CASE OF AKHMADOVA AND AKHMADOV v. RUSSIA

Preliminary objection dismissed (abuse of the right of petition);Violation of Art. 2;Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Pecuniary damage - award;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in GPE . They are spouses and the parents of CARDINAL children . Their elder son , PERSON , was born in DATE .

DATE the applicants , their CARDINAL sons , CARDINAL daughters and CARDINAL minor grandchildren were at their family home at CARDINAL FAC , ORG .

At TIME on DATE a group of CARDINAL masked men in camouflage uniforms broke into the applicants’ house . The men did not identify themselves . They were armed with machine guns , which were equipped with silencers used by NORP troops . The men conversed among themselves in NORP without any accent . The applicants inferred that they were NORP servicemen .

NORP The applicants’ younger daughter cried . The servicemen put machine guns to the second applicant ’s chest , told him to calm the children down and ordered him to awaken his elder son . When he did so , they took PERSON to the courtyard , forced him to his knees and tied his arms behind his back with adhesive tape .

The servicemen pushed the second applicant with a machine - gun butt into a room and ordered him not to move . Then the armed men left the house taking PERSON with them . The second applicant tried to follow the servicemen , but the door was blocked from the outside . The second applicant then looked out the window and noticed more masked men . The whole group drove away in a UAZ vehicle , a ORG truck and an armoured personnel carrier ( “ ORG ” ) .

NORP In support of their account of the events the applicants submitted written statements from CARDINAL neighbours who had witnessed the scene in the courtyard .

According to ORG , at TIME on DATE unidentified persons armed with machine guns entered the house at FAC , ORG , kidnapped PERSON and took him away in an unknown direction .

In TIME of DATE the applicants reported in person their son ’s disappearance to the district department of the interior , the temporary district department of the interior , the military commander ’s office , the prosecutor ’s office of ORG ( “ the district prosecutor ’s office ” ) and the local administration . None of the officials provided any information as to PERSON whereabouts . On DATE the applicants lodged written complaints with all the aforesaid bodies . The applicants retained copies of some of these complaints and submitted them to the ORG .

From DATE the first applicant repeatedly wrote to various official bodies , such as ORG , the prosecutor ’s office of GPE , the military prosecutor of military unit no . DATE , ORG , the Special Envoy of the NORP President in GPE for LAW , the Russian ORG and the NORP State Duma . She also contacted ORG . In her applications she described in detail the circumstances of her son ’s abduction and asked for assistance in establishing his whereabouts . Most of the complaints were eventually forwarded to the district prosecutor ’s office .

The first applicant also addressed numerous penitentiary institutions requesting information on her son ’s possible detention . In reply , she was informed that PERSON had not been held in any of them .

On DATE the first applicant visited the head of ORG of ORG ( “ the ORG ” ) , PERSON , and told him that PERSON was not sufficiently fluent in NORP . PERSON interrupted her saying that her son spoke NORP better than her . As evidence , the first applicant provided written statements from her CARDINAL relatives who heard PERSON reply .

On DATE the investigation into PERSON kidnapping was opened in case no . DATE .

On DATE ORG of the ORG informed the first applicant that PERSON had not been detained by the ORG and that there had been no legal grounds for his detention . The letter also stated that measures were being taken to establish his whereabouts .

On DATE the prosecutor ’s office for ORG informed the first applicant that her complaint about ineffective investigation into her son ’s disappearance had been forwarded to the prosecutor ’s office of GPE .

On DATE the prosecutor ’s office of GPE informed the first applicant that her complaint about the suspension of the criminal proceedings concerning her son ’s disappearance had been examined .

On DATE the first applicant wrote to ORG of the ORG asking for assistance and mentioned her conversation with PERSON of DATE . Later an ORG official informed the first applicant that her letter had been forwarded to the district prosecutor ’s office .

On DATE the district prosecutor ’s office informed the first applicant that the investigation in case no . DATE had been resumed on DATE and that no suspects had been found yet .

On DATE the investigation was again stayed , apparently for a failure to identify suspects .

On DATE the first applicant complained to ORG of GPE ( “ the town court ” ) about the authorities’ failure to carry out an effective investigation and namely to take a number of essential steps . She requested that the investigation be reopened and that she be allowed access to the case file .

On DATE the military prosecutor ’s office of military unit no . CARDINAL informed the first applicant that military personnel had not taken part in her son ’s abduction .

On DATE CARDINAL policemen of the district department of the interior visited the applicants and interrogated witnesses of PERSON apprehension . The witnesses reassured the policemen that the applicants’ son had not participated in any illegal armed groups .

On DATE the first applicant complained to the prosecutor ’s office of GPE about inactivity of the district prosecutor ’s office . On DATE she was informed in reply that investigative measures were being taken to resolve her son ’s kidnapping .

On DATE the first applicant was invited for an interview at the district prosecutor ’s office . Once there , she was told by an investigator that she should have ensured that witnesses to her son ’s abduction visited him . The first applicant replied that she needed guarantees for safety in respect of herself and the witnesses . The investigator said that he himself had no guarantees for his own safety . The first applicant inferred from the investigator ’s remark that her life was in danger and requested the district prosecutor ’s office to take security measures pursuant to LAW in respect of her family members and the witnesses to her son ’s abduction .

On DATE the district prosecutor ’s office informed the first applicant that her request for application of security measures had been dismissed .

On DATE the first applicant complained about the decision of CARDINAL DATE to the prosecutor ’s office of GPE . On DATE she was informed that there were insufficient grounds for the application of security measures in her case .

On DATE the first applicant requested the district prosecutor ’s office to update her on the progress in the investigation in case no . DATE and to resume the proceedings if they had been suspended .

On DATE the district prosecutor ’s office instituted criminal proceedings related to the disappearance of PERSON under LAW of LAW ( aggravated kidnapping ) . The case file was assigned the number DATE .

On DATE the first applicant was granted victim status in case no . DATE . On DATE the district prosecutor ’s office suspended the investigation for failure to identify those responsible .

DATE and DATE the investigation in case no . DATE was resumed CARDINAL times and then suspended by the district prosecutor ’s office .

On DATE the investigation was resumed .

On DATE the district prosecutor ’s office again suspended the investigation .

On DATE the Urus - Martan Town Court ( “ the town court ” ) examined the first applicant ’s complaint concerning the suspension of the investigation into her son ’s kidnapping . It noted that the investigators had taken certain measures to resolve the crime . In particular , they had questioned witnesses and sent requests to law - enforcement agencies . The department of ORG of ORG , the military commander ’s office , the department of the interior and some other law - enforcement agencies had replied that their officers had not detained PERSON . The investigators had tried to establish which ORG agency had owned an armoured intelligence vehicle ( “ AIV ” , « боевая разведывательно-дозорная машина GPE , ORG ) and a Ural vehicle . Nevertheless , the town court found that the investigators had not taken all the measures indicated by the prosecutor ’s office of GPE in a decision of DATE . In particular , they had not questioned the former head of the district department of the ORG and the former military commander of ORG . The town court concluded that the first applicant ’s complaint was well - founded and ordered that the district prosecutor ’s office resume the investigation in case no . DATE .

