Violation of Art. 6-1 as regard three points;No violation of Art. 6-1 as regard one point;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (length of proceedings);Non-pecuniary damage - finding of violation sufficient (remainder);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant is a limited company ( société anonyme ) , which , in accordance with a resolution of its general meeting of DATE , is in voluntary liquidation . It was represented by its liquidator Mr PERSON , who was appointed by a decision of ORG dated DATE .

The company ORG , a sub - subsidiary of ORG , was set up in DATE to take over , by virtue of a transfer decree of DATE , the concessions and leases of the Sacilor iron - ore mines in PERSON .

The applicant subsequently took over other concessions , in particular those of the company ORG and its subsidiary ORG - Giraumont . It thus held a total of CARDINAL iron - ore mining concessions in PERSON on the date when it announced that it was to shut down its mining operations . Iron - ore mining had been in constant decline since DATE . The company was forced to discontinue its mining activity because worldwide competition meant that it was no longer profitable to mine iron - ore in PERSON . The applicant company 's iron - ore production had thus fallen from QUANTITY in DATE to QUANTITY in DATE . As the demand for the applicant company 's phosphoric pig iron had slowly dwindled away , it decided in DATE to halt production . The closure of the various pits was staggered DATE and DATE . The applicant company had to stop all extraction operations in DATE . It underwent privatisation in DATE and in DATE .

With a view to the complete cessation of its activity , the applicant company initiated the appropriate procedures for the abandonment and renunciation of its concessions . The abandonment procedure , for the purpose of decommissioning and stabilising disused mining installations , entails the implementation of an order ( arrêté ) in which the requisite abandonment operations are stipulated by the prefect having territorial jurisdiction . It ends when the authorities are able to confirm that the requirements have been fulfilled . The renunciation procedure terminates the concession with the result that its holder is no longer bound by the special mining regulations and is released from the presumption of liability in respect of any damage which occurs above ground . At the time when the cessation of the company 's operations was announced , the abandonment and renunciation procedures were governed by ORG DATE and CARDINAL of LAW and by Decree no . CARDINAL of CARDINAL DATE concerning mining and quarrying regulations . Law no . CARDINAL of DATE , amending certain provisions of LAW , repealed Articles CARDINAL and CARDINAL and replaced them by Articles CARDINAL and CARDINAL . Decree no . CARDINAL of DATE , issued after consultation of the ORG d'Etat , pertaining to the opening of mines and mining regulations , was adopted for the implementation of those provisions . Lastly , PERSON no . CARDINAL of DATE concerning liability for damage resulting from mining and the prevention of mining - related risks after discontinuance , brought about further amendments to mining law ( see paragraphs CARDINAL to CARDINAL below ) .

Numerous regulatory measures ( over twenty ) were taken in this connection against the applicant company , which challenged them all in ORG of GPE and PERSON . The applicant company also lodged numerous appeals seeking the annulment of refusals by the Minister responsible for mining to accept its renunciation of a number of concessions ; it requested that the Minister be ordered to accept the renunciation of those concessions and sought compensation for the loss it had sustained as a result of the refusals .

NORP The inter - prefectoral order ( prefectures of the PERSON region , the département of GPE and the département of GPE ) of CARDINAL DATE , laying down regulatory measures in the mining sector , imposed certain obligations on the applicant company :

“ It is hereby decided as follows :

Article CARDINAL : The company NORP ... shall be required , in a prompt manner , to appoint a panel of CARDINAL specialists from outside the company , having submitted the composition of the panel for the prior approval of the prefects , and having regard to the opinion of ORG , to carry out the following assignment :

- analysis of the parts of the mining installations referred to in the penultimate paragraph of the preamble , located between elevations ORG CARDINAL and CARDINAL in the municipalities ( communes ) of GPE , PERSON , PERSON , PERSON and PERSON ( Meurthe - et - GPE ) , ORG , ORG , PERSON , PERSON and GPE ( GPE ) ;

- classification of the parts of the mining installations thus enumerated according to the presence of both aggravating instability factors and vulnerability related to the type of dwelling at risk .

The company NORP shall make available to the specialists any technical documents and archives in its possession concerning the operations in question . The company shall transmit to the prefect , within a period of DATE after the notification of the present order , the report issued by the said specialists on the completion of their assignment .

LAW The company NORP ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of surveyors , in order to be in a position to implement , upon the request of the prefects , any monitoring and observation measures that may be required by the situation . ”

Moreover , in an order of DATE , the prefects of GPE and ORG imposed the following on the applicant company :

“ Having regard to the urgency ;

Acknowledging the report of the experts appointed by the company PERSON in accordance with the above - mentioned prefectoral order ;

Recognising that , in the light of current knowledge , the appearance of cracks in buildings may be a preliminary indication of subsidence ;

Upon the proposal of the Regional Director for ORG and the Environment of Lorraine ;

It is hereby decided as follows :

The company NORP ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of building experts , so that it is able to carry out , promptly and upon the request of the prefects , analysis of the cracks in buildings in the “ yellow ” , “ orange ” and “ red ” zones , the lower parts of buildings included , within the perimeter of the iron - ore mining concessions held by the company NORP ... in the municipalities of GPE , PERSON , PERSON , PERSON and PERSON ( Meurthe - et - GPE ) , ORG , ORG , PERSON , PERSON and GPE ( GPE ) ;

The assessments carried out by those experts shall be reported in writing to the prefects concerned , in the appropriate time - frame and form such as to be compatible with the triggering of the alert procedure , should that prove necessary , or within TIME in other cases .

