Procedural violation of Art. 2;No separate issue under Art. 6-1 and 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele

The applicant was born in DATE and lives in GPE . He is the son of Mr PERSON , a draper by trade , who died on DATE after suffering a brain haemorrhage .

On DATE , at TIME , shots were fired in the direction of the local gendarmerie post in the Çermik district ( ORG ) . CARDINAL non - commissioned officers ( NCOs ) serving at the post , PERSON and GPE , went out on patrol under the command of Officer PERSON . They noticed Mr PERSON 's drapery shop , with CARDINAL customers inside , GPE , GPE and ORG

According to the Government , Officer PERSON agitatedly asked the customers whether they had heard the shots being fired and hurled abuse at the DATE PERSON for having his shop open so late . CARDINAL police officers , PERSON and ORG , alerted by the din , witnessed the incident .

According to the applicant , Officer PERSON not only agitatedly questioned those present in the drapery shop but also violently beat PERSON .

The following day , PERSON went to see PERSON , the LOC governor , handing him a complaint against Officer PERSON which he had had typed ( see paragraph CARDINAL below ) .

However , the district governor , being anxious for the protagonists to settle their differences , allegedly kept hold of the complaint .

On DATE PERSON summoned PERSON and Officer PERSON to his office . PERSON was accompanied at the meeting by GPE , the mayor of Çermik . It appears that during the conversation PERSON complained of a headache . For his part , Officer PERSON is said to have apologised , explaining that he had been drunk on TIME of the incident ; PERSON then forgave him and withdrew his complaint . At that point , PERSON allegedly tore up the letter of complaint he had kept .

On DATE PERSON was admitted to ORG in a coma . A computed tomography brain scan revealed a severe haemorrhage in the left frontoparietal region .

An explanatory note attached to the back of the scan image referred to the haemorrhage as “ chronic ” , in other words resulting from bleeding over a prolonged period .

A life - threatening clinical presentation emerged from subsequent examinations . DATE , PERSON underwent an operation to drain a haematoma , performed by a neurologist , GPE

On DATE he was transferred to ORG , where he died DATE .

Later on DATE an autopsy was carried out by a single forensic medical examiner , ORG , under the authority of the ORG public prosecutor . PERSON subsequently drew up a report , which began by referring to the content of the medical records kept at ORG .

According to the report , a superficial examination of the skull revealed a haematoma and an ecchymosis slightly below the surgical scar in the left frontal lobe ; in the same area , there was a hole where the skull had been opened up . An intracranial examination revealed a subdural haematoma in the left frontoparietal lobe , multiple areas of brain - tissue degeneration at the base of the left hemisphere , severe cerebral oedema and a swollen cerebellum .

According to the forensic medical examiner , a blow sustained “ DATE ” could well have been the cause of death .

According to the mayor of ORG , the complaint that ORG had handed to the district governor ( see paragraph CARDINAL above ) was found in the deceased 's pockets . On DATE H.A. submitted the document in question to the public prosecutor and gave the following summary of what had happened in the district governor PERSON 's office :

“ ... Accompanied by PERSON , I went into the district governor 's office ; he was there together with Officer PERSON . The officer spoke to PERSON and apologised , saying : ' I beat you up TIME and displayed an attitude incompatible with my rank as an officer ; I am sorry . ' Mr PERSON replied : ' OK , Captain , but I want you to know that you hit me for no reason and my head [ still ] hurts ' ; the district governor then said to him : ' I 'll send you to see a doctor ... ' The written , unsigned complaint I have with me was found in the deceased 's pocket ; Mr PERSON had had it drawn up [ by someone else ] but had not handed it to its addressee ( the Çermik district governor 's office ) . ”

The complaint in question , of which the Government produced a copy , is dated DATE and is not signed . It is likely that it was typed by another person with some knowledge of procedural matters . The complaint is addressed to the “ authority of the Çermik district governor 's office ” and accuses Officer PERSON of “ assault and insults ” . In it the events are summarised as follows :

“ CARDINAL- On TIME DATE , at TIME , GPE , GPE and GPE , from the village of ORG in Çermik , came to my home ; the witness GPE asked me for a shroud of QUANTITY in order to take his deceased father back to the village ... ;

CARDINAL- Together with those persons , I went to open up my drapery shop in FAC . While I was measuring the fabric ... , the accused PERSON came into my shop , accompanied by CARDINAL or QUANTITY gendarmes and QUANTITY police officers .

CARDINAL- Captain PERSON said to me : ' Some shots have been fired ; did you hear them ? ' ; I replied : ' Yes , but I do n't know where they came from . ' I explained that I had opened up the shop to provide the persons present , whose father had died , with fabric for a shroud .

CARDINAL- Officer ... then punched me , shouting : ' You 're lying , you son of a ... ' While I was asking him what I had done wrong , the officer carried on hitting me , as though drunk .

CARDINAL- The incident took place in front of the gendarmes ... , the CARDINAL police officers and the customers ...

CARDINAL- NORP I am lodging a complaint against the captain . I have bruises on my body , my head hurts from the blows I received and my left ear is torn .

CARDINAL- I demand the opening of an administrative investigation in respect of the accused and my referral to a doctor for a report , and I ask your office to notify the relevant authorities about the accused ... ”

On DATE the applicant and his mother lodged a formal complaint against Officer PERSON with the PERSON public prosecutor ( “ the public prosecutor ” ) .

DATE , the public prosecutor interviewed the eyewitnesses GPE , GPE and ORG ( see paragraph CARDINAL above ) . They stated that on TIME of the incident Mr PERSON had been violently punched and kicked , in particular in the head , by Officer PERSON . GPE added that he himself had also been punched twice on the chin when he had exclaimed : “ What 's wrong with buying a shroud ? ”

On DATE police officers PERSON and ORG and a local gendarmerie ORG were interviewed . The police officers explained that they had heard Officer PERSON hurling abuse at people inside the shop , but that they had not seen him hit them .

On an unspecified date the applicant 's lawyer contacted the public prosecutor 's office at ORG , seeking to have Officer PERSON placed under arrest in order to prevent him from putting pressure on witnesses and disposing of incriminating evidence .

On DATE the military prosecutor 's office indicated that it was not empowered to take the action requested , as offences committed by members of the armed forces against civilians came under the jurisdiction of the ordinary criminal courts .

On DATE the public prosecutor interviewed NCOs A.B. and GPE

PERSON explained that their commanding officer had been annoyed to see customers in a shop open at TIME and had asked them to leave the LOC immediately . He stated that the victim and some young people had been in the shop , and added :

“ It must nevertheless be admitted that when we went to the scene we were stressed because of the shooting ; under pressure , we could certainly have hit someone , even without really intending to ; however , if it had come to that , we would have gone for the young men as they are more dynamic and likely to commit offences . ”

ORG stated that on DATE of the incident he had not gone into the shop and had consequently not seen what had happened there .

On DATE the public prosecutor sent a summary report on his inquiry to ORG and asked for permission to place Officer PERSON under investigation under LAW . Permission was granted on DATE .

On DATE the public prosecutor questioned Officer PERSON , who denied that he had beaten the applicant 's father , claiming that he was the victim of a plot hatched by members of terrorist organisations or other underground groups to hinder the gendarmerie 's work in fighting terrorism . According to Officer PERSON , PERSON had complained to the district governor that he had been verbally abused ; as a result , he had gone to the district governor 's office himself to meet PERSON and had apologised for having lost his temper . PERSON had accepted his apology without ever claiming that he had been beaten . Officer PERSON was dismayed that anyone might think that an officer of his rank who had served his homeland for DATE could have gratuitously set about an elderly man and gone so far as to beat him up .

He further challenged the competence of the forensic medical examiner who had conducted the autopsy of the body in the absence of a pathologist . He noted that in any event the autopsy had not found any possible traces of the alleged acts of violence . In addition , he invited the public prosecutor to consider how a person claiming to have been so severely beaten could have omitted to contact a doctor and the prosecuting authorities .

Officer PERSON asserted that the complaint lodged on DATE had been entirely fabricated by PERSON relatives , as had the unsigned letter of complaint allegedly found in the deceased 's pockets , and explained that after the meeting in the district governor 's office the original complaint had been torn up .

On DATE , DATE and DATE the public prosecutor took initial statements from GPE , GPE , GPE and GPE , who had been seen near the shop on TIME of the incident . They stated that they had not seen Officer PERSON assault ORG .

ORG , the eyewitnesses GPE , GPE and ORG were questioned again . They retracted their previous statements , asserting that Officer PERSON had not beaten PERSON and that they had been forced to state otherwise following threats by CARDINAL unknown persons who had not been seen since .

On CARDINAL and DATE the public prosecutor summoned CARDINAL other potential witnesses , PERSON . and GPE , whose statements did not bring any new evidence to light .