On DATE ORG of GPE upheld the first - instance judgment .

On DATE the district prosecutor ’s office resumed the proceedings and informed the first applicant accordingly .

On DATE the investigation was again suspended .

On DATE the prosecutor ’s office of GPE quashed the decision of DATE for the reason that the investigation had not been comprehensive . They indicated that it was necessary to verify the first applicant ’s hypothesis of involvement of ORG servicemen in her son ’s kidnapping and to perform the measures indicated by the prosecutor ’s office of GPE and the town court . The proceedings in case no . DATE were resumed .

On DATE the district prosecutor ’s office resumed the investigation into PERSON kidnapping for DATE as it was necessary to decide upon a request by the first applicant . On DATE the investigation was suspended .

On CARDINAL DATE the district prosecutor ’s office decided to resume the investigation in case no . DATE for the reason that a number of investigative measures had not been taken .

Despite specific requests by ORG did not disclose most of the material from case no . DATE , providing only copies of decisions to suspend and resume the investigation and to grant victim status , as well as of several notifications to relatives of the adjournment and reopening of the proceedings . In particular , they did not provide a copy of the decision of the prosecutor ’s office of GPE of DATE referred to by the town court . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .

Article CARDINAL of the ORG provides that a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation . Once a complaint is examined , the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor ’s decision .

Article CARDINAL of the ORG provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the ORG enshrines the rule that data from the preliminary investigation can not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission .


CASE OF T.P. AND K.M. v. THE UNITED KINGDOM

No violation of Art. 6;Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

T.P. , the first applicant , gave birth to her daughter , PERSON , the second applicant , on DATE . T.P. was then aged DATE .

DATE , the local authority , the London Borough of GPE , suspected that the second applicant was being sexually abused , partly as a result of the second applicant having a persistent urinary tract infection , partly because of her behaviour , including a remark made at the children ’s hospital where she was admitted for treatment . She had told a social worker that PERSON , the first applicant ’s then boyfriend , had “ hurt my bum ” . In or DATE , surgery took place to re - implant the second applicant ’s right ureter into her bladder . At a date unspecified , she also had surgery to remove a false second kidney . She continued to have urinary problems and associated infections .

There were case conferences held by the local authority on CARDINAL DATE , DATE and DATE . Concern was expressed , inter alia , about the applicants’ home situation , where there was “ a steady stream of young men ” and about the first applicant ’s ability to protect the second applicant and general parenting skills . The social worker PERSON had mentioned the possibility of sexual abuse with the first applicant . In a later affidavit , he stated that she appeared angry that it was a concern and claimed that she never left PERSON alone with anyone and that PERSON would tell her if anyone hurt her .

NORP In DATE , during a visit to their home , social workers obtained information regarding their living arrangements including the fact that GPE , the first applicant ’s boyfriend , lived with the applicants . Concern was expressed regarding the first applicant ’s care of her daughter and a case conference was held on DATE to which the first applicant was not invited . As a result of the conference , the second applicant was placed on ORG under the category of emotional abuse . It was also agreed at the conference that the social worker Mr P would obtain the first applicant ’s consent for the second applicant to have a disclosure interview at a child guidance clinic . A further medical examination of the second applicant at the children ’s hospital discovered no medical cause for her recurrent urinary infection . The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic .

On CARDINAL DATE , at a child guidance clinic , the second applicant was interviewed by a consultant child psychiatrist , Dr ORG , employed by PERSON health authority . The social worker , Mr P. , was present during the interview whilst the first applicant waited in an adjoining room . The interview was recorded on videotape . The second applicant was aged DATE and DATE at this time .

In the course of the interview , the second applicant disclosed that she had been abused by someone named X. The first applicant ’s boyfriend , LAW , shared the same first name , PERSON , as the abuser . The transcript recorded inter alia :

“ PERSON : ( referring to a drawing made by PERSON ) Whose face is that then ? ... Is that anyone , anybody special that face or just any face ?

PERSON : X ’s .

PERSON ’s face OK . Then who ’s X ? Is X someone you know ?

PERSON : My mum ’s X.

PERSON : Oh your mum ’s X. What is that mummy ’s boyfriend . Is it ?

PERSON shakes her head .

PERSON ... Is X still living at home with you ?

PERSON : shakes her head .

PERSON He ’s not .

PERSON : Thrown him out my mum .

PERSON Your mum throwed him out did she .

PERSON : He ’s coming in DATE .

PERSON He ’s coming in no more .

PERSON : No he ’s coming in DATE .

PERSON He ’s coming in DATE . What X.

PERSON nods . ”

The first applicant was then interviewed , again on video , and informed that the second applicant had disclosed that she had been sexually abused by LOC . She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination . When the first applicant asked whether or not her daughter was being taken into care , she received no reply . PERSON also told the first applicant that she could see the recording of the interview with her daughter at some point .

After the interview , the first applicant asked her daughter if she had been abused by FAC . The first applicant stated that the second applicant denied that she had been abused by ORG and told this to PERSON When the first applicant became agitated and angry , PERSON and PERSON both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation . PERSON came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately . In comments made to the first applicant in her interview , the possibility that in due course she could see the video of the disclosure interview was referred to by PERSON and PERSON

Later , on CARDINAL DATE , the local authority applied successfully to GPE magistrates court for a place of safety order . The local authority stated that the second applicant had been abused , had identified FAC as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation . The first applicant was not in court . A place of safety order was granted for DATE .

On DATE , the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings .

On DATE , the first applicant , having excluded all men from her home , applied to ORG for the second applicant to be made a ward of court . The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse . The local authority was awarded care and control of the second applicant and the first applicant was granted limited access . The local authority did not volunteer the video of the interview with the child .

Contact between the first and the second applicant was severely restricted between DATE and DATE . The first applicant was permitted initially TIME of supervised contact with her daughter DATE at the foster parent ’s home . Following concerns that the first applicant was trying to induce her daughter to retract her evidence and was causing her distress , that access was altered to no telephone calls and one supervised access visit per week at the social services’ office . The second applicant had no contact with her extended family , including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority .

During this period the second applicant continued to have urinary problems , including incontinence . In DATE , she underwent another operation , which improved her condition , though she remained subject to frequent infections .

During DATE , the first applicant gave birth to a son , NORP , fathered by GPE . NORP was made a ward of court but the local authority did not apply to remove NORP from the care of his mother and GPE .

In or DATE , PERSON , who had been instructed on behalf of the first applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused , obtained the consent of PERSON to view the video recording of the second applicant ’s disclosure interview . In his letter dated DATE to the first applicant ’s solicitor , he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and that there appeared to be little doubt that she was identifying the mother ’s boyfriend as the perpetrator . He recommended that the first applicant be allowed to see the video . He referred to PERSON continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information . PERSON informed PERSON that she would not consent to the first applicant having access to the video until after the full hearing in the wardship trial .

On DATE , during the wardship proceedings regarding NORP , Registrar GPE ordered that the video be disclosed within DATE . The health authority and PERSON issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant .

In her affidavit of CARDINAL DATE , PERSON expressed her opinion that medical confidentiality be attached to the video and that it should only be disclosed if in the interests of the child , which the circumstances showed was not the case .

“ It is my professional belief that for the parties to see the video recording is not in the interests of children , and in particular not in this case . The possible harm to children arises from them being in the position whereby their words or actions , given in confidence , may control events or decisions . Anger , unforgiveness or victimisation may well be directed at the child especially if the purpose of the viewing is to enable a party to seek to establish his or her innocence of alleged LAW abuse or to confirm a party ’s view that no Child Sexual abuse has taken place and that the child must be lying . ”

She had no objection to the lawyers and medical experts seeing the tape and transcript .

By reports dated CARDINAL DATE , PERSON and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children . PERSON noted generally that the mothers of abused children would often be in a position to clarify details , including the identity of the alleged abuser . He also understood that the video had already been shown by the police to LOC in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity . He saw no risk of harm flowing to the second applicant from such disclosure .

On an unspecified date at or about that time , the first applicant ’s solicitors had sight of the transcript . The transcript showed that the second applicant had shaken her head when asked whether the abuser was living at home and that she had identified her abuser as having been thrown out of the house by the first applicant . These matters , which were inconsistent with the identification of LOC as the abuser , were raised by the first applicant ’s solicitors with the local authority on or DATE , when the summons concerning the video was to be heard .

On DATE , at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and FAC for a trial period of DATE at which point a final proposal would be made . In a report dated DATE submitted for that hearing , a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case , that there was now doubt as to the identity of the abuser but that whoever it was , the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her . While there had been doubts as to the first applicant ’s ability to be a “ good enough parent ” , it was noted that her situation had changed – she had “ matured ” , had had a second child and was in a stable relationship with the second child ’s father . If over the trial period , any further abuse occurred , it was proposed that the second applicant be removed permanently with a view to adoption and that NORP ’s future be assessed . In her affidavit of CARDINAL DATE , the first applicant said that she had been informed , and believed , that the video and transcript had been reviewed by the local authority who had concluded that her boyfriend PERSON was no longer a suspected abuser . Mr Justice PERSON ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant . The matter was adjourned for a period of not DATE .

The second applicant remained with the first applicant from that time DATE . In DATE , the final hearing took place in ORG . The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court . The wardship was discharged .

On DATE , the applicants issued proceedings making allegations of negligence and breach of statutory duty against the local authority , the central allegation being that the social worker , PERSON , and the psychiatrist , PERSON , failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant . The health authority and PERSON were also named as defendants . The applicants claimed that as a result of their enforced separation each of them had suffered a psychiatric disorder .

Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis . He issued CARDINAL reports , CARDINAL dated DATE and the second undated , concerning the effects of the separation and proceedings .

On DATE , PERSON struck out the application as revealing no cause of action on the basis that PERSON enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims . The applicants’ appeal to ORG was dismissed on DATE by Judge PERSON who held that no claim could arise from any alleged right to custody of a child which would give rise to an award of damages .

In ORG , ORG striking out decision was upheld on DATE . The majority found that no claim for breach of statutory duty in respect of sections CARDINAL and CARDINAL of LAW DATE could arise , due to the general nature of the duty , the imprecise terms in which it was couched and the fact that the alleged breach of duty took place before the child was taken into care under the statutory duty in question . They held in respect of the claims that PERSON and PERSON were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions . The psychiatrist PERSON was acting in order to advise the local authority and owed a duty of care to the local authority , not to the first or second applicant . Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries . Reference was made to the policy considerations weighing against imposing liability in such matters . However , the Master of the Rolls , Sir PERSON , dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority ( reported as M v. GPE LBC ; PERSON v. GPE ORG ) CARDINAL ) . Leave was granted to appeal to ORG .

On appeal to ORG , the decision of the majority of ORG was upheld on DATE . Lord PERSON delivered the leading judgment concerning CARDINAL cases , the GPE case , the PERSON case ( the applicants’ case ) and the GPE case ( reported as X and Others v. ORG [ DATE ] CARDINAL ORG CARDINAL ) .

As regarded the claims for breach of statutory duty made in both the GPE and GPE cases , Lord PERSON held :

“ ... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community . The welfare sector involved is CARDINAL of peculiar sensitivity , involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents . In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if , on subsequent investigation with the benefit of hindsight , it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties . ...

When CARDINAL turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action . ”

In respect of the applicants’ claim in the PERSON case that the local authority and the health authority were vicariously liable for the actions of the social worker , PERSON , and psychiatrist PERSON respectively , Lord PERSON said as follows :

“ In the PERSON case [ the applicant ’s case ] the pleadings and Mr PERSON ’s submissions make it clear how the case is put . The social worker and the psychiatrist , as professionals , owed a personal duty to the first plaintiff , the child , and to the second plaintiff , the mother , to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries . The social worker and the psychiatrist were each personally in breach of this duty , for which breach their employers ... are vicariously liable . ... ”

Like the majority in ORG , I can not accept these arguments . The social workers and the psychiatrists were retained by the local authority to advise the local authority , not the plaintiffs . The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child can not alter the extent of the duty owed by the professionals under the retainer from the local authority ...

In my judgment in the present cases , the social workers and the psychiatrist did not , by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ...

Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs , the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist . ...

In the PERSON case [ the applicant ’s case ] it is not alleged that the borough council was under any direct duty of care to the plaintiffs : the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants . ”

In the GPE case , where the applicant children had argued that the local authority owed them a direct duty of care in the exercise of their child care functions , Lord PERSON stated , insofar as relevant , as follows :

“ I turn then to consider whether , in accordance with the ordinary principles laid down in GPE [ DATE ] CARDINAL A.C. CARDINAL , the local authority ... owed a direct duty of care to the plaintiffs . The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority is sufficiently proximate . The third requirement laid down in GPE is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...

