Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

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

The applicant is an employee of an oil production company , P. ( referred to below as “ the company ” ) , partly owned by ORG , with places of business all over GPE .

In DATE and DATE a large number of employees of the company , including the applicant , brought civil actions before the domestic courts requesting that they be granted certain salary benefits provided for in the general collective labour agreement for the oil industry . The requested benefits were a salary supplement for DATE supplies and/or a lump sum equal to the value of a specific quota of natural gas .

The applicant ’s action was rejected by a final decision of ORG delivered on DATE , which found , on the basis of an expert report , that the requested salary benefits had already been included in the applicant ’s basic salary .

NORP In DATE and DATE final judgments by courts of appeal found against most of the employees on the same grounds .

However , some employees were granted the requested benefits , as courts found that they had not received them as part of their basic salary .

The collective labour agreement for the energy , oil and gas industry produced by ORG , ORG and ORG entered into force on DATE . The relevant parts of the agreement read as follows :

“ ( CARDINAL ) On the occasion of certain annual events such as GPE , DATE , DATE , as well as in DATE ( for DATE supplies ) , employees can benefit from a supplement to their salaries , in the form of an additional fixed amount ...

( CARDINAL ) The conditions and criteria for awarding such benefits shall be established in collective labour agreements concluded at company level . ”

“ ( CARDINAL ) The employees of the companies listed in annex no.CARDINAL , point B , shall receive DATE a lump sum equal to the value of a specific quota of natural gas .

( CARDINAL ) The employees listed in paragraph ( CARDINAL ) , as well as the employees of the companies acting in the oil industry listed in annex no.CARDINAL , shall have the same right , unless they have received the benefit in the form of an increase in their basic salary . ”


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

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

NORP The applicant was renting a small apartment from S. , a former Stateowned company . On an unspecified date , he made an offer to buy the apartment under PERSON no . CARDINAL/CARDINAL , but he did not receive an answer to the request . He therefore lodged an action with LOC seeking to have PERSON compelled to sell him the apartment . His action was allowed on DATE , a decision upheld on appeal by ORG .

NORP However , in a final decision of DATE , ORG allowed an appeal on points of law lodged by PERSON and dismissed the initial action . The applicant 's lawyer was present at the delivery of the said decision .

The reasoning of the final decision was completed on DATE . The case file , including the complete text of the final decision , was returned to ORG on DATE .

According to the case - file , the applicant obtained a certified copy of the final decision on DATE .

LAW provides that copies of decisions are served on the parties only when this is necessary to start the time - limit for bringing an appeal running . As a consequence , final decisions are not served on the parties , on whom it is incumbent to take the necessary steps to obtain a copy . In practice , copies are obtained from the first - instance court , where the case file , together with the final decision , is archived .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant , Mr Elijus NORP , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE a prosecutor instituted criminal proceedings in a case where a hostage had been taken in the territory of GPE , then removed and held in GPE .

On DATE the applicant was arrested and questioned as a suspect in that case . On DATE he was charged with taking a hostage and remanded in custody .

On DATE the prosecutor ordered that the applicant be released from custody on bail .

On DATE the prosecutor informed the applicant that a milder remand measure – the obligation not to leave his place of residence DATE would be imposed on him .

On DATE the prosecutor of ORG office discontinued the pre - trial investigation with regard to the applicant since the prosecution of the crime had become time - barred . The authorities also revoked the obligation for the applicant not to leave his place of residence .

The applicant appealed , arguing that the criminal proceedings in his case had been protracted and that the prosecutors , not being able to collect evidence against him , had been stalling the pre - trial investigation until the prosecution would become time - barred . Moreover , whilst the pre - trial investigation had been pending , he was obliged not to leave his place of residence and therefore could not travel , search for a job or participate in employment competitions . The applicant requested the prosecutors to reopen the pre - trial investigation and to discontinue his case on rehabilitation grounds .

By a ruling of DATE , the prosecutor dismissed the applicant ’s request as unfounded . The prosecutor observed that the case was complicated as it involved CARDINAL suspects and a crime which had been committed in the territories of CARDINAL States – GPE and GPE . It followed that the length of the pre - trial investigation was reasonable and did not violate the applicant ’s right to a trial within a reasonable time . The prosecutor also observed that the crime had been committed in DATE and that the national law provided for a DATE term to prosecute it . Therefore it had been correctly decided to discontinue the pre - trial investigation as having become time - barred .

The applicant appealed .

On DATE the Panevėžys City District Court found that the domestic law indeed provided for a possibility to discontinue the criminal proceedings as being time - barred . It observed , however , that a person ’s guilt could be established only by a judgment of a court . By discontinuing the criminal proceedings as time - barred the applicant had been left accused of a crime with all the legal and moral consequences stemming from that . As under the domestic law the pre - trial judge could not himself discontinue the criminal proceedings on rehabilitation grounds , ORG returned the case to the prosecutor and ordered him to rectify the situation .

On DATE the prosecutor again discontinued the pre - trial investigation with regard to the applicant on the ground that the prosecution had become time - barred . The applicant appealed .

On DATE ORG , having examined the evidence collected during the pre - trial investigation , decided that there was no proof that the applicant had committed the crime with which he had been charged . Consequently , the pre - trial investigation in respect of the applicant had to be discontinued by way of acquittal . GPE further noted that even though on DATE the case had been returned to the prosecutor , the latter failed to perform any actions for DATE and had ignored the court ’s ruling by repeating his original decision . The court decided that , in order to avoid further delays , it was competent to resolve the question itself , and ruled that the pre - trial investigation of the applicant had been discontinued on the ground that no crime had been committed .

The prosecutor challenged the decision , lodging a petition to the President of ORG .

On DATE the President of ORG adopted the final procedural decision and dismissed the appeal .

The applicant instituted proceedings for non - pecuniary damage against GPE . He argued that from DATE to CARDINAL DATE he had been a suspect in a criminal case , the proceedings lasted unduly long and therefore caused him great moral suffering . The applicant claimed MONEY ( ORG , MONEY ( ORG ) ) in non - pecuniary damages and LTL CARDINAL,CARDINAL ( EUR CARDINAL ) which he paid for his defence in criminal proceedings .

In a decision of DATE the ORG relied on LAW and LAW and granted the applicant ’s claims in part . The court found that when instituting criminal proceedings and charging the applicant the authorities followed the law . Moreover , the rules of criminal procedure were observed when remand measures – detention , bail , obligation not to leave his place of residence DATE were imposed on the applicant . ORG found , however , that the pre - trial investigation in the applicant ’s case had not been conducted with sufficient intensity and speediness , too few procedural actions had been performed and none at all for certain rather long periods . In contrast , no actions of the applicant that would have contributed to the length of proceedings were established . As a result , there was a breach of the applicant ’s right to a trial within a reasonable time , enshrined in LAW .

As to the non - pecuniary damage award , the first instance court acknowledged that the criminal proceedings at issue had caused the applicant much distress . The applicant was dismissed from his job and negatively portrayed in the press . His situation was further compounded by the length of the proceedings , the serious nature of the charges against him and the fact that he had to endure various remand measures . Those negative repercussions extended to the applicant ’s family members . In the light of the above and having considered the practice of ORG , the ORG deemed it equitable to award the applicant a sum of LTL CARDINAL ( ORG CARDINAL ) for non - pecuniary damage he had sustained . Moreover , noting that the criminal proceedings against the applicant were discontinued on rehabilitation grounds , the court also decided that the ORG should cover the applicant ’s defence costs in the sum of LTL CARDINAL,CARDINAL .

On DATE ORG upheld the above decision , fully concurring with the first instance court to the effect that the length of the criminal proceedings was not justified . The award for non - pecuniary damage remained at LTL CARDINAL,CARDINAL . The appellate court however lowered the sum for the applicant ’s legal costs by LTL CARDINAL,CARDINAL , because it was established that those costs were incurred on DATE that is DATE after the criminal proceedings had been discontinued .

