No violation of Art. 2 as regards the State's alleged failure to protect the right to life;No violation of Art. 2 as regards the effectiveness of the investigation;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The application is brought on behalf of PERSON , a deceased NORP national , by his sister , PERSON , who lives in GPE , GPE .

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

On DATE , the applicant 's brother , PERSON , was shot dead by an armed police officer at his flat in FAC , GPE , following a siege .

At CARDINAL p.m. on CARDINAL DATE PERSON , PERSON girlfriend , drove to PERSON flat . As she entered the rear car park she saw a pair of legs disappearing through the ground floor kitchen window of the LOC . PERSON did not recognise the person entering the flat and assumed that the person , who was male , was an unauthorised intruder .

PERSON was concerned for the safety of PERSON and , although she did not know whether or not he was in the flat , she shouted his name through the letterbox on the front door of the premises . She obtained no response .

At TIME PERSON used her mobile telephone to report to the police a burglary in progress . The police gave this report an ' immediate response ' within the criteria fixed by ORG .

The first police officers to arrive at the scene were Acting PERSON and Acting ORG . They arrived at TIME

Acting PERSON went to the kitchen window at the rear of the LOC . The window was open . Acting PERSON was able to move the venetian blinds and identified himself as a police officer . He was confronted by a man from within the shadows of the room . Acting PERSON thought the man to be QUANTITY shorter than his own height of CARDINAL ' CARDINAL ” . The man , who was in fact PERSON , adopted a double - handed extended arm stance , and pointed what appeared to be a handgun at the officer .

Acting PERSON , fearful for his safety , shouted to his colleague , Acting ORG : “ He 's just pointed a gun at me , get back . ”

The QUANTITY police officers and PERSON then withdrew to what they believed to be a safe distance from the LOC and Acting PERSON summoned assistance , including ORG ( “ LAW ” ) . This request was timed at TIME

During the course of the incident which followed , radio traffic was monitored within ORG ( “ FIR ” ) .

The FIR log indicates that at TIME , Acting ORG transmitted the following message :

“ PERSON according to his ex that lives at this location knows him to have a replica firearm . She 's not aware of him having a firearm itself but he does have a drink problem . ”

Within a short time , other police officers arrived at the LOC . Police PERSON and GPE , both unarmed , positioned themselves behind the rear wall of the rear garden . They both reported seeing a man in the kitchen pointing a gun at them .

At TIME Inspector PERSON arrived and took front line charge of the situation .

Radio communication between Police PERSON and Acting PERSON on ' talk - through ' mode , so that the ORG would hear , conveyed the wrong impression that the LOC in question were confined to the ground floor . There was in fact an upper floor . This erroneous impression prevailed until it was corrected as a result of information provided by PERSON at TIME

In DATE , ORG had CARDINAL nominated ARVs on duty at all times . In order to provide maximum cover , they were deployed to the north and south of the county . Their primary role was to contain spontaneous firearm situations until the arrival of tactical firearms personnel .

At TIME the North ARV , containing Officer C and Officer B , arrived at the scene . They were briefed on the incident by ORG and Acting PERSON . By the time the GPE arrived , an unarmed outer containment of the LOC had been put in place . Officer B asked Inspector PERSON to close the road to vehicular and pedestrian traffic . The South ARV was still on its way to the scene .

As the CARDINAL ORG officers were discussing the incident at the front of the LOC , the front door opened and the occupant appeared in the doorway .

In accordance with his training , Officer B shouted : “ Armed Police . Drop the gun and go back into the house . ”

The occupant raised his hand which appeared to contain a handgun and , almost immediately , went back into the flat . PERSON later he again appeared at the doorway and raised the gun . Officer B issued the same instruction . The occupant appeared to take no notice of the command to drop the handgun and returned to the inside of the flat .

At TIME the armed officers decided that the only way to contain the building , and also to provide armed support to their unarmed colleagues , was to deploy one of them at the front of the LOC and the other at the rear . Officer B positioned himself behind the high brick wall at the rear car park and erected a makeshift platform on which to stand and observe the rear of the LOC . This platform was later replaced by a police car . Officer B was QUANTITY from the LOC .

Officer C positioned himself at the front of the building . Both officers were armed with PERSON AUG CARDINAL calibre carbines . Officer B saw the occupant enter the kitchen , raise his gun and point it towards him . Officer B shouted : “ You 're surrounded by armed police , leave the gun inside and come out slowly . ” The occupant left the kitchen and Officer C , at the front of the LOC , issued a similar command . These commands , which were repeated at intervals throughout the incident , had no apparent effect .

At TIME the South ARV arrived at the scene . It contained Officers D and A. Officer D joined Officer B at the rear of the LOC . Officer A joined Officer C at the front of the LOC .

Following the arrival of Officer D , Officer B reviewed his position and decided that he was not ideally placed to deal with the occupant should he decide to leave the LOC . Officer B decided that it would be better to take up a position behind CARDINAL cars parked in the courtyard car park on the other side ( the premises / courtyard side ) of the rear wall . According to the applicant , Officers B and D did not consult the senior officers present on their decision to forsake their protected position behind the wall and move to the courtyard side .

Both Officers B and D moved to a position behind the CARDINAL vehicles , situated within QUANTITY of the rear wall . This was at TIME

They were joined by Police Constable Cattanach , a police dog handler , to add the further tactical option of using a police dog should the occupant attempt to escape . Police Constable ORG arrived at TIME

The police traffic department provided flood lighting on an extended mast powered by a generator . This lighting considerably enhanced the vision of the police officers in the rear car park .

At intervals , the occupant pointed his gun out of the rear kitchen window at the officers at the rear of the LOC . Officers B and D repeatedly issued instructions for him to put down his gun and come out from the LOC .

With the siege of the LOC continuing , attempts were made to trace PERSON . Acting on information provided by PERSON , CARDINAL detective officers , Detective Constable ORG and Detective Constable Route , visited local public houses .

A photograph of PERSON was obtained from the file relating to a previous court appearance following his arrest in DATE for a drink - driving offence . This photograph was provided to the officers who visited the local public houses .

Investigations into PERSON whereabouts led to the police officers at the scene being told , erroneously , that PERSON was CARDINAL ” tall . He was in fact CARDINAL ” . This information was derived from the details in the case file concerning his arrest in DATE .

With the safety of the public in mind , officers maintained a cordon around the LOC and arranged for the evacuation of children , whose parents were arriving to meet them , from a nearby school swimming pool . Occupants of other houses were instructed to remain within their homes .

Shortly after the arrival of Police PERSON and PERSON , PERSON was approached by PERSON , a neighbour of PERSON , who was in the company of another neighbour , PERSON . PERSON went with the QUANTITY women to PERSON flat a safe distance away . The CARDINAL women , for reasons of safety , were later taken by police transport to FAC in GPE . They arrived there at QUANTITY

At CARDINAL p.m. Inspector PERSON requested a negotiator to attend the LOC .

At CARDINAL p.m. the officers at the rear of the LOC queried whether the flat LOC in fact extended to the first floor . Acting Police Sergeant Morris obtained information from PERSON that the flat did extend over CARDINAL floors : the ground floor and the first floor .

At TIME , Officer A , at the front of the LOC , was in communication with the ORG operator and said :

“ Can you put on the incident scene log that he 's still coming to the front door and he is brandishing a handgun . He is not opening the door but he is making sure that it 's pointed towards us through the glass ... ”

Within TIME a similar report was made by Acting Police Sergeant Phillips , who was positioned at the rear of the premises :

“ ... he 's peering round the door we think heads into the kitchen and he 's just pointed the gun out towards the officers now DATE over . ”

At CARDINAL p.m. Superintendent Battle , the Deputy Divisional Commander at FAC , GPE , arrived on the scene . He was a member of the cadre of police officers in GPE trained to deal with firearms incidents . He was briefed by Inspector PERSON and assumed the role of Incident Commander . According to the applicant , Inspector PERSON informed Superintendent Battle that there was a suggestion that the man in the LOC might be PERSON who owned imitation firearms , although this could not be confirmed .

At CARDINAL p.m. Police Constable PERSON arrived at the scene . He was the Tactical Firearms Adviser ( a functionary required on all police firearms operations ) . Both Superintendent Battle and Police Constable PERSON reviewed the plan adopted by the ORG teams , and their deployments , and were satisfied with the decisions taken .

Following his arrival Superintendent Battle telephoned the flat on his mobile telephone to establish that the telephone inside was working and that the number obtained did indeed relate to the LOC : he thought such information would be of benefit to negotiators when they arrived at the scene . This took place at QUANTITY

At first Superintendent Battle obtained the answer machine . The second time the occupant answered . Superintendent Battle ( who , according to the Government , had considerable knowledge of the principles of negotiations ) said : “ I 'm PERSON . I 'm a police officer . ” He told the occupant that the house was surrounded by armed officers and requested that he should not go to the window or doors with a weapon , but that he should put the weapon down .

DATE . During the course of this telephone call Superintendent Battle asked the man his name and received the answer “ PERSON . PERSON formed the impression that the man was drunk . Despite efforts to engage him in further conversation , the man put the telephone receiver down and the call was concluded .

The Government informed the ORG in a letter of DATE that when the occupant identified himself to Superintendent Battle as “ PERSON , this information was relayed over the police radio and the officers at the scene used this name in their various challenges to the deceased . The applicant 's legal representative , on receipt of this information , noted in the applicant 's observations that this “ fresh information ” had not been disclosed to them at the time of the inquest .

During the incident ( but unknown to the police ) CARDINAL other telephone calls were made to the LOC . The first was made by PERSON , PERSON brother . The second , at CARDINAL p.m. , was made by PERSON , a friend of PERSON .