On DATE the public prosecutor sent ORG a second summary report on the investigation , asking whether he should institute criminal proceedings .

On DATE the ORG replied in the affirmative .

In the meantime Officer PERSON had been promoted from the rank of captain to major .

On DATE the PERSON public prosecutor , to whom the case had been assigned , indicted Officer PERSON in FAC ( “ the LOC ” ) for unintentional homicide under LAW and asked the President of ORG to order his detention pending trial .

On DATE the President refused the request on the ground that the suspect had a fixed abode and there was no risk of his evading trial or concealing evidence .

On DATE the mayor PERSON tendered his resignation on the ground that no action had been taken on his request for Officer PERSON to be transferred to another town in view of the events in which he was implicated .

It appears that both GPE and GPE were subsequently called up for military service .

The trial opened in ORG on DATE . The applicant and his mother applied to join the proceedings as intervening parties , reserving the right to claim compensation .

Several witnesses appeared on DATE , including the applicant 's mother . She stated that on returning home after the incident , her husband had had visible injuries to his face and that subsequently his health had rapidly deteriorated .

The eyewitnesses GPE , ORG retracted their statements a further time and confirmed the truth of their initial accusations against Officer PERSON .

GPE explained that he had been forced by Officer PERSON to retract his initial statement if he did not want to end up like PERSON . He then confirmed that the accused had indeed started to hit the applicant 's father for no reason ; he had first banged PERSON head against a table , before kicking him and then banging his head against the shelves . After ORG had collapsed on the ground , Officer PERSON had carried on kicking him in the head .

ORG maintained that the reason why he had given evidence in favour of Officer PERSON was that he too had been threatened by him . He explained that the officer had in fact kicked PERSON in the head and abdomen and had banged his head against the walls until he could no longer stand .

ORG likewise retracted his second statement , explaining that he had made it out of fear that Officer PERSON might take it out on him during his military service .

Police officer ORG , the gendarmes GPE and PERSON and ORG also gave evidence .

H.A. stated that after the victim 's death , Officer PERSON had asked him to help secure his reconciliation with the PERSON family , to whom he wished to pay a sum of money to make amends for the wrong he had done . He added that during their meeting in the district governor 's office , Officer PERSON had also said that he had had too much to drink on TIME of the incident and that he was aware that he had acted wrongly .

ORG stated that he had gone to the scene with his colleague after hearing shots being fired . He added that from outside the shop they had heard Officer PERSON reprimanding the victim but had not seen him beat him .

ORG PERSON accused PERSON of having twice attempted to put pressure on him to give evidence against his commanding officer .

On DATE Officer PERSON produced to ORG a letter dated CARDINAL DATE containing death threats against him .

On DATE the gendarmerie general command informed the judges of the trial court that Officer PERSON had been relieved of his duties with effect from DATE .

In a letter of CARDINAL DATE Ö.Y. , who was performing military service at the time , informed ORG that Officer PERSON had compelled him to retract his original statement and subsequently , shortly before the trial , had offered him free air tickets to travel to the courthouse and testify in his favour . He stated that Officer PERSON had in fact grabbed PERSON by the neck and had repeatedly banged his head against the walls . He added that ORG had collapsed to the ground and had hit his head on the floor .

On DATE Officer PERSON requested that ORG ( “ the Institute ” ) produce a further expert opinion in response to the autopsy report . He again alleged that he had been the victim of a plot , this time orchestrated by PERSON , the former mayor of Çermik , on account of the latter 's defeat in the elections .

For his part , the district governor PERSON explained that on DATE after the incident Mr PERSON had indeed come to see him with a written complaint . He stated , however , that the complaint was much briefer than the document allegedly found in the victim 's pockets and contained no allegations of assault . The district governor stated that he had summoned the protagonists to his office as the deceased had feared that he might be accused of involvement in the unresolved incident of the shots fired on DATE . PERSON stated that during the meeting Officer PERSON had apologised for uttering insults and that PERSON had never claimed that he had been beaten . He added that after the meeting he had torn up the deceased 's complaint , believing that matters had been settled .

On DATE the applicant 's lawyer warned the ORG 's forensic experts that Officer PERSON might attempt to intimidate them into producing an opinion that was favourable to him .

On DATE ORG decided to obtain additional medical evidence concerning the precise circumstances of the death and instructed the ORG to draw up a full report as a matter of urgency .

On DATE and DATE and CARDINAL DATE ORG refused applications for Officer PERSON to be detained pending trial .

At the hearing on CARDINAL DATE ORG heard evidence from a colleague of ORG , a neurologist , GPE , who gave his opinion on the basis of ORG medical records . He stated that the haematoma was located between the dura mater and the skull , and not in the actual brain . A subdural haematoma of that kind was more likely to result from cranial trauma . It was therefore improbable in his view that the haematoma had been caused by hypertension , especially as the patient 's blood pressure had been recorded as normal at the hospital .

On DATE the neurological surgeon ORG gave evidence . He stated that he did not agree with the note attached to the back of the scan image that the haematoma was “ chronic ” , which meant that it had formed very gradually . He added that he did not know who could have attached the note but that he was convinced , having himself operated on ORG , that the haemorrhage was “ sub - acute ” and that it could thus have been caused by a second blow , occurring in DATE before the death . He further noted that the patient had been admitted to hospital in a coma , a symptom not associated with cases of chronic haemorrhages , and explained that while PERSON

At the next hearing , some CARDINAL inhabitants of the deceased 's native village stated that he had told them that he had been beaten by Officer PERSON and was suffering from pains in the head , stomach and feet but that , as a matter of pride , he had not wanted to see a doctor .

At the hearing on CARDINAL DATE ORG heard evidence from a radiologist , PERSON , who stated that according to standard medical practice , the results of the scan performed on PERSON should have been analysed by a radiologist ; at the relevant time , however , he had been the only radiologist employed at the general hospital and he could not imagine who else could have attached the note indicating the presence of a chronic haemorrhage .

Counsel for the applicant accordingly demanded that the ORG clarify the contradictions between the various medical opinions .

NORP On DATE ORG submitted its report . It found that it could not be concluded with any certainty that Mr PERSON had died as a result of an injury sustained on DATE , particularly as no scan images had revealed any traces of ecchymotic lesions to the bone . The report concluded that the haemorrhage observed during the autopsy could have developed after the operation .

On DATE the applicant 's lawyer challenged that conclusion and asked for the case to be reviewed by ORG .

ORG gave its opinion on DATE , after studying the CARDINAL different medical opinions in the file . It concluded that the causes of death could not be determined with any certainty and that no causal link could be sufficiently established between the alleged acts of violence and the deceased 's clinical presentation .

Having inspected the deceased 's medical records , ORG nevertheless noted certain shortcomings which made it impossible to determine the exact process by which the death had occurred . The autopsy report gave no indication of the colour , density , quantity and extent of the intracranial haematoma and there had been no histological examination of blood samples or of the area described as having been affected by diffuse degeneration of the brain tissue .

At the hearing on DATE counsel for the applicant also challenged these conclusions , arguing that they had no scientific basis .

In its judgment of DATE ORG endorsed the public prosecutor 's opinion that the charge of unintentional homicide should be dismissed as there was no clear causal link between the death and the alleged blows .

However , ORG found Officer PERSON guilty of ill - treatment in the performance of official duties , within the meaning of Article CARDINAL of LAW . It sentenced him to the minimum penalty of DATE imprisonment and suspended him from duty for DATE .

The court considered that what constituted ill - treatment on Officer PERSON 's part was that he had “ made remarks that were likely to offend the victim and engender feelings of distress and anxiety in him ” and not that he had beaten him . It found that , even assuming that Officer PERSON had hit the victim as well , such an act would at most have also fallen within the scope of LAW , which prohibited all forms of ill - treatment of others , including physical violence , in the performance of duties involving the preservation of order in a region affected by terrorism .

As to the length of the sentence , the judges pointed out that the accused deserved a favourable assessment on account of the socio - economic conditions in the region where he was serving and his various personal qualities . They thus decided to reduce his prison sentence to DATE and DATE in view of his “ good conduct ” . The sentence was subsequently commuted to a fine of CARDINAL old NORP liras , which at the relevant time was equivalent to MONEY or QUANTITY .

Lastly , ORG decided to suspend the enforcement of the fine , being persuaded that Officer PERSON would not reoffend .

In his capacity as an intervening party , the applicant appealed to ORG , arguing in particular that insufficient consideration had been given to the evidence for the prosecution , that the accused had never been placed in pre - trial detention and that , in view of his status as a high - ranking officer , he had remained free to exert pressure on the witnesses and forensic experts .

On DATE ORG upheld the impugned judgment .

The relevant provisions of LAW read as follows :

“ Any law - enforcement officer ... who , in the course of duty ... and in circumstances other than those prescribed by law ... , ill - treats , injures or strikes or does bodily harm to another person shall be sentenced to DATE imprisonment and temporarily barred from public service . ... ”

“ Where death results from an act of violence ... inflicted without the intention to kill the victim , ... a sentence of DATE imprisonment shall be imposed on the offender ...

If the death occurs as a result of the offender 's act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate , ... a sentence of a minimum of DATE imprisonment shall be imposed ... ”

Articles CARDINAL to CARDINAL of LAW ( ORG ) govern investigations into acts capable of constituting offences such as those punishable under LAW ( ill - treatment ) or CARDINAL ( unintentional homicide ) of LAW . Such acts may be reported to the authorities or members of the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority to which it has been made must make a record of it . The complaint may also be lodged through provincial governors , district governors or village mayors . By DATE LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the course of his duties is liable to imprisonment ( see GPE v. GPE , DATE , § § CARDINAL , Reports of Judgments and Decisions CARDINALVI , and GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVII ) .

For a summary of the rules governing civil and administrative liability for the acts of ORG agents , see , for example , GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § CARDINAL , ORG ORG ) .

For the determination of criminal sentences and the rules governing their execution , see PERSON , cited above , § § CARDINAL and DATE .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .

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

In DATE the applicant and another man , A. , intended to found a real estate company ORG They bought CARDINAL pieces of property and signed the purchase deeds on behalf of PERSON The applicant owned CARDINAL parts of the shares of ORG owned CARDINAL/CARDINAL parts of them .

In DATE the applicant sold his shares to his female friend PERSON Later the foundation of PERSON elapsed as the applicant and PERSON had failed to apply for its registration within the relevant time - limit . Their application concerning the registration to ORG of the real estates on behalf of PERSON was refused as PERSON had never been registered as a company within the meaning of LAW .

DATE the applicant failed to pay a loan he had guaranteed on behalf of ORG ordered that the above - mentioned real estates be sold in a forced auction in DATE . The applicant objected to this and informed the Bailiff that he did not own any of the real estates as he had sold his shares of GPE to T. already in DATE .

The applicant ’s appeal against the ORG ’s decision was not examined by ORG as the applicant was not found to be a party to the proceedings as he had not owned the real estates . It was found that it was only the actual owner who had the sole competence to make such an allegation ( ORG had not appealed against the Bailiff ’s decision ) . Insofar as A. ’s part of the shares was concerned , ORG found that A. had not been informed of the Bailiff ’s decision . The relevant time - limit for appeal was returned to A.

On DATE ORG ordered the forced auction to be adjourned until it had examined ORG ’s appeal . In the meantime , it ordered that A. should institute proceedings before the local ORG in order to establish the real owners of the real estates . He was also requested to inform ORG outcome of such proceedings if he wished to continue the examination of his appeal before ORG .

On DATE and PERSON instituted civil proceedings against the applicant , a bank , and various other parties , requesting ORG to confirm that the real estates were owned by PERSON , that ORG owned CARDINAL/CARDINAL parts of PERSON , and that ORG owned CARDINAL parts of it . They argued that the ORG ’s decision to seizure the real estates and to order them to be auctioned in order to pay the applicant ’s debts was illegal as the applicant was not an owner any more . They , thus , requested that the seizure be quashed by ORG .

On DATE ORG dismissed the case insofar as it concerned the claims instituted by PERSON , finding that the case was based on ORG decision of DATE in which ORG ’s appeal had not been examined insofar as it concerned ORG ’s possible ownership of the shares as T. ( nor PERSON ) had not appealed against the ORG ’s decision herself . It considered that the ORG ’s decision only concerned the question whether ORG ownership was to be confirmed and that it , thus , lacked competence to examine the case any further in that respect . It adjourned the case insofar as A. ’s ownership was at issue .

PERSON appealed against ORG decision to ORG which upheld ORG decision on DATE . Both T. and the applicant sought leave to appeal from ORG even though it was only PERSON who had appealed against ORG decision to ORG . On DATE ORG refused the applicant and T. leave to appeal .

On DATE ORG issued a judgment by default in respect of the rest of the case , i.e. in respect of A. ’s ownership of the real estates . It confirmed that ORG owned CARDINAL/CARDINAL parts of each of the CARDINAL real estates as he had owned CARDINAL/CARDINAL parts of ORG ’s shares and as the foundation of PERSON had elapsed , in which occasion the assets of ORG were returned to the owners of its shares .

ORG having confirmed that ORG owned CARDINAL/CARDINAL parts of the real estates at issue , the Bailiff rectified , on DATE , his own earlier seizure decision and ordered that CARDINAL parts of the real estates were to be seized and auctioned ( i.e. he annulled the decision only insofar as A. ’s property was concerned ) . As T. had failed to institute any proceedings within the relevant time - limit to have her ownership to the rest of the real estates confirmed , and as CARDINAL else had instituted such proceedings either , the seizure decision concerning the CARDINAL parts of the real estates stayed unchanged .

The applicant , A. and ORG all appealed to ORG against the Bailiff ’s decision concerning the seizure of the CARDINAL parts of the real estates . The applicant ’s and A. ’s appeals were dismissed as they were not found to be affected by the decision which concerned seizure of ORG ’s property .

ORG ’s appeal was dismissed by ORG on DATE because the ORG ’s decision of DATE had concerned only the rectification of his earlier decision in respect of the part of the real estate owned by ORG and as there is no appeal against a decision not to rectify a decision ( i.e. no new decision had been issued in this respect and the decision of DATE , against which ORG had failed to appeal within the relevant time - limit , was still valid ) .

The applicant , A. and ORG appealed against ORG decision to ORG which , on DATE , upheld the ORG decision . On DATE ORG refused all the parties leave to appeal .

In the meantime , on DATE , the applicant , A. and ORG all requested from ORG that the forced auction , which was planned to be held on DATE , be cancelled until ORG had examined their appeal against ORG decision of DATE . The applicant , among others , argued that the auction would be illegal and claimed that ORG had adjourned the enforcement of the seizure decision until the question of the ownership had been legally decided and until the parties had informed the ORG , within CARDINAL months’ time - limit , of that decision .

This request was refused by ORG on DATE . It found that an auction which had already been announced publicly could only be cancelled if there were exceptional reasons for such a cancellation and if the person seeking for such a cancellation had paid a full guarantee of the auction expenses . As the applicant and his counterparts had not submitted any such exceptional reasons to their request nor paid the guarantee , ORG could not accept their appeal .

On DATE ORG refused the parties leave to appeal . Their later request to re - open the proceedings was rejected by ORG on DATE .

The CARDINAL parts of the real estates were sold in an forced auction on DATE .

The applicant , A. and ORG all complained about the enforcement of the forced auction to ORG . They argued , inter alia , that ORG had ordered on DATE that the forced auction shall be adjourned until ORG had examined A. ’s appeal after the final decision had been issued in the proceedings concerning the ownership of the real estates . As those proceedings had not yet ended at the time of the forced auction , the auction was to be considered illegal and should , thus , be annulled . The applicant also claimed that ORG judge was biased as he had participated also in the proceedings concerning the applicant ’s earlier appeals in respect of the same seizure of the same real estates .

On DATE ORG rejected the applicant ’s and the other parties’ complaints . It found that the final decision concerning the ownership proceedings had been issued on DATE when ORG had issued a judgment by default . The Bailiff had informed ORG orally about the decision . As ORG had found no reason to a further adjournment of the auction after having received that information , ORG found the complaint manifestly ill - founded .

The applicant , A. and ORG appealed against ORG decision to ORG which , on DATE , upheld ORG decision . It found that , even though ORG decision would have been needed in order to continue the seizure which had been adjourned by ORG , it was important to note that the real estates had in fact been auctioned also in order to pay the debts of A. That payment was , however , based only on the Bailiff ’s later seizure decision of CARDINAL DATE which had not been appealed against . Thus , there was no need for the protection of A. ’s legal rights in respect of the earlier seizure as the question was to be regarded only of theoretical interest . Insofar as the other part of the real estates was auctioned , ORG noted that ORG ’s ownership had never been confirmed by a court and that , thus , that part could be auctioned in order to pay the applicant ’s debts .

On DATE ORG refused the applicant leave to appeal .

In DATE the applicant , A. and ORG requested the police to investigate whether the Bailiff , ORG and various other authorities had committed an offence when allowing the auction to take place even though the ORG ’s decision of adjourning the enforcement proceedings had still been valid . Having received the relevant police report the local public prosecutor decided , on DATE , not to institute criminal proceedings against anyone as he found that the ORG ’s decision had not been valid any more ( as the Bailiff had informed the ORG within the relevant time - limit of the final court decision concerning the ownership proceedings ) and that no offence had been committed by any of the relevant authorities involved .