The applicant submitted an appeal on points of law ; however , by a ruling of CARDINAL DATE ORG refused to examine it as raising no important legal issues .

On DATE ORG ordered a bank to transfer to the applicant the sum of LTL CARDINAL , in “ compensation for pecuniary and non - pecuniary damage ” .

Article CARDINAL of the Civil Code allows a civil claim for pecuniary and non - pecuniary damage , in view of the unlawful actions of the investigating authorities or court , in the context of a criminal case . The provision envisages compensation for an unlawful conviction , an unlawful arrest or detention , the application of unlawful procedural measures of enforcement . According to recent domestic case - law , this provision may also allow claims for damages arising from the excessive length of criminal proceedings ( see FAC , no . CARDINAL/CARDINAL , § DATE , DATE ) .

The court practice also provides that on the basis of the above legal norm civil liability of the ORG arises irrespective of whether there was guilt of the investigating authorities or court . For the liability to arise it is sufficient that the LOC actions ( inaction ) would be unlawful , that they had caused damage and there must also be a causal link between those actions ( inaction ) and damage ( ORG ruling of CARDINAL DATE in civil case no . ORG - CARDINAL/CARDINAL and the ruling of CARDINAL DATE in civil case no . ORG - CARDINAL/CARDINAL ) .

Furthermore , LAW is to be applied directly – a court must apply it in a civil case for damages irrespective of whether a procedural measure , which the plaintiff alleges has caused damage , had ever been challenged in criminal proceedings ( ORG ruling of DATE in civil case no . CARDINALK-CARDINAL - DATE ) .


CASE OF R.P. AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

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

The first applicant ( “ GPE ” ) , the second applicant ( “ FAC ) , the third applicant ( “ LOC ) and the fourth applicant ( “ FAC ” ) were born in DATE respectively . All CARDINAL applicants are NORP citizens who currently live in GPE , GPE .

GPE , GPE and ORG are , respectively , GPE ’s brother , mother and father .

On CARDINAL May CARDINAL PERSON ’s daughter ( “ GPE ) was born prematurely at CARDINAL GPE gestation . The birth was unexpected as ORG had not known that she was pregnant . PERSON was not in a relationship with GPE ’s father and he played no further part in the proceedings .

As a consequence of her premature birth , GPE suffered from many serious medical conditions . She had serious chronic lung disease ( broncho - pulmonary dysplasia ) , which rendered her oxygen - dependent , she had bleeding on both sides of her brain ( bilateral intraventricular haemorrhage ) , she was immuno - suppressed and therefore very susceptible to infection , and she had a congenital heart defect which was repaired by surgery on DATE . Although her health improved as she developed , she continued to require skilled and labour - intensive day - to - day care . She was regarded as at high risk of cot death and initially required feeding through a nasal - gastric tube .

It was observed that from GPE ’s birth until DATE PERSON was only visiting GPE for TIME a day . She had to be prompted to visit for longer periods and it was noted that she could not complete basic care tasks without prompting and support . A multi - agency meeting took place on DATE , at which the hospital drew up a schedule of tasks which GPE would need to demonstrate she could satisfactorily complete before GPE could safely be discharged into her care . A “ core assessment ” prepared at this time recorded that GPE had previously been involved with the local authority ’s mental health services and was believed to have learning disabilities ; that her relationship with GPE , GPE and GPE fluctuated , with allegations having been made of violence and aggression ; that there were concerns about her relationship with GPE ’s father ; and that GPE and ORG were unsuitable to care for GPE because of poor household conditions and concerns about family dynamics .

On DATE a social worker met with GPE , GPE and ORG to discuss the local authority ’s concerns as to the care of GPE It was noted that GPE had difficulty understanding and articulating the nature and extent of GPE ’s health needs and refused to accept that she needed help to care properly for her . However , she did agree to participate in a ORG ( “ PERSON ) Assessment , which was a tool designed to assess parents with learning disabilities . The assessment , which was completed on DATE , concluded that GPE struggled to complete care tasks for GPE and demonstrated little understanding of her care needs .

On DATE care proceedings were commenced in relation to GPE At this stage the aim of the care plan was to identify how the local authority could keep GPE alive and safe in a home environment while GPE was given the opportunity to develop her care skills . On DATE an interim care order was made in favour of the local authority and on DATE GPE was discharged from hospital into the care of foster parents .

R.P. instructed a solicitor ( “ GPE ” ) to represent her in the care proceedings . Both GPE and her very experienced counsel developed serious concerns that GPE was unable to understand the advice she was being given . Pursuant to a court order , GPE and the local authority jointly instructed a consultant clinical psychologist ( “ GPE ” ) to assess ORG to being assessed , attendance notes from both the counsel and GPE indicate that they informed GPE that the purpose of the assessment was to determine whether or not she had capacity to provide instruction and , if she did not , the Official Solicitor would have to be appointed to act on her behalf .

In her report PERSON found that GPE had a significant learning disability and concluded :

“ Because of the difficulties [ RP ] has in understanding , processing and recalling information , I believe that she will find it very difficult to understand the advice given by her solicitor . She will not be able to make informed decisions on the basis of this advice , particularly when this involved anticipating possible outcomes . It would be appropriate for ORG to become involved . ”

On DATE S.C. wrote to ORG to advise him of the contents of PERSON ’s report . On DATE the Official Solicitor indicated that he would consent to act on behalf of GPE if invited to do so . On DATE ORG invited the Official Solicitor to act for GPE and he formally consented to act as her guardian ad litem on DATE . In accordance with his usual practice , a case worker ( “ ORG ” ) wrote to GPE to confirm that she was to be instructed by the Official Solicitor on behalf of GPE She enclosed with the letter a further letter and leaflet to be given to GPE The letter stated that :

“ You may already know that on DATE the Official Solicitor was asked to act as your guardian ad litem . This means that he will instruct your solicitor for you . He can only do this if a doctor or the court has decided that you can not do so yourself . In your case , ORG completed a report dated DATE which shows that you have a learning disability . If your condition improves and ORG or another doctor says that you can manage on your own , ORG will of course step down and no longer act for you .

Your solicitor will keep in touch with you , let you know what is happening and tell the Official Solicitor how you feel about things ...

The Official Solicitor will consider the evidence of all the people involved as well as your wishes and views before he files a statement at court on your behalf . He will do his best to protect your interests but must , of course , bear in mind what is best for KP .

If you are not happy with the way in which your case is conducted you should first discuss the matter with your solicitor or with me . If you are still not satisfied you can write to the complaints officer ... ”

The content of the leaflet given to GPE is set out in full below :

“ The Official Solicitor

Who he is , and what he does .

WHO IS THE OFFICIAL SOLICITOR ?

PERSON is ORG to ORG . It is his job to make decisions on behalf of people who are unable to represent themselves in ORG ( the client ) .

WHY THE OFFICIAL SOLICITOR ACTS IN A CASE

The Official Solicitor agrees to act either because the client is under DATE , or because the client ’s doctor does not think that they can cope with making decisions about their court case . Legal matters can be difficult to understand and very stressful and ORG is here to protect the client ’s interests .

HOW WILL THE OFFICIAL SOLICITOR HELP ?

The Official Solicitor makes decisions about the court case such as whether to bring , defend or settle a claim . We will arrange legal representation in court for the client where he considers this necessary . He will usually ask a firm of solicitors to help him with the case . The Official Solicitor can only make decisions about the questions arising in the court case . He can not make any other decisions for the client .

WHO CAN I SPEAK TO ABOUT THIS CASE ?

Your solicitor should be the primary contact . ORG has assistants who help him deal with every case . These assistants are called case managers . The case manager assigned to your case will provide you with details of the solicitors they have appointed on your behalf .

WILL THE CLIENT BE CONSULTED ?

