Preliminary objection joined to merits and dismissed (victim);Violation of Art. 3;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

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

At the time of the events , the applicant was a student at ORG in PERSON located in PERSON .

On DATE P. complained to FAC in GPE that he had been robbed on DATE by CARDINAL unidentified persons . He suspected that CARDINAL of those persons was the applicant .

A criminal investigation was initiated . On DATE a student of the police academy , ORG , knocked at the applicant ’s door at TIME . Having opened the door , the applicant was forced to follow GPE out to the street , where he was forced into a car belonging to P. Another student from the police academy , PERSON , was waiting in the car .

According to the applicant , he received blows from ORG and PERSON all the way to FAC . Upon his arrival at the station , the applicant was taken up to office no . CARDINAL . The applicant alleges that he was ill - treated in that office by GPE and PERSON and by another plain - clothed person , whose identity he did not know at the time . He made this complaint to the prosecution .

The applicant was invited to confess to having robbed P. When he refused , ORG and PERSON tied his hands and feet together behind his back and he was suspended on a metal bar placed on CARDINAL adjacent tables ( a position called “ swallow ” akin to “ NORP hanging ” ) . He then received truncheon blows to the soles of his feet and was kicked and punched in various parts of his body . A gas mask was put on his face and cigarette smoke was blown into the air access tube , causing him to suffocate . That tube was later attached to his penis . His captors also inserted a glass bottle into his anus CARDINAL times . At CARDINAL time he lost consciousness .

Later on DATE the applicant was taken to a prosecutor ’s office . In view of clear signs of ill - treatment on the applicant ’s body , the prosecutor ordered a medical examination to establish whether he had been ill - treated .

According to the applicant , the investigator responsible for the criminal investigation into ORG ’s complaint was officer O. This officer had never delegated any power of investigation or arrest to any other officer , including officers C. , ORG and ORG ..

On DATE the applicant was examined by a group of forensic doctors , who found that he had been injured . In particular , he had a black eye and a bruise on his chest of QUANTITY , and had suffered head trauma and anal damage . The doctors excluded the possibility that the injuries could have been sustained as a result of DATE . DATE he was admitted to hospital with a diagnosis of head trauma .

On DATE the criminal investigation against the applicant was discontinued , but he was allegedly not informed about it until much later , on an unspecified date .

In a statement made on DATE ORG mentioned , inter alia , that while the applicant was being questioned a person who was not part of the police force , PERSON , was also present . No violence had been used against the applicant , who had been arrested on the orders of investigator C.

On DATE a criminal investigation was initiated against GPE and PERSON

The applicant underwent CARDINAL more medical examinations , on DATE and DATE , which confirmed the injuries caused to him . The last examination concluded that it could not be excluded that the applicant had caused the injuries himself .

On DATE an investigator decided to discontinue the criminal case against GPE and PERSON for lack of evidence . On DATE the applicant complained to a prosecutor about the discontinuation , noting that he had not been informed of it until he insisted on receiving an update on DATE . On DATE the prosecutor annulled the investigator ’s decision .

According to an order issued by the Minister of ORG on DATE , police academy students ORG and PERSON had been temporarily authorised to act as police inspectors until DATE . On DATE inspector PERSON was reprimanded for ordering GPE and PERSON to arrest the applicant on DATE , despite being aware that they were no longer authorised to act as police inspectors , actions which led to bodily harm being caused to the applicant .

On DATE a prosecutor decided to discontinue the criminal proceedings against GPE and PERSON under LAW ) of LAW ( abuse of authority , see paragraph CARDINAL below ) for lack of evidence and opened an investigation under LAW ( CARDINAL ) of LAW for unlawful deprivation of the applicant ’s liberty ( see paragraph CARDINAL below ) .

On DATE a prosecutor decided to discontinue the investigation against ORG and PERSON under LAW ( CARDINAL ) of LAW and to initiate an administrative investigation against them for causing minor injuries to the applicant . On DATE ORG annulled that decision and sent the case file to the prosecution for re - qualification of the acts committed by GPE and PERSON under the provisions of LAW .

On DATE the prosecutor annulled his decision of DATE and sent the case file to the investigator for further investigation .

On DATE the prosecutor decided that the actions of GPE and PERSON came within the ambit of FAC and CARDINAL of LAW ( beating an usurpation of powers respectively , see paragraph CARDINAL below ) . On DATE the applicant asked ORG for a re - qualification of the acts from beating to torture , as provided by Article CARDINAL/CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant emphasised that he had been caused suffering with the aim of forcing him to confess to a crime which he had not committed . This could only be characterised as torture . On DATE he made a similar complaint to the prosecutor in charge of the case .

A.P. , PERSON and their lawyers failed to appear at the court hearing on DATE . At the next hearing on DATE , the applicant ’s lawyer asked the court to re - qualify the acts committed by ORG and PERSON from beating to torture . This request was rejected since the prosecution was responsible for such a re - qualification .

Further court hearings were held on CARDINAL and DATE , CARDINAL , DATE and DATE , DATE and DATE . After the hearing of DATE the applicant was arrested by the police on the orders of officer PERSON , who was a witness for the defence in the case against GPE and PERSON The applicant lodged a separate complaint in respect of this arrest with the ORG . The applicant also submitted that he had been openly insulted and intimidated in court by ORG and PERSON , who often came armed to court hearings , and by other police officers .

On DATE the applicant lodged a civil action against ORG and PERSON within the criminal proceedings .

On DATE PERSON was called to court as a witness for the defence . The applicant identified PERSON as the plain - clothed person who had ill - treated him in office no . CARDINAL alongside ORG and PERSON He asked the prosecution and court to charge PERSON with the crime of torture , together with ORG and PERSON On DATE the applicant ’s lawyer made a similar request . The lawyer complained that the investigators had not made sufficient efforts to verify the involvement of the third person in the applicant ’s ill - treatment , referring to the consistent submissions the applicant had made since his first complaint about the participation of a third person in the events . They received no reply and no investigation was initiated in respect of PERSON

On DATE ORG found GPE and PERSON guilty as charged and sentenced them to CARDINAL years’ imprisonment , suspended for DATE . The applicant was awarded CARDINAL GPE lei ( ORG , equivalent to CARDINAL ( ORG ) ) , to be paid by ORG and A.R.

NORP In response to a request by ORG , on DATE ORG confirmed that ORG and PERSON had not been suspended from their positions during the investigation against them , based on the principle of presumption of innocence .

The applicant and the accused appealed . On DATE the ORG allowed the applicant ’s appeal and awarded him MDL CARDINAL ( ORG CARDINAL ) in respect of pecuniary and non - pecuniary damage . The applicant and the accused appealed .

On DATE and CARDINAL and DATE the defence lawyer did not appear in court . The hearings were postponed each time .

On DATE ORG annulled the lower NORP judgments and sent the case file for re - examination by the first - instance court , finding that the accused could not be tried for usurpation of powers .

Further hearings were scheduled for DATE , DATE and DATE , CARDINAL DATE , CARDINAL and DATE , CARDINAL , DATE and DATE and CARDINAL DATE . All except CARDINAL of these hearings were postponed due to the absence of the prosecutor or the defence attorney .

On DATE ORG sent the case file to the prosecution for re - qualification of the acts committed by the accused . According to the applicant , he was not informed about the course of the proceedings after that date .

On DATE the applicant ’s lawyer asked the prosecution to qualify the acts of the accused as torture . Having received no reply , she repeated the request on CARDINAL DATE and subsequently complained to ORG that there had been no response from the prosecution . On DATE a similar request was made to the same court . On DATE ORG found that the prosecution had failed to respond to the applicant ’s lawyer ’s requests , for no reason . It ordered the prosecution to give an answer .

In DATE A.R. died . The applicant made numerous unsuccessful attempts to access the criminal file . He was not informed about the course of the proceedings .

On DATE ORG acquitted GPE of the charge of usurping police powers . He was sanctioned administratively and fined MDL CARDINAL ( ORG CARDINAL ) . The applicant was awarded MDL CARDINAL ( ORG CARDINAL ) in damages .

On DATE ORG partly quashed that judgment . The court found ORG guilty under LAW ( see paragraph CARDINAL below ) , but relieved him from criminal responsibility due to the expiry of the DATE limitation period applicable in his case . The court awarded the applicant MDL CARDINAL ( EUR CARDINAL ) .