The applicant has since submitted numerous complaints to various authorities , including , inter alia , ORG , the Chancellor of ORG , the NORP President and the Minister of Justice . None of these complaints has been successful , no more than the applicant ’s efforts to institute criminal proceedings against persons involved in the decision - making in some of these complaint proceedings .


Violation of Art. 5-1;Violation of Art. 5-5;No violation of Art. 3;No separate issue under Art. 8 in respect of lawfulness of detention;No violation of Art. 8 in respect of other complaints;No separate issue under Art. 14+5-1 in respect of situation vis-à-vis other minors;No violation of Art. 14+5-1 in respect of other complaints;Non-pecuniary damage - financial award

The applicant was in the care of ORG ( “ the Board ” ) from when he was DATE until the age of majority ( DATE ) . From DATE he was placed in children 's homes and thereafter with a foster family . In DATE the foster placement broke down and the subsequent placement with a “ carer ” family also broke down due to the applicant 's behaviour . DATE and DATE he was detained at Oberstown Boys ' Centre on foot of assault charges . Subsequent placements failed again due to the applicant 's behaviour and in DATE the ORG placed him in a private and specialised residential unit in GPE , which placement also failed .

NORP In DATE the applicant was convicted in GPE of criminal damage , burglary , arson and aggravated theft ( offences committed during his stay in the above - mentioned residential unit ) and sentenced to DATE in prison . In DATE , and at the request of ORG , ORG granted a warrant ( pursuant to ORG ) allowing the applicant to serve the balance of his DATE sentence in PERSON Institution ( “ PERSON PERSON 's ” ) in GPE . The applicant was released on DATE .

He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys ' hostel run on a voluntary basis by a priest . From then until the judicial review proceedings ( described below ) issued , the applicant 's solicitor wrote to the Board CARDINAL times requesting that proper accommodation be made available to the applicant . A case conference was held on DATE where it was agreed that his needs would be met in a high - support therapeutic unit for CARDINAL- to DATE but that no such unit existed in GPE and could not be put in place in time for the applicant 's needs . It was decided that ORG would look into placements outside GPE and into interim options in GPE .

On DATE ORG appointed a guardian ad litem and gave the applicant leave to apply for judicial review ( citing , inter alia , ORG and the Attorney - General as respondents ) for ( a ) a declaration that , in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children , the respondents deprived the applicant of his constitutional rights under , in particular , Articles CARDINAL § CARDINAL , QUANTITY ( CARDINAL ) , QUANTITY ( CARDINAL ) and CARDINAL § CARDINAL of LAW . The applicant referred in this context to his being a child at risk , namely dangerous to himself and potentially to others , and pointed out that the lack of appropriate care meant that his rights had not been vindicated ; ( b ) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested . The grounds submitted by the applicant related to the ORG 's failure to comply with its statutory duties to provide such accommodation under sections CARDINAL , CARDINAL , DATE and DATE LAW DATE ; and ( c ) damages , although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice ( hence the application for an order of mandamus and an injunction ) .

The application for interlocutory relief ( namely for relief until the making of a final order following the hearing of the case ) came before ORG on DATE , DATE , DATE and CARDINAL DATE . However , on DATE the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull . He was operated on and subsequently discharged on DATE and spent TIME in bed - and - breakfast accommodation . On DATE the application was adjourned on the basis that the applicant would reside in the hostel ( run by the priest ) under continuous CARDINAL-hour supervision of childcare workers of ORG . ORG was to continue its enquiries for a suitable facility . On DATE ORG ordered that the applicant reside in PERSON , another hostel , under the care of social workers of ORG .

The interlocutory matter was again considered by ORG on DATE . Evidence was presented to the effect that the applicant 's continued residence in that hostel was no longer feasible . Evidence was also heard from the ORG 's leader responsible for the applicant 's case who stated that the ORG 's facilities could no longer cater for the applicant . A consultant psychiatrist at ORG in GPE gave evidence to the effect , inter alia , that he knew of no services in the ORG that could even start to address the problems the applicant represented . A report was presented detailing a number of serious incidents , including threats of assault made by the applicant , and the court heard the legal submissions of the parties .

The High Court delivered its judgment on DATE . ORG judge commented at the outset as follows :

“ This is yet another case in which the ORG is called upon to exercise an original LAW jurisdiction with a view to protecting the interests and promoting the welfare of a minor . The application arises because of the failure of the ORG to provide an appropriate facility to cater for the particular needs of this applicant and others like him . It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after . No such unit exists in this ORG and even if one did , there is no statutory power given to the ORG to direct the applicant 's detention there . Such being the case , and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant , I have in the short - term to do the best that I can with what is available to me . ”

The judgment described the applicant 's history and family situation as “ quite appalling ” . He was CARDINAL of a family of CARDINAL children . His father was serving a life sentence for murder and serious sexual offences . His mother lived a “ chaotic lifestyle ” , refusing to settle in any type of permanent accommodation . Of his siblings , CARDINAL led a normal life . The others were in care , in detention or were drug users .

On the evidence before it , ORG accepted that the applicant was not mentally ill but that he had a serious personality disorder ; that he was a danger to himself and to others ; that he had a history of criminal activity , violence and arson ; that he had absconded from non - secure institutions ; that he had failed to cooperate with ORG and its staff ; and that he had failed to cooperate in the carrying out of a psychiatric assessment of him in the past . It was “ common case ” that the applicant required a “ secure unit where he can be detained and looked after ” and that no such unit existed in GPE . ORG judge considered the welfare of the child to be paramount , noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before him as to the child 's needs and the facilities available would resolve the conflict . The court considered that there were CARDINAL possible options .

In the first place , ORG could order the applicant 's release from the custody of ORG . However , given the real risk of serious self - injury possibly resulting in death , this option was excluded . Secondly , the applicant could be sent back to PERSON . However , given the danger he posed to himself and to others and his previous lack of cooperation , the ORG ruled out this possibility . The third option was ORG but the evidence before ORG and the applicant 's own preference ruled out this option .

The fourth option was the applicant 's detention in PERSON , which option was adopted with “ considerable reluctance ” by the court as the only manner of vindicating the applicant 's constitutional rights . ORG acknowledged that it was a penal institution . However , having noted the conflicting constitutional rights of the applicant , the applicant 's needs , the constitutional obligations of the ORG to the applicant and the relevant jurisprudence of the High and ORG in similar cases , the High Court judge was satisfied that the evidence supported his findings that , in the absence of any other facility within the State , the place most suitable to ensure the applicant 's welfare was PERSON , and that ORG could exercise its “ inherent jurisdiction ” developed by the jurisprudence ( to which the judgment referred ) in making an order for the applicant 's detention there . It was noted that the applicant had been in that institution previously and seemed to have done well there . Accordingly , he ordered that the applicant be brought to PERSON by the police and be detained there for DATE ( until DATE ) , all parties agreeing that detention for longer was not appropriate . ORG judge pointed out in conclusion that he was

“ extremely unhappy at having to make this order ... but of the CARDINAL options available to [ him ] it is the CARDINAL which , in [ his ] view , is best suited to the welfare and needs of this applicant in the short term . It is not a solution . None of the other options are a solution either . But of the CARDINAL unattractive options it seems to [ him ] that from the welfare of this applicant it is the least offensive and in [ his ] view his welfare will be best served by being committed there as [ he has ] ordered ” .

Certain conditions were attached to the order by ORG . The applicant was to be subject to the “ normal discipline ” of that institution and was to have a full psychiatric assessment . The “ fullest cooperation ” was requested by ORG between ORG and the authorities of the institution as regards access by the staff of ORG to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in PERSON , provided that that did not create insuperable difficulties from the point of view of the management of the institution . In particular , ORG recommended that the normal visiting restrictions applicable be waived as much as possible in the vital TIME after the applicant 's detention .

NORP Moreover , ORG concerns about the suicide risks presented by the applicant were to be notified to the Governor of GPE PERSON 's and the appropriate facilities were to be put in place in this respect . ORG was to receive a report by the psychiatric staff of GPE PERSON 's and by ORG on the applicant 's progress , if any , and on his general well - being by DATE . There was to be liaison between the ORG and the guardian ad litem , the latter of whom was to obtain the reports to be prepared for the court on the applicant . In the meantime , ORG was to continue to try to find a suitable place for the applicant 's needs outside the jurisdiction and the matter was to be reviewed by ORG on DATE .

On DATE ( DATE ) the applicant was brought to PERSON and placed in a padded cell TIME .

DATE , the Chief Officer informed the applicant of the rules and regulations , the daily routine and of the services that were on offer ( educational , welfare , spiritual , library , gym , work and recreation ) , which latter matters were detailed in a booklet given to the applicant . The applicant was asked if he wished to attend educational classes . He made no such request and did not participate in the institution 's educational programme .

