Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in PERSON .

On DATE at TIME the applicant was arrested and escorted to ORG of LOC . It appears from a report by the arresting police officer that the applicant had been arrested on DATE on suspicion of drug trafficking . However , no drug - related charges were ever brought against him . According to the applicant , he was told that he was suspected of murdering a policeman . He denied any involvement .

In TIME of the same day the applicant was transferred to GPE police station , of LOC , where he was beaten up by Mr PERSON ( the head of the police station ) and PERSON ( the head of the ORG department ) . According to the applicant , they slapped and kicked him in the head , trunk and solar plexus . They forced him to kneel down in front of a picture of the murdered policeman and to apologise for killing him . They undressed him and threatened to rape him . Mr Gerasimov smacked his hands over the applicant 's ears . He lost consciousness and was handed over to the police officers PERSON PERSON and Mr PERSON , who continued the beatings . They tied his hands behind his back with a rope and hung him down , then put a gas - mask on him and blocked the air vent .

At TIME the applicant was placed in a punishment cell at the police station .

On DATE the applicant was formally detained and questioned . He denied his guilt and signed an undertaking not to leave the town . However , instead of being released , he was again placed in a cell at GPE police station . It is apparent from the register of detainees at the police station that the applicant was held there from CARDINAL to DATE .

According to the applicant , during his detention at GPE police station he was repeatedly beaten up by PERSON ( the head of the public safety department ) , PERSON , PERSON and PERSON ( a deputy head of the police station ) . He was also punched by the police officers PERSON PERSON , Mr PERSON , PERSON , Mr Panteleyev and Mr Savvin . They slapped and kicked him in the head , back , stomach , kidneys and liver , hit his eyes with their fingers , smacked their hands over his ears and spat at him . They threatened to rape and kill him . They put a gas - mask on him and blocked the vent , and forced him to inhale cigarette smoke .

On DATE the applicant was formally remanded in custody on suspicion of murder . He was then transferred to GPE police station of LOC , where he remained until DATE . He was questioned by Mr PERSON , who threatened to beat him up if he did not confess to the murder .

On DATE the applicant was taken back to GPE police station . He stated that every day from DATE he had been severely beaten up by the same policemen as before . Mr PERSON , PERSON and PERSON administered electric shocks to various parts of his body through wires connected to a dynamo and insisted that he should refuse legal assistance and confess . The applicant lost consciousness several times . An investigator from the prosecutor 's office of LOC , Mr PERSON , witnessed the ill - treatment .

On DATE the applicant had a talk with Mr GPE , an investigator from the prosecutor 's office of LOC in charge of the inquiry into the policeman 's murder . Mr GPE allegedly urged him to confess and threatened that beatings would continue until the confession was made .

On DATE the applicant confessed to the murder and his confession was videotaped . Before the videotaping , the police officer PERSON put make - up on his face to conceal the bruises .

On DATE the applicant was charged with murdering the policeman . He repeated his confession to the investigator Mr GPE . Before being questioned he made a handwritten statement that he did not require legal assistance .

On DATE the applicant was transferred to detention facility no . YuU-CARDINAL/T-CARDINAL in the town of NORP in LOC ( “ the NORP detention facility ” ) . On DATE he had a meeting with counsel retained by his mother . Counsel saw bruises and abrasions on his face and body .

DATE and from DATE to DATE , the applicant was held at GPE police station . According to the applicant , he was repeatedly beaten up by the same policemen as before . They tied him up , wrapped him up in a mattress , put him on the floor and jumped on him . They hit his feet with rubber truncheons , punched and kicked him , and smacked their hands over his ears . They pointed a gun at him and threatened to rape him . They put a gas - mask on him and blocked the vent . They also tortured him with electricity .

On DATE the murder charge against the applicant was dropped because he had retracted his confession and there was no other evidence against him .

On DATE the ORG convicted another person for the policeman 's murder .

It appears from certificates issued by a deputy head of the Yelets detention facility and by a doctor of the same facility that the applicant arrived there on DATE . There were bruises around his eyes and crusted abrasions on his wrists . The applicant complained of a headache . He was examined by a neurologist , who found no traces of craniocerebral injury . However , he was given treatment for “ a prior craniocerebral injury ” , allegedly received in DATE .

On DATE the applicant was examined by a medical expert , Mr PERSON . It was recorded in his report that the applicant had bruises around his eyes , a bruise on his trunk , a bruise on his left hip , and crusted abrasions on his wrists . Mr PERSON found that those injures had been inflicted DATE before . However , he subsequently stated to the investigator that his assessment had been mistaken and that the injuries had in fact been received DATE before the examination .

On DATE the applicant was diagnosed with otitis ( an inflammation of the internal or external ear , usually caused by bacteria or trauma ) .

On DATE the applicant was X - rayed . No traces of posttraumatic bone deformation were detected .

On DATE the applicant was examined by a panel of psychiatrists who concluded that he was mentally sane .

The applicant repeatedly complained QUANTITY . On DATE , DATE and DATE a surgeon examined his feet and found no posttraumatic pathology . However , on CARDINAL and DATE doctors detected podoedema ( swelling of the feet and ankles ) and depigmentation of his feet .

NORP In DATE the applicant was diagnosed with chronic posttraumatic arachnoiditis ( pain disorder , caused by the inflammation of CARDINAL of the membranes of the spinal cord ) .

In DATE and DATE he repeatedly complained about headaches , nausea , dizziness , general weakness and recurring loss of consciousness . A neurologist found that he was suffering from the after - effects of repeated craniocerebral injuries and brain concussion .