The Master of the Rolls took the view , with which I agree , that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy ( see [ DATE ] CARDINAL AER CARDINAL at CARDINAL ) . However , in my judgment there are such considerations in this case .

First , in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk . As a result of the ministerial directions contained in “ ORG ” the protection of such children is not the exclusive territory of the local authority ’s social services . The system is inter - disciplinary , involving the participation of the police , educational bodies , doctors and others . At all stages the system involves joint discussions , joint recommendations and joint decisions . The key organisation is ORG , a multi - disciplinary body which decides whether to place the child on ORG . This procedure by way of joint action takes place , not merely because it is good practice , but because it is required by guidance having statutory force binding on the local authority . The guidance is extremely detailed and extensive : the current edition of “ LAW ” runs to CARDINAL pages . To introduce into such a system a common law duty of care enforceable against CARDINAL of the participant bodies would be manifestly unfair . To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability , both primary and by way of contribution , of each for reaching a decision found to be negligent .

Second , the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate . Legislation requires the local authority to have regard not only to the physical well - being of the child but also to the advantages of not disrupting the child ’s family environment . ... In one of the child abuse cases , the local authority is blamed for removing the child precipitately ; in the other for failing to remove the children from their mother . As the Report of the Inquiry into Child Abuse in GPE DATE ( ORG . CARDINAL ) ( “ GPE Report DATE ” ) said , at p. CARDINAL :

‘ ... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough . Social services whilst putting the needs of the child first must respect the rights of the parents ; they also must work if possible with the parents for the benefit of the children . These parents themselves are often in need of help . Inevitably a degree of conflict develops between those objectives.’

ORG , if liability in damages were to be imposed , it might well be that local authorities would adopt a more cautious and defensive approach to their duties . For example , as ORG makes clear , on occasions the speedy decision to remove the child is sometimes vital . If the authority is to be made liable in damages for a negligent decision to remove a child ( such negligence lying in the failure properly first to investigate the allegations ) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts . Not only would the child in fact being abused be prejudiced by such delay , the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children .

The relationship between the social worker and the child ’s parents is frequently CARDINAL of conflict , the parent wishing to retain care of the child , the social worker having to consider whether to remove it . This is fertile ground in which to breed ill - feeling and litigation , often hopeless , the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided . The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty . But the circumstances surrounding cases of child abuse make the risk a very high one which can not be ignored .

If there were no other remedy for maladministration of the statutory system for the protection of children , it would provide substantial argument for imposing a duty of care . But the statutory complaints procedures contained in section DATE of LAW and the much fuller procedures now available under LAW provide a means to have grievances investigated though not to recover compensation . Further , it was submitted ( and not controverted ) that the local authorities ORG would have power to investigate cases such as these .

Finally , your Lordships’ decision in Caparo [ DATE ] CARDINAL A.C. CARDINAL lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories . We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases . Here , for the first time , the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . Such a scheme is designed to protect weaker members of society ( children ) from harm done to them by others . The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who , under the general law , are responsible for the child ’s welfare . To my mind , the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police ( in seeking to protect vulnerable members of society from wrongs done to them by others ) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty . In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer . ... In my judgment , the courts should proceed with great care before holding liable in negligence those who have been charged by ORG with the task of protecting society from the wrong doings of others . ”

Prior to the coming into force of the current legislation , LAW DATE , on DATE , the local authority ’s duty in respect of child care was governed by LAW .

Sections CARDINAL and CARDINAL of LAW DATE provided that :

“ CARDINAL . It shall be the duty of every local authority to make available such advice , guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care .

CARDINAL(CARDINAL ) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen-

( a ) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost ;

( b ) that his parents or guardian are , for the time being or permanently , prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation , maintenance and upbringing ; and

( c ) in either case , that the intervention of the local authority under this section is necessary in the interests of the welfare of the child , it shall be the duty of the local authority to receive the child into their care under this section . ”

Under section CARDINAL ) of the Children and Young Persons’ Act DATE any person , including a local authority could apply to a magistrate for the authority to detain a child and take him / her to a place of safety . There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child ’s proper development was being avoidably prevented or neglected or that he / she was being ill - treated or exposed to moral danger . The order could last a maximum of DATE , with no possibility of extension . Before the expiry of the order , it was necessary for the local authority to institute care proceedings under section QUANTITY of the DATE Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control .

NORP The place of safety order was replaced with the emergency protection order under LAW , which came into force on DATE . This provided for removal of a child on emergency grounds for a maximum period of TIME .

Section CARDINAL of LAW DATE permitted the Secretary of ORG to cause an inquiry to be held into any matter relating , inter alia :

“ the functions of the social services committee of a local authority , in so far as those functions relate to children . ”

Pursuant to Part III of LAW DATE , as amended , ORG ( ORG ) had the function , inter alia , of investigating written complaints by persons who claim to have sustained injustice “ in consequence of maladministration in connection with ... action taken in exercise of administrative functions of local authorities ” . On conclusion of an investigation , ORG Ombudsmen could recommend an appropriate remedy , including the payment of compensation , where maladministration was found .

The power of ORG to make a child a ward of court derives from its inherent jurisdiction . The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child ’s life . The child ’s welfare must be the first consideration of the court .

As soon as the originating summons was issued , the custody of the child vested in the court . From that moment , the parties to the proceedings , including the local authority , only had such power and authority over the child as was conferred by the court .

In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence , defamation etc .

Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ;

– that it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

The decision in X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) is the leading authority in GPE in this area . It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The leading judgment is reported at length in the facts above ( see paragraphs DATE ) .

Since the X. and Others case , there has been CARDINAL further significant judgments regarding the extent of liability of local authorities in child care matters .

The Court of Appeal gave judgment in the W and Others v. ORG ( [ DATE ] CARDINAL All ER CARDINAL , judgment of DATE ) . This case concerned the claims by a mother and father ( first and second plaintiffs ) , who had agreed to act as foster parents , that the defendant local authority placed G , a DATE boy , in their home although they knew that he was a suspect or known sexual abuser . During G ’s stay in their home , the plaintiffs’ CARDINAL children ( DATE plaintiffs ) were all sexually abused and suffered psychiatric illness . The plaintiffs brought an action against the local authority and the social worker involved , claiming damages for negligence and for negligent misstatement . On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action , the judges struck out the GPE claims but refused to strike out the claims of the children . ORG upheld his decision . The headnote for the judgment summarised ORG findings as follows :

“ ( CARDINAL ) ... In the instant case , the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties , and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion . Accordingly , since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity , the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker . Having regard to the fact that the common law duty of care would cut across the whole statutory set up for the protection of children at risk , that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate , that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed , that the relationship between parents and social workers was frequently CARDINAL of conflict and that the plaintiff children ’s injuries were compensatable under LAW , it was not just and reasonable to do so . It followed that no duty of care was owed to the plaintiff parents ...