Neither PERSON nor PERSON reported their telephone conversations with PERSON to the police , even though it was clear from the conversations that PERSON realised that he was surrounded by police . According to PERSON , PERSON sounded tired and said : “ I think they are going to storm the house . ” The telephone then went dead .

Inspector PERSON was of the opinion that the incident was likely to become protracted and shortly after CARDINAL p.m. she gave instructions over the radio for night duty personnel to be called out and requested a log to be brought to the scene .

At TIME a message was received by ORG from Detective Constable ORG , who had obtained information to the effect that at CARDINAL TIME had been in the ORG public house . It was reported that he had been very drunk , wearing blue jeans , a grey shirt and no coat . This information was passed on to Inspector PERSON by ORG , but in doing so they transmitted the time of the sighting DATE This information reinforced the belief that the person within the LOC was not PERSON since PERSON had called the police at QUANTITY

At QUANTITY the occupant of the flat moved from the ground floor to the rear first floor bedroom . He opened the casement window and pointed his gun from just over the windowsill in the direction of Officer D , who was at the rear of the LOC behind a vehicle . Both Officers D and B became very concerned by this development . The occupant pushed his handgun through the open window and then withdrew it after shouts from the officers .

Within TIME of this first incident the occupant reappeared at the window , but this time stood up in full view of the officers . He was naked from the waist up .

The occupant adopted a CARDINAL - handed stance through the open window with his arms outstretched . He was holding what appeared to be a gun . He aimed the gun at the officers at the rear of the LOC . Police PERSON thought that he was going to be shot and dived to the ground . In his statement made after the event , he stated :

“ ... the man held his arms and pistol in front of him and as he deliberately brought the gun up to his eyes ( ... ) I looked and could see that I was looking down the bore of the barrel his eyes were on the sights and he appeared to be pointing the weapon directly at me . I instinctively ducked as I was convinced the man was aiming directly at me and I was convinced I was going to be shot . ”

Officer B observed through his gun sight that the barrel of the handgun appeared to be pointing directly at him . He was afraid for his own safety and shouted : “ Armed police . Drop the gun or you will be shot . ”

The occupant remained in his threatening stance . Officer B then squeezed the trigger of his carbine and fired CARDINAL shot which hit the occupant in the chest .

Officer B was interviewed on DATE at ORG . He said :

“ And he aims the gun , looking through the scope , I see the barrel of the gun and he 's , the best way I can describe it , just like a police target , the same we are taught to shoot , he 's got a solid base , he 's got both hands on the gun , it 's in front of his eyes , I can see the barrel of the gun , through my scope , and I can see the barrel lined up with him and it was aimed straight down my gun sight . Erm , and I say to be honest it frightened me to death ( ... ) I shouted ' ARMED POLICE DROP THE GUN OR YOU WILL BE SHOT ' I shouted that very loudly and clearly at him . Erm he just continued staying in the same position , rock steady , erm , and then I took the decision to squeeze the trigger and shoot and I shot him . ( ... )

I thought if that gun goes off I 'm gon na be seriously injured or killed PERSON you could see the size of the barrel , it was a large calibre weapon , hand gun , that was all I could see . Erm and I thought was gon na be shot , if I did n't do something . ”

The applicant draws attention to the fact that Officer B 's statement was never disclosed and was never subjected to forensic scrutiny or comment in any public forum .

CARDINAL civilian witness , PERSON , a local resident , heard the police command : “ Drop your gun or we will shoot ” , followed by a single shot . The shot was fired at CARDINAL p.m.

Officer D , who was with Officer B , was on the verge of shooting at the time the shot was fired . In a statement made after the event he stated :

“ I then saw that the gun was still in his hand and he was holding it with both hands with arms straight out , this conveyed to me that he was going to take aim to fire the weapon at [ Officer B ] . I took the safety off my weapon and took sight on him and put pressure on the trigger and was going to fire when I heard a bang . ”

NORP The officers , together with paramedics already at the scene , entered the building at CARDINAL p.m. They found PERSON lying face down on the bed in the rear bedroom . They rendered first aid , but at CARDINAL p.m. Michael Fitzgerald was pronounced dead .

The scene was preserved as a major crime scene .

The armed officers went to the Police Headquarters firearms range where they separately compiled their pocket book notes and gave their firearms for forensic examination . The examination revealed that a bullet had been discharged from the weapon belonging to Officer B. No other weapons had been fired .

The Home Office pathologist confirmed that the cause of death was a single gun shot wound to the chest and that the pattern of injuries was consistent with having been shot in the manner described by Officer PERSON sample of PERSON blood revealed QUANTITY of alcohol per QUANTITY of blood . This would have made an individual of moderate drinking habits either extremely drunk or comatose .

PERSON handgun was a replica Colt .CARDINAL calibre self - loading pistol . It had the appearance of an authentic weapon and only very close examination reveals it to be a replica .

Following the shooting it was discovered that PERSON had spent TIME drinking . He had left his jacket with the keys to his home in a public house . He was seen walking in the direction of his home by a taxi driver , at TIME , who described him as very drunk .

On being informed of the fatal shooting of PERSON , the Deputy Chief Constable of GPE Police , PERSON , voluntarily referred the matter to ORG in order that it might supervise the investigation into the killing .

Mr PERSON , Assistant Chief Constable of FAC , was appointed as ORG . The essential purpose of the investigation was to inquire into the facts of the incident and to establish whether or not there had been a breach of the criminal law or police discipline . At the outset of the investigation ORG appointed a family liaison officer to assist PERSON next - of - kin . During the investigation , a senior member of the investigation team visited the family on several occasions to keep them up - to - date on the progress in the investigation .

Officers B and PERSON as well as Superintendent Battle were interviewed in the course of the investigation . The other officers who attended the scene or had a part to play in the incident made witness statements outlining their roles and responsibilities . The civilian employees of ORG also made witness statements , as did members of the public including the family of PERSON . Radio traffic within the ORG , which is tape - recorded , was transcribed , as was the control room tape . A crime analyst from ORG was employed to scrutinise all the witness statements , the interviews taken under caution and the tape recording transcriptions .

The report prepared by Mr PERSON was submitted to ORG on DATE . A copy of the report and evidence was sent to the Deputy Chief Constable of GPE Police and to ORG . The latter later concluded that there was no evidence to justify any criminal proceedings against any police officer .

On DATE ORG sent a copy of an Interim Statement on the investigation to PERSON brother . This Interim Statement had been issued shortly after the submission of the report by Mr PERSON . The Interim Statement recorded that Mr PERSON ' final report had been received on DATE and was supported by CARDINAL statements , CARDINAL documents and CARDINAL appendices including photographic evidence and plans of the scene of the incident . The Interim Statement concluded that “ the investigation into the death of Mr PERSON [ had ] been undertaken to the satisfaction of ORG ” . Also in DATE , ORG notified PERSON brother that a review of the case would be carried out by CARDINAL of its members at the conclusion of the inquest .

In his report , Mr PERSON concluded that Officer B had not committed a criminal offence and stated :

“ I have examined the circumstances of this incident in detail and made CARDINAL visits to the scene . I have read all the accounts of the officers present and other relevant witness statements including the forensic analysis . I have examined the transcription of the Information Room tape recording and other relevant documents . I am satisfied that [ Officer B ] genuinely believed he was facing an intruder armed with a firearm and that his life was in imminent danger . He did not know that the weapon was incapable of being discharged and he gave the man the chance to withdraw in a pressurised situation . ”

DATE . Mr PERSON investigated the reason why a negotiator had not been present at the scene and stated :

“ Difficulty was experienced during the early stages in obtaining a trained negotiator . ORG have a cadre of CARDINAL ' Tier One ' negotiators trained to a national standard ... and CARDINAL ' Tier Two ' negotiators , who have been selected as being suitable to attend the National Negotiator 's Course but who are , as yet , untrained . The ORG policy is that one ' Tier One ' and one ' Tier Two ' negotiator will be available at all times including ' call out ' times . Unfortunately on DATE there was a Negotiator 's Conference being held at GPE . CARDINAL of the CARDINAL ' Tier One ' negotiators were at the Conference . The remaining Tier One negotiator PERSON was , according to the log , uncontactable . The Information Room log indicates that he was playing CARDINAL - a - side football ... The frustration of the situation is all too evident when the log is scrutinised . At TIME the log reads : ' No tier CARDINAL negotiator available they all are at a conference according to info . from other . There is no tier CARDINAL call out at all . ' At TIME the log reads : ' Unable to raise the negotiator other than by going through list CARDINAL by CARDINAL until finding someone willing to attend – call out totally useless or most recent update inaccurate . No response from any of the pager messages sent . ' ORG at DATE TIME the log reads : ' ORG . PERSON and PERSON . PERSON , both tier CARDINAL negotiators , on route to GPS . ' The Information Room Inspector states that an attempt was made to contact PERSON both on his home number and on his pager . ORG states that he had both his mobile phone and his pager with him , that they were both switched on , and that he did not receive a call on either of them . I have been unable to resolve this issue ... The difficulty experienced in contacting a ' Tier One ' negotiator is a serious example of how poor co - ordination and planning can lead to real operational difficulty . The difference in skill levels between a Tier One and Tier CARDINAL negotiator should , in normal circumstances , be significant . The early arrival of a ' Tier One ' negotiator might have made a difference . ”

Mr PERSON concluded his report by stating :

“ This was a tragic incident . PERSON had been suffering from a number of personal pressures including unemployment , rising debt and the grief of his mother 's death . He turned increasingly to drink and was an alcoholic . It is very sad that on TIME a series of unusual events came together and led to his death . First , PERSON left his jacket and keys behind in a pub ; second , unusually , he attempted to gain entry to his flat by the window ; third , his girlfriend happened to arrive just as he was disappearing into the kitchen ; fourth , his girlfriend mistook him for a burglar ; fifth , neither PERSON 's brother , PERSON , nor friend PERSON reported their telephone conversations with PERSON to the police ; sixth , no clear information emerged about PERSON 's identity prior to his death ; and seventh , PERSON , for whatever reason , we will never know , decided to aim a replica firearm to challenge armed police . ”

During the investigation witness statements were taken from approximately CARDINAL witnesses .