On DATE he was diagnosed with cerebral oedema ( an excess accumulation of water in the brain as a result of , among other things , head injury ) and post - traumatic deformation of CARDINAL left ribs .

On DATE he was examined by a psychiatrist who diagnosed post - traumatic asthenoneurotic syndrome ( tics ) .

On DATE the applicant was diagnosed with obliterating endoarthritis ( inflammation of and damage to bone joints caused by strains or injuries ) and neuropathy of the feet ( a disease affecting the nervous system caused by infection , repeated trauma or acute trauma ) .

On DATE medical experts of ORG of ORG returned the following findings on the basis of the applicant 's medical records :

- the injuries described in the medical report of DATE had been caused DATE before the examination of the bruises , and DATE before the examination of the abrasions . The injuries could have been inflicted under the circumstances described by the applicant ;

- it is not possible to establish with certainty whether the applicant had sustained a craniocerebral injury on DATE .

On DATE the applicant was diagnosed with left - side hearing impairment .

On DATE a panel of psychiatrists of the ORG psychiatric hospital examined the applicant and concluded that prior to the arrest he had been in good health . In the course of the investigation and detention he had developed a post - traumatic stress disorder which took a chronic form . The organic personality change and paranoid personality disorder could have been caused by ill - treatment inflicted on him between DATE and DATE .

On DATE the applicant was examined by a panel of psychiatrists of ORG in GPE . The psychiatrists confirmed the findings of the examination of DATE and stated that the applicant 's psychiatric disorder had been the result of a brain trauma in DATE . They recommended that the applicant undergo psychiatric treatment .

On DATE the applicant was examined by a surgeon who diagnosed him with post - traumatic arthritis of both feet . A neurologist concluded that he was suffering from the after - effects of repeated craniocerebral injuries and from post - traumatic encephalopathy ( a brain disease ) .

It is recorded in a certificate of CARDINAL DATE that the applicant was suffering from left - side deafness and right - side hearing impairment .

In DATE the applicant was granted disability status and a pension .

According to a certificate of DATE by PERSON , the psychiatrist treating the applicant , the applicant still suffers from psychiatric disorders . He visits a psychiatrist twice a DATE and receives psychoactive drugs in large doses . However , despite the intensive treatment , his psychiatric condition is continuing to deteriorate .

NORP On DATE a panel of psychiatrists from ORG in GPE found that since DATE the applicant had been suffering from a post - traumatic paranoid personality disorder . That disorder was so severe and lengthy that it could be defined as chronic . They concluded that he needed in - patient psychiatric treatment .

Starting from DATE and until DATE the applicant and his counsel filed many complaints about the ill - treatment with the town and regional prosecutors and with ORG . The applicant described in detail the treatment to which he had been subjected , named the police officers of GPE police station implicated in the ill - treatment and asked to be examined by a medical expert with a view to noting his injuries . He asked the prosecutor 's office to initiate criminal proceedings against the police officers .

On DATE the applicant 's complaints were sent by the prosecutor 's office of LOC to the investigator Mr PERSON who was asked to carry out a preliminary inquiry . However , the applicant 's complaints were subsequently referred to the prosecutor 's office of NORP .

The prosecutor 's office of NORP questioned CARDINAL of the police officers named by the applicant . They testified that the applicant had not been subjected to any ill - treatment . On DATE the prosecutor 's office of PERSON refused to initiate criminal proceedings against the police officers . That decision was set aside by the prosecutor 's office of LOC and an additional inquiry was conducted . In particular , the periods of the applicant 's time in GPE police station were established , several police officers and the investigator Mr GPE were questioned and a medical examination of the applicant was performed .

On DATE the prosecutor 's office of NORP again refused to initiate criminal proceedings .

On DATE the prosecutor 's office of LOC reversed the decision of DATE , finding that the inquiry had been incomplete . In particular , the prosecutor 's office of PERSON had not established whether the applicant had been in good health before the arrest and whether the arrest had been lawful . It had overlooked the evidence which supported the applicant 's allegations of ill - treatment , namely his confession to the murder , later retracted , and the medical report stating his injuries .

On DATE the prosecutor 's office of LOC opened criminal proceedings against the police officers of GPE police station . The applicant was granted victim status .

On DATE CARDINAL police officers were questioned about the circumstances of the applicant 's arrest . It appears that no further action was taken until DATE .

On DATE the investigator commissioned a medical examination of the applicant . The examination was performed by experts of ORG of ORG on the basis of the applicant 's medical documents . It was completed on DATE . The experts established that the applicant 's injuries could have been inflicted under the circumstances described by him .

In reply to the applicant 's complaints about delays in the investigation , on DATE the office of ORG ordered that the investigation be sped up .

In DATE the applicant 's cellmates from GPE police station were questioned . They testified that the applicant had been extremely frightened , complained about ill - treatment , and fainted several times . They had seen marks of beatings on his body .

On DATE the applicant was questioned about the circumstances of his arrest and ill - treatment .

On DATE the prosecutor 's office of LOC discontinued the criminal proceedings against the police officers of GPE police station . On DATE the office of ORG annulled that decision and ordered that the criminal proceedings be resumed .

On DATE a police officer from the GPE police station who had escorted the applicant to the questionings in DATE stated that he had seen bruises around his eyes .

On DATE the investigator Mr PERSON was questioned . He denied any involvement in the ill - treatment .

On DATE counsel for the applicant testified that he had represented the applicant since DATE , that he had not been allowed to visit him until DATE , and that he had seen marks of beatings on his face and body .

On DATE the police officers of GPE police station , PERSON PERSON , Mr PERSON , Mr PERSON and PERSON , were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences , an offence under LAW ( a , b , c ) of LAW .