Shortly after he agrees to act ORG will usually instruct a firm of solicitors as his solicitors , either the solicitors already instructed by the client or new solicitors identified by the case manager . Such solicitors , or a senior solicitor within the firm , should be a member of ORG or the ORG ( formerly SFLA ) Family Panel . The instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager .

Fees and Charges

In the vast majority of cases , the Official Solicitor acts in the capacity of Litigation / Next Friend and instructs outside solicitors . ORG does not make any charge for acting in the capacity of Litigation / Next Friend . Where the legal work in a case is conducted in - house , ORG will , where appropriate , seek to recover his costs ( or in medical cases there is a practice whereby he is entitled to CARDINAL his costs ) using an TIME charging rate . We will write to you separately with further details if this applies in your case .

COMPLAINTS

If you are dissatisfied with the way your case is conducted you should first discuss the matter either with the external solicitor , or with your case manager . If you remain dissatisfied you may write to the Complaints Officer , ORG , ORG CARDINALDD . ”

On DATE ORG directed that PERSON be instructed to prepare a second report considering the propriety of the teaching methods envisaged by the local authority in its parenting assessment . PERSON ’s second report , dated DATE , noted that the teaching methods and materials would “ in general be appropriate ” and emphasised that simple language , direct instructions and repetition would be needed , along with immediate feedback .

On DATE a parenting capacity assessment was produced in respect of GPE The report noted that GPE had demonstrated commitment to the assessment process and an ability to retain and carry out basic tasks . However , social workers were concerned that GPE had expressed views of a racist nature , that she sometimes seemed immature and attention - seeking , that she was overly preoccupied with her own health concerns , and that she spoke very negatively about the local authority ’s professionals .

Reports from GPE ’s contact sessions with GPE indicated that GPE showed some signs of improvement , demonstrating some ability to remember what she had been shown and to repeat tasks . However , even after DATE of regular contact and support GPE still , on occasion , needed reminding about and prompting to perform basic tasks , especially when something unexpected happened . They also indicated that GPE occasionally demonstrated a failure to put GPE ’s needs before her own and a lack of awareness of GPE ’s current and future needs . Her attitude towards social workers was also noted to be aggressive , uncooperative and occasionally violent . Consequently , there were concerns about GPE ’s ability and willingness to work with local authority professionals and put GPE ’s needs first . This was of particular concern in light of GPE ’s need for high levels of support .

In DATE PERSON was asked to produce a third report . The report , dated DATE , primarily concerned the risks posed by GPE to GPE and GPE ’s ability to care for PERSON was also asked to comment on GPE ’s litigation capacity . She noted :

“ CARDINAL.CARDINAL As I have indicated previously ORG has a significant learning disability , and she will always need a high level of support in caring for KP

. If she were not receiving this support she would pose a high level of risk to ORG ’s well - being , which is not due to any desire on her part to hurt GPE , but to her limitations , which are too extensive to allow her to parent KP successfully on her own .

CARDINAL.CARDINAL If she were receiving a high level of support this risk could be reduced . The level of support which would be needed for this to happen would be for another competent adult to be present at all times , to prompt and assist DATE in her care for KP . Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support .

CARDINAL Having read all the work which has been done with ORG and having carefully considered my assessment of her , it is my view that there is no further work which could be undertaken with ORG which would increase her ability to care for KP in any significant way .

CARDINAL As I indicated earlier ORG could only care for KP if she had a high level of support . I can not perceive anything in her circumstances which suggests to me that such a support network is available , and without this no progress can be made towards rehabilitation .

CARDINAL RP would need TIME support , and within this it would be realistic to expect her to assist with KP ’s care but not take sole responsibility for this . This would continue to be the case throughout KP ’s childhood . If this could be achieved in a natural environment , such as a family , then it might be suitable as a long term prospect , as long as KP had a consistent identified care giver within that arrangement .

CARDINAL RP does not have the capacity to give informed consent to a placement order . She can not really understand the proceedings except at a very basic level . ”

On DATE the local authority completed a further core assessment . The conclusion was that :

“ The opinion of all the agencies involved with KP ’s care in a position to make an informed decision regarding ORG ’s ability to parent KP is clear . Without a very high level of continuous support and supervision , ORG does not have the skills to enable her to successfully parent KP . ORG has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved in KP ’s care throughout her childhood . Therefore , we need to look for alternative permanent carers . Maternal grandparents have put themselves forward to be assessed and this is in the process of being conducted . However , the local authority have a number of concerns in respect of their living conditions , RP ’s upbringing and the influence that RP still has upon them and how this would impact upon KP if she were to be placed in their care . Although the local authority do not wish to pre - empt the outcome of the initial sessions with the maternal grandparents , there are a number of concerns regarding their interaction and relationship with ORG and their own parenting skills . The local authority at this time believe it is in KP ’s best interest to be placed for adoption and the matter will come before the adoption panel on DATE . The local authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive ” .

NORP The local authority filed its final care plan on DATE . That care plan recommended adoption outside the family and it issued proceedings seeking a placement order under LAW of LAW DATE . The Official Solicitor consented to act on behalf of GPE in the placement proceedings as well as in the care proceedings . The application for a placement order was then consolidated with the care proceedings and listed for hearing before a judge .

On DATE the local authority filed a kinship assessment of GPE and GPE The report indicated that there had been referrals to the local authority concerning ORG and ORG ’s care of GPE and GPE It further noted that GPE and ORG were unable to control GPE or manage her behaviour and that they had also intermittently displayed hostility and suspicion towards the local authority . In view of these facts , the local authority concluded that it could not support the maternal grandparents as carers for GPE On DATE a further kinship assessment was filed in respect of ORG The local authority considered that he was unlikely to have the capacity fully to understand or to meet GPE ’s welfare needs and therefore could not support him as a carer .

In a statement to the court dated CARDINAL DATE , ORG indicated that GPE was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order . However , he also indicated GPE ’s opposition to the orders sought by the local authority , her belief that GPE should be returned to her care or the care of her family , and her belief that the local authority had not given her a chance to acquire the skills necessary to care for GPE

NORP In a pre - hearing review GPE agreed with GPE and counsel that she would not give oral evidence at the hearing but that her wishes would be conveyed to the court by counsel .

The hearing took place on CARDINAL DATE . PERSON was represented throughout by experienced counsel and her views were made known to the court . At the conclusion of the hearing , the judge made a care order , dispensed with GPE ’s consent to the placement order and made a placement order .

R.P. applied for permission to appeal to ORG and also made an application in ORG to revoke the placement order . The ORG proceedings were adjourned pending the outcome of the proceedings before ORG , which took place in DATE .

The Official Solicitor was notified of the appeal proceedings . He wrote to GPE , informing her of the possibility of free legal representation through ORG ( “ the Unit ” ) . When PERSON did not pursue this , ORG arranged for the ORG to consider her case . Specialist counsel was appointed and made available to represent GPE at the hearing . Although PERSON declined his services , he attended the hearing in case PERSON changed her mind . She did not change her mind and instead was assisted in the proceedings by ORG and Mr PERSON MP , who acted as her McKenzie friends .

In a statement to ORG in advance of the hearing , ORG set out his standard working practice . He indicated that :

“ If there is a conflict in the evidence relating to an adult party ’s capacity to conduct the proceedings then I will not accept appointment unless or until that conflict is resolved either by the experts arriving at a consensus , or by determination of the court . I will return to this issue below .

The solicitor , however , remains the primary point of contact for the protected party . My case worker relies on the solicitor to ensure the protected party is involved , so far as is possible , and is informed about the progression of the proceedings , and for communication of the protected party ’s ascertainable views , wishes and feelings with regard to the matters at issue . Whilst the solicitor may not take instructions from the protected party I regard the maintenance of personal contact between the solicitor and the protected party during the case as important , to ensure that proper information is provided and to afford the protected party the opportunity to express any concerns about issues raised , or information provided in the proceedings . I expect any concerns raised to be properly considered and communicated to my case worker . My case worker will consider the protected party ’s views and wishes on all relevant points but where those views and wishes run contrary to the legal advice received as to the management and progression of the case , it is unlikely that I will prefer the protected party ’s views over that advice , as it would not be in the protected party ’s interests that I do so .

I am not necessarily involved in the investigation of capacity unless specifically directed to investigate by the court ( although my staff are available to offer guidance with regard to the relevant test , if so requested ) . The evidence as to lack of litigation capacity may therefore be in the form of a medical or psychological report or by way of a report in the form of my standard certificate . The evidence is generally from either a psychiatrist or ( in the case of learning disability or acquired brain injury ) from a psychologist . In a small number of cases it will be from a general practitioner . In a minority of cases it may be from another clinical specialist such as a neurologist or geriatrician . In the alternative the court may have made a determination , on the existing evidence , that the person concerned is a ‘ protected party’ within the meaning of the rules .

If the evidence on capacity to conduct the proceedings is ambiguous , or conflicting , then the Divisional Manager will request further clarification from the person who has conducted the assessment , or refer back to the court for a determination of the capacity issue .

If during the course of the case the solicitor advises the case worker that the protected party may have recovered capacity , the standard instructions provide that the solicitor must obtain further evidence on this point .

If there is evidence that the protected party has recovered capacity , then I will make an application to the court for my discharge . It is of course always open to the protected party at any time during my appointment to apply for my discharge , if of the view that the evidence as to capacity is open to challenge . Similarly if a person comes forward as willing to act in substitution for myself , then an application may be made to substitute for me as litigation friend . My discharge or substitution as litigation friend is for the court to decide .

If my case worker is informed that the protected party asserts his or her own capacity to conduct the proceedings and disputes the existing evidence , then the protected party would be invited to agree to undergo further assessment - for example , through referral to his or her general practitioner or other ORG referral . If the protected party refuses to undergo further assessment or seek further evidence , I have , of course , no power to compel this .

At the hearing GPE claimed that there had been a violation of her rights under LAW because , inter alia , she had not been informed that ORG would be representing her until after the hearing ; the involvement of ORG was unlawful as she had the capacity to instruct her own solicitor ; the clinical psychologist had failed to apply the correct test in assessing capacity , namely the test identified in ORG decision of ORG ( ORG and CARDINAL ) [ DATE ] EWCA Civ DATE ; ORG and another [ DATE ] EWCA Civ CARDINAL ) ; and finally , if she lacked capacity , a family member should have been appointed as her litigation friend .

In a judgment dated DATE , the court found that GPE was fully informed of the involvement of ORG and the nature of his role ; the clinical psychologist correctly assessed GPE ’s capacity by reference to the ORG test , and ORG ’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for GPE With regard to the merits of GPE ’s case , the court found that the local authority had done what it could to facilitate the return of GPE to GPE ’s care and had not simply dismissed this possibility out of hand . The available evidence indicated , however , that GPE ’s significant learning disability prevented her from acquiring the necessary skills to provide GPE with the care that she needed and this was exacerbated by her increasing unwillingness to co - operate with social workers . The court therefore concluded that ORG was right to concede that the care and placement orders were in GPE ’s best interests and the judge was right to make the orders . Accordingly , it held that there had been no violation of GPE ’s rights under LAW .

R.P. applied for leave to appeal to ORG but leave was refused on DATE .

While ORG proceedings were ongoing , PERSON issued an application for leave to apply to revoke the contact order . The application was refused on DATE and on DATE she was refused leave to appeal to ORG .

On DATE PERSON issued an application for more frequent contact with GPE On receiving notice of the application , ORG wrote to the court to say that the question of GPE ’s capacity needed to be decided in the context of the contact application . At a hearing on DATE , an expert report was produced which indicated that GPE had capacity in relation to the contact proceedings . However , on CARDINAL DATE the application for contact orders was refused and GPE was refused leave to appeal . In addition , a further application for leave to revoke the placement order was refused and the court ordered that in future GPE could only apply for leave to revoke the placement order if she could put forward a change of circumstances since the date of the decision .

On DATE PERSON applied for permission to appeal the refusal to grant her leave to apply to revoke the placement order . Permission was refused on DATE . On DATE she issued an application for permission to proceed with a claim for judicial review , pleading that the local authority was acting unlawfully and unreasonably by proceeding with plans for the adoption of GPE whilst proceedings were pending before ORG Permission was refused on CARDINAL DATE . On DATE PERSON made a further claim for judicial review in respect of the adoption plan but permission was refused on DATE .

R.P. subsequently made a further application for leave to apply to discharge the placement order . On DATE the application for leave was refused and ORG was refused permission to appeal . In the context of those proceedings , the judge noted that “ the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate ” .

On DATE GPE was placed with prospective adopters , who submitted an application for an adoption order in DATE . An adoption order was granted by ORG on DATE and GPE ’s request for leave to appeal was refused by ORG . PERSON has subsequently lodged an application for leave to appeal to ORG out of time . That application was dismissed on DATE .

Section CARDINAL of LAW DATE provides for the making of care and supervision orders :

“ ( CARDINAL ) On the application of any local authority or authorised person , the court may make an order—

( a ) placing the child with respect to whom the application is made in the care of a designated local authority ; or

( b ) putting him under the supervision of a designated local authority or of a probation officer .

( CARDINAL ) A court may only make a care order or supervision order if it is satisfied—

( a ) that the child concerned is suffering , or is likely to suffer , significant harm ; and

( b ) that the harm , or likelihood of harm , is attributable to—

( i ) the care given to the child , or likely to be given to him if the order were not made , not being what it would be reasonable to expect a parent to give to him ; or

( ii ) the child ’s being beyond parental control . ”

The Adoption and Children Act DATE provides for the making of placement orders :

“ CARDINAL Placement Orders

( CARDINAL ) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority .

( CARDINAL ) The court may not make a placement order in respect of a child unless—

( a ) the child is subject to a care order ,

( b ) the court is satisfied that the conditions in section CARDINAL(CARDINAL ) of the CARDINAL Act ( conditions for making a care order ) are met , or

( c ) the child has no parent or guardian .

( CARDINAL ) The court may only make a placement order if , in the case of each parent or guardian of the child , the court is satisfied—

( a ) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent , or

( b ) that the parent ’s or guardian ’s consent should be dispensed with .

CARDINAL Parental etc . consent

( CARDINAL ) The court can not dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

( a ) the parent or guardian can not be found or is incapable of giving consent , or

( b ) the welfare of the child requires the consent to be dispensed with . ”

In GPE and GPE the Official Solicitor acts for people who , because they lack mental capacity and can not properly manage their own affairs , are unable to represent themselves and no other suitable person or agency is able and willing to act . He is currently appointed by the Lord Chancellor under LAW DATE .

NORP The Official Solicitor generally becomes involved in litigation because he is invited to do so . It is a matter for his discretion whether he consents to act and he can not be compelled to act . If he consents to act , he may become involved in proceedings as a “ litigation friend ” . However , the Practice Direction accompanying Part CARDINAL of ORG DATE ( “ FPR ” ) provides that the duty of a litigation friend is :

“ fairly and competently to conduct proceedings on behalf of the non - subject child or protected party ”

and that :

“ ... all steps and decisions he takes in the proceedings must be taken for the benefit of the non - subject child or the protected party ” .

Rule CARDINAL defines a “ protected party ” as “ a party , or an intended party , who lacks capacity to conduct the proceedings ” . “ Lacks capacity ” is defined by reference to LAW DATE :

“ CARDINAL People who lack capacity

( CARDINAL ) For the purposes of this LAW , a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of , or a disturbance in the functioning of , the mind or brain .

CARDINAL Inability to make decisions

( CARDINAL ) For the purposes of section CARDINAL , a person is unable to make a decision for himself if he is unable—

( a ) to understand the information relevant to the decision ,

( b ) to retain that information ,

( c ) to use or weigh that information as part of the process of making the decision , or

( d ) to communicate his decision ( whether by talking , using sign language or any other means ) .

( CARDINAL ) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances ( using simple language , visual aids or any other means ) .

( CARDINAL ) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision .

( CARDINAL ) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

( a ) deciding one way or another , or

( b ) failing to make the decision . ”

The leading judgment on the issue of litigation capacity is that of ORG in ORG ( Nos CARDINAL and CARDINAL ) [ DATE ] EWCA Civ DATE ; ORG and another [ DATE ] EWCA Civ DATE . In his judgment , PERSON noted :

“ The authorities are unanimous in support of CARDINAL broad propositions . First , that mental capacity required by the law is capacity in relation to the transaction which is to be effected . Second , that what is required is the capacity to understand the nature of the transaction involved when it is explained .

For the purposes of ORG Part DATE , the test to be applied , as it seems to me , is whether the party to legal proceedings is capable of understanding , with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require , the issues on which his consent or decision is likely to be necessary in the course of those proceedings . If he has capacity to understand that which he needs to understand in order to pursue or defend a claim , I can see no reason why the law whether substantive or procedure should require the imposition of a next friend or guardian ad litem ( or , as such person is now described in LAW , a litigation friend ) .

... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language ; and that he should not be regarded as unable to make a rational decision merely because the decision which he does in fact make is a decision which would not be made by a person of ordinary prudence . ”

The United Nations Convention on the Rights of Persons with Disabilities provides as follows :

“ LAW

The purpose of the present Convention is to promote , protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities , and to promote respect for their inherent dignity .

Persons with disabilities include those who have long - term physical , mental , intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others .

LAW and non - discrimination

GPE Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law .

GPE Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds .

In order to promote equality and eliminate discrimination , GPE Parties shall take all appropriate steps to ensure that reasonable accommodation is provided .

Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention .

Article CARDINAL - Equal recognition before the law

GPE Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .

GPE Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .

GPE Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .

GPE Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law . Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights , will and preferences of the person , are free of conflict of interest and undue influence , are proportional and tailored to the person ’s circumstances , apply for the shortest time possible and are subject to regular review by a competent , independent and impartial authority or judicial body . The safeguards shall be proportional to the degree to which such measures affect the person ’s rights and interests .

LAW to justice

GPE Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others , including through the provision of procedural and age - appropriate accommodations , in order to facilitate their effective role as direct and indirect participants , including as witnesses , in all legal proceedings , including at investigative and other preliminary stages .

In order to help to ensure effective access to justice for persons with disabilities , GPE Parties shall promote appropriate training for those working in the field of administration of justice , including police and prison staff .

Article CARDINAL - Respect for home and the family

GPE Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage , family , parenthood and relationships , on an equal basis with others , so as to ensure that :

a ) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized ;

b ) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age - appropriate information , reproductive and family planning education are recognized , and the means necessary to enable them to exercise these rights are provided ;

c ) Persons with disabilities , including children , retain their fertility on an equal basis with others .

GPE Parties shall ensure the rights and responsibilities of persons with disabilities , with regard to guardianship , wardship , trusteeship , adoption of children or similar institutions , where these concepts exist in national legislation ; in all cases the best interests of the child shall be paramount . GPE Parties shall render appropriate assistance to persons with disabilities in the performance of their child - rearing responsibilities .

GPE Parties shall ensure that children with disabilities have equal rights with respect to family life . With a view to realizing these rights , and to prevent concealment , abandonment , neglect and segregation of children with disabilities , GPE Parties shall undertake to provide early and comprehensive information , services and support to children with disabilities and their families .

GPE Parties shall ensure that a child shall not be separated from his or her parents against their will , except when competent authorities subject to judicial review determine , in accordance with applicable law and procedures , that such separation is necessary for the best interests of the child . In no case shall a child be separated from parents on the basis of a disability of either the child or CARDINAL or both of the parents .

GPE Parties shall , where the immediate family is unable to care for a child with disabilities , undertake every effort to provide alternative care within the wider family , and failing that , within the community in a family setting . ”


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicants were born in DATE and DATE respectively .

F and M are the father and the mother of D , a girl born on DATE . On DATE she was admitted to the child psychiatric department of a hospital for a DATE period for observation . During the observation she mentioned that she had played “ finger games ” with her father . According to the parents , D had referred to hobby crafts . It appears that the psychologist and the social welfare authorities interpreted this as sexual petting .

D received treatment at the hospital from CARDINAL DATE to CARDINAL DATE , following which she went to live in a substitute family . The applicants were allegedly refused access to D during her hospitalisation .

Meanwhile , on CARDINAL DATE ORG ( sosiaalilautakunta , socialnämnden ) decided to place D in public care on account of a suspicion that she had been sexually abused . The applicants unsuccessfully challenged the public care decision in the administrative courts . It appears that ORG rendered its decision in DATE .

NORP The social welfare officials allegedly told the applicants that the girl would return to live with them if they assumed responsibility for the situation and acknowledged the abuse . Although the applicant father was allegedly not guilty of any abuse , on DATE , he admitted the abuse to the social welfare officials and a psychiatrist in order to have D return home . He did not describe the nature of the abuse . On DATE he withdrew his admission as he felt that he could not bear having this lie on his conscience for the rest of his life .

NORP In DATE the applicants lodged an application with a view to having the public care terminated . In the course of those proceedings , on DATE , ORG reported to the police the alleged sexual abuse committed in DATE . As to the fact that DATE had passed since the initial suspicion had arisen , the ORG explained that it had refrained from taking criminal action in order to afford the applicants an opportunity to seek therapy . If the therapy had proved successful , the public care could have been terminated and D could have returned to live with the applicants . ORG apparently considered that the applicants ' therapy had proved unsuccessful .

As noted above , the alleged sexual abuse was reported on DATE . On DATE the applicant father was questioned by the police . He denied any abuse . D , now aged CARDINAL , was not questioned during the pre - trial investigation . Nor was the father asked whether he wished to have questions put to the girl . The investigation was completed on DATE .

On DATE the public prosecutor brought charges against the father for sexual abuse of a minor and for sexual intercourse with a descendant ( lapseen kohdistuva haureus ja sukurutsa jälkeläisen kanssa , otukt med barn och blodskam med avkomling ) .

In its written submission of CARDINAL DATE to ORG ( käräjäoikeus , tingsrätten ) ORG claimed compensation on behalf of NORP It also submitted a written medical opinion by PERSON , a psychiatrist , according to which the hearing of NORP before the court would harm her development . It appears that PERSON had not seen D since DATE or DATE .

On DATE the applicant father was summoned to ORG hearing . On DATE he submitted his written submission , denying the charges . He criticised ORG for not having reported the alleged abuse sooner , given the fact that the report had been based on a suspicion which had first arisen in DATE . Further , he requested that D , now aged DATE , be heard before the court .

At the hearing on DATE he denied the charges and maintained that D should be heard either before the court or elsewhere . The court refused the request , considering that the hearing of the girl before the court would not be in her best interests having regard to the time that had passed since the alleged offences and the therapy that she had received . The court made reference to the above written medical opinion prepared by ORG

The court received oral evidence from the social welfare director PERSON , the applicant mother , PERSON , ORG , a psychologist , PERSON , a psychiatrist , GPE , a social worker , D 's substitute mother and D 's teacher . PERSON gave evidence to the effect that she had heard about the events from D herself . D had said that her father had tickled her genital area and that she had tickled his penis which had risen following which he had urinated on her hand . She had also said that he had put his penis in her mouth and kept it there for a long time until he had urinated into her mouth . D had also lain on top of her father and his penis had been on her genital area . PERSON , GPE and GPE testified to having been present when the applicant father had admitted the alleged abuse . None of the witnesses had made any observations on the alleged acts .