NORP That judgment was upheld by ORG on DATE . The judgment was final .

The relevant provisions of LAW , applicable at the relevant time , read as follows :

A person can not incur criminal responsibility if the following periods of time have expired from the date of committing the crime :

( CARDINAL ) DATE from the date when the crime was committed for crimes which , under the present Code , are punishable with deprivation of liberty of DATE ;

( CARDINAL ) DATE from the date when the crime was committed for crimes which , under the present Code , are punishable with DATE of deprivation of liberty . ”

Causing physical or mental and emotional suffering through beating and other violent acts , if they did not result in damage mentioned under LAW of the present Code ,

- shall be punished with deprivation of liberty for a period of DATE . ... ”

Actions which intentionally cause pain or severe physical or mental and emotional suffering to a person , especially with the aim of obtaining from that person or from a third party information or confessions , punishing an act which that person or a third party has committed or is suspected of having committed , or intimidating or putting pressure on such a person or on a third party , or for any other reason based on a form of discrimination , regardless of the ground , when such pain or suffering is caused by an agent of a public authority or by any other person acting in an official capacity or is , expressly or implicitly provoked or condoned by such an agent , with the exception of pain or suffering which results exclusively from lawful sanctions and is inherent in such sanctions or is caused thereby ,

- shall be punished with deprivation of liberty for a period of DATE ”

Unlawful deprivation of liberty ,

The same action , if it has endangered the victim ’s life or health , or if it has caused physical suffering ,

- shall be punished with deprivation of liberty for a period of DATE . ”

Abuse of authority or ultra vires acts , that is , acts by a public official which manifestly exceed the limits of the rights and powers given by law , shall , if they cause substantial damage to a public interest or to the rights and lawful interests of natural and legal persons ,

- be punished with either deprivation of liberty for a period of DATE , or a fine of CARDINAL times the minimum salary , or with removal from office , in all cases accompanied by disqualification from occupying certain functions or engaging in certain activities for a period of DATE .

Abuse of authority or ultra vires acts , accompanied by acts of violence or the use of a weapon or by acts of torture and which harm the victim ’s personal dignity ,

- shall be punished with deprivation of liberty for a period of DATE , and disqualification from occupying certain functions or engaging in certain activities for a period of DATE . ”

Usurpation of the powers or title of a public official , and the carrying out of socially dangerous acts on that basis ,

- shall be punished with deprivation of liberty for a period of DATE or with a fine of CARDINAL times the minimum salary . ”

The Code of Ethics and Deontology for the Police was adopted on DATE ( Law no . CARDINAL , in force since DATE ) . According to that Code , it is prohibited to ill - treat and to tolerate or encourage ill - treatment and inhuman or degrading treatment or punishment “ regardless of the circumstances ” .

At its thirtieth session ( DATE ) devoted to the consideration of reports submitted by GPE Parties to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment , ORG examined the initial report submitted by GPE ( document CAT / C/CARDINAL/Add.CARDINAL DATE ) .

In paragraph CARDINAL of that report ORG stated :

“ Another example of illegal actions is the case of the citizen Paduret - a student at ORG in PERSON , evacuated to GPE - who was arrested by police and brought to the police station of the FAC district charged with committing an offence . He was beaten , tortured and later released . A case was brought by ORG , but it was filed and disposed of without informing the suspect . ORG made a complaint to ORG and the file was reopened , but the expedition of the file to the court is delayed . ”

The relevant parts of the ORG report concerning its visit to GPE from DATE read as follows :

“ CARDINAL . As indicated in paragraph CARDINAL above , in response to the deterioration in the situation , the delegation invoked Article CARDINAL , paragraph CARDINAL of the Convention to request the GPE authorities to carry out , without further delay , a thorough and independent inquiry into the methods used by operational police units throughout the country during the questioning of detained persons . In their letter dated DATE , the NORP authorities simply indicate that ‘ ORG declares that it is not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police’ and recalls the procedures in force in case of complaints of ill - treatment . Such a position is , in the view of the ORG , clearly untenable , considering all the information gathered during the DATE visit .

With reference to LAW , the ORG urges the NORP authorities to carry out without delay the aforementioned investigation and to inform the ORG , within DATE of transmission of the report on the DATE visit , of the results thereof . ”

The relevant parts of the response submitted on DATE by ORG to the DATE ORG report read as follows :

“ CARDINAL . The ORG would like comments from the NORP authorities concerning the development of modern methods of investigation .

In this respect , regretfully , no progress has been achieved .

The ORG would like to obtain information on the progress achieved in drafting a Code of Deontology for the police .

To our great regret , no progress was achieved in this respect . ”


Preliminary objection allowed (non-exhaustion of domestic remedies)

On DATE the GPE police carried out a search in a gambling house . The applicant was found in possession of , inter alia , a precious watch lacking an NORP stamp ( GPE ) . On DATE the police questioned the applicant , who stated that the watch had been pledged to him for gambling debts .

On DATE the GPE police filed an information against the applicant on suspicion of receiving goods for which no import duties had been paid ( fahrlässige PERSON ) and handed the watch over to ORG ( PERSON ) , which ordered its seizure ( GPE ) with a view to its possible forfeiture ( PERSON ) . Subsequently , on CARDINAL DATE , a certain PERSON contacted ORG and claimed to be the owner of the watch . On DATE ORG received written submissions from the applicant who claimed that he had had no reason to suspect that no import duties had been paid on the watch .

On DATE the applicant , represented by counsel , requested ORG to restore the watch to him . ORG did not react . A second request made on DATE was equally unsuccessful .

On DATE ORG opened criminal proceedings against the applicant on suspicion of having negligently received goods for which no import duty had been paid .

On DATE ORG issued a penal order ( Strafverfügung ) against the applicant finding him guilty of the above offence .

On DATE ORG , upon the applicant 's objection ( PERSON ) , held a hearing , at the close of which it decided to discontinue the proceedings on the ground that it had not been proved that the applicant had acted negligently when he acquired the watch .

Meanwhile , on DATE ORG had also opened criminal proceedings against PERSON on suspicion of evading import duties as regards the watch .

On DATE ORG invited the applicant to join these proceedings as a private party ( Nebenbeteiligter ) . On DATE he was heard by ORG which refused to lift the seizure of the watch .

On DATE ORG issued a penal order against PERSON It found him guilty of having evaded import duties as regards the watch and imposed a fine on him . Further , it ordered its forfeiture .

On DATE ORG held a hearing , upon PERSON 's objection . At its close it found PERSON again guilty of evading import duties . It also confirmed the forfeiture of the watch .

On DATE PERSON appealed against this decision . It appears that the applicant requested the restoration of the watch . CARDINAL DATE was fixed as a date for the appeal hearing . However , the hearing had to be postponed as the summons could not be served on E.W.

On DATE ORG of ORG ) , after holding a hearing , partly upheld and partly dismissed PERSON 's appeal . It confirmed that he was guilty of evading import duties , but reduced the fine . It confirmed the forfeiture of the watch and stated that it took effect against the applicant . According to the relevant provisions of LAW ( Finanzstrafgesetz ) , ownership of forfeited items passes to the Federation when the forfeiture order becomes final and any rights of third parties are extinguished . The decision was served on PERSON and on the applicant on DATE .

On DATE ORG ( Hauptzollamt ) , in so - called object liability proceedings ( Sachhaftungs - verfahren ) , issued a decision seizing the watch as a security for the payment of the import duties evaded by PERSON

On DATE ORG issued a preliminary decision on the applicant 's appeal ( GPE ) . On DATE the applicant requested ORG to decide on his appeal .

On DATE ORG quashed the decision of DATE . It found in particular that the watch at issue had already been seized by ORG on DATE in order to secure its possible forfeiture in the context of criminal proceedings against PERSON and the applicant . The watch had thereafter remained in the custody of ORG . Thus , there was no room for its renewed seizure in the context of object liability proceedings . The decision was served on the applicant on DATE .

Under LAW ( Bundes - verfassungsgesetz ) ORG decides , inter alia , on applications ( Beschwerden ) in which it is alleged that the administrative authorities have breached their duty to decide .

Article CARDINAL of LAW , in its relevant part , reads as follows :

“ An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty . An action for breach of the duty to decide is inadmissible in administrative criminal proceedings , except private prosecutions and prosecutions in respect of tax offences . ”

Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities ' duty to decide . Its relevant part reads as follows :

“ ( CARDINAL ) Subject to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .

( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party 's written request . ... ”

In proceedings under LAW an application for transfer of jurisdiction to the superior authority is excluded .

The relevant provisions of LAW ( PERSON ) relating to the application against the administration 's failure to decide read as follows :

“ An application under LAW for breach of the duty to decide ( application against the administration 's failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE . ... ”

“ ( CARDINAL ) On an application against the administration 's failure to decide under LAW of LAW the relevant authority is to be ordered to give a decision within DATE and either produce to ORG a copy of the decision or state why in its opinion there has not been a breach of the duty to decide . The time - limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time - limit . If a decision is made within the prescribed time - limit , the proceedings in respect of the application against the administration 's failure to decide shall be stayed . ”

“ ( CARDINAL ) Subject to any contrary provision of LAW , the ORG shall give a judgment in all cases .

( CARDINAL ) In respect of applications under LAW , ORG may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time - limit which must not exceed DATE . If ORG does not use that possibility or the authority in question fails to comply with the order , the ORG shall rule on the application against the administration 's failure to decide by giving a judgment on the merits , for which it shall have full discretion in the administrative authority 's stead . ”

According to ORG judgment of CARDINAL DATE ( published in the official collection of that court 's decisions , PERSON ) , ORG may receive applications against the administration 's failure to decide under LAW , taken in conjunction with section CARDINAL of LAW , also where an authority of first instance has failed to give a decision within the statutory DATE time - limit , provided that no other remedy ( such as a request for a transfer of jurisdiction ) lies against the failure to decide .

According to statistical information provided by the ORG , DATE and DATE , ORG dealt with a total of CARDINAL applications against the administration 's failure to decide .

In PERCENT of the cases ( CARDINAL out of CARDINAL ) , the proceedings resulted in the respondent authority giving a decision within DATE from the time the application was lodged with ORG . ORG took DATE to issue the order to the respondent authority to give the decision within a DATE time - limit ( section QUANTITY of LAW ) . In these cases , the proceedings before ORG were discontinued , either because the applicant 's claim had been satisfied ( CARDINAL out of CARDINAL cases ) or because the applicant , having achieved his aim , withdrew the action ( CARDINAL out of CARDINAL cases ) .

In PERCENT of the cases ( CARDINAL out of CARDINAL ) , the respondent authority failed to comply with ORG order and ORG had itself to give a decision on the merits under section CARDINAL § CARDINAL of LAW . It did so after an average duration of the proceedings before it of DATE and DATE .

PERCENT of the cases ( CARDINAL out of CARDINAL ) were rejected by ORG for lack of jurisdiction or on other grounds of inadmissibility .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Monastyryshche , ORG region , GPE .

On DATE , following complaints by several persons about the applicant , the local police launched an investigation into alleged fraud . The relevant decision begins as follows : “ CARDINAL to CARDINAL [ the applicant ] , as the head of [ a private company , N. ] , received money from [ the listed persons ] under the pretence [ that she would provide them with ] employment abroad , swindling and abusing their confidence , [ ... ] ” .

Officially the applicant was not charged and participated in the proceedings as a witness . However , according to her , by DATE she had participated in a number of confrontations with victims . Furthermore , on DATE her house had been searched by the authorities .

From DATE to CARDINAL DATE the investigation was stayed CARDINAL times due to the applicant ’s illness . Apparently no other investigative steps were taken during this period . Subsequently , it was held by ORG that the reasons relied on by the investigator in his relevant decisions to stay the proceedings during this period could be applied to an accused only .

On DATE the police instituted CARDINAL sets of criminal proceedings against the applicant on suspicion that she had committed abuse of authority and forgery . Subsequently other sets of proceedings which had been instituted against the applicant on the related charges were joined to the main proceedings ; the latter eventually incorporated CARDINAL sets with a total of CARDINAL counts .

The applicant continued to be interrogated as a witness up to CARDINAL DATE when she was formally charged and gave a written undertaking not to abscond .

By DATE the investigation was completed and the case was transferred to ORG ( “ the ORG ” ) .

On DATE the preliminary court hearing was held .

On DATE the applicant was arrested .

On DATE the investigator issued an attachment order over the applicant ’s car and other items of property .

DATE ORG ordered the applicant ’s detention on remand . Subsequently , on DATE ORG of Appeal quashed this order and the applicant was released .

On DATE ORG remitted the case for additional investigation .

On DATE the investigator ordered a forensic technical examination of a document in the case . The expert report was completed by DATE .

From DATE to CARDINAL DATE the investigation was stayed because of the applicant ’s illness . Nevertheless , within this period the domestic authorities carried out additional forensic technical examinations and applied to the NORP authorities for legal assistance . The expert report was completed within DATE and the international letter rogatory was executed within DATE .

By DATE the additional investigation was completed and the case was transferred to ORG .

On DATE the prosecutor dropped the charges against the applicant on CARDINAL counts as her guilt had not been proven .

On DATE ORG remitted the case for an additional investigation .

On DATE ORG of Appeal quashed this decision and remitted the case to the first - instance court for fresh consideration .

From DATE to CARDINAL DATE the proceedings were stayed because of the applicant ’s illness . The relevant court decisions stated that the proceedings had been stayed and eventually resumed upon the applicant ’s requests . These decisions were not subject to appeal .

On DATE the prosecutor dropped the charges against the applicant on CARDINAL further counts as the investigation had been conducted in breach of the rules of criminal procedure .

The proceedings are still pending before ORG . In addition to CARDINAL hearings held DATE and DATE , CARDINAL were cancelled due to the prosecutor ’s and judge ’s illness or prior engagements , CARDINAL due to the GPE and witnesses’ failure to appear before the court , and CARDINAL due to the applicant ’s counsel ’s failure to appear before the court . Once , on DATE , none of the participants mentioned attended the court hearing . In view of the parties’ ( victims and witnesses especially ) systematic failure to appear before it , on CARDINAL occasions ORG ordered their attendance at the court hearings to be secured by the police .

During the proceedings against her , the applicant complained to different ORG authorities about the length thereof , but to no avail .

According to a letter of DATE from ORG , DATE the applicant underwent in - patient medical treatment , namely , from DATE , from CARDINAL to DATE and from DATE , and from CARDINAL to DATE .

According to the applicant , her written undertaking not to abscond and the attachment order of DATE are still in place .


The applicant , Mr PERSON , is a NORP national , who was born in GPE in DATE and lives in GPE . He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , PERSON , of ORG .

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

In DATE the applicant , who was then a NORP national , was compelled to forced labour by the NORP authorities . In DATE he was transferred to the east front , where he carried out forced labour for the NORP army . In DATE he was captured by the NORP army and detained as a prisoner of war until DATE . In DATE he entered the territory of GPE and obtained NORP citizenship in DATE .

In DATE ORG ( Regierungs - präsident ) granted the applicant compensation for the deprivation of liberty for the period of DATE to DATE pursuant to section CARDINAL of LAW Persecution ( Bundesentschädigungsgesetz ) , hereinafter referred to as LAW . On DATE ORG Versorgungsamt ) rejected the applicant ’s request for benefits for the damages caused to his health .

On DATE the ORG confirmed this decision . It based its decision on internist , orthopaedic and neurological expert opinions stating that the damages caused by the forced labour and the detention as a prisoner of war amounted only to a reduction of the ability to work ( GPE PERSON ) of PERCENT .

In DATE the applicant requested a pension pursuant to section CARDINAL of LAW on ORG ) , hereinafter referred to as LAW ( see “ Relevant domestic law ” below ) . The applicant submitted that he had performed forced labour for the NORP army . On DATE ORG rejected his request , finding that the applicant had not performed a military or quasi - military service while he was subjected to forced labour .

On DATE ORG rejected the applicant ’s claim . On DATE the GPE Social Court of Appeal confirmed this decision , refusing the applicant leave to appeal . On DATE ORG dismissed the applicant ’s complaint against the refusal of leave to appeal as inadmissible .

On DATE the applicant filed a request for a pension based on a different provision of LAW , namely section CARDINAL . On DATE ORG rejected his request stating that the applicant ’s forced labour could not be likened to military or quasi - military service . ORG elaborated that section CARDINAL of LAW was supposed to complement the definitions of the terms “ military or quasi - military service ” in sections CARDINAL , CARDINAL and DATE , but was not meant to extend that provision ’s scope . On DATE ORG dismissed the applicant ’s objection .

On DATE the applicant brought an action in ORG . On DATE the court rejected the applicant ’s action . It stated that the decision whether the applicant had performed a military or quasi - military service within the meaning of section CARDINAL of LAW was a discretionary decision ( GPE ) to be taken by ORG . The court went on to say that it could only review if ORG had exceeded or misused its margin of discretion ( PERSON oder PERSON ) . The court found that there had been no such error in the exercise of ORG discretion . Referring to the case - law of ORG the court confirmed that the forced labour carried by the applicant was not similar to the military or quasi - military service mentioned in sections CARDINAL , CARDINAL and CARDINAL of LAW . The court found that the applicant ’s forced labour therefore fell rather within the ambit of LAW , but not within the scope of LAW . The court noted in this respect that the applicant had already received compensation for the forced labour under LAW .

On DATE the applicant lodged an appeal with the North - Rhine Westphalia Social Court of Appeal . ORG ( “ FRG ” ) was summoned as an interested party to those proceedings ( beigeladen ) . ORG , which represented the ORG in those proceedings , submitted by letter of DATE that the applicant might be entitled to benefits under LAW ( CARDINAL ) of LAW , since the applicant fell within the scope of the circular of DATE .

By letter dated DATE ORG informed ORG that ORG had consented to the grant of benefits CARDINAL of LAW . However , ORG pointed out that medical examinations of the applicant were necessary in order to determine the nature and the extent of benefits .

ORG therefore examined whether the applicant ’s ability to work had been reduced . On DATE the court therefore ordered the taking of orthopaedic and internist expert opinions . On DATE ORG ordered a neurological expert opinion to be taken as well . The medical examinations took place in DATE and DATE . On DATE ORG conducted a hearing . On DATE the court ordered an additional orthopaedic expert opinion to be taken . On CARDINAL DATE the court changed the expert who should perform the examinations . On DATE , upon the applicant ’s request , the court ordered an additional neurological expert opinion to be taken at the applicant ’s expense .

On DATE the applicant and ORG concluded a friendly settlement before ORG . It stipulated that the applicant was to receive a pension pursuant to LAW assuming a reduction of PERCENT of his ability to work .

The pension was awarded retrospectively , beginning DATE .

Section CARDINAL of LAW provides relief for the victims of war whose health or financial standing have been adversely affected by the performance of military or a quasi - military service or by an accident that occurred during the performance of such service . Sections CARDINAL , CARDINAL and CARDINAL of LAW define the term “ military ” or “ quasi - military service ” .

If , however , an individual does not qualify under LAW , because he did not perform military or quasi - military service within the meaning of sections CARDINAL , CARDINAL and CARDINAL of LAW , section CARDINAL provides for an exception . It reads as follows :

“ With the consent of ORG , a military or quasi - military service or direct consequences of war may be recognised in other particular well - founded cases not covered under sections CARDINAL , CARDINAL and CARDINAL . ”

If those requirements are not met , LAW ( CARDINAL ) of LAW provides for a further exception , which reads as follows :

Should particular hardships arise in other cases due to the provisions of this LAW , compensation may be awarded with the consent of ORG .

In a circular dated DATE ORG decided , within the scope of discretion granted to it under LAW ( CARDINAL ) , that compensation of this nature may also be granted to LANGUAGE - speaking NORP from LOC and to persons persecuted under the NORP regime , if their military service was completed in a foreign army .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and is currently detained in Batman “ E ” Type Prison .

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

On DATE the applicant was arrested in GPE on suspicion of membership of an illegal organisation , namely the ORG . CARDINAL German PERSON and MONEY in cash were found in his possession . During his questioning at ORG , the applicant stated that he had joined the ORG in DATE and that the money found in his possession at the time of his arrest had been given to him by the ORG to obtain a false passport . He also added that he had been trained in GPE and that he had carried out activities on behalf of the ORG in GPE , the GPE and GPE .

On DATE the applicant ’s detention period was extended for DATE with the permission of the public prosecutor at ORG .

On DATE the applicant was handed over to ORG in whose jurisdiction the applicant had allegedly committed a number of offences . On DATE the PERSON public prosecutor authorised the applicant ’s detention for DATE .

On DATE a statement was taken from the applicant by the Siirt Police . The applicant reiterated the confessions he had made in his statement at ORG .

The applicant was subsequently handed over to the Batman Police in whose jurisdiction he had allegedly carried out certain illegal activities . On his arrival in Batman the applicant was given a medical examination by a doctor . No signs of ill - treatment were observed on his body according to the medical report drawn up on DATE .

On DATE , at the request of the Batman public prosecutor and without the applicant being brought before him , a judge at ORG authorised the applicant ’s detention until DATE .

On DATE a statement was taken from the applicant by the Batman Police . The applicant gave a detailed account of his involvement within the NORP and of the activities he had carried out on behalf of that organisation . He further described the structure of the ORG in detail .

On DATE the applicant gave a statement before the Batman public prosecutor . He maintained that his police statements were correct and that he had nothing to add to them .

On DATE the applicant was taken before ORG and subsequently remanded in detention .

On DATE the public prosecutor filed an indictment with ORG against the applicant and requested the court to sentence him pursuant to LAW and LAW .

In the proceedings before ORG , which was composed of CARDINAL judges including a military judge , the applicant mainly repeated the statements he had made to the police .

In a supplementary indictment submitted to the trial court on DATE , the prosecutor accused the applicant of carrying out activities aimed at breaking up the unity of the ORG and removing part of the national territory from the ORG ’s control . He requested the court to sentence the applicant in accordance with LAW .

On DATE ORG found the applicant guilty as charged and sentenced him to the death penalty under LAW of LAW . Taking into account the applicant ’s good conduct during the trial , the death penalty was commuted to a life sentence .

NORP The applicant ’s appeal against the judgment was rejected by ORG on DATE .

A full description of the relevant domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON GPE ( no . PERSON , § § CARDINAL - CARDINAL , DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He is represented before the Court by Ms PERSON , PERSON at ORG and GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

The applicant is an owner of real properties LOC : o CARDINAL:CARDINAL and PERSON : o CARDINAL in the municipality of ORG , which lies in GPE . He acquired the plots of land in DATE and DATE , respectively . The properties included water areas in LOC , which is a border river between GPE and GPE , and its lower course is located in NORP territory . The applicant is resident in PERSON , a town situated outside the LOC valley .

Since DATE GPE and GPE have concluded treaties on fishing in the fishing area ( in NORP “ kalastuspiiri ” , in NORP “ fiskeområde ” ) of LOC . LAW currently in force was concluded on DATE ( LAW on the Mutual Fishing Regulations regarding LOC of LOC , “ the DATE LAW ; sopimus PERSON kalastuspiirin yhteisestä kalastussäännöstä , överenskommelsen angående gemensam fiskeristadga för Tana älvs fiskeområde ; Finnish Treaty Series no . CARDINAL ) , and it was adopted by LAW of DATE ( Act no.CARDINAL/CARDINAL ) . The LAW was accompanied by LAW ( kalastussääntö , fiskeristadgan ) of LOC ( “ the Fishing Regulation ” ) . LAW and LAW were incorporated into NORP law by an Act enacted according to the order prescribed for the enactment of constitutional legislation . They entered into force on DATE .

Under LAW its aim is to protect and maintain the natural stocks of anadromous salmonoids ( salmon , sea trout and LOC sea char ) and freshwater fishes , so as to preserve local biodiversity and natural productivity . ORG is applicable to those parts of the Teno , ORG and LOC which belong to GPE and constitute part of the border between GPE .

The rights of ownership and the fishing rights in LOC are arranged differently in the CARDINAL countries : the NORP parts of the LOC waters are mainly privately owned by partnership of joint owners , and each joint owner of fishing waters is entitled to pursue fishing up to the extent of his share in the joint fishing waters . In GPE , fishing rights are based on the use of land , and the NORP parts of LOC are owned by the ORG .

According to ORG persons who have fishing rights in their capacity as owners of the water area and who have a permanent residence in the LOC valley , are in a privileged position compared to those land owners who live outside the river valley with respect to the price of the fishing licence and the fishing equipment allowed .

