORG , also supported the [ adoption ] request . It considers that adoption would be in the child 's interest . ”

The court held :

“ Having heard the parties and witness statements , examined the written evidence in the case and heard the opinion of the prosecutor , who proposed that the application be granted , the court finds the application to be lawful and deserving of being granted .

Under LAW , adoption is allowed in respect of minors and only if it is in their best interest , taking account of the possibilities for securing their full physical , mental , spiritual and moral development .

Under LAW , parental consent for adoption is not required where , for reasons deemed inadequate by the court , the parents have not been living together with the child for DATE and have failed to take care of and support him or her .

In the course of the judicial investigation , it was established that [ A. ] was born to [ O.A. ] and [ the applicant ] on DATE . At that time the parents were married to each other . In DATE [ the applicant ] decided to move his permanent residence to his parents ' home in GPE , GPE region . He did not take his wife and child with him . [ O.A. ] remained alone with the child in GPE .

In DATE she applied to the court for a divorce . On DATE the marriage was dissolved .

The mother did not apply for maintenance payments for the child .

From DATE [ ORG GPE ] lived together as though married . Since that time , [ ORG ] has in effect been responsible for the child 's upbringing and has also supported her financially .

The child calls him father , and considers him to be her father ; she does not know her real father .

On DATE [ O.A. and S.A. ] married . [ They ] subsequently changed the child 's surname to [ A. ] so that the entire family would have the same surname .

DATE : [ the applicant ] did not agree to changing the child 's surname ; a statement from him to this effect is held in her personal file at ORG .

[ ORG GPE ] have a child from their marriage - a daughter ... , who was born on DATE .

The report on the child 's living conditions states that the ... family lives in a comfortable CARDINAL - roomed flat , and that all conditions have been met for the child 's upbringing . She has a separate bedroom . She calls [ S.A. ] father . [ S.A. ] is described positively , and is healthy and responsible ; he has not been deprived of his parental rights . The description of [ ORG ] ascribes him positive personal qualities .

There are no contra - indications to adoption of the child on the basis of his health .

He has not previously been deprived of his parental rights . He is aware of the child 's state of health .

The salary report makes it clear that the applicant earns MONEY per month . From the statements of [ ORG S.A. ] it is clear that the family is financially provided for .

The court has not established circumstances that would prevent the child 's adoption by [ ORG ] under ORG CARDINAL and CARDINAL of LAW .

In DATE ORG sent [ the applicant ] a letter , informing him that the question of his child 's adoption was being decided .

[ The applicant ] did not submit a reply to that letter .

[ The applicant ] was invited by the court to join the case as a third party . He was ordered to submit an opinion on the [ adoption ] request . [ The applicant ] expressed his disagreement with the child 's adoption , on the ground that she had a father . He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals . He had seen the child in DATE . He could not see her more frequently since he lived in PERSON .

In the course of the judicial investigation , witnesses who were acquainted with the ORG family were questioned . Witnesses [ L. ] and [ PERSON ] explained that in DATE [ the applicant ] suddenly moved to his parents ' home in PERSON . He did not take his wife and child with him . He left her with the child . She was obliged to work in order to support herself and the child . He did not provide financial assistance . Since DATE [ ORG ] in effect supported the child and brought her up . [ The applicant ] had not been in GPE since DATE . The child called [ GPE ] father . She and [ ORG ] had developed a father - daughter relationship .

[ The applicant ] submitted receipts for money payments : DATE - MONEY ; DATE - MONEY ; CARDINAL DATE , unknown year - MONEY . [ O.A. ] denies that MONEY were received .

Receipts for the sending of holiday and festive telegrams were also submitted .

In addition , in DATE , [ the applicant ] , having come to GPE on business , met the child ; [ O.A. ] does not dispute this .

[ The applicant ] did not participate in any other way in the child 's life .

[ The applicant ] was not prevented from communicating with his child . [ The applicant 's ] arguments to the effect that [ O.A. ] and her mother had prevented him communicating with the child have not been confirmed . [ O.A. 's ] mother lives outside the GPE region .

Having analysed the evidence set out above , the court concludes that [ the applicant ] failed to participate in his daughter 's upbringing for DATE and without good reason . In the court 's opinion , MONEY as maintenance payments for a period of DATE was insufficient for the child 's upkeep . Equally , financial assistance for the child was not in itself enough . It was essential that the child 's father communicated with the girl , brought her up , taught her something and took responsibility for her physical , spiritual and moral development . This was the main purpose of the parent 's role . [ The applicant ] has not fulfilled his responsibilities with regard to the child 's upbringing . [ The applicant 's ] responsibilities have been assumed by [ ORG ] .

At present the child does not know her biological father . She considers [ S.A. ] to be her father .

In the court 's opinion , even although he lived outside the [ LOC ] region , [ the applicant ] had an opportunity to contribute to the child 's upbringing in some way : he could have taken the child for DATE , or simply to stay with her for a while , or he could have sent various presents , etc . If the child 's mother had prevented him communicating with the child , he would have been entitled to protect his parental rights . However , [ the applicant ] did not attempt to take part in the child 's upbringing .

In such circumstances , the court is obliged to conclude that [ the applicant ] , without good reason , failed to participate in the child 's upbringing for DATE , and that therefore the adoption may be authorised without his agreement .

With regard to the [ adoption ] request , it is appropriate to grant it , in that adoption of the child would be in her best interest , bearing in mind that [ ORG ] is able and willing to secure the girl 's upbringing and development in full . ”

In the operative part of the judgment the court ordered :

“ - to agree to the adoption by [ S.A. ] of the underage child [ A. ] , with conferment of the patronymic [ S. ] and to register the adopter as the father of the adopted child ;

- to leave the child 's surname , first name and date and place of birth without change ;

- to maintain the mother 's judicial relationship with the child .

The applicant appealed against ORG judgment . ORG ( Мурманский областной суд ) dismissed the appeal and upheld the lower court 's judgment on DATE . ORG held :

“ [ The applicant ] appealed against the [ district court 's ] judgment , requesting that it be set aside and that the matter be sent for a fresh examination . He referred to the court 's violation of the standards of substantive law , and alleged that the court had not believed his arguments and had not taken them into consideration .

Having listened to [ S.A. ] , who asked that the [ district ] court 's judgment be left unchanged , the prosecutor 's conclusions , proposing that the appeal be dismissed , and having re - examined the evidence in the case and weighed up the appeal arguments , the bench finds the [ district ] court 's judgment to be lawful and well - founded .

The [ district ] court correctly identified the circumstances having legal significance and , on the basis of the established facts , reached the correct conclusion about the parties ' mutual relations .

In authorising the requests ... , the court correctly applied LAW ( “ children whose adoption is authorised ” ) and acted in the underage child 's best interests .

Convincing reasons are cited in the judgment in confirmation of the conclusions that [ S.A. ] is able to guarantee the child the conditions necessary for her full physical , psychological and spiritual development .

The bench considers legally unfounded the appellant 's arguments regarding the application to his daughter of the adoption procedure set out in LAW , which concerns children who have been left without parental care , as [ A. ] did not fall into that category of children .

The appellant 's arguments are based on an incorrect interpretation of the law .

In accordance with LAW , the [ district ] court also examined the reasons why the appellant “ does not live jointly with the child and has neglected her upbringing and maintenance for DATE ” , and found them to be inadequate .

The reasons for the [ district ] court 's conclusions are provided and confirmed by the evidence . The court evaluated the latter in accordance with the requirements of LAW of the Code of Civil Procedure .

[ The applicant ] did not submit persuasive evidence to the first - instance court in support of his objections to the request . In addition , the statements made to the appeal court by [ ORG ] and [ the applicant ] do not meet the requirements laid down for evidence in civil proceedings .

Having failed to find grounds in the appeal arguments that would enable it to set aside the [ district ] court 's judgment , and pursuant to LAW , the bench decides :

to leave unchanged the judgment of the Leninsky ORG , GPE , dated DATE , and to dismiss the appeal submitted by [ the applicant ] . ”

On DATE a judge of ORG rejected the applicant 's request for leave to file an extraordinary appeal .

According to LAW , adoption is allowed in respect of minors and only if it is in the best interest of the child , taking account of the possibilities to secure the child 's full physical , mental , spiritual and moral development .

Article CARDINAL of LAW provides that parental consent for adoption is not necessary if , for reasons deemed inadequate by the court , the parents have not been living together with the child for DATE and have failed to take care of and support him or her .


Preliminary objection rejected;No violation of Art. 6-1;No violation of Art. 6-2

In the course of a judicial investigation into a charge brought against Mr PERSON on a number of counts of armed robbery , an investigating judge at PERSON ordered CARDINAL expert opinions on him : a psychiatric report from a Dr PERSON and a medical and psychological report from LOC .

On DATE Dr PERSON submitted his report , in which he concluded :

“ As the subject does not accept that he is either ill or guilty , he can not be regarded as curable . From what illness should he be cured ?

His social and affective environment will play a far greater role in his rehabilitation than any medical or psychiatric treatment , which he refuses .

All things considered , his chances of rehabilitation appear to be considerably compromised by both his criminal record and his personality . ”

NORP The applicant requested a second opinion , which the investigating judge commissioned on DATE from LOC .

On DATE PERSON filed his report , which contained the following passage :

“ Mr PERSON is a gangster ( from the LANGUAGE word ‘ PERSON , which denotes the members of a criminal conspiracy ) . The conduct of the operation shows ( see the case file )

( a ) that it was very well planned :

- customers unaware that staff were being threatened ( raiders not masked ) , - ‘ remarkable calm’ of the raiders , who wore gloves and were armed , - booby - trapped bundles not stolen , - cash dispenser loaded for DATE , - raiders checked that security camera was a dummy .

( b ) that it was the work of an experienced team :

- numerous bank robberies committed according to the same pattern by the same men , - Mr PERSON is practically a weapons expert and has the advantage of the commando training he received when he did his national service in the marines .

All Mr PERSON ’s major offences ( both past and present ) fall into the category of organised crime , sharing the following features :

- formation of a criminal organisation , - aggravated robberies committed by armed criminals , - targets chosen to bring immediate , large gains .

Mr PERSON is not a casual offender , but a real professional . In addition to hold - ups , it seems that his criminal activities have spread into new fields ( see the other charges ) . The back - up provided by his accomplices ( the gang ) is essential , as they provide both material support , in the form of vehicles , safe houses , alibis etc . , and moral support , since the recklessness of each member makes the group bolder and incites the others to repeat their crimes while controlling the risks better .

Mr PERSON ’s responsibility is aggravated by many factors , for example :

- he is a habitual reoffender , - he employs violence , threatening people with weapons , - he acts in association with accomplices …

At no time did LAW apply to him .

Mr PERSON is always highly dangerous because of his sang - froid and his criminal determination . He showed his astuteness throughout the investigation – as he did when committing the offences DATE and during our interview , constantly denying that he took part in them . He can not be intimidated by the judiciary . His dangerousness even seems to be directed towards the judges investigating his cases . He claims that Mr PERSON and Miss PERSON were appointed to persecute him and makes alarmingly virulent verbal attacks on them . This dangerousness is intensified by his habitual use of firearms .

Mr PERSON ’s extreme dangerousness makes the following special measures essential :

- he must be permanently banned from carrying weapons of any kind , including those whose sale is not controlled , - he must be placed on permanent probation after his release from prison , - imprisonment in an open prison is unthinkable , - inside prison he must be kept under special surveillance , in view of the likelihood that he will attempt to escape ( high - security wing or similar ) .

Mr PERSON is liable to a criminal penalty , which must be directly proportionate to his extreme dangerousness .

Mr PERSON is not curable by criminal treatment ( he is not in any case a suitable case for medical treatment ) . A number of sentences have not been sufficient to attenuate his delinquent behaviour . On the contrary , he adopts an omnipotent and defiant attitude which is reinforced still further by his imprisonment . His sthenia ( aggressive attitude ) is unbounded . He feels invincible .

Treatment by means of a criminal penalty is only a social - protection measure aimed at preventing the certain repetition of serious offences .

Mr PERSON can never be rehabilitated . His allegiance to the world of organised crime seems irreversible . No sentence can be heavy enough to break his spirit ; he will always try to escape from prison or strengthen his links with other criminals there . He is certain to reoffend , as is proved by his criminal record . ”

This report was served on the applicant on DATE . He requested a third opinion , but on DATE the investigating judge refused this request .

In the course of a separate investigation concerning an attempted escape the same judge ordered a psychiatric report and once again appointed PERSON .

After this report had been filed Mr PERSON requested a second opinion , but this request was refused by the investigating judge on DATE . The applicant appealed on DATE but , in an order of CARDINAL October CARDINAL , the President of ORG refused him leave to appeal to that ORG .

The applicant was committed for trial before ORG in a judgment delivered by ORG on DATE . ORG observed that PERSON PERSON had initially admitted his involvement in an armed robbery in which MONEY ( ORG ) had been stolen on DATE from a branch of ORG in Nevers . It further noted that the applicant had been picked out by witnesses from a CARDINAL - man identity parade as the person who had stood guard at the door during the robbery . ORG also found that the investigation had yielded sufficient evidence tending to establish that the applicant had robbed a branch of ORG in FAC of FRF CARDINAL on DATE , with the aggravating circumstance that the offence had been committed with the assistance or threatened use of a weapon .

At the trial on DATE , after the experts had given evidence , PERSON PERSON ’s lawyer requested in his submissions that a formal note be entered in the record to the effect that the experts had stated an opinion on the question of the applicant ’s guilt .

In an interlocutory decision of CARDINAL DATE ORG dismissed the applicant ’s lawyer ’s request for the evidence of CARDINAL experts examined during the trial to be ruled inadmissible , on the following grounds :

“ Whereas CARDINAL of the lawyers of the defendant PERSON requested in his submissions that a formal note be entered in the record to the effect that the expert PERSON had stated : ‘ The facts themselves prove that he is dangerous’ and that the the expert PERSON had stated : ‘ As he does not accept that he is either ill or guilty , he can not be regarded as curable’

and that those experts had therefore stated an opinion at the trial on the question of PERSON guilt ;

And whereas it was submitted that the evidence given by those experts should be ruled inadmissible ;

Whereas , while the experts were giving evidence , PERSON lawyer noted down certain statements or isolated phrases which they are alleged to have made and which , it is submitted , prove that they stated an opinion on the question of PERSON guilt ;

But whereas these statements or isolated phrases , even if they were spoken , have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant ’s guilt , especially as , while giving their evidence , they were always careful to specify that they were stating their conclusions concerning offences which PERSON denied committing ;

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for armed robbery .

Mr PERSON appealed on points of law . He submitted in his appeal , among other arguments , that the experts’ comments had infringed the principle of the presumption of innocence , according to which they were under a duty not to express their opinion as to a defendant ’s guilt .

On DATE ORG dismissed the appeal , holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience , as provided for in LAW of LAW .

NORP The appointment of experts is governed by the following provisions of LAW :

“ Where a technical question arises , any investigating judicial authority or court of trial may , at the request of the prosecuting authorities , or of its own motion , or at the request of any party , order an expert report .

Where an investigating judge decides not to grant a request for an expert report , he shall make an order stating his reasons .

Experts shall undertake their assignment under the supervision of the investigating judge or other judge duly appointed by the court ordering the expert report . ”

“ Experts shall be chosen from the natural or legal persons appearing either in a national list drawn up by ORG or in one of the lists drawn up by ORG , with the advice of the principal state prosecutor . The terms and conditions of inclusion in and removal from these lists shall be determined by a regulation of the Prime Minister . In exceptional circumstances the courts may , by means of a decision stating reasons , choose an expert who does not appear in any of these lists . ”

“ Upon their inclusion in CARDINAL of the lists referred to in DATE , experts shall take an oath , before ORG for the district in which they reside or have their registered office , to assist the courts on their honour and according to their conscience . They are not required to renew that oath before each assignment . ”

“ Experts shall , if necessary , give evidence in court on the results of their technical investigations , after swearing to assist the court on their honour and according to their conscience ... ”

The preparation of expert reports is governed by the following provisions of the same code :

“ The terms of an expert ’s assignment , which is confined to examining technical matters , shall be specified in the decision ordering the expert report . ”

“ ... In carrying out their assignment , experts shall liaise with the investigating judge or other judge ; they must keep him informed of the progress of their assignment so that at any time he can take any measures that may be necessary . ”

“ During the course of the expert ’s assignment , any party may ask the court which has ordered the report to instruct the experts to make particular enquiries or to interview any named person who is likely to be able to provide them with technical information . ”

“ The investigating judge shall inform the parties and their counsel of the experts’ conclusions ... In all cases , the investigating judge shall stipulate a period within which the parties must submit any observations or requests , particularly for a supplementary report or second opinion . During that period the case file shall be made available to the parties’ counsel . Where the investigating judge refuses a request , he shall do so in a decision stating reasons which must be made within DATE of receipt of the request ... ”

“ The accused or a civil party may also appeal against the orders provided for in ... the fourth paragraph of LAW . ”

Psychiatric reports are the subject of the following provisions :

“ ... Where they [ the experts ] consider it necessary to question the accused ... the interview shall be conducted in their presence by the investigating judge or judge appointed by the court and shall in all cases comply with the formalities and conditions provided for in Articles CARDINAL and CARDINAL . ”

“ An investigating judge may prescribe a medical examination , instruct a doctor to carry out a medical and psychological examination or order any other necessary measures . If the investigating judge decides to refuse a request for such an examination by the accused or his counsel , he must do so by means of an order stating his reasons . ”


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

The applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in GPE . The second applicant is the mother of the former .

When the first applicant ( “ the applicant ” ) was DATE , on DATE at TIME he was arrested at his home by police officers from ORG attached to ORG , on suspicion of involvement in various incidents of bag snatching in ORG .

According to the report drafted by the police , the arrest took place on CARDINAL DATE at TIME on the street outside his residence . The report stated that the police had acted upon the information of a certain PERSON , a fellow detainee , who had cited the applicant 's name during his interrogation in relation to the bag snatching in GPE . The report also stated that the applicant 's mother had been informed of the arrest and detention .

On CARDINAL DATE the applicant was given a medical examination at ORG . A subsequent medical report revealed that there were some blade cuts on his left arm which were DATE but , apart from those injuries , no signs of possible ill - treatment were noted . The applicant was then taken into custody at FAC .

On DATE at CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL and TIME , the applicant and PERSON were taken to on - site inspections . A lawyer assigned by ORG was present during these inspections , when the applicant gave detailed statements as to how he and PERSON had planned and committed the offences .

Around TIME DATE , he was again given a medical examination . The medical report drafted on that occasion recorded no signs of beatings or the use of physical force on the applicant 's body . DATE , at the request of the police , the public prosecutor , without seeing the applicant , extended his custody period by DATE under Article CARDINAL § CARDINAL of the former Code of Criminal Procedure . According to the report drafted by the police at TIME on DATE , the applicant was handed over to ORG of ORG .

On DATE at TIME , the applicant was brought for a further medical examination . The medical report prepared on DATE noted CARDINAL bruises of QUANTITY on his right upper arm and a bruise of CARDINAL x QUANTITY on his left upper arm just below his shoulder , which were estimated to be DATE ; some old cutting scars on his arms and chest were also noted . The applicant was given a second medical examination at CARDINAL p.m. on DATE . The second medical report confirmed the findings of the first report . These reports both stated that the medical examinations had been performed upon the request of ORG .

On CARDINAL DATE the Juvenile Police took the applicant for a medical examination . The forensic medical report prepared on that occasion recorded the old cutting scars on the applicant 's body , but no signs of the use of recent physical force were noted .

On DATE the applicant was brought before the public prosecutor . In his statement to the public prosecutor , made in the presence of another duty lawyer , the applicant denied the charges against him . The lawyer claimed that the applicant had been ill - treated whilst in police custody and that he still bore the signs of that treatment . He requested that the applicant be referred to the forensic medicine institute for a complete medical report .

DATE , the applicant repeated his allegations of ill - treatment before the investigating judge . He alleged that , after the police officers had apprehended him , they blindfolded him ; electric shocks were administered to his body ; he was beaten with truncheons and forced to admit to the charges . He showed the marks on his body to the judge . The judge noted a bruise of QUANTITY about the thickness of a little finger on the applicant 's right upper arm , a bruise of QUANTITY the thickness of a little finger just under his left shoulder , a scab - covered lesion under his left kneecap , a swelling on his left ankle and some old blade cuts . The applicant was then remanded in custody .

On CARDINAL DATE the applicant 's lawyer filed a complaint with ORG , requesting the public prosecutor to bring criminal proceedings against the police officers who had been on duty when the applicant was in their custody . He also repeated that the applicant should be referred for a full medical examination . Subsequently , the public prosecutor launched an investigation into the applicant 's complaint of ill - treatment .

On DATE , the public prosecutor took a detailed statement from the applicant , in which he complained about the police officers and repeated almost the same submissions he had made to the investigating judge , adding that he had not been subjected to further ill - treatment after he had been handed over to ORG . He also admitted that the scars on his upper and lower arms as well as his wrist were self - inflicted with metal wire , which he had torn off the cell window , as he could not bear the pain of ill - treatment . After taking the applicant 's statement , the public prosecutor issued a letter to ORG , asking for a detailed medical report on the applicant , including an explanation as to the nature and cause of his injuries .

A report submitted by ORG on DATE made reference to the previous medical reports dated CARDINAL , DATE and CARDINAL DATE , and drew its own conclusions after the applicant had been examined . It noted that the applicant had a bruise of CARDINAL x QUANTITY of which the outer line was a green - yellow colour and the centre was purple - dark blue , on the right upper arm , estimated to be CARDINAL or DATE , and an old scar of QUANTITY on his left kneecap . The bruising was deemed to have been caused by blunt force trauma . The applicant 's injures were not regarded as life threatening but classified as sufficient to render him unfit for DATE .

On DATE the public prosecutor decided not to prosecute the police officers concerned . Referring to all the medical reports , this decision concluded briefly that the lesions had occurred prior to the applicant 's arrest and that the scars on his body and arms had been self - inflicted , as he admitted in his statement of CARDINAL DATE . The applicant challenged this decision before ORG .

On DATE ORG rejected the applicant 's objection .

Section CARDINAL ( b ) of ORG ( DATE , as amended on CARDINAL DATE ) provides :

“ Anyone who has reached DATE , but is CARDINAL , may be arrested . The parents and a lawyer shall be informed of the arrest and the minor shall be brought promptly before the public prosecutor . In these cases , the preliminary investigation shall be conducted personally by ORG or by a public prosecutor to whom the former delegates that duty ... ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

NORP In DATE plots of agricultural land owned by the applicant ’s father were expropriated by the former ORG ( okresní národní výbor ) under the Czechoslovak LAW No . TIME ( “ the DATE LAW ) . The applicant ’s father had never obtained any compensation . In DATE some of these plots were transferred to the ownership of natural persons in an assignment procedure under LAW . In DATE the applicant ’s father died and the applicant ’s rights over his estate were confirmed .

After DATE of the communist regime in GPE , the Act No . CARDINAL/CARDINAL on ORG in respect of Land and Other ORG ( “ zákon o půdě ” , the “ LAW ” ) entered into force on DATE . The Act provided that LAW was no longer applicable and that under certain conditions property confiscated pursuant to that LAW without compensation could be returned to its former owners or their heirs if it was still in the possession of the ORG or of a legal person . However , if such property had been transferred into the possession of natural persons , the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation .

On the basis of LAW , the applicant entered into restitution agreements with CARDINAL legal persons ( the ORG Králové ORG and DATE Krásná Ves Agricultural Cooperative ) on DATE and CARDINAL DATE respectively . By CARDINAL decisions of CARDINAL DATE ORG ( pozemkový úřad , “ the ORG ” ) refused to approve the restitution agreements . Referring to section PERSON ) of LAW , it found that some of the plots had been assigned to different owners pursuant to LAW , and that these owners , being natural persons , had proved their property rights by showing their deeds of assignment . ORG based its decisions on the following documents : the decision of the former ORG ( státní notářství ) of CARDINAL DATE on the applicant ’s father ’s inheritance , the decision of the former ORG June CARDINAL on the expropriation of the applicant ’s father ’s property , the record of the former ORG ( místní národní výbor ) of DATE on the proceedings on the applicant ’s father ’s appeal against the expropriation , the decision of the former ORG ( krajský národní výbor ) of CARDINAL DATE by which the decision of expropriation had been modified , and an extract ( výpis ) from the land register ( pozemková kniha ) relating to the LOC and LOC . ORG had also at its disposal copies of the deeds of assignment made out by ORG ( ORG úřad ) on DATE .

It appears from the text of the invitation issued by ORG on DATE that the latter scheduled a hearing for DATE to which the applicant and his lawyer were invited , together with the representatives of ORG , the agricultural cooperative and representatives of ORG ( Pozemkový fond ) . According to the record of the hearing , only the applicant and the representatives of ORG and of the agricultural cooperative attended the hearing . The applicant refused to make any comments on the issue of the administrative proceedings and did not sign the record . The representatives of both legal persons left the hearing before the end .

On DATE the applicant lodged appeals with ORG ( městský soud , “ the ORG ” ) against the CARDINAL administrative decisions . He claimed the restitution of the entire property , contesting that the acquisition of part thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment .

On DATE ORG joined both appeals and upheld the administrative decisions of DATE . It held that ORG had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner . This had been established on the basis of all relevant documents including the deeds of assignment , which were included in the administrative files . The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section CARDINAL ) of LAW . ORG considered that no hearing was necessary in the applicant ’s case , as the facts had been correctly established by the administrative authority and only points of law were in issue before it . In this respect , it referred to section CARDINAL(f ) of LAW .

The case was referred back to ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) which gave a new decision on DATE . In accordance with the opinion of ORG , by which it was bound by virtue of section ORG ) of the Code of Civil Procedure , ORG confirmed the applicant ’s property rights in respect of those plots which had not been transferred to natural persons under LAW . At the same time , it informed the applicant that he could seek compensation under LAW or DATE of LAW for the plots which could not be returned to him .

On DATE and DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) claiming inter alia that his property rights had been violated , that he had not been able to put forward further evidence and that ORG had not informed him about its decision to join both cases . He invoked inter alia Articles CARDINAL and CARDINAL of LAW ( Listina základních práv a svobod ) .

On DATE ORG ( PERSON ) rejected the applicant ’s appeal as manifestly ill - founded . It considered that the applicant ’s constitutional rights to a proper court procedure had not been violated by the manner in which ORG had dealt with his appeal . Having regard to the special nature of the judicial review of administrative decisions , the court ’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority . The applicant had not invoked evidence disregarded by ORG and , by merely articulating his discontent with the latter ’s decision , had not raised any valid objection to the facts as established by it . Furthermore , according to ORG , ORG had not infringed constitutional law by deciding the case without a hearing as this was lawful under section CARDINAL(f ) of LAW when the case involved only the assessment of points of law .

On DATE the applicant died . Nevertheless , his lawyer introduced before ORG a request for compensation by the assignment of other plots pursuant to section CARDINAL ) of LAW . According to the Government , this request is still pending before ORG .

On DATE the judicial proceedings regarding the applicant ’s inheritance were terminated by a finding of the GPE CARDINAL ORG that the applicant had not left any estate . Apparently , the court was not aware of ORG decision of DATE .

On DATE the applicant ’s nephew , PERSON , requested the district court to re - open the inheritance proceedings . He produced his uncle ’s last will of DATE in which he was designated as a universal heir of the applicant ’s estate , while the applicant ’s CARDINAL adult children were disinherited . The re - opening of the judicial proceedings concerning the inheritance was eventually granted on DATE . On DATE the Prague ORG approved an agreement concluded between Mr Bouček and the applicant ’s CARDINAL children concerning the division of the applicant ’s estate on an equal basis .

LAW regulates , inter alia , the restitution of certain agricultural and other properties ( defined in section CARDINAL ) , which have been ceded or transferred to the ORG or other legal persons between LAW DATE and DATE . Section CARDINAL ) lists the acts giving rise to a restitution claim including , in sub - paragraph ( b ) , confiscation without compensation pursuant to LAW .

According to section CARDINAL , those obliged to make restitution are , in principle , the ORG or any legal person possessing the real property at the date when the LAW entered into force . Natural persons can be obliged to return real property to a rightful claimant only in the circumstances set out in section CARDINAL , that is if they or their relatives acquired it from the ORG or another legal person contrary to any law in force at the relevant time or for a price inferior to that specified in any applicable price regulations or on the basis of unlawful advantage . In such cases the restitution is ordered by a judicial decision upon the application of the rightful claimant which must be filed before DATE or within DATE from the date when the decision of the land office refusing the restitution of the real property in question has become final . In any other case , a plot assigned to a natural person who has established his property rights by producing his deed of assignment is not available for restitution ( section PERSON ) , which was , however , repealed by a judgment of ORG ( No . CARDINAL ) with effect from DATE ) .

Furthermore , no restitution shall take place in the cases listed in section CARDINAL ) of the LAW which include , inter alia , cases where a right of personal use of the property has been created for a natural person except in the circumstances mentioned in section CARDINAL . In such cases , the land office shall transfer other equivalent ORG , preferably located in the same area and determined according to the principles of the agricultural land reallocation legislation , to the rightful claimant if the latter consents ( section CARDINAL(CARDINAL ) ) .

If no restitution is provided for and the person entitled to restitution can not be compensated by the assignment of other real property , he has a right to financial compensation according to specified conditions ( section CARDINAL ) .

As regards the procedure to be followed , section CARDINAL(CARDINAL ) of the LAW provides that a rightful claimant must lodge his claim with the appropriate land office and at the same time request restitution from the person or entity possessing the real property at issue . The latter is required to conclude , within DATE , an agreement on the transfer of the property with the claimant ( restituční dohoda , “ restitution agreement ” ) . According to section CARDINAL(CARDINAL ) , any restitution agreement must be confirmed by the appropriate land office . If the land office does not approve the restitution agreement , the ORG entitled person can appeal to the court . If the court , too , refuses to approve the agreement , it refers the case back to the land office for a decision on the merits of the case ( section CARDINAL(CARDINAL ) ) . This decision is again subject to judicial review ( section CARDINAL(CARDINAL ) ) .

The proceedings before land offices are governed by Act No . ORG ( Code of Administrative Procedure ) .

Sections CARDINAL and CARDINAL regulate the basic principles of the proceedings before administrative authorities . The proceedings must be conducted in accordance with the law , and parties must always be given the opportunity to defend effectively their rights and interests , to challenge the facts of the case and to make proposals as to the proceedings . Furthermore , the parties enjoy equal rights and have the same obligations . The decisions of administrative authorities must be based on facts that have been established in a reliable manner .

Pursuant to section DATE , the administrative authority shall order an oral hearing if this is required by the nature of the case , in particular where such a hearing will contribute to the clarification of the matter at issue . The parties to the proceedings must be summoned to attend the oral hearing and invited to express their comments and proposals in the course of the hearing . Oral hearings are not public unless a special legal rule provides otherwise or the administrative authority decides that the hearing shall be public .

According to section PERSON ) , the parties to the administrative proceedings and their representatives have the right to have access to documents and to make extracts therefrom , except for the records of voting .

According to section CARDINAL ) , administrative authorities are under the obligation to establish all facts accurately and comprehensively . For that purpose they have to obtain all necessary supporting documents and data .

The lawfulness of decisions of the administrative authorities can be reviewed by the courts in accordance with Part V of LAW .

At the relevant time section CARDINAL(f ) ( repealed by a judgment of ORG . CARDINAL with effect from DATE ) entitled the courts to deliver a judgment without an oral hearing in simple cases , in particular when there was no doubt as to whether the administrative authority had established the facts correctly , and only points of law were at issue .

Pursuant to section CARDINAL(i)(CARDINAL ) , the courts , when reviewing administrative authorities’ decisions , take into consideration the facts as they existed at the moment when the administrative decision was taken .

In accordance with section CARDINAL(m)(CARDINAL ) , the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed .

Pursuant to section PERSON ) , when the court reviewing an administrative authority ’s decision does not decide without an oral hearing pursuant to section CARDINAL(f ) , it may take such evidence as is necessary for reviewing the decision at issue .

Pursuant to section ORG ) , if the court quashes the decision of the administrative authority , the latter , when taking a new decision , is bound by the legal opinion expressed by the court .

In accordance with section ORG ) , a court decision reviewing an administrative decision is not subject to a remedy except in the cases listed in sub - paragraph CARDINAL ( which are not pertinent in the present case ) .

According to section CARDINAL , a judgment must be pronounced publicly . In accordance with the established practice , the public delivery of the judgment must be recorded in TIME also in those cases where the judgment was delivered without an oral hearing .

According to section DATE ) , district land offices are autonomous departments ( samostatné referáty ) of district offices .

At the relevant time , the status and competence of district offices was governed by Act No . CARDINAL/CARDINAL . This Act was repealed on DATE when a new Act on District Offices ( No . CARDINAL/CARDINAL ) entered into force .

Section CARDINAL describes district offices as administrative organs , which carry out local state administration on their respective territories . The law can empower district offices to carry out local state administration on other territories . According to section DATE , the exercise of the activities of district offices is directed and controlled by the Government .

Pursuant to section CARDINAL(CARDINAL ) , the head ( přednosta ) of a district office is appointed and dismissed by the Government on the proposal of the Minister of the Interior .

According to section CARDINAL(CARDINAL ) , the officers of district offices are subordinated to the heads of those offices .


Mr PERSON is a caretaker employed by ORG ( “ the centre ” ) in GPE , where he lives .

On DATE he instituted proceedings against the centre in the Friuli - Venezia Giulia Regional Administrative Court ( “ the RAC ” ) seeking judicial review of a disciplinary penalty imposed on him by decision of the chairman of the centre 's board of governors on CARDINAL DATE . The latter , having obtained the advice of the disciplinary board , had suspended the applicant for DATE , on the ground that he had failed in his duty of diligence and perturbed “ the continuity and regularity of the service ” by taking sick - leave which was considered to be unjustified .

The applicant forfeited all but a fraction of his salary .

In a judgment of CARDINAL DATE , the text of which was deposited with the registry on CARDINAL DATE , the ORG gave judgment in the applicant 's favour .

The centre appealed on CARDINAL DATE . In a judgment of CARDINAL DATE , the text of which was deposited with the registry on DATE , the PERSON reversed the lower court 's judgment and dismissed PERSON PERSON 's application .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicants , all of whom are NORP citizens , live in GPE . They were born in DATE , DATE and DATE respectively .

On DATE and on DATE the ORG and the ORG passed CARDINAL decisions according to which the deposits of certain categories of persons at ORG have to be index - linked . According to the decisions , ORG was supposed to allocate the necessary funds to ORG . However it failed to do so and ORG could not carry out the decisions of the ORG and of the Government .

In DATE and DATE the applicants lodged with the ORG civil actions against ORG in which they sought compensation .

By judgments of CARDINAL DATE and DATE the court awarded Ms ORG compensation of ORG CARDINAL and MDL CARDINAL respectively . No appeal was lodged and the judgments became final .

By judgment of DATE the court awarded PERSON LOC compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .

By judgment of CARDINAL DATE the court awarded PERSON PERSON GPE compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .

NORP By judgment of CARDINAL DATE the court awarded PERSON compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .

On unspecified dates the applicants lodged complaints about the non - enforcement of the judgments with ORG and ORG . In its replies , ORG and ORG informed them that the judgments could not be enforced , as no funds had been provided for the enforcement of judgments by the relevant legislation within the DATE ORG budget .

On DATE , after the cases were communicated to the Government , the judgments were executed by ORG .

The relevant provisions of LAW , in force at the material time , stated :

Article CARDINAL . The decisions of the courts and other authorities susceptible to enforcement

The following are the acts which have to be enforced in accordance with the provisions of the present Code : CARDINAL ) Civil law judgments , orders and decisions adopted by the courts ...

Article CARDINAL . The issuance of the enforcement warrant

The enforcement warrant is issued by the court to the creditor , after the judgment has become final , except for cases of immediate enforcement , when the enforcement warrant is issued immediately after the delivery of the judgment .

Article CARDINAL . The request to start the enforcement procedure

The bailiff starts the enforcement procedure at the request of the persons enumerated in LAW . In cases provided for in the second paragraph of this article , the bailiff starts the enforcement procedure following the judge ’s order .

Article CARDINAL . The supervision of enforcement of judgments

The supervision of the correct and prompt enforcement of judgments is conducted by ORG of ORG .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicants are husband and wife . They were born in DATE and live in Novokuznetsk .

In DATE both applicants subscribed to a ORG savings scheme for buying cars . The ORG failed to provide the cars , and the applicants had to sue the Government .

On DATE the Ust - Yansk District Court of ORG gave CARDINAL judgments and awarded the ﬁrst applicant MONEY ( “ RUB ” ) , and the second applicant RUB CARDINAL,CARDINAL.CARDINAL . These judgments became binding on DATE , but were not enforced immediately . On the ORG 's request , on DATE the Presidium of ORG of GPE quashed the judgments and dismissed the applicants ' claims on the ground that the district court had misinterpreted material laws .

In DATE the ﬁrst applicant again sued the Government for the undelivered car 's price .

On DATE the district court awarded the first applicant RUB ORG . This judgment became binding on DATE . On the ORG 's request , on DATE the presidium quashed the judgment and dismissed the ﬁrst applicant 's claims on the ground that the district court had misinterpreted material laws .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .

The Code of Civil Procedure of DATE defines the supervisory - review procedure as follows :

“ CARDINAL . Judicial decisions that have become legally binding , with the exception of judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”

“ CARDINAL . Having examined the case by way of supervisory review , the court may ...

( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ...

( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if the substantive law has been erroneously applied or interpreted . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in Taganrog . She was represented before the ORG by PERSON , a lawyer practising in Taganrog . ORG ( “ the Government ” ) were represented by Mr P. Laptev , ORG at ORG .

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

The applicant moved from GPE to GPE due to military hostilities in GPE . She left her flat and other property in GPE .

In DATE the PERSON administration approved payment of compensation for the lost housing . The compensation was paid to the applicant in DATE .

The applicant considered that the value of the compensation had significantly decreased because it had taken the administration DATE to pay it . She sued ORG of GPE for the damage caused by the delay in payment of the compensation .

On DATE the Justice of the Peace of the CARDINALnd Circuit of the Leninskiy District of Rostov - on - Don granted the applicant ’s action and awarded her MONEY ( RUR , CARDINAL euros ) .

That judgment was upheld on appeal by ORG of PERSON - on - PERSON on DATE and the applicant sent a writ of execution to ORG on DATE .

On DATE ORG transferred the judgment debt to the applicant ’s bank account . However , DATE , the bank returned the sum to ORG because the applicant had closed her account .

On DATE the applicant sent a registered letter to ORG informing it of her new bank account . As it follows from the acknowledgment of receipt , the applicant ’s letter reached ORG on DATE .

On DATE the judgement debt was paid to the applicant .

In DATE the applicant sued ORG for RUR CARDINAL ( approximately ORG CARDINAL ) as compensation for the damage caused by depreciation of the value of the judgment debt as a result of non - enforcement from DATE to DATE .

On DATE the Justice of the Peace of the CARDINALnd Circuit of the Leninskiy District of GPE - on - PERSON granted the applicant ’s action and awarded her ORG ( approximately EUR CARDINAL ) .

The judgment of DATE was not appealed against and became final on DATE . DATE ORG issued the applicant with a writ of execution .

On DATE the applicant submitted the writ of execution to ORG and on DATE she received the money .


Violation of P1-1;Violation of Art. 8;Restitution of the disputed property or financial award;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant bought a QUANTITY flat in GPE at CARDINAL FAC ( “ the flat ” ) and has been living there with her son born in DATE . The seller of the flat , PERSON , had bought it from PERSON . , who had acquired it under the privatisation scheme . The facts relating to the ownership of the flat prior to the applicant ’s acquisition of it and the subsequent invalidation of her title may be summarised as follows .

NORP Before its privatisation the flat was owned by GPE . On DATE the prefect of NORP circuit allocated the flat to PERSON as social housing . PERSON signed a social tenancy contract on DATE and was registered as the flat ’s principal , and only , tenant on DATE . No family members were indicated in the moving - in order .

On DATE ORG of LOC of GPE registered PERSON spouse PERSON . at his address . The registration was effected upon PERSON ’s written application , certified by public notary NORP on DATE , and accompanied by PERSON . ’s and PERSON ’s marriage certificate issued in PERSON on DATE . PERSON . ’s identity was confirmed upon presentation of her passport .

On DATE was found dead . The inquest found that he had fallen out of the window of his flat and concluded that he had committed suicide , as no evidence of any other person ’s involvement could be found . It was noted that PERSON was a former drug addict .

On DATE PERSON . issued a power of attorney to PERSON , authorising him to represent her in all transactions related to the flat and in all privatisation and registration procedures before the property and residence registration authorities . The power of attorney was certified by public notary PERSON , who had indicated in a standard clause that PERSON . had signed the authority in her presence and that her identity and legal capacity had been confirmed .

On DATE ORG of GPE ( PERSON жилищной политики и жилищного фонда г. Москвы , “ the GPE Housing Department ” ) concluded a social tenancy contract with PERSON . and on DATE signed a privatisation agreement in respect of the flat . PERSON . was represented by PERSON in these transactions .

On DATE ORG ( ORG управление ORG регистрационной службы по г. PERSON ) registered PERSON . ’s ownership of the flat in ORG ( Единый государственный реестр прав на недвижимое имущество и сделок с ним , “ the Land Register ” ) .

On DATE PERSON . sold the flat to PERSON On DATE ORG ’s ownership was registered in ORG .

On DATE ORG sold the flat to the applicant . The terms of the purchase included the applicant ’s obligation to pay the seller CARDINAL,CARDINAL.CARDINAL MONEY ( RUB ) in respect of the flat , an advance payment of MONEY ( ORG ) , plus a contribution of RUB CARDINAL to renovation costs . It also included an undertaking by the seller to buy the applicant an equivalent flat in the event that the applicant lost the title for reasons relating to any defects of the title which pre - dated the purchase of the flat by the applicant .

The transfer of title was registered at ORG for the Registration of Property .

The applicant and her son moved into the flat and have been living there since .

On DATE PERSON . died , reportedly of natural causes .

On DATE ORG of the ORG informed ORG of suspected fraud in the privatisation of the flat .

On an unidentified date in DATE ORG brought an action against the applicant and the previous owners of the flat PERSON and PERSON . They referred to a “ check ” that had revealed that no marriage had taken place between PERSON and PERSON . and that PERSON . ’s passport used for the registration and privatisation procedures had been declared lost in DATE ; they asked the court to establish that the flat had been fraudulently acquired by PERSON . and to declare the privatisation and all the ensuing transactions in respect of the flat null and void . The applicant lodged a counterclaim to have her title to the flat recognised by the court .

On DATE the Cheryomushkinskiy District Court of GPE dismissed the authorities’ claim and granted the applicant ’s counterclaim , recognising her as the legitimate owner of the flat . It noted , in particular , that the applicant had purchased the flat in good faith ( a bona fide buyer ) and paid a purchase price for it . Therefore there were no grounds to invalidate the transactions in question . No appeal was lodged within the DATE statutory limitation period , and the judgment became final and enforceable .

On DATE the applicant complained to the police that Mr A.B. , an official at ORG , was trying to extort USD MONEY from her in return for a promise that the ORG would not appeal against the judgment of DATE . On DATE the police carried out a covert operation , during which PERSON was caught receiving the aforementioned sum of money from the applicant , who had been primed by the police . On DATE A.B. was convicted of embezzlement on account of that episode , and received a custodial sentence .

In the meantime , ORG submitted a request for an extension of the time - limit for appeal against the judgment of DATE , on the grounds that the prosecution of PERSON , who had been in charge of the file , left the GPE understaffed and unable to comply with the deadlines . On DATE ORG granted the request and extended the time - limit for the appeal . The appeal hearing took place on DATE before ORG , which quashed the judgment and remitted the matter back to ORG for a fresh first - instance examination . It instructed the first - instance court to clarify whether the claims concerned the invalidation of the transactions regulated by LAW , or the reclaiming of property under LAW .

On DATE criminal proceedings against an “ unidentified perpetrator ” were instituted on suspicion of fraud in the process of privatisation of the flat . The applicant requested to be granted victim status in these proceedings , but this was refused on the grounds that the damage resulting from the fraud was caused to ORG , not to the applicant . The decision refusing the applicant victim status was taken by ORG on DATE .

On DATE ORG found that the privatisation of the flat by PERSON . had been fraudulent . It established , in particular , that the civil act registration authority had found no record of a marriage between PERSON and PERSON . and concluded that their marriage certificate had been forged . Therefore PERSON . had had no right to be registered at PERSON ’s address or to privatise his flat after his death . In respect of the applicant , it found that she was a bona fide buyer , within the meaning of LAW . However , it found that the flat , having been fraudulently privatised , had left the possession of GPE , its lawful owner , without that body having the intention to divest itself of it . Thus , by application of LAW ruling ORG of DATE , the case fell under CARDINAL of the CARDINAL exceptions to the protection of a bona fide buyer ’s title , which required that precedence be given to the previous owner . The applicant ’s title to the flat was accordingly revoked and GPE declared the flat ’s lawful owner . The court ordered the applicant ’s eviction without compensation or an offer of alternative housing . The applicant appealed .

On DATE the GPE Ombudsman wrote to the Mayor of GPE , asking him to consider offering the applicant a social tenancy of the flat . However , on DATE ORG replied in the negative , stating that this would undermine the order of priority on the waiting list .

On DATE the investigating authority decided to grant the applicant victim status in the criminal proceedings and questioned her in this capacity . On DATE , however , they overruled that decision as unfounded , following an order by the prosecutor that they should do so .

The criminal investigation of the suspected fraud was then suspended on the grounds that no culprit had been identified . The file , however , contained certain material on the basis of which the courts were able to establish that the privatisation had been carried out improperly . It included , in particular , the finding that all acts relating to PERSON . ’s registration as a resident of the flat , its privatisation and sale to ORG had been carried out using PERSON . ’s passport , which had been declared lost in DATE . It also contained a reply from the municipal authorities of PERSON that they had no record of PERSON . ’s and PERSON ’s marriage having been registered in DATE . The PERSON passport authorities had replied to the investigator that PERSON . had been previously registered as a resident of PERSON , and her registration there had not been removed until her death in DATE . There was also a reply from public notary NORP that she had had no records of PERSON ’s application in her register and she denied having certified it .

On DATE the appeal against the judgment of CARDINAL DATE was rejected in the final instance by ORG .

The applicant requested a suspension of the execution of the judgment in so far as it concerned the eviction . On DATE the court granted her request and adjourned the eviction until DATE . This term was later extended until DATE .

On DATE the Deputy Prosecutor General requested ORG to examine the applicant ’s case in supervisory review proceedings . He considered the revocation of her ownership of the flat unlawful and unjustified . First , he argued that the rule contained in Article CARDINAL § CARDINAL of the Civil Code ordering reinstatement of ownership of the property which was removed from its owner ’s possession without the owner ’s intention to divest itself of it was inapplicable in her case . He pointed out that ORG was a party to the transaction in which the flat had been privatised and could not be unaware of it ; the ORG had never claimed that the official in charge of the privatisation had gone beyond her authority or acted contrary to instructions . Hence it could not be said that the flat had been privatised without the ORG having that intention . Therefore , the applicant , as a bona fide buyer , should not have been required to return the flat to its earlier owner , GPE . Secondly , the Deputy Prosecutor General considered that the judicial decisions had not balanced the interests of the municipality against the lawful rights and interests of the applicant , whereas the protection of individual citizens should have taken priority , in accordance with LAW . As a result of a third - party fraud , a single mother and her child faced eviction without compensation and without an offer of alternative housing . He noted that she had no other housing and that all her savings had been put into the purchase of the flat and the costly litigation . Finally , he pointed out that the courts had exceeded their responsibility in applying LAW , in lieu of LAW on which the plaintiff had relied , and had thereby granted the award beyond the scope of the claim .

On DATE ORG refused the request by the Deputy Prosecutor General , declining to reconsider the case in supervisory - review proceedings . It noted that the applicant ’s status as a bona fide buyer had not been in doubt at any stage . However , the courts had correctly applied the law and granted the plaintiff ’s lawful claims . It added that the applicant remained free to sue PERSON for damages .

On DATE the ORG of GPE rejected the applicant ’s application for further suspension of the execution of the judgment of DATE , noting that there had already been CARDINAL extensions and there were no grounds for another .

On DATE the GPE City Ombudsman wrote to the Mayor of GPE , alerting him to a growing number of cases of flats being repossessed by GPE against bona fide buyers on account of irregular privatisation by the previous owners of the flats ; all of them were being denied any compensation or substitute housing . In his view , the incidents of fraudulent privatisation should not have been treated by courts as cases where property was removed from possession “ without the owner ’s intention to divest ” within the meaning of LAW . He pointed out that privatisations were transactions entered into by the ORG , represented by its public officials , whose duty was to make all the necessary checks and to ensure the procedural integrity of the transaction . The responsibility of the ORG was thus engaged wherever they failed in this task . In any event , failure to identify documents as forged could not in such circumstances be classified as passage of title without the owner ’s intention to divest . He referred to the applicant ’s case as CARDINAL flagrant example of a wrong and unjust outcome of the erroneous interpretation adopted by GPE courts in such cases . On DATE he sent letters to ORG and the head of ORG of the Interior , citing the applicant ’s case , calling for the thorough investigation of fraud cases of this type , and requesting that the applicant ’s victim status be reassessed in the relevant criminal proceedings .

According to the applicant ’s latest submissions , she has not yet been evicted but considers it imminent .

The Civil Code provides for CARDINAL different avenues by which one ’s property title may be challenged by a previous owner :

“ CARDINAL . An invalid transaction shall not entail legal consequences , with the exception of those connected with its invalidity , and shall be invalid from the moment of its conclusion .

NORP If a transaction has been recognised as invalid , each of the parties shall be obliged to return to the other party all it has received as part of the transaction , and if return is impossible in kind ( including where the transaction concerns the use of property , work performed or services rendered ) , its cost shall be reimbursed in money - unless other consequences of the invalidity of the transactions have been stipulated by law .

If it follows from the content of the disputed transaction that it may only be terminated for the future , the court , while recognising the transaction as invalid , shall terminate its operation for the future . ”

“ CARDINAL . If the property has been purchased for a price from a person who had no right to alienate it , and the acquirer is unaware and could not have been aware ( the bona fide acquirer , or the acquirer in good faith ) , the owner shall have the right to reclaim this property from the acquirer , if the said property was lost by the owner or by the person into whose possession the owner has passed the property , or if it was stolen from CARDINAL or the other , or if it has left their possession in another way , in the absence of intention on their part to divest themselves of it .

NORP If the property has been acquired without consideration from a person who had no right to alienate it , the owner shall have the right to reclaim the property in all cases .

Money and securities in respect of the property shall not be reclaimed from the bona fide acquirer . ”

By its ruling of DATE , DATE , ORG interpreted LAW as not allowing the first owner to reclaim his property from a bona fide buyer unless there is a special legislative provision to this effect . Instead , a claim vindicating prior rights ( виндикационный иск ) could be lodged under LAW if the conditions indicated in paragraphs CARDINAL and CARDINAL are met , in particular if the property has left the owner ’s possession in the absence of intention on the part of him or her to divest themselves of it , or if the property has been acquired without consideration .

Further interpretation of LAW was provided by the Plenary of ORG of GPE and the Plenary of ORG of GPE , contained in the second paragraph of item CARDINAL of their joint ruling of DATE , no . CARDINAL “ On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights ” and in ORG ruling of DATE , CARDINAL . They held in particular that there was no automatic link between invalidity of a transaction and an owner ’s intention or otherwise , to divest themselves of it . ORG ruling held , in so far as relevant , as follows :

“ ... the uncertainty of the legal provisions [ including LAW ] challenged by the claimant is eliminated by the interpretation of the Plenary of ORG of GPE and the Plenary of ORG of GPE , contained in the second paragraph of item CARDINAL of the [ ruling of DATE , no . CARDINAL ] : ‘ the invalidity of the transaction in execution of which the transfer of property was effected does not by itself prove that it left the possession of the owner in the absence of intention to divest on their part ; the courts need to establish whether the owner intended to transfer possession to another person’ ” .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence in PERSON ( NORP Republic ) . He is represented before the ORG by Mr NORP ORG , a lawyer practising in GPE .

On DATE the GPE ORG found the applicant guilty of aiding and abetting murder . The court held that on DATE , a certain PERSON and the applicant had entered a jewellery shop and that PERSON had taken a shop assistant to another room and shot him dead . The applicant was given a mandatory sentence of life imprisonment . PERSON was tried in GPE and sentenced to CARDINAL half years’ imprisonment .

The applicant was initially serving his prison sentence in FAC in GPE . He could work , move freely in the building for most of DATE , freely interact with any of the other CARDINAL prisoners , make an appointment with a psychologist , psychiatrist or social worker at any time , follow vocational courses and study programmes , engage in outdoor exercise for TIME a day or more , a wide range of sports activities were available to him , and his cell was ventilated and dark at TIME . He was entitled to apply for conditional release after serving DATE , that is , on DATE .

On DATE ORG issued an administrative expulsion order against the applicant .

On DATE ORG of GPE requested GPE to take over the execution of the applicant ’s sentence . The applicant did not give his consent to his transfer . ORG , however , agreed to the transfer .

On DATE ORG ( krajský soud ) validated the NORP judgment regarding the applicant ’s conviction and converted his sentence to CARDINAL years’ imprisonment . It held that , despite the applicant ’s objection to the transfer , all the conditions of the Convention on ORG , having regard to LAW , had been met . It noted that at the time of the commission of the crime a sentence of DATE imprisonment could have been given under LAW only , inter alia , on the condition that the possibility of the offender ’s rehabilitation was particularly remote . Based on the available evidence , it held that this condition had not been met and thus a sentence of imprisonment of DATE would not be compatible with NORP law .

ORG ( krajský státní zástupce ) appealed against the decision , requesting the imposition of a sentence of PERCENT imprisonment because of the exceptional degree of danger to society posed by the applicant ’s crime .

On DATE ORG ( vrchní soud ) quashed ORG judgment and ruled that the applicant should continue to serve his sentence of life imprisonment without any conversion . It held that ORG had not been entitled to consider whether all the conditions for a life sentence had been met , but only to determine whether under NORP law the sentence imposed by the foreign court was at all possible for the crime in question . As it found that LAW generally provided for a sentence of life imprisonment for murder , it held that that sentence must continue to be served in GPE .

On DATE ORG ( ústavní soud ) dismissed a constitutional appeal by the applicant as manifestly ill - founded . It held that NORP courts could alter a foreign sentence only if the sentence was not envisaged at all under NORP law for the crime in question .

On DATE the applicant was transferred to GPE and taken into detention pending a court ruling on the execution of his sentence .

On DATE ORG ruled that the applicant should serve his sentence in a secure prison ( věznice s ostrahou ) . It held that under LAW , the penal position of sentenced persons could not be aggravated by their transfer and that this also applied to conditions of detention . Consequently , the applicant could not serve his sentence in a prison with heightened security ( věznice se zvýšenou ostrahou ) as would normally be the case for prisoners sentenced to life imprisonment .

The applicant appealed , arguing that his penal position would be aggravated because the conditions of detention in a NORP secure prison were much harsher than in FAC , where he had served his sentence before being transferred .

On DATE ORG upheld the decision . It held that any disadvantages of a NORP secure prison compared to Straubing prison were offset by the advantages of serving the sentence in the applicant ’s home country , where his mother tongue was spoken and where he had better possibilities of visits .

Since then the applicant has served his sentence in ORG in a section for life - sentenced prisoners . In that prison he allegedly has not been offered any employment ; he must spend TIME a day in his cell or CARDINAL room on the same floor ; he is allowed TIME , or exceptionally CARDINAL , of outdoor exercise daily in a very small area ; he is able to interact only with CARDINAL other life - sentenced prisoners ; his access to a psychologist or psychiatrist is limited ; he can not follow any vocational or study courses ; his cell is lit TIME a day and it is not possible to open a window in his cell ; and there is no possibility of sports activities except for table tennis in DATE .

The applicant lodged a constitutional appeal , disagreeing , inter alia , with the advantages of serving his sentence in GPE noted by ORG . He argued that he had already become accustomed to a NORP environment , was fluent in NORP , was visited by people from the outside and could receive parcels without any problem . In comparison , in GPE he was in contact only with his mother , who , however , lived in PERSON , which was QUANTITY away from his prison .

On DATE ORG dismissed his constitutional appeal as manifestly ill - founded .

Under LAW of LAW as in force in DATE , an extraordinary sentence of DATE could be imposed by a court only if the degree of danger to society posed by the offender ’s crime was very high and the possibility of rehabilitating the offender was regarded as remote .

Under LAW , a life sentence could be imposed on an offender who had committed murder where :

( a ) the degree of danger posed by such a crime to society was extremely high because of the particularly contemptible manner in which the crime was committed , or a particularly contemptible motive on the part of the offender , or a particularly serious result of the crime for which it was difficult to compensate , and ;

( b ) the imposition of such a sentence was required for the effective protection of society , and ;

there was no hope that the offender could be rehabilitated by a prison sentence of DATE duration .

Under LAW of LAW a life - sentenced prisoner is eligible for parole after serving a minimum of DATE of his sentence .

Under LAW the administering ORG is bound by the legal nature and duration of the sentence as determined by the sentencing ORG . If , however , this sentence is by its nature or duration incompatible with the law of the administering ORG , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure must , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG .

Under LAW , in the case of conversion of a sentence , the competent authority must not aggravate the penal position of the sentenced person , and is not bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

Under LAW of LAW , upon being requested by the sentencing ORG , the administering ORG may agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison .

Articles CARDINAL and CARDINAL provide :

“ This LAW shall be applicable to the enforcement of sentences imposed either before or after its entry into force .

Any Contracting State may at any time denounce this LAW by means of a notification addressed to the Secretary General of ORG .

This LAW shall , however , continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the LAW and this LAW before the date on which such denunciation takes effect . ... ”