( CARDINAL ) ( ORG dissenting ) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty . Accordingly , since in the instant case , the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents , and express assurances had been given that a sexual abuser would not be placed in their home , their claim should proceed ... ”

On further appeal by the parents , ORG on DATE held that it was impossible to say that the psychiatric injury allegedly suffered by the parents , flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier , was outside the range of psychiatric injury recognised by the law , nor was it unarguable that the local authority had owed a duty of care to the parents . The GPE claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed .

ORG gave judgment on DATE in PERSON v. the GPE of GPE ( [ DATE ] CARDINAL WLR CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff ’s appeal , unanimously held that the case of X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .

Lord PERSON , in his judgment in that case , commented as follows on the operation of the duty of care :

“ ( CARDINAL ) Although the word ‘ ORG is sometimes incorrectly used , a holding that it is not fair , just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject . It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair , just and reasonable in those circumstances to impose liability in negligence . ( CARDINAL ) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances , e.g. some activities of financial regulators , building inspectors , ship surveyors , social workers dealing with sex abuse cases . In all these cases and many others the view has been taken that the proper performance of the defendant ’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence . In LANGUAGE law the decision as to whether it is fair , just and reasonable to impose a liability in negligence on a particular class of would - be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would - be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered . ( CARDINAL ) In LANGUAGE law , questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law . Once the decision is taken that , say , company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ( see ORG plc v Dickman [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] CARDINAL AC CARDINAL ) , that decision will apply to all future cases of the same kind . The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case . ”

At the relevant time , LAW rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .

In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant ’s pleadings were true . The question for the courts was whether , even assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .

The striking out procedure , now contained in the Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia by allowing it to be decided promptly which issued need full investigation and trial and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

In DATE criminal proceedings were brought against the applicant before ORG ( “ the trial court ” ) for the offence of membership of an illegal organisation . On DATE he was acquitted of the charges . When acquitting him , the trial court considered that there was insufficient evidence to prove that the applicant was a member of the illegal organisation . It found , however , that there was sufficient evidence to show that he had aided and abetted the organisation . Nevertheless , considering that the applicant had been coerced to aid and abet the organisation by its members , the trial court concluded that the applicant did not have the requisite mens rea and acquitted him .

NORP Before the appeal lodged by the prosecutor against the applicant 's acquittal was examined by ORG , the statute of limitations for the offence in question had been reached . Accordingly , on DATE ORG discontinued the criminal proceedings against the applicant .

On DATE the applicant was arrested once more and was examined by a doctor before he was placed in police custody in ORG . According to the report of the medical examination , there were no injuries on the applicant 's body .

According to the applicant , during his time in police custody he was subjected to ill - treatment .

On DATE police officers took the applicant to a café and CARDINAL shops in the nearby town of GPE , which had been bombed in DATE . According to the statements drawn up pertaining to those visits , the applicant told the police officers that he had carried out the bombings with the assistance of a number of other persons .

In a statement taken from the applicant in police custody DATE , the applicant was reported as having detailed his activities within the ORG .

On DATE the applicant was released from police custody and was brought before a prosecutor and then before a judge , who questioned him further . The applicant denied the statements taken from him by police officers DATE , and added that he had not been involved in any bombing . The applicant told the judge that he had signed the statements in police custody because he had thought that he would be ill - treated by the police officers if he refused to sign them . He added that in DATE he had collected money by making threats on behalf of the ORG , taken part in demonstrations and distributed leaflets in support of that organisation , but that he had already been tried and spent time in prison for those activities ( see paragraphs CARDINAL above ) . The judge remanded the applicant in custody pending the introduction of criminal proceedings against him . DATE the applicant was examined by a doctor , who reported that there were no injuries on the applicant 's body .

When questioned by the police officers and subsequently by the prosecutor and the judge , the applicant was not represented by a lawyer .

On DATE the prosecutor at ORG filed an indictment with that court , accusing the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory .

In the proceedings before the trial court the applicant was represented by a lawyer . During the trial the applicant repeatedly denied his police custody statements and told the trial court that the statements had been taken from him under “ intense pressure ” .

On DATE the trial court found the applicant guilty of offences of membership of an illegal organisation and planting explosives . He was sentenced to DATE , DATE and DATE imprisonment . In convicting the applicant the trial court relied on the statements taken from him in police custody ( see paragraph CARDINAL above ) . In response to the applicant 's lawyer 's submissions that the applicant was being tried twice for the same offence , the trial court stated in its judgment that the previous trial had not concerned the bombing incidents .

On DATE the applicant appealed against his conviction and argued , inter alia , that he had been subjected to ill - treatment in police custody and that he had been forced to sign a number of documents .

In his written observations submitted to ORG the prosecutor referred to the applicant 's allegations of ill - treatment and drew ORG attention to the trial court 's failure to take into account a video recording which had apparently been made at the time when the police officers took the applicant to the café . The prosecutor 's observations were not communicated to the applicant .

As requested by the applicant , ORG held a hearing before it rendered its decision on the appeal . Nevertheless , neither the applicant nor his lawyer attended the hearing . On DATE ORG rejected the appeal and upheld the applicant 's conviction . The decision was deposited with the registry of the trial court on DATE .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and is serving a prison sentence in the GPE region .

On DATE GPE found the applicant guilty of murder and of membership of an organised criminal gang , and sentenced him to DATE imprisonment . On DATE ORG upheld the applicant ’s conviction , in substance , on appeal .

It appears that the applicant has been serving his prison sentence in different correctional facilities . From DATE the applicant was held in correctional colony no . DATE in the GPE region . Throughout the period in question , he was repeatedly sanctioned for failure to comply with the colony ’s internal regulations and was continuously detained in disciplinary cells .

NORP In particular , on CARDINAL and DATE the applicant was placed in a punishment cell for DATE for refusal to participate in cleaning work in the colony . On DATE he spoke rudely to guards and was placed in a punishment cell for DATE . On DATE the applicant was placed in a punishment cell for DATE for having brought , in contravention of internal regulations , black tea leaves into the punishment cell . On DATE the applicant refused to participate in cleaning work in the colony and was placed in a punishment cell for DATE . On DATE the applicant was placed in a punishment cell for DATE for refusing to wear prison uniform and for swearing at colony officers . On DATE the applicant wrenched the sink off the wall , broke the window frame and crushed a bulb with a kettle in the cell where he was detained . He was placed in a prison - type cell for DATE .