On DATE the applicant was questioned for the second time about the ill - treatment .

On DATE the applicant was informed that the investigation was complete . He was invited to study the case file .

The applicant complained to the prosecutor 's office of LOC that the scope of the investigation had been insufficient . In particular , the prosecutor 's office had not brought charges against the police officers PERSON , Mr Gerasimov and PERSON , who had ill - treated him , and the investigators Mr PERSON and Mr GPE , who had forged evidence and forced him to confess to the murder .

On DATE the prosecutor 's office of LOC rejected the applicant 's complaints , finding that there had not been sufficient evidence for prosecuting PERSON , PERSON , and Mr Savvin , and that disciplinary proceedings against Mr PERSON and PERSON PERSON had in the meantime become time - barred .

On an unspecified date the investigation was resumed and additional enquiries were conducted .

On DATE an identification parade was held . The applicant identified PERSON , who had put make - up on his face before the videotaping of his confession in DATE .

On DATE the applicant was taken to GPE police station where he pointed out the cells in which he had been detained , and the rooms in which he had been beaten .

On DATE and DATE further identification parades were held . The applicant recognised Mr PERSON and PERSON as the officers who had beaten him and tortured him with electricity .

On DATE and DATE further interviews with the applicant were held .

On DATE and DATE and CARDINAL DATE Mr PERSON , PERSON , PERSON Panteleyev , PERSON , Mr PERSON , PERSON , PERSON , PERSON Trubitsyn , PERSON and PERSON were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences , an offence under LAW ( a , b , c ) of LAW .

On DATE the applicant was informed that the investigation had been completed and was invited to study the case file . However , on an unspecified date the investigation was resumed .

DATE . On DATE a deputy Prosecutor General of GPE ordered that the investigation be continued until DATE .

The applicant challenged before a court the refusal by the prosecutor 's office of LOC to bring charges against the investigators from that prosecutor 's office , PERSON and PERSON , who had unlawfully arrested him , forged evidence against him and forced him to confess , and against the medical expert PERSON PERSON , who had examined him on DATE and had falsely stated that his injuries had been inflicted prior to the arrest .

On DATE the Lipetsk Regional Court rejected the applicant 's complaints in the final instance . It held that an internal inquiry had been conducted and that no grounds for prosecuting Mr PERSON , Mr PERSON or PERSON PERSON had been established .

On DATE the criminal case against the police officers of GPE police station was committed for trial before ORG of the Lipetsk Region .

The trial started on DATE . The defendants pleaded not guilty and refused to testify .

The trial court heard the applicant and numerous witnesses and examined medical evidence .

On DATE the ORG convicted the defendants as charged . It found it to be established that DATE and DATE the defendants had repeatedly ill - treated the applicant by punching and kicking him and hitting his heels with truncheons , by subjecting him to electric shocks , by putting a gas - mask on him and closing the air vent or forcing him to inhale cigarette smoke through the vent , by tying his hands behind his back and suspending him in the air by means of a rope , by jumping on his chest and stomach , by pointing their guns at him and threatening to shoot him , by strangling him , by threatening to rape him , by spitting at him and by forcing him to undress and kneel in front of a photograph of the policeman of whose murder he had been suspected and apologise for killing him . The use of force had been aimed at driving the applicant into submission and making him confess to criminal offences . As a result of the ill - treatment the applicant had received the following injuries : numerous bruises and abrasions , a rib fracture , a deformation of the left shoulder - blade and feet trauma ultimately resulting in polyarthritis with degenerative - dystrophic changes and functional impairment in both feet . Moreover , the applicant had developed a chronic post - traumatic psychiatric disorder as a consequence of the ill - treatment . The court sentenced the defendants to imprisonment ranging from DATE and DATE with a subsequent DATE prohibition on serving in law - enforcement agencies . On DATE the defendants were taken into custody .

On DATE ORG upheld the conviction on appeal but decided to commute the sentences . It noted that some of the defendants had been awarded medals for excellent police service and that all of them had positive references from their superiors . The court therefore considered that it was possible to give them sentences below the statutory minimum . It sentenced CARDINAL defendants to imprisonment ranging from DATE and DATE and DATE . The remaining CARDINAL defendants were sentenced to imprisonment ranging from DATE and DATE and DATE , but their sentences were suspended and they were placed on probation for DATE . Those CARDINAL defendants were immediately released .

DATE . In DATE the applicant and his mother sued ORG , ORG , and the police officers of GPE police station for compensation in respect of pecuniary and non - pecuniary damage caused by the applicant 's ill - treatment . They claimed MONEY ( RUB ) in respect of non - pecuniary damage and RUB CARDINAL in respect of pecuniary damage . The claim for pecuniary damage included the costs of the applicant 's medical treatment and of the food brought to the detention facility by his mother , as well as travel and postal expenses and legal fees .

On DATE the ORG of Lipetsk allowed the claim in part . The court noted that the fact of the applicant 's ill - treatment by the police officers of GPE police station had been established by the final judgment in the criminal proceedings against those officers . In particular , it had been established that DATE the applicant had been repeatedly subjected to severe beatings and electric shocks , gas - mask torture , hanging in the air by means of a rope attached to the wrists , and threats of rape and murder , and had been spat at and forced to apologise on his knees for killing a policeman . As a result of the ill - treatment he had suffered considerable pain and humiliation , had received serious injuries , in particular rib fracture and deformation of his feet , and had developed a chronic psychiatric disorder . His health had been seriously undermined and he had become disabled . He had moreover been forced to confess to a crime which he had not committed . The court found that the applicant had been subjected to ill - treatment contrary to LAW and awarded him compensation in respect of non - pecuniary damage in the amount of RUB MONEY ( MONEY ( ORG ) ) against ORG . It found that the applicant 's mother had also suffered distress and frustration as a result of her son 's ill - treatment and awarded her RUB CARDINAL against ORG . It further awarded the applicant 's mother RUB MONEY ( about EUR CARDINAL ) in respect of medical expenses . It however rejected the remainder of the claim for pecuniary damage as it had not been supported by documents .