The applicant appealed to ORG . He referred to the ORG 's failure to fulfil its statutory duties under sections CARDINAL and CARDINAL of LAW DATE and to respond to his constitutional rights under LAW . He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under LAW and LAW ( CARDINAL ) . He also dealt , in his submissions , with the place of detention proposed by ORG arguing that , if detention was necessary and lawful to protect and vindicate a child 's rights , detention in a penal institution was not . A penal institution is a place of punishment , the effect of detention there , with or without conviction , constituted punishment and it was completely different to a high - security unit staffed by qualified childcare workers and operated in a manner consistent with LAW . His placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the ORG to comply with its constitutional duties through the ORG . He also relied on LAW ( d ) of the LAW .

On DATE the Governor prepared a short conduct report for ORG in which he noted that the applicant was well behaved , mixed freely with other inmates and had not come under any adverse attention .

ORG heard the applicant 's appeal on DATE and reserved judgment . Judgment was delivered on DATE and , by CARDINAL votes to CARDINAL , rejected the appeal . The Chief Justice gave the main judgment of ORG ( CARDINAL judges concurring ) and described the issues before him as being whether ORG had jurisdiction to order the detention of the applicant and , if so , whether that jurisdiction extended to making an order directing the applicant 's detention in a penal institution and , if so , whether the jurisdiction was properly exercised in the applicant 's case .

The Chief Justice noted that ( apart from the particular jurisdiction assigned by the LAW and by the Statute ) ORG has an inherent jurisdiction “ as ample as the defence of the LAW requires ” . The Chief Justice noted the conflicting constitutional rights of the applicant at issue in the case : on the one hand , he had the right to liberty ( Article CARDINAL ) and , on the other hand , he had the unenumerated right “ to be fed and to live , to be reared and educated , to have the opportunity of working and of realising his or her personality and dignity as a human being ” . The Chief Justice accepted that ORG could be called upon to establish a priority of such rights as the case demanded . He noted that all parties agreed that the applicant 's welfare ( which was of paramount importance ) required his detention in a “ safe and secure unit ” , but he regretted that ORG judge was forced , by reason of the lack of any suitable facility , to order the applicant 's detention in a penal institution .

In conclusion , the Chief Justice was satisfied that ORG had jurisdiction to make the order it did , that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that ORG was correct in exercising such jurisdiction for a short period of time . He added , however , that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant .

A fourth judge considered that ORG jurisdiction had not been directly disputed by the parties , and went on to agree with the option chosen by ORG . The fifth and dissenting judge in ORG considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child 's rights and for the ORG to address its statutory duties and obligations . It was , in that judge 's view , a step too far to order the child 's detention in a penal institution having regard to his moral , intellectual , physical and social welfare and his rights to liberty , equality and bodily integrity .

The High Court heard further expert evidence on DATE and apparently the applicant had been cooperative in PERSON . ORG continued his detention in PERSON until DATE on the conditions previously applicable , the ORG being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant .

On DATE the ORG submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by DATE . ORG also indicated that the applicant was to travel to GPE to be assessed with a view to possible placement there . While the applicant wanted to be immediately released , his guardian ad litem considered that he should not be left on the street . ORG directed his continued detention in PERSON until DATE and that every effort should be made by ORG to ensure that the relevant property be ready to receive the applicant by DATE .

On DATE the applicant was released from PERSON by order of ORG . Apart from basic personal details and the relevant court orders constituting authority for detention , the applicant 's file from that institution contains few entries and his “ prisoner 's profile ” forms were mainly not filled in . There was a note to the effect that he had been placed in a padded cell in DATE and a copy of the Governor 's report of DATE .

On DATE ( DATE ) the applicant was placed in the accommodation prepared by the ORG under CARDINAL-hour supervision . He was allowed to leave the LOC occasionally for limited periods . Leave was also given to take the applicant to GPE for assessment on DATE .

The applicant then absconded from that property and a warrant for his arrest was issued by ORG on DATE . He was arrested and brought before ORG on DATE . On DATE , and having heard submissions from counsel for the applicant and ORG together with the evidence on behalf of ORG and of the applicant , ORG ordered the applicant 's detention in PERSON until DATE .

Conditions were again applied by ORG to this detention . He was to be subject to the discipline of PERSON . A full assessment of the applicant 's drug dependency was to be made , the assessment to include any outpatient assessment and/or treatment consistent with the requirements of PERSON . There was to be liaison between the authorities of GPE PERSON 's and ORG . By DATE ORG was to be in possession of a report in relation to the applicant 's drug - addiction problem prepared by ORG and the staff of PERSON . The guardian ad litem was to have liberty to liaise with the authorities of PERSON and with ORG . The Governor was requested by ORG to dispense with the visiting restrictions during the first TIME of the applicant 's detention in so far as possible and consistent with the good running of the institution , to allow the officials of ORG to have full access to the applicant . The matter was adjourned until DATE .

On DATE ORG ordered the applicant 's release to the custody of ORG on the same terms as the order of DATE .

On DATE the applicant re - entered his judicial - review proceedings . On DATE evidence was heard from the ORG Leader , PERSON , on the applicant 's case and the applicant was placed in the care of the Board , subject to his attendance at ORG for practical and vocational education . The case was adjourned to DATE , on which date it was adjourned to DATE to await a progress report from ORG . On DATE the case was adjourned to the following day . On DATE the case was adjourned to DATE to allow proposals to be made by ORG .

On DATE the High Court heard evidence from PERSON in relation to possible long - term accommodation and the case was listed for mention on DATE , on which date it was listed for mention on CARDINAL DATE to allow the ORG more time to find appropriate long - term accommodation . On DATE evidence was heard from PERSON and the case was listed for mention on DATE in order to give the ORG further time . On DATE the ORG informed ORG that suitable temporary accommodation was to be ready by DATE and the case was adjourned for further discussion to CARDINAL DATE , on which date ORG heard evidence from PERSON It was decided to maintain the care order in force and to adjourn the case until DATE .

On DATE ORG was advised that the applicant had been moved to new short - term accommodation of ORG under CARDINAL-hour supervision . The report from ORG on the applicant was presented and the case was adjourned until DATE to allow for his progress to be assessed . On DATE the case was adjourned to DATE to allow the ORG time to prepare recommendations for the reduction of the supervision of the applicant . On DATE ORG ordered that the ORG 's recommendations be put in place . The recommendations referred to the proposed timing of the withdrawal of supervision , assisting the applicant to obtain his own accommodation and social welfare benefits , the continuation of all necessary social work support after the official care order expired and the informing of the ORG 's senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and to others .

The applicant remained in the ORG 's accommodation until DATE when he returned to live in the same hostel in which he had stayed in DATE . On DATE his judicial review proceedings were adjourned to DATE . The applicant 's eighteenth birthday was on DATE . He stayed on in the hostel until DATE when he was removed to hospital after causing injury to himself .

After discharge from the hospital he lived rough on the streets . Having been charged with minor offences he was then charged with more serious offences , was arrested and charged with , inter alia , threatening his uncle with a knife . He was remanded for trial and detained on remand in FAC . The outcome of those proceedings is not known .

In his report dated DATE addressed to ORG , PERSON medical officer reported that the applicant had been seen by a medical officer on arrival and on several occasions in DATE . The applicant had complained of feeling depressed , especially at TIME , and was prescribed sleeping tablets . He was referred to a consultant psychiatrist , Mr ORG , who kept the applicant on his medication and considered that he was a troubled youth “ who felt it difficult to deal with prison life ” . The reporting medical officer himself saw the applicant on DATE , when he treated the applicant for a sprained ankle sustained while playing football . That officer again saw the applicant on DATE , when he was “ becoming frustrated and angry at his situation ” . That officer found him “ quite well ” and prescribed a mild sedative and night - time sedation and asked the visiting psychiatrist to review him . A consultant forensic psychiatrist had also seen the applicant .

The report goes on to mention that that medical officer had no record of any input from the resident psychologist : the latter 's records were retained confidentially , it could not be assumed that the latter had had no input and the latter should be contacted for information concerning any proactive treatment carried out with the applicant of which that medical officer was not aware .

Mr ORG completed a report on the applicant in DATE . He mentioned that he had seen the applicant twice : on DATE and CARDINAL DATE . During the interviews the applicant did not present any signs of “ major psychiatric illness either of a schizophrenic or depressive nature ” . There was no mention of how the applicant 's detention in PERSON impacted on him .