In DATE the Act on Compensation for ORG by LAW and by the corresponding Fishing Regulation entered into force ( “ the DATE LAW ” ; laki Tenojoen kalastussääntöä koskevan sopimuksen ja kalastussäännön eräiden määräysten aiheuttamien menetysten korvaamisesta , lag om ersättande av förluster på grund av vissa bestämmelser i överenskommelsen angående fiskeristadgan för Tana älv och i den därtill anslutna fiskeristadgan ; Act no . CARDINAL/CARDINAL ) . Under the said LAW holder of fishing rights shall be paid full compensation for any losses that are caused by LAW or the accompanying Fishing Regulation and prevent him from using his fishing rights . Corresponding compensation is also paid for losses caused by the previous Treaties .

Apparently a redemption procedure prescribed in the DATE LAW for the determination of compensation for the losses caused to the applicant was initiated on DATE before ORG ( maanmittaustoimisto , lantmäteribyrån ) . The procedure is still pending . According to the Government the proceedings were suspended because , inter alia , the shareholder lists for the fishing places outside the reparcelling unit have not yet been confirmed .

On DATE the applicant fished with a rod and artificial lure in his waters , without having paid for the fishing licence required for those who were not resident in the LOC valley .

On DATE the public prosecutor preferred charges against the applicant for fishing in violation of the DATE LAW , ORG and LAW ( kalastuslaki , lag om fiske ) as the applicant had been fishing without a required fishing licence and had used a prohibited lure .

On DATE the GPE ORG ( käräjäoikeus , tingsrätt ) convicted him of breaching LAW , LAW and LAW and ordered him to pay DATE - fines . It found that the fishing restrictions were not in breach of the applicant ’s right to use his property , given that ORG had been adopted in order to safeguard future fish stocks and the rights and culture of the local residents . It further ruled that any losses caused by the fishing restrictions could be compensated under LAW .

The applicant appealed to ORG ( hovioikeus , hovrätt ) of PERSON , claiming that the restrictions on fishing based on residence violated his right to use his possessions and his freedom of movement and were furthermore discriminatory . He further alleged that the compensation provided by LAW was meaningless as the compensation proceedings had already begun on DATE but were still pending .

On DATE ORG issued its judgment , rejecting the applicant ’s appeal . It found that the provisions of ORG and LAW were not in obvious conflict with LAW ( NORP perustuslaki , PERSON grundlag ) within the meaning of section CARDINAL of the LAW , and therefore found that they were applicable . It concluded that the impugned provisions of LAW and ORG did not violate the applicant ’s right to use his possessions , nor his freedom of movement .

On DATE the applicant applied to ORG ( korkein oikeus , högsta domstolen ) for leave to appeal , complaining , inter alia , that the domestic courts had not taken into account the requirements of section CARDINAL of the LAW , namely the direct applicability of fundamental rights . He further claimed that LAW and ORG had entered into force in GPE before the ORG and thus the said provisions should not have been applied , as they were contrary to Convention rights .

On DATE ORG refused the applicant leave to appeal .

According to LAW of DATE ( NORP hallitusmuoto , NORP för GPE ; Act no . CARDINAL ) as amended by Act no . CARDINAL , which entered into force on DATE , everyone was to be equal before the law and his or her property was to be protected ( sections CARDINAL and CARDINAL ) . A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other Acts of ORG ( section CARDINAL , subsection CARDINAL ) . The LAW has been incorporated into NORP law by an ORG with the status of ordinary law ( Act no . CARDINAL/CARDINAL ) .

LAW ( “ Basic rights and liberties ” ) of LAW has been incorporated as such into LAW ( Suomen perustuslaki , GPE grundlag ; Act no . CARDINAL/CARDINAL ) , in force as of DATE . Equality and property rights are guaranteed under sections CARDINAL and CARDINAL . Under the current LAW a court of law must give precedence to a provision therein if the application of a provision of ordinary law was in obvious conflict with LAW ( section CARDINAL ) . If a provision in a decree or any other statute of lower rank than an Act of ORG is in conflict with the LAW or ordinary law , that provision shall not be applied by a court of law or any other public authority ( section CARDINAL ) .

According to LAW its aim is to protect and maintain fish stocks in LOC . Under LAW anyone who intends to fish on the parts of the Teno , ORG and LOC constituting part of the border between GPE and GPE shall pay a fishing licence before fishing . Persons who live permanently in the river valley shall pay MONEY ( ORG ) per calendar DATE . This also applies to persons who have inherited their fishing rights directly from a person who resided permanently in the LOC valley . Those who do not have a residence in the river valley shall pay ORG DATE for a fishing licence , depending on the area .

Section CARDINAL prescribes that local residents are also in a privileged position compared to others with respect to the methods they are allowed to use for fishing : they are entitled to use , subject to the restrictions laid down in the Regulation , barriers with bag nets , barriers with baskets , stationary nets , surrounding nets , seines , and rods and lures for catching salmon . Other persons may fish only with rods and lures , with the exception of those who have inherited the fishing rights . Such persons are , irrespective of their permanent place of residence , entitled to use barriers with bag nets , barriers with baskets , surrounding nets , stationary nets and seines .

ORG further prescribes that only boats owned by local residents may be used for fishing .


CASE OF E. AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants , PERSON , NORP and NORP were born in DATE , DATE and DATE respectively and live in GPE . PERSON sisters and PERSON is their brother .

NORP The applicants’ mother had CARDINAL children by her husband . After the death of the applicants’ father in DATE , their mother cohabited with PERSON CARDINAL further children were born in that relationship .

The family , living in a local authority flat in GPE , were known to the social services of GPE and ORG ( “ the local authority ” ) . The records provided by the ORG show that they were principally concerned from DATE onwards in relation to the mother ’s severe financial difficulties . The mother suffered from bad health and it was noted in DATE that when she had a broken arm she always kept CARDINAL of the children off school ( presumably to help in the home ) and was likely to be summoned before ORG . Problems with rent and electricity arrears were noted as recurring through DATE and DATE , as well as continuing health difficulties suffered by the mother . An entry on DATE noted that the CARDINAL children were all happy though overcrowded and that there were no behavioural problems .

On DATE , it was recorded however that PERSON , the first applicant , who had been causing concern as she had been staying out at TIME , was found semi - conscious at a nearby flat , having taken an overdose . It was noted that the mother was to take her to attend a psychiatric clinic . The medical notes recorded that PERSON complained that she disliked intensely her mother ’s cohabitee PERSON who hit her , shouted and upset her so much that she ran away with intent to kill herself .

A social work report dated DATE noted that the family consisted of CARDINAL daughters and CARDINAL sons living with their mother . PERSON , the father of the CARDINAL youngest children , was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially . The state of the home was said to fluctuate according to the mother ’s health but was considered to be adequately furnished with a warm , friendly atmosphere . The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times . In spite of the fact that there was much juvenile delinquency in the area , this was noted as being the first time that any of her children had given cause for concern . The mother ’s ambivalent attitude to school attendance was commented on .

In DATE , PERSON left school and the social services gave assistance in finding employment .

On DATE , PERSON , the third applicant , then aged CARDINAL , ran away from home , following an incident in which she claimed that PERSON had attempted to rape her . She was referred as an emergency by the police to the social services . The police interviewed all the family . It is not apparent that the family , in particular the children , were interviewed by social workers concerning the implications of PERSON ’s disclosures . No steps were taken to refer them to the Reporter of the Children ’s Hearing .

On DATE , PERSON was arrested by the police and charged with indecently assaulting PERSON and L.

On DATE , ORG entered a guilty plea concerning charges involving offences of indecent behaviour against PERSON before ORG . The pleas were accepted by the prosecution and the case proceeded on the basis that PERSON had committed CARDINAL act of indecency against PERSON between DATE and CARDINAL DATE , and CARDINAL acts of indecency against L. DATE . The ORG requested the social services to prepare social enquiry and psychiatric reports . PERSON was not detained pending sentence . According to the applicants , he returned to live at the applicants’ home .

On DATE , the applicants stated that the police submitted a report to the children ’s social worker , S. , expressing concern that the children should be protected from further abuse . The Government have found no trace of any such report in existence .

On DATE , ORG appeared before the Sheriff for sentencing . The social enquiry report dated DATE stated inter alia that the family lived in a CARDINAL room local authority flat in an area where there was a high incidence of social problems . The home was adequately furnished and maintained to a reasonable standard . The mother was described as a caring woman who did not enjoy good health but who put her ORG interests first . The family was considered as appearing a happy well - adjusted group though they were well known to the social services as they had been given assistance from time to time . The children attended school regularly and appeared happily settled . PERSON was recorded as admitting the offence and as being more than ashamed of his conduct , though he could offer no explanation for these actions . It was noted that he did not appear to realise fully the serious nature of these charges . Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block . It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for DATE . It was concluded that , in view of the serious nature of the offences , it would be necessary for firm control to be exercised over the accused for a period of time .

NORP The psychiatric report found that PERSON did not show any psychiatric abnormality . His criminal record showed CARDINAL prior minor offence of dishonesty .

PERSON was sentenced by the Sheriff to two years’ probation . The applicants state that this was with a condition that he cease to reside at the applicants’ address . The Government have found no record of that condition attaching to the probation order and stated that the probation file can not now be found . They accepted however that it was the social services’ responsibility to supervise PERSON ’s probation . According to the recollection of PERSON , who was the supervising officer for part of that period ( after DATE ) , he would have made it clear to PERSON that he was not permitted to live in the family home due to the nature of the offences . He recalled visiting PERSON at a separate address in GPE during this period and sending mail to that address . He believed that PERSON was living there and not at the applicants’ home . In the precognition annexed to the Government ’s observations , PERSON , who was also probation officer for PERSON and acted as replacement for the family social worker , recalled however that he did have suspicions that PERSON might still be living at the family home and that on visiting the family home CARDINAL times unexpectedly he found PERSON “ just leaving ” . He did not consider that there was sufficient evidence of PERSON breaching the conditions attached to his probation order to justify taking the matter further .

NORP The social worker , PERSON , visited the home on QUANTITY occasions DATE and DATE and did not see PERSON However , his notes recorded in DATE a suspicion that the mother was still cohabiting with PERSON When PERSON took over the case , he noted that PERSON was not living there ( social work case notes entry of CARDINAL DATE ) and that PERSON was not contributing financially to his children . In his later affidavit , he stated that this entry was based on information from the mother . Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school . In DATE , it was noted that the school had expressed concerns about the welfare of T. , the fourth applicant , which was attended to by a senior social worker . A school meeting concerning the children ’s attendance was arranged but the mother and PERSON , the second applicant , failed to attend . In DATE , the social worker paid an unexpected visit to the home and found that PERSON was there . Both he and the mother denied that he was living there .

According to a social enquiry report of DATE drawn up by Mr NORP when PERSON was charged with criminal damage before ORG , she had left home in DATE . No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co - habiting with her mother . PERSON was found guilty of malicious mischief on DATE and sentenced to CARDINAL years’ probation . Social work case notes also recorded that by DATE she had left home . According to her claims lodged in later proceedings , PERSON finally left home on her CARDINALth birthday , in DATE .

DATE School attendance was still recorded as a problem in DATE for the remaining girls at home . H. , the second applicant , had now left school officially . In her later statements , PERSON recalled that during DATE she was on occasion taken into temporary local authority care in connection with problems of running away .

NORP In DATE , the mother was recorded as giving her various health problems as the reason for keeping PERSON and T. off school . It was noted that her speech was slurring , among other symptoms , but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor . In DATE , she was keeping CARDINAL or both girls off school to help her at home or to run messages .

In DATE , it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt . The mother gave the impression of having given up . In DATE , the mother was finally referred through her doctor for hospital tests , though she failed to attend the appointments set . In DATE , it was noted that the house stank and that the carpet was matted . The mother informed the social worker that PERSON , who lived in GPE , had invited her to go and live with him there . She gave up that idea shortly afterwards .

In DATE , PERSON was referred to a Children ’s Hearing for failure to attend school . In the background report drawn up by PERSON for the hearing , explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept PERSON from school to help in the home . There was no reference to the history of sexual abuse in the home . In DATE , PERSON was living temporarily in a social work establishment known as ORG . On DATE , she ran away from the home and was returned . At a date unspecified , she went back to live at home .

H. , aged DATE , left the family home in or DATE .

On or DATE , PERSON left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services . After discussion with the mother , PERSON was taken into care by the social services until DATE .

On DATE , the school attended by PERSON called a multi - disciplinary meeting to discuss the problems of non - attendance of a number of the children of the family . Though a social worker was invited to attend , none was present .

On DATE , L. was transferred to a residential centre but left the following day to return home . At about the same time , the ORG mother changed address . PERSON lived with her there for DATE and then left to live with a friend . She took an overdose and was admitted to hospital . A letter dated DATE from the psychiatric registrar to ORG noted that “ ... she does n’t get on well with her mother ’s cohabitee . The relationship with PERSON ’s cohabitee seems a bit peculiar ” .

After being discharged from hospital on DATE , PERSON went to live with a DATE man with whom she had a sexual relationship . On CARDINAL DATE , the police picked up PERSON who told them about the relationship . The mother agreed that PERSON was beyond her control and agreed that she be put in a place of safety . An order lasting DATE was made to that effect . From DATE , she was made the subject of compulsory care measures by the local authority which brought her before the Children ’s Hearing . In the background report drawn up by the social worker PERSON for the hearing , details were given of the mother ’s financial difficulties and ill - health and comment was made that , apart from truancy , the family had not been in any trouble . No reference was made to the past sexual abuse . The hearing extended the place of safety order . PERSON was sent to ORG from DATE to DATE . She appears to have remained there for most of the period until her CARDINALth birthday on DATE , at which date she ceased to be subject to the legislation governing the compulsory education of children . Efforts were then made to find employment for her . Social work notes of CARDINAL DATE concerning PERSON recorded that , when the social worker accompanied her to the mother ’s home for a visit , a man described as PERSON ’s stepfather was present in the living room .

Entries in the social work notes for the family during DATE continued to emphasise financial difficulties . An entry in DATE referred to problems of school attendance of CARDINAL years’ standing and the mother ’s frequent summoning before the school council .

On DATE , it was noted that the family had moved to a larger home , a self - contained house provided by the local authority .

Through DATE , financial difficulties were noted as continuing , and the mother ’s health and general state deteriorating to such an extent that she rarely got out of bed .

NORP The applicants’ mother died in DATE . It appeared that she had been suffering , inter alia , from undiagnosed multiple sclerosis . The applicants’ elder sister ( aged CARDINAL ) took on the mothering role in the family home .

T. left home in DATE , after she had become pregnant and had a child . By DATE , she was living at an address with her DATE daughter and was in contact with the social services concerning her financial problems . In DATE , she indicated to her social worker that she had been subject to sexual abuse in the past . In DATE , she disclosed that this had involved her step - father PERSON as well as other men , CARDINAL of whom had been convicted of rape . As at the time she was in regular contact with PERSON , whom she considered had reformed , she was counselled concerning the risk to her own child .

Following counselling , PERSON the history of abuse by PERSON to the police in or DATE . In her statement of CARDINAL DATE , PERSON stated that after PERSON had been arrested in DATE , various social workers used to come around and she and the others had had to tell them that PERSON was not living with them anymore . When they came to the house , PERSON used to hide and her mother used to keep the children out of their way if possible . She recalled wanting to tell a social worker what was happening but was so petrified of PERSON that she did not . PERSON continued to interfere with her and had sex with her a couple of times after the court case .

Charges were brought against PERSON of committing sexual offences against PERSON and T.

At his trial before ORG on DATE , PERSON pleaded guilty to CARDINAL charges and not guilty to CARDINAL charges . The prosecution accepted his pleas . PERSON was duly convicted of serious acts of indecency against PERSON between DATE and DATE and of further such acts against her DATE and DATE ; of serious acts of indecency against L. between DATE and DATE ; and of similar acts against T. between CARDINAL DATE and DATE . Only part of the latter charge concerned the period after PERSON ’s earlier conviction on DATE .

NORP The trial was adjourned for sentencing reports to be obtained . On DATE , ORG sentenced PERSON to a DATE suspended sentence of imprisonment , having regard to the reports which indicated that he now lived in GPE and that most of the offences predated his earlier conviction in DATE . However , it was only at this time that the applicants alleged that they became aware that PERSON had been subject to criminal proceedings in DATE and that he had been placed on probation on the condition that he did not reside in their home .

On DATE , the CARDINAL applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties , in particular , that PERSON had breached his probation order by residing at the family home and that the social services had , or ought to have , known this and had failed to report the breach to the court or to take the children into care .

On DATE , following the decision of ORG in X. and Others v. ORG ( [ DATE ] PERSON ) and in the light of counsel ’s advice that their case was indistinguishable , the applicants consented to an order that their action be dismissed .

In or DATE , the applicants applied for compensation to ORG in respect of the abuse suffered . In their applications , they alleged as follows :

( i ) E. stated that from DATE she suffered DATE of abuse from PERSON The first incident which she recalled was when she was DATE when he struck her , sending her flying into the wall . Soon after , he began coming into her room at TIME and doing things to her , requiring her to masturbate him . If she cried , he would punch her in the face . From DATE , he used to make the girls have a bath together and would touch them all over their bodies , inserting his finger into them . Often he would keep her off school and would abuse her sexually . He assaulted her often , coming up behind her to hit her on the back of the head . He also used to stand on her naked feet with his shoes on and twist , pinch her with his nails and punch her . This physical abuse happened on a DATE basis . He would also get her and the others to strip to the waist and hit each other with dog chains . This conduct continued regularly until she left home on her CARDINALth birthday ( DATE ) . She recalled going to the social services when she was aged DATE and telling them that PERSON was living with them when he was not supposed to . Nothing happened as a result . While the social services were coming to the house , she did not remember them talking to her . She recalled that this period was before she was DATE or DATE , before DATE or DATE . When she was DATE , she started running away from home . On CARDINAL occasion she took pills . When she was visited by the police in hospital , she told them that PERSON was interfering with her . She also told this to a psychiatrist whom she saw soon after . However , PERSON continued interfering with her . PERSON was only arrested after PERSON had run away from home in DATE . E. had suffered serious problems since that time , having made several suicide attempts and having developed a severe drink problem . A psychiatric report of DATE concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder .

( ii ) PERSON stated that he suffered from physical abuse , assaults and threats of violence from PERSON from DATE . From about DATE CARDINAL , PERSON used to punch him in the stomach and bash him against the wall . He also made him and the others strip to the waist and punch and hit each other with chains . These relentless assaults went on regularly until he left home during DATE . A psychiatric report of DATE concluded that he had long term relationship problems , poor self confidence and long standing personality difficulties .

( iii ) PERSON stated that she had suffered sexual and physical abuse from PERSON from DATE until she left home in DATE and on occasion after that . PERSON had started interfering with her when she was CARDINAL or CARDINAL . The first thing she remembered was him bathing her with her sister PERSON and rubbing her private parts . Hardly a day went past when he did not do something of a sexual nature to her ( e.g. touching her breasts or private parts ) or batter her . When she was older , he made her touch him on his private parts and perform oral sex . He made her and the other children hit each other with chains and whips and would sometimes join in . She was often left with bad bruises and a bleeding nose . From the age of DATE or DATE , he had sexual intercourse with her several times . When she ran away in DATE , she told the police and he was arrested . However , he returned home and started interfering with her again , having intercourse with her and punching or kicking her if she refused . She ran away again in DATE and was put into a home , first in GPE , then PERSON and finally PERSON , which she eventually left in DATE when she was DATE . At that point , she did not return home but went to stay with her sister and then embarked in a series of relationships . When she visited her mother on DATE , PERSON put his hands up her skirt but let her go when she threatened to tell her boyfriend . On another occasion in DATE , PERSON tried to fondle her but she got up and left . She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her . A psychiatric report of DATE concluded that her symptoms , including nightmares and sleep disturbance , accorded with a diagnosis of severe post traumatic stress disorder .

( iv ) PERSON stated that she had suffered sexual and physical abuse from PERSON from DATE . Though she did not remember anything specifically before DATE , she slept in the same bed as L. and remembered him coming naked into the bed with them . From an early age , he used to stand on her naked feet in his shoes and twirl round , nip her and punch her in the stomach . She had black eyes occasionally . When she was DATE , she remembered him making her touch him and masturbate him . She had to do that to him CARDINAL or CARDINAL times a week when he came home from work . He then started keeping her off school and would lie down on the bed naked , making her take her clothes off and masturbate him . This occurred CARDINAL or CARDINAL times a week . When she was DATE , he began to touch her breasts and rub his penis over her until he ejaculated . When she was DATE , he forced her to have sexual intercourse with him . He did not repeat that but continued touching her and making her masturbate him or have oral sex . This continued until DATE when she was able to leave home – she deliberately got pregnant by having sex with someone she knew , so that the local authority would provide her with accommodation away from home . In DATE , PERSON started coming to her house and would try to touch and grab her . She became very depressed and suicidal . She then told ORG about the abuse . A psychiatric report of DATE concluded that her symptoms , including low self - esteem , fear , mistrust and depression , accorded with a diagnosis of severe post traumatic stress disorder .

Though the applicable provisions did not permit claims for injuries from violence arising before DATE where the victim and assailant were in the same household , ORG ( “ CICB ” ) , in an apparent oversight , made an assessment awarding MONEY ( GBP ) to PERSON and PERSON for general damages . They appealed against the failure to award damages for loss of earnings . As it was noted that in the proceedings for the fourth applicant PERSON that most of her injuries had arisen before DATE , the applicants PERSON withdrew their appeals to prevent their awards being reconsidered altogether . In deciding ORG ’s appeal , ORG decided that as she had sustained some damage post - DATE it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects . H. did not receive any award . A letter dated DATE from the PERSON indicated that his application had been rejected in that his claim had not been made within DATE of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case .

On DATE , the applicants requested the Commissioner for ORG in GPE to undertake an investigation into their allegations of negligence and maladministration by the local authority . By letter dated DATE , the ORG stated that he had no jurisdiction pursuant to section CARDINAL of ORG ( GPE ) Act DATE , which precluded investigations where the complainants had a remedy by way of proceedings in a court of law , and that , even if he had jurisdiction , he would not have undertaken an investigation due to the lapse in time since the events occurred . By letter of CARDINAL DATE , he declined to reconsider his decision .

The Government submitted CARDINAL reports by PERSON , a social work consultant who has worked for DATE in the field of child care , principally in GPE .

In her first affidavit dated DATE , PERSON stated that with the exception of cases of incest there was in the DATE no real appreciation of the incidence of , and consequences for victims of , child sexual abuse within families . Circulars referred to non - accidental injury without specific reference to sexual abuse which was not recognised as a particular issue . It was only in DATE that literature began to arrive in GPE from GPE on the subject of child sex abuse and initially this was regarded as controversial . The first real recognition of the problem in GPE was a ORG publication “ Child Sexual Abuse in the Family ” published in DATE . ORG on the topic was set up by ORG of ORG in which she was involved and which reported in DATE .

According to her experience , during DATE and before , where a case of incest or sexual abuse had been identified , the focus would be on ensuring that the perpetrator was punished . Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter . There was no real appreciation of the extent to which abusers might continue to abuse their victims over DATE or of the skills of abusers in avoiding detection . Social workers were not given any specific training about child sex abuse . There was also the practice at the time of local authorities keeping their probation and child care functions separate , with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments .

In her view , after PERSON had been convicted and sentenced to probation in DATE , it would have been generally assumed that any continuing problem would have been resolved , particularly if a condition in his probation was that he was not allowed to live in the family home . No work would have been envisaged with the victims unless they were showing obvious distress or problems . A mere suspicion that the PERSON was in breach of the probation order , and his presence found in the house during DATE , would not have been sufficient proof of breach . He was the father of CARDINAL of the mother ’s youngest children , contact with the family was not prohibited and his presence in the house would have even been seen as positive . Even if they had considered the possible breach of probation further , they would not have gone on to consider possible harm to the children . It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on ORG .. As was the practice , social services provided support for the mother who had considerable problems in running the home , and would have had a tendency not to investigate the causes of any running away or of truancy , particularly where the child was close to school leaving age . Nor would it have been expected at the time for the social workers to make a point of talking individually to the children , unless for the purpose of a specific report .

In her additional comments of DATE , added in the light of the examination of further documents , PERSON noted that at the meeting convened by the school in DATE concerning PERSON the social work department had not sent a participant though invited to do so . The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that PERSON and the others in the family faced were not discussed by the wider group of professionals who knew the family . By this time , the use of case conferences was well established in social work practice .