The court noted that the evidence produced before it was based on D 's statements to the medical personnel of the institution in which she had been treated , and on circumstances that had been observed during the observation . There was no forensic evidence as to the alleged abuse . On the other hand , there was the admission by the applicant father which had seemed authentic and true to the above witnesses . The court concluded that the statements of Dr GPE and GPE proved that the applicant father was guilty of the alleged offences . Having regard to the seriousness of the charges , his admission alone did not suffice to prove his guilt . However , it did not lack significance since according to GPE and PERSON it had been made voluntarily without any pressure having been exercised on him ; nor had he been misled .

On DATE ORG convicted the applicant father as charged and sentenced him to a suspended term of DATE and DATE imprisonment . He was ordered to pay compensation plus the legal costs of D 's representation .

On DATE the applicant father appealed , maintaining that D should be heard . He also requested that ORG ( terveydenhuollon oikeusturvakeskus , rättsskyddscentralen för hälsovården ) be invited to interview her .

ORG ( hovioikeus , hovrätten ) refused the requests . It however held an oral hearing and received the same oral evidence as had been presented to the lower court . PERSON now testified to having met D some DATE before ORG hearing and to having asked her about the alleged abuse . D had replied that her father had not abused her sexually in any way . ORG also received oral evidence from the applicant father .

On DATE ORG amended ORG judgment in that it rejected the charge of sexual intercourse with a descendant . It upheld the rest of the lower court 's judgment , endorsing its reasoning . It did not comment separately on the testimony of PERSON

On DATE the applicant father appealed further , maintaining that D should be heard in particular as she had denied the sexual abuse to ORG DATE before ORG hearing . He repeated his request that ORG be invited to interview the girl . He also submitted a letter from D in which she stated that nothing improper had taken place between her and her father .

On DATE ORG ( korkein oikeus , högsta domstolen ) granted leave to appeal insofar as the compensation claims were concerned and received ORG reply to the appeal .

On DATE ORG invited an expert opinion from ORG on , inter alia , whether D could be heard before the court . On DATE the ORG received an expert statement running to CARDINAL pages from its standing expert , Dr GPE It also invited an opinion by the psychiatrist who had treated PERSON It was received on DATE . As these opinions were partly contradictory in respect of the question whether D could be heard before the court , the ORG requested , on DATE , Dr GPE 's comment on the opinion of Dr GPE It was received on DATE . The ORG submitted its opinion to ORG on DATE following which it was communicated to the parties for comment .

On DATE ORG refused leave to appeal insofar as the criminal aspects of the case were concerned . As to the compensation claims , it quashed the lower courts ' judgments and remitted the case to ORG as ORG had lacked competence to represent D in the proceedings .

On DATE the case was restored to ORG case - list .

On DATE the court , having held an oral hearing at which it heard D , among others , ordered the applicant father to pay compensation to D in the amount of CARDINAL plus interest from CARDINAL DATE .

The applicant father and D appealed . On DATE ORG , having held a hearing , revoked the lower court 's judgment and rejected the claims . In those proceedings D now aged CARDINAL testified that she had never been sexually abused by her father . No one appealed .

Meanwhile , on DATE when D reached the age of majority she moved back in with her parents .

The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; Act no . DATE ) provides that when questioned during a pre - trial investigation the child must be treated with due respect having regard to his or her age and level of development . Where possible , the interview should be carried out by a police officer acquainted with that task . If need be , a doctor or an expert must be consulted before the interview ( LAW ) .

LAW ( esitutkintalaki , förundersökningslagen ; Act no . CARDINAL/CARDINAL ) provides that questioning and other investigation measures requested by a party must be carried out , if that party shows that there is a possibility that these measures could have an effect on the case , provided that the expenses so incurred are not disproportionate to the nature of the case ( section CARDINAL ) . The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre - trial investigation and with the public prosecutor after the case has been transferred to him or her ( section CARDINAL(CARDINAL ) ) . A pre - trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience . Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation ( section CARDINAL) .

The investigator may permit a party and his counsel to be present during the questioning of another party or witness , provided this does not hinder the investigation of the offence ( section CARDINAL(CARDINAL ) ) . A party and his or her counsel may , with the permission of the investigator , put questions to the person being questioned in order to clear up the case . The investigator may decide that the questions are to be put through him or her . Also , the prosecutor may put questions to the person being questioned . A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also ( section DATE ) .

Before the closing of the criminal investigation , the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation , if this is conducive to hastening or facilitating the hearing of the case in court . The statement is to be appended to the investigation record ( section DATE ) .

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) lays down the applicable rules on receiving testimony .

A witness must give testimony orally before the court and must not refer to a written testimony . Oral evidence given during a pre - trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court ( chapter DATE , Article CARDINAL ; Act no . DATE ) .

If a person called as a witness is DATE , is mentally ill or mentally retarded , or his or her mental capacities have otherwise been impaired , the court shall , taking into consideration the circumstances , assess whether or not he or she may be heard as a witness ( LAW , LAW ) . Although the hearing of evidence from children falls within the court 's discretion , there has been a long - standing practice not to hear evidence in court from children under the age of ten .

At the time of the proceedings in question , there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre - trial investigation . There was however a practice to admit such recordings as evidence .

The Code of Judicial Procedure was amended with effect from DATE to the following effect . A statement in a pre - trial investigation record or another document may as a rule not be admitted as evidence in court . The court may exceptionally admit as evidence such a statement , if the witness in question can not be questioned before the court ( chapter DATE , LAW ; Act no . CARDINAL/CARDINAL ) .

The Code of Judicial Procedure was again amended with effect from CARDINAL DATE to the effect that the testimony of a person DATE , or a mentally disturbed person , recorded on audio or videotape during a pre - trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , Article CARDINAL ) ; Act no . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( no . CARDINAL/CARDINAL ) , this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence .

Chapter DATE , Article CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) of LAW reads with effect from DATE as follows :

“ ( CARDINAL ) A person who has not attained DATE or whose mental capacities have been impaired , may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and :

( i ) if the hearing in person is of significant relevance for the establishment of the facts of the case ; and

( ii ) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development .

( CARDINAL ) Where necessary , the court shall designate a support person for the person to be heard , pursuant to the provisions of LAW no . CARDINAL ) .

( CARDINAL ) The person to be heard shall be questioned by the court , unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of LAW . The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or , if the court finds it appropriate , directly to the person concerned . Where necessary , the hearing may take place on LOC other than the court room . ”

In DATE , LAW was supplemented with a new section LAW no . CARDINAL/CARDINAL ) that entered into force on DATE and reads as follows :

“ The questioning of a victim or a witness must be recorded on videotape , or by using other comparable audio - visual means of recording , if there is an intention to use the statement given in the interview as evidence in court proceedings , and where it is not possible to hear the victim or the witness in person , due to his or her young age or mental disturbance , without causing likely harm to him or her . The special requirements set by the level of maturity of the questioned person for the methods used , for the number of participating persons , and for other conditions , must be taken into account in the questioning . The person in charge of the criminal investigation may decide that authorities other than the investigators may , under the supervision of the investigator , put the questions to the person being interviewed . The suspect must be provided with an opportunity to put questions to the questioned person . On the request of the suspect , he or she may also put the questions through a legal counsel or other representative . However , the investigator may order that the questions be put through his or her intermediary . ”


Violation of Art. 5-4;Violation of Art. 5-5;No violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

In DATE , the applicant , then aged DATE , was convicted of murder and sentenced to be detained during Her Majesty ’s pleasure . The “ tariff ” part of the applicant ’s sentence , attributable to deterrence and punishment , was set at DATE and expired in DATE .