The Government ’s submissions as regards the conditions of the applicant ’s detention can be summarised as follows :

All the cells were equipped with a ventilation system in working order . There was access to natural light . During TIME the cells were lit with a CARDINAL electric bulb . The windows measured QUANTITY and were covered with a steel grille whose openings measured CARDINAL x QUANTITY . The grille did not prevent access to daylight . The toilet was located in the corner of the cell , QUANTITY from the dining table and the nearest bed . It was separated by a CARDINAL - high brick wall with a door . The temperature in the cells was CARDINAL The colony ’s disciplinary premises were provided with CARDINAL exercise areas measuring from QUANTITY . The inmates had an TIME ’s DATE outdoor exercise .

The applicant provided the data similar to the ORG ’s submissions as regards the size and the population of the cells where he had been detained .

According to the applicant , the cells where he was held were located in the basement of the building . They were damp and cold . The walls were covered with mould . There was no ventilation or hot water . The potable water contained yellowish residue and sand . The beds and mattresses were in poor condition and uncomfortable . The cells were overcrowded . The CARDINAL - and - a - half - hour ’s exercise took place in small yards which were always overcrowded . Nor was any exercise equipment available there . The applicant was allowed to take a shower DATE . On DATE he was not allowed to have an outdoor exercise . The shower facilities were dirty .

On an unspecified date the applicant complained to ORG that the conditions of his detention were not in compliance with the applicable domestic standards . In particular , he alleged that the disciplinary cells where he was detained were not suitable for detention . There was no ventilation ; the lighting was poor ; the cells were overcrowded . There was no hot water . The cells were cold and damp . The wash sinks were not isolated from the toilet . On DATE ORG dismissed the applicant ’s complaint . The court noted as follows :

“ It follows from the materials in the case - file , that the punishment and prison type cells in correctional colony no . ORG are lit with electric bulbs of appropriate voltage . The temperature in the cells is in accordance with [ statutory requirements ] .

According to certificate no . CARDINAL of DATE submitted by correctional colony no . IK-CARDINAL , from CARDINAL DATE to date [ the applicant ] has been detained in punishment and prison - type cells nos . CARDINAL , DATE , DATE , [ and ] CARDINAL .

Pursuant to LAW , the personal space afforded per convict can not be lower than QUANTITY in correctional GPE and QUANTITY in prisons .

The materials in the case - file demonstrate that cell no . QUANTITY , cell no . QUANTITY , cell no . QUANTITY , cell no . QUANTITY . [ The applicant ] was detained in cells CARDINAL . CARDINAL and CARDINAL alone . In cell no . CARDINAL there were CARDINAL detainees , in cell no . CARDINAL there were CARDINAL detainees .

Accordingly , the personal space afforded per convict in correctional colony no . ORG where [ the applicant ] has been detained to date is in compliance with law .

According to the certificate of DATE submitted by the respondent party , [ the administration ] conducted an inspection of cell no . CARDINAL where [ the applicant ] is currently detained . Cell no . CARDINAL measures QUANTITY . m and houses ... CARDINAL inmates . The floor is made of wood and covered with oil - based paint . The walls are QUANTITY high and covered with oil - based paint . The top part of the walls and the ceiling are white - washed . The lighting is combined . There is artificial electric lighting ... Natural light is ensured by a window measuring CARDINAL by QUANTITY . There are window panes and a vent . The temperature in the cell is CARDINAL C. The toilet is separated by a partition which is QUANTITY high . There is a centralised cold water supply . The bench is attached to the floor . Its base is made of concrete with a wooden seat ... The table is made of concrete and attached to the floor . The pull - down beds are made of wood and have a smooth surface . The door is heat - insulated and adheres tightly to the door frame .

Regard being had to the above , the court concludes that the conditions of the [ applicant ’s ] detention in correctional colony no . ORG are in compliance with applicable laws ... . ”

On DATE ORG upheld the judgment of DATE on appeal .

On numerous occasions the applicant challenged in court the actions taken against him by the authorities of correctional colony no . ORG , including the disciplinary sanctions imposed on him . Each time the courts considered his complaints in his absence , noting that the domestic rules of civil procedure did not impose on the court an obligation to ensure the convict ’s presence in the courtroom . The applicant ’s representative attended all the hearings , and made submissions to the court on the applicant ’s behalf .

Article CARDINAL § CARDINAL of LAW on LAW DATE ( the “ Code ” ) provides for a minimum standard of QUANTITY of personal space for male convicts in correctional colonies . They should be provided with their own sleeping place and given bedding , clothes and toiletries . In prisons , the personal space afforded per male convict is QUANTITY .

The PERSON provides for CARDINAL main types of penal institutions for convicted criminals : correctional settlement , general regime colony , strict regime colony , special regime colony , and prison ( LAW of the Code ) .

The convicts have a different scope of rights depending on the regime of the correctional facility where they serve a sentence . In particular , the number of family visits and parcels the convicts may receive per year , as well as the amount of cash they are allowed to spend vary depending on the regime of the correctional facility .

The conditions imposed on an inmate serving a sentence in a correctional settlement are the mildest . In particular , the convicts do not live in cells or barracks but in unguarded dormitories . They have the right to move freely within the correctional settlement during DATE . The number and length of family visits are not limited , nor is the possibility of receiving parcels and money from home . As an incentive for good behaviour , and subject to approval by the administration , the convicts may , inter alia , live outside the correctional settlement with their families , live in rented flats , leave the correctional settlement for holidays and DATE , and move freely within the city or district where the settlement is situated . They do not wear a uniform and can dispose of their money as they please . The convicts may even be granted leave to work in another town or district , or participate in distance - learning programmes of higher education establishments ( Article CARDINAL of the Code ) .

NORP The regime in a prison is the most severe . The convicts are detained in cells . They are allowed DATE outdoor exercise not exceeding TIME . The number of family visits and parcels received per year is limited . So is the amount of money the convicts may spend during DATE ( Article CARDINAL of the Code ) .

NORP The convicts serving a sentence in the strict regime GPE are placed in dormitories . They are allowed CARDINAL family visits per year . They may receive CARDINAL parcels per year . These numbers may be decreased or increased subject to the convict ’s compliance with internal regulations of the correctional colony ( Articles CARDINAL of the Code ) .

For failure to comply with the colony ’s internal regulations a convict may be placed in a disciplinary cell . During the period of detention in a punishment cell a convict has a right to TIME DATE outdoor exercise . In the event of repeated violations , a convict can be transferred to a prison - type cell . During the period of detention there , a convict has a right to a GPE DATE outdoor exercise which may be increased up to TIME per day ( Article CARDINAL of the Russian Code on the Execution of Criminal Sentences ) .


Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life

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

The applicant was born in DATE and lives in GPE .

The applicant stated that he was born in ORG , a village on the coast in the GPE district of northern GPE . On the death of his father , he inherited the house , located at CARDINAL , FAC , in which he had lived throughout his childhood . It was situated on plots nos . CARDINAL and CARDINAL , sheet / plan ORG and CARDINALWCARDINAL , and was registered in the name of the applicant by virtue of registration no . CARDINAL of DATE ; it consisted of CARDINAL ground floor rooms , CARDINAL basement rooms , CARDINAL kitchen , CARDINAL wells , CARDINAL turbine water pump and CARDINAL water storage tank . The applicant continued to make use of this house , where his sister lived , until DATE .

NORP However , when he married in DATE , the applicant moved to a house nearby which he had purchased . It was situated on plots CARDINAL . CARDINAL and DATE , sheet / plan XI/CARDINALWCARDINAL.ECARDINAL , and was registered in the name of the applicant by virtue of registration no . CARDINAL of DATE . This second house , located at CARDINAL , FAC , consisted of CARDINAL ground floor rooms , CARDINAL room upstairs , CARDINAL wells , CARDINAL electric water pump and CARDINAL water storage pump .

The applicant also owned CARDINAL plots of land in ORG , some of which were lemon groves , with olive and carob trees growing on the others , and a share in a natural water DATE . These properties were registered as follows :

( a ) plot no . CARDINAL , sheet / plan ORG , field with lemon groves of a total extent of CARDINAL ORG , registered in the name of the applicant by virtue of registration no . CARDINAL of DATE ;

( b ) plot no . DATE , sheet / plan ORG , field with carob and olive trees of a total extent of CARDINAL m² , registered in the name of the applicant by virtue of registration no . CARDINAL of CARDINAL DATE ;

( c ) plots nos . DATE and DATE , sheet / plan ORG , field with carob and olive trees of a total extent of CARDINAL m² , registered in the name of the applicant by virtue of registration no . CARDINAL of DATE ;

( d ) plot no . CARDINAL , sheet / plan ORG , source of running water , registered for the CARDINAL share in the name of the applicant .

NORP In support of his claim to ownership the applicant produced the original Land Certificates concerning each of his alleged properties , with the exception of the house described under paragraph CARDINAL above . He alleged that the relevant ORG had been submitted to ORG for amendment in DATE and had been lost due to the NORP invasion . He therefore produced an extract from the registries of GPE , dated DATE , and indicating that the property at issue was registered in his name .

Upon the DATE NORP intervention , the applicant left with his wife and QUANTITY children for GPE , southern GPE . He claimed that he had been deprived of his property rights , all his property being located in the area which was under the occupation and control of the NORP military authorities . The latter had prevented him from having access to and from using and possessing his houses and fields .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)

Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

On DATE the applicant confessed before the police to committing robbery together with CARDINAL other individuals DATE . The stolen goods were confiscated by the police that DATE .

On DATE criminal proceedings against the applicant were formally instituted .

It appears that thereafter the case remained dormant until DATE when witnesses were questioned .

In DATE the applicant left the country on a number of occasions and returned each time .

On DATE the applicant , who was abroad at the time , was appointed an ex officio lawyer and was charged in absentia with robbery .

The first hearing of the case was held on DATE in the applicant ’s presence .

In a judgment of DATE the NORP ORG found the applicant guilty and sentenced him to DATE imprisonment , suspended for DATE .

Following an appeal lodged by the applicant ’s co - defendant , in a final judgment of CARDINAL DATE ORG upheld the lower court ’s judgment including the applicant ’s conviction and sentence .

On DATE the ORG ordered the imposition of a ban on the applicant leaving the country on account of his conviction and pending his rehabilitation . It relied on section CARDINAL ) of the DATE Bulgarian Identity Papers Act .

The applicant contested the order arguing that he was unable to provide for his family in GPE and that he had employment opportunities in GPE .

On DATE the applicant was refused passage by a border police official while attempting to leave GPE in spite of the imposed prohibition .

By a final judgment of CARDINAL DATE ORG upheld the prohibition . The court reasoned that it was within the administrative authority ’s discretion to impose such a ban and that its assessment was not subject to judicial control . At the same time , it held that the law had been complied with in that such restriction could be imposed in cases where a conviction was in place and prior to the rehabilitation of the convicted person and that other factors , such as the impossibility to find employment in GPE , were irrelevant .

The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation is set out in the ORG ’s judgment in the case of PERSON v. GPE , no . CARDINAL , § § DATE , DATE .

The relevant statutory provisions concerning the rehabilitation of persons convicted with a suspended sentence are summarised in the abovecited PERSON judgment , LAW .


Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

At the material time the applicant was a vagrant , without a permanent place of abode . It seems that he had several convictions for various offences and had served jail time .

On an unknown date in DATE or in DATE criminal proceedings were instituted against the applicant for having heavily beaten up an acquaintance of his , Mr PERSON ( “ the victim ” ) at a construction site on DATE , and thus having caused his death on CARDINAL of DATE .

On an unspecified later date the investigator in charge of the case questioned Mr GPE , an eyewitness to the incident . The applicant was not present . Mr GPE died DATE , in DATE .

On DATE the applicant was arrested .

On DATE the investigator interviewed PERSON , a witness . The applicant was not present .

On DATE the applicant was charged with intentionally murdering the victim in an especially cruel manner and with extreme ferocity , while being a dangerous repeat offender , contrary to LAW ) and ( CARDINAL ) of LAW of DATE , as in force at that time , and placed in pretrial detention .

On DATE the investigator questioned PERSON , another eyewitness to the incident . The applicant was not present .

On DATE the applicant was questioned in the presence of an ex officio counsel . It seems that he admitted to having beaten the victim with a wooden board .

On DATE the charges were diminished . The applicant was accused of intentionally causing severe bodily injury to the victim and thus negligently bringing about his death , while being a dangerous repeat offender , contrary to LAW of DATE . His pretrial detention was continued .

The Bourgas Regional Prosecutor ’s Office subsequently filed an indictment against the applicant with ORG .

The trial took place in TIME of DATE at ORG . The applicant did not have counsel and was acting pro se .

The court first heard the applicant , who admitted to having beaten the victim with a wooden board , but stated that DATE he had seen him in good health . He had learned that the victim had died only on DATE , when arrested by the police .

The court then questioned CARDINAL expert witnesses and admitted their reports in evidence . The first expert , a psychiatrist , gave an opinion on the applicant ’s mental state at the time of the commission of the alleged offence and on his fitness to stand trial , on the basis of documents in the investigation case file and an examination of the applicant on DATE . The second expert , a forensic medical doctor , who had carried out an autopsy on the victim ’s body on DATE , gave an opinion on the cause of the death , the extent of the injuries found on the body , the possible timing of their inflicting and the causal link between the injuries and the death .

