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

The following account of facts is based on the applicant ’s submissions made to the ORG and the NORP prosecution service .

On DATE the applicant got involved in a domestic dispute between his wife and stepdaughter . No violence was used during the dispute . Subsequently , the applicant ’s stepdaughter called the police . When the police officers arrived they woke up the applicant and informed him that he would be taken to a sobering - up centre ( izba wytrzeźwień ) . Although the applicant had drunk wine before the dispute started , he was sober when the police officers arrived . He therefore told the officers that he was not drunk and refused to follow them to the sobering - up centre . The police officers pushed the applicant on the floor and handcuffed him . The applicant and the police officers started to swear at each other .

The applicant was placed in a police car . He quarrelled with the officers and they continued to swear at each other . The police car stopped . The police officers kicked the applicant CARDINAL times in his abdomen . Subsequently , the police car was driven to PERSON where it was parked for a while near FAC ( Komenda Rejonowa Policji ) . The applicant stayed inside the car .

He was then being taken to the sobering - up centre in GPE . The applicant and the police officers continued to exchange insults . The applicant asked the police officers to take his handcuffs off because they were too tight and his hands were swollen but his request was ignored . His request to be let out to relieve himself was also ignored . When the car arrived at the sobering - up centre the police officers left it . The applicant urinated in his underwear . When the police officers came back and saw that he had wetted himself , they said “ they will see pissed scum . ”

Subsequently , the applicant was dragged by the police officers inside the building . While being pulled , he lost his shoes and trousers , which he had lowered before he had urinated . The police officers laughed at the applicant .

Once inside the premises of the Płock sobering - up centre , the applicant asked for a doctor but his request was ignored . The applicant was given a breathalyser test . During the test an employee of the centre started to insult him and the applicant replied in offensive language . CARDINAL of the police officers hit the applicant with a fist in the right part of the face . The blow made the applicant ’s teeth loose .

The applicant was then knocked down . He tried to stand up but was hit with an opened hand . The applicant fell down again . While he was lying on his back , an employee of the centre said “ we do not like roughnecks here ” and stepped on his testicles with a heavy boot .

Subsequently , the applicant was taken to a cell where the employees of the centre started to put a straightjacket on him . At this point , the police officers were not present on the scene . While a straightjacket was being put on the applicant , a struggle evolved . The applicant heard somebody saying : “ beat so that marks do not show ” . He was hit with a knee in his abdomen . He was also hit in his nose and started to bleed . The applicant was kicked in testicles and fainted .

When he regained consciousness he was in a straightjacket and was tied up with elastic bandages . The applicant ’s face was covered with a dirty cloth . The employees of the centre twisted and squashed his testicles . The applicant fainted for the second time during TIME . The employees then burned his scrotum .

During TIME the applicant was shouting “ give me a doctor ” but his requests were ignored . From time to time , somebody would shout in reply “ go to sleep you whore ” .

On DATE the applicant was released from the sobering - up centre . He visited a doctor in GPE but was refused admission because he did not have documents . The applicant was then seen by Dr Łudczak at the PERSON health centre ( ośrodek zdrowia ) . He described the applicant ’s injuries in his medical file . He also pointed to the applicant that he had burns on his scrotum and referred him to PERSON , the Chief Surgeon of ORG . When PERSON saw the applicant , he initially considered that the applicant should stay in the hospital because of the discharge of yellow fluid from his nose and the symptoms of brain concussion . However , he later changed his mind , examined the applicant and issued a forensic medical certificate . According to the applicant , the certificate does not indicate the following injuries : a bruise on his thigh and swollen testicles .

On DATE the applicant worked on a construction site . He was in pain but decided to report to work since it was DATE on a new job , which he had got with great difficulty .

On DATE the applicant got involved in a domestic dispute . He was drunk , behaved aggressively and threatened to kill his stepdaughter and mother - in - law . The stepdaughter called the police . Subsequently , both women left the house and waited for the police outdoors .

When the police arrived the applicant woke up . The attending officers informed him about the reasons for their intervention . The applicant began to behave aggressively . He used abusive language towards the police officers and threatened to kill his stepdaughter and mother - in - law in their presence . Both women asked the officers to take the applicant to a sobering - up centre .

The police officers ordered the applicant to follow them to the centre but he refused and started a fight . The officers pushed the applicant on the floor and handcuffed him . At that moment , the applicant suffered a skin abrasion on his forehead .

The applicant was resisting the officers while they were taking him to the police car . Once placed inside the car , the applicant kicked it .

Subsequently , the applicant was brought to ORG where the police officers collected GPE in order to escort him to the GPE sobering - up centre .

The police officers testified that they had not stopped the car on the way to the sobering - up centre and had not assaulted the applicant . Their testimony was confirmed by the documentation of the Płock sobering - up centre .

On the way to the centre the applicant behaved aggressively and kicked the car . When it arrived to the centre , the applicant refused to leave it . Therefore , the police officers had to drag the applicant inside the building .

The applicant continued his aggressive behaviour inside the building . He used abusive language and tried to fight with the employees of the centre . The medical staff of the centre tried to carry out a breathalyser test but the applicant was too intoxicated to provide a specimen of breath . As a result of the applicant ’s aggressive behaviour , he was forced to wear a straightjacket TIME The applicant was shouting for almost the whole night . He asked to unbind the straightjacket .

The applicant was released from the sobering - up centre on DATE at TIME

On DATE the applicant worked on a construction site .

On DATE the applicant was examined by a doctor , who made an entry in his medical file kept by the PERSON health centre and referred him to Dr PERSON . On the same day Dr PERSON issued a medical certificate .

The Detention Card ( karta pobytu ) no . DATE , which contains the record of the applicant ’s presence in the Płock sobering - up centre , provides the following description of his medical condition :

“ INITIAL MEDICAL OPINION

As a result of the initial medical examination I confirm that the client :

NORP is intoxicated and qualifies for a detention in the sobering - up centre ,

NORP requires a referral to a public medical facility /hospital , emergency service , other/ ,

does not require to be present in the sobering - up centre .

The examination with a device detecting intoxication ( breathalyser , alcohol test , blood test ) showed : Unable to blow a breathalyser . Lack of stability . Alcohol breath .

Signature of a doctor - paramedic on duty in the sobering - up centre ( illegible signature ) ”

None of the points CARDINAL to CARDINAL was marked on the card .

“ PRESENCE IN THE SOBERING - UP CENTRE

I. MEDICAL EXAMINATION

The client was subjected to medical examination at TIME .

Medical ( circumstantial ) background :

a ) circumstances , the amount of consumed alcohol , behaviour during medical examination : Does not reveal the circumstances of drinking and the amount of consumed alcohol , psychomotor agitation during examination . Stands up to beat the employees of the sobering - up centre .

Subject examination :

a ) behaviour : conscious , quarrelling , aggressive

b ) mood : agitated

c ) walk : unstable

d ) speech : slurring

e ) traces of vomit : not visible

f ) pulse : regular , little tense CARDINAL/minute

g ) heart : regular beat , clear sound

h ) pupil : normal , weakly reacting

i ) skin : proper perfusion

j ) condition of abdominal cavity : without changes

k ) injuries : slight skin abrasion on the right temple

l ) disease symptoms : does not disclose

m ) description of the condition of the examined person : high degree of intoxication .

II . OTHER APPLIED TREATMENTS AND MEDICATIONS

NORP dressings

NORP drugs ( injections )

NORP water bath

solitary confinement

strapping down

straightjacket from TIME because of psychomotor agitation

medical condition and behaviour

a ) psychiatric condition – psychomotor agitation

b ) physical condition – good physical condition

Signature of a doctor - paramedic ( Illegible signature )

RELEASE FROM THE SOBERING - UP CENTRE

I. MEDICAL EXAMINATION

After applying the aforesaid treatments and medications , as a result of medical examination ( give a degree of sobering - up , psychiatric and medical condition ) : satisfactory sobering - up . Good health condition .

I. conclude that the person mentioned hereinafter :

NORP can be released from the centre

NORP requires a referral to a public medical facility : no

Signature of a doctor - paramedic ( Illegible signature ) ”

According to the card the applicant was released from the soberingup centre on DATE at TIME

On DATE Dr PERSON , a surgeon , made the following entry in the applicant ’s medical file kept by the PERSON health centre :

“ The patient submits that he has been beaten DATE by police officers .

Referred to PERSON .

- face abrasion

- ( CARDINAL illegible words )

- burn of scrotum ( ? ) ”

On DATE Dr PERSON , general practitioner and specialist surgeon , issued a forensic medical certificate , which is worded as follows :

“ Medical examination of PERSON , DATE , identity card no . WL CARDINAL residing in PERSON .

On CARDINAL suffered the following injuries : a skin abrasion on the right temple measuring CARDINAL x QUANTITY , loose front teeth upper CARDINAL and lower CARDINAL , skin abrasions on the right side of groin , a first / second - degree burn on the scrotum measuring CARDINAL - CARDINAL mm . The aforesaid injuries qualify for LAW . ”

On DATE the applicant requested the prosecution service to initiate criminal proceedings against the police officers and the employees of the sobering - up centre who had ill - treated him on CARDINAL and DATE .

On DATE the applicant appeared before ORG PERSON As the applicant smelled with alcohol and declared that he had welded a tank , which used to be filled with alcohol , the prosecutor postponed the interview until DATE .

On DATE prosecutor PERSON interviewed the applicant . He advised the applicant about his rights and took from him a statement requesting the prosecution of the police officers and the employees of the soberingup centre . The applicant also made a statement in which he described the events of CARDINAL and DATE .

On DATE prosecutor PERSON decided to initiate an investigation of the allegations made by the applicant .

On DATE prosecutor PERSON took statements from the applicant ’s wife , mother - in - law and stepdaughter . Their testimony concerned the police intervention in the applicant ’s house . The witnesses confirmed that the responding police officers were calm and did not assault the applicant . They handcuffed him because he was aggressive and used abusive language .

On DATE the Director of the Płock sobering - up centre informed the prosecutor that the following staff had been on duty in the centre at the time of the applicant ’s detention : ( i ) Mr B. , depositary , ( ii ) Mr M. , carer and ( iii ) PERSON , paramedic . The Director also submitted a detention card containing the record of the applicant ’s presence in the centre .

On DATE the Deputy Police Chief of ORG informed the prosecutor that PERSON and Constable W. had responded to the applicant ’s house on DATE and had taken him to the sobering - up centre .

On DATE prosecutor PERSON interviewed Constable PERSON The witness made a CARDINAL - page statement in which he gave his account of the intervention in the applicant ’s house and his transfer to the soberingup centre . In particular , he stated that the applicant had been aggressive and had used abusive language . Therefore , he had been handcuffed and had suffered skin abrasion on his cheek or forehead . The applicant had remained aggressive in the police car where he had continued to use abusive language and had kicked the car . The applicant had not been assaulted by any of the responding police officers . After he had been turned over to the employees of the sobering - up centre , he had been bound in a straightjacket because of his aggressive behaviour .

On DATE prosecutor PERSON also interviewed the second responding police officer , PERSON made a page - long statement in which he confirmed the account of events given by Constable PERSON In addition , he confirmed that the applicant had urinated in the police car .

On DATE prosecutor PERSON interviewed PERSON The witness stated that he was an employee of the GPE sobering - up centre . He also said that he remembered the surname of PERSON but did not remember his presence in the centre . The prosecutor asked the witness the following question :

“ Do you remember that he was aggressive and had a straightjacket put on ? ”

The witness replied that there were many situations of that nature and that straightjackets and strapping down would be used in respect of aggressive individuals . However , he did not remember the applicant ’s presence and behaviour in the sobering - up centre .

Subsequently , the applicant ’s detention card was shown to the witness but he repeated that he did not remember the applicant ’s presence in the centre .

On DATE prosecutor PERSON also interviewed PERSON , a paramedic who was on duty in the GPE sobering - up centre at the time of the applicant ’s detention . She made the following statement :

“ I am on duty in the PERSON sobering - up centre TIME a week . During TIME DATE I received in the centre a patient from PERSON . The patient was aggressive and made threats against the employees of the centre . He was heavily intoxicated . There were CARDINAL attempts to use breathalyser . He was unable to blow . In view of his aggressive behaviour and for the sake of his safety a straightjacket was put on him . ”

At this point , the witness was shown a copy of the applicant ’s detention card . After consulting it , she continued :

“ According to the card PERSON wanted to beat the centre staff and on his body there were skin abrasions on the right temple – they had existed at the time of admission . I do not remember anything else . I would like to add that the patient had spent a long time in a straightjacket , which shows that for a very long time he had shown psychomotor agitation . A patient , who is in a straightjacket , is under strict control of a doctor on duty . After TIME straps were eased . They were repeatedly eased during the whole period of his presence . While the patient was in a straightjacket he was aggressive and insulted and cursed everybody . I do not remember his release from the centre . ”

On DATE prosecutor PERSON interviewed PERSON The witness made the following statement :

“ I was on duty in the sobering - up centre DATE . From what I remember PERSON was brought by the police officers from PERSON , he was taken from a domestic dispute . While he was being taken out of a police car , he quarrelled , i.e. resisted the police officers , did not want to get in . They had to make him get in by using force . We had to use force while we were undressing him . He was aggressive and therefore we had to bind him in a straightjacket . He was insulting us , pulling us , wanted to fight with us , waved his hands , was saying that he was sober . In the room , while he was lying in a straightjacket , he was shouting , insulting , threatening us that he would finish us and those who had brought him . Other patients were asking to calm him because he was yelling all the time . He was shouting without any break during TIME . I do not know for how long he was lying in a straightjacket but it was a long period . That is all I remember . ”

On DATE and DATE prosecutor PERSON and assistant prosecutor PERSON took statements from CARDINAL witnesses , who had been detained in the GPE sobering - up centre on CARDINAL and DATE . The first witnesses confirmed that he had heard somebody shouting during TIME . That person shouted “ hitlerites ” , “ murderers ” “ people , help me ” and was asking to unbind his straightjacket . Other individuals present in the centre shouted back to let them sleep and asked the staff to unbind the yelling individual ’s straightjacket .

The second witness testified that at DATE he was drunk and was taken to a police station . At the station , he saw a man who was calm . They were taken together to a sobering - up centre . However , he did not remember the man ’s behaviour on the way to the sobering - up centre and in the centre . The witness also stated that he did not know whether anybody had used violence against the man while he had been detained in the sobering - up centre .

On DATE prosecutor PERSON discontinued the investigation of the allegations made by the applicant and refused to prosecute the police officers and the employees of the GPE sobering - up centre involved in the applicant ’s arrest and detention on CARDINAL and DATE . In addition to the evidence taken from witnesses , he relied on the applicant ’s detention card and the medical certificate issued by Dr ORG . The prosecutor also took into account the applicant ’s medical file kept by the PERSON health centre , which contained the following entry : “ CARDINAL VIII CARDINAL . Dental caries . Swollen face . Referred to a dentist . ”

The reasoning of the prosecutor ’s decision gave firstly an overview of the evidence collected in the course of the investigation . It then stated the following conclusions :

“ The collected evidence leads to CARDINAL versions of events DATE ( CARDINAL ) a version of the complainant PERSON [ and ] ( CARDINAL ) a version described by the witnesses with respect to the behaviour of PERSON – members of his family , the police officers , the staff of the sobering - up centre .

The evidence taken from the members of the complainant ’s family shows that he was drunk and during the police domestic intervention ( intervention took place after the police officers had been called by the complainant ’s stepdaughter ) PERSON was an aggressive and attacking party and cursed and insulted the members of [ his ] family and the police officers . The account of events given by the members of the family was confirmed by the police officers .

The responding police officers used force against the complainant because of his aggressive behaviour . Using the so - called overpowering grips , they pushed him down and handcuffed him . As a result of the complainant ’s fall , he suffered face injuries on the right side in the form of skin abrasions .

The aforesaid injuries suffered by the complainant were described in the statements made by the police officers , they were recorded in the detention card of the sobering - up centre , an entry in the health centre medical file and the forensic medical opinion .

The police officers testified consistently that they had taken PERSON from [ his ] home to a police car and transported him to PERSON and then to GPE . In addition , they took from PERSON CARDINAL more person in order to transport it to the sobering - up centre . They denied that during transporting the complainant from his place of residence in PERSON , they stopped or beat him , they did not hit him CARDINAL times in the abdomen , he was held in the police car in a separate room . This denies entirety of the complainant ’s testimony .

In the same way , the evidence taken from the employees of the sobering - up centre confirmed by a person present in the centre rebuts the complainant ’s version of events .

The version submitted by the employees of the sobering - up centre is confirmed by the entries – notes in the sobering - up centre ’s detention card concerning the complainant .

As for the injuries on the complainant ’s body described in the forensic medical certificate it should be stated that the skin abrasions on the right side of the face resulted from the use of force by the police officers when they were overpowering PERSON in his home . Loose upper and lower teeth could result from caries and related swelling of the face already in DATE – note in the medical file of the health centre . However , it is not possible to establish in what circumstances the complainant ’s scrotum was burned . TIME elapsed between the release of the complainant from the sobering - up centre and the diagnosis of [ the burns ] by the doctor who issued the forensic medical certificate .

The use of physical force and handcuffs against PERSON constituted an activity resulting from the rights of the police to use the measures of direct coercion against the complainant under LAW CARDINAL point CARDINAL of LAW of CARDINAL.CARDINAL.CARDINAL .

In view of the above considerations , it should be stated that the police officers from ORG who intervened , did not exceed their powers and did not act against the private interest . Also the employees of the sobering - up centre did not exceed their powers and did not beat the complainant .

For those reasons , it should be stated that the behaviour of the police officers and the employees of the sobering - up centre did not constitute an offence under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

On the basis of the above considerations I have decided as in the operative part [ of the decision ] . ”

The applicant filed with ORG ( Prokurator Okręgowy ) an appeal against the decision of ORG . On DATE ORG advised the applicant that he had not seen any grounds for allowing his appeal and had therefore transmitted it together with the case file to ORG ( Sąd Rejonowy ) .

On DATE judge S. of ORG dismissed the applicant ’s appeal . The reasoning of the decision was worded as follows :

“ The appeal is unsubstantiated . In the course of the investigation no breach of law by the intervening police officers was found . The evidence taken from the witnesses shows that PERSON PERSON , while intoxicated , behaved aggressively , whereas the police used measures provided by law . The court shares the arguments contained in the reasoning of the prosecutor ’s decision and having regard to the above decides as in the operative part [ of the decision ] . ”

On DATE the President of ORG rejected the applicant ’s appeal against that decision because no appeal lay against it .

The applicant ’s pre - trial detention

DATE and DATE the applicant was held in pre - trial detention on a charge of robbery .

Article CARDINAL , in so far as relevant , provides :

“ § CARDINAL A person who causes bodily harm or ill health lasting no longer than DATE , shall be liable to a fine , a penalty of the restriction of liberty or imprisonment for a term not exceeding DATE .

§ CARDINAL If a person who committed an act described in ( ... ) § QUANTITY acts without intent , he shall be liable to a fine , a penalty of the restriction of liberty or imprisonment for a term not exceeding CARDINAL year .

§ CARDINAL The prosecution of a crime described in LAW , if bodily harm or ill health occasioned lasted no longer than DATE , shall take place under private indictment . ... ”

Article CARDINAL § CARDINAL provides :

“ A person who takes part in affray or battery , which creates a direct danger of loss of life or consequences described in Art . CARDINAL § CARDINAL or Art . CARDINAL § CARDINAL , shall be liable to imprisonment for a term not exceeding DATE . ”

Article CARDINAL § CARDINAL provides :

“ A public official , who by abusing his powers or by failing to fulfil his duties , acts to the detriment of public or private interest , shall be liable to imprisonment for a term not exceeding DATE . ”

Article CARDINAL § CARDINAL provides :

“ The State Treasury shall be liable for damage caused by a state official during the execution of duties entrusted to him . ”

LAW of DATE reads , in so far as relevant , as follows :

“ CARDINAL . If a lawful order given by a police authority or a policeman has not been complied with , policemen may apply the following coercive measures :

CARDINAL ) NORP physical , technical and chemical means of restraining or escorting persons or of stopping vehicles ;

CARDINAL ) NORP truncheons ;

CARDINAL ) NORP water cannons ;

CARDINAL ) NORP police dogs and horses ;

CARDINAL ) rubber bullets fired from fire - arms ;

Policemen may apply only such coercive measures that correspond to the exigencies of a given situation and are necessary to have their orders obeyed . ”

Paragraph CARDINAL of the Ordinance of ORG DATE on the Use of Coercive Measures by the Police provides :

“ CARDINAL . Physical force shall be used in order to restrain a person , to counter an attack or to make [ a person ] obey an order .

NORP When using physical force , no one shall hit a person , unless he has to do so in self - defence or in order to counter an unlawful attack against life , health or property of others . ”

Paragraph CARDINAL of the LAW provides , in so far as relevant , as follows :

“ Handcuffs may be used ( ... ) in order to prevent an escape or to prevent an active assault or active resistance . ... ”

According to LAW of DATE on ORG in GPE and Counteracting Alcoholism sobering - up centres are operated by local authorities .

LAW provides , in so far as relevant :

“ CARDINAL . Intoxicated persons who behave offensively in a public place or a place of employment , are in a condition endangering their life or health , or are themselves endangering other ORG life or health , may be taken to a sobering - up centre or a public health care facility , or to their place of residence .

[ Intoxicated ] persons who have been taken to a sobering - up centre or a police station shall remain there until they become sober but no longer than TIME . ... ”

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . Direct force in the form of holding and immobilising may be used against persons admitted to a sobering - up centre , who create danger to their own or the third ORG life or health [ or ] destroy objects in their vicinity .

Holding means a temporary and short immobilisation of a person by using physical force .

Immobilising means a longer lasting overpowering of a person by using straps , holders , sheets or a straightjacket .

Direct force may last only until such time as the reasons for its application cease to exist . ... ”

On DATE the Minister of ORG issued an GPE , which regulates the organisation of the sobering - up centres . The relevant provisions of the GPE are as follows :

“ § CARDINAL . Intoxicated persons , whose behaviour causes offence , whose circumstances threaten their life or health or who threaten the life or health of other persons , may be taken to a sobering - up centre ( ... ) by the police officers , the employees of the centre or other persons . ”

“ § CARDINAL . A person brought to the centre shall be immediately subjected to medical examination .

A doctor ( paramedic ) after examining a person detained in the centre shall assess :

CARDINAL ) medical reasons for placing in the centre , first aid that may be given in the centre , hygiene - sanitary procedures , taking into account the symptoms of intoxication and the lack of contraindications to the detention in the centre , or

CARDINAL ) medical reasons for referring to a hospital or another public health care facility – taking into account the symptoms of intoxication and the existence of indications for hospitalisation , or

CARDINAL ) NORP the lack of symptoms of intoxication justifying a detention in the centre . ”

“ § CARDINAL . If an employee of the centre ( ... ) finds that a person [ who was admitted to the centre ] :

CARDINAL ) [ has ] injuries on his body ( ... )

- the centre shall immediately inform the police and notify the time - limit of his presence in the centre . ”

“ § CARDINAL . Rooms in which persons intoxicated are present are constantly monitored by the authorised employees of the centre . The employee of the centre shall immediately inform a doctor ( paramedic ) about symptoms pointing to a deterioration of health of an intoxicated person ( ... ) . ”


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

On DATE police officers were carrying out a surveillance operation in relation to a property in FAC , GPE . As part of the operation , Detective Sergeant ( “ DS ” ) PERSON was driving an unmarked police car which collided with the applicant 's bicycle . The applicant was knocked off but got up and ran off . The car then collided with the applicant and ran over his legs . The applicant suffered injuries , including a fractured femur .

On DATE , the applicant lodged a complaint against the police alleging that he had been deliberately knocked down by the police car . The Chief Constable of the South Yorkshire Police requested an officer from another police force to investigate the complaint and referred the complaint to ORG ( “ PCA ” ) which was to supervise the investigation . The ORG approved the choice of the investigating officer from ORG .

On DATE the applicant made a statement .

On DATE the applicant and his solicitor viewed a video recording made from a police helicopter . Subsequently the applicant made a further statement which concluded with his view that it looked as though the police officers had been trying to kill him .

The investigating officer made an interim report , bearing in mind DATE time - limit on road traffic prosecutions , and ORG ( “ the ORG ” ) decided to bring proceedings against ORG for failing to drive with due care and attention .

On DATE , the investigating officer submitted his final report to the ORG and sent a copy to the Chief Constable . It included CARDINAL statements and CARDINAL other documents and exhibits , including video evidence and copies of tape - recorded interviews with the officers concerned .

On DATE , the ORG submitted a statement to the Chief Constable that the matter had been investigated to its satisfaction . The applicant was informed of the statement and that , at the conclusion of any criminal matters , the Chief Constable would inform the ORG whether it was proposed to bring any disciplinary charges . If the decision was not to do so , the ORG could recommend , or if necessary , direct that a disciplinary charge be brought .

On DATE , ORG pleaded guilty in ORG to driving without due care and attention . He was fined ORG , plus costs and CARDINAL penalty points were imposed on his licence .

The Chief Constable informed the ORG that it was not proposed to bring any disciplinary charges .

On DATE , the ORG informed the applicant that it did not intend to recommend any disciplinary proceedings , stating inter alia that in the absence of any “ irrefutable ” evidence of recklessness or intent on the part of ORG it was not believed that a disciplinary hearing would find any more fault in the officer 's conduct than did the criminal trial .

On DATE , the applicant 's solicitors wrote to the ORG alleging that it had misdirected itself in requiring “ irrefutable ” evidence for bringing proceedings .

On DATE , the ORG confirmed its decision in the light of the absence “ of any evidence of recklessness or intent ” .

On DATE , the applicant applied for judicial review of the ORG 's decisions as set out in its letters .

On DATE , the ORG informed the applicant that a fresh review of the case would be carried out by another member of the ORG , Ms PERSON , and inviting him to submit any further evidence within DATE . The applicant 's solicitors replied that they wanted to know what evidence the ORG had in order to consider what further evidence to submit .

On DATE , PERSON provided the applicant with a schedule listing the statements and documents which would be taken into account .

On DATE , the applicant 's solicitors requested disclosure of the materials in the schedule .

On DATE , PERSON declined to disclose the documents .

On DATE , the applicant withdrew the judicial review proceedings on the basis that the ORG would conduct a full review and make a fresh decision .

On DATE , the applicant 's solicitors made representations that they were unable to make effective submissions without access to the statements and documents , referring to ORG and CARDINAL of the Convention .

By letter dated DATE , PERSON replied that pursuant to LAW the ORG was prevented from disclosing information received in connection with its functions save in specified circumstances , including where it was necessary for the proper discharge of those functions . The ORG did not consider that disclosure was so necessary as the applicant had already made a statement himself , knew the identities of the persons whose statements had been received and had seen a copy of the video . It was satisfied that the material available to it did not contain anything on which it required the applicant 's representations in order for it to carry out its statutory functions .

The applicant issued judicial review proceedings challenging this refusal of disclosure .

On DATE , after an oral hearing , ORG ruled that the ORG should disclose certain material . The judge gave the parties the opportunity to agree what documents should be disclosed . On DATE , following agreement of the parties , ORG ordered disclosure of CARDINAL witness statements , some of them redacted , on the basis of an undertaking by counsel that he would not disclose or permit to be disclosed any of the material save to the applicant and his legal advisers .

On DATE , after an oral hearing , ORG allowed the ORG 's appeal .

On DATE , ORG granted the applicant leave to appeal .

Meanwhile , however , the applicant and the ORG agreed that the fresh review should be carried out .

On DATE , the ORG member issued a provisional decision , of CARDINAL pages , on the applicant 's complaints which included a summary and analysis of the evidence . Referring to various witness statements and the video , she noted that ORG had intended to stop and search the applicant due to his presence outside a drug dealing house and that when the applicant tried to get away on his bike , the car had clipped the rear of the bike , knocking him to the ground . When the applicant had run off , ORG had followed in the car ; he had driven onto the wrong side of the road and fearing collision with an oncoming vehicle , swerved and in so doing hit the applicant who had run into the road across his path . The independent report analysed the various speeds of the vehicles and bike and assessed that there were a number of deficiencies in the officer 's driving plan and manoeuvring . She concluded that , although there was a reasonable prospect of a disciplinary tribunal being satisfied that ORG driving fell below the required standard , there would be no recommendation of proceedings due to the passage of time since the incident , the fact that ORG had been told of the original decision not to bring disciplinary proceedings and the availability of lesser and proportionate means of dealing with his standard of driving . The applicant was invited to comment on the decision .

On DATE , following receipt of the applicant 's submissions , the ORG confirmed its decision . It further stated in relation to concerns raised by his solicitors about the way in which allegations of racist conduct had been dealt with that the matter had been investigated ( e.g. it had been put to the police officer in interview that it was a deliberate racist act ) but that there was ample evidence to provide a full explanation of ORG conduct which did not involve any element of racism . While the original investigation had not been carried out in line with the ORG 's DATE Guidelines which had only come into existence subsequently and which required statistical data to be taken into account , it appeared that difficulties in correlation of figures available for DATE would not have enabled it to be shown if black persons were subjected to a disproportionate number of searches .

On DATE , ORG dismissed the applicant 's appeal . It held that section CARDINAL contained a general ban on disclosure of information received by the ORG except in certain circumstances and that the aim of the ORG in carrying out its functions was to satisfy the legitimate interests of both complainants and the wider public that the investigation of complaints against police officers should be , and should be seen to be , independent and thorough . It considered that the purposes of the legislation would not be served by the disclosure of as much information as possible to the parties while an investigation was being undertaken . It noted , inter alia , that as the applicant was a potential witness in disciplinary proceedings there would be a risk of contamination of evidence if he was allowed sight of other witness statements . It concluded that the procedures adopted by the ORG in cases which concerned breaches of ORG and CARDINAL were such as to involve the applicant adequately in the procedure and to satisfy the requirements of an effective investigation and that accordingly the ORG had been entitled to take the view that the disclosure of the witness statements and other materials was not necessary for the proper discharge of its functions .

Meanwhile , the applicant had brought a claim for damages against the police . On DATE , these proceedings terminated when the police agreed to pay the applicant GBP CARDINAL , plus costs .


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON . He is detained in FAC .

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

NORP Throughout DATE the applicant was serving a sentence of imprisonment in FAC . CARDINAL , following his conviction for attempted burglary by ORG on DATE . He completed the sentence on DATE and , on an unknown later date , was transferred to FAC .

On DATE the applicant asked the Governor of ORG . CARDINAL for leave to have visits from a certain GPE in prison . GPE had been detained in the same prison from DATE to DATE . At the relevant time , she was detained in FAC ( at FAC ) . The request was refused .

On DATE the applicant asked ORG – ORG ( PERSON – Wydział Penitencjarny ) for leave to marry PERSON in prison .

On DATE ORG made a similar request to ORG of the same court , asking for leave for her and the applicant to marry in prison .

Their requests were referred to the Governor of ORG . CARDINAL .

On DATE the Governor refused both requests . The refusals were phrased in an identical way . The replies read , in so far as relevant , as follows :

“ Replying to your request of DATE , which was referred to me by ORG of ORG , I hereby inform you that I refuse to give you leave to marry GPE on the prison LOC . The question of your having visits from GPE was already decided negatively earlier ( on DATE ) , in connection with your request of DATE . I now maintain that earlier standpoint taken by the Governor ... .

Analysing your family situation one can see that GPE is not a member of your family or a “ close person ” ( osoba bliska ) within the meaning of LAW of LAW ] . Neither you nor GPE are able to substantiate your relationship in the period prior to her stay in [ this prison ] in connection with her pre - trial detention from DATE to DATE .

In view of the foregoing , I refuse your request . ”

On DATE the applicant unsuccessfully appealed to ORG against the refusal .

The applicant also complained to , and sought assistance from , the Ombudsman ( PERSON ) .

On DATE the ORG informed the Governor of ORG of the applicant ’s complaint and asked him to consider the possibility of granting him visits from his fiancée who was apparently his only close person , especially given their intention to get married and the fact that the applicant had volunteered for participation in a therapeutic rehabilitation programme based on deepening contact with close persons .

On DATE the Governor informed the ORG that the principal ground for refusal to grant the applicant visits from GPE and leave to marry her in prison was the fact that they could not prove that they had had a relationship before her detention in the same prison which “ made his attempts to obtain the leave ‘ premature’ . ”

On DATE the ORG wrote back to the Governor , stating that he had reservations about the grounds for the refusal of leave to marry and asking him to conduct an enquiry into the applicant ’s allegations and to reconsider the possibility of granting him visits from GPE

On DATE the prison authorities prepared a report on the enquiry which was later transmitted to the ORG . The report read , in so far as relevant , read as follows

“ Undoubtedly , [ the applicant ] became illegally acquainted with GPE during her detention on remand in this establishment ( from DATE to DATE ) . In his complaint , [ the applicant ] states that ‘ I [ had ] got to know a girl who stayed in this remand centre more than a year ago’ . It is difficult to call “ fiancées ” persons who get to know each other in this manner ( kites , writing on their hands – often without seeing each other ) .

This contact , which was made in prison ( certainly illegally ) and which by the nature of things is very superficial , is not a worthy contact from the point of view of the applicant ’s rehabilitation . For that reason , the applicant ’s requests [ for leave to marry GPE in prison ] had received negative opinions from his supervising officer [ wychowawca ] . ”

On DATE the ORG replied to the applicant ’s complaint . The letter reads , in so far as relevant , as follows :

“ I would like to inform you that , as unequivocally emerges from the findings relating to your wish to get married to GPE in prison , your relationship with FAC [ ... ] H [ ... ] developed in an illegal manner during her detention on remand in the prison in which you remain . It was precisely your illegal relationship maintained by means of , among other things , sending kites ( za pomocą grypsów ) in prison which , in the opinion of the prison administration , was decisive [ for considering ] your union unworthy from the point of view of your social rehabilitation .

At the same time , I would like to add that , as emerges from the information I have received , this matter is at present being examined by ORG , from which you should get a reply .

In view of the foregoing , acting upon the ORG ’s authorisation , I consider the matter as clarified in its entirety and I do not see any indication of your rights having been infringed by the [ prison ] administration . ”

Meanwhile , on DATE the applicant had complained to the Minister of ORG about the refusal to give him leave to contract a marriage in prison . The complaint was referred to the PERSON Regional Director of ORG ( PERSON ) who , on DATE , addressed the matter as follows :

“ In reply to your complaint of DATE addressed to ORG and concerning the decision of the Governor of ORG . CARDINAL refusing to grant you leave to contract a marriage on the prison LOC , I would like to inform you that , according to the rules on competence [ in such matters ] , your complaints have been examined by ORG of ORG ( ORG PERSON ) .

Following an enquiry it has been ascertained that , indeed , the administration of ORG . CARDINAL did not give you leave to contract a marriage on the premises of the penitentiary establishment . You were notified of the reasons for it by , inter alia , the letter of DATE ....

At the same time , I inform you that this decision did not infringe the applicable legal provisions . No provision obliges a governor of a penitentiary establishment to grant a detained person leave to contract a marriage in the establishment run by him .

In view of the foregoing , I do not see any grounds for upholding your complaint . ”

On DATE the ORG examined the applicant ’s appeal of DATE but did not take any decision on the matter .

On an unspecified date in DATE the Deputy Governor of FAC issued a certificate addressed to ORG ( ORG ) confirming that the applicant had obtained leave to marry FAC in prison .

The Government submitted that , according to information supplied by ORG authorities , the applicant did not marry GPE in prison .

Article CARDINAL of LAW ( NORP karny wykonawczy ) ( “ the Code ” ) lists the rights of a convicted person . It reads , in so far as relevant , as follows :

“ A convicted person has , in particular , the following rights :

CARDINAL ) NORP to maintain relationships ( więzi ) with the family and other close persons ;

CARDINAL ) to make applications , complaints and requests to an authority competent to deal with the subject - matter and to present them , in the absences of third parties , to the prison administration , heads of organisational units of ORG , penitentiary judge , prosecutor and the ORG . ”

Detailed rules on the procedure referred to in paragraph CARDINAL is laid down in the Minister of ORG ’s Ordinance of CARDINAL DATE on dealing with applications , complaints and requests by persons detained in prisons and remand centres ( ORG w sprawie sposobów załatwiania wniosków , skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych ) ,

Article CARDINAL , paragraphs CARDINAL and CARDINAL , of the LAW provides that a convicted person can challenge before a court any unlawful decision issued by a judge , a penitentiary judge , a governor of a prison or a remand centre , a regional director or ORG or a court probation officer . Applications relating to the execution of prison sentences are examined by a competent penitentiary court .

The remainder of LAW reads as follows :

“ CARDINAL . Appeals against decisions [ mentioned in paragraph CARDINAL ] shall be lodged within DATE of the date of the pronouncement or the service of the decision ; the decision [ in question ] shall be pronounced or served with a reasoned opinion and an instruction as to the right , deadline and procedure for lodging an appeal . An appeal shall be lodged with the authority which issued the contested decision . If [ that ] authority does not consider the appeal favourably , it shall refer it , together with the case file and without undue delay , to the competent court .

The ORG competent for examining the appeal may suspend the enforcement of the contested decision ...

Having examined the appeal , the court shall decide either to uphold the contested decision , or to quash or vary it ; the court ’s decision shall not be subject to an interlocutory appeal . ”

NORP Under the provisions of ORG ( PERSON i PERSON ) the registrar of the relevant ORG ( PERSON ) may refuse to solemnise marriage only if there exists any statutory obstacle rendering the marriage null and void , such as age , legal incapacity , mental disorder , bigamy , close affinity of the parties or adoptive relationship ( Articles CARDINAL , DATE , DATE and DATE ) . In case of doubt , the registrar should ask the competent court to rule on whether the marriage can be contracted ( Article CARDINAL ) .

Pursuant to DATE , a marriage before the registrar may not be concluded DATE after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage . At their request and for important reasons , the registrar may solemnise the marriage before the expiry of that term .

Article CARDINAL of ORG lays down the rules for a proxy marriage . Contracting a marriage through a representative is subject to leave that can be granted by a family court in the non - contentious procedure . It depends on CARDINAL principal conditions . First , the court must be satisfied that there exist “ important reasons ” justifying the departure from the normal procedure . Secondly , the applicant ’s signature on a proxy must , on pain of being null and void , be made in the presence of a notary , who confirms its authenticity by a special declaration .

ORG case - law and practice of the domestic courts in respect of a proxy marriage is very scant . A few existing rulings of ORG relate to applications for leave to contract proxy marriages with NORP women made by foreign persons and date back to the CARDINALs .

The Recommendation of the Committee of Ministers to member states on ORG ( Rec(CARDINAL)CARDINAL ) ( “ FAC ” ) , adopted on DATE , sets out the following standards in respect of the enforcement of custodial sentences that are relevant in the context of the present case .

Rule CARDINAL reads :

“ Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed . ”

Rule CARDINAL reads , in so far as relevant :

“ CARDINAL . Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum of contact .

NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .

“ CARDINAL . Prisoners , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority .

NORP If the request is denied or a complaint rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - General principles of international law)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

In DATE the applicant was found guilty of drug trafficking and sentenced to CARDINAL years’ imprisonment by an NORP court in abstentia .

On DATE the applicant was arrested and taken into custody at the Kapıkule border in GPE , on the basis of a Red Notice issued by GPE via ORG .

On DATE the judge at ORG ordered the applicant ’s provisional arrest on the basis of LAW and LAW .

On DATE ORG sent a letter to ORG informing him that , on DATE , the applicant had been sentenced to CARDINAL years’ imprisonment for drug trafficking in GPE . On DATE , the public prosecutor stated that the applicant should remain under provisional arrest until the decision of ORG regarding his extradition .

On DATE ORG delivered a decision , pursuant to LAW no . CARDINAL ) , indicating the applicant ’s nationality and the nature of the offences allegedly committed .

On DATE the applicant ’s lawyer requested ORG to allow his client to be tried in GPE for the crimes he had allegedly committed there . Subsequently , a preliminary investigation was initiated into the applicant ’s activities and , on DATE , the applicant was remanded in custody in connection with the offences he had allegedly committed in GPE .

On DATE ORG filed a bill of indictment charging the applicant with drug trafficking under LAW .

On DATE ORG decided to extradite the applicant to GPE when his trial in GPE was over .

On DATE the applicant ’s trial commenced before ORG . On DATE the court ordered the applicant ’s release pending trial . On DATE , he was placed in provisional detention again with a view to his extradition to GPE on the basis of the order of ORG dated DATE .

On DATE ORG informed ORG that the applicant could be extradited to GPE .

In the meantime , the applicant had filed several petitions with ORG , requesting his release . In all his petitions , he argued that his prolonged provisional detention with a view to his extradition was illegal . On DATE the applicant ’s lawyer once again requested ORG to lift the decision for the applicant ’s provisional arrest and to order his release . In his petition , he relied on LAW , which limited the length of the provisional detention to DATE after arrest . The applicant further maintained that by virtue of LAW international agreements adopted by GPE formed an integral part of the domestic law , and thus his prolonged detention with a view to extradition for DATE constituted a breach of LAW . On DATE the court dismissed this request without providing any answer to the applicant ’s claim regarding LAW . On DATE the applicant ’s lawyer objected to the decision of CARDINAL DATE , again making a reference to ORG and arguing that his provisional detention , which had exceeded DATE , was illegal . On DATE ORG rejected the applicant ’s request for release , upholding the reasoning of ORG .

On DATE the applicant was extradited to GPE .

On DATE ORG were abolished by PERSON no . CARDINAL and the criminal proceedings against the applicant were therefore transferred to ORG .

On DATE the criminal proceedings against the applicant were terminated as the statutory time - limit had expired . On DATE ORG upheld the judgment .

On an unspecified date , the applicant returned to GPE , where he currently resides .

LAW which was signed in GPE on DATE and which came into force on CARDINAL DATE provides as follows :

“ The Contracting Parties undertake to surrender to each other , subject to the provisions and conditions laid down in this LAW , all persons against whom the competent authorities of the requesting ORG are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order . ”

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law . ...

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition ... It shall not , in any event , exceed DATE from the date of such arrest . ”

“ CARDINAL . The requested ORG may , after making its decision on the request for extradition , postpone the surrender of the person claimed in order that he may be proceeded against by that ORG or , if he has already been convicted , in order that he may serve his sentence in the territory of that ORG for an offence other than that for which extradition is requested .

NORP The requested ORG may , instead of postponing surrender , temporarily surrender the person claimed to the requesting ORG in accordance with conditions to be determined by mutual agreement by the Parties . ”

Article CARDINAL CARDINAL of the LAW reads :

“ ... International treaties that are duly in force are directly applicable in domestic law . Their constitutionality can not be challenged in ORG .

In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute , the provisions of the international agreement shall prevail . ”

Article CARDINAL reads :

“ Whoever commits a crime in GPE shall be punished in accordance with NORP law , and a NORP , even if sentenced in a foreign country for a commission of a crime , shall be retried in GPE . ”

Article CARDINAL reads :

“ The NORP State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto .

When called upon to deal with a request by a foreign ORG for the extradition of an alien , the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person ’s nationality and the nature of the offence .

If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government .

The investigating judge may order the detention of the alien pending his extradition . ”

Section CARDINAL provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”


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

The applicant ’s daughter PERSON was born on CARDINAL DATE . In DATE the applicant and PERSON , his then wife , separated . Since then PERSON has been living with her mother , who was awarded custody of her . On DATE the applicant had his last contact with F.

On DATE the Berlin Tempelhof - ORG suspended the applicant ’s access to F. This judgment was upheld by ORG on DATE . On DATE ORG refused to admit the applicant ’s constitutional complaint lodged against the latter judgment .

In his first application ( no . MONEY ) to this ORG , the applicant complained , in particular , that the said court decisions suspending his access to PERSON amounted to a breach of his right to respect for his family life . He further claimed that the court proceedings concerned had not been fair . On DATE , the ORG declared admissible these complaints .

The applicant ’s second application ( no . MONEY ) lodged with the Court concerns the refusal of the NORP courts to order the disclosure of PERSON ’s whereabouts to him .

On DATE , when the amended LAW entered into force , the applicant lodged a fresh application to be granted access to his daughter PERSON with ORG . He relied on sections DATE and DATE of LAW ( see ‘ Relevant domestic law’ below ) . Subsequently , he submitted further observations dated DATE , DATE , DATE , DATE , DATE and CARDINAL DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE and DATE , DATE , DATE and CARDINAL DATE . In these submissions the applicant brought several motions for evidence to be taken and urged the court to speed up the proceedings .

On DATE the ORG heard the applicant , PERSON and a representative of ORG . It decided that contacts between the applicant and his daughter PERSON should cautiously be resumed by an exchange of letters between them via ORG . Furthermore , a curator ad litem ( Verfahrenspfleger ) should be appointed in order to assist in the resumption of contacts and to represent PERSON ’s interests in the proceedings . The initiation of contacts should last for DATE , during which the proceedings were suspended .

On DATE the ORG appointed PERSON curator ad litem .

On DATE ORG , on the applicant ’s motions , resumed the proceedings . It heard the applicant , PERSON , PERSON and the curator ad litem PERSON

On DATE ORG , having regard to the submissions of the parties and F. at the court hearings and to the reports of ORG and the curator ad litem , dismissed the applicant ’s request to be granted access to F. It found that the applicant had failed to demonstrate that there were new circumstances due to which the suspension of his access to F. as ordered by ORG in its final judgment on DATE should be ended . The court found that in the present proceedings , just as in the proceedings leading to the said judgment , the applicant ’s daughter had unequivocally expressed her wish not to have contacts with her father .

ORG noted that there had been an exchange of letters between the applicant and PERSON via ORG . The curator ad litem had organised CARDINAL meeting between them in DATE , which both PERSON and the applicant had appreciated . Nevertheless , PERSON had subsequently stated that she did not wish to have further contacts with her father .

ORG found that , contrary to the applicant ’s view , F. could not be considered as suffering from parental alienation syndrome . She was not unable to express her own view , and was not merely repeating her mother ’s views . This was proved by the fact that she had agreed to have contacts with her father in writing and once in person . In her hearing in court , she had not denied having appreciated the meeting with her father . However , she had disapproved her father ’s persistent struggle to enforce his right of access to her against her will .

ORG found that in principle , contacts between a father and his child are in the child ’s best interests . However , the firmly expressed will of ORG , who had almost attained DATE , not to have further contacts with her father had to be taken seriously . Ordering contacts against her will was not in her best interests . According to the submissions of the curator ad litem , PERSON was torn apart by her GPE conflicts . Having to maintain court - ordered contacts with her father would affect her because of her loyalty to her mother , whose deep - rooted negative opinion of her father was known to F. Furthermore , due to the applicant ’s readiness to enforce a right of access granted to him by coercive measures , contacts between him and F. could not be expected to take place without problems .

ORG found that it had not been necessary to order a further expert report . Even if an expert found that F. suffered from parental alienation syndrome , ordering access would be contrary to her well - being , given the conflict of loyalties in which she found herself .

On DATE the applicant lodged an appeal against ORG decision , which he reasoned on DATE . A hearing of the parties scheduled for CARDINAL April CARDINAL had to be adjourned due to PERSON ’s illness .

On DATE ORG heard the applicant , PERSON , PERSON and the curator ad litem .

On DATE ORG ordered a psychological expert report on the question of access . Expert PERSON was notably to address the question whether PERSON ’s persistent refusal to have contacts with her father had to be considered as an expression of her own free will . The applicant subsequently appealed against the court ’s decision to order a further expert report and challenged PERSON for bias . On DATE ORG dismissed the applicant ’s appeal as inadmissible , as no appeal lay against the said decision . On DATE ORG refused to admit the applicant ’s constitutional complaint against these CARDINAL decisions .

On DATE the applicant challenged the judges dealing with his case at ORG for bias , notably arguing that they prolonged the proceedings by ordering a superfluous expert report . He submitted further mostly handwritten observations dated CARDINAL , DATE and DATE and DATE , DATE and DATE reasoning his motion . On DATE ORG dismissed the applicant ’s motion for bias . On DATE ORG dismissed the applicant ’s appeal as inadmissible , as no appeal lay against ORG decision in this respect .

On DATE ORG dismissed the applicant ’s motion objecting to the expert H. on grounds of bias and his motion to rectify TIME of the hearing on DATE . On DATE ORG dismissed the applicant ’s appeal as inadmissible , as no appeal lay against the said decision of ORG .

On DATE ORG granted the applicant legal aid .

On DATE expert ORG received the court ’s case - files . She heard F. on CARDINAL DATE and CARDINAL DATE . On DATE ORG dismissed the applicant ’s renewed motion challenging H. for bias . The applicant refused to keep appointments with the expert on DATE and DATE . By a letter dated DATE ORG again invited the applicant to fix an appointment with the expert , but the applicant failed to do so .

On DATE expert PERSON submitted her report , in which she proposed not to grant the applicant access to F. against F. ’s firmly expressed will .

On DATE ORG , having heard the applicant , PERSON , PERSON , the curator ad litem and the psychological expert in person , dismissed the applicant ’s appeal . It further relied on the reports submitted by a representative of ORG . The court found that the applicant could not be granted access to PERSON , because contacts with him , including those in the presence of a third party , were against F. ’s will and therefore contrary to her best interests . Ordering contacts with a parent against the firmly expressed will of a child who has almost attained the age of majority would violate the child ’s right to privacy ( ORG ) . PERSON was then DATE . She had expressed her wish not to meet the applicant persistently and in an unequivocal manner already at the hearing by ORG and when questioned by the curator ad litem , the court - appointed expert and the representative of ORG . In her hearing in court , PERSON had again stated that she wanted a rest from the applicant and did not want further court proceedings .

The decision was served on the applicant on DATE .

On DATE the applicant lodged a complaint with ORG , which he further reasoned in his submissions dated DATE and DATE .

Invoking the relevant articles of the German Basic Law as well as Articles CARDINAL and CARDINAL of the LAW , the applicant claimed that the decisions of the family courts ordering that his access to F. remain suspended violated his right to respect for his family life . He further complained that he had not had a fair trial because the curator ad litem had been prohibited by the president of ORG to comment on the parental alienation syndrome from which his daughter suffered . According to the applicant , it had been superfluous to order a further report by a psychological expert . This had caused the length of the proceedings in ORG to become excessive .

On DATE ORG , without giving further reasons , refused to admit the applicant ’s constitutional complaint , as it was inadmissible .

On DATE F. attained the age of majority .

At the relevant time , i.e. after the entry into force of the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) on DATE , the applicable provision of the Civil Code concerning access to a child born in wedlock was worded as follows :

Section DATE

“ CARDINAL . The child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child .

NORP The parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . ...

The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties . They may order the parties to fulfil their obligations towards the child .

The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child ’s welfare . A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child ’s well - being were endangered otherwise . The family courts may order in particular that contacts may only take place in the presence of a cooperating third party . ”

Pursuant to section CARDINAL § CARDINAL of LAW , as in force since DATE , the courts sitting in family matters must modify their decisions if this is necessary for cogent reasons which have a lasting effect on the child ’s well - being .


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

The applicant is a lawyer by profession .

On DATE a pensioner , henceforth called ORG , instituted civil proceedings before ORG of Eastern GPE ( PERSON ) against ORG ) and ORG ( Socialministeriet ) , claiming compensation in the amount of MONEY ( ORG ) , equal to MONEY ( ORG ) , alleging that the ORG had used a wrong yearly regulating price index concerning DATE , which had been detrimental to his retirement pension received during DATE . A successful outcome to the proceedings for ORG would have had a significant impact on other pensioners , recipients of social welfare etc . , resulting in them having claims of up to ORG MONEY ( approximately ORG MONEY ) .

The ORG were represented by the Legal Adviser to ORG ) , who is a private lawyer . When working for the ORG it is on the basis of a contract on special conditions e.g. that his fee corresponds to CARDINAL of a normal billing rate for lawyers .

On DATE , ORG ordered that ORG be represented by a lawyer and the applicant agreed to represent him . ORG ’s insurance company paid DKK CARDINAL in legal insurance coverage to the applicant . Moreover , on DATE ORG ( PERSON ) granted SN free legal aid ( fri proces ) with the consequence that all legal costs and expenses incurred before ORG were to be paid by the ORG and that it was for ORG to decide on the fee to be awarded to the applicant .

On DATE , the applicant informed ORG that at that stage he had spent TIME on the case . By decision of DATE , ORG exceptionally granted the applicant a provisional fee amounting to DKK CARDINAL plus VAT , equal to approximately ORG CARDINAL,CARDINAL , and informed him that the final calculation of the fee had to await the passing of the judgment in the case .

On DATE the Legal Adviser to ORG announced that he was ready for ORG to schedule the trial .

At a hearing on DATE ORG drew the applicant ’s attention to CARDINAL c of ORG ( Retsplejeloven ) , according to which an appointed lawyer was entitled to an appropriate fee , and noted that , according to established practice the calculation of the fee took the guiding rates as the starting point and further depended on the scope of the work , the nature of the case and the values involved . Moreover , ORG invited the applicant to concentrate on the crucial issues of the case .

By letter of DATE the applicant requested that the High Court grant him another provisional fee . He contended that TIME of work were still unpaid and that he had spent TIME on the case since his last request . The request was refused by ORG on DATE , noting that the decisive factor when calculating the fee was the value of the legal action , which in the present case amounted to DKK CARDINAL maximum .

On DATE , ORG again invited the applicant to concentrate on the crucial issues and asked him whether the trial could be scheduled .

On DATE ORG scheduled the trial to take place over DATE in DATE .

By letter of DATE , the applicant requested anew to be granted a provisional fee . He maintained that so far he had received remuneration for TIME of work , whereas TIME were still unpaid . Moreover , the applicant estimated that he would need TIME to finish the case , including DATE for the trial itself .

ORG refused the request on DATE and noted , among other things , that the trial had been fixed for a longer duration , which in itself could be expected to give rise to a not insignificant fee at the end of the case .

The applicant requested that the Leave - to - Appeal Board ( Procesbevillingsnævnet ) grant him leave to appeal against the decision to ORG ( Højesteret ) . In support thereof he maintained that there was a clear disproportion between the remuneration that he had received and the remuneration that the Legal Adviser to ORG had received . At the relevant time the latter had been paid DKK CARDINAL , equal to ORG CARDINAL . ORG ( Advokatsamfundet ) intervened on the applicant ’s behalf and maintained that the said disproportion was a breach of the principle of equality of arms within the meaning of LAW .

By decision of DATE the Leave - to - ORG refused to grant leave to appeal against ORG decision of DATE as it did not find that the matter raised questions of principle as required by LAW , subsection CARDINAL of ORG . The decision gave rise to attention from the media and in parliament .

On DATE again the applicant applied for a provisional fee , which was granted by ORG on DATE in the amount of DKK CARDINAL plus VAT , equal to approximately EUR CARDINAL . ORG took note of the fee that had been paid by the ORG to the Legal Adviser to ORG . At the same time it pointed out that the final determination of the fee to be paid to the applicant had to await the closing of the case before it .

By judgment of DATE , which ran to CARDINAL pages , ORG found against GPE . The latter was granted leave to appeal against the judgment to ORG , where the case is still pending . In these proceedings ORG was also granted free legal aid .

By decision of DATE ORG also determined the final fee to be paid to the applicant , who had submitted that since the lodging of the case he had spent TIME on the case . ORG awarded him a final additional fee for his work before it in the amount of DKK CARDINAL , equal to approximately ORG CARDINAL,CARDINAL , plus reimbursement for costs incurred in the amount of DKK MONEY .

Thus , altogether , for his work before ORG the applicant was paid DKK CARDINAL , CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .

The Legal Adviser to ORG was paid an amount of DKK CARDINAL,CARDINAL,CARDINAL , equal to ORG MONEY , by the ORG for his work and expenses before ORG .

On ORG ’s behalf , maintaining that he had been paid too little , the applicant requested that the Leave - to - Appeal Board grant him leave to appeal to ORG against ORG decision of DATE concerning the fee .

The request was refused by ORG on DATE as it did not find that the matter raised questions of principle as required by LAW , subsection CARDINAL of ORG .

On DATE the applicant requested that the Leave - to - Appeal Board re - open the case . In support thereof , he referred inter alia to a decision of CARDINAL DATE ( published in ORG ( ORG for DATE . CARDINALH ) in which ORG had increased the fees to be awarded to CARDINAL lawyers in a concrete case . The applicant also submitted the bill of the Legal Adviser to ORG to the ORG from which it followed that the former was entitled to CARDINAL . Had the normal TIME billing rate for lawyers been applied , however , the Legal Adviser would have been entitled to MONEY CARDINAL,CARDINAL,CARDINAL for his work before ORG .

Before ORG the applicant also filed an internal note from ORG specifying that when determining the fee to the applicant it had accepted that he had spent TIME on the case .

On DATE ORG refused to re - open the case .

The public legal aid in civil proceedings ( fri proces ) covers expenses of civil actions for persons whose personal income and capital income do not exceed DKK CARDINAL , or for married couples the amount of DKK CARDINAL . Applications for aid in civil actions are examined by ORG ( PERSON ) and granted in view of the expected outcome of the lawsuit . However , granted aid will be paid without regard to the actual findings of the court .

The relevant provisions of ORG ( Retsplejeloven ) read as follows :

The appointed lawyer is entitled to an appropriate fee , in addition to reimbursement for expenses , including travelling costs , which have reasonably been incurred as part of his work .

The court appointing a lawyer also determines the fee and the reimbursement to be paid . The determination thereof is made in an independent decision at the end of the case or the legal action .

The appointed lawyer may not receive fee or reimbursement but for the amount set by the court . ...

In addition , various private insurance companies offer legal insurance coverage often as integrated in the basic family insurance .

Pursuant to LAW , subsection CARDINAL of ORG , the Leave - to - Appeal Board may grant leave to appeal to ORG against ORG decisions . Leave to appeal may be granted if the case raises questions of principle .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged an action against her husband with ORG , seeking a judicial determination of their parental rights and obligations in respect of their child .

On DATE ORG delivered an interim measure in the applicant ’s favour .

On DATE the ORG gave the applicant custody of the child . It did not order the defendant to pay any maintenance . On CARDINAL DATE ORG quashed the judgment in its part concerning maintenance and remitted the case to ORG . The view was expressed that the court of first instance had not sufficiently established the relevant facts . ORG ordered ORG to proceed along the lines specified .

In a judgment of DATE ORG determined the issue . On DATE ORG again quashed the relevant part of the judgment and remitted the case to ORG . It found that ORG had not sufficiently established the relevant facts and explained to the latter how the case should be dealt with .

On DATE the applicant withdrew the action as she had reached an out - of - court settlement with the defendant .

ORG thus discontinued the proceedings on DATE . The decision became final on DATE .

Meanwhile , on DATE , ORG found that ORG had violated the applicant ’s right under LAW to a hearing without unjustified delay . ORG established that the case was not complex and that no delays could be imputed to the applicant . It noted that ORG had acted ineffectively . In view of the subject - matter of the proceedings , their overall duration had been excessive . ORG concluded that the finding of a violation represented in itself sufficient just did not order ORG to proceed with the case on the ground that the applicant had withdrawn the action . It ordered ORG to reimburse the applicant ’s legal costs .


Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in LOC .

NORP In DATE the applicant was dismissed from his position .

On DATE , according to the applicant , and CARDINAL DATE , according to ORG , the applicant and CARDINAL other persons lodged an action against their former employer , a private company , for payment of wage arrears and compensation for non - pecuniary damage .

On CARDINAL DATE ORG allowed the claim in part .

The parties did not appeal and the judgment became final .

On DATE the Presidium of ORG granted the applicant ’s request for a supervisory review , quashed the judgment of CARDINAL DATE and remitted the case for a new examination .

In DATE the applicant asked ORG to examine his action in separate proceedings . ORG granted his request and adjourned the proceedings until DATE .

The hearing of DATE was adjourned until DATE because the defendant did not attend .

On DATE the proceedings were stayed for DATE because the applicant asked for additional time to amend his claims .

On DATE the ORG allowed the applicant ’s claim in part .

That judgment was quashed on appeal by ORG on DATE . The case was remitted for a new examination .

Of the CARDINAL hearings listed DATE and DATE , CARDINAL hearings were adjourned because the judge was on sick leave , QUANTITY hearings were adjourned because the defendant did not attend or asked to stay the proceedings and QUANTITY hearings were postponed at the applicant ’s request .

On DATE ORG allowed the applicant ’s claim in part .

The judgment of DATE was not appealed against and became final .

On DATE the ORG of Tula granted the applicant ’s action against ORG for outstanding unemployment benefits and awarded him MONEY ( ORG , approximately CARDINAL ) .

On DATE ORG upheld the judgment on appeal .

On DATE the applicant filed a writ of execution to ORG , but the judgment was not enforced .

On DATE the judgment was enforced in full .

On several occasions the applicant asked ORG for provision of unspecified information . No response followed .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in FAC , GPE , GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE , GPE .

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

In DATE , the applicant severely mutilated his DATE son by castrating him . He was charged with causing grievous bodily harm with intent to do so . On CARDINAL DATE he was transferred to ORG under CARDINAL of LAW DATE ( ' ORG ' ) , diagnosed with paranoid psychosis . On DATE he was found not guilty of that offence by reason of insanity and ordered to be admitted to a high security hospital ( ORG ) under LAW DATE . When an individual is admitted to hospital in this way , he becomes entitled to apply to a ORG ( “ MHRT ” ) which is empowered to order his discharge either absolutely or conditionally .

On DATE the applicant 's detention was reviewed by the ORG but no order for discharge was made .

On DATE the ORG , after reviewing the applicant 's case again , recommended his transfer to a less secure unit . However the Secretary of ORG refused the transfer . In DATE , Dr. PERSON , a psychiatrist , considered that the applicant was in a state of natural remission as he had not been taking medication for DATE . On DATE , Dr. PERSON ( a psychiatrist instructed by the applicant 's solicitors ) considered that the applicant was no longer suffering from a mental disability under the ORG and therefore his detention was unjustified .

On DATE there was a third MHRT hearing which heard evidence from Doctors PERSON , PERSON and PERSON as well as from a representative of the Secretary of ORG for ORG . Both PERSON and the Secretary of ORG 's representative opposed the proposed conditional discharge of the applicant . In spite of this opposition the ORG held that :

“ having considered all the medical evidence we have come to the conclusion that the applicant is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment , but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment .

We adjourn the hearing until DATE at the latest for a full care plan to be drawn up . The terms which we consider should probably be attached to ORG are:-

CARDINAL ) Supervision by a named ORG

CARDINAL ) Supervision by a named forensic psychiatrist ; the appellant to be subject to the directions of the Psychiatrist including any relating to drug monitoring

CARDINAL ) Residence at a suitable hostel , preferably staffed TIME a day .

If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed .

We require ORG to provide full details of a suitable plan at the adjourned hearing . ”

On DATE the tribunal reconvened and decided that the applicant should be transferred to a medium security unit . A conditional discharge order was then made . The terms of the discharge were as follows :

“ CARDINAL . Decision of the tribunal :

( d ) The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at ( CARDINAL ) below . ...

Findings of the ORG concerning the statutory criteria

The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions ( A ) or ( B ) is ' yes ' and the answer to question ( C ) is also ' yes ' .

A. Is the tribunal satisfied that the patient is not now suffering from mental illness , psychopathic disorder , severe mental impairment or from any of those forms of disorder of a nature or a degree which makes it appropriate for the patient to be detained in a hospital for medical treatment ? Yes

B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment ? Yes

C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment ? No

Conditions imposed by the tribunal ( conditional discharge only ) : And the reasons for the tribunal 's decision .

Having considered the reports and correspondence from ORG and the ORG and ORG , and having heard the evidence of Miss ORG we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place . For the reasons given on DATE , we make a conditional discharge order in the following terms : ( CARDINAL ) There shall be supervision by a named social worker , ( CARDINAL ) there shall be supervision by a named psychiatrist , preferably by a forensic psychiatrist ; ( CARDINAL ) the applicant shall be subject to the directions of the psychiatrist including any relating to drug monitoring ; ( CARDINAL ) the applicant shall reside at a suitable hostel , preferably a hostel staffed TIME a day ; ( CARDINAL ) the applicant shall be excluded from GPE , GPE and GPE save for the purpose only of visiting his relatives in their homes . In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose . The applicant 's discharge shall be deferred until the arrangements listed have been made . ”

At the time this order was made it was not challenged by the applicant . Unfortunately , the local authorities were unable to find a forensic psychiatrist to supervise the applicant . To find a psychiatrist required the cooperation of ORG , who refused to provide a psychiatrist , basing their refusal on the fact that they considered the applicant 's release into the general public to be premature and dangerous .

In DATE , the applicant applied for judicial review . He asked the court to consider whether the ORG 's provisions governing conditional discharge and deferral were consistent with LAW as interpreted in PERSON v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) and PERSON v. GPE ( PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions DATE ) , in particular concerning the ORG 's lack of power to secure compliance with its conditions and , in the event of a failure of the health authority to secure compliance with its decision , its inability to reopen and reconsider the case . The applicant also made a claim for damages .

On DATE , ORG , when granting permission for judicial review , suggested that meanwhile the Secretary of ORG refer the case back to the tribunal , which he did .

Further hearings were held by the ORG in DATE . On DATE it was recommended that the applicant remain in hospital as it was satisfied , notwithstanding the earlier decisions , that the applicant was and always had been suffering from a mental illness which was in remission but with a significant risk of relapse , that it was appropriate for the applicant to be detained in hospital for the treatment of his illness and that the evidence of the need for hospital treatment was compelling .

On DATE , after a hearing at which the applicant was represented , ORG judge found that it was a least arguable that the applicant had been detained unlawfully for a period of DATE after DATE and that in breach of LAW and DATE he had been left in limbo for DATE . He did not however consider that there was breach of these provisions based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time . While he did not see how any order that a medical practitioner supervise a patient in the community could be enforced against his professional principles , he considered that the relevant legislation could be given effect to in a way compatible with the Convention , namely that an ORG could make a deferred direction for conditional discharge enabling the tribunal to monitor attempts to comply with reasonable conditions and to amend the deferred conditional discharge in the light of difficulties encountered by the authorities .

The applicant was given permission to appeal to ORG .

On DATE , ORG held concerning LAW :

“ ... we agree that LAW was infringed . If after a tribunals decides that it is appropriate to direct a conditional discharge of a patient , that patient remains detained without access to the tribunal for an unreasonably long period while unsuccessful attempts are made to make arrangements that will enable the conditions to be satisfied , LAW is clearly infringed . That is what happened on this occasion . ... no attempt was made ... to revert to the third tribunal , but no doubt this was because the decision in ORG 's case was believed to preclude this . In practice it would clearly have done so . In the light of that decision the tribunal would not have felt able to entertain an application on behalf of [ the applicant ] to reconsider the position . ”

ORG went on to review the ORG authority , noting that no reference had been made to the provisions of the ORG or relevant case - law and that the Secretary of ORG accepted that it needed to be revisited in the light of LAW DATE . Having given consideration to various cases , it proceeded to outline a new regime compatible with the requirements of the Convention and the legislative provisions as follows :

“ CARDINAL . The tribunal can at the outset , adjourn the hearing to investigate the possibility of imposing conditions .

NORP The tribunal can make a provisional decision to make a conditional discharge on specified conditions , including submitting to psychiatric supervision , but defer directing a conditional discharge while the authorities responsible for after - care under LAW make the necessary arrangements to enable the patient to meet those conditions .

The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place .

Once the arrangements have been made , the tribunal can direct a conditional discharge without holding a further hearing .

NORP If problems arise with making arrangements to meet the conditions , the tribunal has a number of options , depending on the circumstances ( a ) it can defer for a further period , perhaps with suggestions as to how any problems can be overcome ; ( b ) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered ; ( c ) it can order a conditional discharge without specific conditions , thereby making the patient subject to recall ; ( d ) it can decide that the patient must remain detained in hospital for treatment .

It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements . ”

ORG considered that if despite best endeavours a health authority was unable to provide the necessary services or supervision , the tribunal would have to think again and it would be likely that it would conclude that it was necessary for the patient to remain detained in hospital in order to receive the treatment or care . If the health authority did not make best endeavours it could be subject to judicial review . If psychiatrists who foiled the intention of the tribunal were in breach of a public law duty the patient would also have a remedy under judicial review . If they were not in breach of duty , it was likely to follow that the Convention did not require psychiatrists to administer treatment or supervision in the community when , as a result of professional judgment made in good faith , they were not prepared to undertake this responsibility .

On DATE , ORG dismissed the applicant 's appeal and upheld the judgment of ORG . In giving his judgment , Lord PERSON found a breach of LAW in that the ORG , having made its order , was precluded from reconsidering the case leaving the applicant in limbo for a period longer than was acceptable under the Convention and endorsed the views of ORG on the regime to be followed in future . However , Lord PERSON also concluded that there was no time DATE and DATE in which the applicant was unlawfully detained or held in breach of LAW ) . He found a categorical difference between the circumstances of PERSON ( cited above ) , where the PERSON criteria had not been found to be satisfied and the situation of the applicant , where there had never been a medical consensus or finding by the ORG that the PERSON criteria were not satisfied . The written statement of the chairman of the ORG dated DATE made it clear that continued detention was not considered necessary as long as the conditions were fulfilled and that the removal of the condition for psychiatric supervision would have changed their view as to the possibility of his release :

“ The tribunal considered that the [ applicant ] could be satisfactorily treated and supervised in the community if its conditions were met , as it expected , but the alternative , if these conditions proved impossible to meet , was not discharge , either absolutely or subject only to a condition of recall , but continued detention . The [ applicant ] was never detained when there were no grounds for detaining him . ”

In addition , it considered that the health authorities had done their best to comply with the conditions and had no power to require a psychiatrist to act against his conscientious professional judgment . It further concluded that the violation of LAW did not call for an award of compensation as the violation had been publicly acknowledged and the applicant 's right thereby vindicated , the law had been amended in a way which should prevent similar violations in future and the applicant had not been the victim of unlawful detention which LAW was intended to avoid .