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

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

The applicant had constructed a building on a plot of land which he and his wife jointly owned . On DATE the applicant divorced . Subsequently , his former mother - in - law successfully challenged the applicant ’s title to the land .

On CARDINAL DATE the applicant instituted a civil action before ORG . He claimed that , considering that the building had been constructed in good faith and that the value of that building significantly exceeded the value of the land , the ownership should pass to him and to his former wife as they had been spouses at the relevant time and all the expenditures had been incurred jointly by them .

Several hearings were held in DATE and DATE . On DATE the court admitted in evidence an expert report .

On DATE the court decided to stay the proceedings pending the outcome of the proceedings for the division of marital property between the applicant and his former wife . The applicant appealed . He maintained that the outcome of the proceedings for the division of marital property was not decisive for the outcome of this case . He argued that it was rather to the contrary , as the proprietary rights - if established - could be relevant for the outcome of the proceedings for the division of property . On DATE the court rejected the applicant ’s appeal for procedural reasons . The applicant appealed . On CARDINAL DATE ORG allowed his appeal and quashed the decision to stay the proceedings . That court accepted the applicant ’s argument that the outcome of the proceedings concerning proprietary rights should be relevant for the outcome of the proceedings for the division of marital property and not the other way around .

Several hearings were held in DATE and DATE and in DATE , DATE and DATE . CARDINAL expert opinions were admitted , which were followed by an update of these opinions . By a judgment of DATE ORG dismissed the applicant ’s action . The court found that although the applicant ’s expenditure to build his house had been considerable it had not significantly exceeded the value of the land . The applicant appealed . On DATE ORG quashed the first instance judgment and remitted the case for reconsideration .

ORG held several hearings in DATE and in DATE . Another expert ’s opinion and an update of a previously - given opinion were submitted . On DATE ORG delivered a partial judgment by which it ruled that the ownership of a fraction of the land should pass to the applicant and to his former wife . The applicant appealed to ORG .

ORG held CARDINAL hearings in DATE and subsequently stayed the proceedings at issue as other proceedings were pending which were of relevance for the outcome of the present case . On DATE ORG resumed the proceedings . On DATE ORG quashed this judgment and the case was remitted to the first instance court .

The Grodzisk ORG held several hearings in DATE . It ordered an update of an opinion . On DATE the proceedings were stayed until the question of the division of the inheritance after the applicant ’s former mother - in - law had been settled . The proceedings were resumed on DATE . Several hearings were held in DATE , DATE and DATE . A supplementary expert opinion was ordered . On DATE the Grodzisk ORG delivered a judgment dismissing the applicant ’s action . The applicant appealed .

On DATE ORG delivered its judgment dismissing the appeal .

On DATE NORP ORG adopted a new law “ on complaint about a breach of a right to have one ’s case heard within a reasonable time ” . The act entered into force on DATE .

Section CARDINAL of the LAW provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached . The court shall take into consideration the following criteria : the conduct of the court before which the case is pending ; the character of the case and the complexity of the legal and factual issues involved therein ; what was at stake for the complainant , and the conduct of the parties . The length complaint must be lodged when the proceedings are still pending .

Pursuant to LAW , if the court finds that the length complaint is wellfounded , it shall give a ruling to this effect . If the complainant so requests , the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings . The court may also , award an appropriate amount of money to the complainant , in the amount not exceeding PLN MONEY .

Under LAW , within DATE after the entry into force of the LAW , that is , from DATE , anyone who had lodged an application with ORG in due time complaining of a violation of the “ reasonable - time ” requirement contained in LAW was entitled to lodge a length complaint provided for by LAW , if the application to the ORG had been lodged when the proceedings were still pending and if it had not yet been declared admissible by ORG .


Preliminary objection dismissed (six-month period);Violation of Art. 6-1 and 6-3-d;Not necessary to examine Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant 's wife filed an action for divorce , dated DATE , with ORG . She submitted that the parties had married in DATE , that the marriage had not been a happy CARDINAL from the beginning , that the applicant was unworthy of any trust , that he had been battering her and that he was generally unable to fulfil the role of husband and father . She claimed maintenance for their daughter X. and custody of the child .

On DATE she requested ORG to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter X. The minutes of her deposition read :

“ We have been married since DATE . In DATE our daughter X. was born .

In DATE , after a conversation I had with the child , I started to think that my husband could have been , for some time , sexually abusing her , of which I hereby inform the prosecuting authorities . I would like to stress that after I had acquired this information I moved out of our apartment to my sister 's place ... It will be for DATE only and afterwards I will move in with my parents in W. It seems to me to be a good decision as the child should be , at least for some time , separated from her father . At the same time , I realise that it would be nearly impossible to conduct any interview with my child , regard being had to her age ... ”

NORP In an undated subsequent opinion , apparently prepared on the basis of a psychological examination of the child carried out on DATE in the presence of her mother and maternal grandmother , ORG , a psychologist , described the child 's stage of development and concluded :

“ On DATE an attempt was made to obtain from X. an account of the events concerned in the case . This attempt failed insofar as it was aimed at obtaining a verbal statement . It can , however , serve as a basis for a description of the child 's psychological situation . ( ... ) I think that any further attempt to interview X. would not make any sense . Moreover , it would be detrimental to her development . A child of this age is unable to make any confabulations , without there being a concrete factual basis for what she says . ( ... ) Information obtained from third parties and observation of the child seem to suggest that it is likely that she has been a victim of sexual abuse :

- inflammation of sexual organs ( medical records ) ;

- secrets shared with her father rewarded by sweets or toys in order to remain unknown to other persons and to the mother ; ...

- reluctance to have sexual organs washed ;

- pains in the legs , bruises on the legs ;

- bizarre play and behaviour .

The fact that so many such manifestations occur makes it possible to consider that the charges may be truthful .

In my view the child 's father should be interviewed . It is also recommended that the child be examined once again , not before DATE . ”

Later on , the child was interviewed by ORG on DATE . Her mother was not present during the examination . X. was also requested to make drawings representing her family and to play with dolls representing herself , her father and her mother .

In an opinion dated DATE , ORG explained various techniques she had used during this meeting , suited to the child 's age . She stated that during the second meeting the child had evoked events which seemed to suggest that she had been sexually abused by her father ; that , given her age , there was no possibility that she was talking about things which in reality had not happened ; that the drawings she had made constituted a spontaneous form of communication which could not , given her age , have been suggested to her by other persons ; that these drawings suggested that she had been sexually abused by her father , possibly also by anal intercourse as she had clearly referred to anal pain in connection with “ playing ” with her father .

NORP The psychologist stressed that under no circumstances should the issue be raised with the child , who should be excluded entirely from the proceedings in order to safeguard her well - being and development . She noted that the child was more relaxed and confident than in DATE , when she had realised that the “ secrets ” her father shared with her had been regarded as evil by other members of the family .

NORP On DATE a bill of indictment was laid against the applicant in ORG . He was charged with having sexually abused his daughter from DATE until DATE .

The prosecution referred to interviews conducted during the investigations with the applicant , his parents , his wife , her parents and her sister and her aunt PERSON

Further , reference was made to : X. 's medical records , police information on the applicant , the opinions prepared by ORG ( referred to above ) , a psychiatric opinion on the applicant ( prepared by GPE and M.G .- L. ) , drawings made by ORG , an expert opinion dated DATE , prepared by ORG , a sexologist , on the applicant 's sexual profile , another report about the applicant 's mental health prepared by psychiatrists PERSON and PERSON , dated DATE , and an opinion of a psychologist on the applicant 's personality , dated DATE and prepared by E.W.

On an unspecified later date the court instituted the proceedings .

On DATE an expert opinion , prepared by PERSON , a specialist in surgery with considerable experience of working with battered and abused children , was submitted to the court . He prepared it on the basis of his analysis of X. 's medical records , but without interviewing either X. or other persons . He concluded that the symptoms which X. had manifested could have been caused by sexual abuse , but that such symptoms could also have been caused by other physiological factors . He was of the view that , in any event , no evidence pointed with certainty to sexual abuse by her father .

By a decision of DATE the court called further expert witnesses : PERSON , a psychologist , and another psychologist working for a Diagnostic Centre in GPE .

In its decision of CARDINAL DATE the court observed that doubts had arisen , in the light of PERSON 's opinion , as to whether an expert opinion of a sexologist on the applicant 's personality and which had already been prepared for the purposes of the investigation had been sufficient and clear . The court noted PERSON 's professional experience in an non - governmental organisation helping children , victims of cruelty and sexual abuse . It therefore ordered that another expert opinion be submitted on whether the applicant was suffering from any sexual disturbances , and if this was the case , how they might relate to the charges against him . It appointed a sexologist , PERSON , as an expert .

