Preliminary objection dismissed (ratione temporis);Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Vladimiro Zagrebelsky

The applicants , ORG and PERSON , were born in DATE and DATE respectively and live in LOC .

On DATE , at some point between TIME and TIME , the applicants ' DATE son , PERSON , sought medical assistance in FAC for , inter alia , nausea and itching skin . He was examined by a duty doctor , PERSON On the basis of a diagnosis of urticaria ( a type of allergic reaction ) , PERSON ordered the administration of intravenous injections of a drug containing glucocorticosteroid ( PERSON ) and an antihistaminic ( PERSON ) . Following the injections , the applicants ' son 's condition significantly deteriorated . This was probably a result of him being allergic to CARDINAL or both of the drugs . His skin became very pale , he began to tremble and to feel cold ; PERSON noticed signs of tachycardia . A diagnosis of anaphylactic shock was made . Subsequently , at TIME , the applicant 's son was transferred to intensive care . ORG ordered the administration of , inter alia , adrenaline . By the time the cardiologist arrived , the applicants ' son had stopped breathing and had no pulse . Cardiopulmonary resuscitation was given . At TIME the applicants ' son was connected to a respirator and his blood pressure and pulse returned to normal , but he remained in a coma ; his brain was severely damaged .

On DATE he was transferred to ORG ( ORG center v PERSON ) , where he died on CARDINAL DATE .

The exact timing of the events which led to the death of the applicants ' son and the action taken by ORG in response to his deteriorating condition were disputed in the domestic proceedings .

On DATE the applicants lodged a criminal complaint ( ovadba ) with ORG of ORG ( PERSON javno tožilstvo GPE , Enota v Slovenj Gradcu ) against ORG for the criminal offence of “ negligent medical treatment ” ( nevestno zdravljenje ) which , following the applicants ' son 's death , was characterised as “ a serious criminal offence that [ had ] caused damage to health ” ( hudo kaznivo dejanje zoper človekovo zdravje ) . The applicants argued that , through the intravenous injection of the CARDINAL drugs , ORG had given their son the wrong treatment and had subsequently failed to take appropriate corrective measures after his condition deteriorated .

In the course of the preliminary proceedings ( predkazenski postopek ) medical documents concerning the treatment administered to the applicants ' son were seized by the police and , following his death , the duty investigating judge ( preiskovalni sodnik ) directed ORG ( Inštitut za sodno medicino v PERSON ) to conduct an autopsy and prepare a forensic report .

On DATE the police submitted a report to the public prosecutor from which it appears that ORG ( Ministrstvo za zdravstvo ) requested ORG ( Zdravniško Društvo ) to set up a commission to prepare an opinion in the case . The commission was composed of the same experts as those who were preparing the forensic report ( see paragraph CARDINAL below ) . According to the report , the opinion was sent on DATE to ORG , which published it in CARDINAL of GPE 's main newspapers on DATE .

On DATE ORG submitted their report , which stated , inter alia :

“ The anaphylactic shock which ... followed the administration of PERSON and PERSON was most likely due to sensitivity to one of the mentioned drugs .

The medical treatment of anaphylactic shock in ORG was , on the basis of the medical records , in accordance with established medical practice .

The consequent ventricular fibrillation was influenced by the infection of the heart muscle , which PERSON must have contracted DATE before DATE .

After the ventricular fibrillation occurred , the hospital staff gave resuscitation . According to the medical records , this was performed in accordance with established medical practice .

In the period from PERSON admission to ORG until his death , we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent . ”

On DATE the public prosecutor dismissed the applicants ' criminal complaint on the ground of insufficient evidence .

On DATE the applicants , acting as “ subsidiary ” prosecutors ( subsidiarni tožilec ) , lodged a request for the opening of a criminal investigation ( zahteva za preiskavo ) into ORG 's conduct .

On DATE , having heard representations from GPE on DATE , the investigating judge of ORG ( PERSON ) granted their request . On DATE , on an appeal ( pritožba ) by ORG , the interlocutory - proceedings panel ( zunaj - obravnavni senat ) of ORG overturned the investigating judge 's decision after finding that the evidence in the case - file , in particular the forensic report , did not afford reasonable grounds for suspecting PERSON of manifestly acting in breach of professional standards .

An appeal by the applicants and a request for the protection of legality ( zahteva za varstvo zakonitosti ) were dismissed , the latter in a decision of CARDINAL DATE by ORG ( Okrožno sodišče v PERSON ) , which obtained jurisdiction in the case after the reorganisation of the judiciary in DATE . The applicants contested that decision . On DATE ORG ( PERSON ) dismissed their appeal on essentially the same grounds as those on which the previous appeal and request for the protection of legality had been rejected , namely that the applicants were not entitled to appeal against the interlocutory - proceedings panel 's decision not to institute criminal proceedings against the doctor .

Subsequently the applicants obtained a medical opinion from Doctor T.V. who stated , inter alia , that myocarditis ( inflammation of the heart muscle ) , which had previously been considered a contributory factor in the death of the applicants ' son , could have occurred when he was in anaphylactic shock or even later . As a result , on DATE they lodged a request to reopen the criminal investigation ( see paragraph CARDINAL below ) . In addition , they lodged a motion to change the venue of the proceedings to ORG ( Okrožno sodišče v Mariboru ) . On DATE ORG granted their motion for a change of venue .

On DATE the interlocutory - proceedings panel of ORG granted the applicants ' request for the reopening of the investigation . An appeal by ORG was rejected by ORG on DATE .

NORP In the course of the investigation , the investigating judge examined witnesses and obtained an opinion from FAC , an expert at ORG in GPE ( GPE ) . ORG stated in his report that the administration of the antihistaminic had led to the applicants ' son 's serious allergic reaction . He expressed doubts as to the pre - existence of myocarditis .

On DATE the investigating judge closed the investigation .

Owing to the complexity of the case , the applicants asked ORG ( NORP državno tožilstvo v LOC ) to take over the conduct of the prosecution . Their request was rejected on DATE . The Head of ORG subsequently explained to ORG ( PERSON državni tožilec ) that , while ORG 's report confirmed the existence of reasonable suspicion that ORG had caused the death by negligence , it was not a sufficient basis on which to lodge an indictment as that required a degree of certainty .

On DATE the applicants lodged an indictment accusing ORG of the criminal offence of “ causing death by negligence ” ( povzročitev smrti iz malomarnosti ) .

On DATE , upon ORG 's objection to the indictment , the interlocutory - proceedings panel of ORG directed the applicants to request , within DATE , additional investigative measures ( see paragraph CARDINAL below ) .

The investigating judge subsequently examined several witnesses and ordered a forensic report by GPE , an NORP forensic expert in the field of emergency medicine and anaesthesia . ORG stated in his report that the ultimate reason for the death of the applicants ' son was relatively uncertain , so that the issue of the effectiveness of the measures taken by ORG in response to the son 's condition was of no relevance .

On DATE the investigating judge informed the applicants that it had been decided to close the investigation . He reminded them that they must either lodge an indictment or a further request for additional investigating measures within DATE ( see paragraphs CARDINAL below ) .

On DATE the applicants asked the investigating judge to question GPE , ORG and GPE

On DATE , after questioning GPE , the investigating judge informed the applicants that the investigation had been closed . They were again reminded that they must either lodge an indictment or a further request for additional investigative measures within DATE .

On DATE the applicants lodged an indictment supplemented by evidence that had been obtained in the extended investigation . On DATE an interlocutory - proceedings panel rejected ORG 's objection to the initial indictment as unfounded .

On DATE ORG lodged a request for the protection of legality , claiming that the indictment submitted on DATE had not been served on her . On DATE ORG sodišče ) quashed ORG decision of DATE and remitted the case to ORG with instructions to serve the indictment of DATE on ORG subsequently lodged an objection to that indictment and on DATE the interlocutory - proceedings panel decided to refer the case back to the applicants , directing them to obtain further evidence DATE by requesting additional investigative measures – within DATE from the service of its decision .

The applicants complied with the directions and on DATE requested additional investigative measures , in particular the examination of GPE , ORG and T.V. In their request , they complained of the remittal of the case since they considered that the evidence should have been further assessed at the trial and not at that stage of the proceedings .

Further to their request , the investigating judge ordered a supplementary report from GPE and , on DATE , informed the applicants that further investigative measures had been taken and that they had DATE in which to lodge an indictment or request additional measures .

Following a request by the applicants on DATE for further measures , the investigating judge ordered a reconstruction of the events of CARDINAL DATE and the examination of CARDINAL witnesses .

The investigation was closed on CARDINAL May DATE . The applicants were reminded of the requirements under section CARDINAL , paragraph CARDINAL , of LAW ( “ the CPA ” – see paragraph CARDINAL below ) .

In the meantime , on DATE the applicants again made an unsuccessful request to the public prosecutor to take over the conduct of the prosecution .

On DATE the applicants filed a further indictment and the additional evidence they had been directed to obtain .

In DATE the applicants complained to ORG ( GPE svet ) about the length of the criminal proceedings . They also challenged the CARDINAL judges sitting on the interlocutory - proceedings panel which had previously heard ORG 's objection to the indictment . On DATE the President of ORG rejected the applicants ' request for the judges to stand down .

Following a further objection to the indictment by ORG , the interlocutory - proceedings panel examined the case on DATE and decided to discontinue the criminal proceedings . Relying in particular on the opinions of ORG and GPE , it found that the applicants ' son 's reaction to the administration of PERSON and/or PERSON was a consequence of his sensitivity to those drugs and of myocarditis , which was undoubtedly a pre - existing condition . As regards the conduct of PERSON , the interlocutory - proceedings panel found that there was insufficient evidence to substantiate the applicants ' accusation that she had committed the criminal offence alleged . The applicants were ordered to pay the court fees and the expenses incurred in the proceedings since DATE ( the date the CPA was amended so as to require the aggrieved party to pay costs if the proceedings ended with the dismissal of the indictment ) .

On DATE the applicants lodged an appeal which ORG dismissed on DATE . They then petitioned ORG ( ORG državni tožilec ) , asking him to lodge a request for the protection of legality with ORG . Their petition was rejected on DATE .

In the meantime , on DATE the applicants lodged a constitutional appeal with ORG ( PERSON sodišče ) , complaining of procedural unfairness and the length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory - proceedings panel . On DATE ORG dismissed their appeal on the ground that after the final discontinuance of criminal proceedings a “ subsidiary ” prosecutor could not appeal to ORG , as he had no locus standi before that court .

On DATE the applicants also lodged a criminal complaint alleging improper conduct on the part of CARDINAL judges of LOC and ORG who had sat in their case . The complaint was dismissed as unfounded by ORG on DATE .

Subsequently , the applicants made several attempts to reopen the case . Among other motions filed by the applicants that were rejected as inadmissible by the authorities were the following .

On DATE they lodged a “ request for the criminal proceedings to be reinstated ” , which was considered in substance to be a request for the reopening of the case . On DATE the interlocutory - proceedings panel of ORG dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case . On DATE ORG rejected an appeal by the applicants dated DATE .

On DATE the applicants lodged with ORG a “ request for immediate annulment of the entire criminal proceedings ... conducted before the GPE ORG ” . This was also considered in substance to be a request for the reopening of the case and was likewise dismissed . On DATE ORG rejected an appeal by the applicants .

Ultimately , on CARDINAL DATE the applicants lodged a fresh indictment against ORG On DATE the Slovenj Gradec ORG struck the indictment out because the prosecution of the alleged offence had become time - barred on CARDINAL DATE .

On DATE the applicants instituted civil proceedings against ORG and ORG in LOC for the non - pecuniary damage they had sustained as a result of their son 's death in the amount of CARDINAL NORP tolars ( SIT ) .

DATE . On DATE they also instituted proceedings against the head of the internal medical care unit , GPE , and the director of ORG , D.P. Further to a request by the applicants , the court joined the CARDINAL sets of proceedings .

All the defendants in the proceedings had lodged their written pleadings by DATE .

On DATE , in a supervisory appeal ( nadzorstvena pritožba ) to the President of the Slovenj ORG , the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed .

On DATE , referring to sub - paragraph CARDINAL of section CARDINAL of LAW ( see paragraph CARDINAL below ) , the court stayed the civil proceedings pending a final decision in the criminal proceedings . It noted that the outcome of the civil proceedings would depend to a large extent on the determination of the preliminary question ( predhodno vprašanje ) , namely the verdict in the criminal proceedings . The applicants did not appeal against that decision , which therefore became final on DATE .

On DATE Judge PERSON replied to a supervisory appeal by the applicants dated DATE , inter alia in the following terms :

“ [ The applicants ] are ' subsidiary ' prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before ORG , where the preliminary question is being determined , have not been completed . Their supervisory appeal concerning the stay of the [ civil ] proceedings is therefore pure hypocrisy . ”

Upon a complaint by the applicants lodged with ORG , Judge PERSON was ordered to explain her reply to the applicants .

In DATE the applicants again filed a supervisory appeal ; the stay , however , remained in force .

On DATE Judge PERSON , to whom the case appears to have been assigned in the meantime , sent the applicants a letter , in which he stated , inter alia :

“ In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim , since a civil court can not establish facts which are different from those established by the criminal court . ”

On DATE the applicants filed a motion for a change of venue which ORG rejected on DATE .

On DATE the ORG informed the applicants that the reasons for staying the proceedings still obtained .

On DATE the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted . On DATE Judge PERSON scheduled a hearing for DATE . However , that hearing was subsequently cancelled at the applicants ' request after their representative explained that she had been injured in a road accident and was on sick leave .

On DATE the applicants filed a further motion for a change of venue . On DATE ORG decided to move the venue to ORG on the grounds of “ tension that was impeding and delaying the trial ” .

The case was subsequently assigned to Judge M.T.Z. On DATE ORG held a hearing which was adjourned as the applicants indicated that they wished to lodge a request for the judges officiating at that court to stand down .

After lodging a criminal complaint against some of the judges ( see paragraph CARDINAL above ) , the applicants filed a motion on DATE for all the judges at ORG and ORG to stand down . Having been asked to comment on the applicants ' request , Judge ORG stated , inter alia , that she had realised at the hearing on DATE that CARDINAL of the defendants , with whom she had shaken hands at the hearing , was a close acquaintance ( “ dober znanec ” ) of her father . She added that the applicants were constantly lodging objections which had made it impossible to conduct the proceedings properly . It would appear that Judge PERSON subsequently herself requested permission to withdraw from the case . On CARDINAL DATE the request for the judges to stand down was granted in so far as it concerned Judge PERSON The case was assigned to Judge GPE

On DATE and DATE ORG rejected the applicants ' motions for a change of venue .

A hearing scheduled for DATE was adjourned at the applicants ' request , after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in ORG . They subsequently informed the court that their lawyer would , in fact , continue to represent them .

On DATE ORG held a hearing at which it examined GPE and M.E. It would appear from the records of the hearing that the applicants were not allowed to ask a series of CARDINAL questions they wished to put . The judge 's decision not to allow the questions was based mostly on objections made by the defendant , although on QUANTITY occasions the court does appear to have stated reasons for its decision not to allow the question concerned .

On DATE the applicants filed a motion for Judge PERSON to stand down . That request was rejected on DATE .

A hearing scheduled for DATE was adjourned because the applicants had lodged a further motion for a change of venue . On DATE the applicants lodged another motion . Both motions were rejected by ORG ( on DATE and CARDINAL DATE respectively ) .

It appears that hearings scheduled for CARDINAL and DATE were adjourned because of the applicants ' newly appointed lawyer 's commitments in another , unrelated case .

DATE . On DATE the applicants filed written submissions and amended their claim for damages . They also requested that the proceedings be expedited .

On DATE Judge PERSON , to whom the case had apparently meanwhile been assigned , was ordered by the President of ORG to treat the case with priority and to report DATE on the status of the proceedings . The President explained his decision by referring to the length of the proceedings , the case 's high profile and the intervention by the ORG ( PERSON človekovih pravic ) .