The applicant stresses that the radio logs / transcripts and transmissions referred to were never disclosed , despite requests for them during the subsequent inquest . Furthermore , Mr PERSON ' report and conclusions were never disclosed to the applicant or to the deceased 's family or made available for public scrutiny at the inquest . In addition , she and the deceased 's family were at all times unaware that CARDINAL witnesses had been heard . The Coroner disclosed CARDINAL witness statements to the family , and the family was therefore unable to consider whether other potential witnesses should have been called .

By a letter dated CARDINAL DATE , ORG confirmed the findings of the police investigation that there was no wrongdoing on the part of the GPE police officers involved in the incident . ORG was satisfied with the thoroughness of the investigation .

NORP The death was reported to Mr PERSON , the GPE and GPE , by the police .

The inquest was opened on CARDINAL DATE and then adjourned sine die to allow ORG to complete its investigation into the circumstances surrounding the death .

On DATE , at a preliminary hearing to which all the interested parties including the press were invited , the Coroner ruled that the CARDINAL armed officers should remain anonymous and should not be identified by the media . They were to be known as A , B , C and D , of whom B had fired the fatal shot .

Counsel representing PERSON family firmly objected to the grant of anonymity to these officers , arguing that the inquest was meant to be a forum subject to public scrutiny and that justice should be seen to be done in an open manner , particularly where citizens die at the hands of agents of the ORG .

In deciding to direct that the armed officers should be known as A , B , C and D , the Coroner accepted that there was a genuine concern on the part of each of the officers , and particularly Officer B , that he and his family could be exposed to verbal and physical abuse if his name were to be disclosed , having regard to the fact that he lived near the scene of the incident . The Coroner ( according to the Government , without objection from any party ) also used his knowledge of previous threats and abuse directed against Officer B and his family following another incident , not involving a shooting , where he had been acting in accordance with his police duties . The applicant points out that it was never raised as a ground at the hearing on DATE ( nor at the actual inquest ) that any officer had suffered any threat , and that in any event the previous threats to Officer B were not in relation to a shooting and could not be construed as serious .

The Coroner made it clear that it was open to any party , including the press , to make an application to lift the anonymity order if further information or circumstances warranted it .

The Coroner was provided with the witness statements and exhibits gathered in the course of Mr PERSON ' investigation . The Coroner decided that there should be disclosure of the statements made by CARDINAL witnesses whose evidence he considered material to establishing the relevant facts . According to the applicant , the Coroner misled the family as to the number of witnesses by informing their counsel at the preliminary hearing on DATE that there were only approximately CARDINAL witnesses to the incident of whom CARDINAL witness statements were relevant and were to be disclosed for the full inquest hearing on DATE .

By a letter dated DATE , the family 's legal representative sought disclosure of further materials . The report prepared by Mr PERSON was not among the documents sought . The Coroner decided that the family should be provided with the witness statements of Officers C and NORP and Superintendent Battle as well as a schedule containing the times of all the important events derived from the radio logs .

On DATE the inquest proper began . The Coroner made a further decision to the effect that A , B , C and D should remain anonymous . The Coroner gave his reasons for this decision in writing and included among his reasons the following :

“ The predominant reasons for granting anonymity for the particular officers beyond my own local knowledge and experience are

a ) GPE police is a small force with a handful only of armed response officers . The naming of officers ' A ' , ' C ' and ' D ' would be likely to identify by default officer B.

b ) All CARDINAL officers have expressed fear if their names are made public in this context the privacy and safety of both themselves and their families could be at risk . Some officers live near the locus in quo .

c ) Whilst there may be no threat emanating from the deceased 's family there are serious and violent criminals living and operating within the locality and identification of members of the armed response team would not be either in the interest of those individuals or in the public interest . ”

The Coroner also ruled that the officers could give evidence from behind a screen . They would , however , be seen by the Coroner , the legal representatives for each of the parties and the jury .

The inquest continued for DATE .

During the course of the inquest the Coroner summoned witnesses to give evidence of the events leading to PERSON death . These witnesses , who included police officers B , C and D , were cross - examined by counsel representing the family . The jury visited the scene of the incident .

The Coroner refused to accede to the family 's request to call the police negotiator at the inquest , stating that his evidence was irrelevant since he had played no part in the incident . He further declined to allow in evidence the police radio logs on communications passing between the officers on TIME CARDINAL DATE as well as the computer printouts since these materials , like the police negotiator , “ would not have added to the knowledge and understanding of those matters which the jury were obliged by law to address . ” However , at the request of the jury and counsel for the family , Detective Sergeant Denton provided a statement setting out the times of the material events derived from the radio logs and the transcripts of the transmission .

The applicant points out that Superintendent Battle conceded at the inquest when cross - examined by the family 's legal representative that it might not have been wise of him to have identified himself to the deceased as a police officer , bearing in mind that negotiators should have the appearance of being neutral so that some trust is built up between the person under siege and the negotiator .

At the conclusion of the evidence the Coroner summed up the case to the jury and , after hearing submissions from counsel representing the parties , the ORG 's direction on the law included the following :

“ I find , as a matter of law , for reasons which I do not need to explain to you , that the only verdict that you can come to in this inquest – and I so direct – is a verdict that PERSON was lawfully killed . ”

The Coroner went on to explain that any explanation of the verdict was a matter for the jury to decide .

The jury returned a verdict of lawful killing and added a recommendation to their verdict that the ORG Secretary should ban replica firearms of the type found in PERSON possession .

On DATE an article entitled “ Cops knew that gun was replica ” was published in the ' GPE on DATE ' newspaper . It was reported that a laboratory technician , PERSON , a neighbour of PERSON , had informed the police at TIME of the incident that PERSON had CARDINAL replica guns at his home . The Coroner was in possession of a statement made by PERSON , dated DATE . This statement , made DATE after the incident , had been provided to the GPE investigation . PERSON did not mention in her statement that she had told the police at the relevant time that PERSON possessed replica firearms . She stated that she had heard and seen an incident developing outside PERSON flat . She had been in her premises with PERSON and :

“ ... both of us decided to go down and see if we could help . When we went out onto the street , PERSON [ Joy ] was still crying . We were asked by an officer if we could look after PERSON which we agreed and we were advised not to go into my flat and keep away from the windows . Due to this PERSON , PERSON and myself went into PERSON 's flat ... after this we all began ringing the local pubs of PERSON 's to try and locate him . The only positive reply we got was from the ORG pub who said he 'd been in there and left with CARDINAL blokes from the PERSON pub . ”

In relation to her knowledge of PERSON , she stated :

“ I personally have been into PERSON 's flat on numerous occasions , but not so much recently due to his increasing drinking , the last time I was in there was DATE . I was aware that PERSON possessed CARDINAL imitation firearms which were displayed on the wall of his lounge above the stairway recess ... ”

PERSON had provided a statement to the police investigation , also dated DATE . This statement was consistent with PERSON and it also contained no suggestion that PERSON had told the police officers at the time of the incident that the guns in PERSON home were replicas or that the occupant of the premises possessed a replica firearm .

On DATE , ORG , the proprietor and publisher of “ GPE On DATE ” , which is a DATE newspaper circulating in the GPE area , applied for judicial review of the Coroner 's decision to grant anonymity to Officers A , B , C and NORP

On DATE , the application for judicial review was dismissed by Mr Justice PERSON , who stated :

“ ... in relation to officer B the Coroner was taking into account ... the fact that there was a public interest and also a special need for care and a potential risk of injury and danger in relation to B as a member of the armed response group , in addition to the other ground ... namely his fear in relation to the previous incident amounting to a reasonably objective , attested ground for fear in relation to his particular safety and that of his family .

Once there were CARDINAL such grounds that in my view enabled the Coroner to say that there was sufficient reason for anonymity provided that he then carried out ... a balancing exercise . ”

Mr Justice PERSON concluded that the Coroner had correctly carried out the balancing exercise and that there had been evidence which entitled the Coroner to conclude that anonymity was necessary in the interests of justice and in order to avoid any risk of injury .

The applicant sought legal aid to pursue proceedings for judicial review of the inquest verdict . This request and a subsequent appeal were refused by ORG on DATE .

Following the inquest , in a letter dated DATE , ORG informed the applicant that the investigation had been thorough and had addressed the family 's concerns that the police had acted too quickly and had not explored all the options . The letter continued :

“ ( ... ) neither the investigation nor the subsequent inquest has disclosed evidence on which to seriously challenge any of the police actions . At the time PERSON died , police operations were being managed by a senior officer with considerable experience in firearms incidents who described the attention and planning which he gave to the various decisions needed .

There was clear evidence that the situation could not have been effectively contained if officers were placed behind the brick wall at the rear of the house . This view was supported by ORG own firearms experts and is consistent with national guidelines and training . The repeated giving of warnings is required under the manual and I have to say the police would be at risk of very serious criticism if none or fewer warnings had been given .