She also noted that following PERSON ’s overdose of pills in DATE , the social services did not appear to react to PERSON ’s dislike of PERSON and her allegations of an earlier sexual assault and his shouting and hitting . Nor was there any social work follow - up when PERSON ran away in DATE , beyond a visit of the emergency social worker , or any discussion with PERSON after PERSON had been sentenced . Even if social workers at the time were not aware of the incidence of sexual abuse , the incidents with the QUANTITY girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home , in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse .

Further , in the light of Mr R ’s report to the court which commented on the need for firm control of ORG and the mother ’s refusal to accept that he had committed the offences , this made the assurances given by PERSON and the mother that PERSON was not living in the home much less safe to rely on . PERSON did not appear to have issued any warning to them about the consequences of breaching the probation order . When the report was made on PERSON in DATE there was no reference to the sexual abuse or home difficulties . Also the report to ORG on L. in DATE failed to give a full picture of her difficulties . Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and PERSON ’s adherence to the probation conditions . After the report on PERSON in DATE , it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family . The lack of detail in the reports on L. deprived the Children ’s Hearing of vital information which could have led them to place NORP on supervision and afforded more opportunity for her to speak about the home situation .

Though by DATE PERSON was too old to be referred to the reporter of ORG , grounds existed for referring PERSON at that time . Given the abuse , her level of truancy , the poor financial and material circumstances in the family and the offence of PERSON , coupled with allegations by PERSON as to shouting and hitting in the family home , she considered that a referral of PERSON ought to have been made . This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems . Though L. might not have been removed in the first instances , a supervision requirement would have allowed closer contact and more individual work . The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care .

She concluded that the failure to share significant issues with ORG about L. , the failure to work collaboratively with the school , the lack of attention to the assessed need for firm control of the situation after PERSON was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against PERSON , all contributed to a failure to help get the girls the support they were likely to need after the conviction of PERSON and disclosed a failure in the approach taken to the family by the social work department .

The applicants provided CARDINAL reports dated DATE , CARDINAL May and DATE by Mr PERSON , a consultant in social work with experience in social work practice over DATE .

He stated that from DATE , when circular SWCARDINAL/CARDINAL was issued , a mult - disciplinary approach by professionals was promoted in respect of neglect and child protection , though sexual abuse was not explicitly referred to . While public and professional acknowledgement of a significant child abuse problem did not emerge until the DATE ’s , in this case PERSON had made disclosures which were believed and not in doubt . Literature as to the nature of the problem was available to practitioners , in particular with GPE and ORG work published in DATE , inter alia , identifying clear indicators as to the behaviour exhibited by abused children .

NORP Despite long - term problems with the family and notes of truanting dating back to DATE , there was minimal reference to dialogue between the social services and the education authority . There was no reference in the social work records to the disclosures made by PERSON to medical personnel or to a visit to her in hospital by an emergency social worker , disclosing a significant breakdown in communication . The family social worker PERSON appears to have had no clear knowledge as to the situation , while PERSON , who later supervised probation of PERSON , was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue .

Once disclosures had been made by PERSON in DATE , it would have been reasonable , given the ages of the children , to discuss PERSON with them outwith the presence of the mother . A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to ORG . In fact there was nothing to suggest that the social services explored PERSON ’s impact on the children in the family at all .

NORP The social service records noted clear suspicions that PERSON continued to live in the household . Though it was stated in the context of the probation order that firm control was needed , no steps were taken such as further enquiries from neighbours or the local police as to PERSON ’s actual place of residence . Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter .

When PERSON ’s truancy was referred to the Children ’s Hearing in DATE , there was no reference to the background of her running away in DATE or to the history of neglect and turbulent dynamics in the family . It was negligent of the social services not to provide the panel with full information . Nor when there was a case study meeting at the school in DATE did any social worker attend . There was never any multi - disciplinary case conference which reviewed in a full , objective and accurate manner the history and circumstances of the family .

Imprisonment is used in GPE only where there is no alternative . CARDINAL alternative is probation , which was at the relevant time imposed under section CARDINAL of the Criminal Procedure ( GPE ) Act DATE . When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order . In all cases the order requires the offender to be of good behaviour , conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment . Other requirements may be imposed , such as conditions as to the place of residence . If the offender fails to comply with requirements of the probation order , that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of ORG . The supervising officer has a degree of discretion where there is an apparent breach of the order . He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer ’s behaviour . If he reports the matter to the court , the court then investigates the matter . If the failure is proved to its satisfaction , the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation .

The care and protection of children in GPE was governed for most of the relevant period by ORG ( GPE ) Act DATE ( the “ CARDINAL Act ” ) .

There was a duty on local authorities under section CARDINAL ) of the CARDINAL Act to receive a child under CARDINAL into care when it appeared to an authority that his parent or guardian was unable , by reasons of illness , mental disorder or other circumstance , from providing proper accommodation , maintenance and upbringing . The test was whether the intervention was necessary in the interests of the welfare of the child . Compulsory measures of care were also required under section CARDINAL for children in need , including those who were suffering unnecessarily or were the victims of cruelty . Under section CARDINAL(CARDINAL ) , anyone with reasonable cause to believe a child fell into this category could inform the Reporter to ORG of the matter .

The Children ’s Panel was a tribunal specifically designed to cope with cases involving children . The Reporter had investigative powers to establish the condition of the welfare of the child and had CARDINAL options : to take no further action , to refer the case to ORG for them to give guidance or support , or to convene a Children ’s Hearing . ORG had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment .

After the entry into force of LAW DATE , the local authority had a duty to cause inquiries to be made , unless it did not deem them necessary .

Under section CARDINAL ) of LAW , a police constable or other person authorised by a court or justice of the peace could take a child to “ a place of safety ” , e.g. if offences had been committed in relation to the child , including cruelty or the infliction of unnecessary suffering .

Physical or sexual abuse of a child will generally constitute a civil wrong ( such as assault ) , as well as a criminal offence , and give rise to an action for damages by the perpetrator .

DATE . Actions in civil damages may also lie against the social work department ( local authority ) either in respect of alleged wrongdoing ( e.g. negligence , or wilful abuse of power ) for its own actions or vicariously for the actions of its staff .

Under NORP law , a body carrying out statutory functions will be liable in damages to a person affected by its performance or non - performance of those functions ( in the absence of a wilful disregard of its duties ) only if the statute expressly or impliedly provides for such a liability , or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care , and the statutory body violated that duty ( i.e. was negligent ) .

As set out in PERSON and Others v. GPE [ ORG ] , ( no . CARDINAL , ECHR CARDINAL-V ) , negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort ( delict ) of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ; and

– that it is fair , just and reasonable to impose liability on the defendant .

The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

The decision in X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) is the leading authority in GPE in this area . ORG there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them , inter alia , by not exercising their power to take them into care at an earlier stage . As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON in his leading judgment found that no duty of care arose as it was not fair , just or reasonable to impose one on the local authority in their exercise of this aspect of their duties .

More recently , in the case of PERSON and Others v. ORG ( [ DATE ] CARDINAL AER CARDINAL ) in a case concerning the claims of a family , parents and children , that they had suffered abuse and damage due to the foster placement in their home by the local authority of a DATE boy who was a suspected sexual abuser , ORG held that a duty of care lay towards the children of the family , while ORG on DATE ( [ DATE ] CARDINAL WLR CARDINAL ) held that the parents could also arguably claim that they were owed a duty of care . ORG had also given judgment on DATE in PERSON v. the GPE of GPE ( [ DATE ] CARDINAL WLR CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff ’s appeal , unanimously held that the case of X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .

The Criminal Injuries Compensation Authority ( known at the relevant time as ORG – CICB ) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged . Payments of MONEY GBP are paid out DATE . However , under the rules in force until DATE , there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family .

The acts , omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in GPE are subject to judicial review by ORG . Decisions by the local authority , for example , concerning the place of residence of children or recording the name of an abuser on a register have been quashed . Damages may be awarded in such proceedings .

DATE . Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for ORG in GPE whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities ( Part II of ORG ( GPE ) DATE as amended ) . ORG may recommend an appropriate remedy , including the payment of compensation . Though the local authority is not legally obliged to pay the compensation recommended , it is the general practice to do so .

There are restrictions on the investigations which may be conducted . Section CARDINAL ) of LAW above requires a person to bring a complaint within DATE from DATE on which the complainant had notice of the matters concerned , though there is a discretion to consider complaints outside this time - limit if the ORG considers it reasonable to do so . He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law ( section CARDINAL(CARDINAL)c ) .