Violation of Art. 5-3;Violation of Art. 6-1

The applicant was born in DATE and lives in Gdańsk .

On DATE the applicant was arrested on suspicion of armed robbery . On DATE the ORG remanded him in custody in view of the reasonable suspicion that he had committed armed robbery . It held that there was a reasonable risk that the applicant might abscond and attempt to induce witnesses to give false testimonies .

On DATE the ORG prolonged the applicant 's detention until DATE . It found that the prolongation was justified by the need to obtain and secure evidence from many sources and interrogate a number of other persons who could be charged together with the applicant .

On DATE the ORG extended the applicant 's detention until DATE . It found that it was highly probable that he had committed the offence in question . It also relied on the need to obtain various expert reports . Lastly , it held that the severity of the anticipated penalty justified the prolongation of the applicant 's detention .

Later , several other persons were detained and charged in connection with the same investigation conducted by ORG . The applicant was charged with the commission of CARDINAL robberies and armed robberies .

On DATE ORG ordered that the applicant be kept in custody pending investigation until DATE . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged . In that respect , it referred to evidence given by ORG , a member of the same criminal group , who acted as a witness against the other suspects . ORG further relied on the need to obtain and secure evidence , in particular from experts in ballistics , biology and fingerprints . It stressed that it was also necessary to carry out a reconstruction of the crime and to confront the suspects with each other . It also considered that the scale and nature of the offences in question justified the applicant 's continued detention .

On DATE ORG prolonged the applicant 's detention pending investigation DATE which had meanwhile exceeded the DATE time - limit set for detention pending the investigation under LAW until DATE . It considered that the case was “ particularly complex ” given the volume of evidence and the number of charges against the numerous suspects . It also held that there was a reasonable risk that the applicant and other suspects might obstruct the investigation .

On DATE ORG ordered that that term should be prolonged further until DATE . It reiterated the previous grounds given for the applicant 's detention and added that the case was very complex , given that CARDINAL further suspects had in the meantime been charged and detained in the case and that several other potential suspects were still being sought .

Further prolongations of the applicant 's detention pending the investigation were ordered by ORG on DATE ( up to DATE ) and DATE ( up to CARDINAL DATE ) . In its decision of DATE , ORG reiterated the original grounds given for his detention . Taking into account the nature of the offences , ORG added that the fact that the charges against all CARDINAL suspects were closely interrelated gave substance to the risk that , once released , they might obstruct the proceedings . It also referred to the particular complexity of the case . Furthermore , it noted that the prolongation of the investigation was due to the fact that new suspects had been identified in the course of the investigation . In its decision of DATE , ORG added that the prolongation of detention was justified by the need to obtain DNA evidence .

On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with CARDINAL counts of armed robbery which had been committed in an organised armed criminal group . The bill of indictment specified that the applicant was subject to the rules on recidivism . It listed CARDINAL charges brought against CARDINAL defendants , who were all detained on remand . The case file comprised CARDINAL volumes . The prosecution asked the court to hear evidence from CARDINAL witnesses .

The trial began on DATE . However , as of DATE the reading out of the bill of indictment by the prosecution had still not been concluded . Initially , the trial court held CARDINAL hearings per month .

During the trial , ORG prolonged the applicant 's detention several times . The relevant decisions were given on DATE ( extending his detention up to DATE ) , DATE ( ordering his continued detention until DATE ) , CARDINAL DATE ( prolonging that period until DATE ) , CARDINAL DATE ( extending his detention until DATE ) , DATE ( prolonging his detention until DATE ) , CARDINAL DATE ( prolonging his detention until DATE ) , CARDINAL DATE ( extending that term until DATE ) , DATE ( extending that term until DATE ) , DATE ( ordering his continued detention until DATE ) , DATE ( extending that period until DATE ) and DATE ( prolonging his detention until DATE ) .

In all those decisions ORG considered that the original grounds given for the applicant 's detention were still valid . It stressed that the applicant 's detention was the only measure which could secure the proper conduct of the proceedings in such a particularly complex case , given the nature of the charges , the number of defendants and the connections between them . In addition , it referred to the volume of evidence to be heard .

In its decision of CARDINAL DATE prolonging the applicant 's detention , ORG considered that the trial could be terminated by DATE . In addition to the grounds previously invoked , it found that the prolongation of detention was justified under LAW CARDINAL of the Code of Criminal Procedure by the particular complexity of the case . It further observed that the delays in the trial were partly attributable to some of the defendants who had attempted to disrupt the proceedings and , consequently , had to be removed from the court room . It instructed the trial court to hold CARDINAL hearings per month . Furthermore , it held that no other preventive measure could secure the proper conduct of the trial . In that respect , ORG observed that there was a reasonable risk that the applicant and other defendants might interfere with the proceedings , given the nature of the charges , the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation .

On DATE the ORG dismissed the applicant 's and his CARDINAL co - defendants ' request for the judges and lay members of the trial court to withdraw .

In its decision of DATE extending the applicant 's detention , ORG observed that the trial could not be terminated due to obstructiveness of the defendants who had filed numerous requests challenging the trial court . It further observed that although the applicant and other defendants were free to make use of their procedural rights , the abuse of those rights had undoubtedly led to delays in the trial . It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings .

NORP In its decision on the applicant 's detention of DATE , ORG observed that up to DATE the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence . It also observed that the trial could be concluded by DATE provided that ORG endeavoured to organise the trial efficiently .

NORP In its decision of DATE dismissing the applicant 's appeal against the decision of DATE prolonging his detention , ORG held that LAW established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings . It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by concrete facts , but resulted from the above presumption .

In its decision of CARDINAL DATE ORG again referred to the presumption established by LAW . In its decision of DATE dismissing the applicant 's appeal against the decision of CARDINAL DATE prolonging his detention , ORG held that that presumption alone justified the applicant 's continued detention . It also held that keeping the applicant in custody was necessary in order to prevent him from interfering with the trial , given the reasonable risk of such interference which flowed from the fact that he had been charged with the commission of the offences in an organised criminal group .

During the trial the applicant filed numerous but unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis .

On DATE the ORG made a severance order with a view to expediting the proceedings , and thereafter CARDINAL defendants ( ORG , GPE , GPE and GPE ) , who in the meantime had been released , were to be tried separately .

After DATE no hearing was held due to the serious illness of the judge rapporteur . On DATE the President of the Criminal Section IV of the ORG assigned a new judge rapporteur . Consequently , the trial had to commence de novo .

On DATE ORG prolonged the applicant 's detention until DATE . The applicant appealed against that decision . On DATE a different panel of ORG quashed the impugned decision and ordered the applicant 's release under police supervision . It also imposed on him a prohibition on leaving the country . ORG had regard to the fact that the trial had to commence de novo and that the applicant had already spent DATE in pre - trial detention .

The applicant was released on DATE .

On DATE the trial court made a further severance order and split the case into CARDINAL separate cases .

By DATE the trial court had held CARDINAL hearings of the CARDINAL which had been scheduled . It heard CARDINAL witnesses .

It appears that the proceedings are still pending before the first - instance court .

On DATE the applicant filed with ORG a complaint about a breach of his right to a trial within a reasonable time and asked for compensation . He relied on CARDINAL of the LAW DATE on complaints about a breach of the right to a trial within a reasonable time ( “ the DATE Act ” ) .

The applicant submitted that the charges against all the defendants had been unjustifiably joined in CARDINAL set of proceedings . He claimed that numerous hearings had been cancelled and that the process of taking evidence from witnesses had been lengthy . He also submitted that he had been detained on remand throughout the proceedings and that his applications challenging the trial court had been made in accordance with the provisions of criminal procedure .

On DATE ORG dismissed his complaint as unfounded , having regard to the criteria set out in section CARDINAL § CARDINAL of the CARDINAL Act , namely the conduct of the court and of the parties , the nature of the case , its factual and legal complexity and what was at stake in the proceedings for the complainant .

Replying to the applicant 's submissions , ORG held that the joint examination of the charges against the defendants who had collectively committed a crime was justified under the domestic law . Furthermore , it considered that it could not be said that the exceptional cancellations of some hearings pointed to inactivity on the part of the trial court , bearing in mind the number of hearings held and the fact that they had been scheduled in advance .

ORG also found that the applicant 's complaint relating to the allegedly lengthy process of taking evidence from witnesses was unsubstantiated . It pointed out in this respect that the trial court had disciplined the witnesses who had failed to comply with the summons . The court further held that the defendants had contributed to the length of the proceedings by multiplying their applications in respect of procedural issues that had already been determined . It found that the fact that the applicant had been remanded in custody was not a relevant consideration for the determination of his complaint concerning the allegedly excessive length of proceedings .

In conclusion , having regard to the nature of the case and its complexity , ORG held that delays in the proceedings could not be attributed to the trial court . On the contrary , the trial had been conducted in a diligent manner .

The relevant domestic law and practice regarding the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § CARDINAL , ORG CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII , and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicants are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE .

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

On DATE the NORP Prime Minister made an official visit to GPE and gave a reception on the occasion of GPE ’s national day , which commemorates the CARDINAL ORG when the transfer of hitherto NORP GPE to GPE was declared .

The NORP Prime Minister decided to attend the reception and made that intention public DATE before the event .

The applicants were of the opinion that the NORP Prime Minister should refrain from attending the reception , given ORG negative significance in NORP history . Therefore , they decided to organise a demonstration in front of ORG in GPE where the reception was to be held . They did not inform the police of their intentions .

In TIME DATE , CARDINAL people , including the applicants , assembled in front of the hotel . The police were also present . There was a loud noise , whereupon the police decided to disband the assembly , considering that it constituted a risk to the security of the reception . The police forced the demonstrators back to a park next to the hotel where , after a while , they dispersed .

On DATE the applicants sought judicial review of the action of the police and requested ORG to declare it unlawful . They asserted that the demonstration had been totally peaceful and its only aim had been to express their opinion . Moreover , the applicants pointed out that it had obviously been impossible to inform the police about the assembly DATE in advance , as required by PERSON no . III of DATE on the right of assembly ( the “ LAW ” ) , because the Prime Minister had only announced his intention to attend the reception DATE .

On DATE ORG dismissed the applicants’ action . Concerning the circumstances of the event , it noted that the demonstration had been disbanded after a minor detonation was heard .

ORG also noted that the DATE time - limit for informing the police of a planned assembly could not possibly be observed if the demonstration had its roots in an event that had occurred DATE beforehand . In the court ’s view , the possible shortcomings of LAW could not be remedied by the courts . Therefore , the duty to inform the police about such meetings applied to every type of demonstration , including spontaneous ones . The court also noted that there might be a need for more precise and sophisticated regulations in respect of such events but said that this was a task for the legislator , not the courts .

The court also found that the duty to inform the police in advance about assemblies held in public served to protect the public interest and the rights of others , namely , the free flow of traffic and the right to freedom of movement . It observed that the organisers of the demonstration had not even attempted to notify the police . ORG went on to say :

“ ... under the relevant provisions of the domestic law in force , the fact that an assembly is peaceful is not by itself enough to dispense with the duty to inform the police . ... The court has not dealt with the issue whether or not the assembly was peaceful , since the lack of notification made it illegal per se and , therefore , the defendant dissolved it lawfully , pursuant to section CARDINAL(CARDINAL ) of LAW . ”

The applicants appealed . On DATE ORG upheld the first - instance decision . It amended part of ORG reasoning , omitting the remarks concerning the possible shortcomings of the relevant domestic law . Moreover , ORG found , referring , inter alia , to the case - law of the ORG and decision no . LAW . ( ORG . CARDINAL . ) of ORG :

“ ... in the application of the relevant domestic law , the approach is obviously authoritative in that there is no exemption from the duty of notification and , therefore , no difference between ‘ ORG assemblies and ‘ spontaneous’ ones – the latter are unlawful owing to the failure to respect the above - mentioned duty of notification . ”

In sum , ORG found that the restrictions imposed on the applicants were necessary and proportionate .

The applicants lodged a petition for review which ORG dismissed on DATE , without examining its merits , since it was incompatible ratione materiae with the relevant provisions of LAW .

Article CARDINAL of the LAW guarantees the right to freedom of peaceful assembly and secures its free exercise .

Section CARDINAL of LAW requires the police to be informed of an assembly DATE before the date of the event .

Section CARDINAL(CARDINAL ) of LAW requires the police to disband ( feloszlatja ) any assemblies held without prior notification .

Section CARDINAL(CARDINAL ) of LAW provides that if an assembly is dissolved its participants may seek judicial review within DATE .


The applicant is an NORP national , born in DATE and living in GPE .

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

The applicant is a lawyer practising in GPE ( GPE ) . On DATE he filed a request with ORG ( Amt der Landesregierung ) requesting a declaration that he was not a member of the local ORG ( Tourismusverband ) . According to LAW Tourismusgesetz ) , the applicant had been considered to be a compulsory member of GPE and had therefore been obliged to pay an DATE contribution to that GPE . The applicant submitted in his request that , as a practising lawyer , he had no direct or indirect interests in GPE tourism .

On DATE , as ORG had not reacted to his request , the applicant filed an application for a transfer of jurisdiction ( PERSON ) with the appeal board established under LAW . On DATE the appeal board requested the applicant to supplement his request by stating for what reasons he considered that he had no interest whatsoever in GPE tourism . In his statement the applicant explained that most of his clients had nothing to do with the tourist industry .

On DATE the appeal board found that the applicant was a member of ORG . Referring to the case - law of ORG , according to which lawyers were deemed to benefit from tourists in certain regions because they created more business for them , the board found that the applicant had not shown that in his particular case he had not benefited at all from the tourism in the region .

On DATE the applicant filed a complaint with ORG claiming that the compulsory membership of ORG violated his right not to be member of an association , as guaranteed by LAW . On DATE ORG refused to deal with the complaint for lack of prospects of success and transferred the case to ORG . On DATE ORG requested the applicant to supplement his complaint . On CARDINAL DATE ORG discontinued the proceedings as the applicant had failed to comply with the court ’s request .

The Tyrol Regional Tourism Act provides for the establishment of local ORG with the statement that “ all entrepreneurs of a community form a GPE ” ( LAW CARDINAL ) . Section CARDINAL § CARDINAL further provides that “ ORG are public law institutions ” . According to LAW of GPE , compulsory members of ORG are those entrepreneurs who are economically , directly or indirectly , interested in GPE tourism and who have a permanent establishment or place of business in the area of GPE . This compulsory membership starts with the taking up of a business according to LAW and ends with its termination ( LAW ) . ORG ( Amt der Landesregierung ) is competent to take a decision on the compulsory membership of an entrepreneur upon his request , that of the chairman ( PERSON ) of a ORG or ex officio ( LAW ) .

According to LAW members are liable to compulsory contributions , which are calculated on the basis of their taxable turnover . The amount of the contribution due is fixed by ORG on the basis of the member ’s turnover tax orders which are furnished by ORG . ( Sections CARDINAL and DATE ) . ORG , which collects the contributions , has to apply LAW ( LAW ) . Against contribution orders issued by ORG an appeal lies with an appeals board ( LAW ) , which is composed of civil servants from ORG , ORG , ORG and ORG .

The tasks of a ORG are the promotion of the interests of local tourism , inter alia , by developing forms of tourism linked to local specificity , by promoting the understanding of the economic importance of tourism , and by supporting and training the members of ORG ) .

Sections CARDINAL to CARDINAL provide for the control of ORG by ORG . ORG may , inter alia , request any information from GPE , inspect its files and accounts and send delegates to plenary sessions , to sessions of the supervisory board and to sessions of the management board LAW CARDINAL § CARDINAL ) . ORG may also quash any decision of GPE that is contrary to the law ( LAW ) .


Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr Selmouni , a GPE and NORP national , was born in DATE and is currently in prison in ORG ( GPE ) .

On DATE the police arrested PERSON , PERSON and PERSON ’s girlfriend in connection with a drug - trafficking investigation , on the instructions of PERSON , an investigating judge at the ORG tribunal de grande instance . PERSON PERSON made a voluntary statement , telling the police that he had bought his heroin in GPE from a certain “ PERSON ” , who had helped him conceal it in order to bring it into GPE over a number of trips . He gave the police a telephone number in GPE which enabled them to identify the applicant .

On DATE Mr Selmouni was arrested following surveillance of a hotel in GPE . After being identified by PERSON and his girlfriend , PERSON explained that he had had business dealings with PERSON in the clothes trade . He denied any involvement in drug trafficking .

Mr Selmouni was held in police custody from TIME on DATE until TIME on DATE . He was questioned by police officers from FAC ( “ LAW ” ) in ORG .

Mr Selmouni was first questioned from TIME to TIME on CARDINAL DATE by the police officers against whom he later made a complaint . Having been questioned and taken back to the court cells , Mr Selmouni had a dizzy spell . The court cell officers took him to the casualty department at ORG in GPE at TIME The medical observations made by the casualty department read as follows :

“ Date of examination : CARDINAL DATE . TIME Attends casualty complaining of assault . On examination , several superficial bruises and injuries found on both arms . Bruises on outer left side of face . Bruise on left hypochondrium . Marks of bruising on top of head . Chest pains increase with deep respiration . Neurological examination shows no abnormalities . ”

On DATE the investigating judge extended police custody by TIME . PERSON was questioned from TIME to TIME , at TIME , from TIME and from TIME On DATE Mr Selmouni was examined by PERSON , who made the following observations :

“ Bruising to the left eyelid , left arm , lower back . Scalp painful . ”

On DATE Mr Selmouni was questioned from TIME to TIME On examining him again , PERSON made the following notes :

“ Substantial bruising to the left eyelid , left arm , lower back . Bruising to the scalp . Ate nothing DATE … ORG forwarded . ”

After being questioned from TIME on CARDINAL DATE , PERSON was again examined by PERSON , who noted on his medical certificate :

“ Bruising to the left eyelid , left arm , lower back . Bruising to the scalp . No current treatment . ”

At TIME on CARDINAL DATE the applicant was examined by PERSON , a general practitioner . He drew up a certificate , at ORG request , to the effect that PERSON claimed to have been assaulted . The certificate stated :

“ Headaches , bruises under left and right eyes , on left and right arms , back , thorax , left and right thighs and left knee . All areas painful . ”

On DATE the applicant was brought before the investigating judge , who charged him with offences against the dangerous drugs legislation and remanded him in custody . On Mr Selmouni ’s first appearance before the investigating judge , the latter , on his own initiative , appointed PERSON , an expert in forensic medicine on ORG panel , to examine PERSON , “ who claim[ed ] to have been illtreated while in police custody ” , and another person , PERSON , arrested on CARDINAL DATE and charged with the same offences .

On DATE the applicant was examined by PERSON from the medical department of ORG . In a medical certificate drawn up at ORG request the doctor made the following observations :

“ … extensive bruising to the trunk and thighs and substantial bruising round the eyes . Presents conjunctival bruises . Says sight impaired in left eye . ”

On DATE PERSON , the expert appointed by the investigating judge , examined the applicant at the prison . PERSON made the following statement to the doctor :

“ I was stopped in the street on DATE at TIME There were no problems at that stage . I was taken to the hotel where I was living . CARDINAL of the CARDINAL plain - clothes policemen then hit me in the area of my left temple . I was then taken to ORG police station . At TIME I was taken up to the first floor , where CARDINAL people started hitting me . I had to kneel down . CARDINAL police officer pulled me up by my hair . Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat . Another one kept kicking and punching me in the back . The interrogation continued non - stop for TIME . In TIME I asked to be examined . I was taken to hospital , where I had head and chest X - rays . I was hit again at TIME the following day during a further interrogation and this went on until TIME When I arrived at PERSON , I underwent a medical examination . ”

The doctor noted in his report :

– “ sub - orbital haematoma extending QUANTITY below the left lower eyelid , purplish , almost completely healed ,

– thin linear scar , QUANTITY long , continuing the line of the left eyebrow ,

– one right sub - orbital haematoma , almost completely healed ,

– multiple skin abrasions ( CARDINAL of which are large ) , almost completely healed , on the left arm ,

– QUANTITY linear skin abrasions – possibly scratches – on the right arm ,

– QUANTITY skin lesion on the back of the right hand ,

– haematoma on the back of the thorax , over the right shoulder blade ,

– CARDINAL haematoma on the right side ,

– severe ( QUANTITY by QUANTITY ) haematoma on the left side of the thorax ,

– CARDINAL haematomas on the left side ,

– severe ( QUANTITY by QUANTITY ) haematoma on the front of the thorax , purplish , in the epigastric region ,

– haematoma in the right prehepatic region ,

– haematoma on the left of the ribcage QUANTITY below the nipple ,

– QUANTITY by QUANTITY haematoma on the left side on the axillary line ,

– haematoma in the right subclavian region ,

– haematoma on the right buttock ,

– QUANTITY by QUANTITY haematoma on the left buttock ,

– QUANTITY by QUANTITY linear haematoma on the outer front part of the left thigh ,

– skin abrasion corresponding to a wound , now healing , on the front of the right ankle ,

– swelling on the back of the right foot and a skin abrasion on the back of the foot ,

CARDINAL superficial wounds , now healing , on the lower front part of the right leg ,

– skin abrasions and bruised swelling on the back of the first CARDINAL metacarpals of the left hand .

The patient states that on his arrival at ORG he was treated with skin cream and given painkillers .

No injuries to the scalp or left eyeball … ”

The conclusion of the report is as follows :

“ CONCLUSION

PERSON states that he was subjected to ill - treatment while in policy custody .

He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody .

These injuries are healing well . ”

NORP That report was attached to the investigation file opened in respect of the applicant . On DATE the investigating judge sent it to the public prosecutor ’s office .

In an order of CARDINAL DATE the investigating judge committed the applicant for trial at ORG and ordered him to be kept in detention on remand .

On DATE the public prosecutor ’s office at the ORG tribunal de grande instance instructed ORG to question the police officers concerned .

When questioned at FAC by an officer of ORG on DATE , the applicant confirmed his earlier statement as follows :

“ … At TIME on DATE I was arrested in the vicinity of my hotel , ORG , near FAC in GPE by CARDINAL plain - clothes policemen . They pushed me against a wall while pressing the barrels of CARDINAL guns against my neck .

I offered no resistance to my arrest and did not struggle .

You remind me that during questioning on DATE I admitted that I had attempted to escape arrest . I dispute that . First of all , I maintain that I did not make such a statement to the police officer who questioned me and , moreover , I signed the records of interview without having read them . The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered .

I was alone when I was arrested and immediately afterwards I was taken to my hotel room , which was searched in my presence . CARDINAL other policemen were already there .

While they were searching my room , the youngest police officer of the group punched me on the left temple . When they had finished searching my room I was taken to the ORG station in ORG and to an office on the first or second floor .

After I had been subjected to a body search , during which everything in my possession was taken , my interrogation by QUANTITY police officers began .

CARDINAL of them , who appeared to be in charge , made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat .

He then kept tapping me on the head with the bat .

The CARDINAL other police officers were also actively involved , punching me and some of them standing on my feet and crushing them .

I seem to recall arriving at ORG police station at TIME The treatment I have described continued until TIME

Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained . As my ribs and head were hurting from the blows I had received , I informed these policemen and was taken in TIME to a hospital in the area , but can not say which CARDINAL . There I underwent several examinations , including X - rays , and was later taken to a police station , but not the one to which I had first been taken .

The uniformed police officers treated me decently .

The following TIME , before being questioned a second time , I was examined on the premises of ORG by a doctor , who was able to see the marks on my body caused by the policemen ’s brutality .

On DATE I was questioned again by several police officers CARDINAL or four – at some point in DATE . I believe it was at TIME On that occasion they pulled my hair , punched me and hit me with a stick .

In TIME of the same day , when there were fewer staff on the first floor , I was questioned again by CARDINAL police officers , who were particularly brutal to me . I was punched , and beaten with a truncheon and a baseball bat . They all carried on assaulting me until TIME I think that this session of ill - treatment had begun at TIME At CARDINAL point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side , tripping me up .

They then took me into an office where a woman was sitting and made me kneel down . They pulled my hair , saying to this woman ‘ Look , you ’re going to hear somebody ORG .

I remained there for TIME . I can not describe this woman to you , but she looked young .

I was then taken back out into the corridor , where one of the police officers took out his penis and came up to me saying ‘ Here , suck GPE ; at that point I was on my knees . I refused , keeping my mouth closed because he had brought his penis up to my lips .

When I refused , that officer urinated over me at the suggestion of CARDINAL of his colleagues .

After that , I was taken to an office and threatened with burns if I did not talk . When I refused , they lit CARDINAL blowlamps which were connected to CARDINAL small blue gas - bottles . They made me sit down and placed the blowlamps QUANTITY away from my feet , on which I no longer had shoes . At the same time they were hitting me . Following that ill - treatment , they brandished a syringe , threatening to inject me with it . When I saw that , I ripped open my shirt - sleeve , saying ‘ Go on , you wo n’t dare’ ; as I had predicted , they did not carry out their threat .

My reaction prompted a fresh outburst of violence from the policemen and I was illtreated again .

The police officers left me in peace for TIME , then one of them said ‘ You NORP enjoy being NORP . They took hold of me , made me undress and CARDINAL of them inserted a small black truncheon into my anus .

ORG . When PERSON relates that scene , he starts crying .

I am aware that what I have just told you is serious , but it is the whole truth , I really did suffer that ill - treatment .

After the sexual assault , I was put into a cell again .

DATE I was examined by a doctor , who was able to observe my condition .

I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me .

The violence I have just described was committed during DATE to CARDINAL and DATE to CARDINAL DATE .

Thereafter , until I was brought before the investigating judge , I was occasionally punched .

Before bringing me before the investigating judge , the policemen were very kind , even going so far as to offer me coffee .

When I signed the papers concerning my belongings , I noticed that MONEY and a ORG lighter had disappeared . I informed a policeman about DATE the one I thought was in charge – who replied ‘ Shit , PERSON , and the matter was left at that .

The lighter bears the initials ORG

I can identify the CARDINAL policemen who hit me .

I can also describe the part played by each one .

The officer in charge is slightly balding . The one who showed me his penis and then sodomised me with a truncheon is of medium height , fairly thickset , aged DATE , and fair - haired .

As soon as I was brought before the investigating judge , I told him that I had been assaulted , and DATE I was examined at the prison . However , on the actual day I was brought before the investigating judge I had seen a doctor at the ORG law courts .

I have had a lawyer for DATE and have informed him of the manner in which I was treated while in police custody .

When I arrived at the prison , the marks left by the assault were all over my body . I now have trouble with my eyes .

I am lodging a complaint against the policemen . ”

The record of the interview was sent to the ORG public prosecutor on CARDINAL DATE as part of the proceedings numbered B.CARDINAL.CARDINAL.CARDINAL/CARDINAL .

In a judgment of DATE the Thirteenth ORG sentenced the applicant to DATE imprisonment and permanent exclusion from NORP territory and , as to the civil action by the customs authorities , ordered him to pay , jointly and severally with his co - accused , an aggregate sum of MONEY . In a judgment of DATE ORG reduced the prison sentence to DATE and upheld the remainder of the judgment . On DATE ORG dismissed the applicant ’s appeal .

Mr Selmouni attended ORG for treatment at regular intervals during his detention .

On DATE the applicant lodged a criminal complaint together with an application to join the criminal proceedings as a civil party with the senior investigating judge at the ORG tribunal de grande instance for “ assault occasioning actual bodily harm resulting in total unfitness for work for DATE ; assault and wounding with a weapon ( namely a baseball bat ) ; indecent assault ; assault occasioning permanent disability ( namely the loss of an eye ) ; and rape aided and abetted by CARDINAL or more accomplices , all of which offences were committed CARDINAL DATE by police officers in the performance of their duties ” .

On DATE , in the proceedings numbered B.CARDINAL.CARDINAL.CARDINAL/CARDINAL , the ORG public prosecutor requested that an investigation be opened into the complaint lodged by ORG and a similar complaint lodged by a co - defendant , Mr Madi , concerning offences committed by a person or persons unknown of assault and wounding , with a weapon , of a defenceless person and indecent assault . The complaint lodged by the applicant on DATE was registered on DATE . These new proceedings were given the reference number B.CARDINAL.CARDINAL.CARDINAL/CARDINAL .

On DATE PERSON , the investigating judge at the FAC tribunal de grande instance to whom the case had been allocated , issued formal instructions to the Director of ORG to take all necessary steps to establish the truth . She set DATE as the date for filing his reports .

On DATE Dr Garnier re - examined Mr Selmouni , at PERSON request . In his report , which he filed on DATE , he made the following observations :

“ When I first examined PERSON , he stated that he had been assaulted while in police custody . He has told me DATE that he did not mention the sexual assault on that occasion because he felt ashamed of it .

An examination of the anal sphincter does not reveal any lesion such as to corroborate or invalidate the patient ’s statements , mainly owing to the amount of time which has elapsed since the alleged acts .

The somatic lesions recorded in the previous medical certificate are healing well with no complications .

As regards the alleged sexual assault , in the absence of any functional repercussion or visible injury , no sick - leave on grounds of total unfitness for work [ ‘ ITTP’ ] is necessary as a direct result of the alleged acts .

TOTAL UNFITNESS FOR WORK

The lesions recorded in the first medical certificate and observed when I prepared my first expert report are traumatic lesions with no serious features ( haematomas and bruises ) and necessitate an ITTP of DATE .

CONCLUSION

PERSON states that he was sexually assaulted and beaten while in police custody .

The traumatic lesions necessitated an ITTP of DATE . The patient states that his sight in his left eye is impaired . An examination by an eye specialist is necessary if a causal link with the alleged acts is to be established .

As regards the sexual assault , in the absence of any visible injury and any functional repercussions , an ORG is not necessary . ”

In an order of DATE the investigating judge decided to join the CARDINAL complaints relating to the same offences under the single reference B.CARDINAL.CARDINAL.CARDINAL/CARDINAL .

She interviewed the applicant on DATE , instructed an expert on DATE and served the parties with the expert ’s medical report on DATE .

On DATE the applicant sent the investigating judge a copy of the medical certificates of CARDINAL DATE and DATE and reiterated the terms of his complaint .

In a letter of DATE to the President of ORG of ORG , which was to hear the applicant ’s appeal against his conviction for offences against the dangerous drugs legislation , the applicant said that he had been raped with the baseball bat and added that a police officer had urinated over him . The applicant stated that , before sending that letter , he had also informed the President of the thirteenth division of ORG of the ill - treatment inflicted on him while he was in police custody .

In a formal instruction of CARDINAL DATE the investigating judge reiterated her request of DATE as the DATE time - limit for sending in the police inspectorate ’s reports had not been complied with . She also ordered ORG medical files to be seized at ORG , ORG and ORG .

The investigating judge interviewed the civil parties again on DATE , after receiving on DATE the evidence taken by the police inspectorate on her instructions . On DATE a lawyer was officially appointed to represent the applicant under the legal aid scheme . In letters of DATE and DATE the lawyer in question told the applicant that she was having difficulties obtaining a visiting permit .

The civil parties were interviewed again on DATE , on which date an identity parade was organised in order to identify the police officers against whom the allegations had been made . PERSON picked out CARDINAL police officers from the ten who took part in the identity parade . They were Mr PERSON , Mr PERSON , PERSON PERSON PERSON and PERSON .

With a view to charging the police officers identified by the civil parties , the investigating judge sent the case file to the public prosecutor ’s office on DATE .

The ORG public prosecutor referred the case to ORG who , in turn , referred it to ORG .

In a judgment of DATE ORG decided to remove the case from the ORG investigating judge and transfer it to a judge of the GPE tribunal de grande instance , in the interests of the proper administration of justice . On DATE the public prosecutor at the GPE tribunal de grande instance reopened the investigation , under the reference V.CARDINAL.CARDINAL.CARDINAL/CARDINAL , into offences of

“ assault by public servants occasioning total unfitness for work for DATE and sexual assault by several assailants or accomplices , against any persons identified as a result of the investigation ” .

On DATE the case was allocated to PERSON , the Vice - President of the GPE tribunal de grande instance in overall charge of judicial investigations .

On DATE the investigating judge requested that both of Mr Selmouni ’s medical files that had been placed under seal by ORG be sent to her . The sealed documents were sent to her on DATE .

On DATE ORG underwent an operation on his left eye at ORG .

In an order of CARDINAL DATE the investigating judge appointed an eye specialist , PERSON , to examine PERSON .

On DATE the medical expert was granted an extension of time in which to file his report . He filed it on DATE . In it he made the following findings :

“ CARDINAL . PERSON eyesight has deteriorated since he was operated on in DATE . It can not be said with certainty that it really deteriorated between CARDINAL DATE and DATE .

The assault of which he complains , namely the blows to the left periorbital region of his face , could have caused eye injuries , but apart from subjective symptoms of metamorphopsia , or even reduced vision , and of an isolated problem with the epiretinal membrane , no mark on the eye , in particular the anterior chamber , has ever been found , nor has any sign of haemorrhaging in the retina occurring contemporaneously with the blows complained of and enabling a link to be established between them . However , signs of degeneration were found in relation to a constitutional disorder ( short - sightedness in both eyes ) . ”

On DATE the medical report was served on PERSON , who also gave evidence . He maintained his allegations against the QUANTITY police officers he had named . On DATE evidence was also heard from the other civil party , Mr Madi . Mr Madi named a fifth police officer , Mr PERSON .

In a letter of CARDINAL DATE the investigating judge asked the Director of ORG ( “ ORG ” ) for the names and addresses of the police officers against whom the complaints had been filed . He replied on DATE .

On DATE the investigating judge officially informed the CARDINAL police officers implicated by the applicant that they were being placed under investigation .

The QUANTITY police officers against whom PERSON and Mr PERSON had lodged their complaints , namely PERSON , PERSON , PERSON , PERSON Leclercq and PERSON , were questioned on their first appearance on DATE and DATE , DATE and DATE . They were placed under investigation for assault by public servants occasioning total unfitness for work for DATE . Mr PERSON , Mr PERSON , Mr PERSON and PERSON were also placed under investigation for sexual assault committed by a number of assailants or accomplices .

On DATE , in view of the denials by the police officers , who maintained that a “ struggle ” had ensued when PERSON was arrested , the investigating judge appointed PERSON as expert again , instructing him to examine all PERSON medical files and certificates and give his opinion as to whether the injuries found could have been caused in a “ struggle ” when he was arrested at TIME on DATE or whether they supported the applicant ’s allegations .

On DATE the applicant requested that a number of investigative measures be carried out , including a further confrontation between witnesses and further medical reports in order to determine the damage he had suffered , and an inspection by the judge of the premises on which he had been held in police custody . In an order of CARDINAL DATE the investigating judge dismissed the requests , on the ground that some of them had been partly satisfied .

On DATE a confrontation was held between the applicant and the CARDINAL police officers . He described the part each of them had played while he had been in their custody .

Dr ORG ’s report was filed on DATE . The expert concluded his report in the following terms :

“ An examination of the medical file shows that doctors found a progression of injury marks on the patient ’s body during the period in police custody .

A number of them could certainly have been caused during a ‘ struggle’ when the patient was arrested at TIME on DATE , as described by the ORG officers in question .

The injuries , particularly those on the lower limbs and buttocks , which were not seen on the first examination , would certainly have been sustained after that arrest and support the patient ’s statements .

As regards the acts of sodomy described by the patient , the negative result of the test carried out on DATE , that is DATE after the initial facts , neither disproves nor proves that they occurred . ”

On DATE the investigating judge served notice on Mr Selmouni that the investigation was complete . The investigation file was sent to the public prosecutor ’s office on DATE .

On DATE the public prosecutor submitted his written statement of how he wished the investigating judge to proceed with the case . He submitted , inter alia :

“ … the denials by the police officers concerned do not stand up to examination any more than does their reference to a ‘ struggle’ when effecting the arrest or to forceful resistance during questioning .

The absence of any variation or inconsistency in the statements made by ORG justifies taking them into consideration . They are , moreover , corroborated by medical findings and therefore amount to sufficient evidence against the CARDINAL persons in question for the allegations to be examined by the trial court … ”

In an order of CARDINAL DATE the investigating judge committed the QUANTITY police officers in question for trial at FAC . In respect of PERSON allegations , the judge committed the QUANTITY police officers concerned for trial at that court on charges of assault occasioning total unfitness for work for DATE and indecent assault committed collectively and with violence and coercion .

The trial was held at ORG on DATE . The applicant filed pleadings in support of an objection that the court had no jurisdiction to try the case and that it should be transferred to ORG . He submitted that the sexual assault had in fact been rape ; that he had been the victim of assault occasioning permanent disability , namely loss of visual acuity , committed by public servants ; and , lastly , that the illtreatment he had suffered should be classified as acts of torture inflicted before or during the commission of a crime . The court joined that objection to the merits . At the end of the trial the public prosecutor requested that PERSON PERSON be sentenced to CARDINAL years’ imprisonment and PERSON , PERSON PERSON and Mr PERSON to CARDINAL GPE imprisonment . The ORG reserved judgment until DATE .

In a judgment of CARDINAL DATE ORG dismissed the objection to jurisdiction raised by PERSON , on the following grounds in particular :

( a ) as to classification of the sex offence as rape :

“ … The ORG must , however , conclude that neither the medical certificates nor the expert reports support the allegation of anal penetration . Furthermore , ORG was unable to identify the police officer who had allegedly raped him . Accordingly , the offence can not be classified as rape . ”

( b ) as to classification of the assault as assault occasioning permanent disability :

“ … The ORG observes that the expert report prepared by PERSON does not allow a causal link to be established between ORG loss of visual acuity and the blows he received . This point of his objection therefore can not be allowed . ”

( c ) as to classification of the ill - treatment as acts of torture inflicted before or during the commission of a crime :

“ Apart from the fact that those acts were not so classified in the former Criminal Code applicable at the material time , in the instant case the acts of violence inflicted on PERSON which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime .

The ORG therefore considers that the acts in question can not be classified as a crime … ”

In determining whether or not the police officers were guilty , ORG noted that “ CARDINAL completely contradictory arguments [ had been ] submitted to it ” and decided to examine “ in turn ” “ a number of explanations ” given by the police officers . Assuming that “ it [ had been ] established … that [ the applicant ’s ] injuries [ had been ] caused during DATE or within a very short time before or after – police custody ” , the court considered that the attempts made by the civil parties to resist arrest did not suffice to explain the extent of the injuries found ; that the “ inconsistencies ” , if any , in the civil parties’ statements were not decisive and that , in general , “ the civil parties had been consistent in their account of events and the timing of them ” ; that even where there is strong evidence , “ any police officer knows well that a confession is preferable and very difficult for a defendant to contest later ” ; and that “ there [ was ] ample evidence to disprove the allegation that the civil parties [ had ] conferred when filing their complaints against the police officers ” .

ORG found that “ the evidence gathered during the investigation and produced at the trial show[ed ] that events [ had ] indeed occur[red ] in the manner described by the victims ” and convicted the police officers of the offences charged . The court considered itself bound to “ apply the criminal law in a way that [ would ] serve as an example to others ” and sentenced Mr PERSON , Mr PERSON and PERSON to DATE imprisonment . With regard to the fourth police officer , the court held :

“ … in his capacity as Detective Chief Inspector in charge of the group of police officers , PERSON was responsible for the methods used to conduct the investigation under his control and direction . In addition , he had been directly involved in the assault since he had pulled the civil parties’ hair . The civil parties had unequivocally identified him as the officer in charge .

The ORG therefore deems it necessary to punish PERSON more severely for his actions and sentences him to CARDINAL years’ imprisonment .

As Mr PERSON is still in a position of responsibility , it is necessary , as a matter of public policy , that sentence be executed immediately . The ORG issues a warrant for PERSON arrest . ”

ORG declared admissible Mr Selmouni ’s application to join the proceedings as a civil party . It noted that he had not quantified his claims for damages and that he had reserved the right to apply to the civil courts .

The police officers appealed .

In a judgment of DATE ORG dismissed an application for release made by PERSON , on the following grounds :

“ … the offences in question , because of their exceptionally serious nature having regard to the status of senior police officer [ officier de police judiciaire ] , responsible for enforcing the laws of the ORG , possessed by the accused , who was convicted at first instance , have resulted in serious and continuing prejudice to public order … ”

In a judgment of DATE , following hearings on CARDINAL and CARDINAL DATE , after which PERSON was released , ORG acquitted the policemen for lack of evidence on the charge of indecent assault , but held them to be guilty of “ assault and wounding with or under the threat of the use of a weapon , occasioning total unfitness for work for DATE in the case of ORG and DATE in the case of ORG , by police officers in the course of their duty and without legitimate reason ” . It sentenced PERSON to DATE months’ imprisonment , of which DATE were suspended , Mr PERSON and PERSON PERSON to fifteen months’ imprisonment suspended and PERSON to CARDINAL months’ imprisonment suspended . ORG gave , inter alia , the following reasons for its decision :

“ As to guilt

As to the assaults

In absolute terms the word of a policeman , a fortiori that of a senior one [ officier de police judiciaire ] is more credible than that of a drug trafficker . That premiss , however , is weakened , and even made unsound , where statements by offenders are supported by external evidence such as medical findings . It is put even more in doubt where the explanations provided by the policemen vary significantly during the course of the proceedings ; and the presumption in favour of the police is destroyed if it is shown , as in the instant case , that the police reports do not reflect the truth .

As to the medical findings

The accusations made by the civil parties are supported by unequivocal medical findings . In the first place , as regards ORG , the expert Professor PERSON noted in his report of CARDINAL DATE that all the doctors who had examined him while he was in police custody had found lesions of traumatic origin on the left arm , in the left orbital region , on the scalp and on the back . On DATE further lesions were seen on the lower limbs . He added that during his examination on DATE he had again found lesions that had been described earlier and that he found others on the buttocks and on the right ankle .

The extent of the injuries on ORG ’s person increased as the uninterrupted police custody continued .

The bruising to the left eyelid , the thin linear scar QUANTITY long continuing the line of the left eyebrow , the left and right sub - orbital haematomas found on CARDINAL DATE by PERSON , and then described on DATE by PERSON as being ‘ round the eyes’ , are consistent with the punching mentioned by ORG .

The various haematomas found on the thorax , the left and right sides and the abdomen are consistent with the punching and kicking in his statement of DATE .

The pain in the scalp and the headaches mentioned by PERSON and PERSON are likewise of a kind to support ORG ’s statements , according to which his hair was pulled and he was repeatedly tapped on the head with an instrument which could have been a baseball bat .

The haematomas found on the buttocks and the thighs could only have come from blows from a blunt instrument . Similarly , the lesions apparent on the legs , ankles and feet are consistent with the blows or crushing that ORG complained of .

It follows from the foregoing that the objective injuries , as recorded in successive examinations , match the blows described by ORG .

As regards PERSON , the medical certificates and the expert medical opinions attest to the reality and intensity of the blows he sustained . Further , as set out by the expert , the time that elapsed between the appearance of the objective injuries and the events in issue strongly suggests repeated small injuries .

The scalp abrasions are absolutely consistent with his statement that on numerous occasions he was repeatedly struck on the head with a blunt instrument .

The rectangular shape of the large haematoma on the right thigh and of the CARDINAL haematomas on the left thigh corresponds exactly to blows struck with a blunt instrument , as described by the complainant .

As to the accounts given by the defendants

The defendants’ explanations of how the injuries found came about totally lack credibility . Moreover , on these points as on others , their explanations varied . PERSON , for instance , initially stated that he had acted as a reinforcement to arrest ORG ) but subsequently said that he was not in the street where the arrest took place but inside the hotel .

The defendants maintain that the accusations against them are the result of orchestrated , concerted action . It should be noted at this point that throughout DATE of inquiries and judicial investigation no evidence was found to substantiate that allegation . The ORG interests differed appreciably . The successive descriptions of the ill - treatment they alleged that they had suffered do not disclose any connivance , and it should be pointed out that ORG himself was hardly ever assisted by a lawyer in the proceedings concerning drug trafficking .

It is not without relevance to note that ORG , who had never been in police custody before , could not have made use of previous experience of it to fabricate a completely false story .

The mere fact of ORG ’s arrest near his hotel , even if it is assumed to have entailed something of a struggle , can not explain either the seriousness of the injuries or their gradual onset as confirmed by the photographs in the file , seeing that , immediately afterwards , the policemen concerned did not record any suspicious signs either on their own persons or on that of ORG , signs that would have warranted a thorough medical examination , which would have been in their own interest .

As regards PERSON , the policemen ’s account , according to which he had deliberately banged his head against a wall and a cupboard , is not consistent with the findings of the medical examinations .

The expert noted that in this type of occurrence it is normal to find , at the time of the events , unequivocal injuries and even bleeding wounds , which was not the case here .

Taken as a whole , these factors persuade the ORG that the alleged resistance to arrest was invented by the accused to justify the seriousness and location of the haematomas and the lesions found on the detainee .

As to the reliability of the police reports

The policemen from ORG CARDINAL , in particular PERSON , admitted in court that several reports drawn up during the detention of Selmouni and Madi in police custody contained inaccurate statements both as to times and as to the identity of those who had written them . No persuasive logical explanation of this was given to ORG PERSON , for example , drew up a report ( DCARDINAL ) on the search which he made at PERSON from TIME on DATE , and ‘ recorded’ at TIME that is to say at DATE in another report ( DCARDINAL ) that PERSON had resisted arrest , and also told the ORG that he had intervened to calm him .

The complete unreliability of the documents drawn up by the investigators is extremely serious in that the entire functioning of the criminal justice system rests on the reliance that may be placed on the reports of senior police officers and their assistants [ officiers et agents de police judiciaire ] .

In view of all the foregoing , the brutality of which the defendants are accused is patent and the trial court rightly held that during the proceedings they had done nothing but conceal the truth about their behaviour .

As to the sentence

The offences of which the defendants are guilty are exceptionally serious ones , and that precludes their benefiting from the provisions of the amnesty of CARDINAL DATE . They must be regarded as instances of particularly degrading treatment . Having been committed by senior officials responsible for enforcing the laws of the Republic , they must be punished firmly as such conduct can not be justified , irrespective of the personality of the offenders in their charge and the degree of their corruption and dangerousness .

The seriousness of the offences , however , can not be compared with what it would have been if the sexual assaults had been made out against the defendants . Nor do the offences appear to have been the result of a concerted plan . In view of the part played by each , the absence of any previous criminal record and the administrative files on the defendants , the ORG considers that it must accordingly reduce the length of the prison sentences as indicated in the operative provisions of the judgment and leave it to the discretion of the GPE superiors to determine what disciplinary consequences are necessary in the case , the prison sentences being suspended , only in part as regards PERSON , whose responsibility appears greater , regard being had to his being the officer in charge .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE . His previous applications ( nos . CARDINAL and CARDINAL ) to ORG ( “ the Commission ” ) were joined and declared inadmissible by ORG on DATE .

On DATE ORG , in the context of criminal proceedings with certain political connotations , convicted the applicant of espionage and sentenced him to CARDINAL half years’ imprisonment . ORG also ordered the confiscation of his property . On DATE ORG , upon the applicant ’s appeal , amended the first - instance judgment in that the criminal offence was characterised as attempted sedition and the prison term was reduced to DATE . The remainder of the appeal was dismissed . Subsequently the applicant served his sentence . His property , namely his villa and garden as well as his car and money in a bank , was confiscated .

On DATE the Attorney General lodged an appeal on legal grounds with ORG against the judgments of DATE and DATE , proposing that the applicant ’s conviction be quashed as being unlawful and that the applicant be acquitted . On DATE ORG followed this proposal .

On DATE the applicant instituted proceedings before ORG claiming restitution of his property . He further claimed compensation as a victim of a miscarriage of justice . On DATE ORG awarded him MONEY ( ORG ) as compensation for damage suffered as a consequence of his imprisonment .

NORP In the restitution proceedings , between DATE and DATE ORG held several hearings . Moreover , given that both the confiscated car and real estate had been sold and that , therefore , only compensation was feasible , the court took expert evidence as to the value of this property . ORG prepared an opinion on that question .

On DATE ORG , following a further hearing , issued an order awarding the applicant ORG CARDINAL for the car , plus ORG CARDINAL in compensation for his losses . The remainder of his claims was dismissed . The applicant lodged an appeal with ORG sitting as a second instance , claiming higher compensation .

On DATE ORG considered the case by way of a written procedure and dismissed the applicant ’s appeal .

On DATE the Attorney General , reacting to the applicant ’s request to seek review of ORG decision , informed him that restitution proceedings were governed by LAW , which excluded such a review .

On DATE the applicant nevertheless lodged a petition for review with ORG , complaining of ORG decision , as well as of the second - instance decision taken by ORG .

On DATE ORG rejected his petition .

On DATE ORG decided that the application of procedural rules assigning restitution cases to the criminal courts – and excluding a review by ORG – amounted to arbitrary discrimination . ORG amended the said rules to the effect that the files should be forwarded to the civil courts with a view to conducting the proceedings . Concerning the applicant ’s particular case , it decided that he should be entitled to institute civil review proceedings before ORG .

The applicant ’s renewed petition for review dated DATE was received at ORG on DATE . He filed further submissions on DATE .

On DATE ORG rejected the renewed petition . It noted the background to the applicant ’s case , including its rejection of the applicant ’s previous petition . However , as LAW only envisaged the possibility of CARDINAL such petition , ORG had to reject any further petition brought by the same person .

On DATE ORG dismissed the applicant ’s further constitutional complaint . It considered that the applicant ’s submissions did not raise any questions of constitutionality within the meaning of the relevant provisions of LAW , but were limited to complaining that ORG had failed to implement properly ORG earlier decision . To the extent that the applicant , in his submissions , pursued his petition for review , ORG referred the case to ORG for further action , the latter being the competent court for the civil procedure .

On DATE ORG forwarded the files to ORG for a decision on the applicant ’s petition for review .

On DATE ORG again rejected the applicant ’s petition for review . It explained that , according to the relevant provisions of LAW , no review could take place in proceedings of the present kind . Subsequently the applicant brought a further complaint before ORG with a view to the annulment of that decision .

On DATE ORG declared unconstitutional the procedural situation governing the examination of criminal restitution claims in civil review proceedings .

Following the ensuing change in legislation , on DATE ORG annulled its decision of CARDINAL DATE and ordered a review of the merits of the applicant ’s restitution claims .

On DATE ORG review bench considered the case by way of a written procedure and dismissed the applicant ’s petition on its merits . It held that the lower courts’ procedure , and in particular the manner of taking evidence – although it had been governed by the rules of criminal procedure concerning restitution – had complied with LAW . That decision was served on DATE .


CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM

Violation of P1-1;Just satisfaction reserved

The second applicant company is the registered owner of a plot of QUANTITY of agricultural land in GPE . The first applicant company was its predecessor in title . The owners of a property adjacent to the land , Mr. and Mrs. PERSON ( “ the PERSON ” ) occupied the land under a grazing agreement until DATE . On DATE a chartered surveyor acting for the applicants wrote to the ORG noting that the grazing agreement was about to expire and requiring them to vacate the land . In DATE the applicants refused a request for a further grazing agreement for DATE because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission .

Notwithstanding the requirement to vacate the land at the expiry of the DATE agreement , the ORG remained in occupation at all times , continuing to use it for grazing . No request to vacate the land or to pay for the grazing which was taking place was made . If it had been , the evidence was that the PERSON would happily have paid .

NORP In DATE an agreement was reached whereby the applicants agreed to sell to the PERSON the standing crop of grass on the land for £ MONEY . The cut was completed by DATE . In DATE an inquiry was made of the applicants as to whether the PERSON could take another cut of hay or be granted a further grazing agreement . No reply to this letter or to subsequent letters sent in DATE was received from the applicants and thereafter the PERSON made no further attempt to contact the applicants . From DATE until DATE the PERSON continued to use the whole of the disputed land for farming without the permission of the applicants .

In DATE , Mr PERSON registered cautions at ORG against the applicant ORG title on the ground that he had obtained title by adverse possession .

On DATE the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions . On DATE the applicant companies issued further proceedings seeking possession of the disputed land .

The PERSON challenged the applicant ORG claims under LAW ( “ the LAW ” ) which provides that a person can not bring an action to recover any land after the expiration of DATE of adverse possession by another . They also relied on LAW , which applied at the relevant time and which provided that , after the expiry of the CARDINAL-year period , the registered proprietor was deemed to hold the land in trust for the squatter .

Judgment was given in favour of the PERSON on DATE ( [ CARDINAL]Ch CARDINAL ) . Mr Justice PERSON held that since the PERSON enjoyed factual possession of the land from DATE , and adverse possession took effect from DATE , the applicant ORG title was extinguished pursuant to LAW , and the PERSON were entitled to be registered as proprietors of the land . At the conclusion of his CARDINAL-page judgment , PERSON remarked that the result he had reached did not accord with justice and could not be justified by practical considerations : the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at ORG . The fact that an owner who had sat on his rights for DATE should be deprived of the land was in his view “ illogical and disproportionate ” : as he expressed the point , “ it does seem draconian to the owner and a windfall for the squatter that , just because the owner has taken no step to evict a squatter for DATE , the owner should lose QUANTITY of land to the squatter with no compensation whatsoever ” .

NORP The applicant companies appealed and on DATE , ORG reversed the ORG decision on the ground that the PERSON did not have the necessary intention to possess the land , and the applicant companies were therefore not “ dispossessed ” of it within the meaning of LAW ( [ CARDINAL Civ CARDINAL , [ CARDINAL CARDINAL ) . Although this conclusion was sufficient to dispose of the appeal , CARDINAL members of ORG went on to address the question whether the ORG loss of title to the land could also have given rise to a violation of LAW No . CARDINAL as applied in domestic law by LAW DATE .

Lord Justice Mummery held that LAW did not impinge on the relevant provisions of LAW , which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for DATE or more after being dispossessed by another . The extinction of the applicants’ title was not , in his view , a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate , but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period . In the alternative , Mummery L.J found that any deprivation was justified in the public interest , the conditions laid down in the CARDINAL Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title : those conditions were not disproportionate , the period of DATE being reasonable and not imposing an excessively difficult burden on the landowner .

Lord Justice PERSON took as his starting point that limitation periods were in principle not incompatible with the PERSON and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the LAW . This position obtained , in his view , even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights , whether real or personal , or of damages : there was thus nothing inherently incompatible as between LAW and LAW .

The PERSON appealed to ORG , which , on DATE , allowed their appeal and restored the order of ORG ( [ DATE ] ORG CARDINAL , [ DATE ] CARDINAL All ER CARDINAL ) . Lord PERSON , with whom Lord PERSON of ORG and Lord PERSON agreed , held that the PERSON did have “ possession ” of the land in the ordinary sense of the word , and therefore the applicant companies had been “ dispossessed ” of it within the meaning of LAW . There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime . Lord PERSON referred to LAW only to note that there was no ambiguity in LAW which called for resolution .

Lord GPE of GPE , agreeing with Lord PERSON , made the following statement in the course of his judgment :

“ [ The PERSON ] sought rights to graze or cut grass on the land after DATE , and were quite prepared to pay . When ORG failed to respond they did what any other farmer in their position would have done : they continued to farm the land . They were not at fault . But the result of ORG ’s inaction was that they enjoyed the full use of the land without payment for DATE . As if that were not gain enough , they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all . In the case of unregistered land , and in DATE before registration became the norm , such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay . But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result , and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it . It is reassuring to learn that LAW CARDINAL has addressed the risk that a registered owner may lose his title through inadvertence . But the main provisions of that Act have not yet been brought into effect , and even if they had it would not assist GPE , whose title had been lost before the passing of the LAW . While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend , this is a conclusion which I ( like the judge [ PERSON ] ... ) ‘ arrive at with no LAW . ” [ PERSON ( ORG and another v. PERSON and another [ DATE ] CARDINAL All ER CARDINAL , at CARDINAL ]

NORP The question whether the result was incompatible with the applicants’ rights under LAW No . CARDINAL to the LAW was not pursued before ORG , it being conceded that LAW DATE had no retrospective effect . However , in his judgment Lord Hope of PERSON , who also agreed with Lord PERSON on the reasons for dismissing the appeal , observed that the question under the Convention :

“ .... is not an easy one , as one would have expected the law - in the context of a statutory regime where compensation is not available - to lean in favour of the protection of a registered proprietor against the actions of persons who can not show a competing title on the register . Fortunately ....... a much more rigorous regime has now been enacted in Schedule DATE Act . Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain title against the wishes of the proprietor . The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation , although that is an important factor , but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor . ”

Section CARDINAL of LAW , a consolidating LAW , provides :

“ ( CARDINAL ) No action shall be brought by any person to recover any land after the expiration of DATE from the date on which the right of action accrued to him or , if it first accrued to some person through whom he claims , to that person ...

( CARDINAL ) Part I of Schedule CARDINAL to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned . ”

Paragraph CARDINAL of Schedule CARDINAL provides :

“ Where the person bringing an action to recover land , or some person through whom he claims , has been in possession of the land , and has while entitled to the land been dispossessed or discontinued his possession , the right of action shall be treated as having accrued on DATE of the dispossession or discontinuance . ”

In the case of unregistered land , section CARDINAL of the DATE Act provides that , on the expiration of the limitation period regulating the recovery of land , the title of the paper owner is extinguished . In the case of registered land , section GPE ) of LAW DATE provides that , on the expiry of the limitation period the title is not extinguished but the registered proprietor is deemed to hold the land thereafter in trust for the squatter .

ORG considered the law on limitation periods in its report of DATE ( Cmnd CARDINAL ) . It commented negatively on the ORG practice of granting an implied licence to the would - be adverse possessor , which had the effect of stopping time running against the owner , and proposed no change to the existing limitation periods , and agreed that the expiration of the limitation period should serve to extinguish the claimant ’s title .

A Law Commission Consultation Paper on Limitation of Actions in DATE ( Law Com CARDINAL ) gave a number of general policy aims of the law on limitations . The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely , and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right . The ORG , too , has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial , and as guarantor of legal certainty . Finally , limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly .

A separate Law Commission Consultative Document on land registration in DATE ( prepared with ORG ; PERSON ) noted that although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format , there were certain areas where this was not wholly true . CARDINAL example given was the position of the rights of adverse possessors ( section GPE ) of LAW DATE was referred to ) . The Consultative Document set out and commented on CARDINAL particularly cogent reasons often given for the law on adverse possession : ( i ) Because it is part of the law on limitation of actions . It noted :

“ ... because adverse possession is an aspect of the law of limitation , it is of course customary to account for it , at least in part , in terms of the policy of limitation statutes generally , namely to prevent defendants from stale claims and to encourage defendants not to sleep on their rights . However , adverse possession does not merely bar claims . Its effect is positive : ‘ a squatter does in the end get title by his possession and the indirect operation of LAW .. ’ . This can only be justified by factors over and above those which explain the law on limitation ... this particular justification has much greater force in relation to unregistered land than it does for land with registered title . Unregistered title ultimately depends on possession . It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights . ... where title is registered ( ... ) the basis of title is primarily the fact of registration rather than possession . Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ... ”

( ii ) Because if land and its ownership are out of kilter , the land may become unmarketable . Where the registered owner has disappeared , and can not be traced , and a squatter takes possession , the doctrine of adverse possession “ does at least ensure that in such cases land remains in commerce and is not rendered sterile ” . Where there have been dealings “ off the register ” , such as where a farmer agrees to a land swap with a neighbour under a “ gentleman ’s agreement ” but does not register the change , “ adverse possession fulfils a useful function ” . ( iii ) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure . In such circumstances adverse possession can be justified on grounds of hardship , and there are parallels with the principles of proprietary estoppel . ( iv ) Because it facilitates and cheapens investigation of title to land . ORG accepted this last reason as being very strong for unregistered land , but considered that for registered land , where title depends on the contents of the register rather than possession , it was not applicable .

ORG proposed , provisionally , that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration , and that it should be limited to very few , exceptional cases .

Two Reports , on Limitation of Actions ( Law Com CARDINAL ) and on registered land ( Law Com CARDINAL ) , followed the Consultation Papers , and were published in DATE .

ORG on LAW recommended that the general limitation period for actions in respect of land should be DATE . It added that if the proposals made on registered land in LAW were accepted , the proposal would relate only to interests in unregistered land ( and unregistrable interests in registered land ) .

The Report on registered land ( Law Com CARDINAL ) proposed that a squatter should be able to apply to be registered as proprietor after CARDINAL years’ adverse possession , and that the registered proprietor should be notified of that application . If the proprietor objected to the registration , the application by the adverse possessor for registration would be rejected . The registered proprietor would then be required to regularise the position ( for example by evicting the squatter ) within DATE , failing which the squatter would be entitled to be registered as proprietor .

LAW CARDINAL , which does not have retroactive effect , implemented the proposals in LAW .

On DATE , Deputy Judge PERSON in ORG gave judgment in the case of ORG v. ORG , DATE ) . The case concerned a licensee who had remained in possession of registered land for DATE after the expiry of his licence . Applying the judgment of ORG in the present case , the judge found that under LANGUAGE law as it stood up to the entry into force of LAW DATE , the registered owner of the land lost all claim to it . However , on analysing the facts on a Convention basis , he found that there was no real public or general interest in the law on adverse possession in the case of registered land , and that the adverse consequences for the landowner were disproportionate . By re - interpreting the relevant legislation in accordance with LAW , the judge found that the claim by the former licensee to have acquired the disputed land failed .