There was no evidence that the presence of a top level trained negotiator would have caused a different outcome to what actually happened . The evidence suggests the contrary - that even if one had been present at the time of the shooting , he or she would not have been prevented the train of events which led to your brother 's death .

GPE Police accept that there was confusion on TIME as to which officers with level CARDINAL negotiating training were available to go to the scene . I am told that call - out rotas are now entered on the force command and control computer , which should reduce the chances of delays in the future due to difficulties in contacting the necessary staff . The problems arose due to a poor information system which has now attracted the required management response . I do not consider that this is a matter which justifies any disciplinary action .

Inquests are governed by LAW ( “ the LAW ” ) and Coroners Rules DATE ( “ the Rules ” ) . Under section CARDINAL of the LAW , an inquest must be held if a person has died “ a violent or an unnatural death ” . It is the function of an inquest , as defined by LAW ( CARDINAL)(b ) of LAW CARDINAL of the Rules , that a coroner and a jury shall look into and determine CARDINAL essential matters : who the deceased was , and where , when and how the deceased came by his / her death .

There is no legal aid for representation at inquests . Prior to DATE , there was no right to disclosure of documents . In NORP v. GPE ex parte PERSON ( [ DATE ] QB CARDINAL ) , ORG held that as no allegation was made against the family natural justice did not require disclosure of documents to the family and the Coroner had no power to hand over material against the wishes of those who supplied him with it . Since DATE , and as regards inquests into deaths occurring in police custody , there is a presumption in favour of disclosure of information held by authorities in advance of the inquest hearing . According to paragraph CARDINAL of the new voluntary protocol on disclosure , disclosure of the investigating officer 's report as part of a supervised ORG investigation will not normally be expected to form part of the pre - inquest disclosure . That does not mean , however , that it is impossible for such a report to be disclosed where a chief officer considers it would be right to do so . Pursuant to the protocol “ he or she should seek the views of ORG and others with an interest in the report . ” If disclosure of the report is ordered “ the views and expressions of opinion of the investigating officer should be redacted . ”

It has been consistently emphasised in the domestic case - law that an inquest is an inquisitorial fact - finding exercise , and not a method of apportioning guilt . For example , Lord Justice PERSON declared in NORP v. GPE , ex parte PERSON [ DATE QB CARDINAL ] :

“ It is not the function of a coroner or his jury to determine , or appear to determine , any question of criminal or civil liability , to apportion guilt or attribute blame . This principle is expressed in Rule CARDINAL of the DATE Rules . ”

In LOC , ex parte PERSON ( [ DATE ] CARDINAL ALL E R ] ) , ORG clarified the extent of the discretion of a Coroner not to leave to the jury what is , on the evidence , a possible verdict . Lord PERSON stated -p . CARDINAL ) :

“ If it appears there are circumstances which , in a particular situation , mean in the judgment of the coroner , acting reasonably and fairly , it is not in the interest of justice that a particular verdict should be left to the jury , he need not leave that verdict . He , for example , need not leave all possible verdicts just because there is technically evidence to support them . It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole . To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner 's conclusion he can not be criticised if he does not leave a particular verdict . ”

There is no right of appeal in relation to an inquest and ORG role is limited to review , which may be by way of judicial review , or statutory as contained in DATE ( CARDINAL ) and ( CARDINAL ) of the LAW . This section applies where , on an application by or under the authority of the Attorney - General , ORG is satisfied as respects a coroner either -

“ ( a ) that he refuses or neglects to hold an inquest which ought to be held ; or

( b ) where an inquest has been held by him , that ( whether by reason of fraud , rejection of evidence , irregularity of proceedings , insufficiency of inquiry , the discovery of new facts of evidence or otherwise ) it is necessary or desirable in the interests of justice that another inquest should be held .

ORG may –

order an inquest or , as the case may be , another inquest to be held into the death ... ”

The Government and the applicant draw attention to case - law developments in the light of the entry into force in GPE of LAW DATE , in particular : NORP ( PERSON ) v. Secretary for ORG for ORG ( [ DATE ] ORG PERSON of ORG ) ) ; PERSON Her ORG for LOC of GPE and Other , ex parte PERSON ( [ DATE ] ORG CARDINAL ( ORG ) ) ; PERSON Secretary of ORG ex parte PERSON ( Court of Appeal ) ; NORP v. Her ORG for LOC , ex parte ORG ) .

The PERSON case concerned the wanton killing of a prisoner by a fellow cell - mate suffering from an untreatable mental condition . No public inquest was ever carried out into the circumstances of the killing . An investigation was conducted by a serving official of ORG as well as by ORG . Both investigations were conducted in private with minimal or no participation by the family of the deceased . Having reviewed the case - law of ORG CARDINAL , Lord PERSON of PERSON concluded that the minimum standards laid down by the ORG had not been complied with . The form of the investigation was deficient , regard being had in particular to the absence of public scrutiny of the investigation , the lack of involvement of the deceased 's family and , as regards the official investigation , the lack of independence of the official in charge of the inquiry .

The PERSON case concerned the death of a DATE child as a result of grossly negligent medical treatment , which was later admitted by the hospital authorities following an internal investigation . Subsequent to an extensive police investigation , ORG decided that no criminal proceedings should be taken in respect of the child 's death . The family were not permitted to participate effectively in either the internal or police investigation . ORG ( Lord Justice PERSON ) found that neither of the investigations conducted satisfied the minimum procedural obligations under LAW . Lord Justice PERSON further stated that an independent judicial inquest procedure into the death of the child could fulfil the ORG 's procedural obligations , but only if it allowed the family effective participation with the help of legal aid funding .

NORP The PERSON case concerned the killing of a civilian by police officers in the mistaken belief that he was armed . An inquest was held into the circumstances of the killing . The jury recorded an open verdict . Following an application for judicial review by the deceased 's family , ORG ordered that the verdict be quashed and that a new inquest be held before a different Coroner . ORG ( Mr Justice PERSON ) found a number of deficiencies in the way in which the proceedings had been conducted ; firstly , the Coroner had allowed evidence of the deceased 's criminal convictions , although irrelevant , to be heard by the jury ; secondly , the Coroner had allowed the jury to be apprised of ORG conclusion following a police investigation into the killing to the effect there was insufficient evidence to justify the bringing of criminal proceedings against the officers involved ; thirdly , the Coroner should have heard independent expert evidence on whether the use by the police officers of their firearms had been justified in the circumstances ; fourthly , in the light of the credible accusation of at least manslaughter by the officers involved , the Coroner failed to justify his decisions by explaining , even briefly , why he was not prepared to leave to the jury the verdicts which the family wished the jury to consider . On this point , Mr Justice PERSON held that “ it will be exceptional for a coroner not to explain , albeit briefly , why he is not prepared to allow the jury to consider a verdict sought by the deceased family 's and in relation to which there has been some relevant evidence ” .

LAW CARDINAL confers a right of action for a wrongful act causing death . LAW ) provides :

“ If death is caused by any wrongful act , neglect or default which is such as would ( if death had not ensued ) have entitled the person injured to maintain an action and recover damages in respect thereof , the person who would have been liable if death had not ensued shall be liable to an action for damages , notwithstanding the death of the person injured . ”

However , the statutory right of action is reserved to the deceased 's dependants ( section CARDINAL(CARDINAL ) which allows the recovery of their pecuniary loss ) . If there are no dependants , there is no pecuniary loss to recover as damages . Bereavement damages ( fixed at GBP CARDINAL ) are only available to the parents of a child under DATE ( section CARDINALA(CARDINAL ) ) . Funeral expenses are recoverable ( section CARDINAL(CARDINAL ) ) .

There is no claim under LAW for a deceased who leaves no dependants , or who does not fall into the limited category of persons mentioned above . LANGUAGE law does not recognise a tort of wrongful death .

LAW ( Miscellaneous ) LAW DATE provides for the survival of causes of action for the benefit of the deceased 's personal estate . The relevant part of section CARDINAL(CARDINAL ) provides :

“ Subject to the provisions of this section , on the death of any person after the commencement of this LAW all causes of action subsisting against or vested in him shall survive against , or , as the case may be , for the benefit of , his estate . ”

This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died , including any non - pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death . Where death is instantaneous , or where it can not be proved that the deceased experienced pain and suffering before death , damages are not recoverable under LAW and the only recoverable amount would be funeral expenses .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE , while attempting to participate in a demonstration in the form of “ a press conference ” held on FAC in the LOC district of GPE , the applicant was arrested , together with CARDINAL other participants , by police officers at CARDINAL p.m. The applicant alleged that the police officers had used disproportionate force to disperse the crowd and to arrest the demonstrators , whereas the Government claimed that the demonstrators had resisted the police and had refused to disperse .

Following her arrest the applicant was taken to hospital for a medical examination . The doctor who examined her reported that there were no signs of injury on the applicant 's body . The doctor noted , however , that the applicant complained of pain in her right upper arm .

On DATE , at TIME , the applicant was questioned by the ORG public prosecutor . The applicant informed the public prosecutor that she had been subjected to ill - treatment by the police , who had used disproportionate force during her arrest . She claimed that she had attended the meeting , organised by a group called “ ORG , as the President of ORG , and that she had been arrested by the police for no reason . She stated that she had merely exercised her legal rights and that she had not breached ORG no . CARDINAL ) .

The applicant was released from police custody on DATE , after being questioned by the ORG public prosecutor .

On DATE the applicant lodged a complaint with the ORG public prosecutor against the police officers who had been involved in the incident and had arrested her . She complained , inter alia , of the unlawfulness of her arrest and the excessive use of force by the police during the arrest .

On DATE the applicant was referred to the GPE branch of ORG by the ORG public prosecutor . The doctor who examined the applicant noted a CARDINAL x QUANTITY ecchymosis on the back of her left leg and concluded that the injury rendered the applicant unfit for work for DATE . The doctor further noted that the applicant was suffering from pain in her right shoulder and right arm .

On DATE the ORG public prosecutor issued a decision not to prosecute the police officers who had been on duty at the press conference of DATE . Relying on the incident report prepared by the police officers , the public prosecutor noted that , despite warnings by the police , the demonstrators , who had gathered illegally without obtaining permission and had disturbed public order by blocking the pedestrian zone and tramway , had refused to disperse and the police had therefore been obliged to use some degree of force to disperse them and restore public order . The public prosecutor considered that the force used by the security forces had been in line with section CARDINAL of ORG and had been justified in the circumstances . In the public prosecutor 's opinion , the applicant 's injuries were the result of a proportionate use of force which did not amount to ill - treatment or abuse of authority .

On DATE the applicant lodged an appeal with ORG against the above - mentioned decision of the public prosecutor . She claimed that on DATE police officers had beaten her during her arrest , causing injuries rendering her unfit for work for DATE , as corroborated by the medical report from the hospital . She further alleged that the participants had not blocked the tramway or pedestrian traffic . She therefore asked ORG to order the prosecuting authorities to bring charges against the police officers .

On DATE , having regard to the content of the file and the reasons given by the ORG public prosecutor , ORG dismissed the applicant 's appeal .

ORG decision was served on the applicant on DATE .

In the meantime , on DATE , the ORG public prosecutor had brought charges against CARDINAL demonstrators , including the applicant , for violation of ORG . In her defence submissions before the court , the applicant claimed that , in participating in the demonstration , she had merely been exercising her democratic rights .

In a judgment dated DATE , ORG acquitted the applicant and her co - accused of the above - mentioned charges . The court held as follows :

“ [ It ] was alleged that the accused had breached ORG on DATE of the incident . Having regard to the content of the case file , there is no convincing evidence indicating with sufficient certainty that the accused committed the alleged offence . It appears from the incident report that the security forces took measures following an intelligence report that ORG , PERSON and PERSON associations were to hold a demonstration in front of the post office in the GPE district . After the gathering of the group ( demonstrators ) , the chair of the association PERSON stated that they would stage a sit - in in front of the GPE post office . Following a police warning [ that the meeting was unlawful ] , the demonstrators told the police that they would make a press statement and then disperse . However , the police teams did not release the group and continued to keep them within a circle ; they then arrested them without giving a proper warning that could be heard by everyone ( no evidence was provided to substantiate the assertion that a warning was given ) . For these reasons , no evidence was adduced to indicate that the accused committed the alleged offence in contravention of the said LAW and that [ their action ] went beyond the exercise of their democratic rights . It is thus considered that the actions of the accused were merely an exercise of their democratic rights [ to freedom of assembly ] . The [ accused ] are therefore acquitted of the charges brought against them ... ”

The relevant domestic law can be found in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , GPE , CARDINAL , ORG , CARDINAL/CARDINAL and CARDINAL , § § DATE , DATE ) .


CASE OF LUEDICKE, BELKACEM AND KOÇ v. GERMANY

Preliminary objection rejected (disappearance of object of proceedings);Violation of Art. 6-3-e;Not necessary to examine Art. 14;Pecuniary damage - financial award;Just satisfaction partially reserved

At the time when they introduced their applications with the ORG , Mr. PERSON , Mr. PERSON and Mr. PERSON were resident in GPE .

The CARDINAL applicants were charged before the NORP courts with the commission of various criminal offences . Since they were not sufficiently familiar with the language of the country , they were assisted by an interpreter in accordance with NORP law . After conviction , they were ordered , amongst other things , to pay the costs of the proceedings , including the interpretation costs . They consider that the inclusion of this latter item is contrary to , inter alia , Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW .

In criminal proceedings , the courts must use the services of an interpreter whenever the accused is not conversant with NORP . The first sentence of section CARDINAL para . CARDINAL of the LAW of LAW ( Gerichtsverfassungsgesetz ) provides as follows :

" If the proceedings before the court involve the participation of persons who do not have command of the NORP language , an interpreter shall be employed . "

Pursuant to this provision , the assistance of an interpreter is made available as a matter of course to an accused - whatever his nationality - who does not understand or speak the NORP language . The same rule is applicable to the examination of witnesses who do not have command of the NORP language .

The obligation to employ an interpreter is , however , subject to CARDINAL exception , namely when all the participants are familiar with the foreign language ( section CARDINAL para . CARDINAL of the LAW of LAW ) .

Interpretation costs are part of the costs of the proceedings which , according to LAW , first sentence , of LAW ( GPE ) , are made up of " the fees ( GPE ) and expenses of the ORG " . The latter are listed in LAW ( PERSON ) which in turn refers to the Witnesses and Experts ( Expenses ) Act ( PERSON über die Entschädigung PERSON ) . Section CARDINAL para . CARDINAL of the last - mentioned LAW provides that " for the purposes of compensation , interpreters shall be treated as experts " .

According to LAW para . CARDINAL , first sentence , of LAW :

" The accused shall bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction ... "

Under this provision , the question of payment of the costs of the proceedings arises only after there has been a final ruling on the guilt of the accused ; an accused person may never be required to make any advance payment on these costs . In the event of acquittal or of proceedings being discontinued , the ORG in principle bears the costs . On the other hand , if the individual concerned is convicted , he has to pay the costs , but only such proportion thereof as relates to the criminal charges upheld by the court .

As concerns interpretation costs in particular , Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW , which forms an integral part of the domestic law , specifies that " everyone charged with a criminal offence has the ( right ) ... to have the free assistance of an interpreter if he can not understand or speak the language used in court " . This text has not been interpreted and applied by the NORP courts in a uniform way . Certain courts read it as embodying an obligation for the ORG to bear the costs in question for all time and in all cases ; other courts , including some higher courts , consider on the contrary that while Article CARDINAL para . CARDINAL ( e ) ( article DATE ) - like LAW - exempts an accused ( that is , a person " charged with a criminal offence " ) from paying in advance for the expenses incurred by the use of an interpreter , it does not prohibit such expenses being awarded against a convicted person .

Interpretation costs are assessed in accordance with a scale fixed by law and not by the interpreters themselves ; the assessment is made by a court official ( PERSON ) when the overall costs of the proceedings are determined .

Mr. PERSON is a citizen of GPE and was , at the time of his application to the Commission , a member of the NORP Forces stationed in GPE .

On CARDINAL DATE , ORG ( ORG ) convicted him of a road traffic offence . He was fined ORG and ordered to pay the costs of the proceedings .

On DATE , after the judgment had become final , the public prosecutor ’s department ( ORG ) attached to ORG ( Landgericht ) served Mr. Luedicke with a notice to pay the sum of DM CARDINAL , made up of the fine of ORG and the fees ( GPE ) due in respect of the criminal proceedings ( DM CARDINAL ) and the withdrawal of his driving licence ( DM CARDINAL ) , together with police costs ( DM CARDINAL ) and interpretation costs ( DM CARDINAL ) . DM CARDINAL of the last item related to the oral hearing .

On DATE , the applicant , represented by ORG at GPE , entered an appeal ( GPE ) against this assessment of costs ; he maintained that the assessment was contrary to LAW CARDINAL ( e ) ( article DATE ) of the LAW in so far as it concerned payment of the interpretation costs .

Following the refusal of the auditor ( PERSON ) attached to ORG to modify the assessment , the matter was referred to ORG which dismissed the appeal on DATE . ORG stated in particular :

" The object of LAW ... is to guarantee certain fundamental rights to everyone faced with criminal proceedings . In GPE , this LAW ) applies to proceedings brought against foreigners as well as to those brought against NORP nationals . It is not the aim of the provision to place foreigners in a more favourable position than NORP nationals . This , however , would be the case if a foreign convicted person was not required to pay the interpretation costs . For example , under the NORP law of procedure and costs , a deaf - and - dumb convicted person against whom proceedings can not be taken without a special interpreter must pay the costs of interpretation . So must also a NORP convicted person in whose trial non - NORP - speaking witnesses have to be examined with the assistance of an interpreter . Under the rules of NORP criminal procedure every person finally convicted must himself bear all the costs of the proceedings , including ... the interpretation expenses . This obligation is not contrary to LAW ... which does not forbid awarding the costs of the proceedings against a person convicted of an offence .

Under NORP procedural law , however , no accused person need make advance payment for the costs of interpreters ... This would appear not to be the case in other signatory GPE of the Convention as otherwise it would be difficult to understand the wording of Article CARDINAL para . CARDINAL ( e ) ( article DATE ) .

The ORG thus interprets Article CARDINAL para . CARDINAL ( e ) ( article DATE ) ... as a provisional exemption from paying the interpretation costs ... "

On DATE , following an " immediate appeal " ( sofortige Beschwerde ) by Mr. PERSON , ORG confirmed the impugned decision , relying , inter alia , on the " correctness of the reasoning " contained in that decision .

On DATE , the applicant paid the costs of the proceedings , including the interpretation costs .

Mr. PERSON is an NORP citizen , born in DATE . After completing his apprenticeship as a locksmith in GPE , he rejoined his father in GPE where he followed various occupations .

In DATE , he was involved in a dispute in a GPE TIME - club during which another client lost his coat . He was charged with robbery and with assault occasioning bodily harm ; his case was tried by ORG ( PERSON ) . On DATE , ORG convicted him of assault occasioning bodily harm . He was sentenced to CARDINAL GPE imprisonment ( ORG ) - a sentence deemed to have been served during his detention on remand - and to a fine of DM CARDINAL , and he was ordered to pay the costs of the proceedings .

On DATE , Mr. PERSON filed an " immediate appeal " against the order as to costs insofar as the interpretation costs had been included in the award . He submitted that Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW granted him exemption from payment of the costs in question .

On DATE , ORG dismissed the appeal . ORG reasoned that , since no assessment of costs had yet been made , there had been no decision capable of being challenged on appeal . ORG further stated that ORG would have acted improperly if it had omitted the interpretation costs from its decision on the costs of the proceedings - the former costs , according to LAW read in conjunction with LAW and the Witnesses and Experts ( LAW , constituting a component of the latter costs . Furthermore , it was added , Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW did not prohibit a convicted person being made to bear interpretation costs .

On DATE , FAC served Mr. PERSON with a notice to pay costs amounting to DM CARDINAL.CARDINAL , including DM CARDINAL.CARDINAL for interpretation costs . The latter sum comprised the expenses incurred in respect of Mr. PERSON ’s appearance before the judge on DATE ( DM CARDINAL ) , the review on DATE of his detention on remand ( NORP ) ( DM CARDINAL ) , the translation of the indictment ( DM CARDINAL ) and the trial hearing on DATE ( DM CARDINAL ) .

The applicant unsuccessfully challenged the inclusion of interpretation costs in this assessment of the costs . On CARDINAL DATE , his appeal was dismissed by ORG which held , inter alia , that Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW did not prevent interpretation costs being awarded against a convicted person . Mr. PERSON then lodged an " immediate appeal " which was rejected by ORG on DATE . As far as Article CARDINAL para . CARDINAL ( e ) ( article DATE ) was concerned , ORG referred to its decision of CARDINAL DATE and continued :

" In the light of the context of Article CARDINAL para . CARDINAL ( article CARDINAL ) ... , which lays down fundamental guarantees for a fair trial , ORG ... interprets sub - paragraph ( e ) ( article DATE ) to mean that the assistance of an interpreter must not be made dependent on the accused ’s making any advance payment . This sub - paragraph guarantees a court hearing for a foreigner who is ignorant of the language , regardless of his capacity to pay .

Who finally has to bear the costs of interpretation after the proceedings have terminated is a different question . That after conviction this may be the accused is not excluded by LAW CARDINAL ( e ) ( article DATE ) ... "

On DATE , following a request by Mr. PERSON , ORG allowed him to defer payment " until the decision of ORG be known " . From that time , he has not been required to pay the costs in question since , at the request of the Government , the relevant GPE authorities ( ORG ) have suspended recovery awaiting the judgment of this ORG .

Mr. PERSON , a NORP citizen born in DATE , has been employed in GPE in various trades , including mining and the construction industry . When he applied to the Commission , he was living at FAC . On DATE , he notified the relevant authorities in ORG , near GPE , his last place of residence in GPE , of his intention to return to GPE .

On DATE , ORG attached to ORG ( ORG beim ORG ) at GPE convicted Mr. PERSON of causing grievous bodily harm . He was sentenced to a DATE ’s imprisonment , but the balance of his sentence remaining after allowance had been made for his detention on remand was commuted to a period of probation . The court ordered the applicant to bear the costs of the proceedings " with the exception , however , of the costs occasioned by the assistance of the LANGUAGE - language interpreter , which costs are to be borne by the ORG " . Although taking notice of the conflicting practice of the NORP courts in this connection , ORG held that the " free " assistance of an interpreter , as guaranteed by Article CARDINAL para . CARDINAL ( e ) ( article DATE ) to every accused not conversant with the language of the court , is to be understood as being free once and for all time .

On an " immediate appeal " by the public prosecutor ’s department , ORG ( Oberlandesgericht ) , in a fully reasoned decision delivered on DATE , set aside ORG judgment insofar as it related to the interpretation costs . ORG stated :

" On [ its ] wording , it is controversial whether ( Article CARDINAL para . CARDINAL ( e ) ) ( article DATE ) forbids a convicted person ’s being charged with the costs of interpretation under the above - cited provisions relating to costs or whether - in the case of criminal proceedings in NORP courts DATE it merely means that the assistance of an interpreter may not be made dependent on an advance payment by the accused . ...

The object of the ORG is to secure human rights and fundamental freedoms against arbitrary ORG action and to place them under the protection of supranational law . ... It is not its purpose to go further and alter the national legal systems ... The list of procedural guarantees in DATE ( article CARDINAL ) of the LAW shows that the intention was to enshrine rights of the citizen and duties of the ORG which ensure a fair trial . This obviously means that the accused ( or person charged ) should be able to call for the assistance of an interpreter if he does not understand or speak the language used in court and that such assistance should be in no way dependent on the question of costs . But it certainly does not mean that even a convicted person may not have the costs of interpretation awarded against him . A fair trial is guaranteed in this respect insofar as the accused must be assisted by the interpreter he needs . The question whether he may later be required to bear the costs is not of the same order as the problem of guaranteeing human rights and fundamental freedoms but , both in theoretical and practical terms , is of lesser moment . It can not be assumed that the ORG is intended to provide a piecemeal solution of the question of costs in criminal proceedings . Nor does the consideration that a foreigner should not receive worse treatment in the matter of costs than a national , dictate the conclusion that permanent exemption from costs is necessarily implied by the object of LAW The Convention would not have come appreciably nearer to achieving its aim by prohibiting a financial disadvantage of such a kind . "

On DATE , Mr. PERSON applied to ORG ( Bundesverfassungsgericht ) which , DATE , declined to hear the application on the ground that it did not offer sufficient prospects of success .

According to the payment vouchers ( ORG ) , the fees paid to the interpreter amounted to DM CARDINAL for the hearing on DATE , DM CARDINAL for the hearing on DATE and ORG CARDINAL.CARDINAL for the hearing on DATE - making a total of DM CARDINAL .

Nevertheless , the applicant was not served with a notice to pay the costs for which he was liable , including the interpretation costs , since it was noted that he had a wife and CARDINAL children to support , that his income was modest and that there was thus no prospect of recovering the costs . For these reasons , the competent court official , acting in pursuance of Article CARDINAL para . CARDINAL of the Service Instructions of CARDINAL DATE on ORG ) , had decided of his own motion on DATE not to assess the costs . His decision was not notified either to Mr. PERSON or to Mr. PERSON ’s lawyer .

A second decision to this effect was taken by the same official on DATE . This decision recorded that the applicant was living in GPE that his address was unknown and that recovery of the costs , being doomed to failure , should be waived . Mr. PERSON ’s lawyer discovered the existence of the decision in DATE when he sought from the court a photocopy of the interpreter ’s payment vouchers .

Before the ORG , the Agent of the Government , with the agreement of the Minister of ORG for ORG made the following declaration :

" ... the compulsory collection of costs from the applicant PERSON in pursuance of the judgment of DATE by ORG attached to ORG , varied in part by the decision of CARDINAL DATE by ORG , will not be carried out in future ; for the costs of such compulsory collection and the administrative costs would be out of proportion to the sum owed . "

The Agent specified that " the costs ... would not be collected even if the applicant were to return to GPE " .


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

The applicant , PERSON , was born in DATE and lives in Hafnarfjördur .

The present case has its background in a real estate sale by the applicant to PERSON in DATE , relating to a property at FAC in GPE . The relevant sales agreement of DATE referred to a summary report describing the property , which included the following statement : “ The house has recently been renovated on the outside , except for windows and glass . New roof tiles . Garage renovated windows partly . Wooden parquet flooring in need of repair . Great location in the west part of GPE . Leakage in cellar has not been remedied . Seller will have that done . ”

In DATE PERSON complained to the real estate agent that he had discovered a leak from the roof of the house and that the repair which had previously been done to the roof had covered only parts of it . Many new or newly discovered flaws on the property could be traced back to the leak in the roof . Moreover , PERSON claimed compensation from the applicant .

Following a report issued on DATE by a court appointed expert , PERSON brought compensation proceedings before ORG , claiming a discount on the purchase amount due to defects as well as compensation for the damage to the property .

After holding an oral hearing , at which the applicant was represented by a lawyer and both parties were heard and evidence was presented , including a report by a court appointed expert , ORG , sitting with CARDINAL professional judge and CARDINAL expert judges , by a judgment of CARDINAL DATE , found in favour of PERSON and against the applicant . It ordered the applicant to pay PERSON CARDINAL NORP krónur ( ISK ) , plus default interest as from DATE , and ISK CARDINAL for legal costs ( value added tax included ) .

ORG judgment included , inter alia , the following reasons :

“ The plaintiff [ PERSON ] received the property in DATE . The plaintiff noticed a leak in the house in DATE , after a DATE with bad weather . The engineers report verified that there had been a leak on the roof . In accordance with the summary report for the sale of the house , where the property is described in writing , which also was available at the signing of the contract for sale , it is stated that there are new roof tiles on the roof . As has been verified throughout this process this was not the case . Furthermore it is not the understanding of the court that the plaintiff should have seen this fault during routine inspection of the house or should have seen whether the tiles were new . It has also been stated in the engineers report that the roof leaked and has caused damages to windows and window frames . It is therefore the understanding of the court that the defendant [ PERSON ] guaranteed that the roof tiles were new , and that the plaintiff should have been able to trust that the roof would not leak , even if the house is an old CARDINAL .

By selling the property without the proper qualities , the defendant is liable to the plaintiff in accordance with the general rule of CARDINAL . paragraph , chapter CARDINAL of the laws then valid nr . CARDINAL regarding liquid assets . ”

On DATE the applicant lodged an appeal with ORG against ORG judgment , challenging the latter ’s conclusions that she was liable to pay PERSON compensation or , in any event , claiming that the amount be reduced . PERSON was then given until DATE to notify ORG of whether he intended to submit any pleadings in the case , failing which it would be presumed that he would request confirmation of ORG judgment and that the case would be adjudicated in accordance with LAW , No . CARDINAL/CARDINAL .

Concurrently with her appeal , the applicant asked that a new expert be appointed by ORG in order to evaluate especially the supporting surface under each tile and to evaluate the necessity of changing the supporting surface ( roof cardboard ) if tiles were to be changed on the roof . ORG granted the request and appointed expert B.

NORP The applicant submitted to ORG a writ of appeal dated DATE , which was deposited on DATE together with the case - documents pursuant to LAW . The writ reiterated the applicant ’s claims , enclosing copies of her request to ORG to appoint an expert and to take a statement from PERSON for use at a hearing before ORG . It moreover outlined the facts of the case and stated the applicant ’s grounds for appeal . It referred to her claims , arguments and evidence submitted in the ORG proceedings . The applicant protested against the assessment made by the expert before ORG . She maintained that PERSON had examined the house , including the roof , in detail before signing the acquisition offer . The offer of purchase had been issued on DATE and PERSON had taken possession of the property on DATE , whereas the sales agreement had been issued on DATE . Thus , the applicant argued , when the sales agreement had been issued , PERSON had been in possession of the property for DATE without ever mentioning that there had been a discrepancy between the retail accounts of the house and the state of the house with regard to roof tiles . It was unthinkable that PERSON had not known that the tiles were old at the time of the sales offer and certainly upon signature of the sales agreement . It was improbable that PERSON , who was an active person of keen interest , would not have taken a look at the roof . The slope of the roof had been quite steep and could be seen from the side - walk . It was preposterous to claim that the wording of the retail could be stretched to mean something other than what could be seen in plain sight . This was the essence of the case .

The applicant further maintained that not until DATE had PERSON raised the matter in dispute and only then had he made an issue about the specific wording of the summary report describing the property with regard to new roof tiles . His indifference in this respect should lead to his forfeiting any right that he might have claimed . This indifference was further illustrated by the fact that he alleged to have discovered a leak shortly after taking possession of the property but had made no comments during the signing of the sales agreement or the deed . The applicant announced that she would make submissions about the confusing interpretation made by ORG regarding the wording of the summary report describing the property and the alleged flaw on the roof . She would submit new documents to ORG when they were ready , notably a new assessment by a court appointed expert .

In addition , the applicant requested ORG to take witness evidence from persons who had provided repair and restoration services to PERSON in order to enlighten ORG on whether they had noticed that PERSON himself had inspected and examined the roof during DATE .

Finally the applicant stated that the case would be further presented and commented on in the course of an oral hearing .

As at DATE G had not indicated that he would plead his case before ORG .

According to a letter of DATE from ORG to the applicant ’s lawyer , he was given until DATE to complete her further collection of evidence under Article CARDINAL ) . The lawyer then requested an extension with reference to the need to await the completion of the assessment by the court - appointed expert , which ORG granted until DATE . On the same ground ORG granted a further extension until DATE .

On DATE the applicant ’s lawyer asked , by way of e - mail , for a further extension of DATE . On DATE ORG registrar conveyed the following message to the lawyer by e - mail :

“ The possibility is still open that the respondent [ G ] will be allowed to present defences in ORG , although he did not make a notification to that effect . An essential requirement is a letter from the respondent to the ORG , asking to be allowed to present his defences and explaining the reasons why no notification of defences was made . The letter must be accompanied by the appellant ’s [ the applicant ’s ] approval of this being allowed . This is assuming that judgment has not already been rendered on the basis of LAW No . CARDINAL/CARDINAL . ”

By return e - mail in DATE , the applicant ’s lawyer declared that he would forward this information to the other side . He also asked whether an extension of DATE would be granted . There is no record of any formal reply to this request .

In a letter of CARDINAL DATE the applicant ’s lawyer reiterated his request to be granted respite , until DATE , in order to present the awaited new expert appraisal . He also informed that PERSON had omitted to show up at a hearing and affirmed that it was now clear that PERSON would not make submissions . He further objected that ORG interpretation of ORG CARDINAL and CARDINAL of the ORG meant that the applicant was prevented from defending her case and stressed that a short summary of facts could not replace an oral hearing .

On DATE G ’s lawyer sent the office of ORG the following e - mail message :

“ Further to our conversation DATE , I can confirm that my client ’s [ G ’s ] desire is not to take any action on account of [ the applicant ’s lawyer ’s ] request for a reopening of the case and to have the case adjudicated in the present form , without further collection of evidence or presentation in court . His requests were , or were to be , only an affirmation of the judgment appealed from . ”

By a letter to ORG of DATE , the applicant ’s lawyer protested against its interpretation of Article CARDINAL ) . It unduly restricted her possibilities of pleading her case in writing and orally . It meant that the case file from ORG and her appeal to ORG would constitute the only basis for ORG adjudication . Therefore , she asked ORG to grant her leave to at least plead her case in writing , her observations submitted so far having only been a “ skeleton ” version of the submissions she had intended to make to ORG . So far she had had no opportunity to elaborate on her appeal with references to case - law , scientific research or writings , explanation of the factual aspects of this case or the documentary evidence . The lawyer stressed that in so far as he was concerned the case was not ready for examination . In the circumstances it was the adversary party who had been allowed to decide the fate of the case while the applicant had practically lost standing in the case .

At an oral hearing held by ORG on DATE expert B presented his report and answered questions from the applicant ’s lawyer .

With a letter of CARDINAL DATE the applicant ’s lawyer transmitted to ORG the expert PERSON ’s appraisal , ORG decision of CARDINAL DATE confirming the appraisal , CARDINAL photographs of the house and some other documents . According to the applicant , the new appraisal showed that ORG had overestimated the costs of repair , should ORG find that the applicant had promised that the roof had been completely renovated with new tiles at the time of sale . The applicant further commented on the photographs of the roof from DATE and on the front page of expert PERSON ’s report . She invited the members of ORG to carry out an on site visit to see that the state of the roof could be seen from the side walk . She also pointed out that her request to ORG to hear persons who had worked on the house for G during DATE had been denied by him , which the applicant had interpreted as an attempt to conceal information about the fact that G had thoroughly checked the roof and been aware of its state during DATE .

On DATE ORG , adjudicating the case on the basis of the written case - file , rejected the applicant ’s appeal and upheld ORG judgment . ORG held inter alia :

“ The plaintiff appeared before ORG and claimed that she knew there had been repairs on the roof in DATE or so . She also claims that the repairs were only that some of the oldest tiles or cracked tiles were exchanged for others and only in certain areas of the roof . When asked , the plaintiff did not remember if this had been especially discussed in detail with the defendant , when he examined the house the first time . She did however tell the defendant that the roof had been repaired and that it no longer leaked . It is the court ’s ruling that the plaintiff should have known that this description in the summary report for the sale of the house and the description of the current status of the roof , would give the defendant the wrong impression of the actual condition of the roof . The defendant should have reason to trust the description of the house in the summary report for the sale of the house and therefore have reason to believe the house had been renovated . Since the roof had not been fully renovated , the defendant has a right to compensation . In accordance with this and in other respects ORG refers to the ORG ruling and proceedings and verifies the ORG ruling hereby . ”

In accordance with the above , the applicant paid ISK CARDINAL ( MONEY ( ORG ) to PERSON

ORG drew particular attention to the following provisions of LAW , No . CARDINAL/CARDINAL :

LAW

“ CARDINAL . A party desiring to appeal against a judgment shall submit an appeal summons to the office of ORG , with a transcript of the judgment . The following shall be stated in the appeal summons :

a. The district court ’s designation and number of the case , the name of the district court that resolved the case , and the date of adjudication ;

b. the names of the parties , their ORG numbers , their places of residence or stay , and , if applicable , the names of their representatives , their positions and their places of residence or stay ;

c. the person or persons representing the appellant in court ;

d. the purpose of appeal and the requests made by the appellant ;

e. the date when the respondent must , at the latest , notify ORG that he intends to bring forth defences in the case , which date the office of ORG shall determine when the summons is issued , and

f. the consequences of failing to provide the notification provided for in subparagraph ( e ) .

Article CARDINAL

“ CARDINAL . Following the service of an appeal summons , but before the respondent ’s period provided for in LAW , the first paragraph , subparagraph ( e ) , is over , the appellant shall deliver the summons to ORG with proof of its service , and written observations on his behalf . He shall also deliver the case file in the number of copies which ORG may decide , consisting of the already available case documents and any transcripts on which the appellant plans to base his case before ORG . This marks the filing of the case by ORG .

In the appellant ’s written observations the following shall be stated :

a. The purpose of appeal and the appellant ’s exact requests to ORG , and whether appeal is also lodged in order to obtain a reversal of any particular order or decision of the district court .

b. The facts invoked by the appellant before ORG . Their description shall be concise and so clear as to preclude any doubt as to on what basis appeal is lodged ; the appellant may however , as applicable , refer to particular case documents in this regard . If the appellant can not agree with the district court ’s description of other relevant facts , he shall likewise state in which manner he considers them correctly described .

c. References to the principal rules of law on which the appellant bases his case before ORG .

d. The documents submitted to ORG at that time , and the documents he deems necessary to obtain .

Article CARDINAL

“ CARDINAL . If the respondent desires to submit written observations , he shall notify ORG to that effect within the period granted him for this purpose in the appeal summons . When the case is filed the office of the ORG shall grant the respondent a period of DATE to submit his written observations , at the same time sending him a copy of the case file submitted by the appellant . The appellant shall be notified of the period granted the respondent .

ORG - appeal shall not make the respondent entitled to any additional period .

If ORG does not receive any notification in accordance with the first paragraph , or if the respondent does not submit his written observations within the period granted him , he shall be assumed to request affirmation of the district court ’s judgment . The case shall then be received for adjudication ; the appellant may however be granted a brief period to complete the collection of evidence he may have announced in his written observations . The ORG shall render a judgment in the case on the basis of the submissions made , without an oral hearing .

If the respondent delivered written observations , but appearance was not made on his behalf at a later stage , the appellant may be granted an opportunity to reply to his defences in a written brief , and to complete his collection of evidence . The case shall then be received for adjudication and a judgment rendered on the basis of the requests and submissions made and the appellant ’s brief , taking the respondent ’s submissions into account .

If the respondent has not delivered written observations , ORG may nevertheless permit him to present his defences in the case , with or without the appellant ’s approval , provided important interests are at stake for him and his negligence is deemed excusable . This may also be done if the respondent fails to make an appearance at a later stage of the procedure .

Article CARDINAL

“ CARDINAL . When collection of evidence has been completed in a case where the respondent has delivered written observations , the Supreme Court shall decide the time of an oral hearing and make this known to the parties at a suitable notice .

A case in which the respondent has submitted written observations shall be heard orally . ORG may nevertheless decide that a case shall be presented in writing if particular reasons recommend this . The ORG may also grant the parties’ unanimous request for adjudication without particular case presentation .

Article CARDINAL

“ CARDINAL . Before an oral hearing takes place during a court session , the conclusion of the district court shall be stated and the appeal summons described to the extent the President of the ORG deems necessary for explanation of the case presentation . The parties shall subsequently deliver their speeches .

The appellant shall speak first and the respondent subsequently , if the President has not decided on a different order and notified this to the parties when called to appear for oral presentation . Following the original speeches , the parties shall be granted an opportunity to present brief replies in the same order . The President of the ORG may permit a party represented by a representative in litigation to present his brief observations following the representative ’s replies .

In their speeches , the parties shall explain their requests , the matters in dispute , the facts invoked , and any other arguments in support of the requests made . ORG shall be avoided and the argumentation shall be directed to the points in dispute or to matters that must be considered in order to clarify the issues .

The President of the ORG shall chair the proceedings . The President may demand that a speaker does not stray from the substance of the litigation and that consideration is not given matters that are not in dispute or that otherwise do not merit further explanation . The President may halt the case presentation if a speech is of excessively long duration , or specify a time limit , and halt the case presentation when that limit is reached .

Following the case presentation the ORG shall receive the case for adjudication . ”


CASE OF LAKIĆEVIĆ AND OTHERS v. MONTENEGRO AND SERBIA

Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants - Ms Nevenka Lakićević ( the first applicant ) , Mr PERSON ( the second applicant ) , Mr Veselin Budeč ( the third applicant ) , and Mr PERSON ( the fourth applicant ) - are all LOC nationals who were born in DATE , and DATE respectively . They live in ORG ( the first and third applicants ) and PERSON ( the second and fourth applicants ) .

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

DATE the applicants closed their private law firms and submitted papers to begin their retirements .

DATE their old - age and disability pension entitlements , as well as the exact amount of their pensions ( starosna i invalidska penzija ) , were established by decisions of ORG ( Republički fond penzijskog i invalidskog osiguranja ; hereinafter “ the ORG ” ) . The decisions , as submitted by the second and fourth applicants , allowed the applicants to resume working on a part - time basis .

DATE and DATE the applicants reopened their own legal practices on a part - time basis .

On DATE , DATE , DATE and DATE ORG suspended ( obustavlja ) payment of the applicants’ pensions respectively , until such time as they ceased professional activity . These decisions were all “ deemed to be applicable as of DATE ” , which was when CARDINAL of ORG DATE ( hereinafter “ the LAW DATE ” ) entered into force ( see paragraphs CARDINAL and CARDINAL below ) .

The Pension Fund ’s rulings were subsequently upheld by ORG ( Ministarstvo rada i socijalnog staranja ) , as well as , ultimately , by ORG Upravni sud ) on DATE , DATE , DATE and DATE in respect of the first , second , third and fourth applicants respectively . ORG explained , inter alia , that the applicants had not been deprived of their pension entitlements as such , but that the payment of their pensions had instead been suspended on the basis of the relevant domestic legislation .

Finally , on DATE , DATE and CARDINAL DATE respectively , ORG ( PERSON ) in GPE dismissed the second , third and fourth ORG requests for judicial review of their cases ( zahtjev za vanredno preispitivanje sudske odluke ) . In so doing , ORG essentially endorsed the reasons given by ORG .

The first applicant did not attempt to make use of the judicial review avenue , in view of the fact that the other applicants’ identical requests had already been rejected by ORG .

Payment of the second applicant ’s pension was resumed with effect from DATE , which is when he ceased his professional activity . The payment of the second , third and fourth applicants’ pensions was resumed with effect from DATE , which is when the LAW to LAW entered into force , repealing section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) .

On DATE ORG lodged a compensation claim against the first applicant , seeking repayment of the pension payments she had received for DATE in the total amount of MONEY ( ORG ) . In response , the first applicant lodged a counterclaim seeking payment of the pension which had not been paid to her DATE and DATE due to the suspension of her pension rights , amounting in total to LAW .

On DATE ORG ( PERSON ) in ORG , after joining the CARDINAL proceedings , ruled in favour of the first applicant , referring , in particular , to section CARDINAL of the LAW to ORG DATE ( hereinafter “ the LAW to LAW ” ) , CARDINAL of LAW DATE as well as a decision of ORG ( see paragraphs CARDINAL , DATE and DATE below ) . On DATE ORG ( PERSON ) in GPE overturned this judgment and ruled against the first applicant , relying on sections CARDINAL and CARDINAL of LAW DATE and considering that their application was not retroactive . This judgment was upheld by ORG on DATE , which court mainly endorsed the reasons of ORG . In doing so , ORG in particular referred to CARDINAL of LAW DATE .

On DATE ORG issued an enforcement order providing that ORG would retain CARDINAL the first applicant ’s pension until the entire sum owed had been paid . On DATE this decision was upheld by ORG .

On DATE and an unspecified date ORG lodged compensation claims against the second and third applicants respectively , seeking repayment of the pension they had received from DATE .

On DATE ORG in GPE ruled against the second applicant , which judgment was upheld by ORG in GPE on DATE . It would appear from the case file that this decision has been enforced .

On DATE ORG in ORG ruled in favour of the third applicant . On DATE ORG in GPE overturned this decision and ruled against him . In doing so , it referred to the above decisions of ORG and ORG ( see paragraphs CARDINAL above ) . It would appear from the case file that this decision has been enforced in subsequent enforcement proceedings .

There is no information in the case file as to whether ORG instituted civil proceedings against the fourth applicant .

Article CARDINAL § CARDINAL of the LAW provided that both member GPE shall regulate , safeguard and protect human rights in its territory .

Section CARDINAL paragraph CARDINAL provided that a person ’s pension shall be suspended should he or she resume working or establish a private practice , for as long as this activity continues .

Section CARDINAL paragraph CARDINAL provided that beneficiaries of , inter alia , old - age pension ( starosna penzija ) and disability pension ( invalidska penzija ) , who obtained these rights in accordance with the relevant legislation in force before this LAW entered into force , shall preserve these rights afterwards at the same level ( u istom obimu ) with appropriate adjustments [ on the basis of living expenses and average salaries ] .

Section CARDINAL provided that this Act would enter into force on DATE .

Section CARDINAL repealed CARDINAL paragraph CARDINAL of LAW DATE . These LAW entered into force on DATE .

On DATE ORG of GPE , GPE being comprised of GPE and GPE at the time , held that section CARDINAL of ORG , which essentially corresponded to CARDINAL paragraph CARDINAL of LAW DATE , was in breach of LAW . In particular , once pension entitlements had been acquired they could not be repealed or restricted by subsequent measures . Further , there was a lack of proportionality between the public interest , protection of which was allegedly the intention of the provisions in question on the one hand and the interests of individuals in respect of their property rights on the other . Lastly , the court held that the section in question was indeed retroactive in nature , since it had also been applied to pensioners who had resumed professional activities before its entry into force .

On DATE ORG rejected an initiative to assess the constitutionality of CARDINAL paragraph CARDINAL of LAW DATE . In so doing , it held , inter alia , that it was a matter of legislative judgment whether or not to allow a person to simultaneously receive pension and resume working , and that therefore this matter fell outside the jurisdiction of ORG . It further held :

“ According to ORG , LAW does not have retroactive effect , as it does not apply to situations which came into existence before its entry into force , but only as regards those ... which have arisen ... [ thereafter ] ... ” .

Articles CARDINAL provide details concerning a request for judicial review ( zahtjev za vanredno preispitivanje sudske odluke ) .

NORP In particular , Articles CARDINAL provide that parties may file a request for judicial review with ORG . They may do so within DATE following receipt of a final decision rendered by ORG , and only if the relevant legislation , procedural or substantive , has been breached by the lower court .

In accordance with LAW , the ORG shall , should it accept a request for judicial review lodged by CARDINAL of the parties concerned , have the power to overturn the impugned judgment or quash it and order a re - trial before ORG .