On DATE ORG examined the case on appeal . It found that the amount awarded to the applicant in compensation had been adequate , given the very serious injuries he had sustained as a result of the ill - treatment , and in particular , brain oedema , post - traumatic displacement of CARDINAL ribs , post - traumatic hearing impairment , deformation of both feet and shoulder - blade deformation , as well as posttraumatic encephalopathy ( general brain dysfunction ) and psychiatric disorder . It also upheld the award of the medical expenses . It however quashed the award in respect of non - pecuniary damage to the applicant 's mother , finding that she had not personally suffered any ill - treatment .

On DATE the applicant was charged with robbery . On DATE additional charges of several counts of robbery , theft and unlawful possession of firearms were brought against him .

On DATE the Lipetsk Regional Court ordered the applicant 's in - patient psychiatric examination . On DATE a panel of psychiatrists of the ORG psychiatric hospital found that the applicant was suffering from post - traumatic stress disorder . In view of his medical condition , his participation in the court hearings was considered inadvisable . The applicant needed in - patient psychiatric treatment .

On DATE the applicant and CARDINAL co - defendants were escorted to ORG for a hearing . After the defendants refused to go into the courtroom , the presiding judge ordered that they be brought in by force . The defendants were informed of the judge 's order and agreed to proceed to the courtroom . They were handcuffed and started to mount the stairs .

It appears from the reports of the escorts that on the stairs CARDINAL of the defendants , PERSON , suddenly ran in the direction of the toilets , while the other defendants attacked the escorts . The escorts beat the defendants with rubber truncheons and managed to suppress the attack and to bring the defendants into the courtroom .

According to the applicant 's mother , she and the relatives of the other defendants were waiting in the hall for the beginning of the hearing . She saw the escorts hitting the applicant and his co - defendants with truncheons while they were mounting the stairs . The applicant fell on the handrail and CARDINAL of the escorts slapped and kicked him many times . The applicant fainted . He was dragged by the escorts across the floor into the cage inside the courtroom . She called an ambulance .

The ambulance doctors examined the applicant and concluded that he had had an epileptic fit . He was taken to ORG hospital no . CARDINAL for treatment .

It can be seen from a certificate issued on DATE by the head of PERSON hospital no . CARDINAL that the diagnosis of an epileptic fit was confirmed by the hospital doctors , who also detected hyperemia ( a medical condition in which blood congests in part of the body ) of the applicant 's neck .

The applicant was handcuffed to a hospital bed in the corridor . On DATE he was transferred back to the detention facility , the doctors ' objections notwithstanding .

On DATE the Lipetsk Regional Court ordered the applicant 's confinement to a psychiatric hospital . On DATE he was transferred to the ORG psychiatric hospital .

On DATE the ORG found the applicant guilty of several counts of aggravated theft and robbery , decided not to sentence him because of his mental incapacity and ordered his compulsory psychiatric treatment .

On DATE ORG of GPE upheld the judgment on appeal .

On DATE the ORG of LOC ordered that in - patient psychiatric treatment be replaced by out - patient psychiatric supervision . On DATE the applicant was released from hospital .

On DATE the applicant 's mother asked the prosecutor 's office of LOC to initiate criminal proceedings against the escorts who had beaten the applicant and his co - defendants in the courthouse on DATE .

NORP The prosecutor 's office conducted an inquiry . CARDINAL escorts , the applicant 's mother , CARDINAL of the applicant 's co - defendants and several eyewitnesses were heard . The presiding judge refused to testify .

The applicant 's co - defendant PERSON . testified that the defendants had refused to go into the courtroom because the applicant and another defendant were unwell and the escorts had refused to call a doctor . They had moreover asked to see their relatives . Once the relatives had been let into the courthouse the defendants had agreed to proceed to the courtroom . As they mounted the stairs they had seen that some of their relatives were absent , so they turned around with the intention of descending back into the basement . At that moment the escorts had started to hit them with rubber truncheons and had driven them into the courtroom .

The defendants ' relatives all testified that the escorts had hit the applicant and his co - defendants , handcuffed in twos , while they were mounting the stairs .

The escorts submitted that after the defendants ' refusal to go into the courtroom , the judge had ordered that they be brought in by force . The defendants had been handcuffed and ordered to proceed to the courtroom . On the stairs they had suddenly turned round and attacked the escorts . The escorts had used rubber truncheons against them . The defendants had been forced into the courtroom where the applicant had had an epileptic fit . An ambulance had been called and he had been taken to hospital .

On DATE the prosecutor 's office of LOC of PERSON refused to open criminal proceedings against the escorts . In his decision the prosecutor referred to the witness statements collected during the inquiry and found that the applicant and his co - defendants had not complied with the legitimate order of the escorts . He concluded that the force had been used by the escorts in compliance with ORG . In any event , the applicant and his co - defendants had not received any injuries .

The applicant challenged the decision before a court . In particular , he submitted that , contrary to the prosecutor 's assertions , he had sustained injuries and had been taken to hospital . He also argued that the inquiry had been incomplete , as many eyewitnesses had not been questioned .

On DATE the ORG of Lipetsk held that the prosecutor 's decision had been lawful . It found that the inquiry had been adequate as it had allowed the prosecutor to collect the necessary evidence and to make a reasoned decision .

On DATE ORG upheld the decision on appeal .

Abuse of office associated with the use of violence and weapons and entailing serious consequences carries a punishment of DATE imprisonment and a prohibition on occupying certain positions for DATE ( LAW ( a , b , c ) of LAW ) .

NORP Until DATE the investigation of criminal offences was governed by LAW DATE ( the “ old CCrP ” ) . It established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities ' own initiative , where there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for overall supervision of the investigation and could order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation ( ORG CARDINAL and CARDINAL ) . If there were no grounds for initiating or continuing a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party . The decision was amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction ( Articles CARDINAL and CARDINAL ) .

The Code of Criminal Procedure of GPE in force since DATE ( Law no . CARDINAL of DATE , the “ CCrP ” ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual ( Articles CARDINAL and CARDINAL ) . Within DATE of receiving such complaint , the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken . The refusal to open criminal proceedings is amenable to appeal to a higher - ranking prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( Article DATE ) . He can order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . LAW of the ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

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

LAW ( no . CARDINAL of DATE ) provides that Police officers are only entitled to use physical force , special means and firearms in the cases and within the procedure established by LAW ; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by LAW . A police officer must warn of his intention to use physical force , special equipment or a weapon and give the person concerned sufficient time to comply with his order , except in cases where the delay in using physical force , special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers , is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances . Police officers must endeavour to minimise the damage caused by the use of physical force , special equipment or a weapon , to the extent possible depending on the nature and seriousness of the offence , the dangerousness of the person who has committed it and the degree of resistance offered . Police officers must also ensure that individuals who have been injured as a result of the use of physical force , special equipment or a weapon receive medical assistance ( section CARDINAL ) .

Police officers may use physical force , including martial arts , to stop a criminal or administrative offence being committed , arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order , if non - violent methods are insufficient to ensure discharge of the police duties ( section CARDINAL )

Sections DATE and CARDINAL of LAW lay down an exhaustive list of cases when special means , including rubber truncheons , handcuffs and firearms , may be used . In particular , rubber truncheons may be used to repel an attack on civilians or police officers , to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting the operation of transport , means of communication and legal entities . Handcuffs may be used only to overcome resistance to a police officer , to arrest an individual caught while committing a criminal offence against life , health or property and if he is attempting to escape , and to bring arrestees to police stations as well as to transport them and protect them if their behaviour allows the conclusion that they are liable to escape , cause damage to themselves or other individuals or offer resistance to police officers .

LAW ( no . CARDINAL-FZ of DATE ) provides that physical force may by used against a suspect or an accused to prevent commission of an offence or to overcome resistance to lawful orders , if those aims can not be attained by non - violent methods ( section CARDINAL ) .

Rubber truncheons and handcuffs may be used in the following cases :

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

- to repress mass disorder or put an end to collective violations of the detention rules and regulations ;

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

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

- to prevent an escape ;

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


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

NORP The applicant was born in DATE and lives in GPE ( GPE ) .

On DATE the applicant sued PERSON in the GPE ORG seeking damages for the loss she had sustained as a result of works carried out by her neighbour which had resulted , among other things , in sewage being dumped on her property .

Preparation of the case for trial began on CARDINAL DATE . Of the DATE hearings listed between CARDINAL DATE and DATE were adjourned at the request of the parties , CARDINAL at the request of the applicant , CARDINAL at the request of PERSON , DATE by the court of its own motion , and CARDINAL on account of a ORG strike ; CARDINAL were devoted to organising expert evidence , CARDINAL to the filing of documents and the hearing of witnesses , CARDINAL to attempts to seek a friendly settlement , and CARDINAL was adjourned in order to allow the parties to make their submissions .

In the meantime PERSON lawyer had filed a death certificate with the registry in respect of his client . At a hearing on DATE the judge declared the proceedings interrupted . The proceedings were resumed on DATE and the judge fixed CARDINAL DATE as the date for hearing submissions . On an unspecified date the case was referred to the bench of judges dealing with the oldest cases ( sezioni stralcio ) . At a hearing on DATE the parties requested that a date be fixed for hearing oral submissions and the judge adjourned the case to DATE . The hearing was not held on that date , but adjourned to CARDINAL June CARDINAL . On that date judgment was reserved .

In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG allowed the applicant ’s claim in part and ordered PERSON heir to move the septic tank that had not been installed at the prescribed distance and to replace part of the applicant ’s sullage pipes . It also awarded her MONEY ( MONEY ( ORG ) ) .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the excessive length of the above - described proceedings . The applicant requested the court to conclude that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained . The applicant claimed MONEY ( EUR CARDINAL ) in non - pecuniary damages and an unquantified amount for costs and expenses .

In a decision of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG found that the proceedings had been excessively long . It held as follows :

“ In the instant case , even if the proceedings are not entirely straightforward given the subject of the proceedings ( a bitter dispute between neighbours ) , which has given rise to many attempts at conciliation , hearings of witnesses and an expert report , the length of the proceedings - over DATE nonetheless does not appear proportionate to the objective importance and the consequences of the judicial proceedings .

With regard to the conduct of the parties , account can not be taken of the extension of the length of the proceedings owing to legitimate requests or the time necessary to rationalise and ensure the normal conduct of the proceedings given that proceedings are unreasonably long where the applicant can not be blamed for seeking to prolong the proceedings in his or her own interests ( requests for adjournment of hearings , needless objections etc . ) .