The relevant provisions of the LAW are :

LAW

“ All citizens shall , as human persons , be held equal before the law . This shall not be held to mean that the ORG shall not in its enactments have due regard to differences of capacity , physical and moral , and of social function . ”

LAW ( CARDINAL )

“ The ORG guarantees in its laws to respect , and in as far as practicable , by its law to defend and vindicate the personal rights of its citizens . ”

LAW ( CARDINAL )

“ The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name and property of every citizen . ”

LAW ( CARDINAL )

“ No citizen shall be deprived of his personal liberty save in accordance with law . ”

Article CARDINAL § CARDINAL

“ The ORG shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative , and , when the public good requires it , provide other educational facilities or institutions with due regard , however , for the rights of parents , especially in the matter of religious and moral formation . ”

Article CARDINAL § CARDINAL

“ In exceptional cases , where parents for physical or moral reasons fail in their duty towards their children , the ORG as guardian of the common good , by appropriate means shall endeavour to supply the place of parents , but always with due regard for the natural and imprescriptable rights of the child . ”

The DATE Act sets out the duties of a health board in relation to the care and protection of children residing in its administrative area . Section CARDINAL(CARDINAL ) defines a child as “ a person under DATE other than a person who is or has been married ” .

Section CARDINAL provides , inter alia , as follows :

“ CARDINAL . It should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection .

NORP In the performance of this function , a health board shall –

( a ) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and coordinate information from all relevant sources relating to children in its area ;

( b ) having regard to the rights and duties of parents , whether under LAW or otherwise –

( i ) regard the welfare of the child as the first and paramount consideration , and

( ii ) in so far as is practicable , give due consideration , having regard to his age and understanding , to the wishes of the child ; and

( c ) have regard to the principle that it is generally in the best interests of a child to be brought up in a family . ”

The relevant parts of section CARDINAL(CARDINAL)(a ) provide as follows :

“ Where a health board has taken a child into its care under this section , it shall be the duty of the board –

( a ) subject to the provisions of this section , to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child ... ”

Section CARDINAL provides as follows :

“ Where it appears to a health board that a child in its area is homeless , the board shall enquire into the child 's circumstances , and if the board is satisfied that there is no accommodation available to him which he can reasonably occupy , then , unless the child is received into care of the board under the provisions of this LAW , the board shall take such steps as are reasonable to make available suitable accommodation for him . ”

The relevant parts of section CARDINAL provide as follows :

“ ( CARDINAL ) Where a child is in the care of a health board , the health board shall provide such care for him , subject to its control and supervision , in such of the following ways as it considers to be in his best interests –

( b ) by placing him in residential care ( whether in a children 's residential centre registered under Part VIII [ of the DATE Act ] , in a registered home maintained by the health board or in a school or other suitable place of residence ) , or

( d ) by making such other suitable arrangements ( which may include placing the child with a relative ) as the health board thinks proper .

( CARDINAL ) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability . ”

The relevant parts of LAW provide as follows :

“ CARDINAL . A health board shall make arrangements with the registered proprietors of children 's residential centres or with other suitable persons to ensure the provision of an adequate number of residential places for children in its care ;

A health board may , with the approval of the Minister , provide and maintain a residential centre or other LOC for the provision of residential care for children in care . ”

In DATE the ORG had CARDINAL high - support units in existence for children with serious behavioural and emotional problems between the ages of DATE . A unit in GPE had CARDINAL places and a unit in GPE had CARDINAL places . In DATE , approval was given by ORG to the ORG to plan and develop a CARDINAL special - care unit both in PERSON and in ORG . Subsequently , the matter was reviewed to allow consideration of the costs of these units and to assess the need for them . An expert consultant was appointed to consider such needs in DATE .

The unit in ORG ( special - care unit ) was completed in DATE . Construction of the ORG unit ( a high - support unit ) was planned to commence in DATE and its completion envisaged by DATE . A special - care unit operates to a high standard of security whereas a high - support unit , while of similar design , operates to a lower standard of physical security .

In DATE the ORG gave judgment in a case concerning the care of a minor with special needs ( minor suing through his mother and next friend PERSON v. the Minister for ORG , the Minister for Health , the Minister for Education , GPE , the Attorney General and ORG ( DATE ) CARDINAL NORP Law Reports DATE ) . That judgment pointed out as follows :

“ First , ORG has already granted declaratory relief concerning the obligations of the ORG towards minors of the type with which I am dealing . In so doing it observed the LAW proprieties owed by ORG to the administrative branch of government . It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right . But it expected those steps to be taken as soon as reasonably practicable .

Secondly , if the declaration was to be of any benefit to the minors in whose favour it was made , the necessary steps consequent upon it has to be taken expeditiously . Otherwise the minors , most of whom are of DATE , would have achieved majority within DATE of the declarations being granted without any benefit being gained from them .

Thirdly , the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to and including the loss of their very lives .

Finally , due regard should be had to the efforts made on the part of the Minister to address the difficulties to date . If the ORG were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister 's response was proportionate to the rights which fell to be protected , then normally no order of the type sought ought to be made . ”

[ The court orders ] the Minister for Health to make available to ORG sufficient funding to allow ORG to build , open and maintain a secure CARDINAL-bed High Security Unit at ORG , and the Minister for ORG to take all steps necessary and to do all things necessary to facilitate the building , opening and maintenance of a secure CARDINAL-bed High Security Unit at Portrane , Co. GPE . The said Unit to be in operation not later than DATE . ”

PERSON came into being pursuant to LAW . LAW ) of that LAW foresaw the making of regulations providing for the management of that institution .

These regulations deal with the management and functioning of the institution . Section CARDINAL provides that an inmate shall , in so far as the length of his sentence permits , be given such training and instruction and be subjected to such disciplinary and moral influences as will conduce to his reformation and the prevention of crime . Section CARDINAL provides that , subject to the inmate not being declared unfit by the medical officer , an inmate is to be allowed regular physical recreation and exercise and is to be given such regular physical exercise as may be necessary to promote his health and physical well - being . Section CARDINAL provides that , if the Governor is of the opinion that the receipt of letters and visits and the writing of letters by the inmates in addition to those already permitted outside of these regulations will promote the social rehabilitation of the prisoner , then he may permit the inmate to receive so many letters and visits and to write so many letters in addition to those already permitted other than by these regulations as the Governor thinks proper . Section QUANTITY of those regulations provides that :

“ So much of the Rules for the Government of Prisons DATE ... and the Rules for the Government of Prisons DATE ... as are made under ORG and DATE shall , in so far as they are not inconsistent with these Regulations , apply and have effect in relation to inmates and the Institution in like manner as they apply and have effect in relation to prisoners and prisons . ”

Male offenders aged DATE may be committed to PERSON either while on remand or after sentencing as it is considered to provide a more suitable environment for young offenders . The majority of male offenders aged DATE are held in PERSON . As at DATE , CARDINAL of the detainees were DATE . The regime is as liberal and relaxed as possible within the confines of a secure institution .

Cells are unlocked at TIME when the inmates may collect breakfast and then return to their cells ; at TIME these are unlocked to permit the inmates to attend a place of employment or school ; at TIME they come back , collect lunch and return to their cells ; at TIME the inmates may attend a place of employment or school ; at TIME they come back , collect their TIME meal and return to their cells ; at TIME the cells are unlocked for TIME recreation ; at TIME the inmates come back , collect supper and return to their cells ; at TIME the cells are locked ; and at TIME the lights are switched off .

All sentenced prisoners are required to work , although the workshops do not operate on a commercial basis as they are only for training purposes . The emphasis is on training in skilled or semi - skilled work .

ORG is open DATE a week and has CARDINAL full - time staff and CARDINAL to CARDINAL full- and part - time students at any CARDINAL time on the education register . Along with work training , education comprises CARDINAL of the CARDINAL main activities for the inmates . A broad programme of education is emphasising literary and basic education , with classes on health and social education . The unit is equipped with computers , available for learning or for recreational purposes . Students may sit for State school examinations . Upon their arrival all inmates are asked if they wish to attend education classes . Attendance and level of participation is voluntary . Any special requests or particular needs would be regularly discussed by the teaching staff .

Inmates are free to recreate during unlocked periods at DATE , on bank holidays , in DATE and when not attending work or education classes . Facilities include television , table games , a library , a gym and other games ( including football , pool and table football ) and a reading room . There are certain organised activities ( including gym , pool , football , quizzes and chess ) . DATE newspapers , magazines and other publications are also available to inmates together with sports kits and board games .

In general , every prisoner is entitled to CARDINAL visit per week , but in practice visits are allowed more frequently where circumstances permit . Visits in open centres are unsupervised and may be granted on demand . Telephone calls are frequently demanded and permitted . Inmates serving sentences are generally allowed to send CARDINAL letters per week . NORP letters to family or to legal representatives may be allowed on request . An inmate awaiting trial may send out as many letters as he likes and there is no limit to the number of letters that he may receive .

Particular emphasis is placed on the rehabilitation of young offenders in custody and , accordingly , a wide range of services are available . An education service is provided in conjunction with vocational education committees and teachers work in the prison on a full or part - time basis . Training in various vocational skills is available to offenders , including juveniles , with some inmates going on to take city and guilds examinations . Library facilities are provided in conjunction with the public library service and a range of publications including newspapers and magazines are available for recreational purposes . A range of sports and other recreational facilities are available . The prison psychology service together with the probation and welfare services participate in the positive management of sentences and provide counselling to help offenders to cope during custody . A medical service is available including a drug - detoxification programme together with addiction counselling , the latter of which is provided in conjunction with and by various outside agencies such as ORG and ORG .