Following the expiry of his tariff , the applicant ’s case was the subject of review by ORG on a number of occasions . Following the fourth review in DATE , the applicant absconded from prison . Following his recapture on DATE it was decided that his case should be reviewed again in DATE .

At this , the fifth review , which in fact took place in DATE , ORG recommended that the applicant be given a provisional release date of DATE hence , during which time he should spend DATE in a Category D open prison , followed by DATE in a ORG Scheme Hostel .

ORG recommendation was not accepted by the Secretary of ORG who directed that the applicant be transferred to a Category D prison and his case be subject to further review in DATE . The applicant was notified of the Secretary of ORG ’s decision and ORG recommendation by letter of CARDINAL DATE . By letter dated DATE , the applicant made representations against that decision . These were rejected by the Secretary of ORG by letter dated DATE .

The applicant sought leave to apply for judicial review of the Secretary of ORG ’s decision . Leave was refused by a single judge of ORG on DATE . The applicant was advised by counsel who represented him at the hearing that there was no tenable basis for appeal against the decision refusing leave .

On DATE , the applicant was notified that , pursuant to interim measures introduced by the Secretary of ORG on DATE , the applicant ’s case would be referred back to ORG for review in the form of an oral hearing at which the applicant would be entitled to legal representation . That review took place on DATE and , by letter dated DATE , ORG recommended the applicant ’s release . The Home Secretary followed the recommendation and released the applicant on DATE .

English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of CARDINAL known as detention during Her Majesty ’s pleasure ( section CARDINAL(CARDINAL ) of ORG ) ; in respect of offenders between the age of DATE , custody for life ( section CARDINAL(CARDINAL ) of LAW DATE ) , and in respect of offenders aged CARDINAL and over , life imprisonment ( section CARDINAL(CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .

Mandatory life sentences are fixed by law , in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( e.g. manslaughter , rape or robbery ) . The principles underlying the imposition of a discretionary life sentence are :

Discretionary life sentences are indeterminate in order that “ the prisoner ’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large ” ( R v. PERSON [ DATE ] CARDINAL Cr . App . Rep. CARDINAL , p. CARDINAL ) .

The notion of detention during Her Majesty ’s pleasure had its origins in an Act of CARDINAL for “ the safe custody of insane persons charged with offence ” . Section CARDINAL provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in “ strict custody until His ORG pleasure ” and described their custody as being “ during His < Majesty ’s > pleasure ” .

In DATE , detention during His LOC pleasure was introduced in respect of offenders aged DATE and then extended to cover those under DATE . The provision in force at present is LAW ) of ORG as amended ) which provides :

“ A person convicted of an offence who appears to the ORG to have been under DATE at the time the offence was committed shall not , if he is convicted of murder , be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her ORG ’s pleasure and , if so sentenced , he shall be liable to be detained in such a place and under such conditions as the Secretary of ORG may direct . ”

In the case of ex parte PERSON on DATE , PERSON in ORG held as follows in respect of detention during Her ORG ’s pleasure :

“ At the time of sentencing , the detention orders under LAW were mandatory . It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder . But the sentence itself is closer in substance to the discretionary sentence of which part is punitive ( retribution and deterrence ) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied . The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period : see NORP v. Secretary of ORG , ex . p. Doody & others [ DATE ] Q.B. CARDINAL and GPE v. GPE ( DATE ) . The order for detention under section DATE is by its terms both discretionary and indeterminate : it provides for detention ‘ during Her Majesty ’s pleasure’ . ( Section CARDINAL(CARDINAL ) which expressly authorised the Secretary of ORG to discharge the detainee on licence ‘ at any time’ was repealed by ORG provisions of LAW DATE , but this does not , in my judgment , alter the nature of the sentence in any material respect . ) I would decide the present case on the narrow ground that , notwithstanding ORG practice , the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether ORG rather than ORG governs his case . ”

The Divisional Court accordingly held that the applicant in that case , who was detained during Her Majesty ’s pleasure , should be afforded the same opportunity , as would be given a discretionary life prisoner , to see the material before ORG when it decided upon whether he should be released after his recall to prison on revocation of his licence .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty ’s pleasure have a “ tariff ” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular , following the coming into force on DATE of LAW DATE .

NORP Under the relevant provisions of LAW DATE , the regime applying to the release of discretionary and mandatory life prisoners was the same . Section CARDINAL(CARDINAL ) of the CARDINAL Act provided inter alia that :

“ The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE and the trial judge if available . ”

The DATE Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .

Pursuant to section CARDINAL of the CARDINAL Act , after the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner is entitled to an oral hearing , to disclosure of all evidence before ORG and to legal representation . He is also entitled to call witnesses on his behalf and to cross - examine those who have written reports about him .

NORP The regime applicable to mandatory life prisoners was , however , preserved within LAW . LAW of the DATE LAW provides insofar as relevant :

“ ( CARDINAL ) If recommended to do so by ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”

The criterion for determining whether re - detention is justified is that of dangerousness , meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the life or limb of the public ( see R v. Secretary of ORG for ORG , ex . parte PERSON , unreported , transcript pp . DATE ; and the PERSON v. the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , at § CARDINAL ) .

In light of the judgments of the ORG in the cases of PERSON v. the GPE and PERSON v. the GPE ( PERSON v. the GPE judgment of DATE , loc . cit . p. CARDINAL , and PERSON v. the GPE judgment of DATE , Reports CARDINAL-I , p. CARDINAL ) , the Secretary of ORG announced , on DATE , the introduction of interim measures taking effect from DATE which changed the procedure under which the cases of prisoners detained during Her Majesty ’s pleasure were reviewed by ORG .

Pursuant to these measures , the review took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross - examine witnesses . Prisoners also normally received full disclosure of all material relevant to the question of whether they should be released prior to the hearing . Pending amendment of LAW CARDINAL(CARDINAL ) of the CARDINAL LAW , ORG did not , however , have power to direct the release of any prisoner . This remained the prerogative of the Secretary of ORG subject to consultation with the judiciary , as required by CARDINAL ) of the CARDINAL Act .


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

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

The applicant ’s parents owned a large metallurgical factory in ORG . Following the outbreak of the Second World War , in DATE the property was taken over by the NORP occupying administration . The applicant ’s entire family were evicted from their home , which was in the same town , put in a transit camp for a period and in DATE resettled to the PERSON , the eastern part of GPE under a special regime of NORP occupying administration . During the war the factory operated under a ORG appointed by the NORP administration ( “ NORP ” ) . When the applicant ’s family returned DATE , they found only the bare walls . All equipment had been stolen .

After the war , in DATE , the NORP authorities instructed the applicant ’s father to make a list of the damage that had been done to his property by the NORP occupying forces . He submitted the list to the local authorities in DATE . He estimated the amount of damage at MONEY ( PLZ ) .

Until DATE GPE paid war reparations to GPE on the basis of international agreements . The applicant ’s parents did not , however , receive any compensation . In DATE GPE had renounced its right to obtain further reparations from the then GPE ( see below , Relevant domestic and international law ) .

In DATE the applicant requested ORG , represented by the PERSON Governor , to pay him compensation for damage caused in the part of the property owned by his mother as a result of the acts of the occupying NORP administration . On DATE the Minister of ORG refused . The applicant appealed to ORG .

By a judgment of DATE that court dismissed the applicant ’s appeal . It noted that it was not in dispute that the applicant ’s mother ’s property had been damaged by the NORP occupying administration , but considered that it had to examine whether the applicant ’s claim was of such a character as to be determined by way of an administrative decision . It observed that it was true that GPE had obtained war reparations from GPE on the basis of international agreements and that these were intended to cover both damage sustained by the ORG and various forms of damage suffered by individuals . However , it held that neither the domestic nor international law provided for a substantive individual compensation claim on the part of former owners or their successors in title which could be determined by way of an administrative decision .