With regard to the conduct of the judicial authorities , special consideration must be given , in the instant case , to the entire length of the proceedings for CARDINAL level of jurisdiction with a great many adjournments which contributed to prolonging the proceedings beyond a reasonable time by causing long and unjustified interruptions ( in terms of the ORG , which obliges member GPE to organise their judicial system in such a way as to ensure compliance with the obligations set forth in LAW ) .

In calculating compensation regard will be had only to the period beyond the reasonable time ( in accordance with section CARDINAL ) of PERSON no . PERSON ) : clearly no complaint can be made in respect of conduct on the part of persons involved in the proceedings that is in accordance with the law ( such as adjournments necessary for the proper conduct of the proceedings ) .

However , the delay by the judicial authorities in giving a final decision was not in accordance with the law : there is absolutely no justification for such delay given that effect must be given to the right to bring legal proceedings in defence of one ’s own interests ( LAW ) by a decision rendered within a reasonable time in order to ensure that justice is done in compliance with the procedural guarantees established by the legislature ; while having regard to the “ chronic ” shortage of staff , the delay in the work and the attempt to find a new balance after the latest judicial and procedural reforms .

Regarding the calculation of just satisfaction , the pecuniary damage flowing directly from the delay in giving the final decision can not be considered to have been made out : the damage can not be objectively proved either by the supposed intention of the applicant to sell the property or by the costs and expenses , which , apart from the fact that they were not referred to by the applicant , have in any event been dealt with by the decision .

With regard to non - pecuniary damage , the criterion to be applied is the CARDINAL indicated under Art . CARDINAL of LAW , reiterated in Art . DATE , to which s. CARDINAL ) of PERSON no . PERSON refers .

The compensation is quantified at MONEY ( inclusive of interest and monetary depreciation – without going into details – see PERSON , to which will be added interest accrued only in respect of the time that elapses between the decision and payment ) , on account of the special nature of the case , the subject of the dispute and the period beyond the reasonable time , the number of levels of jurisdiction and the special subjective situation : on account of the length of the proceedings the applicant has undoubtedly suffered anxiety and distress as a result of waiting for the final decision and uncertainty as to the outcome of the proceedings . ”

ORG dismissed the claim for pecuniary damages on the ground that the applicant had failed to substantiate it , awarded her ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses . The decision was served on the applicant on DATE .

The applicant appealed to ORG against that decision on DATE on the ground that the amount awarded her by ORG was inadequate .

NORP However , in a judgment of DATE , the text of which was deposited with the registry on DATE , ORG declared the appeal inadmissible on the ground that it had been lodged out of time . The authorities paid the amounts due on DATE .

NORP In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of her application .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW

CHAPTER II

Just satisfaction

Section CARDINAL

Entitlement to just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable - time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

Section CARDINAL Time - limits and procedures for lodging applications

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

Section CARDINAL Communications

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

Section CARDINAL Transitional provisions

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

Section CARDINAL Financial provisions

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

The Ministry of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

CARDINAL – In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

ORG judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .

- the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...

- a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . CARDINAL/CARDINAL ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the ORG deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


CASE OF SARA LIND EGGERTSDÓTTIR v. ICELAND

Violation of Art. 6-1;Damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is an NORP national who lives in PERSON .

On DATE the applicant was born at ORG ( hereinafter referred to as the ORG ) in PERSON , which was a ORG hospital . Soon after her birth it became clear that she was severely handicapped both physically and mentally . Her disability is assessed at PERCENT .

NORP In DATE the applicant 's parents complained to ORG , who in DATE concluded that the child had not been given improper treatment .

The applicant 's parents , who were represented by a lawyer , then brought proceedings on her behalf against ORG in LOC . Their arguments can be described as twofold . Firstly , a mistake had been committed in the delivery room in that the doctors had reacted too late to hypoxia despite its having been diagnosed directly on the mother 's arrival there . Secondly , paediatricians had made a mistake when attending to the child immediately after birth . The parents alleged that a catheter inserted into the child 's umbilical artery had been abnormally bent to a U - shape and left that way for TIME . This had been capable of causing the damage that had occurred to the child 's health . Instead the doctors should have partially withdrawn the catheter until it straightened out or , if that was not possible , inserted it into a limb .

The respondent requested ORG to dismiss the applicant 's claim , maintaining that the damage she had suffered to her health was a result of hypoxia during pregnancy , before the mother 's arrival at the labour ward of the ORG , and that no additional damage could be linked to any possible mistakes on the part of hospital staff . The applicant was already in a serious condition when delivery was performed by caesarean section , by which time hypoxia had already caused arterial thrombosis . The position of the catheter had therefore not caused the damage to the applicant 's health .

ORG , sitting with one professional judge and CARDINAL lay judges , CARDINAL of whom was a paediatrician and the other a gynaecologist and obstetrician , heard extensive evidence from all the hospital personnel involved and from experts .

By a judgment of DATE , ORG rejected the first claim described above but upheld the second claim and found the ORG liable to pay compensation to the applicant . It awarded her CARDINAL NORP Crowns ( ORG ) in compensation ( ORG CARDINAL for pecuniary damage and ISK CARDINAL for non - pecuniary damage ) , plus interest , as well as certain sums for legal costs , to be held by her parents on her behalf . Its reasoning on the merits included the following passages :

“ By reference to the foregoing the court concludes that proof has not been adduced to show that the plaintiff 's disability was solely due to her illness following thrombosis of the aorta and the renal arteries . On the other hand , there is a significant probability that her illness following the said thrombosis at least contributed to the serious brain damage she suffered , which caused her disability and non - financial loss . Whether the plaintiff had already suffered brain damage , and the extent to which her illness may have added to that damage , is impossible to ascertain .