DATE to CARDINAL staff members are employed to facilitate and provide these educational and recreational services to inmates .


Preliminary objections partially dismissed (non-exhaustion of domestic remedies);Preliminary objections partially joined to merits and dismissed (victim);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1+6-3-d;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lived until his arrest in the town of GPE .

On DATE CARDINAL individuals attacked PERSON near his flat , beat him up and attempted to rob him . PERSON fought back and the attackers ran away .

DATE the applicant was arrested on suspicion of having attempted to PERSON in conspiracy with PERSON and PERSON The arrest record indicated that he had been arrested for disorderly conduct . The applicant was placed in detention facility no . IZ-CARDINAL/CARDINAL .

An investigator interviewed PERSON and PERSON who were drug addicts and were suffering from drug withdrawal syndrome . They confessed to robbery , committed with the applicant . According to the applicant , they had confessed because policemen had promised to supply them with drugs . The applicant insisted that in DATE and DATE Mr B. and PERSON had written statements confessing to the robbery after the policemen had given them drugs .

On DATE emergency doctors visited Mr V. The medical report of DATE showed that PERSON was a drug addict and that he had been provided with medical assistance . On DATE and DATE the emergency doctors examined Mr B. He was diagnosed with drug addiction and withdrawal syndrome . Medical assistance was provided .

On DATE the applicant had a confrontation interview with PERSON who stated that CARDINAL men wearing balaclava masks had attempted to rob him on DATE . Mr I. noted that the applicant was of the same height as one of the attackers . The applicant did not dispute Mr I. ’s submissions and did not ask any questions .

While being questioned by the investigator the applicant admitted that he had intended to beat Mr I. up because a friend had asked him to do it . He denied that he had ever attempted to rob Mr I. The applicant maintained that testimony at the trial .

On DATE the applicant was committed to stand trial before ORG of Ivanovo .

A lawyer representing PERSON successfully asked ORG to examine the medical report of DATE indicating that PERSON was a drug addict .

At the trial PERSON and PERSON retracted their confessions made during the pre - trial investigation . They claimed that they had confessed to the robbery under the influence of drugs and in the absence of a lawyer . They insisted that on DATE they had met PERSON but had merely intended to beat him up and had had no intention of robbing him .

Mr I. did not attend the trial and ORG found that there were “ good reasons ” for his absence . The Government , relying on a written statement by a ORG secretary , submitted that on DATE Mr I. had notified the secretary by telephone that he had not been able to attend the trial hearings as he had been in another country . PERSON had confirmed his statements made during the pre - trial investigation . The Government also produced a written statement issued on DATE by a lay assessor who had sat in the applicant ’s case . According to the lay assessor , PERSON wife informed her by telephone that PERSON had left GPE and had been unable to come back before DATE .

At the hearing on DATE ORG read out depositions made by PERSON on DATE and DATE . The court record indicated that ORG had not asked the applicant or his lawyer whether they had agreed to the reading of the depositions . According to the depositions , on DATE Mr I. opened the entrance door and saw CARDINAL men wearing balaclava masks . CARDINAL of them hit him in the face . Mr I. attempted to close the door but an attacker followed him into the flat . The entrance door of the flat accidentally closed and other perpetrators could not enter . PERSON fought the attacker , opened the entrance door and was able to push the attacker out of the flat . After he had opened the door , he saw another man , whom he identified as the applicant . The applicant hit PERSON with the handle of a gun and ran away . PERSON claimed that the attackers had intended to rob him .

ORG summonsed CARDINAL witnesses , PERSON , PERSON and Mr PERSON and PERSON attended the trial and testified that on DATE , DATE of the alleged robbery , they had seen CARDINAL men running but had not been able to identify them . Mr T. , who lived in GPE , did not appear at the trial and his depositions made during the pre - trial investigation were read out . His statements were identical to those given by PERSON and PERSON S.

On DATE the ORG of GPE found the applicant guilty of aggravated robbery and sentenced him to DATE and CARDINAL months’ imprisonment . The court issued a confiscation order in respect of the applicant ’s property .

The ORG based its judgment on the depositions by PERSON made during the pre - trial investigation , the testimony by PERSON L. and Mr S. , the deposition by PERSON made during the pre - trial investigation , the confession statements made by PERSON and PERSON during the pre - trial investigation , and the applicant ’s statements in which he had admitted that on DATE he had visited Mr I. but had not robbed him . ORG noted that it had not been established of what property the defendants had intended to PERSON

ORG rejected the co - defendants’ arguments that they had confessed in a state of drug intoxication . It noted that there was no indication that Mr PERSON and PERSON had been forced to confess or that they had been administered drugs to induce them to admit their guilt . Throughout the pre - trial investigation they had given consistent and detailed statements in the presence of attesting witnesses and their interviews had been recorded on video . ORG watched those video recordings . The defendants had appeared to be in a normal state of health and had no longer claimed that they had been drugged .

On DATE and DATE the applicant and his lawyer filed appeal statements against the judgment of DATE . They complained , inter alia , that ORG had based the conviction on the depositions by PERSON and PERSON given during the pre - trial investigation .

On DATE ORG upheld the judgment of DATE , endorsing the reasons given by ORG . In particular , it noted that ORG had rightfully convicted the applicant on the basis of the statements given by PERSON and PERSON

On DATE the Presidium of ORG , on a supervisory review , reduced the applicant ’s sentence to DATE and CARDINAL months’ imprisonment , having regard to the fact that the gravity of the offence did not correspond to the severity of the sentence .

The applicant submitted that on DATE , on an order of the director of detention facility no . IZ-CARDINAL/CARDINAL , warders had entered cell no . CARDINAL where he had been detained . The warders , hitting the inmates with rubber truncheons , forced them to leave the cell . In the corridor they continued hitting the applicant with rubber truncheons . The applicant fell on the floor and the beatings continued . After the beatings stopped , he crawled into his cell . TIME he felt extreme pain and his fellow inmates asked for a prison doctor . The applicant was taken to a hospital where doctors removed his spleen .

According to the Government , on DATE the applicant took part in a prison disobedience action . They relied on written statements by warders , including the warder PERSON . , and a report issued on DATE by the head of the task unit of detention facility no . IZ-CARDINAL/CARDINAL . The report , in its relevant part , read as follows :

“ On DATE , at TIME , a junior inspector , senior sergeant of the internal service PERSON , who was on duty , ... raised the alarm and informed a senior lieutenant of the internal service Mr GPE ... that detainees in cell no . CARDINAL were attempting to kick the cell door out , banging on it with boots , metal plates and cups . On an order of the senior lieutenant of the internal service Mr GPE , a group of off - duty warders ... went to cell no . CARDINAL ... Upon their arrival , a senior lieutenant of the internal service Mr Pa ... ordered the detainees to stop their unlawful actions and warned them that force might be used if they did not comply with the lawful order . However , the inmates ignored the order of the facility administration and continued their collective disobedience actions . Moreover , [ inmates ] in certain other cells ... supported the actions of the inmates of cell no . CARDINAL [ and ] also started knocking on the doors , which could have turned into a prison riot .

The facility director , who by TIME had received full information on the incident involving inmates in cell no . CARDINAL , raised a general alarm and ordered that the senior lieutenant of the internal service Mr GPE repeat his orders and warn the detainees of special means and consequences if they did not comply .

After the repetition of the administration ’s orders and the warning of the possible use of force had no effect on the detainees , the facility director decided to carry out a special operation in respect of the detainees in cell no . DATE . In the presence of a group of medical staff members , the group of off - duty warders , other staff members who had gathered on an alarm signal and had been equipped accordingly , the cell door was opened and the detainees were requested to stop their active demonstration of discontent , to leave the cell [ and ] go into the corridor . In response to that lawful order the inmates climbed on to the upper bunks , refusing to leave the cell . They accompanied their actions with obscene and defamatory language towards the representatives of the facility administration . After rubber truncheons PR-CARDINAL had been applied to certain detainees who had clearly refused to comply , all the inmates went into the corridor . In the course of a discussion they did not raise any complaints nor did they substantiate claims against the facility administration which could serve as objective justification for confrontation ... Inmates who had been allowed to return to the cell stopped their disorderly actions . Detainees in other cells followed their lead .

It was established in the course of the investigation pertaining to that incident that the majority of the inmates in cell no . DATE had not known the real reasons for the disorderly actions when those actions had started , assuming that the flame of discontent had been fanned by the appalling ( according to them ) conditions of detention in the cell and [ they ] had taken part in those actions obeying exclusively the feeling of corporate solidarity . Secret operative measures taken with the purpose of establishing the true reason for the conflict allowed the conclusion that a voice message from an inmate of a cell on the lower floor about beatings of another inmate , Mr NORP , by warders , which took place at the same time ... served as an incentive for the beginning of the collective disobedience ....

As it follows from the inmates’ explanations , most of them heard orders addressed to them to stop disorderly actions and warnings that special measures would be used , but they did not react in any way .

As a result of the selective application of rubber truncheons by the warders injuries were sustained by ... and Mr PERSON ... who were examined and received the necessary assistance from medical personnel of the facility .

The investigation showed that the facility personnel in that situation had acted firmly , without compromise , taking the special measures promptly , without delay and in compliance with requirements of paragraph CARDINAL of LAW [ of LAW ] ... , that is as it was required in the situation at hand , which was of a complicated nature since the actions of the detainees from cell no . CARDINAL had been supported by detainees from other cells and other preventive measures of a non - violent nature had appeared to be ineffective . ”

The Government submitted a record of the applicant ’s medical examination drawn up on DATE by the prison dermatologist . The record stated that the applicant had had bruises on his legs and CARDINAL linear bruises on the back and the left side of the small of his back . The bruises measured QUANTITY in width and QUANTITY in length .

The Government , relying on an extract from the applicant ’s medical record , further stated that on TIME of DATE the applicant had been taken to the surgical division of the prison hospital and had been diagnosed with “ a blunt chest injury , a splenic rupture , hemoperitoneum , first - degree shock , and an injury to the small of the back ” . Doctors discovered signs of internal bleeding and decided to remove the spleen . TIME the applicant underwent surgery . He remained in the hospital until DATE and was transferred to the medical department of detention facility no . IZ-CARDINAL/CARDINAL in “ a satisfactory state of health ” .

On DATE the facility administration informed the GPE regional prosecutor ’s office that on DATE force had been used against inmates , including the applicant .

An assistant of ORG carried out an inquiry . On DATE he issued a report , refusing to institute criminal proceedings as there had been nothing criminal in the warders’ actions . The relevant part of the report read as follows :

“ On DATE , at TIME , before placement in a punishment cell , warders of the detention facility searched a detainee , Mr NORP [ He ] resisted and as a result , force was used against him and forbidden correspondence was seized . Mr NORP shouted loudly that the warders were beating him up , urging inmates to knock on their cell doors and protest . Detainees supported him , thus violating the detention rules , and [ inmates ] in cell no . CARDINAL , in particular , started banging hard on the cell door . At TIME a junior inspector of the task and guard unit , PERSON , sounded the general alarm in the facility .

As follows from statements of staff members of the detention facility , ... on DATE , after the general alarm signal at TIME they arrived in cell no . DATE , whose inmates were banging hard on the door . The detainees did not comply with repeated orders to stop their unlawful actions . The same orders and warnings of the possible use of special measures made by PERSON through the door grille also had no result . On an order of the director of the detention facility , PERSON . , the cell door was opened at TIME and the detainees were requested to go into the corridor . That order was lawful , taking into account the aggressive state of the inmates , the possibility of their attacking the warders , taking possession of cell keys and weapons , and taking hostages . Furthermore , the detention regime required a TIME roll - call of the detainees . The inmates refused to comply with the order . In that situation [ the warders ] decided to force the inmates into the corridor . CARDINAL inmates , including Mr PERSON , urged their fellow detainees not to leave the cell , [ he ] actively disobeyed , swinging his arms and pushing warders Mr PERSON . and PERSON . , away , and did not respond to repeated orders to stop those unlawful actions . Following Mr PERSON . ’s repeated warnings about the possible use of special measures , [ Mr PERSON ] continued his actions . Mr PERSON . hit Mr PERSON with a rubber truncheon CARDINAL to CARDINAL times on the back and legs , after which Mr PERSON was taken out of the cell into the corridor .

The fact that the special measures were used is confirmed by statements of facility warders and their reports , as well as an official record of the use of special measures and an official record of the medical examination of Mr PERSON by a medical committee consisting of CARDINAL persons . According to that record , Mr PERSON had injuries to his knees and feet and CARDINAL red linear bruises on the back and the left side of the small of the back .

The head of the medical department of the detention facility , PERSON , and a dermatologist , PERSON . , stated that at TIME on DATE Mr PERSON had asked for medical assistance , complaining of pain in the left subcostal area . After a consultation with a surgeon from the prison hospital Mr PERSON was transferred to the hospital .

According to statements by the head of the surgical division of the prison hospital PERSON . and the medical record , on DATE , at TIME , Mr PERSON underwent surgery and his injured spleen was removed .

In an interview Mr PERSON stated that on DATE he had been woken up at TIME before the TIME roll - call ... He heard his inmates banging on the cell door . Soon afterwards warders entered the cell and forced everyone into the corridor . At that time he was near his sleeping place . A warder hit him several times with a rubber truncheon on the back and forced him into the corridor , where other warders also hit him numerous times on his back with rubber truncheons . He did not resist in any way and did not urge [ inmates ] to resist the warders .

As a result of the investigation , Mr PERSON ’s statements were not confirmed and they are of a contradictory nature . In particular , Mr PERSON could not explain the discrepancies between his arguments about the numerous blows and the results of the medical examination . Moreover , he was examined in the course of the prosecutor ’s investigation on DATE , and no other injuries , save for those recorded in the report of the medical examination , were discovered .

The detainees , PERSON . , PERSON .... and PERSON did not see how the special measures were applied to PERSON , stating that on DATE , before the morning roll - call , they had knocked at the cell door . [ They ] did not comply with the warders’ orders [ and ] did not stop their actions . [ They ] were warned about the possible use of special measures .

Thus , taking into account the facts and the results of the investigation , it is necessary to note that a special measure , namely a rubber truncheon , was applied by PERSON . to Mr PERSON lawfully and in accordance with the requirements of LAW [ of LAW ] ... ”

Following the prosecutor ’s refusal to institute criminal proceedings , the applicant lodged an action against ORG and ORG seeking compensation for damage caused by the use of force on DATE . He also argued that the prosecutor ’s office had unlawfully refused to institute criminal proceedings against the warders .

On DATE ORG of GPE accepted the applicant ’s action in part and awarded him MONEY ( RUB , MONEY ) . ORG cited the assistant prosecutor ’s decision of DATE in support of its finding that the use of force against the applicant had been lawful . ORG further noted that the applicant had sustained serious damage which threatened his life . It observed that while using special measures such as rubber truncheons and physical force , warders should have ensured that the applicant sustained minimal damage . ORG concluded that the detention facility , as a legal person , did not have sufficient control over whether the staff members performed their work safely . The applicant had sustained physical and moral suffering and compensation should therefore be paid .

On DATE ORG confirmed ORG findings . However , it increased the amount of compensation to RUB CARDINAL ( CARDINAL ) .

Detainees and the LOC where they live may be searched ( LAW and CARDINAL ) .

Physical force , special means or weapons may be used against detainees if they offer resistance to the officers , persistently disobey lawful demands of the officers , engage in riotous conduct , take part in mass disorders , take hostages , attack individuals or commit other publicly dangerous acts , escape from the penitentiary institution or attempt to harm themselves or others ( LAW ) . The procedure for application of these security measures is determined in NORP legislation ( Article CARDINAL § CARDINAL ) .

When using physical force , special means or weapons , the penitentiary officers must :

( CARDINAL ) NORP state their intention to use them and afford the detainee(s ) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees ;

( CARDINAL ) NORP ensure the least possible harm to detainees and provide medical assistance ;

( CARDINAL ) report every incident involving the use of physical force , special means or weapons to their immediate superiors ( section CARDINAL ) .

Rubber truncheons may be used to

( CARDINAL ) stop assaults on officers , detainees or civilians ;

( CARDINAL ) NORP repress mass disorder or group violations of public order by detainees , as well as to apprehend ( задержание ) offenders who persistently disobey or resist the officers ( section CARDINAL ) .

Rubber truncheons may be used in the following cases :

- to repel an attack on a staff member of a detention facility or on other persons ;

- to repress mass disorder or put an end to collective violations of the detention regime ;

- to put an end to a refusal to comply with lawful orders of facility administration and warders ;

- to release hostages and liberate buildings , rooms and vehicles taken over by a detainee ;

- to prevent an escape ;

- to prevent a detainee from hurting himself ( section DATE ) .

Article CARDINAL § CARDINAL of LAW of GPE provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to LAW , a ORG agency or a ORG official shall be liable to a citizen for damage caused by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

Article CARDINAL § CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . Pursuant to LAW ( a ) and ( в ) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment .

The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction ( LAW .

Article CARDINAL of the RSFSR Code of Criminal Procedure provided that a conviction could not rest solely on the admission of the accused .