On DATE A.B. examined the applicant and on an unspecified later date submitted his opinion to the court .

On DATE another expert opinion was submitted to the court in which the procedure for examination as well as the adequacy and soundness of the method used by the psychologist ORG were assessed . Its conclusion was that there were no grounds for doubting the thoroughness and soundness of the opinion .

On DATE ORG convicted the applicant of having sexually abused X. and sentenced him to DATE imprisonment .

The court first recalled the circumstances of the applicant 's marriage and the difficulties that had arisen between the spouses . It further established that the applicant 's wife , having considered their situation and having discussed the issue with her sister PERSON , decided , on DATE , to petition for divorce . On DATE she had sought legal advice and agreed with the lawyer that a divorce petition would be prepared . In the evening she had surprised the applicant caressing X. in a manner which shocked her as it seemed that he had been touching the child 's sexual organs . She had not reacted immediately , but left the apartment with her daughter on DATE and moved in with her sister . On DATE she had talked with X. about her father 's conduct and her suspicions of sexual abuse had been confirmed . On DATE she had requested the prosecutor to institute an investigation and had been interviewed on DATE .

On DATE the psychologist PERSON had met with X. , but an attempt to obtain verbal confirmation of the charges of sexual abuse failed . The expert had only established that the convergence of various manifestations in the child 's behaviour was sufficient to suppose that sexual abuse could have occurred .

As shown by the expert opinion of CARDINAL DATE , a further attempt by the psychologist to interview the child had been successful . The psychological tests had allowed the specialist to conclude that the girl 's genitals had been touched and manipulated by her father and that this had happened on numerous occasions .

The court further referred to an expert opinion of PERSON , who had concluded that the applicant had a normal heterosexual drive and that he had a low self - esteem . The latter factor , in the expert 's view , could have explained why he might have sought sexual experience with X. instead of normal adult sex .

The court recalled that it had decided not to interview X. , having regard to the unequivocal opinion of the psychologist that it would not serve any useful purpose and would be harmful to her , and given that other evidence at its disposal was sufficient to give a ruling in the case .

The court considered that the expert opinions of ORG were of decisive importance for its judgment . In particular , her second opinion of DATE in which she had categorically stated that X. had been sexually abused sufficed to conclude that the applicant was guilty . In that connection , the court recalled that already PERSON 's first contact with ORG in DATE had given cause to believe that this had indeed been the case , even though the child had not wanted to talk at that time . Further , the examination carried out in DATE had confirmed these suspicions , the more so as the child at that time had been more relaxed and confident .

NORP The court also referred to an expert opinion in which the methods used by ORG were assessed by CARDINAL further specialists as methodologically sound and appropriate to the situation and to the child 's age . They had not found any grounds on which to challenge its validity .

The court further observed that in DATE the girl had been treated for problems of foecal incontinence . In DATE a medical test had been carried out which showed that the muscular tension of her sphincter was too low for a child of her age . The court had heard the expert witness PERSON , who was of the view that damage to the child 's sphincter might have been caused by anal penetration . The court observed that his medical findings corresponded to the conclusions made by ORG in her opinion of DATE that the child could have been the victim of anal penetration .

The court referred to the opinion and testimony of PERSON and was of the view that this opinion was merely of a theoretical character because he had not examined the child . Hence , his conclusions in which he had disagreed with the conclusions of certain other experts previously prepared in the case were not of decisive importance .

The court further noted that the members of the applicant 's wife 's family had been questioned in the proceedings , but that their testimony had been very emotional . As they had been interpreting all of the information about the applicant as pointing to his guilt , the court did not consider their testimony to be wholly credible .

The court concluded that in the light of the evidence seen as a whole , the applicant 's guilt was not open to doubt .

The applicant appealed , arguing that the finding of his guilt had primarily been based on the opinions prepared by ORG Having regard to these opinions , the court had refused 's innocence and , on the whole , had failed to take evidence which would have allowed the facts of the case to be established in a full and convincing manner .

It was further submitted that the applicant had been effectively deprived of his defence rights . The authorities had decided , in the child 's interest , not to interview X. As a result , its role had been limited to the assessment of the opinions submitted by ORG and of her oral testimony . This had led to a situation in which the accused had been convicted on the basis of ORG 's reports . Neither the prosecutor nor the court had ever seen the child . The court could not , therefore , form an opinion on the veracity of the charges .

On DATE the ORG dismissed the appeal and upheld the impugned judgment . It first observed that the applicant 's submission that the lower instance had failed to hear further evidence was incorrect .

It disagreed with the applicant 's submission that the refusal to interview X. had deprived him of his defence rights . The applicant , who had been represented by a lawyer , had made full use of his defence rights and had put to the court numerous arguments in his defence .

The appellate court recalled that the first - instance court had concluded that in the light of the evidence seen as a whole , the applicant 's guilt was not open to doubt , even in the absence of any oral testimony given by X. This conclusion of the first - instance court had met with the approval of the appellate court , despite the fact that it had been motivated in a rather succinct manner . Neither the prosecution nor the applicant had made a formal request to have X. interviewed by the court , and the attempt to obtain verbal testimony from her during the investigations had failed . Hence , such testimony should be regarded as “ testimony impossible to obtain ” within the meaning of LAW .

It was further noted that the validity and soundness of the opinions prepared by ORG were not open to doubt . The first - instance court had taken specific steps in order to have their probative value assessed by other experts . Further , ORG 's conclusions had also been assessed by the firstinstance court in the light of other evidence at its disposal . The appellate court referred to the evidence given by DATE , which corroborated the conclusions reached by ORG The submissions made by DATE had corresponded to other available evidence . The first - instance court had also taken into consideration the conclusions made by the experts who had examined the applicant .

The appellate court concluded that the assessment of the evidence had been thorough and logical and that there were no grounds on which to find that the firstinstance court had reached unreasonable or arbitrary conclusions .

On DATE ORG dismissed the applicant 's cassation appeal as being manifestly illfounded .

On DATE this judgment was served on the applicant .

At the relevant time the rules governing the assessment and admissibility of evidence were contained in LAW of DATE ( “ the DATE Code ” ) . It was repealed and replaced by LAW ( commonly referred to as the “ LAW ” ) , which entered into force on DATE .

Article CARDINAL § CARDINAL of the DATE Code provided :

“ Judges shall rule on the basis of their conviction derived from evidence obtained and founded on their free assessment of evidence [ and they shall ] draw on knowledge and life experience . ”

Under LAW DATE Code , the trial court should dismiss a motion for evidence to be taken , if the taking of such evidence was inadmissible in law ; if the fact to be proved was irrelevant to the assessment of the case , and if the evidence concerned was impossible to obtain .

Article CARDINAL of the Code provided that the appellate court could not , in principle , take evidence . However , it could do so exceptionally at a hearing if it was of the view that this would expedite the proceedings . If the appellate court found that the evidence examined by the firstinstance court was insufficient to give a judgment , it could also quash the judgment under appeal and remit the case to the trial court for reconsideration .


The applicant is a national of GPE , born in DATE in GPE . He is represented before the ORG by ORG , GPE .

The facts of the case as they have been submitted by the applicant and as deduced from the case file may be summarised as follows :

On DATE the applicant arrived in GPE on a flight from GPE via GPE and claimed political asylum on DATE . When interviewed the applicant stated that he had been forced to flee GPE on account of his involvement in GPE d’Ivoire ( hereinafter “ ORG ” ) , a student movement . He alleged that he had taken part in a demonstration on DATE . Following the demonstration , he and his friends were taken to a police station where they were beaten and forced to sign a statement that they would abandon their involvement in GPE . On DATE he was sent a summons by the police . According to the applicant he feared that he would be imprisoned and decided to flee the country because he believed his life was in danger . He managed to obtain a passport through the help of a friend in the police force .

By letter dated DATE the Secretary of ORG notified the applicant that his asylum request had been refused on the grounds that he had not furnished any independent corroboration of either his involvement in ORG or of his claim that he was wanted by the authorities . On DATE the Special Adjudicator dismissed his appeal against the decision of the Secretary of ORG . Although satisfied that the applicant had been a student member of ORG , ORG did not consider the evidence he adduced in support of his fear of persecution to be reliable and doubted the credibility of his asylum claim . On DATE ORG refused the applicant ’s application for leave to appeal against the Secretary of ORG ’s decision .

By letter dated DATE the applicant renewed his application to the Secretary of ORG for political asylum . He relied on a number of letters and statements of third parties which in his view confirmed that he had a well - founded risk of persecution if removed to GPE . By letter dated DATE the Secretary of ORG informed the applicant that he was not prepared to treat the new representations as a fresh application for asylum . He drew the applicant ’s attention to the fact that the Government ban on ORG had been lifted on DATE and for that reason the materials which he had submitted in support of his renewed application no longer reflected the current situation in GPE . No appeal lay against this decision of the Secretary of ORG . The Secretary of ORG confirmed this view on DATE in a reply to a further request by the applicant for asylum .

The applicant sought leave to apply for judicial review of the Secretary of ORG ’s decision . He maintained that the Secretary of ORG had wrongly disregarded evidence which , he claimed , confirmed the dangers to which ORG members were still exposed despite the Government ’s apparent conciliatory stance vis - à - vis the organisation . He further contended that he should have been permitted to appeal to an independent body against the decision of the Secretary of ORG and have his request examined as a fresh application for asylum .

On DATE ORG , following a hearing at which the applicant was represented by a lawyer , refused the applicant ’s application for leave to apply for judicial review .

The applicant ’s wife , also a national of GPE , joined him in GPE on DATE and a daughter was born to them on DATE . The applicant ’s wife and daughter are also subject to removal directions .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria

The applicants , Mr PERSON , PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively and live in PERSON . They were represented before the ORG by Mr PERSON from “ Lawyers for Human Rights ” , a non - governmental organisation based in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP In DATE PERSON , the mother of CARDINAL of the applicants , bought part of a house in PERSON , together with the land surrounding it ( QUANTITY ) . On DATE the NORP ORG nationalised most of the land , leaving QUANTITY of land adjacent to the house for the family ’s use , which has been used accordingly ever since . The applicants eventually became coowners of the house , which is currently registered in their name .

On DATE the Government decided to create a dendrology park named “ ORG ” and allocated QUANTITY of land in GPE for that purpose ( “ the DATE decision ” ) . The land included , inter alia , CARDINAL private houses standing on it . According to the decision , the inhabitants of those houses were to be allocated alternative accommodation and the houses were to be demolished . The developer of the park was also obliged to pay the families living in those QUANTITY houses compensation for any orchards and for the work carried out on the plots of land to be expropriated .

By a decision of CARDINAL DATE the Government decided that the ORG park was to become a separate institution managed by the PERSON local authority . It also ordered the local authorities in PERSON to offer the inhabitants of the houses concerned by the earlier decision alternative accommodation and to demolish their houses , situated on the reserved territory , in DATE . The ORG also decided to prohibit any private construction works within the boundaries of the ORG park and to ensure the strict enforcement of the protective park regulations . However , the applicants and several other families were not offered alternative accommodation and have remained in their houses .

On DATE the PERSON local authority decided to allocate to ORG of land , including the land on which the applicants’ house was situated . It also decided that the people living in the houses to be demolished , which included the applicants , were to be offered alternative accommodation .

On DATE the ORG was registered as the owner of the territory of the ORG park , which included the land under and adjacent to the applicants’ house . On DATE the PERSON municipality was registered as the owner of that land . According to the local cadastral office , the land adjacent to the applicants’ house is registered in the ORG name . According to an excerpt from ORG ( cadastru ) , provided to the applicants on DATE , the house in question is situated on QUANTITY of land and is owned by the applicants .

On DATE the applicants asked the PERSON municipality to transfer the land adjacent to their house into their ownership free of charge ( as part of the process of privatisation ) . On DATE the municipality rejected the ORG request .

On an unspecified date the applicants lodged a court action in which they claimed the right to become the owners of the land adjacent to their house , in accordance with LAW ( see paragraph CARDINAL below ) . They noted , inter alia , that no specific decision had been taken to expropriate the land which their family had owned since DATE and that this was an ongoing problem which the authorities had allowed considerable delay in examining , causing the applicants non - pecuniary damage . The applicant asked the court to order the PERSON municipality to register the land adjacent to their house in their name and to award them compensation for the non - pecuniary damage incurred .

In its written reply submitted to the court , the ORG park administration noted , inter alia , that the applicants did not have access to their house and that to reach it they had to trespass on park property .

On DATE ORG found in the applicants’ favour . It found , inter alia , that the applicants’ use and possession of the disputed land had been undisturbed since DATE . ORG also found that the applicants had become the owners of the disputed land before the creation of the ORG park and that no decision for the withdrawal of the applicants’ land from their possession had been adopted .

On DATE ORG quashed the lower court ’s judgment and adopted a new one , rejecting the ORG claims as unfounded . The court found that the applicants’ house had been registered as their property by ORG . However , the land on which the applicants’ house was situated had been set aside for the creation of a natural reserve since DATE . Under the legislation concerning natural reserves ( including LAW , see paragraph CARDINAL below ) such land was considered to be public property which could not be privatised , rented out or disposed of in any other way except for in the purposes of preserving and managing the natural reserve . Under the DATE decision the inhabitants of all the houses within the perimeter of the park , including those in the house owned by the applicants , had to be removed and offered alternative accommodation and their houses demolished . Therefore , their request to obtain ownership of the land adjacent to their house was contrary to legal requirements .

On DATE ORG rejected the ORG request for the reopening of the proceedings , which had been grounded on the discovery that some of the applicants’ neighbours who were in a similar situation to that of the applicants had obtained private ownership of the land adjacent to their houses . The court found , inter alia , that the document submitted by the applicants in support of their request had not been numbered or dated and did not therefore constitute a valid document .

On DATE the PERSON municipality informed the applicants that at the time of writing that letter the boundaries of the PERSON park had not yet been determined and that no title to the land of that park had been issued . The applicants were also informed that the municipality ’s competent department was preparing proposals to re - examine the boundaries of the ORG park , including the possibility of excluding the plot of land adjacent to the applicants’ house from the reserved land and the creation of an access road to their house .

The relevant part of LAW ( in force since DATE ) reads as follows :

“ Article CARDINAL . Allocation of land within the city limits for housing , land annexes and gardens .

Local public administration authorities shall allocate plots of land to citizens without payment , issuing them ownership certificates which :

- transfer into the property of citizens plots of land occupied by houses , annexes and gardens which have been allocated to [ those citizens ] in accordance with the law ; ...

Article CARDINAL . Land reserved for protecting nature .

Land reserved for protecting nature includes ... , dendrology parks , ...

Land reserved for protecting nature is the exclusive property of the ORG .

Any activity which is incompatible with the special destination of land reserved for protecting nature shall be prohibited . Such land is withdrawn from use , if such use does not correspond to the special protection regime established for such land . ”

The relevant part of LAW on the ORG - protected natural areas fund ( no . DATE , in force since DATE ) reads as follows :

“ Article CARDINAL .

Land which is part of entities or complexes within protected natural areas shall be reserved for protecting nature , shall be public property and may not be privatised or rented ; the protection and management of such land shall be governed by the applicable legislation . ”


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

The applicants , Mr Rauno Koivusaari , and PERSON PERSON , are NORP nationals who were born in DATE and DATE and live in GPE and PERSON respectively . They were represented before the Court by PERSON Jan Aminoff , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

In an DATE storm in DATE , the Vrouw Maria , a NORP merchant ship , was wrecked on the seabed in NORP waters in the south - western archipelago in the vicinity of ORG and GPE islands . The ship , which was on its way from GPE to GPE , is believed to have been carrying valuable works of art destined for GPE PERSON the Great of GPE .

On DATE , the first applicant , an experienced diver , located the vessel at a depth of QUANTITY and subsequently informed ORG ( merimuseo , sjöhistoriska museet ) of the find as required under LAW ( muinaismuistolaki , lagen om fornminnen ; Act no . GPE ) . The first applicant had a total of CARDINAL divers in his team .

On DATE artefacts were brought up from the wreck by the applicants . According to the applicants , they were brought up at the request , alternatively with the permission , of Ms F. , a representative of ORG ( museovirasto , museiverket ; a subordinate body of ORG ; opetusministeriö , undervisningsministeriet ) .

Under LAW , as in force at the time , a wreck DATE could not be removed or touched without permission from ORG and/or ORG . The same was true of items found in , or originating from , such a wreck . Subsequently the ORG and/or the ORG consistently refused the applicants permission to deal with the wreck and the associated items .

In or around DATE the applicants informed the local police of the find and , when no owner appeared , a claim to title was lodged with the police in or around DATE , in accordance with the procedure laid down in LAW ( löytötavaralaki , hittegodslagen ; Act no . CARDINAL/CARDINAL ) .

On DATE an amendment to section CARDINAL of LAW , vesting the ownership of a wreck in the ORG , entered into force ( see below ) .

On DATE the applicants instituted proceedings in ORG ( merioikeus , sjörätten ; a department of ORG ( käräjäoikeus , tingsrätten ) composed of CARDINAL professional judges and CARDINAL sea captains ) , requesting the court to confirm that on DATE by bringing up CARDINAL chalk pipes , a clay bottle , a seal and a zinc ingot they had engaged in salvage operations for which they were entitled to remuneration under LAW of LAW ( merilaki , sjölagen ; Act no . CARDINAL/CARDINAL ) and that they had a right , either under a contract or as first salvors , to bring up all objects for which they were entitled to salvage remuneration . The court was also asked to confirm that the applicants were to be considered owners of the wreck and that they had the right also on that ground to engage in salvage operations . Were the court to consider the ORG owner of the wreck , the applicants requested it to confirm that they , either under a contract or as first salvor , had the right to engage in salvage of the wreck and to receive remuneration therefor . Lastly , they claimed legal costs .

Under LAW , LAW , of LAW anyone who salvages or assists in salvaging a foundered vessel , or goods in such a vessel , is entitled to salvage remuneration . As the applicants had been the first at the scene , they contended that they had been entitled to engage in salvage . Under LAW a right to salvage remuneration arose even if the wreck was no longer in danger . In any event , the presumably valuable cargo could be considered in danger as divers had access to it through the wreck 's open cargo hold . This was shown by the fact that on DATE ORG had asked ORG and ORG to monitor the wreck .

The applicants conceded that ownership as regards objects found in the wreck fell to the ORG under LAW as in force at the time when the case was heard before the courts . However , they considered themselves owners of the wreck under former section CARDINAL as in force at the time of the find . The old provision did not state anything about the ownership of a vessel DATE but the decision was to be made in accordance with the general principles . The subsequent entry into force on DATE of the amendment could not remove the applicants ' right of ownership , although the LAW was given retroactive effect if the wreck did not have an owner . As the applicants had become owners in DATE as a result of appropriation , the subsequent amendment could not be given retroactive effect in the present case .

The ORG contested the action , arguing that objects had been brought up under section CARDINAL of LAW with the permission of ORG for research purposes . PERSON was a relic of antiquity within the meaning of LAW . The exclusive right to make decisions concerning the wreck and objects therein , their examination and possible removal was vested in the ORG . Any decision to bring up objects did not mean engaging in salvage but rather the conduct of research under LAW . The remuneration of such work was to be decided pursuant to a contract , or in the absence of such , pursuant to LAW ( kauppakaari , handelsbalken ) .

The ORG argued that there was no salvage contract . In any event , such a contract was not binding on the ORG since PERSON , a researcher , had not been competent to enter into such a contract , a fact of which the applicants had been aware . If the court were to find that a salvage contract had been established , it must be considered to have concerned only the bringing up of objects in DATE . The ORG also argued that , as there had been no dangerous situation requiring immediate salvage action , the applicants could not be considered first salvors . Accordingly , they had no right to salvage remuneration .

The ORG argued that ORG had the right to forbid possible further action under LAW , LAW , of LAW . It was likewise free to choose its own salvor for the remaining work .

In the ORG 's view , the amendment of LAW had only been of a clarifying nature . The intention of the LAW from the outset had been that the ORG would receive ownership of a wreck based on protection . This was evidenced from the duty to inform ORG of a find . Under LAW a third party did not have the right to interfere , touch or otherwise repossess an immovable relic of antiquity . Therefore , the applicants could not have gained ownership of the wreck on the basis of appropriation . As PERSON had been abandoned by its original owner , she had immediately become protected following her discovery in DATE without any separate decision or action .

By an interim judgment of DATE ORG ( composed of CARDINAL single professional judge ) held that the provisions of the Maritime Code on salvage were applicable to the operations aimed at salvaging the wreck and the property originating from it .

During the course of the present proceedings , and as noted above , ORG amended section CARDINAL of LAW so as to vest ownership of vessels wrecked DATE previously in the ORG . According to the applicants , this enabled the ORG to assert as owner that it objected to salvage , which it had not been able to do before , thus depriving the applicants of their position as first salvors .

In a final judgment of DATE ORG ( in its full composition ) , having held an oral hearing and heard CARDINAL witnesses , decided that LAW , as amended , was to be considered lex specialis . As the wreck and objects therein were protected , any interference required the permission of ORG .

Under section CARDINAL(CARDINAL ) of LAW was the owner of any object found in or obviously originating from the wreck . Under the amended section CARDINAL ) also the wreck belonged to the ORG . As PERSON had been shipwrecked in DATE , it was clear that she had been abandoned by her owner . Because she was over DATE she had become protected by law before DATE when the amendment to LAW took effect . Appropriation by the applicants , which presupposed , inter alia , the gain of control over an object , had not been possible due to the protection by law .

According to the court , the Maritime Code applied only to ships in navigation and in danger . In respect of a foundered ship which fell within the purview of LAW ( an historic vessel without an apparent owner ) , the LAW worked to exclude the provisions on salvage ; hence , the applicants were not in the position of first salvors . The court further held that , even if the applicants were considered as first salvors , the ORG had in any case the right to forbid any salvage operation and the salvage remuneration could be refused on that ground .

The judgment was not unanimous as CARDINAL of the professional judges expressed the view that the applicants had the right of first salvors and a right to remuneration for the objects brought up by them . The claim for remuneration for further actions was premature as it was not known whether anything else would be brought up . The judge did not find the existence of a salvage contract established .

The applicants appealed , repeating their claims as presented before ORG . In their counter appeal , the ORG requested the court to find that LAW superseded the provisions on salvage in LAW as lex specialis and lex posterior and because of the hierarchical order of these laws and that the action should be dismissed on the ground that ORG had lacked jurisdiction to examine the case .

On DATE ORG ( hovioikeus , hovrätten ) , having held an oral hearing in which it received testimony from CARDINAL witnesses , rejected the appeals save that it discharged the applicants from their obligation to pay the ORG 's legal costs .

The court found that both LAW and LAW were lex specialis . There were no grounds for considering that the former superseded the latter . Neither did the court uphold the ORG 's contention that there were CARDINAL different groups of flotsam , one to be examined under LAW and another under LAW . Nor did it uphold the ORG 's argument that LAW , article CARDINAL , of the Maritime Code applied only to wrecks in danger . Finding that an unendangered wreck could also be the object of salvage , it confirmed that PERSON was shipwrecked within the meaning of LAW of LAW . The court also noted that LAW did not include a provision forbidding the application of LAW provisions on salvage to flotsam within the meaning of LAW . In sum , both Acts were applicable to the present case .

As to the applicants ' claim for ownership based on appropriation , the court noted that the wreck was placed under protection under LAW , which meant that all types of interference were forbidden without the permission of ORG . The provisions on protection worked to prevent the finder of a wreck from gaining de facto dominion over it . Therefore appropriation of an abandoned object such as the CARDINAL in issue was not possible and the applicant 's claim for ownership could not be upheld . Under section CARDINAL ) the ORG was the owner of the wreck .

As to the applicants ' contention that the parties had entered into a salvage contract , the court held that the existence of such an agreement had not been evidenced . It noted the following . On the basis of the witness statements of PERSON and PERSON the former had , in any event , not been competent to enter into such an agreement with binding effect on the ORG . On the basis of PERSON testimony it was equally clear that the personnel of ORG had not been competent to agree on remuneration . PERSON also gave evidence to the effect that she had plainly given permission to bring up objects for research purposes in order to identify the wreck and without having the intention of engaging in a salvage contract . While noting that ORG had paid compensation to CARDINAL of the applicants for operations carried out during a diving expedition , the compensation paid could not be equated to salvage remuneration . The court found that the sums already paid did not support the conclusion that a salvage contract had been established between the parties . As to a document relied on in evidence and entitled “ the wreck of the Vrouw Maria ” , its drafter , PERSON , explained that she had made an estimate of the costs for examining the wreck . When drawing up the document there had been no discussion about bringing up the wreck . The court also noted a written statement by PERSON according to which there had been discussion within ORG about the possible bringing up of objects . However , none of these documents showed that the representatives of ORG had intended to engage in a salvage agreement with the applicants .

As to whether the ORG as owner had the right under LAW , article CARDINAL(CARDINAL ) , of LAW to forbid the applicants from engaging in salvage , the court noted that the first salvor may engage in salvage contrary to the owner 's will when there is a concrete danger which necessarily requires engaging in salvage . In the present case , there was no such danger . The wreck and its cargo had lain at the bottom of the sea for DATE . The wreck and at least part of the cargo had been found in good condition and it could be assumed that they would continue to remain so for DATE . The wreck was situated at a depth of QUANTITY and at a difficult location navigationally . It caused no danger to navigation . It was possible that divers might enter the wreck and remove items . On the other hand , the wreck was under radar and camera surveillance by the authorities and therefore it was not probable that any stay of a long duration at the location where the ship went down would be possible without the intervention of the authorities . The ship went down in territorial waters and therefore it was unlikely that the wreck could be damaged by anchoring . Neither did archaeological concern require the immediate salvage of the wreck or its cargo . On these grounds ORG considered that the ORG had the right to prohibit salvage .

The court did not comment on the amendment of LAW .

The applicants appealed , repeating their claims as presented before ORG and ORG . However , in their request for leave to appeal , the applicants expressly abandoned their ownership claim . They did so because they considered that the intervening amendment to LAW had made it impossible for them to succeed in that claim as ORG ( korkein oikeus , högsta domstolen ) was bound to give effect to the legislation and therefore to reject their ownership claim .

On DATE ORG refused leave to appeal .

LAW ( Suomen perustuslaki , ORG grundlag ; Act no . CARDINAL/CARDINAL ) provides that the property of everyone is protected . Provisions on the expropriation of property , for public needs and in consideration of full compensation , are laid down by an Act .

According to LAW

" [ i]f , in a matter being tried by a court of law , the application of an Act would be in evident conflict with the LAW , the court of law shall give primacy to the provision in LAW . "

ORG found , inter alia , in the case ORG CARDINAL:CARDINAL concerning property rights that a provision of the LAW on the Protection of Buildings ( rakennussuojelulaki , byggnadsskyddslagen ) was in conflict with the LAW and that primacy was to be given to the latter .

Section CARDINAL of LAW no . CARDINAL ) provides that immovable relics of antiquity are protected as traces of the previous settlement and history of GPE . Without permission given under this Act such relics are not to be the object of excavation , covering , modification , damage , removal or other unauthorised interference .

Section CARDINAL provides that ORG has the right , inter alia , to examine and restore an immovable relic of antiquity , or it can entrust this task to someone else .

Sections CARDINAL and CARDINAL provide that the find of certain specified movable objects , which can be presumed to be DATE , must be reported to ORG , which is entitled to redeem them . A movable antiquity found on an immovable CARDINAL belongs to the ORG without redemption provided that it is connected with the immovable antiquity . ORG may however decide to give a finder 's reward if it considers this justified .

At the time when PERSON was found , section CARDINAL of LAW no.CARDINAL/CARDINAL ) provided :

“ A wreck of a ship or other craft , or part of such a wreck , discovered in the sea or inland waters , which can be presumed to be DATE , is protected . The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof .

Items found in a wreck referred to in subsection CARDINAL or which apparently originate from such a wreck belong to the ORG without redemption , and otherwise the provisions concerning movable antiquities shall apply where relevant .

Anyone who finds a wreck or an item referred to in this section shall immediately inform ORG . ”

On DATE , that is during the course of the proceedings in the present case , ORG amended section CARDINAL of LAW so as expressly to vest ownership of vessels wrecked DATE previously in the ORG . The amended LAW no . CARDINAL/CARDINAL ) reads :

“ A wreck of a ship or other craft , or part of such a wreck , discovered in the sea or inland waters , which can be presumed to have gone down DATE , is protected . The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof .

If , on the basis of external conditions , it is obvious that the owner has abandoned a wreck referred to in subsection CARDINAL or a part thereof , it shall belong to the ORG .

Anyone who finds a wreck or an item referred to in this section must inform ORG without undue delay .

The amendment ( Act no . CARDINAL/CARDINAL ) took effect on DATE . It was , however , given retroactive effect . The amendment was applicable to wrecks and parts thereof which had already become protected as historical monuments before the entry into force of the amendment if , based on external conditions , it was obvious that they had been abandoned by their owner .

The preparatory works of the amendment of LAW ( see the ORG bill HE MONEY ) noted the need to clarify the question of ownership of a protected wreck or part thereof . It stated , inter alia , that :

“ Since the enactment of LAW , technological developments have facilitated locating and exploring old shipwrecks under water . The number of wrecks located by means of side scan sonar in territorial waters of GPE will probably grow in DATE . ....

PERSON , which foundered in DATE , was discovered in DATE in LOC . It has been stated that the title to the wreck itself is not unambiguous in the light of current law , because the LAW does not stipulate directly that a wreck regarded as a relic of antiquity is owned by the ORG . No case - law exists on the application of LAW to this question , and it is not covered in legal literature either .

.... NORP and NORP legislation contains an unambiguous provision stipulating that the title to a shipwreck regarded as a relic of antiquity is vested in the ORG . The preparatory works of LAW in force state , however , that relics of antiquity , because of their old age , can no longer be regarded as the property of private individuals . Relics of antiquity are considered to have primarily antiquity value and/or historical value but no longer use value . Also the raising of a sunken historical wreck constitutes primarily archaeological research . For these reasons it can be considered that the legislator originally intended to stipulate that historical shipwrecks are owned by the ORG , although this intent was not expressed openly . ”

LAW , article CARDINAL , of LAW no . CARDINAL/CARDINAL ) , as in force at the material time , provided that anyone who salvaged or assisted in salvaging a foundered vessel or a vessel in danger , or goods in such a vessel , or anything having pertained to such a vessel or goods , was entitled to salvage remuneration . Anyone who had taken part in a salvage operation notwithstanding the express and justified prohibition of the master of the vessel had no right to salvage remuneration .


Violation of Art. 3;Not necessary to examine Art. 2;Preliminary objection rejected (non-exhaustion);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson

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

The facts as presented by the applicants

On DATE the CARDINAL applicants , along with CARDINAL other prisoners , were taken from their cells to an area of FAC in order to be brought before ORG for trial .

While the applicants together with the other prisoners were waiting to be collected , prison officials tried to search them including their shoes . They objected to the search , stating that it was an arbitrary act and that they would refuse to be taken to court if the prison administration insisted on carrying out the search .

In view of the applicants’ resistance , the prison administration enlisted the help of gendarmes who were waiting outside the prison to accompany the prisoners to court .

CARDINAL gendarmes and CARDINAL prison warders and prison administrators subsequently attacked the applicants and other prisoners with truncheons and wooden planks .

As a consequence , CARDINAL of the ribs of the applicant , PERSON , was broken and the liver of the applicant , PERSON , was damaged . The other applicants sustained injuries to their bodies .

The facts as presented by the Government

The Government dispute the applicants’ version of the incident . With reference to the investigation carried out by the public prosecutor ( see paragraphs CARDINAL et seq . below ) , they maintain that more that CARDINAL prisoners refused to be searched before being taken to court . They linked themselves together and proceeded towards the prison exit . When they were descending the staircase , still linked , they fell on top of CARDINAL and another . They hit the wall and the handrail . CARDINAL prison warders were also injured in the crush .

DATE the applicants , after having waited for some time , were taken to ORG in GPE in prison vehicles .

The ORG complaints to the authorities

At the hearing before ORG , the ORG representatives made complaints against the persons responsible for the assault . The representatives stated that the applicants had been beaten before being taken to court and requested the court to examine and take note of their injuries and to investigate the incident .

The court noted the applicants’ condition and decided to postpone the proceedings on the grounds that it was impossible to hold a hearing in such circumstances . In its decision , the court ordered that the applicants be examined by a doctor with a view to determining whether they had been assaulted as alleged . The court also ordered that the medical findings together with TIME of the hearing be sent to ORG with a view to the opening of an investigation . A letter to that effect was sent the same day to the public prosecutor .

Also on DATE the father of CARDINAL of the applicants , Abdulkadir Eraslan , lodged a complaint about the incident with ORG in GPE . On DATE the public prosecutor wrote to the public prosecutor at FAC requesting him to take a statement from ORG and to have him medically examined if he complained about being tortured . The statement and any medical report drawn up were to be sent to him .

The investigation of the GPE public prosecutor

The GPE public prosecutor went to the prison on DATE to take statements from several of the victims . On DATE the prison doctor examined all the detainees . Those whose injuries were found to be serious were taken to hospital . Since CARDINAL of the applicants ( PERSON and ORG ) had to be taken to hospital , their statements could only be taken by the public prosecutor on DATE .

( a ) NORP the applicants’ statements to the GPE public prosecutor

On DATE statements were taken from the victims , including CARDINAL of the CARDINAL applicants : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and Abdülkadir Eraslan . The statements of the CARDINAL other applicants , ORG , and ORG , were taken on DATE , after their discharge from hospital ( see paragraph CARDINAL above and paragraph CARDINAL below ) .

The applicants were consistent in their statements that they had been taken from their cells and assembled in front of the prison door . They were ordered by the prison administrators and the warders to take off their shoes . According to the applicants , this was the first occasion on which such an order had ever been given . The applicants refused to comply and stated that a search could be carried out on them using metal detectors . The prison administrators then admitted the gendarmes who were outside the prison and they , together with the prison warders , began to hit them .

In their statements to the public prosecutor some of the applicants gave the names of the warders involved while others gave their ranks . Some applicants also stated that they could identify those responsible for the assault .

On DATE a second statement was taken from Abdülkadir Eraslan . He told the public prosecutor that on DATE of the incident he and other prisoners had protested about being subjected to inhuman treatment . He stated that a number of warders and gendarmes then hit the protestors with batons and wooden sticks . The beatings continued until they had reached the exit gate .

On DATE CARDINAL remaining victims including the applicants PERSON and ORG gave statements to the public prosecutor . These statements were consistent with the statements given by the other applicants .

( b ) the statements of the prison staff to the GPE public prosecutor

On DATE CARDINAL prison officials were questioned by the GPE public prosecutor . They were all consistent in stating that the prisoners had been repeatedly warned by their superiors that they had to submit to a search procedure . The prisoners objected and refused to be taken to court . The gendarmes then tried to lead them by the arms down the stairs of the prison . However , the prisoners formed a chain and this created a crush on the stairs . Some of the prisoners had to jump to safety while others fell . They injured themselves when they hit the walls , the stairs , and the iron railings . Several warders were also injured .

( c ) the medical reports on the applicants

In the presence of the public prosecutor who arrived at FAC at TIME on DATE , CARDINAL of the prisoners ( including CARDINAL of the CARDINAL applicants : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , and PERSON ) were medically examined by a forensic doctor ( adli tabip ) at TIME The reports indicated that they all had been hit on the head and/or other parts of the body . While the injuries were described in detail , no explanation was given for their cause . The applicants Terzan PERSON and PERSON were sent to hospital for medical examinations .

On DATE the ORG prison administration sent CARDINAL more applicants for a medical examination . PERSON was sent to the ORG , PERSON , PERSON and PERSON were sent to ORG . The hospital discharge report for Terzan PERSON ( date illegible ) indicated that he suffered “ general body trauma as a result of battery ” ( darp ) .

On DATE a forensic doctor from ORG went to FAC to examine ORG , PERSON and ORG . He reported that ORG PERSON and PERSON had been hospitalised CARDINAL DATE and PERSON DATE . He noted that a final medical report would be drafted later .

On DATE a doctor from ORG examined , inter alia , PERSON and reported in detail to ORG that that applicant had wide - spread bruising to his body and face ( şişlik , ekimoz ) . The report noted that the injuries were not life threatening and that he would recover within DATE .

On DATE a physicist from ORG reported that ORG and PERSON who had been re - examined on DATE had suffered from “ general body trauma as a result of battery ” . Terzan PERSON had not been able to do any prison work for DATE and PERSON for DATE . The report stated that they would recover .

The criminal proceedings

NORP The public prosecutor decided on DATE not to prosecute the Director of ORG and his staff for alleged ill - treatment of the prisoners . CARDINAL of the ORG lawyers challenged this decision but their challenge was rejected on DATE by the President of ORG .

An investigation was opened against the gendarmes at FAC . However ORG took the view that it had no jurisdiction to pursue this investigation since the incident arose out of the exercise by the gendarmes of their administrative duties . The investigation file was accordingly transferred on DATE to ORG . The Government informed the ORG that the case file subsequently went astray after it was sent to ORG at FAC . On DATE ORG appointed an inspector to clarify this matter . Permission has been given to take proceedings against CARDINAL gendarme officers in connection with the missing case file , pursuant to the provisions of the PERSON no . DATE governing the prosecution of civil servants ( see paragraph CARDINAL below ) . On DATE ORG decided that no investigation should be opened against the gendarme officers responsible for transferring the applicants from ORG to ORG on DATE .

On DATE , following a request for information on the incident , ORG wrote to ORG . He informed the ORG that the incident arose out of the refusal of prisoners at FAC to submit to a search . The prisoners objected to being taken to court and they bunched together while descending the stairs leading to the main gate . Some of them fell injuring themselves . Some members of the prison staff were also hurt .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators ( LAW ORG ” ) . The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect ( Article CARDINAL ORG ) . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , the public prosecutor may close the investigation . However , the public prosecutor may decide not to prosecute if , and only if , the evidence is clearly insufficient .

Insofar as a criminal complaint has been lodged , a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings . This appeal must be lodged within DATE after notification of this decision to the complainant ( LAW ORG ) .

ORG If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case was governed at the time of the events giving rise to the instant application by the Law of DATE on the prosecution of civil servants , which restricted the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it was for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it was for the public prosecutor to investigate the case . An appeal to ORG lay against a decision of the ORG . If a decision not to prosecute was taken , the case was automatically referred to that court .

A new law was adopted on DATE repealing the provisions of the Law of DATE . The new law - Law no . CARDINAL - determines the authorities which are empowered to give permission for a state employee or public servant to be prosecuted for an offence committed when exercising official duties and regulates the procedure to be followed . According to LAW no . CARDINAL , the power to grant permission to prosecute is now vested in the highest administrative authority in the area where the state employee is working . A decision granting or refusing permission to prosecute must be taken by the relevant authority within DATE of being seized by the public prosecutor . Before referring the file to the authority the public prosecutor can only collect such evidence which , because of its nature , might be lost , altered or destroyed . The authority initiates an investigation or appoints senior civil servants to investigate on its behalf . According to LAW and ORG have jurisdiction to hear appeals against the decisions reached by the authority . An appeal must be lodged within DATE of the authority ’s decision .

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

“ All acts of decisions of the administration are subject to judicial review …

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

This provision is not subject to any restriction even in a state of emergency or war . the second paragraph does not require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

Pursuant to LAW , anyone who suffers damage as result of an illegal act or tortious act may bring a civil action seeking reparation for pecuniary damage ( ORG CARDINAL - CARDINAL ) and non - pecuniary damage . The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant ’s guilt ( Article CARDINAL ) .


The applicants , Mr PERSON , PERSON , PERSON and PERSON are NORP nationals who were born in DATE , DATE , DATE and DATE , respectively , and live in GPE . They are represented before the ORG by Mr Christian Holmsten , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

In DATE and DATE , a forest in GPE in the municipality of PERSON , owned by PERSON , a relative of the applicants , was sold to a company PERSON Ab for FIM CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) and PERSON ( ORG CARDINAL ) respectively .

On DATE , PERSON died . The applicants became beneficiaries of his estate .

On DATE the applicants filed a criminal complaint with the police in GPE , GPE ( which later became PERSON police ) against NORP , S. ’s brother . They alleged that the sales of DATE and DATE were not executed by PERSON , but by O. for his own or his son R. ’s benefit . They submitted various documents to support their allegations .

On DATE CARDINAL witness was questioned . On DATE the police interrogated O. , who told the police that the proceeds of the sales of the forest were paid to his son NORP According to the pre - trial investigation report the police questioned the applicants on DATE , DATE , CARDINAL DATE and DATE . In these interviews the applicants stated that they sought damages from NORP and/or NORP

On DATE the police interrogated NORP , who lived in GPE , by telephone . NORP was never heard in person by the police .

On DATE the police concluded their investigations . On DATE the public prosecutor lodged charges against O. and NORP before ORG ( käräjäoikeus , tingsrätten ) of PERSON . On DATE the court held a hearing . On DATE ORG convicted PERSON and NORP , who had denied the charges , of aggravated theft and aggravated receiving of stolen goods respectively , and sentenced them to CARDINAL months’ and CARDINAL months’ conditional imprisonment respectively . The court ordered them jointly to pay damages to the applicants .

O. and NORP appealed to ORG ( hovioikeus , hovrätten ) of GPE . On DATE it held an oral hearing . On DATE the court reversed the judgment of ORG , acquitting ORG and NORP and quashing the decision on damages . The appellate court excluded the pre - trial statement by NORP as it had not been obtained from him in person but by telephone . Furthermore , it found that there was not enough evidence of any criminal conduct concerning the forest sale of DATE . As to the sale of DATE , the court found that it was unclear who had signed the contract .

On DATE the applicants applied for leave to appeal from ORG , claiming , inter alia , that ORG should have referred the case to ORG for reconsideration . When the court excluded ORG pre - trial statement as evidence , NORP was allegedly able to tailor his statements before the domestic courts to fit the statements of the complainants and witnesses . They further claimed that the pre - trial investigation , which had lasted CARDINAL years , had not been carried out properly .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

Section CARDINAL , subsection CARDINAL of LAW ( esitutkintalaki , förundersökningslag ; Act no . CARDINAL/CARDINAL ) provides that the police or another investigation authority shall carry out a pre - trial investigation when , on the basis of a report made to it or otherwise , there is reason to believe that an offence has been committed .

According to section CARDINAL of the said LAW no . CARDINAL/CARDINAL ) the civil - party claim of the injured party has to be clarified in the pre - trial investigation , if the injured party has requested the public prosecutor to pursue his / her claim at the trial .

Section CARDINAL of the said LAW provides that a pre - trial investigation shall be carried out without undue delay .

Section CARDINAL of the said LAW ( as in force at the relevant time ) provided that a person to be interrogated had to be present in person . However , in cases of minor significance , a suspect could give his / her statement through an attorney or by telephone , provided that he / she did not deny the alleged offence .

Under LAW , LAW CARDINAL of LAW ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; Act no.CARDINAL/CARDINAL ) a civil claim arising from the offence for which a charge has been brought , may be heard in connection with the charge . If such a claim is lodged separately , the provisions on civil procedure apply .

Section CARDINAL , subsection CARDINAL of the said LAW provides that on the request of the injured party , the public prosecutor shall pursue the civil claim of the injured party , arising from the offence for which the charge has been brought if this is possible without major inconvenience and if the claim is not manifestly ill - founded . Under subsection CARDINAL the injured party shall lodge his / her request during the pre - trial investigation or with the prosecutor . He / she shall also provide an account of the circumstances on which the claim is founded .

Section CARDINAL of the LAW of Finland ( perustuslaki , grundlagen ; Act no . GPE ) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority . This section is equivalent to LAW of LAW of DATE ( PERSON , ORG ) , as in force at the relevant time .


Violation of P4-2;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

In an order of DATE , filed with the registry on DATE , ORG imposed a preventive measure on the applicant , who was placed under special police supervision for DATE .

ORG found that numerous criminal complaints had been made against the applicant . In particular , it found that in DATE and DATE a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business . On CARDINAL DATE a preventive measure in the form of a warning ( avviso sociale ) was imposed on the applicant for DATE . On DATE a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods ; he was acquitted by a judgment of DATE . On CARDINAL DATE the applicant was arrested with CARDINAL others in connection with another complaint for receiving stolen goods which had been lodged against him . In the light of the foregoing , ORG considered that there were reasonable grounds for believing that , in spite of his clean record , the applicant was a habitual offender and thus “ socially dangerous ” , within the meaning of CARDINAL of PERSON no . CARDINAL/CARDINAL of CARDINAL DATE . It refused , however , to make a compulsory residence order ( obbligo di soggiorno ) against him .

NORP The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on DATE and served on the applicant on CARDINAL DATE .

The applicant appealed , but his appeal was dismissed by ORG on DATE . The order became final on DATE and was subsequently served on the GPE municipality on DATE .

On DATE the GPE police drafted , in the applicant ’s presence , a document setting out the obligations imposed on him ( verbale di sottoposizione agli obblighi ) .

The applicant was required :

( a ) to look for a suitable job within DATE from the date of service of the order ;

( b ) not to change his place of residence ;

( c ) not to leave his home without informing the authorities responsible for supervising him ;

( d ) to live an honest life and not to arouse suspicion ;

( e ) not to associate with persons who had a criminal record or who were subject to preventive or security measures ;

( f ) not to return home TIME in DATE and TIME in DATE or to leave home before TIME , unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him ;

( g ) not to keep or carry weapons ;

( h ) not to go to bars or attend public meetings ;

( i ) to report to the relevant police station on DATE TIME ;

( j ) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order .

On DATE the applicant applied to ORG for a declaration that the preventive measure had expired on DATE , that is , DATE after the date on which the order of CARDINAL DATE was served on him .

In an order of DATE , ORG found that , even if pursuant to LAW no . CARDINAL/CARDINAL the special supervision period began on DATE on which the person on whom the preventive measure was imposed was served with the relevant order , compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure . For there to be such an initial step , it was also necessary under LAW no . CARDINAL/CARDINAL for the relevant order to be forwarded for enforcement to the competent police authority . ORG observed that , under ORG case - law , special supervision did not lapse at the end of the period for which it had been imposed , independently of when it was implemented . In the case before it , the initial step in the implementation of the measure had been taken on DATE , DATE on which the GPE police had drafted the document setting out the obligations imposed on the applicant . Consequently , it held that the preventive measure had not ceased to apply .

The applicant appealed to ORG . He maintained that the preventive measure had automatically ceased to apply on DATE or , at the latest , on DATE , which was DATE after the date on which the order had been served on the Brindisi police and the GPE municipality . In any event , the applicant sought an order discharging the measure , arguing that there were no grounds for it to remain in force .

In a judgment of DATE , ORG upheld the order of DATE , observing that the case fell outside those for which statute provided the automatic lapse of special supervision . It considered that the preventive measure could not automatically cease to apply on the date stated in the order of CARDINAL DATE independently of when it was implemented . Consequently , it concluded that the starting - point for the application of the preventive measure was DATE on which the first steps had been taken to implement it . In this case that had been DATE , when the police had drafted the document setting out the applicant ’s obligations under the order .

The applicant appealed on points of law to ORG .

In a judgment of DATE , which was filed with the registry on DATE , ORG ruled that the order for special supervision of the applicant had ceased to apply on DATE . It observed that LAW no . CARDINAL/CARDINAL expressly provided that the period of special supervision started to run on DATE the person to be supervised was served with the relevant order . Consequently , contrary to the opinion of ORG , it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect . It concluded that the period of special supervision had started to run on DATE on which the relevant order was served on the applicant ( DATE ) .

In the meantime , on DATE the GPE police had informed ORG that the order for special supervision of the applicant had ceased to apply on DATE .

As a result of the special supervision measure imposed on the applicant , ORG decided on DATE to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no . CARDINAL of DATE .

NORP The applicant was subsequently prevented from taking part in the regional council ( PERSON ) election of DATE .

On DATE the applicant ’s name was restored to the electoral register .

In a certificate issued on CARDINAL DATE , however , the mayor of GPE stated that the applicant had been subject to a further DATE ’s special supervision by a decision of the Brindisi police of DATE . On DATE the mayor declared that the applicant would be struck off the electoral register for DATE .

On DATE ORG refused the applicant ’s request to be allowed to take part in the national parliamentary election on DATE .

The applicant lodged an appeal with ORG in which he contended that the preventive measure had ceased to apply on DATE and that , accordingly , there were no grounds for excluding him from the election .

In a judgment of DATE , ORG dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented .

The power to impose preventive measures was introduced by PERSON no . CARDINAL of DATE . Such measures are intended to prevent individuals who are considered “ socially dangerous ” from committing offences . The statute indicates CARDINAL groups of socially dangerous persons : ( a ) anyone who , on the basis of factual evidence , must be regarded as a habitual offender ; ( b ) anyone who , on account of his conduct or lifestyle and on the basis of factual evidence , must be regarded as habitually deriving his income from the proceeds of crime ; and ( c ) anyone who , on account of his conduct and on the basis of factual evidence , must be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to society , security or public order .

Section CARDINAL of Law no . CARDINAL/CARDINAL provides that persons who are socially dangerous may be placed under special police supervision . The competent court sits in camera and must give a reasoned decision after hearing the public prosecutor and the person concerned , who has the right to file memorials and to be represented by a lawyer . Both parties may lodge an appeal and/or an appeal on points of law , which have no suspensive effect .

When imposing a preventive measure , the court must fix its duration and specify the conditions with which the person concerned must comply . In accordance with paragraph CARDINAL of LAW of PERSON no . CARDINAL/CARDINAL , the special supervision period starts to run on DATE on which its addressee is notified of the relevant order and automatically ends when the period of time fixed in the order has elapsed .

LAW no . CARDINAL of DATE provides that , inter alia , persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised .

Article CARDINAL § CARDINAL ( CARDINAL ) of that decree provides that in such cases the prefect ( questore ) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civic rights . ORG shall then remove the name of the person concerned from the electoral register , even outside one of the usual periods for updating the lists .

Article CARDINAL of the LAW confers legislative power on the regions . It sets out the competence of the regions , inter alia , for regional administrative planning , local policy , public health , education , local museums and libraries , town planning , tourism , traffic regulations , navigation , quarries and peat bogs , hunting , agriculture , forests and handicraft . Article CARDINAL also states that the regions have legislative power in other matters established by constitutional laws . Regional laws are enacted by the regional councils ( LAW ) .


David Thór Björgvinsson;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , PERSON , is a NORP national who was born in DATE . He was represented before the ORG by PERSON , a solicitor with ORG , ORG , a GPE law firm . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG , GPE .

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

NORP The applicant was born in DATE . At the time of filing his application , he was resident in a psychiatric clinic . According to an expert report drawn up during the domestic proceedings in this case , the applicant had been diagnosed as mentally impaired and , prior to the facts giving rise to this case , had been admitted to psychiatric hospitals twice . He also had a number of convictions against him , including for indecent assault , burglary and theft .

NORP In TIME of DATE , police were called out to deal with the applicant , who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner . He was arrested at TIME and transferred to a police station , where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required . His detention was authorised under LAW of LAW DATE ( see § CARDINAL below ) . The police also went to the applicant ’s address , where they found his aunt with serious and extensive injuries to her face and upper body , which had been inflicted by the applicant . She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung .

The applicant was examined in his cell at TIME by ORG , PERSON . In view of the applicant ’s behaviour , speech and appearance , he assessed him as not fit to be interviewed or charged with any criminal offence . A formal assessment under LAW was requested . This was done at TIME by the psychiatric specialist registrar on call , Dr PERSON . He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons .

A second assessment was carried out shortly after TIME by another psychiatric specialist , Dr. O’Donnell . He too advised that the applicant be formally admitted to hospital for assessment . He also advised that the applicant be observed via closed circuit television , since the presence of a police officer outside his cell was causing him to become agitated . For the remainder of his time at the police station , the applicant remained under continuous observation by this means .

At TIME , the applicant was visited by an approved social worker , PERSON . He was also seen by a community psychiatric nurse , PERSON . Both noted that the applicant was displaying clear signs of mental illness . The social worker filled out the relevant form for admission to a mental hospital , omitting just one point , the name of the establishment , which had yet to be determined .

At TIME members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to ORG , which had a medium secure unit . The police thereupon contacted PERSON to inform them of the situation . Shortly after TIME , PERSON , a consultant forensic psychiatrist at PERSON , called back and was informed of the situation concerning the applicant . According to the custody record , he stated that someone would be sent over from the clinic . According to PERSON own notes on the situation , which the Government have provided , he then consulted with a number of colleagues . Believing that the applicant would be charged and remanded in custody and that an assessment from ORG would be required only afterwards , they considered that there was no need for their involvement before such time . At TIME the police received a call from PERSON informing them that the clinic would not be sending anyone to the station , but would liaise with the social worker .

The custody record for the applicant ’s first day at the police station refers at several points to his disturbed behaviour : clapping loudly , shouting , banging on the door , lowering his trousers and waving his testicles about , and licking the wall of his cell . PERSON noted that the applicant repeatedly hit his head against the wall , causing himself bruising . He was provided with and accepted food and drink at intervals throughout DATE .

DATE , DATE , there were further telephone contacts between the police station and PERSON regarding the applicant ’s case . The police also contacted other mental health officials , but PERSON remained the only viable arrangement . During TIME PERSON spoke with the duty solicitor of ORG , who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody . In the event of no charge being brought , they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant DATE . In discussion with the clinical director of PERSON , PERSON noted that at that point there was no immediate action to be taken . He was later told by PERSON that the applicant would be charged with assault , and arranged an appointment to assess the applicant on DATE at ORG .

An entry in the custody record at TIME states that the duty solicitor of ORG had concluded that there was insufficient evidence to charge the applicant . An entry at TIME states that there was an “ internal argument ” between doctors and the social services regarding the applicant . At TIME an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant .

NORP The applicant ’s behaviour was observed to deteriorate over the course of DATE . By TIME he had removed all of his clothing . Later he drank water from the bowl of the toilet in his cell . He accepted CARDINAL meals , in DATE , TIME and in TIME . He accepted a drink at TIME , but , according to the custody record , refused all further offers of food and drink for the remainder of DATE .

On DATE of the applicant ’s detention , DATE , the duty Inspector made an entry in the custody record at TIME noting his concern at the environment in which the applicant was detained , given his obvious illness . The applicant was still naked and was observed during TIME rocking to and fro on a bench , talking to himself , banging his chest and ranting .

Dr PERSON arrived at the police station shortly before TIME , accompanied by other mental health professionals from PERSON to assess the applicant . The police refused to open the door of the applicant ’s cell on the ground that this would endanger everyone ’s safety . The assessment was conducted through the hatch . PERSON noted that the applicant appeared agitated and was shouting loudly , and that his naked body appeared to be smeared with food or faeces . The applicant was elated , and his speech was incoherent at times . PERSON concluded that the applicant was clearly unwell and required inpatient treatment in a medium - secure setting with adequate nursing resources and a clear and effective care plan . He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems . The police indicated that their advice from ORG was that there could be no charge at that point in time , given the impossibility of interviewing the applicant . Dr PERSON said he would endeavour to get a place for the applicant at PERSON , although it would not be possible to receive him there until TIME , i.e. beyond the CARDINAL limit laid down by LAW . TIME , ORG spoke to ORG , who agreed to receive the applicant the same evening .

Informed of this , LOC discussed the situation with nursing staff at PERSON . He was informed that the resources needed to admit the applicant could be made available for the following morning at TIME at the earliest . He considered that an admission in TIME , i.e. just before the expiry of the permitted period of detention , would pose unmanageable risks for all concerned . He suggested to ORG that the applicant could be transferred to PERSON at the end of the CARDINAL-hour period , but that police assistance would be required to maintain him in safe conditions until it was possible to admit him . He was informed that the presence of the police could not be guaranteed for the whole period .

At TIME a call was received from PERSON to say that the applicant could not be taken until TIME . TIME , an Approved ORG from PERSON came to the police station to complete the necessary forms for the application ’s admission under LAW .

The applicant was provided with food and drink at TIME , and further drinks of water during DATE ( TIME and TIME ) . At the end of the TIME a meal was not offered because the applicant was sleeping . He requested food at TIME , which was provided but which he dropped on the floor . He refused an offer of a meal and a drink at TIME

On DATE , DATE , the applicant was released from police custody at TIME and escorted , in handcuffs , to ORG . According to the Government , it took CARDINAL members of the nursing staff to restrain him once admitted . He was assessed as having pressure of speech , flight of ideas , a labile mood , thought disorder and persecutory delusions . The diagnosis of a manic episode with psychotic features was made . The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive , threatening manner . He received continued medication in DATE and showed sustained improvement .

On DATE , the applicant lodged claims against the GPE and ORG for negligence , for breaches of Articles CARDINAL and CARDINAL of the LAW , and for misfeasance in public office . The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding . A hearing was held on DATE before ORG . The applicant ’s counsel submitted a report prepared by ORG , PERSON , who had not interviewed the applicant but had reviewed the relevant documents . Dr PERSON considered that PERSON should have assessed the applicant within TIME of being made aware of the situation , since by that stage the applicant had been detained for TIME . The delay in assessing him and in admitting him to PERSON had in turn delayed the applicant ’s treatment and recovery .

The judge granted the order for summary judgment . He held that although the defendant had owed the applicant a duty of care , and that that duty had been breached , it had not caused the applicant any physical or psychological injury . The action in negligence therefore failed at causation and loss . In any event , any loss had been absolutely minimal . A delay of TIME in the hospitalisation of the applicant could only lead to minimal damages . The judge also rejected the claim based on LAW on the grounds that FAC could not be seen as a public authority for the purposes of the LAW , and that the situation did not meet the minimum level of severity inherent in LAW . The applicant ’s claim for damages based on LAW was also dismissed , the judge finding that this was not an exceptional case in which compensation would be justified . The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant , which he had not done .

NORP The applicant was granted permission to appeal . The case was heard at ORG by His Honour Judge PERSON , who dismissed the appeal in a judgment of CARDINAL DATE . The judge described the applicant ’s claim in negligence as “ hopeless ” , there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant . It was unrealistic to suggest that a delay of TIME ( the applicant ’s counsel having conceded that the delay was considerably TIME ) in some way caused that number of TIME of psychosis .

In relation to the claim under LAW , the judge considered that FAC should be viewed in that context as a “ public authority ” . However , the claim failed because the situation did not fall within LAW . The applicant had been lawfully detained and his basic needs had been met . The fact that he had spent CARDINAL - CARDINAL hours at the police station did not make the situation so appalling as to breach LAW . The judge found that there had been no breach of LAW because there had been no arbitrary or deliberate interference with the applicant ’s rights . As regards the claim for malfeasance , he concurred with the decision of LOC .

In light of these findings , the applicant ’s legal representatives were obliged to advise him that legal aid would not be available for him to appeal the decision further .

Section CARDINAL of the Mental Health Ac provides :

“ Mentally disordered persons found in public places .

( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person or for the protection of other persons , remove that person to a place of safety within the meaning of section CARDINAL above .

( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . ”

A “ place of safety ” is defined in section CARDINAL(CARDINAL ) as follows :

“ In this section “ place of safety ” means residential accommodation provided by a local social services authority ... , a hospital as defined by this LAW , a police station , an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient . ”

The Code of Practice issued under LAW DATE provided at the relevant time :

The place of safety

CARDINAL The identification of preferred places of safety is a matter for local agreement . However , as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station . Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment . Once the person has been removed to a particular place of safety , they can not be transferred to a different place of safety .

Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital .