The applicants are NORP nationals , born in DATE and DATE respectively and living in GPE .

s , may be summarised as follows .

The applicants married in DATE and lived in the municipality of I. until DATE . Their son PERSON was born in DATE . The second applicant has another son ( S. ) from another relationship who lives with her and the first applicant . It appears that the first applicant has CARDINAL further sons from a previous relationship .

In DATE the local ORG ( sosiaalilautakunta , socialnämnden ) placed J. in another family as a support measure necessitated , in particular , by the second applicant ’s hospitalisation due to her illness diagnosed as schizophrenia typus schizo - affectiva . She was hospitalised DATE and had also required such care earlier .

J. ’s placement in a substitute family was later extended until DATE . On DATE ORG placed him in public care in pursuance of LAW of LAW ( lastensuojelulaki , barnskyddslag CARDINAL/CARDINAL as amended by LAW ) . The applicants had consented to the measure and PERSON was now placed in another substitute family in a municipality not far from ORG noted that the mother remained in hospital . The father , who was studying elsewhere , had considered himself unable to assume ORG care . J. had already been placed with another family for DATE . As none of the parents were able to care for and raise J. , his placement in public care served his best interest . ORG had regard to an opinion of PERSON , specialised in psychiatry , and PERSON

ORG imposed no restriction on meetings or other forms of contact between J. and the parents . The placement with the substitute parents was to be in force until further notice . Once the GPE conditions had changed the need for public care would be reconsidered .

In DATE the applicants requested ORG to terminate PERSON ’s public care and placement in a substitute home . Prior to the ORG ’s decision the substitute parents , PERSON himself , the maternal grandparents , and a former social welfare official who had been in charge of preparing and monitoring ORG ’s public care were heard by social welfare officials . ORG also obtained opinions from the local ORG ( of DATE ) and a ORG . The medical opinion was issued by a specialist in psychiatry who had been monitoring the second applicant in DATE and as from DATE . In addition , she had at her disposal the second applicant ’s medical file going back to DATE .

According to the substitute parents , who were heard in DATE , PERSON and the applicants had met only once every CARDINAL - CARDINAL weeks for TIME during ORG DATE long placement with the substitute parents . The second applicant had also been maintaining a certain contact by telephone calls . Not until DATE had the first applicant made any contact with J. during meetings . According to the former social welfare official , who was supervising the meetings until DATE , the first applicant had often not been at home during the meetings in the applicants’ home . If at home , he had not spoken to J. or otherwise participated in the meetings .

The applicants were heard by social welfare officials on CARDINAL occasions DATE . The first applicant stated that during meetings with J. he had deliberately remained in the background so as not to confuse him by the presence of CARDINAL mothers and CARDINAL fathers . The applicants having been afforded the opportunity to propose that other persons or institutions be heard prior to the decision , the second applicant proposed that her own parents be heard .

On DATE ORG refused the ORG request for termination of the public care . It recalled , inter alia , that the mother had been hospitalised while she was expecting PERSON and the parents were experiencing a crisis in the marriage . The mother had tried to care for PERSON with the help of her parents and a municipal carer but had again been hospitalised DATE after having given birth to J. The father , who was studying far away , had then stated that he was not available to assume ORG care . The applicants were now enrolled as students in GPE but continued to live in NORP The mother was receiving early retirement pension . After lengthy reflection the applicants were now ready to assume ORG care and recognised that his transfer into their family would have to be implemented gradually . According to the medical opinion the mother was suffering from a serious mental disturbance . Although her condition had been stable over DATE the illness could re - occur despite regular medication . The mother ’s thoughts were influenced by unrealistic optimism and denial of difficulties . Although she could be expected to manage the care of S. , J. ’s transfer into that family was not the optimal alternative for his development . ORG had been informed by the then expert at ORG that there was no such fresh information which would warrant a revised opinion on the mother ’s state of health . The discussions with the applicants and the others heard had all led to the impression that in the applicants’ family the responsibility for J. would always and principally fall on the mother . The father had stated that should the mother not be able to assume that responsibility , he would only then assume it . ORG had therefore not become convinced that the responsibility for PERSON ’s everyday care and upbringing would be shared between the parents , which ORG entry into the family would definitely require . J. had lived with his substitute parents all his life and he was perceiving them as his parents both in practical and psychological terms . As the conditions in J. ’s biological family had not changed decisively , the best solution from ORG point of view was to maintain status quo as regards his care . As it was also in his interest to get to know his biological parents the contact to that end would be continued and , if possible , extended , regard being had to ORG development and age .

The applicant ’s requested ORG to reconsider its decision . They submitted , inter alia , that the ORG ’s opinion of the first applicant as father was incorrect . He had a good and stable relationship with all of his CARDINAL sons .

On DATE ORG maintained its decision . The applicants appealed further to the competent ORG ( lääninoikeus , länsrätten ) , maintaining that since the care order had been issued their conditions had changed so as to enable them to assume ORG care . Their opinion had not been properly recorded or had been ignored by ORG .

On DATE ORG rejected the appeal after having obtained ORG written opinion and the ORG rejoinder . The court reasoned , in extenso , as follows :

( translation from NORP )

“ According to the medical opinion in the file , [ the second applicant ] is suffering from a serious mental disturbance which may re - occur despite regular medication . Due to her limited mental strength she would need particularly significant support in raising CARDINAL children on an everyday basis . According to the documentation , the responsibility for the care and upbringing of the children would , in the PERSON family , fall principally on [ the second applicant ] . For these reasons and considering the other elements transpiring from the documents , ORG finds that the need for [ J. ’s ] public care and placement with substitute parents within the meaning of LAW of LAW continues to exist and that a termination of the public care would be manifestly contrary to the child ’s best interest . ORG has therefore been under an obligation to maintain the public care . ”

The applicants appealed further , emphasising that the second applicant had not needed

hospital care for CARDINAL years , which fact had been ignored by ORG . The applicants submitted an opinion of DATE issued by the doctor at ORG who had been monitoring the second applicant ’s medical state since DATE and had acquainted himself with her medical file . Since the previous medical opinion had been issued in DATE the second applicant had been seeing staff at ORG once DATE or once in DATE . Although her mental state had remained stable , it could still not be excluded that her illness might deteriorate . The opinion concluded that the termination of J. ’s public care would not be the best solution , considering the need to ensure his healthy development .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) rejected the ORG appeal after hearing ORG in writing and obtaining the ORG rejoinder . ORG reasoned , in extenso , as follows :

( translation from NORP )

“ Having regard to the requests in this matter , the material received , the reasons stated in ORG decision and the legal provisions applied , there is no reason to amend [ that ] decision . ”

In DATE the applicants informed the ORG that they and J. were corresponding once DATE . J. had spent DATE with them in GPE in DATE . He was experiencing certain problems in the substitute home . S. was living with a grandparent in the municipality of I. but the applicants intended to have him start school in GPE in DATE . The applicants were continuing their studies .


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

The applicant was born in DATE and lives in GPE .

On DATE the local office of ORG ( kansaneläkelaitos , folkpensionsanstalten ) granted the applicant a DATE sickness allowance on account of his incapacity for work from DATE . On DATE his allowance was extended until DATE .

On DATE Dr MONEY , a psychiatrist treating the applicant , considered him incapacitated for work from DATE until DATE on account of his depression and anxiety . On the strength of that opinion the applicant requested that he be granted a DATE sickness allowance for the period DATE .

NORP The medical expert consulted by the local office of ORG , PERSON , found in his opinion of DATE that the applicant ’s alleged incapacity for work was principally of a subjective nature , although the criteria for serious mental distress were not met . While not considering the applicant incapable for work , PERSON recommended that an opinion be obtained from an expert in psychiatry before a new decision was reached on the applicant ’s request .

In his opinion of CARDINAL DATE PERSON , a psychiatrist , found on the basis of the information available that the applicant had been capable of working as of DATE .

Neither Dr PERSON nor PERSON examined the applicant in person . Their identities and opinions were not known to the applicant until they were indicated by the Government in the course of the Convention proceedings .

On DATE ORG ( sosiaali - vakuutustoimikunta , socialförsäkringskommissionen ) of GPE refused the applicant ’s request to have his allowance extended until DATE . ORG , relying on section CARDINAL of LAW ( sairasvakuutuslaki , sjukförsäkringslag CARDINAL ) , reasoned as follows :

“ A person who is incapacitated for work shall be entitled to a DATE allowance . Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary , or closely comparable , work . Your function as a tourist secretary has been regarded as your ordinary work .

On the basis of the material adduced you can not be considered unable to perform this work or a closely comparable one .

For this reason , you are not entitled to a DATE allowance . ”

The applicant appealed to ORG ( sosiaalivakuutuslautakunta , socialförsäkringsnämnden ) for ORG , adducing a report of CARDINAL DATE in which his treating physician , PERSON , agreed with PERSON that the applicant was incapacitated for work during the period in question , on account of his depression , panic feelings and neurosis . In its opinion to the ORG dated DATE , but not forwarded to the applicant for his possible comments , ORG explained the challenged decision as follows :

“ On the basis of medical certificates of the A category , [ the applicant ] was granted a DATE allowance until DATE on the basis of his incapacity for work which had commenced on DATE . Subsequently he adduced a certificate of the B category in which a psychiatrist considered him incapacitated for work until DATE on account of his depression and undefined anxiety . In the opinion of the medical expert , a psychiatrist , the insured had to be considered fit for work . A further certificate of the B category , issued by a different doctor , has been appended to the appeal . The medical expert is of the opinion that there is no reason to amend the previous decision .

Since the appellant has not adduced any new information which was not known to the [ ORG at the time of its decision , it is proposed that the appeal be rejected . ”

On DATE Dr M.M. considered that the applicant remained incapacitated for work until DATE on account of his depression . Relying on this opinion , the applicant sought a DATE allowance for the period DATE .

On DATE ORG refused the request for exactly the same reasons as in its decision of CARDINAL DATE and again relying on LAW CARDINAL of LAW .

The applicant appealed . In its opinion to ORG dated DATE , and again not forwarded to the applicant for possible comments , ORG stated as follows :

“ [ The applicant ’s ] earlier request for a DATE allowance for the period DATE was refused and that decision has been appealed against as well . The insured sought to have his DATE allowance granted for a further period , relying on a certificate of the B category issued by a psychiatrist . According to the opinion of the medical expert , the insured has to be considered fit to work .

Since nothing new has been adduced in the [ applicant ’s current ] appeal , it is proposed that it be rejected . ”

In a further opinion of CARDINAL DATE Dr M.M. , without taking a position in regard to the applicant ’s incapacity for work , maintained his diagnosis that the applicant was suffering from undefined anxiety . Relying on this opinion and on all previous evidence , the applicant sought a DATE allowance from DATE onwards .

On DATE ORG rejected the applicant ’s appeals against ORG decisions of CARDINAL DATE and DATE , relying on the reasons and the legal provision invoked in those decisions . According to the ORG ’s decision , it had taken note of ORG opinions to the effect that no new material had been adduced which would have justified a change in the challenged decisions . The ORG ’s decision did not mention the existence of any opinions issued by the consulting medical experts . The applicant appealed to ORG ( tarkastuslautakunta , prövningsnämnden ) .

On DATE ORG refused the applicant a DATE allowance from DATE onwards , with the following reasoning :

On DATE ORG rejected the applicant ’s appeal against the aforementioned decision , to which he had appended PERSON opinion of DATE . ORG took note of ORG opinion to the effect that no new material had been adduced which would justify a change in the challenged decision . ORG then relied on the reasons and the legal provision invoked by ORG . The ORG ’s decision did not mention the existence of any opinion issued by the consulting medical experts .

NORP The applicant again appealed to ORG , inter alia adducing a fresh medical opinion of DATE in which PERSON , maintaining his previous diagnosis , had considered that the applicant remained incapacitated for work until DATE .

On DATE ORG rejected the applicant ’s appeals against ORG decisions of DATE and DATE by relying on the reasons given by ORG in its decisions of CARDINAL DATE and DATE . ORG decisions were dispatched to the applicant on DATE . No further appeal lay open .

On DATE ORG refused the applicant ’s request to undergo an examination of his capacity for work by a specialist of ORG own choosing . It recalled that the applicant ’s capacity for work had been assessed on the basis of written documentation on CARDINAL separate occasions and each time by different persons . The decisions refusing him an extended DATE sickness allowance had been upheld by all appellate instances and concerned the DATE . The applicant ’s capacity for work at that point in time could no longer be assessed by a doctor who had not been treating him at the time . The applicant ’s capacity for work at that time had already been assessed by doctors who knew him then , and his requests for a further allowance had been decided on the basis of their opinions .

According to LAW , a DATE allowance shall be payable to anyone suffering a loss of income due to his or her incapacity for work . LAW defines such incapacity as a condition caused by an illness and during which the person is unable to perform his or her ordinary , or closely comparable , work .

NORP Under DATE , subsection CARDINAL ( CARDINAL ) , of the said LAW , ORG has a possibility to order the insured person to undergo further medical examinations and thereby request medical statements from physicians specialised in the area of medicine in question .

NORP The members of ORG are appointed by ORG ( valtioneuvosto , statsrådet ) for a maximum of DATE but with a possibility of being re - appointed ( section CARDINAL , subsections CARDINAL and CARDINAL of LAW ) .

According to the DATE Decree on ORG ( asetus tarkastuslautakunnasta , förordning om prövningsnämnden CARDINAL ) , that ORG shall consist of a Chairman , CARDINAL Vice - Chairmen and the requisite number of further members who shall either be lawyers or medical doctors , or be experienced in the conditions of insured persons . The Chairman and the Vice - Chairmen must have a law degree and possess experience as judges ( section CARDINAL , as amended by Decree no . CARDINAL ) . ORG may sit in chambers consisting of a Chairman , CARDINAL lawyer and CARDINAL doctor and CARDINAL members experienced in the conditions of the insured ( section CARDINAL , as amended by Decree no . CARDINAL ) . The casting vote both in plenary and chamber sessions rests with the Chairman ( section DATE ) . ORG may , when necessary , appoint a Chairman ad interim or appoint a member to replace a member of ORG temporarily ( section CARDINAL , as amended by Decree no . CARDINAL/CARDINAL ) . According to section DATE , subsection CARDINAL , of LAW ( as amended by Act no . CARDINAL as from DATE ) , the right of a member of ORG to remain in office shall be governed by the provisions concerning professional judges .

The rules concerning the possible bias of a member of ORG are to be found in LAW ( PERSON , PERSON Balk ) , as read in conjunction with section DATE of LAW ( hallintolainkäyttölaki , förvaltningsprocesslag ORG ) . All members of ORG must have sworn or must swear a judicial oath before taking up office ( section CARDINAL of the DATE Decree ) .

At the relevant time the procedural rules applicable to regular courts in principle also applied to ORG , its procedure being merely written ( section CARDINAL ; repealed by Decree no . PERSON adopted in connection with the amendment to LAW which , in the ORG ’s opinion , rendered it possible to hold oral hearings before the appellate bodies in the field of social insurance ) .

According to the applicant , NORP law never prevented social insurance bodies from holding oral hearings . Moreover , even after the DATE amendment the law has been interpreted very narrowly as regards the need for oral hearings . The applicant refers to ORG precedent no . CARDINAL by which a case was remitted to ORG with a view to an oral hearing being held for the purpose of taking testimony from a doctor who had provided a written summary of medical reports concerning the appellant . ORG had refused his request for an oral hearing , considering it manifestly unnecessary .


The applicant is a private company located in the town of PERSON , GPE .

On DATE the Housing Secretary of GPE issued a requisition order in respect of a tenement in PERSON . The applicant company occupied the tenement in question . The requisition order had the effect of protecting its occupation .

On DATE the owners of the tenement , the PERSON brothers , instituted civil proceedings before ORG against the ORG Secretary and the applicant company . They requested that the requisition order of DATE be declared null and void as being contrary to section CARDINAL of the DATE LAW , and sought to regain possession of the tenement . They also requested compensation for the damage allegedly sustained .

In a judgment of CARDINAL DATE , ORG rejected the ORG claim .

The PERSON brothers appealed against that decision .

NORP In a judgment of DATE , ORG declared that the requisition order was null and void and ordered that the appellants be given possession of the LOC within DATE . It sent the case back to ORG regarding compensation for the damage allegedly sustained by the appellants .

On DATE the applicant company lodged an application with ORG for a new trial . It alleged that the judgment of DATE had been based on a wrong application of the law , as the requisition order had been issued in the public interest and the powers of the ORG Secretary in this field could not be reviewed by ORG .

The PERSON brothers intervened in the proceedings , requesting that the application be rejected . They argued that the law had in fact been duly applied and interpreted and that the applicant company was trying to lodge another appeal , inadmissible under NORP law , against the judgment of CARDINAL DATE .

On DATE ORG invited the parties to file written submissions and adjourned the case to DATE .

The applicant company filed a note of submissions in which it requested , inter alia , that the judges of ORG examining the request for a retrial withdraw from the case , as they were the same judges who had sat on the bench when the impugned judgment of DATE had been delivered .

On DATE ORG rejected the applicant company ’s plea challenging the judges . It also observed that , under Article CARDINAL of LAW – “ the COCP ” ) , where the ground for a judicial request was the wrong application of the law , the relevant party should make reference to the law which should have been applied . As the applicant company had failed to do so , its submissions were manifestly defective .

In a judgment of CARDINAL DATE , ORG rejected the applicant company ’s request for a new trial .

In the meantime , on DATE , the applicant company had initiated proceedings in FAC sitting in its constitutional capacity . It alleged that the decision taken by the CARDINAL judges composing ORG rejecting the plea for their withdrawal had violated LAW , as the court in question could not be considered an “ impartial tribunal ” within the meaning of that provision .

In a judgment of DATE , ORG found for the applicant company and declared that the failure to withdraw by the judges composing ORG had violated LAW . It observed that the same judges had been called upon to rule twice on a case concerning the same facts and the same parties . Moreover , in a judgment given on DATE in PERSON v. the Honourable Prime Minister , ORG had held that LAW in accordance with which the same judges may sit when the request for a new trial is based on an alleged wrong application of the law ) was contrary to LAW .

The PERSON brothers appealed to ORG . They alleged , in particular , that the question dealt with by ORG when examining the request for a retrial , namely whether there had been a wrong application of the law , was not in any way connected with the merits previously dealt with by the same court .

In a judgment of DATE , ORG allowed the appeal , set aside the judgment of DATE and rejected all the pleas raised by the applicant company .

The Constitutional Court observed that the possibility of a new trial provided the remedy of revision of a final judgment in order to rectify evident and gross errors leading to a miscarriage of justice . However , NORP law restricted the application of this remedy to specific situations . As a retrial was an extraordinary remedy which entailed a derogation from the principle that res judicata decisions were legally binding between the parties , the relevant legal provisions had always been interpreted restrictively .

NORP Under NORP law , a new trial could be conducted by the same court that had pronounced the judgment complained of , and the same judges could sit . This meant that the judges were given the option of deciding whether to hear the case or not . In ORG view , this rule was consistent with the Convention and justified by the fact that a retrial was not a third - instance procedure and that the court that had pronounced the judgment was in the best position to identify any mistake and to grant expeditiously an appropriate and fast remedy .

ORG noted that , when a request for a new trial appeared unfounded and was accompanied by a dubious demand that the judges withdraw , it was likely that an abuse of the judicial system might occur . This would be prejudicial to the other party , who had the right to have his or her case heard within a reasonable time . After the delivery of its judgment in PERSON ( cited above ) , ORG had observed a systematic abuse of the remedy of retrial . In particular , some parties had been attempting to obtain a third - instance appeal in cases in which a final decision had already been made .

NORP In order to avoid such abuses , the NORP courts had interpreted the judgment in PERSON to mean that the judges who had previously adjudicated the case should examine the admissibility of the request for a retrial in order to determine whether it met the requirements laid down in domestic law . If it did , they should withdraw ; if it did not , they should simply reject the request . ORG considered that these principles were correct and in conformity with LAW .

CARDINALbefore it , ORG found that there were reasons to believe that the applicant company was trying to prolong the proceedings in order to delay vacating the LOC for as long as possible and that its request for a retrial was procedurally inadmissible . In particular , the request did not correctly quote the section of law which , according to the applicant company , had been wrongly applied , it did not indicate which provision ought to have been applied , and it was essentially based on the assumption that ORG had given a wrong interpretation of the notion of “ public interest ” . The admissibility examination by the CARDINAL judges of ORG had dealt merely with points of fact and had therefore been different in nature from the examination by the same judges previously .

Finally , there were no grounds to believe that the judges in question had some personal or real interest in the outcome of the case other than that of ensuring that justice was done .

CARDINAL levels of jurisdiction are provided for in the NORP legal system : first instance and appeal . There is no third level of jurisdiction such as a court of cassation . However , the Code of Organisation and Civil Procedure ( “ the COCP ” ) afforded the possibility of a retrial .

The grounds for a new trial are set out in an exhaustive list which appears in LAW . The relevant part of this provision reads as follows :

“ A new trial of a cause decided by a judgment given in second instance may be demanded by any of the parties concerned , such judgment being first set aside , in any of the following cases :

( a ) where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party ;

( b ) where the writ of summons was not served on the party cast , provided that , notwithstanding such omission , such party shall not have entered an appearance at the trial ;

( c ) where any of the parties to the suit was under legal disability to sue or be sued , provided no plea thereanent had been raised and determined ;

( d ) where the judgment was delivered by a court having no jurisdiction in terms of LAW ( a ) , provided no plea thereanent had been raised and determined ;

( e ) where the judgment contains a wrong application of the law ;

For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision , assuming the fact to be as established in the judgment which it is sought to set aside , is not in accordance with the law , provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment ;

( f ) where judgment was given on any matter not included in the demand ;

( g ) where judgment was given in excess of the demand ;

( h ) where the judgment is conflicting with a previous judgment given in a suit on the same subject matter and between the same parties , and constituting a res judicata , provided no plea of res judicata had been raised and determined ;

( i ) where the judgment contains contradictory dispositions ;

( j ) where the judgment was based on evidence which , in a subsequent judgment , was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact ;

( k ) where , after the judgment , some conclusive document was obtained , of which the party producing it had no knowledge , or which , with the means provided by law , he could not have produced , before the judgment ;

( l ) where the judgment was the effect of an error resulting from the proceedings or documents of the cause .

For the purposes of this paragraph there shall be deemed to be such error only where the decision is based on the supposition of some fact the truth whereof is incontestably excluded , or on the supposition of the non - existence of some fact the truth whereof is positively established , provided that , in either case , the fact was not a disputed issue determined by the judgment . ”

Under LAW COCP , a request for a new trial must be made to the court by which the judgment complained of was given , and the same judges “ may ” sit . Article CARDINAL of the ORG sets out the contents of an application for a retrial . The plaintiff must , in particular , state the provisions of the judgment complained of , the grounds for a new trial and the facts giving rise to each ground . Where the ground is the wrong application of the law , as provided for in LAW , he or she must refer to the law that should have been applied .

Under LAW COCP ,

“ ( CARDINAL ) The time for demanding a new trial is DATE , which shall commence to run –

( a ) in regard to the cases referred to in LAW ( a ) and ( k ) , from DATE on which the fraud was discovered , or the document obtained ;

( b ) in regard to the case referred to in paragraph ( b ) , from DATE on which the plaintiff became aware of the judgment ;

( c ) in regard to the cases referred to in paragraph ( j ) , if the falsity was , at the suit or complaint of the plaintiff himself , declared subsequently to the judgment complained of , from DATE of such declaration , and if it was declared subsequently to such judgment , but at the suit or complaint of other parties , or if it was declared previously , from DATE on which the plaintiff became aware of such declaration ;

( d ) in regard to all other cases , from the date of the judgment complained of .

( CARDINAL ) A new trial may in no case be demanded after the lapse of DATE from which the first judgment was given . ”

In a decision given on DATE in A v. B , ORG held that the possibility of a retrial was an extraordinary remedy for the exceptional cases stated in the law . It also emphasised that the relevant legal provisions were to be strictly interpreted .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1+6-3-d;No violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings

Mr PERSON is an NORP wine merchant residing at GPE ( ORG ) .

On DATE a ORG ) visited the applicant ’s undertaking to carry out an inspection under section CARDINAL of the DATE LAW , as amended ( Weingesetz no . CARDINAL , " LAW " ) . He took CARDINAL types of samples from CARDINAL tanks of DATE white wine . The tanks were sealed and officially seized ( section CARDINAL , see paragraph CARDINAL below ) .

After having left the CARDINAL counter - samples ( Gegenproben ) with the applicant , he sent the CARDINAL official samples ( PERSON ) to ORG ( Landwirtschaftlich - chemische PERSON , " ORG " ) to be examined ( section CARDINAL of LAW ) . Each sample consisted of CARDINAL bottles . In addition , he drew from each of the tanks a reserve sample ( PERSON ) , for use should a further analysis prove necessary .

On DATE ORG drew up a report containing the results of a chemical analysis of the samples , which revealed an abnormally low level of natural extracts and mineral substances . It also set out the conclusions reached by an official wine quality control panel ( amtliche PERSON , see paragraph CARDINAL below ) . This panel had found on CARDINAL DATE that the wine in the samples had been diluted with water .

As the levels were below those required by LAW ( Weinverordnung ) , ORG suspected Mr Brandstetter of contravening section CARDINAL(CARDINAL ) ( a ) and ( b ) of LAW in conjunction with section CARDINAL(CARDINAL ) ( f ) and section CARDINAL(CARDINAL ) ( relating , inter alia , to the offering for sale to the public of " imitation wine " and adulterated wine ) .

On DATE ORG had informed ORG ( Bezirksgericht ) of its suspicions in accordance with section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , whereupon ORG ( GPE ) instituted proceedings against Mr Brandstetter under LAW of LAW .

In order to prepare his defence , the applicant had the counter - samples analysed in GPE by Mr PERSON of ORG ( Bundesanstalt für PERSON , " ORG " ) . On DATE Mr Niessner reported that the level of natural extracts and mineral substances was not below the required minimum . However , the tasting of the samples by a quality control panel on DATE had confirmed that water had been added to CARDINAL of them ( by CARDINAL votes out of CARDINAL ) , but had been unable to establish with certainty whether this was so for the other ( CARDINAL votes out of CARDINAL ) .

At a first hearing on DATE Mr Brandstetter pleaded not guilty and requested ORG to take expert evidence with a view to establishing that his wine was not " imitation wine " and had not been adulterated .

Accordingly , ORG instructed PERSON of ORG to carry out an expert examination . PERSON had not been involved in the first analysis of the official samples by ORG , or in the drawing up of its report .

On DATE , at the second hearing , the court took evidence from PERSON . According to him , the difference between the results of that examination and the results obtained by PERSON showed that in CARDINAL of the analyses a grave error had been committed ; he recommended that the reserve samples should be analysed in order to clarify the position . The court directed him to draw up a report on this matter .

Mr Brandstetter maintained that the difference in the findings could also be explained by a circumstance to which he had already drawn the attention of the police on DATE . This was that ORG had used a dirty bucket to draw the samples and had poured them into bottles in which there had been a residue of water . The Inspector had emptied the remaining bottles only after the applicant had protested . The applicant ’s wife and CARDINAL sons , who were called as witnesses , confirmed his statements .

The ORG and his assistant , who were also heard as witnesses , claimed on the other hand that the bucket had been clean and that the liquid which remained in the bottles had been wine used to rinse them . The ORG had explained this to Mr Brandstetter when the latter had complained and , moreover , he had subsequently emptied the bottles in question .

The analysis of the reserve samples was carried out at ORG on DATE under the supervision of PERSON . It resulted in similar conclusions to those concerning the first samples , but there was no tasting by a quality control panel .

In his report of CARDINAL DATE PERSON stated that the new analysis had corroborated the first examination carried out by ORG and therefore raised serious doubts with regard to the examination effected by PERSON , of ORG . The scientific findings corresponded to the conclusions of the quality control panels which had identified the addition of water in all the samples except CARDINAL . As with the results of the tasting , they revealed the prohibited addition of water and sugar , and a level of natural extracts and substances below that required by LAW . The applicant ’s products could not , however , be classified as " imitation wine " . Various statements by PERSON and members of his family during the hearing ( see paragraph CARDINAL above ) must have been wrong in view of the results of the chemical analysis , in particular statements concerning the use of a dirty bucket by ORG . Furthermore it was impossible to determine from the outside whether the liquid residue in the green bottles was wine or water .

A new hearing was held on DATE . The applicant ’s lawyer criticised PERSON opinion because the latter ’s close links with ORG deprived him of the necessary objectivity in relation to the first analysis and could have led him to defend the results of that examination against those reported by PERSON . In addition , the expert had exceeded his duties by expressing a view on questions of fact and of law instead of merely carrying out a chemical analysis . Consequently , the defence requested further investigative measures , namely the drawing of new samples from the CARDINAL tanks which had been seized , the taking of evidence from several other experts , including Mr Niessner , and the consultation of the minutes of the quality control panel . The defence also alleged that the rules laid down for a tasting had not been complied with . Again , the court - appointed expert had not explained the differences between the conclusions of the CARDINAL institutes . He had merely expressed his view that those of ORG were erroneous and that those of his own ORG were correct .

On DATE ORG convicted PERSON of adulterating wine ( section GPE ) ( a ) of LAW ) and fined him QUANTITY . It also ordered the forfeiture of the wine contained in the CARDINAL tanks seized - a total of QUANTITY - ( section CARDINAL(CARDINAL ) ) and the publication of the judgment ( section CARDINAL(CARDINAL ) ) .

Its judgment was based for the main part on PERSON opinion . It cited long passages from that opinion which were in its view conclusive because they revealed a convincing , detailed , precise and exhaustive examination of the differences in analysis of the CARDINAL institutes . However , the court refused to take into account certain of the expert ’s statements which improperly dealt with questions of law and the assessment of evidence .

In determining sentence , the court regarded the fact that Mr Brandstetter had made false allegations as to the manner in which the ORG had carried out his duties as an aggravating circumstance .

In addition , ORG rejected the application for further investigative measures . The court did not consider it to be relevant in so far as it concerned the tasting procedure , because the results of this procedure did not constitute conclusive evidence . The drawing of new samples would in its view be superfluous , in particular as it could not be ruled out that the wine , which in the meantime had remained in the sealed tanks , had undergone an alteration with regard to its composition . The same was true of the request to hear new experts , because no doubts existed as to the reliability of ORG conclusions , which had in part been confirmed by those of ORG , or as to PERSON objectivity .

Mr Brandstetter appealed . He repeated his request for further investigative measures and argued that by dismissing it ORG had disregarded the rights of the defence .

On DATE ORG ( GPE ) upheld the contested decision .

It noted that the applicant had not raised objections to the expert when he had first been appointed , but only on seeing his report . PERSON objectivity was not in doubt . He was especially experienced and conscientious and had in no way been involved in the analysis of the first samples , had criticised the conclusions not only of ORG but also , in certain respects , those of his own ORG , and had explained in detail the differences between the CARDINAL reports . The citation of extracts from the expert ’s opinion in the judgment could not be criticised . As it was a conclusive opinion , it was not necessary to seek new evidence ( see paragraphs CARDINAL above ) . Nor was it necessary to inspect the minutes of the quality control panel ’s meeting since ORG report contained a summary of the tasting procedure , which moreover could provide only indicative evidence of a subsidiary nature in relation to the evidence resulting from the chemical analysis .

On his conviction becoming final , Mr Brandstetter had intended to bring an action for damages against GPE alleging its liability for the unacceptable procedural errors ( PERSON ) which had been made by the courts in the proceedings concerning the quality of the wine .

In order to ensure that the evidence was preserved ( Beweissicherungsantrag , LAW ) , he requested that additional samples be taken from the sealed tanks . His request was dismissed by ORG on DATE , but on his appeal ORG reversed this decision on DATE .

ORG appointed as expert PERSON , who was a member of the staff of ORG branch in ORG and who had not been involved in the proceedings concerning the quality of the wine . It instructed him to supervise , on DATE , the drawing of new samples from the tanks , and then to analyse them .

In his report of DATE , Mr Flack found differences between the results of his analysis of these new samples and the results of the analyses by ORG of the official samples and the reserve samples obtained on DATE ( see paragraph CARDINAL above ) . These differences could , in his opinion , not be explained by alterations in the composition of the wine with the passing of time , or by the effects of measures to preserve the wine authorised by the court . They were in his view due to the addition of substances capable of increasing the natural extract content ( alcohol , glycerine , minerals ) .

On DATE , DATE before officially submitting his report , Mr Flack had informed ORG of his conclusions . The court , of its own motion , instituted criminal proceedings against Mr Brandstetter on a charge of tampering with evidence ( Article CARDINAL of LAW ) .

Mr Flack was appointed as expert by the court and submitted his report on DATE . He confirmed the earlier findings and noted that the composition of the new samples was similar to that of the counter - samples drawn on CARDINAL DATE and analysed by ORG ( see paragraph CARDINAL above ) .

On the basis of this expert opinion , the public prosecutor ’s office sought Mr Brandstetter ’s conviction for tampering with evidence under LAW .

Hearings were held before ORG on DATE and CARDINAL DATE .

The accused contended that it had been physically impossible for him to interfere with the counter - samples taken on CARDINAL DATE , because he had been absent from his business LOC before they had been sent to ORG . He stated that all the measures taken to preserve the wine in question had been carried out in the presence of and had been monitored by ORG who had drawn the first samples .

Mr Brandstetter affirmed that some of the bottles containing the counter - samples , which he had sent to ORG ( Landwirtschaftlich - chemische ORG ) at GPE , had been broken during transport , but the bottleneck , which had remained intact , of CARDINAL of them showed clearly that the seals had not been disturbed .

He maintained that PERSON , the expert who had analysed the counter - samples ( see paragraph CARDINAL above ) , could attest to this . He asked that Mr Niessner be called as a witness in order to prove that the seals fixed by ORG on the counter - samples had been undisturbed when these samples had been given to ORG and that the wine examined by PERSON was identical to the wine examined by ORG . The latter ’s first findings were therefore not correct and the quality of the wine at the time when the first samples were drawn in DATE had been identical to that of the wine analysed by Mr Flack in the course of the proceedings for securing evidence . The defence further requested that Mr ORG be appointed as a second expert in order to report on the quality of the wine he had analysed .

The court granted the first request , but refused the second . Accordingly , at the second hearing , PERSON was called as a witness . He confirmed that the seals had been intact in so far as he had been able to judge at the time , but stated that the possibility of interference could not be completely ruled out because it was not the usual practice to carry out a detailed forensic examination . However , no question was put to the witness either by the prosecution or by the defence concerning the quality of the applicant ’s wine , or in respect of another possible explanation for the above - mentioned differences .

On DATE ORG found the applicant guilty and sentenced him to CARDINAL months’ imprisonment .

The court accepted Mr Flack ’s opinion that only the subsequent addition of substances could explain the significant differences in the analyses . It considered the latter ’s opinion to be logical and convincing , in particular because it was consistent with PERSON conclusions in the proceedings conducted under LAW ( see paragraphs CARDINAL above ) . As regards the physical impossibility alleged by the applicant , the court referred to " notorious methods " ( gerichtsbekannte GPE ) which consisted of replacing the contents of a sealed bottle by heating the container and carefully removing the seal and the cork or by injecting substances with a syringe through the cork . The fact that CARDINAL of the bottles had been broken might indeed have been due to the failure of such attempted interference .

The court ruled that there was no need to appoint PERSON as a second expert , because he had already submitted a report on the quality of the wine , which he had analysed as a private expert , and because the results of his analysis had already been thoroughly discussed in PERSON report .

On DATE ORG ( Oberlandesgericht ) dismissed PERSON appeal ( GPE ) against that judgment .

In its view , ORG had not disregarded the evidence submitted by the applicant , namely the broken bottle neck of CARDINAL of the counter - samples , whose seal was intact ; moreover the sample in question could not be used as evidence because it had not been analysed . The results of the examination of the counter - samples by ORG were contradicted by those of the analysis of the official samples by ORG and , according to the convincing opinion of Mr Flack , this discrepancy could be explained only by the fact that substances had been added to the counter - samples .

ORG had also taken into account the identical conclusions which PERSON had reached in the earlier proceedings , and the testimony of the witness Mr PERSON on the possibility of interfering with a sealed bottle . It had also described the notorious methods for carrying out such operations . It had therefore based its conclusion on sufficient reasons .

Consequently , ORG did not consider it necessary to consult a new expert as the accused had requested , since the conditions laid down in LAW were not satisfied ( see paragraph CARDINAL below ) .

Mr Brandstetter served DATE of his sentence . The remaining term was suspended following a pardon granted by the President of the Republic .

On DATE criminal proceedings had been instituted at the request of the public prosecutor against Mr Brandstetter for defamation . According to the public prosecutor ’s office he had wrongly accused ORG of irregularities in taking the first samples on DATE ( see paragraph CARDINAL above ) . In so doing he had exposed the latter to the risk of disciplinary sanctions .

On DATE ORG sentenced the applicant to a suspended term of DATE imprisonment for defamation on account of the following statement made by him to the police on DATE ( see paragraph CARDINAL above ) and taken down at his express request :

" [ ORG ] also used for this purpose [ for drawing the wine samples ] a bucket which was rather dirty . When the bottles were being filled up , I noticed that they contained water , which presumably had been left over after rinsing . However , he told me that this was of no importance . "

These assertions , which were false and which he knew to be false , could have led to the opening of disciplinary proceedings against the ORG , because they gave the impression that he had not emptied the bottles when the applicant had asked him to do so ; in fact the contrary had been established .

The court based its findings on the evidence adduced in the proceedings concerning the quality of the wine and in particular on the expert opinion and testimony of PERSON , the statements of the ORG and his assistant , the statements of the applicant and the members of his family and the judgment of DATE ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment in its entirety .

In so far as Mr Brandstetter had claimed that the impugned statement ( see paragraph CARDINAL above ) was justified in the exercise of the rights of the defence ( Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ) and could not therefore constitute criminal defamation , the court referred to well - established case - law and academic opinion , according to which such rights could not extend to conduct which did not merely serve an accused ’s defence , but also adversely affected the rights of another person through allegations of such a nature as to amount to a new criminal offence . As the applicant had consciously aroused false suspicions in respect of the Inspector , LAW was applicable .

The court also took the view that the public prosecutor ’s office had not tacitly waived its right to institute proceedings , even though it had not acted immediately . Finally , it found no procedural defect in the way in which ORG had assessed the evidence . The latter court had examined the findings of the proceedings in detail , in a logical and coherent manner in relation to the evidence , and had drawn plausible conclusions concerning the subjective element . The appeal court regarded it as decisive that the bottles , irrespective of whether they had been rinsed with water or wine , could not contain a significant quantity of liquid once they had been emptied in the way described in a credible and convincing manner by ORG .

On an application by Mr Brandstetter , the Attorney - General ( ORG ) lodged a plea for a declaration of nullity in the interests of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) directed against the composition of ORG . ORG ( Oberster Gerichtshof ) allowed the appeal on DATE and remitted the case to ORG .

At the hearing on DATE the defence alleged that CARDINAL of the judges present had already participated in the first appeal proceedings and should therefore withdraw . The court adjourned the hearing until DATE when it sat in a composition that was in conformity with the law ; it confirmed the judgment of DATE in its entirety ( see paragraph CARDINAL above ) .

The applicant subsequently asked the Attorney - General to lodge a further application for a declaration of nullity in the interests of the law , but unsuccessfully .

At this time he discovered that the judgments of DATE and DATE reproduced almost word for word the observations ( the " croquis " ) of ORG ( GPE ) filed with ORG on DATE , which had not been served on him and of which he himself had had no knowledge at the time .

According to LAW , a ORG may draw samples from wine tanks of the firm inspected and send them for analysis to ORG . A sealed counter - sample must be left with the firm in question . Furthermore , a reserve sample must be drawn , for use should a further analysis be necessary . The tanks may subsequently be sealed ( sections CARDINAL and CARDINAL ) .

ORG analyses the official samples and draws up a report setting out its findings , as well as the results of a tasting by the official wine quality control panel ( section CARDINAL(CARDINAL ) ) . The panel is composed of a Chairman ( the Director of ORG ) and CARDINAL expert tasters appointed by ORG . It decides , by a qualified majority ( CARDINAL out of CARDINAL or CARDINAL , CARDINAL out of CARDINAL , etc ) , whether the quality of the wine corresponds to its designation . The tasting , the conditions of which are laid down in internal rules , is not conducted in public . The identity of its members - who are under a duty of confidentiality - is not disclosed ( section CARDINAL(CARDINAL ) to ( CARDINAL) ) .

If the results of the analysis provide grounds for suspecting that a criminal offence has been committed , ORG must report this to the competent public prosecutor or court ( section CARDINAL(CARDINAL ) ) .

As regards expert evidence in court , section CARDINAL(CARDINAL ) stated at the time :

" If the court has doubts concerning the findings or the opinion of ORG , or if it considers that the findings or the opinion require elaboration , or if reasonable objections are raised against them , it must take expert evidence from an official of ORG who has been involved in the preparation of the analysis or the opinion in question so that he may explain or discuss in greater detail the conclusions or opinion of that ORG " .

In all other aspects the provisions of LAW are applicable . In particular if any doubts persist or if the findings of an expert " are unclear , vague , contradictory " , etc . ( Articles CARDINAL and CARDINAL of LAW ) , the court may call another expert .

Under the terms of LAW , only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts . Nevertheless , the court may authorise experts to examine witnesses and the accused . Witnesses , on the contrary , do not have this possibility .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

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

The applicant was placed in pre - trial detention in FAC ( GPE u GPE ) on DATE following the institution of criminal proceedings against him on charges of double murder .

The applicant alleged that , on DATE , he had been severely beaten in FAC by GPE , a prison guard .

The Government alleged that , on DATE , the applicant had first been taken to ORG ( GPE lišene slobode , hereinafter “ the ZPH ” ) where he had undergone a psychiatric examination . After he had been taken back to his cell , the applicant had called FAC and asked to be given a tranquilizer injection in the prison medical unit . ORG had taken the applicant to the medical unit where the applicant had started to shout and had ignored warnings to stop . Even after he had received the injection , the applicant had continued to shout and insult ORG and a member of the prison health care staff , GPE , who was present at the scene . He had then started walking towards the toilets and had smashed the glass in CARDINAL of the windows with his hand .

ORG had followed the applicant and caught him in the toilets , where a fight between them had broken out . The applicant had punched GPE and struck him whilst pinning him against a wall .

Meanwhile , ORG had called the prison officer on duty . CARDINAL officers , GPE and GPE , had arrived at the scene and found the toilet doors stuck . After ORG had forcefully opened the doors , he had seen the applicant striking PERSON whilst pinning him against a wall . The applicant had ignored warnings by the officers to stop and had continued to shout and push ORG , and then GPE , had used force in order to restrain the applicant . They had struck the applicant CARDINAL or CARDINAL times on the back and CARDINAL or CARDINAL times on the legs all with rubber truncheons . Because the incident had occurred in a small closed area , the applicant had also received some head wounds which had not been caused by rubber truncheon blows .

The applicant had then been examined by the prison doctor and taken to hospital .

The medical file showed that he had suffered bruising to his face , chest , shoulders , back , left upper leg and both knees . He was prescribed rest , pain killers and Heparin gel .

The applicant complained to the prison authorities , ORG and ORG ( Županijski sud u GPE ) .

On DATE GPE , GPE and GPE submitted their reports on the incident to the prison governor . Further to this , GPE and the prison doctor , PERSON , who had examined the applicant , gave their statements . A statement was also taken from the applicant .

On DATE the Head of ORG submitted his report on the incident to the prison governor who , in turn , submitted a report to ORG for ORG .

On DATE the prison governor told ORG about the incident , because the criminal proceedings against the applicant were still pending before that court .

Further statements were taken from the applicant , GPE , and GPE before an employee of ORG .

On DATE disciplinary proceedings were instituted against GPE , GPE and the Head of ORG . On DATE the proceedings were terminated on the grounds that they had been instituted on the basis of the statements given by the prison officers , which were considered to be unlawful evidence .

In the criminal proceedings against him , on CARDINAL DATE the applicant was found guilty of murder and causing grievous bodily harm . He was sentenced to DATE imprisonment . On DATE the applicant was transferred to ORG ( GPE u GPE , hereinafter “ the LSP ” ) .

The applicant 's medical record from the LSP shows that in DATE , during the Homeland War in GPE , he had suffered from a gunshot wound to his heart and lungs . Afterwards , on several occasions , he suffered from pericarditis ( inflammation of the pericardium , the membrane forming the outer covering of the heart ) , the last time he suffered from this was in DATE . Since DATE he has been receiving treatment for post - traumatic stress disorder ( “ PTSD ” ) .

Since his arrival at the LSP the applicant has regularly been examined by the ZPH doctor . Thus , he was examined by the doctor on CARDINAL occasions in DATE , on CARDINAL occasions in DATE , on CARDINAL occasions in DATE , on CARDINAL occasions in DATE , on CARDINAL occasions in DATE , on CARDINAL occasions in DATE and on QUANTITY occasions in DATE . He was also treated for PTSD ( with pharmacotherapy ) ; hemorrhoids ; gingivitis ( inflammation of the gums ) ; dermatitis ; chronic pericarditis ; acute rhinopharyngitis ; acute conjunctivitis ; acute laryngitis ; influenza ; angina pectoris ; umbilical hernia ; chronic gastritis ; neck pain ; chest - wall tumour ; and lumboischialgia ( back pain ) .

The applicant stayed in the ORG from DATE to DATE and was treated for PTSD with pharmacotherapy . The discharge letter indicates that he did not show signs of psychosis or suicidal intentions .

He was again treated in the ORG from DATE to DATE in connection with the injuries he had suffered on DATE ( see above ) . Subsequently , from DATE to DATE he was treated at ORG .

On DATE he was examined by the ZPH doctor in connection with pericarditis . Laboratory tests were taken , as well as lung and heart X - ray examinations and an electrocardiogram . On DATE he was again examined by the ZPH doctor and was prescribed pharmacotherapy in connection with the PTSD .

The applicant was hospitalised in the ZPH from DATE to CARDINAL DATE and was treated for chronic gastritis , liver lesions , hyperlipidemia ( increased cholesterol ) , fibrothorax ( fibrosis of the pleural space surrounding the lungs ) , PTSD and heartburn .

From DATE to CARDINAL DATE he was treated for angina pectoris , gastritis , hyperlipidemia and post - thoractomry syndrome ( post - operative chest pain ) .

On DATE the applicant was taken to ORG ( PERSON ) in connection with heart pain . He was prescribed medication .

On an unspecified date he was examined by an otorhinolaryngologist in ORG in GPE ( ORG bolnički centar GPE ) .

On DATE he was taken to ORG in connection with pharyngitis ( inflammation of the throat ) . He was examined by a psychiatrist from ORG on DATE and by another doctor on DATE ( for heart problems ) .

The applicant was treated by a cardiologist at ORG on DATE and DATE .

He was examined by a radiology and neuroradiology specialist at the Radiology , Neurology and ORG in GPE on DATE .

On DATE he was examined by a neurosurgeon and generalist at ORG .

On DATE the applicant petitioned ORG judge responsible for the execution of sentences ( sudac izvršenja ORG ) , seeking his temporary release on health grounds . He explained that he had been wounded in the heart and lungs which had had permanent and life - threatening consequences . Furthermore , he had suffered from severe back and neck pain . The judge ordered the opinion of a medical expert , who established that the applicant was totally disabled . The applicant suffered from heart disease , permanent degenerative deterioration of his spine and various chronic ailments . His opinion was that there were no indications that surgery was necessary and he recommended physiotherapy . There was no worsening of the applicant 's chronic medical condition .

On DATE ORG judge responsible for the execution of sentences refused the applicant 's request . This decision was upheld by a CARDINAL - judge panel of ORG on DATE .

On DATE the applicant again petitioned ORG judge responsible for the execution of sentences , seeking his temporary release on health grounds . The judge asked staff at the ZPH whether they were able to provide the applicant with adequate medical care and the answer was affirmative . The judge further found that ORG was able to provide the applicant the required physiotherapy .

On DATE the applicant again petitioned ORG judge responsible for the execution of sentences , seeking his temporary release on health grounds . The request was granted and the applicant 's prison term was stayed from DATE to DATE on health grounds . It was established that the medical treatment being provided to the applicant had not led to any improvement in his health and that a further recommendation , which suggested a DATE course of physiotherapy at a health spa was not possible under prison conditions . On DATE the judge extended the applicant 's temporary release until DATE on the grounds that the applicant was to undergo hernia and sinus surgery . On DATE the judge extended the applicant 's temporary release until DATE in order for him to undergo psychiatric treatment . On DATE the judge extended the applicant 's temporary release until DATE on the grounds that the applicant had to undergo nose surgery and treatment at a health spa .

On DATE the judge extended the applicant 's temporary release until DATE on the grounds that the applicant had to undergo tumour - related surgery and physiotherapy .

On DATE the judge extended the applicant 's temporary release until DATE . On DATE the judge extended the applicant 's temporary release until DATE .

A further decision by the same judge to the same effect was adopted on DATE , allowing the applicant to be released on health grounds from DATE to CARDINAL DATE .

Since the latter date the applicant has stayed in the LSP in a semi - open regime . He is placed in a cell measuring QUANTITY together with CARDINAL other inmates . He is confined to the cell TIME for a short period . Otherwise , he is free to spend his time in communal LOC of outside in the prison 's courtyard .

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) read as follows :

“ ( CARDINAL ) Inmates shall have the right to complain about an act or decision of a prison employee .

( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... ”

“ ( CARDINAL ) ORG shall be provided with medical treatment and proper care of their physical and mental health ... ”

( CARDINAL ) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate 's health . ”

“ ( CARDINAL ) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor .

( CARDINAL ) ORG release may be allowed on the following grounds :

CARDINAL ) NORP to an inmate suffering from a serious acute illness or whose chronic illness worsening and where his or her medical treatment is not possible in prison .


CASE OF COSTELLO-ROBERTS v. THE UNITED KINGDOM

No violation of Art. 3;No violation of Art. 8;No violation of Art. 13

In DATE PERSON sent the applicant , who was then aged DATE , to an independent boarding preparatory school in GPE , GPE . The school had CARDINAL pupils , none of whose fees were paid out of public funds , and received no direct financial support from the Government .

In the school ’s prospectus it was stated that a high standard of discipline was maintained , but no mention was made of the use of corporal punishment . PERSON had made no enquiry about the school ’s disciplinary regime and did not at the outset make known her opposition to corporal punishment . The school in question operated a system whereby such punishment was administered upon acquisition of MONEY . On DATE the applicant received his fifth demerit mark for talking in the corridor . The other demerit marks were for similar conduct and for being a little late for bed on CARDINAL occasion . Having discussed the matter with his colleagues , the headmaster decided that the only answer to the applicant ’s lack of discipline , about which he had received CARDINAL warnings from the headmaster , was to give him CARDINAL " whacks " on the bottom through his shorts with a rubber - soled gym shoe . He so informed the applicant on DATE .

The punishment was administered by the headmaster DATE , DATE after PERSON had received his fifth demerit mark . No other persons were present . Before the GPE institutions it was alleged by the applicant ’s counsel that he was told not to inform his parents about his punishment , but this was denied by the school . In any event , in a letter to his mother post - marked CARDINAL DATE , he wrote " come and picke me up I have had the wacke " . He continued to write to her in some distress about the " slippering " .

On DATE the school confirmed to her that her son had been slippered ; according to her - though this too was contested by the Government - the school had initially denied the fact .

On DATE , PERSON wrote to the Governors of the school to express her " disquiet " and " grave concern " about the use of such a " barbaric practice " . She acknowledged that the " growing problems " began after DATE of term and said that " we made it very clear to the staff ... that we considered his behaviour to be reflecting signs of an upset ... " . The headmaster in his turn wrote to the Chairman of ORG on DATE , stating that the applicant ’s problems were due to a lack of discipline ; he refused to accept authority and his behaviour was disrupting the life of the school community . PERSON also wrote to the headmaster to inform him that she did not want her son to be corporally punished . On DATE he replied as follows :

" in view of your obvious dissatisfaction with the education being offered ... to your son ... and your desire for him to be exempt from the framework of discipline and punishment that is acceptable to all other parents at the school , it seems best if [ he ] is removed from [ the school ] at the end of the present term . "

The applicant ’s mother complained to the police some time DATE , but was told that there was no action they could take without any visible bruising on the child ’s buttocks . A complaint by her to ORG received a similar response .

The staff were said to have noticed an almost immediate improvement in the boy ’s behaviour after the corporal punishment , but considered that the subsequent contact that he had had with his parents during the DATE holiday had caused him to revert . The headmaster was of the opinion that the applicant " strung his parents along " , taking home stories about bullying and the like " which he has clearly made up but which equally clearly his parents believe " .

It was argued in GPE , on behalf of the applicant , that he had been extremely disturbed by the slippering , which turned him from a confident , outgoing DATE into a nervous and unsociable child .

The Government contended that , according to their information , any change in the child ’s character during his time at the school was more likely to have been caused by his inability to adjust to the constraints of boarding - school life than the " slippering " . In their view , the above - mentioned correspondence between the mother , the school Governors and the headmaster reflected the boy ’s adaptation difficulties .

The applicant left the NORP school in DATE and entered a new school in DATE . It reported in DATE that he had " calmed down considerably " since his arrival , when he had been unsociable , nervous and quite aggressive .

In LANGUAGE law , at the relevant time , there were various criminal offences of assault , the penalties for which differed according to the gravity of the offence and the court in which it was tried . The law has since been amended by LAW DATE .

Prosecution for common assault , the least serious form of assault , was normally brought by or on behalf of the aggrieved party in accordance with section CARDINAL of the Offences against LAW , as amended ( " LAW " ) . LAW barred any further or other proceedings , civil or criminal , for the same cause . Consequently , the ORG did not normally undertake a prosecution for common assault , thus ensuring that the choice between criminal and civil proceedings remained with the victim of the alleged assault .

In ORG the maximum penalty for common assault was a fine of CARDINAL or CARDINAL months’ imprisonment . In cases of " aggravated " common assault , namely where committed upon a male child no more than DATE or any female , the maximum penalty was a higher fine or QUANTITY months’ imprisonment . In ORG the maximum penalty on conviction increased to DATE imprisonment .

Assault occasioning actual bodily harm , a more serious form of assault , was and still is governed , in particular , by section CARDINAL of LAW . Prosecutions are normally undertaken by the ORG and the penalty on conviction is a maximum term of DATE imprisonment .

In addition , it is an offence under LAW CARDINAL to assault or ill - treat a child in a manner likely to cause him unnecessary suffering or injury to health . The maximum penalty on conviction is a fine or CARDINAL years’ imprisonment .

Under the civil law , if no criminal prosecution has been brought for common assault , physical assault is actionable as a form of trespass to the person , giving the aggrieved party the right to recovery of damages . Civil proceedings arising out of the use of immoderate or unreasonable corporal punishment by a teacher will lie either against him or his employer - i.e. the school or school authorities . Such proceedings for assault may be heard by ORG as well as by ORG , from both of which an appeal lies to ORG .

Subject to the exceptions brought about as a result of a change in domestic law ( see paragraph CARDINAL below ) , it is a defence to both criminal charges and civil claims that the person against whom the charge or claim is made was a teacher administering reasonable and moderate physical punishment with a proper instrument in a decent manner . The teacher is said to have this right by virtue of being in loco parentis , exercising by deemed delegation a parental right to inflict such treatment upon children .

The law governing the administration of corporal punishment by schoolteachers is , therefore , based upon the right of parents to use physical punishment on their children . Both parents and teachers are protected by the law only when the punishment in a particular case is " reasonable " in the circumstances . The concept of " reasonableness " permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children .

With effect from CARDINAL DATE when sections CARDINAL of the Education ( No . CARDINAL ) Act DATE came into force - i.e. after the events giving rise to the present case - the above - mentioned defence ceased to be available to a teacher in civil proceedings for trespass in respect of certain pupils , namely those at schools maintained by local education authorities and certain other schools for which the ORG provides financial assistance , and those at independent schools ( see paragraph DATE below ) whose fees are paid out of public funds .

Under LAW CARDINAL parents have a duty , on pain of criminal sanctions , to educate their children . They have the choice between providing suitable education at home or using independent or State schools . The Secretary of ORG has a duty under the same LAW to ensure certain educational standards .

An independent school ( often referred to as a " private school " ) is one at which full - time education is provided for CARDINAL or more pupils of compulsory school age not being a special school defined under section CARDINAL ) of LAW DATE as CARDINAL specially organised to provide education for pupils with learning difficulties , or a school maintained by a local education authority .

Independent schools must apply for registration to ORG , an officer of ORG and Science . Registration is subject to the provision of suitable safety , health and educational standards .

The Government contended before the Convention institutions that it was clear from the provisions of sections CARDINAL of LAW DATE that the Secretary of ORG has no power to refuse to register an independent school on the ground that corporal punishment is administered there and that any refusal to register a school on this ground would be open to legal challenge by the school concerned .

Once registered , independent schools remain subject to periodic inspections and visits by Her ORG , but they are not subject to the same standards as ORG subsidised schools . Section CARDINAL(CARDINAL ) of LAW CARDINAL empowers the Secretary of ORG to initiate a complaints procedure which may result in an independent school being struck off the register .

Subject to the exceptions mentioned at paragraph CARDINAL above , independent schools remain free to use corporal punishment as a disciplinary measure . According to the Government :

( a ) whilst the use within the school of excessive corporal punishment ( involving successful criminal prosecutions ) might lead the Secretary of ORG to use his powers under section CARDINAL(CARDINAL ) , the use of moderate and reasonable corporal punishment would not be a ground for serving a notice of complaint on the school or for withdrawing its registration ;

( b ) complaints of too frequent use of corporal punishment would be referred to Her ORG who could be expected to discuss with the school its disciplinary policy , but ultimately this would be a matter for the school to decide on , within the legal constraints , leaving individual parents who objected to the policy to select a different school for their children ;

( c ) none of the CARDINAL notices of complaint issued in DATE concerned the use of corporal punishment .

The applicant contended , on the other hand , that the procedure leading to striking off the register was initiated in respect of a school making substantial use of corporal punishment . Her ORG expressed concern , inter alia , with the corporal punishment system and recommended that the school review its practice .

Under LAW DATE - not in force at the relevant time - independent schools which provide boarding accommodation for not CARDINAL children ( other than those approved under LAW DATE as suitable for children with special educational needs ) are required to register as children ’s homes . Under LAW DATE the use of corporal punishment has been prohibited in such schools .

In GPE and GPE , the ORG funds directly CARDINAL out of a total of CARDINAL independent schools . Certain pupils in CARDINAL independent schools receive financial support from public funds under the Assisted Places Scheme pursuant to section CARDINAL of LAW DATE . In DATE , CARDINAL pupils out of a total of CARDINAL took up assisted places . Local education authorities may pay for the education of pupils in their area at independent schools or assist with the fees of pupils in cases of hardship .

Independent schools have charitable status , which entitles them to the tax reliefs accorded to charities generally .


Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The first applicant was born in DATE . The second applicant was born in DATE . They both reside in ORG . They are former employees of ORG ” of LOC of GPE ( the “ debtor ” ) .

On DATE ORG ordered the debtor to pay the applicants ORG CARDINAL.CARDINAL and ORG CARDINAL , respectively . The court issued separate judgments with respect to each applicant on DATE and CARDINAL DATE .

On DATE ORG ( the “ DBS ” ) initiated the enforcement proceedings in the case .

On DATE ORG awarded the first applicant UAH CARDINAL.CARDINAL in child support arrears .

On DATE ORG informed the applicants that the enforcement proceedings were still pending .

On DATE the ORG attached the debtor ’s bank accounts . Certain enforcement actions were undertaken by the ORG from CARDINAL DATE to DATE ( attachment of the debtor ’s funds , sale of its property , etc . ) .

On DATE the applicants had been fully paid the salary arrears due to them and the judgments had thus been enforced .

On DATE the ORG terminated the enforcement proceedings in the applicants’ case .

NORP The relevant domestic law is summarised in the judgment of Romashov v. GPE ( no . CARDINAL , § § DATE , DATE ) .


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

The applicant was arrested on DATE on suspicion of extorting protection money from an escort agency . By a decision of CARDINAL DATE given by ORG the applicant and other suspects were detained on remand . On DATE the applicant ’s lawyer appealed against the decision of CARDINAL DATE . His appeal was dismissed by a court on DATE .

On DATE the ORG dismissed the applicant ’s lawyer ’s appeal of DATE against the detention decision , considering that a number of witnesses had given evidence incriminating all the suspects . On DATE the ORG ordered the applicant to undergo psychiatric observation .

On DATE the ORG prolonged the applicant ’s detention on remand till DATE , considering that the charges against the applicant were of a serious nature and that they had been supported by the evidence gathered in the proceedings . The court pointed out that the investigation had not yet been completed and that the group the applicant belonged to had brought improper pressure upon the witnesses to change their testimony .

On DATE an expert opinion on the state of the applicant ’s mental health was issued .

On DATE the ORG dismissed the applicant ’s lawyer ’s appeal of CARDINAL DATE against the decision of CARDINAL DATE prolonging the applicant ’s detention on remand . The court emphasised that there was a strong likelihood that the applicant might obstruct the proper course of the proceedings by inciting the witnesses to give false testimony . The court also stated that the applicant ’s case did not disclose any of the grounds for release provided by LAW .

On DATE the ORG prolonged the applicant ’s detention on remand until DATE . It found that in view of the seriousness of the offence he was charged with , the strong probability of his guilt and the danger of him ( or another member of the group ) exerting additional pressure on the witnesses , the applicant ’s detention was warranted . The court also pointed to the necessity of taking further evidence .

On DATE the ORG dismissed the applicant ’s lawyer ’s request that the preventive measure be replaced by a more lenient one , considering that the grounds on which the detention on remand had been ordered had not ceased to exist . On DATE the ORG dismissed the lawyer ’s appeal against this decision , relying on the grounds previously invoked by the courts .

By a decision of CARDINAL DATE the ORG prolonged the applicant ’s detention on remand until DATE . The court was of the opinion that the applicant ’s detention was justified by the strong probability of his guilt , the necessity to obtain further evidence and the risk of pressure being brought to bear on the witnesses . On DATE the applicant ’s lawyer appealed against this decision . On DATE the ORG upheld it , referring to the seriousness of the offence in question and the complexity of the case . The court remarked that the negative effect of the continuing detention upon his family situation was not such as to call for his release .

On DATE the bill of indictment was lodged with the ORG against the applicant and CARDINAL co - accused .

The court held hearings on CARDINAL , DATE and DATE . It heard the coaccused and several witnesses .

The hearing fixed for DATE was adjourned due to the absence of the lawyer representing CARDINAL of the co - accused . On DATE another hearing was held . The court heard CARDINAL witnesses .

At the hearing of DATE the applicant lodged an application for release . The court refused , considering that his detention was justified by the existence of strong evidence of his guilt , the nature of the charges against him and a risk of interference with witnesses in order to influence their testimony . Moreover , conditions for release referred to in LAW were not satisfied . The hearing was then adjourned in view of the absence of the applicant ’s lawyer .

On DATE the applicant appointed a new lawyer to represent him .

On DATE , in a separate set of criminal proceedings , the applicant was sentenced by ORG to DATE imprisonment and a fine . He served his sentence DATE and DATE .

The hearing scheduled for DATE was adjourned following a request of CARDINAL of the lawyers . On CARDINAL May and on DATE the court held hearings . At the hearing held on DATE the court dismissed the applicant ’s request for release , referring to the gravity of the charges against him and considering that his case did not disclose any of the grounds for release provided by LAW . The hearing was adjourned due to the absence of CARDINAL of the co - accused .

Hearings fixed for DATE and CARDINAL and DATE were cancelled for various reasons , mostly because of the absence of defence lawyers . On DATE the court held a hearing and heard CARDINAL witnesses . The hearing scheduled for DATE was adjourned because of the illness of CARDINAL of the lawyers . The court dismissed the applicant ’s request for release , considering that his continuing detention was necessary to ensure the proper conduct of the proceedings and that there were no grounds for releasing the applicant under LAW .

On DATE the ORG requested ORG to prolong the applicant ’s detention until DATE , submitting that from CARDINAL DATE until DATE hearings had been fixed but CARDINAL out of them had in fact been held . The adjournments had been ordered mainly due to the absence of defence counsel . The co - accused and CARDINAL witnesses had been heard until then , nevertheless CARDINAL witnesses remained to be examined . On DATE ORG granted ORG request , pointing to the complexity of the case and concluding that the delay in the proceedings could not be attributed to ORG .

The hearing scheduled for DATE and DATE were adjourned due to the absence of CARDINAL of the co - accused and the illness of some lawyers . On DATE the court held a hearing and heard CARDINAL witnesses . The court did not allow the applicant ’s request for release . The hearing scheduled for DATE was adjourned due to the absence of some of the lawyers .

On DATE the ORG lodged a request with ORG to prolong the applicant ’s detention until DATE . The court submitted that hearings had been held on DATE and on DATE . The hearings scheduled on DATE , DATE , DATE and DATE had been adjourned or cancelled because of the illnesses of the accused and the defending counsel . The court had heard CARDINAL witnesses , but CARDINAL other witnesses were still to be examined and the continuing detention was necessary to ensure the proper conduct of the proceedings . On DATE ORG , relying on the grounds given above , prolonged the applicant ’s detention . However , the limit of the duration of the detention was set to DATE and not to DATE as ORG had requested .

The hearing held on DATE was adjourned due to the absence of CARDINAL of the co - accused .

On DATE the ORG refused to release the applicant , observing that he had failed to indicate any new relevant circumstances in the case .

The hearing scheduled for DATE was adjourned as one of the co - accused was ill .

The hearing scheduled for DATE was adjourned because of the illness of the judge rapporteur .

The hearing held on DATE was adjourned as CARDINAL of the coaccused did not appear .

On DATE the ORG again requested ORG to prolong the applicant ’s detention on remand . On DATE ORG granted this request and prolonged the applicant ’s detention on remand until DATE . ORG observed that a number of hearings had not been held due to the absence of either the co - accused or their defence counsel . Moreover , the composition of the court had to be changed owing to the illness of the presiding judge . The case was complex and multi - layered and the charges of a serious nature . In addition , some of the accused had contributed to the overall length of the proceedings by lodging motions with the court . In these circumstances , even though the proceedings in the case had been lengthy , ORG could not be held responsible for this delay .

On DATE the court decided to issue an arrest warrant in respect of the co - accused who had kept failing to attend hearings .

The hearings fixed for DATE and QUANTITY DATE were adjourned due to the absence of CARDINAL of the co - accused .

On DATE , as a result of the change in its composition , the court recommenced the examination of the case . The co - accused had not agreed to continue the proceedings with new judges . The court decided to exclude CARDINAL of the co - accused who would not appear at the hearings . The court adjourned the hearing due to the absence of some of the lawyers .

On CARDINAL and DATE the court held hearings . It heard the co - accused and CARDINAL witnesses . On DATE the court adjourned the hearing as the applicant ’s lawyer and other co - accused did not appear .

On DATE the applicant was released under police supervision .

On DATE the court gave a judgment by which the applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

LAW reads , in so far as relevant :

“ CARDINAL . NORP Parties

Article CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Article CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

DATE lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE in LOC .

On DATE the ORG of Tula granted the applicant ’s claim against ORG of ORG and awarded him ORG ( ORG CARDINAL ) . On DATE ORG upheld the judgment on appeal .

On CARDINAL DATE the ORG altered the judgment , indicating that the award was payable by ORG at the expense of the ORG .

On DATE ORG of ORG applied for supervisory review of the judgment . On DATE ORG refused their application .

On DATE the ORG paid the amount outstanding to the applicant ’s bank account .


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

The first and second applicants are married and the third and fourth applicants are their children . They are of NORP - Cypriot origin and have NORP and NORP nationality . They were born in DATE , DATE and DATE respectively and live in GPE . The fifth applicant , ORG , is a company incorporated in GPE on DATE , under registration no . DATE . The applicants are represented before ORG and ORG , lawyers practising in GPE .

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

The first CARDINAL applicants were all born and brought up in GPE , in northern GPE . Until DATE they all lived together in their home in the town of GPE . The first applicant had established his own architectural office in GPE , in which he employed CARDINAL persons . The applicants are the owners or part owners of properties in northern GPE , including the family home ( owned by the second applicant alone ) , various building plots , an office , houses , an orange grove and CARDINAL shops .

The fifth applicant is a family company , co - owned by the first and second applicants . The first applicant is also the director and secretary of the company . The registered office of the company was situated in the building owned by the second applicant . The company 's main activities were in land investment and development . It claimed to own property which it had started developing , in the areas of GPE and GPE . In particular , it is the registered owner of a building site in GPE and claims to be entitled to be registered as the owner of a plot of land in GPE as well as the owner of a CARDINAL share in CARDINAL plots of land in GPE . It maintains that it owns CARDINAL of the shares in another limited liabilty company , namely , ORG , incorporated in GPE on DATE , under registration no . DATE . The first and second applicants are CARDINAL of the CARDINAL directors of that company and the first applicant is also the secretary . This company is the owner of CARDINAL plots of land in the district of GPE which were to be divided into CARDINAL building sites .

The applicants stated that in DATE they had to abandon their home , property and possessions . Since DATE , the applicants have not had access to and/or use of their property and home .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , a town in LOC .

The applicant sued the ORG for non - pecuniary damage inflicted by a groundless criminal prosecution . On DATE the NORP ORG awarded the applicant MONEY against ORG . This judgment became binding on DATE .

In CARDINAL the applicant made unsuccessful attempts to obtain enforcement papers from the court . First , the papers mailed by the court failed to reach him . Once they did reach him , they proved to have a formal defect , a missing maturity date . Proper enforcement papers reached ORG on DATE , and on DATE the judgment was enforced .

NORP In separate proceedings the applicant sought a reinstatement in his post in the police . On DATE his action was partially granted . Later , the applicant unsuccessfully sought a reopening of these proceedings .

NORP Under section CARDINAL.CARDINAL.CARDINAL of LAW of DATE , ORG must enforce a judgment within DATE .


In the absence of such a subsequent conviction , the earlier prosecution and trial would be considered annulled with retroactive effect . Thus , in practice , this particular legislation operates as a conditional amnesty law .