A hearing was held on DATE , DATE and DATE before Judge PERSON The applicants withdrew their claims in respect of GPE and D.P. After the hearing , they requested Judge PERSON to stand down on the grounds that she had refused to allow them adequate time to reply to their opponent 's extensive submissions which had been filed on DATE . Their request was rejected by the President of ORG on DATE . However , on DATE Judge PERSON herself asked to withdraw from the proceedings on the ground that her full name had been mentioned in a newspaper article on DATE which had also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings . The president of the court upheld her request as being “ certainly well - founded ” .

The case was subsequently assigned to Judge PERSON

Hearings were held on DATE and DATE .

On DATE ORG delivered a judgment rejecting the applicants ' claim , which ultimately amounted to SIT CARDINAL in respect of non - pecuniary damage and SIT CARDINAL in respect of pecuniary damage . The applicants were ordered to pay legal costs to the defendants . Relying on the expert opinions , the court concluded that ORG could not have foreseen the applicants ' son 's reaction to the drugs that were administered to him and that she and the hospital staff had acted in accordance with the required standard of care . In addition , the court rejected as unsubstantiated the applicants ' claim that the hospital was not properly equipped .

On DATE the applicants lodged an appeal with ORG . They argued that the first - instance court had not correctly established all the relevant facts , had wrongly applied the substantive law and had committed a procedural error by not allowing or taking into account certain evidence and , in particular , by refusing to obtain a further expert opinion .

On DATE ORG rejected the appeal as unsubstantiated and upheld the first - instance court 's judgment .

DATE . On DATE the applicants lodged an appeal on points of law ( revizija ) .

On DATE ORG rejected the applicants ' appeal on points of law after noting that , apart from the reference to ORG judgment finding a violation of LAW , it raised essentially the same complaint as their appeal to ORG , namely the refusal to obtain or consider certain evidence the applicants considered relevant . It rejected the complaint as unsubstantiated , finding that the lower courts had acted in accordance with the law . It further held that ORG judgment , which related to the requirement for the prompt examination of cases concerning death in a hospital setting , could not have influenced its conclusion as to the lawfulness of the refusal to obtain or consider the evidence in question .

On DATE the applicants lodged a constitutional appeal with ORG alleging a violation of the following constitutional guarantees : the right to equality before the law , the inviolability of human life , the right to equal protection , the right to judicial protection and the right to legal remedies .

The proceedings are still pending .

On DATE ORG lodged a bill of indictment ( obtožni predlog ) against the first applicant alleging that she had engaged in insulting behaviour by saying to an official at ORG “ I have had enough of this f * * * court , the damn State does not do anything , is n't it aware that our son was killed ! ” . The prosecution was based on a criminal complaint filed by ORG .

On DATE the ORG withdrew the criminal complaint as a result of the ORG 's intervention ( see paragraph CARDINAL below ) . ORG subsequently dismissed the bill of indictment .

The applicants lodged several petitions with the ORG 's office concerning the conduct of the civil proceedings . Their case was reported in the ORG 's DATE Reports of DATE , DATE and DATE .

In a letter to the President of the Slovenj Gradec District Court on DATE , the Deputy ORG stressed that the issue of criminal liability could not be regarded as a preliminary question in the civil proceedings instituted against the doctor and the hospital . He further stated that there was no justification for staying the civil proceedings .

In a letter to the applicants of CARDINAL DATE and his Annual Report of DATE ( pp . CARDINAL and CARDINAL ) , the ORG criticised the conduct of Judge PERSON He stressed that the judge had expressed concerns about her ability to appear impartial only after the applicants had filed the request for her to stand down and after the ORG 's intervention in the case , although she had been aware of the reasons for the concerns beforehand .

The section of the ORG 's Report of DATE ( pp . CARDINAL - CARDINAL ) dealing with the applicants ' case and in particular criticising aspects of the judge 's conduct of the civil proceedings states , inter alia :

“ In the record of the hearing [ of DATE ] reference is made to CARDINAL questions which the plaintiffs were not permitted to ask . ... As regards the majority of these CARDINAL questions , the record contains no indication why the judge did not allow the plaintiffs to put the questions . In each instance , there was a prior objection by the defendants ' representatives to the question .

Although [ the applicants ' ] reactions , statements and proposals were perhaps extreme on occasion , the authorities , including the courts , ought to have taken into account their emotional distress ... [ a factor which ] may necessitate the trial being conducted in a particularly tolerant and flexible way , [ though ] without breaching procedural rules to the detriment of the defendants . However , the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing , an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs ' representative . ”

In his DATE Report of DATE ( pp . CARDINAL - CARDINAL ) , the ORG criticised ORG for filing the criminal complaint against the first applicant . The report drew attention to ORG explanation that it was required by law to file and pursue the criminal complaint as it would be guilty of a criminal offence if it did not . The Ombudsman stressed that there was no legal basis for such a conclusion . On the contrary , a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party 's criminal complaint , which in the instant case was ORG complaint . Following the ORG 's intervention and in view of the arguments set out in his letters , ORG decided to withdraw the criminal complaint against the first applicant .

The Criminal Code ( PERSON zakonik , ORG no . CARDINAL ) , as amended , defines , under the heading “ Criminal Offences causing Damage to Health ” criminal offences concerning injury caused by negligent health care . In addition , Article CARDINAL of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not DATE and not DATE . These offences are subject to mandatory prosecution by the public prosecutor , but a “ subsidiary ” prosecution by an aggrieved party will also lie ( see paragraph CARDINAL below ) .

Criminal proceedings in GPE are regulated by LAW ( Zakon o kazenskem postopku , ORG no . CARDINAL/CARDINAL DATE “ the CPA ” ) and are based on the principles of legality and officiality . Prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed .

Public prosecutions are conducted by the public prosecutor 's office . However , if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings , the aggrieved party has the right to take over the conduct of the proceedings in the capacity of “ subsidiary ” prosecutor , that is , as an aggrieved party acting as a prosecutor ( CPA , section ORG ) ) . A “ subsidiary ” prosecutor has , in principle , the same procedural rights as the public prosecutor , except those that are vested in the public prosecutor as an official authority ( CPA , section CARDINAL ) ) . If the “ subsidiary ” prosecutor takes over the conduct of the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution ( CPA , section CARDINAL ) ) .

Criminal investigations are conducted by the investigating judge at the request of a public or “ subsidiary ” prosecutor . If the investigating judge does not agree with a request to open an investigation , he must refer it to an interlocutory - proceedings panel of CARDINAL judges , which then decides whether to open a criminal investigation . If the investigating judge grants the request , the accused may lodge an appeal with the interlocutory - proceedings panel . Parties to the proceedings may appeal against the interlocutory - proceedings panel 's decision to ORG ( višje sodišče ) . Appeals do not stay the execution of the decision to open an investigation ( section CARDINAL of the CPA ) .

ORG If a request for an investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence , the criminal proceedings may be reopened at the request of the public or “ subsidiary ” prosecutor provided new evidence is adduced on the basis of which the interlocutory - proceedings panel is able to satisfy itself that the conditions for instituting criminal proceedings are met ( CPA , section CARDINAL ) .

CARDINAL

As regards the aggrieved party 's role in the investigation , the relevant part of section CARDINAL of the CPA provides :

“ ( CARDINAL ) An aggrieved party acting as a prosecutor ... may request the investigating judge to open an investigation or propose additional investigative measures . During the course of the investigation they may also submit other proposals to the investigating judge .

( CARDINAL ) The institution , conduct , suspension and termination of an investigation shall be governed , mutatis mutandis , by the provisions of the present Act applying to ... the investigation conducted at the request of the public prosecutor ...

( CARDINAL ) When the investigating judge considers that the investigation is complete he or she shall inform the aggrieved party acting as a prosecutor ... The investigating judge shall also advise such aggrieved party .... that he or she must file the indictment ... within DATE , failing which he or she may be deemed to have withdrawn from the prosecution and a decision may be taken to discontinue the proceedings . The investigating judge shall also be bound to give such warning to the aggrieved party acting as a prosecutor ... in cases where the panel has dismissed his or her motion to supplement the investigation because it is of the opinion that the matter has been sufficiently investigated . ”

After the investigation has ended , court proceedings may be conducted only on the basis of an indictment ( CPA , section CARDINAL ) .

Under LAW of the CPA , the accused may lodge an objection to the indictment within DATE after its receipt . The objection is examined by the interlocutory - proceedings panel . Section CARDINAL of the CPA provides , inter alia :

“ ( CARDINAL ) If in considering the objection the interlocutory - proceedings panel discovers errors or defects in the indictment ( section CARDINAL ) or in the procedure itself , or finds that further investigations are required before the decision on the indictment is taken , it shall return the indictment to the prosecutor with directions to correct the established defects or to supplement ... the investigation . The prosecutor shall within DATE of being informed of the decision of the panel submit an amended indictment or request a ... supplementary investigation . ... ”

In addition , the relevant part of section CARDINAL of the CPA provides :

“ ( CARDINAL ) In deciding an objection to the indictment the interlocutory - proceedings panel shall not accept the indictment and shall discontinue the criminal proceedings if it finds that :

( CARDINAL ) a criminal prosecution is statute - barred ...

( CARDINAL ) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged . ”

Under the provisions of LAW ( Zakon o obligacijskih razmerjih , GPE of GPE 's ( “ SFRJ ” ) Official Gazette no . CARDINAL , ) and its successor from DATE , LAW ( PERSON zakonik , ORG no . CARDINAL/CARDINAL ) , health institutions and their employees are liable for pecuniary and non - pecuniary damage resulting from the death of a patient through medical malpractice . The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee 's failure to conform to the relevant standard of care . Employees are directly liable for death or injury under the civil law only if it is caused intentionally . However , the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter 's gross negligence .

Section CARDINAL of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL ) , as amended , provides :

“ When the decision of the court depends on a preliminary determination of the question whether a certain right or legal relationship exists , but [ the question ] has not yet been decided by a court or other competent authority ( preliminary question ) , the court may determine the question by itself , save as otherwise provided in special legislation .

The court 's decision on the preliminary question shall be effective only in the proceedings in which the question was determined .

In civil proceedings , the court shall be bound with respect to the existence of a criminal offence and criminal liability by a finding of guilt by a criminal court judgment that is final . ”

The relevant part of section CARDINAL of LAW provides as follows :

“ In addition to the examples specifically given in this LAW , the court may order a stay of proceedings :

if it decides not to determine the preliminary question itself ( section CARDINAL ) ... ”

The relevant part of section CARDINAL of LAW provides :

“ If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section CARDINAL , the proceedings shall resume once the [ other ] proceedings are finally concluded ( pravnomočno končan postopek ) ... or when the court finds that there is no longer any reason to await the end [ of the other proceedings ] .

In all cases , the discontinued proceedings shall continue at the relevant party 's request , immediately after the reasons justifying the stay cease to exist . ”

Equivalent provisions can be found in sections CARDINAL , CARDINAL , CARDINAL and CARDINAL of the new LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL/CARDINAL ) , which came into force on DATE .

The Regulation on the organisation and functioning of the Tribunal of ORG ( “ the Medical Tribunal ” ) ( PERSON o organizaciji in delu razsodišča ORG ) , issued on DATE , lays down , inter alia , the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result . The Commissioner of ORG ( tožilec GPE – “ the Commissioner ” ) , who is elected from among the members of ORG , is autonomous and has authority to lodge a case with the first - instance ORG . An aggrieved party may request the Commissioner to start the proceedings , but the Commissioner may reject such a request . If so , the aggrieved party may invite ORG to conduct a preliminary investigation . However , the power to file a formal case with ORG is vested solely in the Commissioner .

DATE LAW provides that ORG must base its decision solely on the indictment and the evidence submitted by the Commissioner and the accused doctor . If the accused doctor or the Commissioner is dissatisfied with the verdict , he or she may appeal to the second - instance ORG .

On DATE the Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG no . DATE CARDINAL Act ” ) became operational . LAW provides for CARDINAL remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline to be set ( rokovni predlog ) DATE and , ultimately , for a claim for just satisfaction in respect of damage sustained because of undue delay ( zahteva za pravično zadoščenje ) .

The above remedies are available , inter alia , to parties to civil proceedings and aggrieved parties in criminal proceedings .

ORG . The acceleratory remedies can be applied for during first- or second - instance proceedings . In addition , LAW also provides the possibility of redress through a compensatory remedy , namely by bringing a claim for just satisfaction . By virtue of sections CARDINAL , DATE and DATE of the CARDINAL Act a party wishing to lodge a claim for just satisfaction must satisfy CARDINAL cumulative conditions . Firstly , during the first- and/or second - instance proceedings the applicant must have used the supervisory - appeal procedure or lodged a motion for a deadline . Secondly , the proceedings must have been finally resolved ( pravnomočno končan ) . The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies ; this is normally the first- , or if an appeal has been lodged , the second - instance court 's decision . Moreover , the amount which can be awarded in respect of non - pecuniary damage sustained as a result of the excessive length of the proceedings in each finally resolved case can not exceed MONEY ( ORG ) ( for a more detailed presentation of the relevant provisions of LAW , see GPE v. GPE , ( dec ) no . CARDINAL , DATE ) .

On DATE , when depositing the instrument of ratification of the Convention with the Secretary General of ORG , ORG of GPE made the following declaration :

“ GPE declares that it recognizes for an indefinite period of time , in accordance with LAW No . CARDINAL and LAW No . CARDINAL , the competence of ORG to deal with petitions addressed to the Secretary General of ORG by any person , non - governmental organisation or group of individuals claiming to be the victim of [ a ] violation of the rights set forth in the LAW and its Protocols , where the facts of the alleged violation of these rights occur after the LAW and its Protocols have come into force in respect of GPE .

GPE declares that it recognizes for an indefinite period of time , in accordance with LAW , LAW No . CARDINAL and LAW No . CARDINAL , as compulsory ipso facto and without special agreement , on condition of reciprocity , the jurisdiction of ORG in all matters concerning the interpretation and application of the LAW and its Protocols and relating to facts occurring after the LAW and its Protocols have come into force in respect of GPE . ”

LAW on the Law of Treaties ( LAW ) entered into force on DATE . LAW , which contains the principle of the non - retroactivity of treaties , provides :

“ Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before DATE of the entry into force of the treaty with respect to that party . ”

DATE , which is headed “ International obligation in force for a ORG ” , provides :

“ An act of a ORG does not constitute a breach of an international obligation unless the ORG is bound by the obligation in question at the time the act occurs . ”

Furthermore , Article CARDINAL , which is headed “ Extension in time of the breach of an international obligation ” , reads as follows :

“ CARDINAL . The breach of an international obligation by an act of a ORG not having a continuing character occurs at the moment when the act is performed , even if its effects continue .

NORP The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation .

The breach of an international obligation requiring a ORG to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation . ”

The approach adopted by ORG ( ICJ ) in cases raising an issue as to ratione temporis jurisdiction has focused on the source or real cause of the dispute ( see also the case - law cited in GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL ) . In the Case concerning Right of Passage over NORP Territory ( Merits ) ( Judgment of DATE : I.C.J. Reports QUANTITY . CARDINAL - CARDINAL ) , the ICJ , relying on the jurisprudence of ORG ( ORG ) , found it had temporal jurisdiction to deal with a dispute concerning GPE 's denial to GPE of passage between its territory and its CARDINAL enclaves in LOC in DATE . GPE argued , inter alia , that the dispute was inadmissible ratione temporis as the NORP claim to a right of passage predated the court 's jurisdiction , which had begun on CARDINAL DATE . The ICJ , however , found that :

“ ... it appeared ... , that the dispute submitted to the ORG has a threefold subject : ( CARDINAL ) The disputed existence of a right of passage in favour of GPE ; ( CARDINAL ) The alleged failure of GPE in DATE to comply with its obligations concerning that right of passage ; ( CARDINAL ) The redress of the illegal situation flowing from that failure . The dispute before the ORG , having this CARDINAL - fold subject , could not arise until all its constituent elements had come into existence . Among these are the obstacles which GPE is alleged to have placed in the way of exercise of passage by GPE in DATE . The dispute therefore as submitted to the ORG could not have originated until DATE . ”

The ICJ therefore found that there was not , so far as the date of the birth of the dispute was concerned , any bar to its jurisdiction . Referring to the terms of LAW of the court 's jurisdiction , the ICJ noted that the LAW did not proceed on the principle of excluding from the acceptance any given dispute , but proceeded in a positive manner on the basis of indicating the disputes which were included within that acceptance . The ICJ found :

“ .... By its terms , the jurisdiction of the ORG is accepted ' over all disputes arising after DATE , with regard to situations or facts subsequent to DATE . In accordance with the terms of the LAW , the ORG must hold that it has jurisdiction if it finds that the dispute submitted to it is a dispute with regard to a situation subsequent to CARDINAL DATE or is one with regard to facts subsequent to that date .