In DATE the applicant submitted a compensation claim against ORG to the GPE – ORG concerning the part of the property owned by his father .

By a judgment of DATE ORG dismissed that claim . In so far as the applicant had argued that his claim was based on liability in tort under LAW , the court considered that the damage which his predecessor in title had sustained had originated from the acts of the NORP occupying administration . Hence , no civil obligations based on the law of tort could have arisen between the applicant and ORG . Moreover , while it was true that the ORG had participated after the Second World War in international agreements concerning the war reparations to be paid to GPE , and that GPE had paid them in part , no international legal agreements had ever been concluded which would have imposed on the ORG an obligation to transfer to individuals the funds which it had received in war reparations from GPE .

Likewise , no such obligation had been imposed on the ORG by the domestic law . It was true that in DATE the NORP authorities had created a Ministry of War Reparations ( Resort Odszkodowań Wojennych ) , but its competence had been limited to establishing the war damage caused in GPE by the NORP occupying administration and making relevant estimates with a view to obtaining reparations . Similarly , LAW ( LOC o PERSON ) did not impose on relevant institutions an obligation to issue ordinances regulating compensation due to individuals . Consequently , the domestic law did not contain any regulation under which the applicant could claim compensation from the NORP State in respect of damage caused to individuals by the NORP occupying authorities during the war .

The applicant appealed . He disagreed with the assertion that his claim had been based on legal provisions governing civil liability for tortious acts . He submitted that the first - instance court had breached the provisions of LAW in so far as LAW thereof specifically established that the ORG had a civil liability for the acts of its agents . He further referred to LAW , which stated that everyone had the right to compensation for damage caused by the unlawful acts or omissions of public authorities . He submitted that , in his case , the ORG had failed in its obligation to issue legal regulations , in the form of an ordinance , entitling individuals to make substantive compensation claims in respect of war damage they had suffered . The obligation , in his view , originated from LAW . He also referred to LAW No . CARDINAL to the Convention .

The applicant further argued that the ORG had obtained reparations from GPE which , contrary to the opinion expressed in the proceedings by the ORG - Treasury representatives , were intended to cover both the ORG and individual damage . He referred to the judgment of ORG of DATE . In his submission , therefore , the ORG should have been obliged to pay him compensation from the funds it had received for that purpose . Under the rule of law a citizen could not legitimately be required to bear the adverse effects of the ORG ’s failure to legislate . LAW had entrusted responsibility for its execution to the Minister . The ordinary meaning of the phrase “ entrusts the execution ” had to be seen as imposing on the Minister an obligation to issue relevant ordinances which would make it possible for individuals to obtain compensation funded by war reparations .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal . It observed , firstly , that the first - instance court had failed to examine whether LAW DATE was still in force . It held that that PERSON had been enacted with the specific purpose of reorganising the economy through planning techniques . It had therefore lapsed at DATE following the implementation of the plan it had created and could not , therefore , serve as a source of any individual rights and obligations . Moreover , section QUANTITY on which the applicant had relied , could not be regarded as authorisation for issuing the ordinance , as such statutory authorisation had to comply with precise conditions that were set out in DATE LAW . Hence , the fact that no ordinance had been issued on the basis of that section could not be construed as a failure to act giving rise to the ORG ’s liability in tort under LAW .

In any event , the transitional provisions of that Code , which had entered into force on DATE , had clearly provided that the legal consequences of civil obligations arising out of events that had occurred prior to that date had to be assessed in the light of the statutory provisions in force at the time the events took place . Hence , the civil liability of the ORG could not be examined in the light of LAW , but only in the light of LAW , which had been enacted in DATE . However , LAW did not specifically regulate the ORG ’s liability in tort . Civil liability in tort was governed only by general provisions and could arise only when it could be shown that the tortfeasor had acted unlawfully or had failed to act when required to do so . In the absence of any obligation on the ORG to legislate on individual compensation claims , it could not be said that the ORG had acted unlawfully and should have been held liable .

The reparations which GPE had obtained from GPE constituted a debt of the latter towards the Polish State . No individual right vis - à - vis ORG had been generated by the payment of reparations to ORG .

ORG further accepted the reasoning of the lower court concerning the legal character of the provisions of LAW . It reiterated that no individual right to compensation could be derived from it .

The applicant lodged a cassation appeal with ORG , essentially reiterating his earlier arguments .

By a judgment of DATE ORG dismissed his cassation appeal .

It observed that the applicant had asserted that his claim was based essentially on the ORG ’s failure to enact ordinances providing for a detailed compensation mechanism for damage caused by the NORP occupying administration . However , no liability in tort could have arisen on the part of the ORG , as it had been under no obligation to introduce such legislation . Neither Article CARDINAL of LAW nor the provisions of LAW of DATE provided that mere inaction - provided it was not unlawful – could give rise to the ORG ’s liability in tort . Section CARDINAL of LAW , contrary to the applicant ’s assertion , did not impose any such obligation on the State .

Nor could the court accept that the applicant ’s claim could be based directly on the LAW . For the ORG ’s liability to arise towards an individual a statutory legal basis was necessary . Moreover , under the case - law of ORG , Article CARDINAL governing ORG liability could be applied only to events that occurred after the LAW entered into force in DATE . In conclusion , the findings of the lower courts that the ORG ’s conduct could not be qualified as unlawful were correct and had to be upheld .

LAW – an agreement on policy for the occupying and reconstruction of GPE after the Second World War and the NORP surrender of CARDINAL DATE – was adopted by the CARDINAL ORG of GPE , GPE and GPE ( “ the CARDINAL Powers ” ) and set out , inter alia , the principles governing the payment of war reparations by GPE ( LAW , “ Reparations from GPE ” ) .

The issue of war reparations for GPE , which in accordance with LAW were to be settled by the GPE from its share , was resolved by a bilateral treaty between the GPE and GPE : the Agreement of DATE between ORG and the Government of the GPE on compensation for financial losses sustained during the NORP occupying administration ( umowa między PERSON RP a ORG o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką ) .

In DATE GPE expressly renounced further reparations in an agreement with GPE ( GPE ) and again in LAW of DATE with GPE ( GPE ) .

LAW was adopted on DATE . Its Section CARDINAL read :

“ A National Economy Plan CARDINAL DATE ( ORG ) is hereby established . ”

Section CARDINAL provided as follows :

“ The raising of living standards of the working class above their pre - war levels shall be the essential task of the national economy from DATE until DATE . ”

Section CARDINAL read , inter alia :

“ The task referred to above shall be carried out through ... b ) war reparations . ”

Section CARDINAL read :

“ Damage caused by the war shall be repaired in a manner corresponding to plans regarding reconstruction of the national economy ; with due regard being had to the creation of basis for its necessary restructuring and growth during the next national planning periods and to preventing further deterioration of national property . ”

Section CARDINAL provided :

“ ORG and the ministers shall be responsible for implementing the provisions of this LAW . ”

Articles CARDINAL et seq . of the NORP Civil Code , which entered into force in DATE , provide for liability in tort . Under this provision , anyone who through his or her fault causes damage to another is required to repair it .

Articles CARDINAL et seq . of ORG ( ORG cywilny ) provide for the ORG ’s liability in tort . In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for any damage caused by a ORG official in the performance of his or her duties . ”

On DATE the Law of CARDINAL DATE on amendments to LAW and other statutes ( “ the LAW ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability for tort under LAW of LAW including the addition of a new LAW tortious liability for failure to enact legislation , a concept known as “ legislative omission ” ( zaniechanie legislacyjne ) .

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

“ CARDINAL . If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so , the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages . ”

Under the transitional provisions of LAW , LAW as applicable before DATE applies to all events and legal situations that subsisted before that date .

Article CARDINAL § CARDINAL of the DATE LAW which entered into force on DATE , states , in so far as relevant , as follows :

“ Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was reconsidered and confirmed on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .