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

The applicant , Mr PERSON , is a national of the Former GPE , who was born in DATE and lives in GPE . He was represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

A prior application by the applicant ( no . CARDINAL ) concerned the length of the same proceedings which are at issue here and was disposed of by judgment of DATE .

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

On DATE CARDINAL masked and armed man entered the house of NORP in GPE , a town close to GPE . When PERSON , who owned a roofing business , and his wife returned home , they were threatened and beaten by the men , and forced to open their safe from which the CARDINAL men stole money , stocks and jewellery worth around MONEY ( ORG ) .

On DATE the applicant was arrested in PERSON . On DATE the ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed CARDINAL offences of robbery , inter alia the robbery of PERSON , and CARDINAL count of robbery in connection with attempted murder .

On DATE ORG charged the applicant with attempted murder , aggravated robbery causing physical injury , and an offence under LAW .

On DATE ORG accepted the indictment without modifications and decided to open the main proceedings against the applicant and CARDINAL other accused .

On DATE a police informant ( Vertrauensperson ) was questioned by police officer PERSON in connection with the ORG robbery .

The informant reported that in DATE , DATE after the robbery , he / she had heard in the “ milieu ” for the first time that an elderly couple in ORG had been robbed . According to his / her information the robbery had been committed by an “ Emin ” and a “ PERSON . Allegedly they had first broken in and entered the house of the elderly couple . Then , the man had appeared and was overpowered . Shortly afterwards the wife had entered the house and was overpowered as well . The couple was tied up and forced to reveal the hiding place of the safe from which around DEM CARDINAL,CARDINAL,CARDINAL or CARDINAL were taken . A certain “ Djoni ” who had given the tip for the robbery in ORG had received some of the goods . As far as the informant remembered , each of the CARDINAL had got CARDINAL . “ FAC and “ PERSON ” had opened a bistro in PERSON with this money . “ PERSON had allegedly wasted much of the money . The informant further stated that he / she had also been told that shortly after the robbery the daughter of the robbed couple had appeared . DATE of the robbery had been her birthday . Details of the robbery were not known to the informant . He / she had heard though that the men had stubbed out burning cigarettes on the bodies of their victims .

The informant had further reported that “ Emin ” and “ Zvonko ” were first names and that “ Emin ” was from GPE and “ GPE ” from GPE . The last name of “ GPE ” was not known to the informant , “ PERSON ’s ” last name was PERSON , according to the informant . When he / she had been shown photos in DATE by his / her supervisor he / she had recognised both men . During questioning in DATE the informant was again confronted with the same pictures and again recognised the CARDINAL men .

The informant ’s supervisor , who was also questioned by police officer PERSON on DATE and who also remained anonymous , stated that he knew the identity of the informant and had worked with the person for DATE . In DATE the informant had told him about the robbery in ORG in DATE The supervisor further observed that what the informant had said when questioned by PERSON was essentially the same as the informant had told him in DATE .

The first trial started on DATE . However , the proceedings had to be abandoned later on because CARDINAL lay judges fell ill ; the trial was then reopened on DATE .

The applicant , who was represented by counsel during the trial , denied the charges and alleged that he had been in LOC , Former GPE , at the time of the robbery of L.

During the first trial , on DATE , the defence challenged the calling of police officer PERSON as a witness , arguing that they did not know the identity of the informant and whether the guarantee of confidentiality was according to the law . If the informant ’s statements were introduced into the trial by way of hearing police officer PERSON as a hearsay witness the defence could not test the informant ’s credibility .

On DATE ORG for the Interior of ORG made a declaration refusing to reveal the informant ’s identity ( PERSON ) . The Ministry argued , inter alia , that the informant had been guaranteed confidentiality and that it was necessary to keep his / her identity secret in order to protect his / her life and limb , especially in view of the brutality of the crimes the accused were charged with .

On CARDINAL and DATE ORG , relying on the reasons given in the declaration of DATE , submitted CARDINAL more declarations refusing to reveal the identity of further informants and the informant ’s supervisor .

During the second trial ORG heard , inter alia , police officer PERSON as a witness regarding the statements made by the informant and the informant ’s supervisor ( see above , CARDINAL . ORG - trial investigations ) , CARDINAL former cellmates of the applicant who claimed that the applicant had confessed to involvement in the robbery in ORG to them , and also heard CARDINAL counter - witnesses put forward by the defence .

On DATE the applicant and his counsel lodged a request to take evidence by legal inspection through CARDINAL of the judges of the court ( richterliche Inaugenscheinnahme ) to make sure that the informant existed . The applicant reasoned that the proceedings so far , as well as the exclusion of questions of the defence with a view to verifying the reliability of the informant , had led to the impression that this person was an invention of the police in order to cover up the identity of the real informant . Since questions regarding the knowledge of the informant had so far been refused , this exclusion violated the principle of fair trial . The applicant further requested :

“ Questioning of the informant directly by video

+ multiple written questioning

+ person is an invention of the police ! ”

By decision of DATE ORG dismissed the applicant ’s request as inadmissible . It argued that a legal inspection was inadmissible . Direct questioning of the informant would be in conflict with ORG refusal to reveal the informant ’s identity . Irrespective of whether an optical and/or acoustic screening was admissible under NORP law , such questioning would run counter to the applicant ’s request because the existence of the informant would not thereby be disclosed . The court further reasoned that the informant had already been questioned ; the result had been introduced by hearing police officer PERSON as a witness . Regarding the allegation that the informant was “ an invention of the police ” ORG found that this was a conclusion of the applicant , who moreover had not given evidence for it .

On DATE the ORG pronounced its judgment . It found the applicant guilty of the robbery of L. and his wife in ORG , convicted him of serious robbery and serious bodily harm and acquitted him of attempted murder ( regarding a different robbery ) and imposed a sentence of CARDINAL years’ imprisonment . The applicant ’s co - accused were , inter alia , found guilty of attempted murder .

In its long and detailed decision ORG based its conviction that the applicant had participated in the robbery on the statement of the informant , introduced through the testimony of police officer PERSON and corroborated by further evidence , as well as on the statements of the CARDINAL former cellmates of the applicant .

ORG noted that the first lead concerning the applicant ’s involvement in the ORG robbery had come from confidential information received by the police , verification of which had reinforced the suspicion towards the applicant and his co - accused .

Witness E. , a police officer from the ORG police department , reported in this context that in DATE an informant had provided another police officer , whose identity was confidential , with a lead regarding the robbery of a roofer and the involvement of CARDINAL PERSON named “ PERSON ” and “ GPE ” as well as someone named “ Jonni ” who had provided the tip for the crime . Witness PERSON had neither met the informant nor knew his name .

Witness PERSON , the police officer who had questioned the informant , testified that in DATE there had been a lead that the mentioned “ Jonni ” had opened a restaurant on LOC or NORP coast . Further investigations had led to ORG in PERSON ( a town on LOC ) owned by a GPE . Then , in DATE , an informant had revealed that an “ Emin ” was staying with a NORP in PERSON and had had a child with her , born in DATE . According to this information “ Emin ” was an NORP and was considered to be the perpetrator of several robberies in ORG and GPE together with a “ PERSON . DATE these CARDINAL had , according to this information , robbed a couple who owned a roofing business close to GPE . A survey of all registered NORP women in PERSON had led to a woman who had named a Dzevdet Dzelili as the father of her child born in DATE . The police had subsequently photographed persons entering and leaving the apartment of the woman and shown these photographs to the informant , who had recognised both men he / she had mentioned , “ GPE ” and “ Emin ” , in these pictures . The persons where later identified as PERSON and PERSON alias PERSON .

ORG observed in the reasoning of its judgment that the above outlined confidential information as well as the information received from the informant , as recalled during the trial by witness PERSON as interviewing officer , had proven to be correct in its essential points . Most of the information regarding the circumstances of the offence had been confirmed by the victims , Mr. and Mrs. PERSON , who had been heard as witnesses at the trial . CARDINAL parts of the informant ’s statement had proven to be incorrect , namely the purported mistreatment of the victims with burning cigarettes and that the day of the offence had been the birthday of the ORG daughter . However , DATE of the offence was the birthday of the ORG grandson and the ORG daughter had indeed arrived shortly after the robbery together with her husband and the grandson . ORG therefore found the statement regarding the daughter ’s birthday to be a simple mistake , not only an accidental parallel . Furthermore , the informant ’s statement regarding the takeover of a restaurant in PERSON , namely ORG , and the applicant ’s involvement in this business together with the named “ Djoni ” or “ LOC as well as the statement as to the stolen goods , had been confirmed by depositions of several witnesses . In this respect ORG also noted that the DEM CARDINAL,CARDINAL,CARDINAL to CARDINAL stolen in the ORG robbery provided an answer to the question as to how the applicant in DATE could afford to invest DEM MONEY in a restaurant , a fact that had been established by witness testimony .