In view of the plaintiff 's difficult situation as regards proof and of the rules of evidence that must be regarded as having been formed in this field of the law of compensation , the onus must be on the defendant to prove that the brain damage from which the plaintiff now suffers would have occurred even if the defendant 's employees had not made the mistake of letting the catheter remain in a U - shape in her aorta for TIME . As the defendant must , in the light of the foregoing , be considered not to have succeeded in adducing such proof , the court accepts the plaintiff 's view that the conditions that would render the defendant liable to pay compensation on account of her disability and non - financial loss are fulfilled .

It is not possible on the basis of the available evidence and the above rule of evidence to endorse the defendant 's view that only a small part of the disability can be traced to her illness caused by thrombosis of the aorta and the renal arteries . As it has not been demonstrated whether or to what extent the damage to the plaintiff 's health was due to other causes , the defendant is deemed liable for her entire loss . ”

The Solicitor General appealed against the above judgment to ORG . In support thereof , he filed CARDINAL statements by certain named doctors of ORG commenting on ORG judgment and criticising its conclusion . The statements had been addressed to the ORG 's Chief Medical Executive , who apparently had endorsed them and forwarded them to ORG .

ORG initially scheduled the oral hearing for DATE , but on DATE informed the applicant 's lawyer and ORG that it had adjourned the hearing pending an opinion it intended to request from ORG ( SMLB ) . On this occasion ORG gave the parties an opportunity to indicate the questions they would like to be put to the SMLB .

NORP In reply , by a letter of DATE , the applicant 's lawyer protested , in particular , against ORG decision to seek the SMLB 's opinion without having first offered the parties an opportunity to express their views on the measure . It was noted that , pursuant to section CARDINAL of ORG , many doctors associated with the ORG , where the disputed medical services had been provided , had a seat on ORG . Moreover , ORG had already expressed his views on the matter and was therefore disqualified from any further involvement . The lawyer also protested against any consideration of the matter by the hospital 's employees , and demanded their withdrawal .

In the event that ORG were to decide , despite the applicant 's protest , to proceed to ask the SMLB for an opinion , the applicant 's lawyer specified CARDINAL items for questions that he wished to be put to the SMLB .

ORG replied on DATE that it found no reason not to ask for the SMLB 's opinion but that it would consider the applicant 's proposal regarding the questions .

On DATE the Solicitor General indicated CARDINAL questions which he thought should be put to the SMLB , but did not comment on the appropriateness of asking the SMLB for an opinion .

On DATE ORG formally decided to obtain an opinion from the SMLB on CARDINAL questions relating to the matter in dispute , giving the following reasons :

“ It was difficult to ascertain from the evidence and testimonies submitted what the cause of the [ applicant 's ] injury was , added to which some points were not as clear as would have been desirable . It was therefore deemed proper , before the case were tried by ORG , to obtain the opinion of ORG under section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW and to seek answers on certain points since , according to LAW , it is the SMLB 's role to provide the courts with opinions on medical matters . ”

In connection with the above ORG drew particular attention to the applicant 's request of DATE for the withdrawal of certain members .

The SMLB was composed of ORG ( GPE ) of GPE , as chair , and CARDINAL other members .

The SMLB delivered its opinion on DATE . It found that at the maternity ward an abnormal foetal monitor printout had been reacted to belatedly . On the other hand , there was no reason to criticise the child 's treatment at the paediatric clinic following birth . ORG considered that the positioning of the catheter had not caused blood coagulation and that no mistake had been made concerning the manner in which it was placed . Thus , ORG differed from ORG on points that were material for establishing liability to pay compensation .

In the context of the ORG 's own procedure , the matter had first been referred direct to its ORG composed of ORG members , all of whom were employees at ORG and decided that they were not disqualified . ORG had sought CARDINAL opinions on the applicant 's birth , DATE by a consultant surgeon and member of ORG on the child 's case history after birth , and the other by an external obstetrician on the mother 's pregnancy and the child 's birth .

At a meeting held on DATE , the SMLB had discussed and unanimously approved the CARDINAL doctors ' opinions and adopted its final opinion that was transmitted to ORG . The session had been presided over by one of ORG CARDINAL members , who had replaced the SMLB 's Chair who had withdrawn on account of his previous involvement with the case as the Medical Director of GPE .

At the oral hearing on DATE before ORG , the applicant 's lawyer complained of the procedure before the SMLB , but to no avail .

By a judgment of CARDINAL March CARDINAL ORG overturned ORG finding that the ORG was liable to pay compensation to the applicant for negligence by ORG .

NORP Before turning to the merits , ORG dealt with the issue of disqualification :

“ As regards the conclusion of the SMLB and its ORG , the respondent [ the applicant ] observes that doctors employed at ORG took part in handling the matter and bringing it to a conclusion ; that they , as employees of the appellant , were disqualified from doing so , and that consequently the SMLB 's opinion was to be entirely disregarded .

As noted above , it is the role of the SMLB to provide the courts with opinions on medical matters . The situation in GPE is such that most experts in the field of medical science are employed at ORG . Of the SMLB 's CARDINAL members CARDINAL are employed at the hospital , but none of the members taking part in this matter is employed at the department of obstetrics and gynaecology , nor at the ORG paediatric hospital , and none was involved with the treatment of the respondent 's illness , or of her mother . Furthermore , none of them is a member of the hospital 's highest management , which has taken a stand with respect to this matter in conformity with the opinion of the doctors of the departments of obstetrics and neonatology . It has not been demonstrated that the ORG 's handling of the case was contrary to LAW no . CARDINAL on the Procedure of the SMLB , or that the ORG 's resolution was influenced by any extraneous considerations . The ORG 's opinion and all other opinions provided in this case will have to be assessed in the light of the positions occupied by those who provide them . ”

As to the merits , ORG concluded :

“ It is generally acknowledged that the use of arterial catheters may entail a danger of thrombosis . The respondent was dangerously ill and had been placed in a respirator , which demanded a monitoring of blood oxygen and acid / base levels and blood pressure , and the administration of fluids and drugs . The situation in which the doctors found themselves when they decided to leave the catheter alone must be kept in mind ; as noted above , this provided the only arterial access , as matters had developed . It has not been established that a catheter lying in a loop entails an increased risk of thrombosis .

As explained above , the experts consider that the respondent 's brain damage was first and foremost due to hypoxia . The damage revealed by examinations of her brain is consistent with hypoxia , and it must be regarded as highly likely that this was the cause of her loss . Brain damage that might have followed thrombosis in DATE after the respondent 's birth would on the other hand have appeared as haemorrhage due to hypertension , but such brain damage is not extensive . It is not , therefore , possible to say that there is a causal relationship between the positioning of the catheter and the respondent 's brain damage . It has not been demonstrated that the respondent 's loss is traceable to a fault on the part of the appellant 's employees . ”

The respondent Government drew particular attention to the following provisions of LAW , no . CARDINAL/CARDINAL :

Article CARDINAL

“ The judge shall in each case determine , by an assessment of the evidence adduced , whether an assertion relating to the facts at issue shall be regarded as proven , subject to any binding rules in this respect which may be expressly laid down by statute . ”

Article CARDINAL

“ The parties shall collect evidence in so far as they are able to determine the subject matter of the action . The judge may , as he may consider necessary for purposes of clarification , invite the parties to collect evidence relating to particular facts of the case . If the judge deems that a fact , which a party desires to establish , is obviously irrelevant or that such evidence does not serve a purpose , he may prevent the party from adducing such evidence . ”

Article ORG

“ If the judge discovers , after he has received a case for adjudication , that the submissions of a party or the information on the facts provided by a party is seriously lacking in clarity , and the deficiency can be regarded as being due to the judge not having provided the parties with adequate guidance or made his observations known to them , he shall summon the parties to appear in court and , as the case may be , question them or draw their attention to the need for further evidence . The proceedings may be deferred as necessary ; finally , the judge shall provide the parties with an opportunity to make observations supplementing their previous oral argumentation , and receive the case for adjudication anew . ”

Article CARDINAL

“ The judge shall not , in his judgment or decision , grant any remedy that goes beyond that sought by the parties , except on points he raises on his own initiative . Any claim that has not been made in the summons shall be dismissed by the court , unless the defendant has agreed that the judge may consider it . The same shall apply to any increase in a monetary claim or any other changes to the defendant 's detriment .

The judge may not base his decision on a statement of facts or an objection which was not made during the proceedings , when it could have been . The judge shall assess , in the light of the circumstances , to what extent account should be taken of a fact referred to in a submitted document which was not specifically mentioned in support of the application or claim during oral pleadings .

The judge shall assess , in the light of the circumstances , whether a party 's silence with respect to an assertion or claim made by his adversary shall be regarded as an admission . ”

Article CARDINAL

“ CARDINAL . Judgments of the ORG shall be based on the matters submitted in the relevant case and the facts that have been proved or admitted . The provisions of Article CARDINAL shall apply to ORG judgments .

ORG may base its resolution of a case on requests or factual submissions which were not made to the district court , provided they were referred to in the party 's statement of case , the basis of the litigation remains unaltered , the failure to make them to the district court was excusable , and the party 's rights would be adversely affected if they were not considered . ”

ORG , No . CARDINAL ( “ the SMLB Act ” ) , contains inter alia the following provisions :

Section CARDINAL

“ ORG shall have the role of providing the courts , the prosecution authorities and the supreme health authorities with expert opinions on medical matters .

Among its functions shall be the provision of opinions on any medical certificates submitted to the courts , provided these are sent to ORG in accordance with a judicial decision .

ORG shall provide the supreme health authorities with its opinions as to the propriety of a particular measure , action or conduct on the part of a doctor , dentist , masseur , pharmacist nurse , midwife or other similar health professional .

ORG shall provide the supreme health authorities with its opinions relating to health measures of extensive scope , in particular measures to check the spread of infectious diseases . ”

Section CARDINAL

“ ORG shall only attend to matters referred to the ORG in accordance with the provisions of section CARDINAL by the parties stated therein .

The Board shall not provide opinions on the mental condition or criminal responsibility of any person , unless an expert opinion following suitable examination has already been obtained , assuming such examination was possible .

The Board shall not provide an opinion on a person 's cause of death , unless an expert opinion following an autopsy , or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death , has already been obtained , assuming such evidence was available . ”

Section CARDINAL

“ ORG shall seek the opinions of outside experts on matters that are not within the specialist knowledge of its members .

Before invalidating a doctor 's certificate the board shall , if possible , offer the doctor in question an opportunity to put forward his arguments in support of his view .

The Board shall , if possible , consult the person in question , and his professional organisation , on any matters specifically relating to a measure , an action or the conduct of a doctor or other health professional ( cf . section CARDINAL , third paragraph ) , before providing its opinion . ”

Section CARDINAL

“ No member of ORG shall take part in deciding a matter relating to himself or his principal , or with respect to which he has previously taken a stand , personally or in an official capacity . If ORG is prevented from carrying out its function as a result of any of its expert members being unable to take part in deciding a matter within his speciality , the Minister shall appoint such other expert as ORG may propose to replace him for the consideration of that particular matter . ”