The facts or situations to which regard must be had in this connection are those with regard to which the dispute has arisen or , in other words , as was said by ORG in the case concerning ORG of GPE and GPE , only ' those which must be considered as being the source of the dispute ' , those which are its ' real cause ' . ... ORG thus drew a distinction between the situations or facts which constitute the source of the rights claimed by CARDINAL of the Parties and the situations or facts which are the source of the dispute . Only the latter are to be taken into account for the purpose of applying the LAW accepting the jurisdiction of the ORG . ”

The ICJ went on to find that :

“ ... it was only in DATE that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to GPE 's failure to comply with obligations which , according to GPE , were binding upon it in this connection . It was from all of this that the dispute referred to the ORG arose ; it is with regard to all of this that the dispute exists . This whole , whatever may have been the earlier origin of CARDINAL of its parts , came into existence only after CARDINAL DATE . The time - condition to which acceptance of the jurisdiction of the ORG was made subject by LAW is therefore complied with . ”

In the case of GPE v. GPE ( Communication No . DATE , which was declared inadmissible on DATE ) , the applicant 's CARDINAL children had been abducted by NORP security forces in DATE and their whereabouts had been unknown ever since . On DATE the Covenant and the Optional Protocol entered into force in respect of GPE . In DATE and DATE the NORP legislature enacted legislation preventing new investigations into the so - called “ dirty - war ” and providing an amnesty for members of the security forces for related crimes . The applicant claimed that the enactment of this legislation constituted violations by GPE of its obligations under LAW , paragraphs CARDINAL and CARDINAL , of the LAW . Taking into account that in order for the right to a remedy to arise , a violation of a substantive right must be established , the ORG observed that :

“ CARDINAL.CARDINAL . ... the events which could have constituted violations of several articles of the LAW and in respect of which remedies could have been invoked , occurred prior to the entry into force of the LAW and of LAW for GPE . Therefore , the matter can not be considered by ORG , as this aspect of the communication is inadmissible ratione temporis . ”

In the more recent case of PERSON . v. GPE ( Communication No . DATE , DATE ) , the ORG found it did have jurisdiction ratione temporis in relation to the investigation into the disappearance of PERSON , who had been abducted and murdered in DATE , that is to say well before DATE , when the ORG became a party to the Optional Protocol . In DATE , within the DATE limitation period , his wife lodged a complaint with a court against a person or persons unknown for the assassination of PERSON and the falsification of a death certificate . She claimed that no inquiry had been conducted . The ORG , which ultimately found violations of DATE , on account of the suffering of PERSON family , and LAW , on account of the breach of the guarantee of equality in the proceedings , considered that :

“ CARDINAL ... a distinction should be drawn between the complaint relating to Mr PERSON and the complaint concerning PERSON and her children . The ORG considered that the death of PERSON , which may have involved violations of several articles of the LAW , occurred on DATE , hence before the LAW and LAW entered into force for GPE . This part of the communication was therefore inadmissible ratione temporis . PERSON death certificate of CARDINAL DATE , stating that he died of natural causes - contrary to the facts , which are public knowledge and confirmed by ORG ( paras . CARDINAL and CARDINAL ) - and the authorities ' failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on PERSON and her children . ”

The ORG went on to find that :

“ CARDINAL ... it could not consider violations which occurred before the entry into force of LAW for the State party unless those violations continued after the LAW 's entry into force . A continuing violation is to be interpreted as an affirmation , after the entry into force of LAW , by act or by clear implication , of previous violations by ORG . ORG took note of the authors ' arguments concerning , first , the failure of the authorities to conduct an inquiry into the death of PERSON ( which was public knowledge ) and to prosecute those responsible - allegations which are not in fact challenged by ORG . These constitute violations of their rights and of the obligations of GPE under the LAW . Secondly , it was clear that in order to remedy this situation , the authors initiated judicial proceedings on DATE , i.e. within the limits of the CARDINAL-year statute of limitations , and these proceedings continued after the LAW and LAW entered into force for GPE . Contrary to the arguments of ORG , the ORG considered that the proceedings were prolonged , not because of a procedural error on the part of the authors , but because of a conflict of competence between authorities . Consequently , insofar as , according to the information provided by the authors , the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the LAW and LAW because the proceedings have not concluded to date , ORG considered that this part of the communication was admissible ratione temporis . ”

In PERSON v. GPE ( judgment of DATE Preliminary Objections ) , which concerned the disappearance of DATE before GPE recognised the IACHR 's jurisdiction , the PERSON decided that :

“ CARDINAL . ... the facts that the ORG alleges in relation to the alleged violation of ORG CARDINAL ( Right to Life ) , CARDINAL ( Right to Personal Integrity ) and CARDINAL ( Right to Personal Liberty ) of the LAW , in relation to LAW ( Obligation to Respect Rights ) thereof , to the detriment of LOC and PERSON , are excluded owing to the limitation to the recognition of the ORG 's jurisdiction established by GPE , because they relate to violations which commenced in DATE , with the alleged ' capture ' or ' taking into custody ' of the girls by soldiers of ORG and their subsequent disappearance , DATE before GPE recognized the contentious jurisdiction of ORG .

In view of these considerations and pursuant to the provisions of LAW on the Law of Treaties , the ORG admits the preliminary objection ratione temporis ... ”

As regards alleged deficiencies in the domestic criminal investigations into the disappearances in this case , the PERSON found that the allegations concerned judicial proceedings and thus independent facts which had taken place after the recognition of the PERSON 's jurisdiction . It therefore concluded that it had temporal jurisdiction to deal with these allegations as they constituted specific and autonomous violations concerning the denial of justice that had occurred after the recognition of the IACHR 's jurisdiction . It noted , more specifically , that :

“ CARDINAL . ... the Commission has submitted to the ORG 's consideration several facts related to an alleged violation of ORG CARDINAL ( Right to a Fair Trial ) and CARDINAL ( ORG ) of the LAW , in relation to LAW ( Obligation to Respect Rights ) thereof , which allegedly took place after recognition of the ORG 's jurisdiction and which occurred in the context of the domestic criminal investigations to determine what happened to LOC and PERSON ...

The ORG considers that all the facts that occurred following GPE recognition of the ORG 's jurisdiction and which refer to the alleged violations of ORG CARDINAL and CARDINAL of the LAW , in relation to LAW thereof , are not excluded by the limitation established by the ORG , because they refer to judicial proceedings that constitute independent facts . They commenced after GPE had recognized the ORG 's jurisdiction and can constitute specific and autonomous violations concerning denial of justice occurring after the recognition of the ORG 's jurisdiction .

Therefore , the ORG decides to reject the preliminary objection ratione temporis in relation to the alleged violations of ORG CARDINAL and CARDINAL of the LAW , in relation to LAW thereof , and to any other violation whose facts or commencement was subsequent to DATE the date on which the ORG deposited with ORG the instrument recognizing the ORG 's jurisdiction . ”

In GPE ( judgment of DATE ) GPE made a preliminary objection arguing that the PERSON lacked jurisdiction ratione temporis , since the acts complained of by the ORG and the victims ( alleged massacre in DATE by army forces of CARDINAL villagers and the destruction of village buildings , causing the subsequent displacement of the surviving villagers ) had occurred DATE prior to GPE 's becoming a ORG to ORG and its recognition of the PERSON 's jurisdiction . The PERSON , referring to LAW , noted that :

“ DATE . ... [ a]ccording to this principle of non - retroactivity , in the case of a continuing or permanent violation , which begins before the acceptance of the ORG 's jurisdiction and persists even after that acceptance , the ORG is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction , as well as their respective effects . ”

Noting that the obligation to investigate arose from the allegations of a massacre and relying on the continuing nature of the alleged failure to investigate the past events , the ORG found in this case the following :

“ CARDINAL . ... [ T]he Court distinguishes between alleged violations of ORG that are of a continuing nature , and those that occurred after DATE . With respect to the former , the ORG observes that the perpetration of a massacre in DATE has been alleged ; in consequence , an obligation arose for the ORG to investigate , prosecute and punish the responsible parties . In that regard , GPE initiated an investigation in DATE . Yet , the ORG 's obligation to investigate can be assessed by the ORG starting from the date when GPE recognized the ORG 's competence . Thus , an analysis of the ORG 's actions and omissions with respect to that investigation , in light of ORG CARDINAL , CARDINAL and QUANTITY of the LAW , falls within the jurisdiction of this ORG . ...

Consequently , the instant preliminary objection is dismissed on the grounds set out above .

The ORG has held above that it lacks jurisdiction over the events of DATE in GPE ; nevertheless , the ORG does have competence to examine the ORG 's fulfilment of its obligation to investigate those occurrences ( supra paragraph CARDINAL ) . The following assessment will establish whether that obligation was carried out pursuant to the standards set forth in ORG CARDINAL and CARDINAL of LAW .

In consideration of the many facets analyzed above , the ORG holds that GPE 's seriously deficient investigation into the DATE attack upon ORG , its violent obstruction of justice , and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in GPE .

As a result , the ORG declares that the ORG violated ORG CARDINAL(CARDINAL ) and CARDINAL of LAW , in relation to LAW that treaty , to the detriment of the ORG members . ”


The applicants were born in DATE , DATE , DATE , DATE and DATE respectively and live in GPE and GPE .

In DATE ORG ( PERSON ORG ) expropriated plots of land belonging to the applicants . A committee of experts assessed the value of the plots and the relevant amount was paid to the applicants .

Following the applicants ' request for increased compensation , on CARDINAL DATE and DATE ORG Instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court 's decision in respect of each of the applicants .

On DATE , DATE , DATE , and DATE ORG upheld ORG of First Instance 's judgments in respect of PERSON , PERSON , PERSON and PERSON , ORG , PERSON and PERSON , respectively .

By decisions of DATE , DATE , DATE , DATE and DATE , ORG rejected the applicants ' requests for the rectification of its decisions .

On DATE , CARDINAL DATE and DATE ORG paid the amounts due to PERSON and PERSON , ORG , PERSON , PERSON , PERSON and PERSON respectively . Details are indicated in the table below :

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

In DATE the applicant was convicted of the “ dissemination of false information ” , punishable on the basis of LAW paragraph CARDINAL of the socalled “ small criminal code ” ( mały kodeks karny ) , a decree adopted on DATE , and was sentenced to CARDINAL years’ imprisonment . The applicant had prepared and distributed leaflets in which he stated that GPE was dominated by GPE and that this state of affairs was unacceptable .

He subsequently served DATE of his sentence .

On DATE the applicant lodged an application under section CARDINAL paragraph CARDINAL of the Law of DATE on the annulment of convictions of persons persecuted for activities aimed at achieving independence for GPE ( “ the DATE LAW ) with ORG ( Sąd Wojewódzki ) , seeking to have his conviction declared null and void .

On DATE ORG refused to grant his request , having regard to the fact that the CARDINAL Act only provided a legal basis for quashing judgments given prior to DATE , when the worst period of political repression ended , whereas the judgment in the applicant ’s case had been given in DATE .

In DATE the ORG brought , on the applicant ’s behalf , a cassation appeal against the judgment given in DATE before ORG . The ORG argued that the judgment was in breach of the substantive provision forming the basis upon which the applicant had been convicted and sentenced . It was obvious that his conduct , consisting of disseminating leaflets criticising GPE domination of GPE by placing them on walls in different places in his town , had not fulfilled the requirements of criminal conduct penalised by LAW paragraph CARDINAL of the “ small criminal code ” .

It was further argued that the acts committed by the accused had been motivated by his profound hostility towards the communist system and the communist authorities and should have been seen as acts of political opposition . They had been very irritating to the authorities , but this had not rendered them criminal . The courts had failed to establish that the leaflets had amounted to incitement to crime or violence , or that they had contained any praise of criminal acts . Furthermore , the courts had failed to indicate any concrete interests of the NORP ORG which could have been endangered by the leaflets . Moreover , it was unreasonable to consider that the view expressed about GPE ’s domination by GPE had been untrue , as it had been obvious at that time that this had indeed been the case . Hence , it was impossible to find that disseminating such a view amounted to “ disseminating untrue information ” . By a judgment of CARDINAL DATE ORG allowed the ORG ’s appeal , essentially sharing his views . It acquitted the applicant of the original offence , having found that he had not disseminated any “ false information ” but rather his legitimate views about the political system in place in DATE , and also held that he had not incited to violence or any unlawful acts . Consequently , it held that the applicant had not committed the criminal offence of which he had been convicted .

Subsequently , the applicant instituted proceedings for compensation for detention which had lacked a legal basis , on the basis of LAW of LAW Code of Criminal Procedure .

On DATE ORG awarded him compensation of MONEY ( ORG ) . The amount awarded was comprised of ORG CARDINAL for nonpecuniary damage ( zadośćuczynienie ) caused by suffering and loss of life prospects occasioned by his deprivation of liberty , and ORG CARDINAL for pecuniary damage ( odszkodowanie ) . The court calculated the latter by taking the applicant ’s salary at the time of his arrest , multiplying it for the entire period of his deprivation of liberty and subtracting the average living costs which had been borne during that period by the ORG .

The applicant appealed , challenging the method of calculation of the pecuniary damages and the amount of non - pecuniary damages . As to the former , he submitted that the method by which it had been calculated had defied equity and justice . The court had calculated it , essentially , by assessing the salary which the applicant could have been paid throughout the time of his imprisonment and by subsequently subtracting from it normal living costs during that time . The court had observed that the applicant had not been obliged to pay his living costs throughout this period because the ORG had borne them . This method , in the applicant ’s view , had entirely overlooked the essential aspects of compensation , namely indemnifying a wronged person and making good pecuniary damage inflicted by the manifestly unjustified and politically - motivated imprisonment imposed by the communist regime . The practice adopted by the courts of reducing awards of pecuniary damage due to victims of past political oppression reduced to nought the possibility for people who had been persecuted in the past for their political activities or ideas to obtain just satisfaction for their suffering at the hands of an oppressive political system .

On DATE ORG dismissed his appeal , finding that the method of calculation of pecuniary damages had been consistent with judicial practice as it stood at that time .

On DATE the applicant submitted a cassation appeal against the above - mentioned judgment , essentially reiterating the arguments which he had submitted to the appellate court .

On DATE ORG dismissed his appeal as manifestly illfounded , using a short formula normally used in such cases .

The PERSON of DATE on annulment of convictions of persons persecuted for activities aimed at achieving independence for GPE ( Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu PERSON – “ the DATE LAW ) sets out rules concerning the conditions under which certain politically - motivated convictions rendered from DATE to CARDINAL DATE can be declared null and void , and also provides for the ORG ’s civil liability for such convictions . LAW paragraph CARDINAL of the DATE LAW provides , insofar as relevant :

“ Convictions or other decisions rendered by the NORP judicial , prosecuting or extra - judicial authorities during the period ... lasting from DATE to DATE shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him or her with the aim of achieving independence for GPE , or if the decision in question was taken on the grounds that he had engaged in activity . The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs . ”

Under LAW , a regional court or , in cases concerning military offences , a regional military court , is competent to deal with requests lodged under LAW CARDINAL of the CARDINAL Act . Section QUANTITY states , insofar as relevant :

A party entitled to file an application under LAW paragraph CARDINAL shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void .

According to section CARDINAL paragraph CARDINAL in fine of this PERSON , a decision declaring the original conviction null and void shall be tantamount to a verdict of acquittal . If such a conviction is declared null and void , a victim of repression is entitled , under section CARDINAL paragraph CARDINAL of this PERSON , to compensation from ORG for his wrongful conviction .

LAW of LAW , entitled “ Compensation for unjustified conviction , pre - trial detention or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty . LAW provides , in so far as relevant :

“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him .

The entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly unjustified arrest or pre - trial detention . ”

“ CARDINAL . This article provides that compensation shall be paid to a victim of a miscarriage of justice , on certain conditions .

First , the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction . According to the definition contained in the explanatory report of ORG on the International Validity of Criminal Judgments , a decision is final “ if , according to the traditional expression , it has acquired the force of res iudicata . This is the case when it is irrevocable , that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time - limit to expire without availing themselves of them ” . It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again . Likewise , this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or , on appeal , by a higher tribunal . If , however , in CARDINAL of the States in which such a possibility is provided for , the person has been granted leave to appeal after the normal time of appealing has expired , and his conviction is then reversed on appeal , then subject to the other conditions of the article , in particular the conditions described in paragraph CARDINAL below , the article may apply .

Secondly , the article applies only where the person ’s conviction has been reversed or he has been pardoned , in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is , some serious failure in the judicial process involving grave prejudice to the convicted person . Therefore , there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground . Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice . This is a matter for the domestic law or practice of the ORG concerned . The words “ or he has been pardoned ” have been included because under some systems of law pardon , rather than legal proceedings leading to the reversal of a conviction , may in certain cases be the appropriate remedy after there has been a final decision .

Finally , there is no right to compensation under this provision if it can be shown that the non - disclosure of the unknown fact in time was wholly or partly attributable to the person convicted .

In all cases in which these preconditions are satisfied , compensation is payable “ according to the law or the practice of the ORG concerned ” . This does not mean that no compensation is payable if the law or practice makes no provision for such compensation . It means that the law or practice of the ORG should provide for the payment of compensation in all cases to which the article applies . The intention is that GPE would be obliged to compensate persons only in clear cases of miscarriage of justice , in the sense that there would be acknowledgement that the person concerned was clearly innocent . The article is not intended to give a right of compensation where all the preconditions are not satisfied , for example , where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge . ”


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are natives of , or descendants of natives of LOC , sometimes referred to as “ Ilois ” or “ NORP ” . They are resident largely in GPE , the GPE and GPE . Letters of authority have been received from CARDINAL applicants and are contained in the file . They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

The Chagos Islands are in the middle of LOC , comprising CARDINAL main island groups ( LOC the largest with a land area of QUANTITY , GPE of about QUANTITY km² and ORG of TIME ) and consisting of CARDINAL islands in total . Since DATE they have been part of a colony of GPE . Until DATE they were administered as part of ORG , which is QUANTITY to the south - south - west .

According to materials in the file , the first visitors to the islands were NORP , NORP and NORP in DATE . There were at that time no human inhabitants . The first settlers , probably LANGUAGE , began coconut ( copra ) plantations , which were to be the basis of the islands’ economy for the future . The islands passed to NORP rule from DATE . At the beginning of DATE there was a floating population of CARDINAL families of NORP , NORP and NORP origin , although most regarded themselves as permanent residents . The copra production company provided living quarters but the ORG people as they were known generally preferred to build their own thatched cottages . There was no electricity , sanitation or other infrastructure . The men and women who worked on the plantations received a monetary wage but the chief payment was barter . Copra workers also fished and most families had small kitchen gardens and reared chickens and ducks . During DATE which followed there was movement of workers between the islands and GPE and the GPE under contract to the plantation company , while there were other inhabitants who had been born on the island and whose families went back several generations . By DATE the islands’ population was in decline , due to low wages , monotonous work , the lack of facilities and the great distance from GPE and the GPE , while the plantations were suffering from a lack of investment . In DATE , when ORG acquired the plantations , the settlement population was a very small community of CARDINAL , settled on the CARDINAL main islands . No one had lived on the outer islands for DATE .

NORP In DATE discussions started between ORG and GPE over the establishment of NORP defence facilities in the region . It was envisaged from the beginning that any inhabitants would be transferred or resettled .

On DATE , the NORP LOC ( BIOT ) Order in Council ( SI CARDINAL/CARDINAL ) established a new colony , which included LOC and other islands formerly part of ORG and of the GPE . The order created the office of the Commissioner of ORG and bestowed on him the power to “ make laws for the peace , order and good government of the Territory ” . Those inhabitants of ORG who had been citizens of GPE by virtue of their birth or connection with the islands when they were part of GPE retained their citizenship .

On DATE , GPE and ORG agreed that the latter should have use of the islands of ORG for defence purposes for an indefinite period with provision for a review in DATE . ORG acquired the land and interests held by the plantation company that owned most of the property on the islands . Internal documents indicated that it was considered expedient to treat the islands as having no " permanent population " with a view to avoiding difficulties with ORG as regards , inter alia , obligations under LAW to protect the population and foster independence . The company continued to run the plantations under a lease until GPE needed vacant possession . After obtaining congressional approval , ORG gave notice that LOC would be required in DATE .

The evacuation of the islands was effected DATE . Some islanders were prevented from returning after visits elsewhere , others were transferred either to GPE or to the GPE . For a while some islanders were given alternative accommodation on outlying islands . In DATE , the GPE construction teams arrived on LOC . Houses were demolished . No force was used but the islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere , they would be left without supplies .

In the various bodies of ORG where the matter was discussed , ORG claimed that the population had consisted of migrant workers , that their position had been fully protected and that they had been consulted in the process .

On DATE , the ORG Commissioner enacted the Immigration Ordinance DATE , No . CARDINAL of DATE which made it unlawful , and a criminal offence , for anyone to enter or remain in the territory without a permit .

The islanders suffered miserable conditions on being uprooted , having lost their homes and livelihoods . In DATE , GPE paid MONEY ( GBP ) to the newly independent Government of GPE to assist with the costs of resettlement . This sum was distributed , with interest , by the GPE authorities in DATE after discussions on how best to use the money . The islanders rejected a proposed resettlement plan in favour of a cash distribution to CARDINAL families . No compensation was paid to the evacuees on the GPE .

NORP In DATE , PERSON , a NORP , brought a case in ORG in GPE concerning the expulsions ( “ the GPE case ” ) . In DATE , the ORG made an open offer to settle the claims of all the islanders . In DATE , a settlement was reached in which the ORG agreed to pay ORG CARDINAL to ORG , which in turn agreed to put in land to the value of ORG CARDINAL . A trust fund ( “ the Fund ” ) was set up by ORG and DATE payment was made to CARDINAL NORP in GPE of GBP CARDINAL each . ORG provided some low cost housing . Nothing was paid to the NORP on the GPE , who numbered CARDINAL and who apparently played no part in the negotiations . The applicants later claimed that they were unaware that the settlement involved any renunciation of their rights to return to their homeland . On the receipt of the last tranche of money , all but CARDINAL of the identified islanders or the descendants who refused , had signed or thumbprinted renunciation forms in LANGUAGE .

In DATE , PERSON , a Chagos Islander , brought an action in GPE , challenging the validity of the DATE Immigration Ordinance which had the effect of excluding the islanders from ORG ( “ FAC case ” ) .

On DATE , ORG in its judgment noted inter alia that none of the islanders owned any land or held any right to permanent use of the land , which was held by the ORG . It went on however to find that the LAW was ultra vires the DATE Order , since the power to make legislation for " peace , order and good government " did not permit legislation to exclude the population from the territory . It issued a declaration that the GPE was invalid . There was no appeal .

On DATE , the Foreign Secretary announced that they were examining the feasibility of resettlement of the islanders and that they intended to issue a new immigration ordinance which would allow them to return to the outer islands while observing their treaty obligations with GPE .

On DATE , the Commissioner of ORG revoked the DATE Immigration Ordinance and made ORG , which largely repeated the provisions of the previous ordinance but contained a new section CARDINAL(CARDINAL ) which provided that restrictions on entry or residence should ( with the exception of LOC ) not apply to anyone who was GPE by virtue of connection with ORG . Entry to PERSON remained subject to permit .

Despite the lifting of the immigration bar , none of the islanders went to live in the islands . A few made visits to outer islands to tend family graves or see their former homes , such visits being funded by ORG .

In DATE , islanders ( a total of CARDINAL claimants ) commenced group litigation against the Attorney - General , to secure compensation for past and continuing wrongs and to seek a declaration of their right to return to PERSON ( “ the NORP case ” ) .

On DATE , Mr Justice PERSON struck out the action on the grounds that the claim to more compensation after the settlement in the GPE case was an abuse of process , that the facts did not give rise to any arguable causes of action in private law and in any event all the claims were statute - barred . He rejected arguments that LAW did not apply as the applicants had been subject to a disability ( for instance , impoverishment or being outside the jurisdiction ) and considered that there had been no deliberate concealment of facts relevant to the individual causes of action which could affect the calculation of the time - limit . He also accepted the defendant ’s arguments that the islanders who had accepted money from the ORG and signed a form renouncing further claims would be in abuse if they continued the proceedings . He held that it was generally known in GPE at the time that LAW was final and did not consider that they had reasonable prospects of showing that the Government had acted in a morally culpable manner leading to an oppressive transaction from which the claimants should be relieved . The islanders had had at the time legal representation or access to legal representation . He also found that the GPE NORP knew the same relevant facts at the same time as their counterparts in GPE . The islanders had owned no immovable property nor owned their houses . Even if any property rights had existed , he noted that these would have been extinguished DATE after events by operation of section CARDINAL of LAW .

On DATE , ORG refused permission to appeal . While it was accepted that there were arguments of disability and unconscionability , nonetheless from DATE onwards those circumstances no longer applied . Nor had the applicants succeeded in showing any deliberate concealment since that time . It rejected the arguments of the islanders that the renunciation forms could not be relied on by the Government as they were unable to compromise or renounce their fundamental rights . It concluded :

" This judgment brings to an end the quest of the displaced inhabitants of LOC and their descendants for legal redress against the state directly responsible for expelling them from their homeland . They have not gone without compensation , but what they have received has done little to repair the wrecking of families and communities , to restore their self - respect or to make amends for the underhand official conduct now publicly revealed by the documentary record . Their claim in this action has been not only for damages but for declarations seeking their right to return . The causes of action , however , are geared to the recovery of damages and no separate claims to declaratory relief have been developed before us . It may not be too late to make return possible , but such an outcome is a function of economic resources and political will , not adjudication . "

Newspaper articles appeared in GPE suggesting that the NORP and their supporters were planning some form of direct action by landings on the island . As later described in domestic court judgments , the participants had varying aims ; for CARDINAL group known as ORG it was part of an anti - NORP campaign to close the base at LOC . Others did not want the base closed as it might offer employment but since permanent resettlement on the islands was not practicable without substantial investment , the landings , even if they led to temporary camps , would largely be gestures in furtherance of respective political aims , designed to attract publicity and embarrass ORG and GPE . Contacts with GPE authorities made it clear that their view was that any attempt to resettle any of the islands would severely compromise PERSON security , and have a deleterious impact on military operations . To them LOC was a vital and indispensable platform for global GPE military operations , as demonstrated by its important role in Operations Enduring Freedom and NORP Freedom as well as its continuing role in the Global War on Terrorism ; in particular it had unique and exceptional security from armed attack , intelligence collection , surveillance and monitoring and electronic jamming .

On DATE , the BIOT ( LAW Order DATE was issued . It declared that no person had the right of abode in the territory or the right to enter it except as authorised . The same day there passed into law the BIOT ( Immigration ) Order CARDINAL , repealing the CARDINAL Ordinance . This prohibited anyone from entering the territory without a permit from the immigration officer ( members of the armed forces , public officers and contractors working on the NORP base were exempt or deemed to hold a permit ) .

On DATE , the Government issued a statement announcing the abandonment of the feasibility study into resettlement . It stated that the report by independent experts had concluded that :

" whilst it may be feasible to resettle the islands in the short - term , the costs of maintaining long - term inhabitation are likely to be prohibitive . Even in the short - term , natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population ... Human interference within the atolls , however well managed , is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming . Thus resettlement is likely to become less feasible over time . "

With reference to climate change the report was quoted as stating that " the main issue facing a resettled population on the low - lying islands will be flooding events , which are likely to increase in periodicity and intensity and will not only threaten infrastructure , but also the freshwater aquifers and agricultural production . Severe events may even threaten life . " It also highlighted the implications on such low - lying islands of the predicted increase in global sea levels .

The statement concluded that anything other than short - term resettlement on a purely subsistence basis would be highly precarious and involve expensive underwriting by the Government for an open - ended period , probably permanently . Accordingly , the Government considered that there was no further purpose in pursuing the study and it would be impossible to promote or even permit resettlement to take place . It was for this reason that the Orders in Council were issued to restore full immigration control over all the islands in ORG , making it clear that no person had the right of abode in the territory or unrestricted access to it .

Much of the area had meanwhile apparently been declared an Environmental Zone , with ORG and Strict Nature Reserves .

One of the applicants , PERSON , instituted judicial review proceedings seeking to challenge the DATE Orders barring their return to the islands as unlawful ( the “ LAW case ” ) .

In its judgment of CARDINAL DATE , ORG upheld his claims , finding that the provisions of the Orders were invalid as not being in the interests of the NORP . The Secretary of ORG for Foreign and Commonwealth Affairs appealed , claiming that legislation precluded any attack on the validity of colonial orders in council and that the orders as a sovereign act of the ORG were only challengeable on ground of incompatibility with imperial legislation .

On DATE , ORG dismissed the appeal , finding that the prerogative power of colonial governance enjoyed no generic immunity from judicial review and that the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well - being could not have the character of a valid act of governance . Lord Justice PERSON considered that while resettlement would be difficult if not impossible without capital expenditure , it had not been suggested on either side that GPE was under any obligation to fund it . It was the bolting of the door to the ORG home , not the failure to provide transport there or to refurbish it which was in issue . Indeed the ORG had rights as a landowner which were capable of answering any attempt to resettle there .

NORP The Secretary of ORG obtained leave to appeal to ORG . In its judgment of DATE , ORG upheld the appeal by CARDINAL votes to CARDINAL . The majority considered that there had been no legitimate expectation that the islanders would be allowed to resettle on the islands . LAW had no application to ORG , as the declaration made in respect of GPE lapsed when it became independent . There was no basis for holding that the prerogative power of the ORG was limited to acts in the interests of the inhabitants and there was nothing irrational about the orders . Seen in the context of the present day , rather than DATE , any right of abode of the islanders was purely symbolic . None had gone to live on the islands in DATE when the DATE ordinance had been in force . The islanders’ way of life had been irreparably destroyed and the practicalities were such that they would be unable to exercise any right to live on the outer islands without financial support which the Government were not willing to provide . Any attempt to exercise the right of abode by setting up some camp on the islands would be a symbol or gesture aimed at putting pressure on the Government . Thus , when considering the rights in issue in the case , which had to be weighed against the defence and diplomatic interests of the state , it was essentially about the right to protest in a particular way and it was not unreasonable of the Government to seek to avoid an unauthorised settlement on the islands which could be used as a means of exerting pressure to compel it to fund a resettlement . Funding had been the subtext of the case .

Lord GPE , in the minority , considered that legal precedent negated the existence of a prerogative power to exile an indigenous population from its homeland . The orders were also irrational in the sense that there was no good reason for making them , the security arguments being weak and vague . The argument that the islanders were deprived of a right of little practical value provided no justification , since the right was of intangible value and the smaller its practical value the less reason to take it away . Additionally , in his view , the orders contradicted a clear representation by the Secretary of ORG in his statement of CARDINAL DATE , from which the Government could not resile without compelling reason , which had not been shown .