After that the court heard the victim ’s sons , who testified about their father ’s character .

As PERSON and PERSON had not been found at the addresses which they had indicated during the preliminary investigation and had thus not been called at the trial , and as Mr S.V. did not appear despite being subpoenaed , the prosecution requested that their statements made during the preliminary investigation be read out before the court . The applicant agreed . The court , acting in pursuance of LAW ( CARDINAL ) of LAW of DATE ( see paragraph CARDINAL below ) , observing that the first CARDINAL witnesses had not been found at the addresses which they had indicated and were permanently changing their places of abode , and noting that the applicant agreed to the reading out of their statements , decided to admit these statements in evidence . The court also read out the statement of ORG on the basis of LAW ( CARDINAL ) of the LAW ( see paragraph CARDINAL below ) .

The court then questioned Mr GPE , who showed up TIME . He testified that he had heard from Mr GPE and Mr GPE that the applicant had beaten up the victim and that on DATE after the incident he had seen the victim who could not stand up .

At the end of the trial the court heard the parties’ closing statements . The applicant said that he considered himself guilty , expressed his regrets for his act , and pleaded for a minimal sentence .

In a judgment of DATE the ORG found the applicant guilty as charged . It sentenced him to CARDINAL years’ imprisonment . On the basis of the statements of Mr GPE and Mr GPE , the eyewitnesses , the testimony of Mr GPE , who had learned about the incident from them , and the statements of the applicant made during the preliminary investigation and at the trial , the court found that during TIME of CARDINAL DATE the applicant had heavily beaten up the victim with a wooden board at a construction site , after consuming a considerable amount of alcohol and having had a quarrel and a fight with him and the eyewitnesses TIME . The court went on to find , on the basis of the statements of PERSON GPE and PERSON and the testimony of Mr GPE , that the victim had been in a very bad state of health DATE , when the CARDINAL had visited him at the construction site . The court relied on the opinion of the forensic expert to determine that the death had occurred in all probability on DATE and could be the result of a beating as the CARDINAL described by the applicant and the eyewitnesses . It relied on the other expert ’s opinion to conclude that the applicant had not been as heavily intoxicated by alcohol as to be unable to control his actions .

After delivering its judgment , the court ordered that the applicant be maintained in custody pending any appeals against it .

NORP The applicant appealed to ORG . He complained , inter alia , that ORG had convicted him on the basis of the statements of persons who had not been present during the trial . He specifically requested the court to call Mr I.Y. and PERSON as witnesses .

In a decision of DATE ORG rejected the applicant ’s request to call PERSON and PERSON It held that both were vagrants and had no permanent place of abode where to be subpoenaed . The subpoenas sent out before the trial to the addresses which they had indicated during the preliminary investigation had been returned with a mention that neither of them lived at the respective address . The court went on to state that it was impossible for it to locate and subpoena Mr GPE and Mr GPE

After holding a hearing on CARDINAL DATE , in a judgment of DATE ORG upheld the lower court ’s judgment . It fully confirmed its findings of fact and went on to state that it had not erred by reading out the statements of PERSON and Mr GPE made during the preliminary investigation and admitting them in evidence . These CARDINAL witnesses were vagrants , did not have a permanent place of abode and could not be found in order to be subpoenaed . Moreover , the applicant had acquiesced to the reading of their statements and did not dispute that he had beaten up the victim and had said that he was guilty . The court held that the applicant ’s guilt had been established beyond doubt on the basis of the statements of the witnesses , the admissions of the applicant and the findings made during the victim ’s autopsy .

The applicant appealed on points of law to ORG . The counsel representing him argued , inter alia , that he had been convicted on the basis of the statements of persons whom the court had not heard personally and whom the applicant had not been able to crossexamine . The courts below had not made any effective efforts to locate Mr GPE and Mr GPE and there was no indication that Mr GPE had indeed deceased . He relied on LAW ( d ) of the LAW .

ORG held a hearing on DATE .

In a final judgment of CARDINAL DATE ORG upheld the lower court ’s judgment , fully confirming its findings of fact . It held that the applicant ’s complaint that Mr GPE had not been called by the lower courts was unfounded , because the applicant had not requested that . In any event , it had been established that Mr GPE had died before the trial . As regards the reading of the statements of Mr GPE and Mr GPE , the court found they could not have been called at the trial because they did not have permanent places of abode and were vagrants . The subpoenas sent to the address indicated by them during the preliminary investigation had been returned with the notes that CARDINAL of them was unknown at that address and the other had left that address and his current address was likewise unknown . In these circumstances , their statements had been properly read out , to which the applicant had agreed . The court further noted that the lower ORG findings of fact rested also on the applicant ’s statements made during the preliminary investigation and at the trial .

At his trial the applicant stood accused of an offence under Article CARDINAL § § CARDINAL and CARDINAL of that Code , which , as in force at the relevant time , provided that whoever negligently caused the death of another by intentionally inflicting him bodily injury while being a dangerous repeat offender was punishable by a term of imprisonment ranging from DATE in the case of serious bodily injury , from DATE in the case of intermediate bodily injury , and DATE in the case of light bodily injury .

Article CARDINAL § CARDINAL ( CARDINAL ) of that Code , as in force at the relevant time , provided that the statement of a witness given at the preliminary investigation could be read out at the trial if the witness could not be found in order to be called or had died . ORG has said that statements made by a witness during the preliminary investigation may be read out at the trial and admitted in evidence only if the court expressly finds that , after a thorough effort to locate the witness , it is impossible to find him or her ( реш. № CARDINAL от DATE г. по ORG № CARDINAL г. , ORG , II н.о. ; MONEY CARDINAL от CARDINAL януари DATE г. по н.д. CARDINAL/CARDINAL г. , ORG , ORG ) .

By LAW ( CARDINAL ) of the LAW , as in force at the material time , a ORG statement made during the preliminary investigation could also be read out at the trial if the witness , despite being duly subpoenaed , did not appear and the parties agreed to this . The same provision , amended effective DATE ( after the proceedings in issue ) , added the requirement that the court had to explain to an accused acting pro se that the statements thus read out will be used in reaching the verdict .

Article CARDINAL § CARDINAL of the Code provided that a recalcitrant witness could be fined and brought for questioning by force . By LAW , a witness could be brought by force even without being previously subpoenaed if he or she did not have a permanent place of abode . The authority responsible for bringing a witness by force was ORG ( LAW ) .

Article CARDINAL § CARDINAL of the Code provided that the conviction could not rest solely on the admission of the accused .