ORG further based its conviction on the testimony of CARDINAL former cellmates , according to whom the applicant had confessed to involvement in the robbery at issue . Given that CARDINAL of the witnesses had not repeated his pre - trial statement to that effect in court but rather stated that he was not able to recall details , the police officer who had questioned him was heard as a hearsay witness . While the court expressed doubts as to the reliability ( PERSON ) of the CARDINAL witnesses in general , it was convinced that with regard to the applicant ’s confession the statements were credible ( glaubhaft ) , in particular because they were consistent with one another and contained personal details which could only have been passed on by the applicant himself and not , as alleged by the defence , been taken from the reasoning of the arrest warrant .

Upon request of the defence the court had also heard CARDINAL prison inmates as witnesses who knew the CARDINAL former cellmates of the applicant and , with CARDINAL exception , stated that these CARDINAL had intentionally made false statements regarding an alleged confession to obtain advantages for their own trials .

As to the applicant ’s alleged alibi , ORG heard witnesses and came to the conclusion that it did not preclude the applicant ’s involvement in the crime because it was not continuous . Further witnesses from the Former GPE named by the applicant were summoned but informed the court that they would not appear .

On DATE the applicant lodged an appeal on points of law against ORG judgment .

The applicant alleged a violation of ORG duty to clarify the relevant facts ( PERSON ) as well as a violation of the applicant ’s right to question witnesses ( PERSON ) . The applicant submitted that ORG should have requested a review of ORG ’s declaration refusing to reveal the informant ’s identity of CARDINAL DATE in view of , inter alia , the time elapsed and the possibility of questioning by video link with acoustic and optical shielding . Also , in view of the applicant ’s request of DATE , which should have been taken as a suggestion to take evidence ( PERSON ) , the ORG should have considered other possibilities of enabling the defence to question the informant . Because it was ORG duty to counterbalance the handicaps resulting from maintaining the anonymity of the informant ORG should furthermore not have dismissed the request for “ multiple written questioning ” . The applicant also submitted that ORG had based his conviction to a decisive extent on the statements of an anonymous witness he had not been able to question , without documenting that it had treated these statements with adequate care .

On DATE ORG , following an oral hearing , confirmed the judgment of ORG regarding the verdict ( Schuldspruch ) . In respect of the sentence ( PERSON ) the judgment was quashed and the case remitted to ORG for renewed sentencing .

ORG noted that ORG had not had any reason to re - examine the ORG ’s declaration refusing to reveal the informant ’s identity . In particular the newly created possibility of questioning the informant by video link according to LAW did not give rise to a request for reconsideration by the court ; it could not dispel security concerns since anonymity would not be preserved . Acoustic and optical shielding during questioning by video link had at that time not been deemed admissible under domestic law . Furthermore , acoustic and optical shielding would not have been sufficient in the instant case , because the questions of the defence would have been targeted at the source of the informant ’s knowledge and his / her relationship to the accused and would have thereby endangered the informant ’s anonymity . According to LAW such questions , while limited to the “ necessary ” , can not be completely excluded . Therefore , ORG could not and did not have to expect ORG to consent to such a procedure .

Regarding an alleged violation of the applicant ’s right to question witnesses according to CARDINAL § CARDINAL ( d ) of ORG dismissed the appeal on points of law as inadmissible because the applicant had only requested “ multiple written questioning ” of the informant during the trial but had not submitted the intended questions with his request of DATE . Hence , it was impossible for ORG to examine whether ORG had in fact violated the applicant ’s right to question a witness . Because the request of DATE was unsubstantiated ORG did not have to grant it .

ORG further noted that ORG had , as required by its case - law regarding the so called “ corrective of the cautious assessment of evidence ” ( GPE der vorsichtigen PERSON ) , taken a cautious approach when assessing the statement of the anonymous witness , which was also corroborated by other evidence . Moreover , the statements of the applicant ’s former cellmates constituted evidence entirely independent from the informant ’s statement .

On DATE the applicant lodged a constitutional complaint with ORG .

Before ORG the applicant argued that his right under LAW ( d ) of the LAW to question or have questioned witnesses of the prosecution had been violated . He submitted in particular that his conviction had been based to a decisive extent on the statements of the anonymous witness , who had not been heard in open court and who he or his counsel had had no opportunity to question .

In view of the case - law of the ORG and the then novel possibility in national law to question witnesses by video link , the applicant argued that ORG would have at least had to put the question of a video link , possibly with acoustic and optical shielding , to ORG and ask whether it still upheld its declaration of DATE . While acoustic and optical shielding was at the time of the judgment of ORG not approved by ORG , the applicant submitted that its relevant decision dated from before the change in the law regarding questioning by video link . Since acoustic and optical shielding therefore no longer conflicted with domestic procedural law it should have been considered by ORG .

With regard to the judgment of ORG the applicant complained that it had not examined his submissions concerning possible questioning by video link under his right to question witnesses but only with regard to ORG duty to clarify the relevant facts . He further submitted that ORG was incorrect in requiring him to disclose specific questions he wanted to put to the informant .

On DATE ORG refused to admit the applicant ’s constitutional complaint for examination . It found that in view of the ORG ’s case - law , in particular PERSON and Others v. GPE , the applicant ’s right to a fair trial had not been violated .

In view of the inclination towards violence of the group of perpetrators and the resulting threat to the informant ORG found it acceptable that the lower courts had not requested ORG to reconsider its almost DATE declaration refusing to reveal the informant ’s identity , since a revocation of the declaration could not be expected . For these reasons the lower courts could also predict that ORG would not consent to questioning by shielded video link .

Regarding the alleged violation of the applicant ’s right to question witnesses ORG found the submission of the applicant to be insufficiently substantiated . Since ORG had in this respect dismissed the appeal on points of law as inadmissible the constitutional complaint had to meet special demands regarding its substantiation . In contrast , the applicant ’s arguments against the decision of ORG were based solely on sub - constitutional law and hence his constitutional complaint was inadequately reasoned in the eyes of ORG .

Article CARDINAL . [ Examination as to ORG and Personal Details ]

( CARDINAL ) If there is reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the ORG or another person ’s life , limb or liberty , the witness may be permitted not to give personal details or to give details only in respect of an earlier identity . However , if so asked at the main hearing , he shall be required to state in what capacity the facts he is indicating became known to him . ...

( CARDINAL ) Where necessary , questions relating to circumstances justifying the NORP credibility in the case at hand , particularly concerning his relationship with the accused or the aggrieved party , shall be submitted to him .

Article CARDINAL . [ Taking of Evidence ]

( CARDINAL ) In order to establish the truth , the court shall , ex officio , extend the taking of evidence to all facts and means of proof relevant to the decision .

( CARDINAL ) An application to take evidence shall be rejected if the taking of such evidence is inadmissible . In all other cases , an application to take evidence may be rejected only if the taking of such evidence is superfluous because the matter is common knowledge , if the fact to be proved is irrelevant to the decision or has already been proved , if the evidence is wholly inappropriate or unobtainable , if an application is made to prolong the proceedings , or if an important allegation which is intended to offer proof in exoneration of the defendant can be treated as if the alleged fact were true .

Article PERSON . [ Witness Examination in Another Place ]

If there is an imminent risk of serious detriment to the well - being of the witness were he to be examined in the presence of those attending the main hearing and if that risk can not be averted in some other way , namely by removing the defendant and excluding the public , the court may order that the witness remain in another place during the examination ; ... The decision shall be incontestable . A simultaneous video transmission of the testimony shall be provided in the courtroom . The testimony shall be recorded if there are grounds to fear that it will not be possible to examine the witness at a future main hearing and if the recording is necessary to establish the truth . ...

For a request for evidence to be taken to be admissible it must necessarily identify a particular matter to be proven ( GPE ) , the aim of the application ( PERSON ) and the evidence ( ORG ) . If an application is not sufficiently substantiated in this regard it can still be a suggestion to take evidence ( PERSON ) or a request for evidence determination ( Beweisermittlungsantrag ) which the court must then consider under its duty to clarify the relevant facts .


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

The applicant inherited a plot of land from his father in GPE . This land was in the possession of the applicant ’s father for DATE . However , neither his father nor the applicant had the title deed to it .

In DATE the authorities started the construction of FAC . As the applicant feared that his land could be submerged in the waters of the dam , on DATE he initiated proceedings before ORG , and requested that this plot be registered in his name . He based his case on his father ’s uninterrupted possession for DATE .

During the proceedings , the Magistrate ’s Court held DATE hearings . It conducted CARDINAL on - site inspections , namely on DATE and DATE , with the participation of engineers . The ORG further requested ORG to analyse the soil to determine whether or not the land in dispute was sandy . It also obtained CARDINAL reports from experts . As a result , the court decided that the land was made up of sandy soil . Recalling that private possession of sandy land was banned under NORP legislation , the court held that it was not possible to issue a title deed in the name of the applicant based on uninterrupted possession . Accordingly , on DATE the court dismissed the case . The applicant appealed . On DATE ORG upheld the decision of the first - instance court , finding its reasoning to have been in line with domestic law . This decision was served on the applicant on DATE .


The applicant is a NORP national , born in DATE and resident in GPE .

The following is a summary of the proceedings :

On DATE the applicant lodged a civil action against his wife , her sister and her brother - in - law with the Warszawa- ORG , claiming repossession of an apartment of which he and his wife were co - owners , and from which he had allegedly been unlawfully evicted in DATE .

In their reply of DATE the defendants requested the court to dismiss the applicant ’s action and contended that he had never lived in the apartment and had never intended to make it his principal residence .

A first hearing in the case was held in DATE .

In DATE , CARDINAL hearings were fixed in the case .

In DATE , CARDINAL hearings were fixed .

Some of those hearings were adjourned , either as the parties were ( justifiably ) absent , or because the court had not received postal confirmation that summonses had been properly served on them . Certain adjournments were necessary in order to summon certain witnesses proposed by the parties at the hearings . The court also adjourned certain hearings in order to request various authorities to submit files of cases pending before judicial or prosecution bodies which the parties deemed necessary for the accurate determination of their claims . Thus , the parties lodged motions to have CARDINAL files of investigations pending before the prosecutor submitted to the court . Likewise , the parties requested that a file of administrative proceedings pending before ORG of the Warszawa - Wola District Office be submitted to the court . They further requested that the case - file of the applicant ’s divorce proceedings , instituted in DATE , be submitted to the court .

In a letter of CARDINAL DATE the Warszawa - Wola District Prosecutor informed the court that the case - file of CARDINAL of the criminal cases could not be submitted to the court as the file had been transmitted to ORG following the applicant ’s appeal against a particular decision .

On DATE the court heard evidence from the parties and adjourned the hearing , as certain files had not yet been submitted to the court .

In DATE and DATE CARDINAL hearings were fixed DATE .

In his pleadings of DATE the applicant stated that the defendant had sold the apartment concerned . He reiterated this statement at the hearing of DATE . The court adjourned the hearing and requested the housing co - operative to submit the documents concerning the apartment .

On DATE the defendant requested the court to stay the proceedings as , according to the co - operative ’s letter of CARDINAL DATE , it had been the defendant who had an exclusive right to the apartment , governed by the legal provisions on housing co - operatives . She further informed the court that on CARDINAL DATE the applicant had brought a civil action against her , requesting that the contract of sale of the apartment be declared null and void .

In DATE , CARDINAL hearing was held .

In DATE , the applicant unsuccessfully requested that the presiding judge step down .

In DATE , CARDINAL hearings were held before FAC . In DATE , the applicant once again requested that the presiding judge step down , alleging lack of impartiality on his part . His request was refused as it did not comply with the applicable legal requirements .

In DATE , the court was to hold CARDINAL hearings . The first hearing was adjourned on DATE , the court apparently not having received confirmation that the summonses had been served on the parties . Likewise the hearing on DATE was adjourned .

On DATE ORG again dismissed the applicant ’s challenge of CARDINAL of the judges and imposed a fine on him , considering that his request that the judge step down had been submitted in bad faith .

The hearing fixed for DATE was adjourned , as the court had not received confirmation of proper service of certain summonses .

In a judgment of CARDINAL DATE the ORG ordered repossession of the apartment of which the applicant was a co - owner and from which he had been evicted by his wife in DATE .

On DATE ORG confirmed the judgment , which , accordingly , became final .

On DATE ORG dismissed the applicant ’s claim for annulment of the sale contract of the apartment .

Subsequently , upon the GPE request , on DATE the Minister of ORG lodged an extraordinary appeal with ORG against the judgment of CARDINAL DATE .

On DATE ORG set aside the impugned judgment and dismissed the applicant ’s claim , considering that the action for repossession had become devoid of purpose as in DATE the defendant had sold the apartment concerned .

Relevant domestic law

LAW provides that a possessor can apply to a court for repossession against a person who has deprived him of de facto possession , regardless of whether he or she is a bona fide possessor or whether the factual possession is in conformity with the law .

Articles CARDINAL to CARDINAL of LAW , as applicable at the material time , provided that an extraordinary appeal could be lodged against any final judicial decision with ORG by the Minister of Justice - the Prosecutor General , the President of ORG and the ORG . An extraordinary appeal could be lodged on the ground that the decision was in flagrant breach of the law . A party to the proceedings could file a request to have such an appeal lodged with these authorities on his or her behalf . ORG , having examined the extraordinary appeal at a public hearing , could dismiss it if no grounds for allowing it had been established . If the extraordinary appeal was allowed , ORG could set the decision under appeal aside and rule on the merits of the case , or reject the claim and discontinue the proceedings .


Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

He is currently serving a life sentence in LOC .

In DATE the applicant , as a member of a small group of “ volunteers ” from GPE , underwent military training organised by NORP militants based in GPE ’s FAC . The aim of this training was subsequent participation in insurgent operations against the NORP Federal forces in GPE .

The applicant returned to ORG in DATE . On DATE he was arrested . On CARDINAL DATE ORG convicted him of forming an illegal armed group under LAW and gave him a suspended sentence of CARDINAL years’ imprisonment .

On DATE the applicant was arrested again . On DATE he was indicted in ORG on charges of premeditated aggravated murder , firearms smuggling , illegal possession of firearms , creation of an illegal armed group , and illegal border crossing under Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW .

On DATE ORG found the applicant guilty as charged and sentenced him to life imprisonment .

On DATE the applicant appealed against this judgment . He complained , in particular , that the facts of the case had not been assessed correctly , that he had not intended to kill law - enforcement officers and that ORG had erred in applying and interpreting the criminal law .

On DATE ORG dismissed his appeal and upheld the first - instance judgment . The appeal hearing was held in the applicant ’s absence . His lawyer was present .

On DATE the applicant lodged a cassation appeal . He reiterated his previous complaints claiming the misapplication of the relevant criminal law . He did not complain about his absence from the hearing before ORG .

On DATE ORG held a hearing in the presence of the public prosecutor . The applicant and his lawyer had not been summoned to that hearing . ORG upheld the lower courts’ judgments .

The applicant is held , together with CARDINAL other inmate , in a cell measuring CARDINAL x QUANTITY . The cell has CARDINAL beds , a small bedside cupboard , and CARDINAL small table and CARDINAL chairs fixed to the cell floor . The toilet area is separated from the rest of the cell . The floor and ceiling are made of stone and concrete respectively . The temperature inside the cell is very high in DATE and very low in DATE . Central heating is available , but insufficient .

The window with metal bars has no windowpane in it and , in DATE , is closed with a transparent polyethylene film . The air inside is stale and the cell can not be naturally ventilated . The food served in the prison is often of poor quality and lacks sufficient meat and vitamins , and the menu is unvaried and monotonous . The inmates are only allowed TIME of outdoor exercise per day .

The applicant ’s cell is assigned to CARDINAL inmates and measures CARDINAL x QUANTITY . The conditions of the applicant ’s detention meet all national and international requirements and standards . The window of the cell can be opened from the inside . The window is large enough and does not prevent natural light and fresh air from coming in . The cell is also equipped with electric lamps , a ventilator and a radio set .

Since DATE the prisoners have had the right to watch TV for TIME per day and for TIME at weekends and on holidays . The prison has a library accessible to the prisoners . Sanitary conditions are normal and the food served is of good quality . The applicant has the right to TIME of outdoor exercise per day .

The relevant provisions of domestic law concerning proceedings before ORG are described in detail in the ORG ’s judgments in GPE v. GPE ( no . GPE , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant , ORG , is a NORP national , who was born in DATE and lives in Dubnica Nad Váhom . She is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON as from DATE .

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

In DATE the applicant sustained an injury at work . As her health was damaged , she was granted a partial disablement pension in DATE .

In DATE the applicant was injured in a road traffic accident . On DATE she claimed a full disablement pension .

On DATE the applicant ’s health and ability to work were assessed by a commission established by the PERSON branch office of ORG ( Sociálna poisťovňa ) . On DATE the GPE central administration of ORG dismissed the request with reference to the conclusion reached by the above commission .

In DATE the applicant sought a judicial review of the decision delivered by the GPE central administration of ORG on DATE . She argued that her health was permanently damaged .

Subsequently the applicant ’s health was re - assessed by a commission established by the central administration of ORG . In a record drawn up on DATE , the commission reached the conclusion that the applicant was only partially disabled . The report of the commission was submitted to ORG before which the case was pending .

Before ORG the applicant argued that the conclusions of the social security commissions by which her health had been assessed were contrary to the findings of doctors of ORG in GPE where she had been treated . She also requested that further evidence should be taken by ordering her examination by means of magnetic resonance .

On DATE ORG upheld the administrative decision of CARDINAL DATE after having heard the applicant . ORG also had regard to documentary evidence including the above report of CARDINAL DATE which , as the judgment stated , had been submitted in accordance with LAW of LAW of DATE and pursuant to LAW ) of ORG of DATE .

In its judgment ORG noted that the commission had examined both the applicant and the documents concerning her health . The court held that special medical knowledge was required for determining the point in issue , namely whether or not the applicant ’s health had deteriorated to such an extent that she could not carry out any professional activity . In proceedings concerning social security claims the assessment of a person ’s health was within the competence of special commissions established in accordance with the relevant law . ORG held that the commission by which the applicant had been examined had assessed the applicant ’s health in a comprehensive manner and that in its report of CARDINAL October CARDINAL it had given relevant and sufficient reasons for its conclusions which , in the court ’s view , were not contradictory .

As to the applicant ’s request for her examination by means of magnetic resonance , ORG noted , with reference to the case file , that the medical institution which possessed the relevant equipment had refused such examination to the applicant . The refusal was based on the fact that the post - surgery ultra - sound examination of the applicant clearly showed that there was no resistance in the area concerned . ORG noted that the applicant did not raise any new argument unknown to the commission which had assessed her health and her ability to work . It therefore did not consider the taking of further evidence to be necessary .

On DATE the applicant appealed . She claimed that the commission which had assessed her health had been biased and that there were inconsistencies between its conclusions and the existing documents relating to her health . She argued , in particular , that ORG had exclusively relied on the conclusions of a commission established within ORG and that the latter was the defendant in the case .

On DATE ORG informed the applicant that it lacked power to interfere with the activities of ORG . The letter stated that further examinations of the applicant ’s health could only be carried out upon the recommendation of a social security commission of ORG or , as the case might be , after the appointment of an independent expert by the court dealing with her case .

On DATE ORG upheld ORG decision . In its judgment ORG held , inter alia :

“ Special medical knowledge is required to assess to what extent a person ’s health has deteriorated . Social security commissions are empowered to carry out such assessment in the context of social security issues and also for the purpose of judicial proceedings ( Section CARDINAL of LAW and Section CARDINAL(b ) of ORG ) . Opinions of the social security commissions are subsequently considered by courts as any other piece of evidence , that is individually and in the context of the other evidence within the meaning of LAW .

When assessing the evidence taken in the context of judicial proceedings , a court takes into consideration also opinions submitted by social security commissions pursuant to the statutory provisions referred to above and there is therefore no ground to consider them as being biased as such . ”

ORG noted that the commission by which the applicant had been examined had taken into account all relevant facts , including documents which the applicant had joined to her appeal against ORG judgment . The opinion addressed the health problems of which the applicant complained and it traced the changes of her health since DATE . The social security commission gave sufficient reasons for its conclusion which , in ORG view , was comprehensive and without bias . ORG dismissed as unsubstantiated the applicant ’s argument about alleged inconsistencies in the opinion .

Section CARDINAL of LAW ( PERSON o sociálnom zabezpečení ) of DATE provides that in matters relating to social security the ORG health and ability to work shall be assessed by the competent ORG authorities . When special knowledge is required and the relevant law so provides , such an assessment shall be carried out by the ministries of health and of social affairs .

Under LAW ) of ORG ( PERSON o štátnej správe sociálneho zabezpečenia ) of DATE , the NORP administration of social security and the district administrations of social security shall establish commissions with a view to assessing ORG health and capacity to work for the purposes of the LAW .

Section CARDINAL(CARDINAL ) provides , inter alia , that ORG shall assess a person ’s health and capacity to work when the commissions established by the administration of social security are biased .

Section CARDINAL(b ) provides that the NORP administration of social security delivers , through commissions established for that purpose , opinions which may be required in judicial proceedings relating to social security claims .

Under Section CARDINAL(CARDINAL ) of ORG ( PERSON o NORP poisťovni ) of DATE , ORG is a public law institution .

Pursuant to LAW , its central administration is charged with carrying out health and pension insurance as well as providing expertise for the purposes of social security claims in accordance with LAW and the other relevant provisions of ORG of DATE .

Section CARDINAL provides that the central administration and the branch offices of ORG carry out the ORG administration of social security in accordance with ORG of DATE .

Article ORG ) provides , inter alia , that the presiding judge decides whether a court ’s clerk , an expert or interpreter should be disqualified .

Pursuant to LAW ) , parties are obliged to indicate evidence in support of their allegations . Courts may also take evidence other than that which was proposed by the parties . Courts decide on the basis of facts resulting from the evidence taken .

Article CARDINAL gives parties the right to comment on proposals to take evidence and on the evidence which a court has taken .

Pursuant to LAW , any means permitting the establishment of the facts of a case can serve as evidence , in particular the hearing of witnesses , expert opinions , reports and statements by authorities and legal persons , documents , inspection and the examination of parties .

Under LAW ) , courts shall appoint an expert , after having heard the parties , when their decision depends on the assessment of facts requiring special knowledge . LAW CARDINAL provides that courts can order that an expert opinion be reviewed by a different expert or by a scientific institution . Pursuant to Article CARDINAL(CARDINAL ) , courts can use , in lieu of an expert opinion , a certificate or an opinion submitted by the competent authority when there is no doubt that such a certificate or opinion is correct .

Article CARDINAL provides that a court shall assess evidence in accordance with its own considerations . In doing so it shall take into account every piece of evidence individually as well as the evidence seen as a whole in its context . It shall thereby carefully consider all facts established in the course of the proceedings including the submissions of the parties .

Article CARDINAL ) provides that a court dealing with a remedy against the decision of an administrative authority shall , if need be , hold a hearing . In that context it can take evidence which may be necessary for reviewing the administrative decision in issue .

Under LAW ) , an appeal on points of law is available against an appellate court ’s decision in matters relating to social security claims . When dealing with a party ’s appeal on points of law , ORG is to adequately apply the provisions of Head CARDINAL , Part CARDINAL of the Code of Civil Procedure . Those provisions govern appeals on points of law and they comprise the following relevant rules :

“ Head CARDINAL

Admissibility of an appeal on points of law

Article CARDINAL

A final decision of an appellate court can be challenged by means of an appeal on points of law in cases provided for by law ...

Article CARDINAL

An appeal on points of law against any decision of the appellate court is admissible where

a ) the decision concerns a subject - matter which falls outside the jurisdiction of courts ,

b ) a person acting as a party to the proceedings lacked capacity to do so ,

c ) a party to the proceedings lacked procedural capacity and was not duly represented ,

d ) the same matter has been earlier determined by a final decision or where other proceedings on the same matter started earlier ,

e ) no request for proceedings to be started was filed despite the fact that such a request was required by the law ,

f ) a party has been prevented , by the appellate court ’s conduct , from acting before the court ,

g ) the case was decided upon by a disqualified judge or where the court ’s composition was incorrect ...

Article CARDINAL

An appeal on points of law is also admissible where it concerns an appellate court ’s judgment which modified the first instance court ’s judgment on the merits of the case .

An appeal on points of law is also available against a decision of the appellate court in which the appellate court did not follow the legal opinion earlier expressed by the court of cassation on the same matter .

An appeal on points of law is also admissible against appellate court ’s judgment confirming the first instance court ’s judgment where the appellate court

a ) NORP stated in the operative part of its judgment that an appeal on points of law was admissible as the case concerned a matter of particular legal importance ,

b ) upheld a judgment deciding on the matter in a different manner than an earlier delivered judgment because the first instance court had been bound by the legal view of the court which had quashed such an earlier judgment ...

Filing of appeal on points of law

Article CARDINAL

A party to the proceedings can file an appeal on points of law within DATE from the binding effect of the appellate court ’s decision ...

Article CARDINAL

An appeal on points of law shall indicate ... the reasons for which the decision in question is being challenged ...

NORP Only the following can be invoked as reasons for an appeal on points of law :

a ) flaws in the proceedings as set out in LAW [ of LAW ] ,

b ) other flaws in the proceedings which resulted in a wrong decision on the matter ,

c ) a court ’s decision on the basis of a factual finding which , in its substantive part , is not supported by the evidence taken ,

d ) a court ’s decision resulting from an erroneous legal assessment of the matter . ”

In its decision No . CARDINAL Cdo CARDINAL/CARDINAL of CARDINAL DATE ORG held that a court ’s failure to take evidence which the parties proposed could not be considered as conduct preventing the parties from acting before the court within the meaning of Article CARDINAL ) of LAW . The decision stated that it was exclusively for the court dealing with the case to decide what evidence was to be taken . This conclusion was later confirmed in decision No . PERSON of DATE .

In the above decision No . CARDINAL Cdo CARDINAL/CARDINAL of CARDINAL DATE ORG also stated that it would not examine the defendant ’s objections relating to the appellate court ’s failure to correctly establish the facts and to the errors of law allegedly committed by it as those were not reasons which alone rendered an appeal on points of law admissible .

In judgment No . PERSON CARDINAL/CARDINAL delivered on DATE ORG held that , when determining the admissibility of appeal on points of law in matters relating to social security claims , LAW could not be interpreted without having regard to Articles CARDINAL to CARDINAL of the Code of Civil Procedure . ORG further examined whether the appeal on points of law in the case which related to a social security claim met the admissibility requirements laid down in Articles CARDINAL and CARDINAL of the Code of Civil Procedure .

Section CARDINAL(CARDINAL ) provides that an employee of an administrative authority is disqualified from dealing with a case and from deciding on it where there can be doubts about his or her impartiality because of his or her relation to the subject - matter of the case or to the parties to the proceedings or their representatives .

Under LAW ) , read in conjunction with LAW ) , the question whether an employee of an administrative authority is biased is to be determined by his or her hierarchical superior . LAW provides that no appeal is available against the superior ’s decision on this issue .

Section CARDINAL(CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ ’s decision or by its erroneous official action ( ORG o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “ LAW ” ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of , inter alia , civil proceedings .

Section CARDINAL ) renders the ORG liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions . A claim for compensation can be granted where the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the erroneous action in question .


The applicants are husband and wife and are both NORP citizens . The first applicant was born in DATE and the second applicant in DATE . The applicants live in GPE , GPE . They are represented before the ORG by Mrs N. Mole , a lawyer working with FAC , GPE .

A.

s , may be summarised as follows .

The death of PERSON

On DATE the ORG CARDINAL-year - old son , PERSON , was admitted to ORG hospital after persistent spells of severe abdominal cramps and vomiting . The paediatrician in charge of his care , PERSON , suspected that PERSON suffered from adrenal insufficiency ( PERSON ’s disease ) , and made a written report to the child ’s general practitioners at ORG , stating that he required an ACTH Stimulation Test to confirm the diagnosis . The test was not carried out . PERSON was discharged from the hospital on DATE . Neither ORG nor PERSON ’s general practitioners re - called PERSON to hospital for the ACTH Stimulation Test following his discharge . PERSON ’s parents were never informed that the doctors suspected PERSON ’s disease .

After his discharge from hospital , PERSON remained unwell throughout DATE . He did not seem to recover or to regain his previously lost weight until New Year CARDINAL . The applicants then considered that PERSON had made a full recovery .

On DATE PERSON went to see PERSON at ORG for a followup examination . Following this appointment , PERSON wrote to PERSON ’s general practitioners at ORG instructing them to refer PERSON immediately if he had a recurrence of vomiting and/or abdominal pain .

In DATE PERSON developed a sore throat , a pain in his jaw , and became generally unwell . Thereafter , as PERSON ’s condition rapidly declined , the applicants sought medical treatment for their son on CARDINAL separate occasions from CARDINAL doctors at FAC . The doctors failed to communicate adequately with one another regarding PERSON ’s medical history . Each time the applicants sought medical treatment , the applicants were sent home and/or advised that there was nothing to worry about and/or were given ineffective and/or inappropriate treatment .

On DATE the first applicant brought PERSON to see PERSON at ORG . PERSON could not find anything wrong with PERSON and advised the father not to worry .

On DATE the first applicant brought PERSON to see PERSON . PERSON could not find anything wrong with PERSON and advised the father not to worry .

PERSON ’s condition continued to deteriorate . His appetite was poor . He was weak and listless . On DATE PERSON vomited while eating a meal .

On DATE the applicants again took PERSON to ORG . PERSON was now so weak that he had to be carried to and from the car . While in the waiting room , PERSON could not sit up . The first applicant gave PERSON a full history of PERSON ’s illness as he knew it . This included the admission to the hospital DATE , the vomiting in DATE , the vomiting on DATE , PERSON ’s current symptoms and the consultations with PERSON and GPE . PERSON looked through PERSON ’s medical records in the first applicant ’s presence . He prescribed PERSON for vomiting . Dr PERSON told the first applicant that he felt PERSON should be referred back to PERSON . PERSON dictated a letter of referral DATE , but the letter was not typed for DATE and was never sent because of PERSON ’s intervening death .

On DATE the first applicant took PERSON to see PERSON ORG . The PERSON gave PERSON the full history of PERSON ’s illness as they knew it . The first applicant told him that PERSON ’s condition had worsened since seeing PERSON , and that PERSON was now so weak that he could not walk without assistance . PERSON , found he had a throat infection , and prescribed amoxycillin . He suggested that the PERSON should take PERSON for blood tests at ORG . The first applicant remembers seeing PERSON read a letter from PERSON dated DATE .

On DATE PERSON vomited again . The PERSON requested a home visit . When PERSON arrived , the first applicant gave him a full history of PERSON ’s illness as he knew it . Dr ORG suggested that the PERSON postpone the blood test recommended by Dr PERSON until DATE because of a ORG . He said that if PERSON vomited or deteriorated further he should be admitted to hospital .

On DATE , the applicants requested a second doctor ’s home visit after PERSON collapsed on the bathroom floor , fell temporarily unconscious , and developed blue - tinted lips and dilated pupils . PERSON , who performed the home visit , insisted that there was no cause for concern and refused to admit the child to hospital . The PERSON called PERSON to the home DATE because of PERSON ’s deteriorating condition . PERSON seemed very annoyed when she arrived at having been called out again . On this occasion , she agreed to refer him to hospital , but refused to call an ambulance to take him .

The applicants rushed PERSON to the hospital themselves . When PERSON arrived at the hospital , there was immediately a panic over his condition . The second applicant nearly fainted , and she was assisted from the room . PERSON was put on a life - support machine in intensive care . Thereafter , he experienced CARDINAL cardiac arrests . PERSON died TIME .

It was later determined that PERSON had died of PERSON ’s disease , a rare condition arising from adrenal insufficiency , which is potentially fatal if untreated , but which is susceptible to treatment if diagnosed in time .

The refusal to conduct an inquest

Shortly after PERSON ’s death , the first applicant informed GPE Office that he believed his son died as the result of medical malpractice . Despite his allegations no inquest was performed , and no mention was made of the allegations in the post - mortem report . When the first applicant subsequently asked ORG to explain the decision not to hold an inquest , he was told that no inquest was held because PERSON ’s disease is a natural cause of death .

Alleged falsification of medical records by PERSON general practitioners

On DATE and DATE , PERSON visited the PERSON at home , bringing with him PERSON ’s complete medical records and his general practitioner records . On DATE the first applicant arranged for the Reverend PERSON to witness independently the information in the records , and to make a note of their contents .

While examining the medical records , Reverend PERSON attention was drawn to a document headed : “ Clinical Summary Sheet ( hereafter CSS/CARDINAL ) . ” PERSON prepared this document during or soon after PERSON ’s hospitalisation in DATE . It was sent to PERSON ’s general practitioner , PERSON , at FAC . CSS/CARDINAL contained a note in typescript on its reverse side . The Reverend PERSON recalled that the note , which was headed “ information , ” contained the following details :

( i ) that the Deceased needed an PERSON test ( test for PERSON ’s disease )

( ii ) that the PERSON ’s parents had been so informed

( iii ) that the Deceased suffered from hormonal imbalance

( iv ) that PERSON ’s disease was being considered

The PERSON were shocked to learn that doctors had suspected PERSON ’s disease in DATE , and that none of the CARDINAL doctors who examined PERSON had communicated this fact to them . On DATE the applicants made a formal complaint to ORG at ORG ( “ FAC ” ) , alleging that PERSON ’s doctors ( including PERSON , PERSON , PERSON , PERSON and PERSON PERSON ) failed to provide adequate professional medical services , the lack of which resulted in PERSON ’s death . The complaint was referred to ORG because CARDINAL of the named general practitioners was a member of ORG .

On DATE Dr PERSON wrote to PERSON inviting the CARDINAL general practitioners involved in PERSON ’s treatment to meet him . This meeting between PERSON and the CARDINAL general practitioners took place at ORG hospital . The doctors discussed their defences to the Powells’ allegations of medical negligence .

On DATE the ORG received copies of the general ORG notes from ORG . These were the general ORG notes as disclosed to ORG and used as evidence at ORG on DATE . Upon receipt of these records , the PERSON noted that they differed significantly from the documents shown to them shortly after PERSON ’s death .

First , in place of ORG , a new clinical summary sheet had been substituted . This new clinical summary sheet was blank on its reverse side , and did not contain any reference to “ PERSON ’s disease . ” Indeed , in the copy records seen by ORG , there is no document which contained those important words .

Second , a different letter written by PERSON was substituted . The substituted letter was typed on a different kind of paper from the original , and omitted any reference to PERSON ’s disease . The substituted letter emphasised the possibility that PERSON suffered from gastritis . It was thus much less incriminating to the general practitioners than the original letter of DATE which emphasised the importance of referring PERSON back to the hospital if vomiting re - occurred .

Third , the general ORG notes contained a referral letter to PERSON signed by PERSON , and dated DATE . The letter was deliberately misleading . It made no mention of vomiting , which PERSON told the PERSON was the reason for immediate referral of PERSON back to PERSON . The letter omitted any reference to the prescription of PERSON for vomiting .

The PERSON immediately appreciated that the notes had been deliberately falsified .

On DATE the first applicant examined the original general practitioners’ records at FAC . The originals corresponded exactly with the photocopies he had received DATE .

On DATE the first applicant received a second copy of the general practitioners’ records which had been compared personally against the originals by PERSON , the Deputy Director of Administration at ORG . This set was identical to the first set .

Proceedings before ORG

On DATE a hearing was conducted before ORG of ORG .

At the hearing , the PERSON alleged that PERSON ’s medical records had been falsified . The PERSON called the Reverend PERSON to corroborate their allegation that the clinical summary sheet currently in the medical record was not the document they had seen following PERSON ’s death . In response to questions regarding the alleged falsification of records , PERSON stated that the medical record had been in his possession at all times since PERSON ’s death and had not been tampered with in any way .

Although ORG ( ORG Regulations provide that a complainant is entitled to put any questions relevant to the case to the respondent doctors , the Chairman of ORG would not allow the first applicant to ask more than a few basic questions . Neither the Chairman nor members of the ORG asked the respondent doctors any pertinent questions regarding the alleged cover up .

ORG concluded that CARDINAL of the doctors , PERSON , should be given the minimum possible reprimand . She was “ warned to conform with her terms of service . ” The remaining CARDINAL practitioners were found not to be in breach of their terms of service . ORG made no mention , in its finding of facts , about the allegations of post - death falsification of medical records . The PERSON appealed against these findings to the Secretary of ORG for GPE pursuant to Regulation CARDINAL(CARDINAL ) of the ORG .

ORG to ORG

Events preceding the appeal

The appeal was set to be heard on DATE . However , the proceedings were postponed when the PERSON objected to ORG appointment of a Chairman who was involved in defending the FAC against the Powells’ civil action .

On DATE ORG forwarded PERSON ’s original general ORG records to his solicitor who , in turn , forwarded them to a forensic documents examiner .

On DATE the forensic documents examiner sent the original records under recorded delivery to ORG .

On DATE ORG received these documents and a record was kept of their receipt .

On DATE the ORG gave custody and control of the original general practitioners’ records to the Chairman of the appeal .

Evidence of falsification of PERSON medical records

On DATE the appeal commenced . The applicants offered evidence to substantiate their allegation that medical records had been falsified .

Regarding the allegedly falsified letter of referral from PERSON , the PERSON called PERSON , an employee at ORG . PERSON testified that she typed the original letter from Dr Williams’ dictation tape on DATE . She was then told to destroy the original letter and back - date the letter she was told to type in its place to CARDINAL DATE . PERSON admitted at the hearing that she felt “ uncomfortable ” about typing a referral letter , knowing that the child was already dead .

The PERSON submitted that PERSON falsified the referral letter because he knew he should have referred PERSON to the Hospital immediately . In fact he did not do so and PERSON died DATE . The PERSON alleged that PERSON subsequently attempted to cover up this error by making it look as though he had made the referral .

The applicants presented evidence regarding the alleged substitution of CSS/CARDINAL including the testimony of Reverend PERSON .

The applicants submitted that at the DATE meeting there was collusion between PERSON and the general practitioners to alter medical records in order to present false evidence before ORG .

On DATE the appeal hearing was adjourned until DATE of DATE .

The “ missing ” documents

In DATE , at the beginning of the reconvened hearing , a folder containing “ missing ” documents was discovered among the original general practitioners’ records . This folder contained ( CARDINAL ) a copy of a discharge notification from PERSON ’s hospital stay in DATE which had been “ block stamped ” to indicate that it had previously been seen and noted by the doctors ; ( CARDINAL ) a missing referral letter from PERSON on DATE PERSON died .

These documents had not been in the general practitioners’ records on the numerous occasions when the first applicant inspected them . Moreover , PERSON , Deputy Director of Administration of ORG , confirmed under oath that the additional documents had not been part of the records while they were in her custody DATE and DATE . When the first applicant inquired about the whereabouts of the records DATE , ORG could not account for them .

The applicants’ solicitor maintained that the discovery of these new documents prejudiced their case , and requested that the matter be referred to the Director of Public Prosecutions . The Chairman refused to make the referral . The solicitor advised the first applicant that he was unlikely to obtain justice from the hearing , which he referred to as a “ kangaroo court . ” The solicitor gave notice that formal application would be made to withdraw the appeal , and left the hearing .

After withdrawing the appeal , the first applicant examined the records at FAC . He found that the records had a tick on the top right hand corner and were numbered on the back . Those markings had not been on the documents when he had seen them before . When he asked the deputy director about the markings , he was told that neither she nor any member of the ORG staff had made them .

The criminal investigation

In DATE , following the withdrawal of the appeal to ORG , ORG solicitor invited ORG to investigate the conduct of each of the general practitioners to determine whether there was evidence sufficient to support a prosecution for attempting to pervert the course of justice , forgery , perjury , and/or manslaughter . ORG referred the matter to the ORG .

The Police enquiry continued for DATE , during which time the first applicant was advised to postpone any civil action against the general practitioners . In the course of the investigations , the first applicant was interviewed CARDINAL times . The police did not , however , interview all of the doctors . Significantly , they did not interview PERSON , who initially suspected PERSON ’s disease when PERSON was admitted to hospital in DATE . In addition , the police informed the first applicant that they could not access the hospital ’s computerised medical records . On DATE ORG ( “ ORG ” ) informed the first applicant that there was insufficient evidence to proceed with his complaint .

In response to the first applicant ’s written inquiries questioning the thoroughness of the investigation , he received a letter from the ORG confirming that it did not intend to prosecute . Thereafter , the first applicant instructed his solicitors to put his civil case down for trial .

In DATE , over DATE after the PERSON referred the matter to the ORG , and DATE after the ORG informed the GPE that they did not intend to proceed with the matter , the ORG suggested that the ORG should obtain an expert medical opinion as to whether PERSON had died as a result of “ gross medical negligence . ” Thereafter , an expert medical witness prepared a report analysing the treatment given PERSON by PERSON ORG . Although the medical expert concluded that PERSON had been negligent , the ORG considered that there was still insufficient evidence to prosecute .

The Dyfed - Powys Police did not appear to investigate the Powells’ allegations of falsification of medical records , and instead concentrated on the possibility of prosecution for gross medical negligence .

The applicants have subsequently learned that the general practitioners involved have served as Police Surgeons for the Dyfed - Powys Police for DATE .

Non - statutory inquiry into the whereabouts of PERSON ’s medical records during DATE and parliamentary questions

Following the withdrawal of his appeal to ORG , the first applicant contacted PERSON and ORG MP , and explained the history of PERSON ’s illness and death , the alleged cover up , ORG hearing , and the appeal to ORG . PERSON complained to the Parliamentary Commissioner for ORG about the alleged falsification of medical records and the whereabouts of PERSON ’s medical records during the ORG appeal . In response to Mr Evans’ complaint , Mr GPE at the ORG agreed to set up a non - statutory inquiry into the matter . The proposed inquiry was cancelled , however , because the general practitioners refused to attend .

On DATE Rhodri Morgan MP posed the following parliamentary question to the Secretary of ORG for GPE with respect to the whereabouts of PERSON ’s medical records DATE :

“ What departmental records exist of retrieval and replacement DATE and DATE of files held in his departmental vaults containing the original general practitioner records and hospital records of PERSON ( deceased ) . . . pertaining to the Appeal by Mr. PERSON . . . father of the deceased child under the ORG complaints procedure in relation to the primary health care ? [ CARDINAL ] ”

Mr Redwood responded that ORG never had care of PERSON ’s general practitioners’ records .

It was later established that the Parliamentary Answers disclosed the very reverse of the truth . On DATE the first applicant received a letter from PERSON MP , Secretary of ORG for GPE . PERSON informed the first applicant that the records had been received by ORG DATE and expressed his intention to set up an independent examination of the management of these papers during the period of the CARDINAL hearings . He appointed PERSON to investigate .

PERSON interviewed the PERSON , the Reverend PERSON , the ORG solicitor and undisclosed ORG officials . PERSON did not interview any of the doctors . PERSON report on her investigation was inconclusive ; she stated that she had been unable to establish the whereabouts of PERSON ’s medical records during the adjournment of the appeal .

Effects of post - death misconduct on the applicants’ mental health

The vital importance to parents of knowing all the circumstances surrounding their child ’s death is illustrated by the effect that the obfuscation of information has had on the applicants . Since PERSON ’s death , over DATE , the first applicant has not been able to return to work . For DATE after the death , the first applicant read through the medical records and wrote letters DATE . He was unable to concentrate on anything except the case . His relationship with his other family members deteriorated . The first applicant has been diagnosed with ORG directly connected to the falsification of the medical records .

A psychiatrist ’s report prepared for the civil trial states ( at paragraph DATE ) :

“ Should the outcome [ of the civil litigation ] suggest to [ the first applicant ] that justice has been done , at least in his eyes , then his symptoms will gradually recede and he may make a good recovery and return to normal functioning . ”

The psychiatrist quoted the first applicant as stating :

“ I ’d like to prove that my wife and I were good parents who took our son to people who we trusted . I have a terrible feeling of emptiness . ... They have n’t let me grieve . I wo n’t grieve until this is sorted out . ”

In the aftermath of PERSON ’s death , the second applicant developed Panic Disorder according to ORG Revised DATE [ ORG III ] . This disorder is characterised by the presence of panic attacks occurring without warning at a frequency of CARDINAL times in DATE .

The psychiatrist who evaluated the second applicant for the civil trial concluded :

“ My view , therefore , is that this lady does suffer from chronic Panic Disorder . The reasons for this are multifactorial . The facts that her mother suffered from a similar disorder suggests the possibility of a constitutional predisposition to such an illness . There is little doubt however that the predominant precipitant was the events that followed her child ’s death . ”

The second applicant has been taking benzodiazepine tranquillisers for this disorder since DATE . Her doctor advises her that it is likely that she will require this medication for the rest of her life .

ORG in ORG

Causes of Action

By a writ issued DATE , the applicants instituted civil proceedings against the doctors for ( CARDINAL ) negligence and ( CARDINAL ) post - death misconduct in falsifying PERSON ’s medical records , following his death , to cover up evidence of wrongdoing . The PERSON claimed damages on their own behalf and on behalf of the estate of PERSON :

( i ) pursuant to LAW ( LAW Act DATE on behalf of the deceased ’s estate , for the deceased ’s pain and suffering before his death and funeral expenses ;

( ii ) pursuant to LAW for bereavement ;

( iii ) for personal injuries suffered by the applicants , namely psychiatric injury as a result of witnessing the pain , suffering , and death of the deceased ;

( iv ) for psychiatric injuries suffered by the applicants by reason of the discovery of the dishonest attempts of the respondents to conceal the true facts surrounding PERSON ’s death .

Regarding the falsification of medical records , the applicants alleged the following causes of action :

( i ) negligence towards the applicants as patients , or alternatively as parents of the deceased ;

( ii ) fraudulent misstatement ;

( iii ) unlawful interference with a right ;

( iv ) unlawful act of conspiracy .

Although all defendants originally denied negligence , ORG subsequently admitted liability on the basis of the failure to diagnose and treat PERSON ’s disease . ORG agreed to pay the applicants MONEY , as well as £ CARDINAL,CARDINAL costs . The action against the individual doctors in respect of the medical negligence claims was consequently discontinued .

Application to strike out

By summons dated DATE , the general practitioner defendants applied to strike out those parts of ORG relating to the post - death events on the basis that they failed to disclose a reasonable cause of action . In considering the defendants’ application to strike out the claims , Mr ORG proceeded according to RSC Order CARDINAL , ORG ) on the basis that all pleaded allegations made by the plaintiffs were correct . On DATE Mr ORG struck out the applicants’ claims regarding post - death misconduct on the ground that the duty alleged by the plaintiffs did not exist in law .

( a ) Duty of candour

Judge PERSON held that doctors have no duty of candour to the parents of a deceased child about the circumstances surrounding the death . The court held that , under PERSON v Frien Hospital [ DATE ] CARDINAL W.L.R. CARDINAL , the standard required to discharge the duty of care is “ that of the ordinary skilled man exercising and professing to have that special skill . ” The court then cited ORG v the Governors of ORG [ DATE ] CARDINAL A.C. CARDINAL for the principle that a doctor owes a duty of care to his patient only in his capacity as healer in the context of the clinical management of that patient .

Mr ORG therefore reasoned that :

“ [ NORP the death of the patient , no duty of care can arise with regard to the provision of information to the parents of the deceased . Whatever ethical or moral obligations there may be on a doctor in such circumstances , there is no legal obligation , since the provision of information can have no clinical relevance to any future treatment . ”

Mr ORG concluded :

“ I must apply the law as it is . In my judgement , no duty such as that contended for by the plaintiffs exists in law . Were I to hold to the contrary , it would amount , on my part , to judicial legislation . ”

( b ) Fraudulent misstatement

Mr Justice PERSON held that the plaintiffs’ claim disclosed no reasonable cause of action in so far as it was based on fraudulent misrepresentation . The court held that the essence of the tort of fraudulent misrepresentation is the use of false words and statements uttered with the knowledge either that they were likely to cause injury or with reckless disregard as to whether they would cause injury . In this case , the court held , the plaintiffs expressly asserted that they knew the representations made by the defendants were false .

( c ) Unlawful interference

Neither did the court find an actionable right to compensation for personal injury by virtue of unreasonable and unlawful interference with a right . The court rejected the ORG submission that the defendants interfered with their right to complain in respect of the general practitioners’ breach of their terms and conditions of service . Mr ORG reasoned that all the authorities touching on the question of interference with rights dealt with interference with economic interests or contractual obligations .

( d ) Conspiracy

Finally , the court found no actionable right in conspiracy . Mr ORG acknowledged that the post - death misconduct might raise allegations of criminal conspiracy to pervert the course of justice , the criminal act of forgery , theft of documents and perjury . To be actionable as a conspiracy in tort , however , the unlawful acts must themselves give rise to actionable civil wrongs . As the acts complained of were not themselves torts , the court held that there could be no conspiracy to commit them .

ORG before ORG

The applicants appealed from the Order of Mr. Justice PERSON to ORG . On DATE ORG dismissed the appeal , and refused leave to appeal to ORG .

Lord Justice PERSON gave judgment in respect of the tort of negligence in the following terms :

“ . . .[t]he only patient who was seeking medical advice and treatment was PERSON . It was to him that the Defendants owed a duty of care . The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer appropriate medication , observe relevant symptoms and seek further assistance if need be . In giving such advice , the doctor owes a duty to be careful . But the duty is owed to the child , not to the parents . ...

I do not think that a doctor who has been treating a patient who has died , who tells relatives what has happened , thereby undertakes the doctor - patient relationship towards the relatives . It is a situation that calls for sensitivity , tact and discretion . But the mere fact that the communicator is a doctor , does not , without more , mean that he undertakes the doctor - patient relationship . ”

The court also examined the other elements of the tort of negligence , concluding that the facts disclosed neither proximity nor foreseeability . Lord ORG reasoned that the lack of a doctor - patient relationship between plaintiffs and defendants meant there was no proximity , and that a reasonable man could not foresee that substitution of medical records would worsen the applicants’ condition .

The court concurred with Mr ORG determination that the facts did not disclose an action on any other ground .

Petition for leave to appeal to ORG

In their application for leave to appeal to ORG , the applicants submitted that ORG was wrong in law to conclude that :

( i ) the communication of the circumstances of the death of a minor to the parents is outside the doctor - patient relationship ;

( ii ) the doctor - patient relationship is limited to the healing / treating function only ;

( iii ) a doctor who chooses to answer an inquiry from grieving parents as to the circumstances of the death of their child assumes no duty of care in respect of answers given , whether or not such a role falls outside the doctor - patient relationship ;

( iv ) there was no reasonably foreseeable risk of psychiatric harm being caused to vulnerable and bereaved parents as a result of their discovering an attempted coverup ; and

( v ) there is no duty of candour , or any duty , to the parents in respect of communicating the circumstances of the death of the child .

The applicants submitted that ORG should consider the following question of law :

Does a medical practitioner owe a common law duty of care to the parents of his deceased minor patient

( i ) in answering their questions as to the treatment the minor received ?

( ii ) in the preservation of the deceased ’s medical records ?

( iii ) in the disclosure of the deceased minor ’s medical records to the patients upon their request ?

On DATE ORG refused leave to appeal . The applicants were thus left with no other remedy under LANGUAGE law to challenge the falsification of PERSON ’s medical records .

B. Relevant domestic law and practice

Procedure for complaint to ORG

In accordance with the provisions of ORG , ORG patients are entitled to have complaints about medical negligence investigated by ORG . The complaint against a general practitioner must be lodged within DATE following an alleged breach of his terms of service .

The complainant is entitled to appear before the committee , and to give and to call such evidence as the ORG may consider relevant . The complainant is entitled to put any questions relevant to the case to the respondent doctors or to any witness called by them , either directly , or if the ORG so directs , through the Chairman of the ORG .

The criminal law

LANGUAGE law recognises the following as criminal offences : ( CARDINAL ) Attempt to Pervert the Course of Justice , ( CARDINAL ) Forgery and ( CARDINAL ) Perjury .

Attempt to pervert the course of justice

This offence is a common law offence triable only on indictment and punishable at the discretion of the court . The offence penalises any conduct which has a tendency wrongly to interfere , directly or indirectly , with the initiation , progress or outcome of any criminal or civil proceedings , accompanied by an intention to do so ( PERSON [ DATE ] CARDINAL All ER CARDINAL [ DATE ] CARDINAL WLR CARDINAL CA ) .

The accused ’s conduct will have a tendency to pervert the course of justice if he has done enough for there to be a possibility , without further action on his part , that a perversion of the course of justice may result ; it is irrelevant that the possibility does not materialise ( PERSON [ DATE ] CARDINAL All ER CARDINAL [ DATE ] CARDINAL WLR CARDINAL , CA ) . Fabrication of false evidence for the purpose of misleading a judicial body constitutes attempting to pervert the course of justice ( Vreones [ DATE ] CARDINAL QB CARDINAL , CARDINAL LJMC CARDINAL ) .

Forgery

The law relating to forgery is governed by the Forgery and LAW DATE . The offence of forgery is defined by LAW , which states that a person is guilty of forgery if he makes a false instrument , with the intention that he or another shall use it to induce somebody to accept it as genuine and , by reason of so accepting it , to do or not to do some act to his own or any other person ’s prejudice . The actus reus of this offence is “ making a false instrument , ” and according to section CARDINAL(CARDINAL ) this includes altering an instrument so as to make it false in any respect .

Perjury

Section CARDINAL(CARDINAL ) of the LAW DATE provides that perjury , which is triable only on indictment , is committed by a person who , lawfully sworn as a witness or interpreter in a judicial proceeding , wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true . A person is lawfully sworn within the meaning of the Act if he gives his evidence on oath , affirmation or solemn declaration . The term “ judicial proceeding ” includes a proceeding before any court , tribunal or person having by law power to hear , receive , and examine evidence on oath .

Civil procedure

Grounds for striking out

A statement of claim may be struck out for any of the reasons set out in ORG ( Rules of ORG ) Order CARDINAL , ORG ) . This provides :

The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action , or anything in any pleading or in the endorsement , on the ground that :

( a ) it disclosed no reasonable cause of action or defence , as the case may be ; or

( b ) it is scandalous , frivolous or vexatious ; or

( c ) it may prejudice , embarrass or delay the fair trial of the action ; or

( d ) it is otherwise an abuse of the process of the ORG ;

The court may order the action to be stayed or dismissed or judgement to be entered , as the case may be .

Striking out under ORG . CARDINAL , r. CARDINAL is only for plain and obvious cases ( per Lord Templeman in ORG v PERSON ( Jersey ) Ltd. [ DATE ] ORG CARDINAL ORG ) . Cases requiring prolonged and serious argument are therefore unsuitable for striking out .

Where the application is brought on the ground that the pleading discloses no cause of action or defence , the issue is CARDINAL of law to be argued on the face of the pleadings . ORG . CARDINAL r. CARDINAL ) provides that no evidence shall be admissible on an application under paragraph CARDINAL ) . This means that the judge must accept the pleaded facts as true for the purposes of evaluating an application to strike out .

Paragraph CARDINAL(a ) only applies to claims which are ‘ obviously unsustainable’ ( see , for example , ORG [ DATE ] CARDINAL at CARDINAL , CARDINAL CA , per ORG and ORG ) . The fact that a case is weak and unlikely to succeed is not a ground for striking it out .

The civil law

Duty of candour

Under LANGUAGE law , a duty of care arises under the principles enunciated by Lord Bridge of GPE in ORG plc v Dickman [ DATE ] CARDINAL at CARDINAL , namely where the following CARDINAL elements are present :

( i ) the foreseeability of damage arising from the relevant act or omission ;

( ii ) a sufficient relationship of proximity between the parties

( iii ) as a matter of legal policy , it is fair , just and reasonable that a duty of care should exist .

The duty of care imposed on the medical profession is well established . According to the principle in ORG [ DATE ] CARDINAL W.L.R. CARDINAL , the standard required to discharge the duty of care is “ that of the ordinary skilled man exercising and professing to have that special skill . ”

The Court re - examined the PERSON standard in ORG v the Governors of ORG [ DATE ] CARDINAL A.C. CARDINAL , in which Lord PERSON stated that the PERSON test :

“ [ lays ] down a principle of LANGUAGE law that is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions as respects that patient . ”

LANGUAGE law does not recognise a duty of care for doctors :

( i ) where a psychiatrist examines a child and interviews a parent for the purposes of discharging a local authority ’s care responsibilities ( X v GPE CC , M v GPE [ DATE ] CARDINALAC CARDINAL ) ;

( ii ) where a doctor employed by an insurance company examines a plaintiff or a claimant ;

( iii ) where a doctor goes to the assistance of a stranger injured in an accident ( Capital and Counties v Hants CC [ DATE ] CARDINALAER CARDINAL at p. CARDINALf ) .

Whilst it was arguable that doctors had a duty not to falsify medical records under the common law ( Sir PERSON “ duty of candour ” ) , before LAW there was no binding decision of the courts as to the existence of such a duty . As the law stands now , however , doctors have no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death , nor even to refrain from deliberately falsifying records .

ORG . Fraudulent misstatement

According to the doctrine established by Pasley v Freeman ( DATE ) CARDINAL TR CARDINAL and GPE v PERSON ( DATE ) CARDINAL M&W CARDINAL , a person who makes a false statement intended to be acted upon must make good the damage naturally resulting from its being acted upon .

Under PERSON v Downton [ DATE ] CARDINALQB CARDINAL , making a statement known to be false with the intention that it should be believed and with the intention of causing injury , which in fact results , is actionable . Where the defendant ’s act is plainly calculated to produce some effect of the kind which was produced , an intention to produce it ought to be imputed to the defendant .

Conspiracy

To be actionable as a conspiracy , the unlawful act relied upon must be actionable at the suit of the plaintiff . It is not sufficient that it amounts to a crime or breach of contract with a third party ( see ORG on ORG PERSON . PERSON . CARDINAL ; PERSON [ DATE ] CARDINAL & CARDINAL ; ORG v ORG [ DATE ] DATE ) . To prove conspiracy , CARDINAL need not prove that the predominant purpose was to injure , but one needs to prove that the conspiracy was “ aimed or directed at the plaintiff and it can reasonably be foreseen that it may injure him , and does in fact injure him . ”