NORP In letters of DATE and CARDINAL DATE the applicant company lodged administrative appeals with the Minister for ORG , Finance and Industry , requesting that he rescind the orders of CARDINAL May and DATE and seeking the reimbursement of the sums incurred in order to meet the requirements of those orders . The applicant company claimed that the order had failed to take account of the fact that it no longer operated the mines at issue and that the sites referred to in the order had undergone an abandonment and renunciation procedure .

On DATE , acting upon an application from the Secretary of ORG , ORG of the ORG d'Etat , under the presidency of PERSON , the reporting judge being PERSON , gave an advisory opinion concerning the “ work of stabilising and rehabilitating the sites of disused mines – Powers of the authority vis - à - vis the mine operator – application of the Law of DATE ” . ... That opinion was published in the DATE report of the PERSON d'Etat for DATE and reads as follows :

“ The PERSON d'Etat ( ORG ) , has been called upon by the Secretary of ORG to answer the following questions :

Does not the immediate application of the new LAW impair the established rights of the holders of mining concessions or licences , in so far as work commenced prior to this legislation is at issue ? Should or could a limit be set on the regulatory obligations that may be imposed on them , since the objectives now enshrined in the mining regulations were clearly not envisaged when the operations were first started ?

Should the principle of the proportionality of acts of the administrative authorities be construed as requiring the prefect to take account of the human , financial or technical means available to the operator when he imposes specific measures on the latter ?

To what extent , should it prove impossible for the mine operator to implement the prefect 's instructions , would the obligations thus imposed be assumed by the ORG and then performed and financed by the latter ?

Could the possible extension introduced by the use of the term “ measures ” rather than “ work ” in LAW lead to the imposition of other requirements , apart from those whose result is attainable within a period that is consistent with the need to bring an end to the special mining regulations , for example a pumping requirement , which could only be fulfilled in the long term , or in a period that would be difficult to foresee ?

In the latter case , is there not a contradiction with Articles DATE and CARDINAL § CARDINAL of the decree of CARDINAL DATE , which seem , at least implicitly and for mines operated normally , to limit the imposition of mining regulations to the term of the mining concession ?

Moreover , should the prefect confine himself to physical measures or is he entitled to impose financial measures such as payment to an organisation by way of performance ?

Would it be feasible to arrange for part of the obligations imposed under mining regulations ( for example those concerning the pumping of water or maintenance of equipment ) to be assigned to a third party ( company , consortium of public institutions , etc . ) ? Could the formal confirmation be issued once the prefect is able to observe that the operator has set up a structure providing for the performance of its obligations DATE or , on the contrary , can it only be issued once it has been observed that the prescribed measures have actually been carried out or completed ?

In matters of ordre public ( public policy ) , is the court entitled , and on the basis of what criteria , to consider that section CARDINAL of the Law of DATE has an immediate effect on contracts in progress ? Would it be possible , if necessary , in the light of the LAW , to enact legislation giving retrospective effect to the abovementioned section CARDINAL ?

On the basis of what criteria is the court entitled to rule out the application of a clause releasing the mine operator from liability in respect of damage caused by its mining activity , in the event of transfer of ownership ? In particular , is the court entitled to find such a clause null and void when the foreseeable or inevitable nature of the damage has been established ? In such cases , is it necessary to prove that the operator was aware of the risk or does the existence of the risk suffice , in so far as the operator should have been aware of it ? Moreover , may the seriousness of the damage be taken into account in the court 's interpretation of the validity of such clauses ?

[ The PERSON d'Etat ] is minded to answer the foregoing questions as follows :

As to the mining abandonment procedure ( LAW ) :

( a ) A new legal rule will not apply to legal situations which have already become final on the date it enters into force . Accordingly , the abandonment of mining operations which began before the entry into force of the PERSON of DATE will not be governed by the new LAW , introduced by the said PERSON , if on that date the particulars of the work required for the stabilising and rehabilitation of the site have been irrevocably decided , pursuant to the former LAW and to LAW no . CARDINAL of CARDINAL DATE , by the acceptance of the declaration of relinquishment or abandonment submitted by the operator , or by virtue of a prefectoral order prescribing the work to be carried out . In other cases the new LAW will be applicable , and it will of course govern the abandonment of mining work started after DATE .

( b ) The principle of the “ proportionality of acts of the administrative authorities ” entails that the authorities require the operator to take only those measures that are necessary in order to fulfil the objectives and preserve the interests enumerated in Articles DATE and CARDINAL of LAW . In assessing what is necessary , the authorities are not bound by the human , financial or technical capacities of the operator .

( c ) The authorities have an obligation to ensure compliance with the measures that they have prescribed pursuant to the abovementioned provisions . In the event of any failure to act on the part of the operator , for any reason whatsoever , they must assume their powers of substitution under DATE . Failing that , the ORG 's responsibility may be totally or partially engaged in the event of non - performance .

( d ) It follows from all the provisions of LAW that , unless otherwise agreed by the operator , the authorities can not impose measures without fixing a time - limit . The performance of such measures can not be required to continue in the long term , after the mining concession has expired , except in the case provided for LAW CARDINAL of the decree of CARDINAL DATE .

( e ) In order to obtain formal confirmation , the operator must have performed the prescribed measures itself and is not entitled to have them performed by a third party , even if it provides that party with the requisite financial means .

As to the validity of clauses in property transfer agreements which exclude the liability of the mining or prospecting company ( section CARDINAL of the Law of DATE ) :

( a ) Subject to the independent findings of the competent courts , it would appear that LAW of DATE , which renders null and void on public policy grounds any clause , in property transfer agreements between mining companies and local authorities or natural persons outside the profession , which excludes the liability of the company for any damage related to its mining activity , does not apply to agreements entered into before the entry into force of the said PERSON . Unless retroactive effect is expressly stipulated by the legislature , a new law will not affect the terms and conditions of an agreement that has become final prior to the entry into force of that law .

( b ) Except in penal matters , the principle of non - retrospectivity of laws is not binding on the legislature , which may therefore decide to give retrospective effect to section CARDINAL of the Law of DATE .

( c ) It is not possible to give a general answer to the question concerning the possibility for the court to rule out the application of clauses releasing the vendor from liability . It will be for the competent courts to assess such clauses on a case - by - case basis in the light of Article DATE of LAW . ”

On DATE and CARDINAL DATE the applicant company applied to the PERSON d'Etat for a judgment declaring ultra vires and annulling the above - mentioned prefectoral orders and the implied decisions of DATE and DATE by which the Minister had refused to withdraw those orders . The applicant company sought the reimbursement of the expenses that it had paid out for the implementation of those orders . It claimed , in particular , that it was for the authorities to bear the cost of missions for the monitoring and verification of the measures that they themselves had imposed on the operator for the closure of the mines . Moreover , it argued that it no longer operated the mines at issue since DATE and that , having complied with the requirements laid down by the prefect with regard to the abandonment of mining operations , it had been released from its obligations as concession - holder . In this connection it pointed out that for CARDINAL concessions the renunciation had been accepted ( Valleroy and PERSON ) , whilst in the other cases , the abandonment had become effective after the completion of the work prescribed by the prefect in DATE or was still in progress . It lastly considered that , in respect of the former concessions in question , the declarations of abandonment and applications for renunciation had been filed with the prefecture before the entry into force of the Law of DATE ( see paragraph CARDINAL below ) amending certain provisions of LAW and that those concessions could only therefore fall within the statutory and regulatory framework that existed prior to the entry into force of that PERSON ( former ORG DATE and CARDINAL of LAW , see paragraph CARDINAL below ) .

On DATE the President of ORG of the PERSON d'Etat wrote to the director of legal affairs of the competent ministry to express his concern about the ministry 's shortcomings in the preparation of judicial cases which had been set down on a list of the PERSON d'Etat for hearing on DATE and which had had to be struck out at the very TIME on account of belated production by the ministry . He gave the following explanations :

“ As regards case no . DATE , you were notified of it on DATE . In the absence of any response on your part , you were again invited to adduce your observations on DATE , DATE and CARDINAL DATE and on DATE .

Since a case has to be heard even if the authority fails to reply , the case was entrusted to a reporting judge , examined at the preparatory stage , transmitted to a Government Commissioner and set down for hearing on DATE , with notice of the hearing being issued on DATE .

It was not until after that notice of hearing that you produced observations which were received by facsimile in the ORG d'Etat on DATE .

As the principle of adversarial proceedings required that your observations be communicated to the applicant company , the striking - out of the case was inevitable . This also happened , with a few minor differences , in case no . DATE . Such a situation is difficult to accept . For the purposes of preparing the case properly the judge sets time - limits for the parties . In some cases , if requested , an extension of the time - limit may be granted .

In the present case , however , it was only after DATE and in spite of a number of reminders that you filed your observations , and you did so after the case had been set down for hearing , placing the PERSON d'Etat before the fait accompli and obliging it to strike out the case .

In DATE the Prime Minister adopted specific measures to ensure the defence of the ORG in good conditions and the proper operation of judicial proceedings . It is regrettable that in this case his instructions were disregarded so patently . ”

In a judgment of CARDINAL DATE ( nos . DATE and DATE ) , notified on DATE , the ORG d'Etat , after joining the CARDINAL cases , ruled as follows :

“ ... Under the first paragraph of LAW ... decree [ of CARDINAL DATE pertaining to the opening of mines and mining regulations ] : ' The prefect shall decide , by way of an arrêté ( order ) , on regulations applicable to mining . Except in cases of urgency or imminent danger he shall first invite the mine operator to submit its observations and shall set a time - limit for that purpose ' . In view of the seriousness of the subsidence which occurred on DATE , DATE and DATE above various mines that had been operated by the company ORG and having regard to the report filed on DATE by the scientific advisory board set up on DATE for that purpose , the prefects of GPE and ORG were legally entitled to issue the urgent order of CARDINAL DATE requiring the applicant company to entrust to a panel of experts the analysis and risk assessment of a number of mining sites , and to have a network of surveyors permanently available in order to carry out the requisite supervisory measures . They were also entitled , on account of the urgency , without consulting the mine operator and as soon as the report had been issued by the experts appointed in the order of CARDINAL DATE , to require the company , in the order of DATE , to ensure that a network of building experts was permanently available . Accordingly , the arguments to the effect that those orders were issued without complying with the lawful procedure , in breach of the provisions of LAW of CARDINAL DATE , can not be upheld .

Article CARDINAL of LAW , in the version deriving from GPE DATE , reads as follows : ' prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety , ... [ and ] to the solidity of public or private edifices ... / When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit ' . The last paragraph of LAW , which lays down the rules governing the discontinuance of mining operations , provides as follows : ' When the measures provided for by the present Article , or those prescribed by the administrative authority pursuant to the present Article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation of completion ... ' . Article DATE of the decree of CARDINAL DATE provides : ' the administrative supervision and the mining regulations shall cease to take effect on DATE that the operator is issued with formal confirmation that the work has been completed ... / However , the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession ' .

First , contrary to what has been contended , the PERSON of DATE entered into force as soon as it was published ; subsequently , and notwithstanding the fact that the applications for abandonment of operations were submitted before the entry into force of that PERSON , the prefects of GPE and ORG legally implemented it .

Secondly , it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to exonerate if from all liability unless and until it has been issued with formal confirmation of completion and , as regards any incidents and accidents that may interfere with the protection of the interests provided for under LAW , for as long as the operator holds the mining concession . It follows from the documents in the case file that , with the exception of the concessions of Valleroy and PERSON , the prefects of GPE and ORG had not issued formal confirmation of the completion of work in respect of the mines abandoned by [ the applicant company ] , nor had they accepted the proposed renunciation of the concessions concerned . Subsequently , the prefects ... were lawfully entitled , except in respect of those parts of the municipalities that were located above the Valleroy and PERSON concessions , to impose on the operator the necessary measures to prevent repetition of subsidence .

Under Articles CARDINAL and CARDINAL of LAW , the administrative authorities are entitled to require the operator to take any measures for the purposes of guaranteeing public health and safety and the solidity of edifices , as provided for in LAW . These measures may consist both in studies for the assessment and enumeration of risks and in work to prevent or put an end to incidents .

It is hereby decided as follows :

Article CARDINAL : The implied decisions of DATE and DATE of the Minister for ORG , Finance and Industry and the orders of CARDINAL DATE and DATE are annulled in so far as they imposed on the [ applicant company ] measures of prevention , supervision and verification in respect of the areas of the municipalities located above the concessions of Valleroy and PERSON of which the renunciation had been accepted by the authority .

LAW The ORG shall reimburse to ORG , with interest , the sums pertaining to the sites in respect of which the decisions of the Minister are annulled by the present decision ;

Article CARDINAL : The ORG shall pay to ORG the sum of MONEY under section CARDINAL of the Law of DATE .

After deliberation on DATE in the presence of : PERSON , Deputy President of ORG , presiding ; PERSON , Mr ORG , Section Presidents ; Mr PERSON , PERSON , PERSON , Senior Members of the ORG d'Etat ; and Miss PERSON , Auditeur - rapporteur . ”

By a decree of CARDINAL DATE , the President of the Republic appointed Mr ORG , a member of the PERSON d'Etat who had sat in the deliberation of DATE , to the post of Secretary General of ORG , ORG and ORG .

On DATE the applicant company brought proceedings in ORG seeking the annulment of the implied decision of rejection resulting from the failure by the Minister for Economic Affairs to respond to its request for payment of the sum of MONEY pursuant to LAW CARDINAL DATE . By an order of DATE , the president of ORG transmitted the application to the ORG d'Etat .

Concurrently , the applicant company requested the ORG d'Etat to order the ORG to pay a coercive fine of MONEY per day to guarantee execution of the entire decision of CARDINAL DATE .

In a judgment of DATE ( nos . CARDINAL and DATE ) , notified on DATE , the PERSON d'Etat found that the execution in question was incomplete :

“ ... the Minister for ORG , Finance and Industry ... ordered , on DATE , the payment of the sum of MONEY for the reimbursement of the expenses incurred on the sites in respect of which the Minister 's decisions had been annulled by the judgment of DATE . It follows from a calculation note produced by the authority that this sum consists of an indemnity of MONEY , being the capital , which has not been disputed , and interest amounting to MONEY . As regards the interest .... [ it ] should have run not from DATE , the date of the decision in which payment was ordered , but from the date on which [ the applicant company ] had actually paid the invoice of DATE issued by ORG . In view of the foregoing , [ the applicant company ] is justified in arguing that the judgment of DATE has not been fully executed .

... to take , within DATE from notification of the present decision , as regards DATE for calculation of interest at the statutory rate , the necessary measures in order to ensure full execution of LAW of DATE , and to order it to pay a coercive fine of QUANTITY per day from the expiry of the said period if it has not by then fulfilled the said obligation .

After deliberation on DATE in the presence of : Mr PERSON , President of ORG , presiding ; Mr ORG , Mr GPE , ORG ; PERSON , PERSON , PERSON , Mr de Froment , Senior Members of the PERSON d'Etat ; PERSON Thiellay , PERSON and PERSON , PERSON - rapporteur . ”

Further to the above - mentioned orders of CARDINAL May and DATE and other orders of CARDINAL DATE requiring the analysis of the parts of mining installations that were located in several municipalities which had not been covered by the expert 's report prescribed by the inter - prefectoral order of CARDINAL DATE , and the classification of the parts of mining installations thus enumerated according to the presence of both aggravating instability factors and vulnerability related to the types of dwelling , the prefects of GPE , GPE - et - Moselle and ORG made an order dated DATE containing the following requirements :

Article CARDINAL

The company NORP ... shall take all necessary measures , promptly and at the request of the prefects for the places concerned , to carry out an analysis of cracks in buildings or facilities located within the “ yellow , orange and red ” zones , which are indicated as being at risk from significant soil movements in the maps issued showing degrees of potential delayed subsidence , and which are situated within the ground areas of the iron - ore mining concessions held by the company Lormines on parts of the départements of GPE , ORG and GPE .

The assessments shall be reported in writing to the prefects concerned , in the appropriate time - frame and form such as to be compatible with the triggering of the alert procedure , should that prove necessary , or within TIME in other cases .

The applicant company was unable to execute this order ( non - execution at ORG ) and execution was thus initiated by the ORG at the company 's expense . In respect of this execution the applicant company was required to pay the sum of MONEY , by a payment order of CARDINAL DATE which it disputed before ORG .

On DATE the applicant company lodged with the ORG d'Etat an application seeking the annulment of the inter - prefectoral order of CARDINAL DATE , for being ultra vires , and sought a stay of execution of that order .

On DATE the company applied to the ORG d'Etat seeking the annulment of the implied decision of rejection resulting from the Minister 's failure to reply to its request for the withdrawal of the inter - prefectoral order of CARDINAL DATE and for payment by ORG an indemnity of MONEY to compensate for the expenses it had incurred in implementing the impugned order .

In its submissions of CARDINAL DATE the applicant company asked to receive , prior to the hearing , copies of the mining - related opinions given by the administrative divisions of the ORG d'Etat over DATE , as well as the submissions of the Government Commissioner .

On DATE the applicant company stated that it did not wish to maintain its requests for the withdrawal of the Government Commissioner and for disqualification of the section of the ORG d'Etat to which the case had been assigned .

In a judgment of DATE ( CARDINAL . DATE and DATE ) , the ORG d'Etat ( with the same bench as for the above - mentioned judgment of CARDINAL DATE , nos . DATE and DATE ) , after joining the CARDINAL applications , dismissed the applicant company 's clams :

Concerning the submissions seeking the annulment of the inter - prefectoral order of DATE laying down regulatory measures in the mining sector and the implied decision of rejection by the Minister for ORG , Finance and Industry further to an administrative appeal against that order :

... Fifthly , LAW , in the version deriving from LAW DATE , reads as follows : ' Prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety , ... [ and ] to the solidity of public or private edifices ... : When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit ' . The last paragraph of LAW , which lays down the rules governing the discontinuance of mining operations , provides as follows : ' When the measures provided for by the present article , or those prescribed by the administrative authority pursuant to the present article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation ... ' . LAW of CARDINAL DATE provides : ' The administrative supervision and the mining regulations shall cease to take effect on the date that the operator is issued with formal confirmation that the work has been completed ... / However , the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession ' . LAW provides : ' renunciation , whether total or partial , of rights to mine or quarry prospecting or exploration shall become final only after being accepted by the minister responsible for mining ' . LAW of DATE provides : ' Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining . / ... Acceptance of renunciation shall be given in an order of the minister responsible for mining ' .

Contrary to what has been contended , the LAW DATE entered into force as soon as it was published and was to be applied to all mining concessions currently valid at that date . Subsequently , and notwithstanding the fact that the applications for abandonment of work and renunciation of concessions were apparently submitted before the entry into force of that PERSON , the prefects of GPE , GPE and ORG legally implemented it . The applicant company can not , in any event , appropriately rely on an argument based on a breach of the principles of legitimate expectation and legal certainty when the order appealed against was not made for the purposes of implementing ORG law .

Moreover , it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to release it from all liability unless and until it has been issued with formal confirmation of that completion . In addition , when , as in the present case , any incidents or accidents occur , such as subsidence capable of undermining the solidity of public or private edifices , the prefect remains empowered to intervene , even if he has already issued formal confirmation of completion of the work required for the closure of the mine , for as long as the operator holds the mining concession . It follows from the documents in the case file that , whilst some of the mines enumerated in LAW order appealed had been the subject of an abandonment procedure , as had been confirmed by ORG , none of the corresponding concessions , at the date of the order appealed , had expired or had been the subject of a renunciation procedure accepted by the minister , such express acceptance alone being capable , contrary to what has been argued in a new memorial filed DATE before the hearing , regardless of the date of that acceptance , of giving full effect to any renunciation . Accordingly , the prefects of GPE , GPE and ORG were lawfully entitled to require the operator to take the necessary measures to prevent repetition of land subsidence .

Sixthly , in accordance with Articles CARDINAL and CARDINAL of LAW , the administrative authorities are entitled to require the operator to take any measures that may be required for the protection of the objectives of public health and safety and the solidity of edifices , as provided under LAW . Those measures may consist both of studies for the purpose of analysing and enumerating the risks of incidents and of work for the purposes of prevention or remediation .

The company ORG is not justified in seeking the annulment of the inter - prefectoral order of CARDINAL DATE and the Minister 's implied decision of rejection ... ”

In DATE , when the discontinuance of the applicant company 's mining operations was announced , the procedures of abandonment and renunciation were governed by ORG DATE and CARDINAL of LAW and Decree no . CARDINAL of CARDINAL DATE concerning mining and quarrying regulations . LAW stipulated at the time as follows :

“ When operations are abandoned on the expiry of a concession or of a prospecting or operating licence , or , in the case of segment - based operations , at the end of the operations in each segment , the holder of the concession or licence shall be required to carry out work for the purpose of protecting the interests mentioned in LAW , as stipulated by the prefect on the proposal of the mining service after consultation of the municipal council for the locality concerned . The rehabilitation , in particular for agricultural purposes , of the sites and places affected by the work and by installations of any kind that have been erected for operations and prospecting , may be prescribed ; this shall be mandatory in the case of quarries . These provisions shall be applicable to the work provided for in LAW .

In the event of failure to carry out the prescribed work , it shall be completed on the initiative of the authorities and at the expense of the concession - holder or offender .

Municipalities and départements shall have a right of pre - emption in the event of the sale of disused quarries that have been operated on their territories . ”

LAW provided as follows :

“ If work related to mine prospecting or operating is capable of undermining public health and safety , essential features of the surrounding environment , whether land or sea , the conservation of the mine or another mine , the security , health and safety of mine workers , the conservation of communication routes , the solidity of public or private edifices , or the use , flow or quality of water of any kind , provision shall be made by the prefect , if need be of his own motion and at the expense of the prospector or operator . ”

Section CARDINAL of LAW ( Law no . CARDINAL ) of DATE amended LAW by inserting , after its first paragraph , CARDINAL paragraphs which read as follows :

“ In all cases , the holder of the concession or licence shall make an assessment of the cumulative effects of the work on the presence , accumulation , emergence , volume , drainage and quality of water of any kind , shall assess the foreseeable consequences of the abandonment of the work or of the operations for the situation thus created and for the uses of the water , and shall indicate the remedial measures envisaged .

After consulting the local authorities concerned and hearing representations from the concession or licence holder , the prefect shall prescribe the work required of the holder in order to restore to their previous state , preserve in their current state or adapt as needed , the essential characteristics of the aquatic environment and the hydraulic conditions for the purposes of fulfilling the objectives provided for in section CARDINAL of LAW ( Law no . CARDINAL ) of DATE . ”

In addition , the second paragraph of LAW was supplemented by a sentence which read as follows :

“ Payment into the hands of a public accountant of the sums necessary for the performance of the work imposed in accordance with the previous paragraph may be demanded under the conditions provided for in LAW above - mentioned PERSON no . CARDINAL of DATE . ”

Subsequently , Law no . CARDINAL of DATE , amending certain provisions of LAW , removed those CARDINAL provisions and replaced them by Articles CARDINAL and CARDINAL as follows :

“ Prospecting and mining work shall comply with the restrictions and obligations pertaining to the health and safety of workers , public health and safety , the essential features of the surrounding environment , whether land or sea , the solidity of public or private edifices , the conservation of communication routes , the mine and other mines , and more generally archaeological interests and the interests enumerated in the provisions of section CARDINAL of LAW of DATE , section CARDINAL of the Law of CARDINAL DATE reorganising the protection of natural monuments and sites of an artistic , historical , scientific , legendary or picturesque nature , LAW no . CARDINAL of DATE concerning the protection of nature , section QUANTITY of LAW ( Law no . CARDINAL ) of DATE , as well as to the agricultural interests attaching to sites and places affected by such work and by mining installations .

When the interests mentioned in the previous paragraph are put at risk by such work , the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time - limit .

In the event of failure to fulfil these obligations by the expiry of the allotted period , the administrative authority shall take the initiative of having the prescribed measures executed , at the expense of the prospector or operator . ”

“ If appropriate , at the end of each segment of work and , at the latest , when the operations are discontinued and the work halted , the prospector or operator shall give notice of the measures that he intends to take in order to protect the interests mentioned in LAW , for the purpose of putting an end , in general terms , to any adverse effects , disorder or disturbances of any kind that may be generated by the said activities and to make provision , if appropriate , for the possible resumption of operations .

In all cases , the prospector or operator shall make an assessment of the effects of the work on the presence , accumulation , emergence , volume , drainage and quality of water of any kind , shall assess the consequences of the discontinuance of the work or of the operations for the situation thus created and for the uses of the water , and shall indicate the remedial measures envisaged .

The declaration shall be made no later than the date of expiry of the mining concession .

Failing that , the administrative authority shall remain empowered after the said date to prescribe the necessary measures .

Having regard to that declaration , and after consulting the municipal councils of the localities concerned and hearing representations from the prospector or operator , the administrative authority shall prescribe , as necessary , any requisite measures taken and conditions of execution that have not been sufficiently indicated or that have been omitted by the declarant ...

Any failure to take the measures provided for in the present article shall result in their execution on the initiative of the authorities , at the expense of the prospector or operator .

Payment into the hands of a public accountant of the sums necessary for that execution may be demanded and , if necessary , collected in the manner of debts other than those related to taxation or ORG property .

When the measures provided for by the present article , or those prescribed by the administrative authority under the present article , have been executed , the administrative authority shall issue the prospector or operator with its formal confirmation .

That formality shall put an end to the supervision of the mines , as provided for in LAW .

However , as regards the activities governed by the present Code , the administrative authority may intervene , in the context of the provisions of LAW , until the expiry of the mining concession . ”

Decree no . CARDINAL - CARDINAL of CARDINAL DATE , issued after consultation of the ORG d'Etat , pertaining to the opening of mines and mining regulations , was adopted for the implementation of those provisions . Article CARDINAL , paragraph CARDINAL , and LAW that decree provide as follows :

“ After arranging for verification of the measures taken by the operator , and if appropriate indicating their compliance or prescribing additional measures , the prefect shall issue formal confirmation , by way of an order ( arrêté ) , of the final discontinuance of the work and the decommissioning of the installations . ”

“ The administrative supervision and the mining regulations shall cease to take effect on DATE that the operator is issued with formal confirmation that the work has been carried out , or when the work executed on the initiative of the authority has been completed .

However , the prefect shall be empowered , except in cases where activities other than those covered by LAW are substituted in the place of the discontinued work or decommissioned installations , to take , in the context of the present part hereof , any measures that may be rendered necessary by incidents or accidents attributable to former mining work , when such events are capable of damaging the interests protected by LAW , until the expiry of the mining concession . ”

LAW no . CARDINAL of DATE pertaining to mining concessions provided as follows :

“ Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining .

They shall be processed , depending on each case , as stipulated in Articles CARDINAL and CARDINAL above .

Acceptance of renunciation shall be subject , if appropriate , to the prior execution of the prescribed regulatory measures . Subject to this proviso , it shall be automatic in the event of total renunciation . Acceptance of renunciation shall be given in an order of the minister responsible for mining . ”

Lastly , under PERSON no . CARDINAL of DATE concerning liability for damage resulting from mining and the prevention of mining - related risks after discontinuance , the presumption of mining liability has been extended in so far as the permanent liability of the former concession - holder is now presumed . The said PERSON further imposes an obligation on the former mine operator to pay an equalising contribution to the financing of public expenses for a period of DATE . Article CARDINAL of LAW now provides as follows :

“ The prospector or operator , or failing that the holder of the mining concession , shall be liable for any damage caused by its activity . It may , however , be released from liability if it can adduce evidence of an external cause . Such liability shall not be confined to the area covered by the mining concession , nor to the term of validity of that concession . In the event of the disappearance or default of the liable party , the ORG shall stand surety for the reparation of the damage mentioned in the first paragraph ; it shall be subrogated to the rights of the victim against the liable party . ”

The relevant domestic law and practice are partly described in GPE v. GPE ( [ ORG ] , no . ORG , ECHR CARDINALVI ) , and the status of members of the administrative courts is dealt with in some detail in DATE of that judgment . The provisions governing their status are laid down in Book CARDINAL of the Administrative Courts Code , LAW of which specifically concerns the ORG d'Etat . Under that LAW , which is headed “ General Provisions ” , provides as follows :

“ The status of members of the ORG d'Etat shall be governed by the present Book , and , in so far as they are not in contradiction therewith , by the provisions governing the civil service . ”

“ No member of the ORG d'Etat shall be entitled , in support of a political activity , to invoke his or her membership of the PERSON d'Etat . ”

“ All members of the ORG d'Etat , whether serving in the PERSON or assigned to external duties , shall avoid expressing views of a political nature that are incompatible with the duty of discretion inherent in their functions . ”

LAW under the same Title is headed “ Appointments ” and codifies the rules concerning the recruitment of members of the ORG d'Etat described in the ORG judgment ( § CARDINAL ) . Articles L. CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL restate that the Vice - President of the ORG d'Etat , the division presidents and the senior members ( conseillers d'Etat , who have to be DATE ) are appointed by a decree adopted in ORG , on the proposal of the Minister of ORG . LAW concerns appointments directly from outside and reads as follows :

“ Direct appointments from outside to positions of senior member ( conseiller d'Etat ) and of maître des requêtes may be made only after the opinion of the Vice - President of the ORG d'Etat has been obtained .

That opinion shall take into account the previous functions performed by the nominee , his or her experience , and the requirements of the institution , as reported on an DATE basis by the Vice - President of the PERSON d'Etat ; the substance of that opinion in respect of appointments made shall be published in ORG at the same time as the notice of appointment .

The opinion of the Vice - President shall be transmitted to the person concerned , at his or her request . ... ”

LAW under the same ORG is headed “ Discipline ” and stipulates in LAW that disciplinary measures are taken by the authority responsible for making appointments upon the proposal of PERSON , after obtaining the opinion of the advisory board . However , warnings and reprimands may be issued , without consulting the advisory board , by the Vice - President of the PERSON d'Etat .

The regulatory provisions concerning the status of members of the ORG d'Etat are to be found in Articles R CARDINAL - CARDINAL et seq . of ORG .

The relevant provisions of LAW concerning the judicial , administrative and legislative functions of the ORG d'Etat read as follows :

“ The PERSON d'Etat is the supreme administrative court . It shall rule independently on appeals on points of law lodged against last - instance decisions by the various administrative courts , and on appeals falling within its first - instance jurisdiction or jurisdiction to hear full appeals . ”

“ The PERSON d'Etat shall participate in the preparation of Acts ( lois ) and PERSON ( ordonnances ) . Draft texts emanating from the Government shall be referred to it by the Prime Minister . The PERSON d'Etat shall give its opinion on draft decrees and on any other draft texts in respect of which its intervention is required by constitutional , legislative or regulatory provisions , or which are submitted to it by the Government . When a draft text is submitted to it , the PERSON d'Etat shall give its opinion and propose any amendments that it may deem necessary . In addition , it shall prepare and draft texts in response to specific requests . ”

“ The PERSON d'Etat may be consulted by the Prime Minister or ministers on any difficulties that may arise in administrative matters . ”

“ The PERSON d'Etat shall be entitled , of its own motion , to draw to the attention of the executive any reforms of a legislative , regulatory or administrative nature that it may deem to be in the public interest . ”

“ The Vice - President of the ORG d'Etat may , at the request of the Prime Minister or a minister , appoint a member of the PERSON d'Etat to carry out a fact - finding mission . The Vice - President may , at the request of ministers , appoint a member of the PERSON d'Etat to assist their officials in drafting specific texts . ”

The relevant provisions of ORG concerning the organisation and functioning of the ORG d'Etat are as follows :

“ The presidency of the ORG d'Etat shall be held by the Vice - President . ORG of the LAW d'Etat may be presided over by the Prime Minister , and , in his absence , by the Minister of ORG . ”

“ The ORG d'Etat shall consist of a ORG and administrative divisions . ”

“ Senior members ( conseillers d'Etat ) in permanent service shall be assigned to an administrative division or to ORG , or simultaneously to an administrative division and ORG , or simultaneously to ORG and another administrative division , or to CARDINAL divisions including ORG and ORG . The deputy presidents and the presidents of sections of the ORG shall be assigned solely to that ORG ; they may however be assigned to ORG . ”

“ The maîtres des requêtes and auditeurs shall be assigned both to an administrative division and to ORG . However , ( a ) the maîtres des requêtes and auditeurs responsible for running the documentation centre may , as appropriate , be assigned only to ORG or only to an administrative division ; ( b ) the maîtres des requêtes and auditeurs who have served for DATE in the PERSON d'Etat shall be assigned only to ORG . ”

“ The assigning of a member of the ORG d'Etat to an administrative division shall entail , in addition to his or her contribution to the work of that division , his or her participation in the performance of the administrative activities referred to LAW , of the present Book . ”

“ The ORG d'Etat shall consist of CARDINAL administrative divisions :

Interior , ORG , ORG , Social , and ORG . ”

“ Cases originating from the various ministries shall be distributed between the first CARDINAL of those divisions in accordance with the provisions of an order of the Prime Minister and of the Minister of ORG .

All cases involving a particular ministry shall be referred to the same division .

However , the examination of certain categories of cases , in particular those concerning the civil service , may be assigned to a specific division , regardless of the ministry from which they originate . ”


Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

After last being seen in the applicant ’s house on DATE , Mr GPE , the applicant ’s acquaintance , disappeared . On several occasions DATE the applicant explained to the police that he was unaware of Mr ORG ’s whereabouts following his departure from the house .

On DATE the police seized from the applicant ’s house a knife and several objects spotted with a brown substance . According to an expert assessment obtained in DATE , these spots were human blood that probably belonged to Mr GPE

On DATE the applicant confessed that he had accidentally killed Mr O.S during a drinking party . He had then dismembered the body , packed it in sacks and disposed of it in LOC . On the same date criminal proceedings were instituted against him on suspicion of murder . The applicant was taken to the river bank to point out the place where he had dumped the sacks . However , no body parts were found .

On DATE the applicant was detained as a criminal suspect .

On DATE the investigator brought formal charges against the applicant for murder .

On DATE the applicant was released after giving an undertaking not to abscond .

On DATE the applicant informed the Town and ORG that he had confessed to having killed Mr GPE under torture . He further submitted that in reality Mr PERSON had apparently been killed by CARDINAL masked robbers , who had broken into his house during the drinking party on DATE and knocked the applicant unconscious . He had kept this story secret fearing reprisals by the robbers .

DATE , on CARDINAL occasions , criminal proceedings against the applicant were suspended for periods ranging from DATE to DATE on account of his ill - health or for unexplained reasons . At the same time , certain investigative actions , such as the examination of witnesses , were carried out during the periods when the investigation was officially suspended .

On DATE the applicant was committed for trial .

DATE the prosecution withdrew the case file from the court on four occasions for the rectification of procedural omissions . On DATE the applicant was committed for trial for the fifth time .

On DATE human bones were retrieved from ORG . On DATE the prosecution withdrew the case file from the court in order to verify whether these bones belonged to Mr GPE

On DATE ORG authorised the applicant to be remanded in custody for DATE .

On DATE ORG , following a hearing held in the presence of the applicant and his lawyer , authorised that pending the outcome of pre - trial investigation the applicant be detained for a maximum period of DATE , on the grounds that there was a serious suspicion that he had committed the offence with which he had been charged and that during the pre - trial proceedings he had changed his place of residence and attempted to influence a witness .

On DATE ORG refused an application for bail lodged by the applicant . On DATE ORG informed the applicant that it was not competent to deal with bail applications while the case was at the investigation stage .

On DATE the case file and a new bill of indictment were sent to ORG .

On DATE the prosecutor withdrew the case for the rectification of omissions . The case was referred back to ORG on DATE .

On DATE ORG scheduled the case for trial proceedings , reviewed the decision to hold the applicant in custody and found no reason to release him . In DATE ORG held CARDINAL hearings .

On DATE ORG decided that further investigations were called for and remitted the case to the prosecution . On DATE the court rejected an application by the applicant for his release on bail and authorised his detention pending the above - mentioned investigations .

NORP The applicant appealed against the decision to extend his detention . On DATE ORG ( PERSON суд PERSON області , hereafter “ the Court of Appeal ” ) found that it was not competent under the law to deal with this appeal .

On DATE the case was referred back to ORG for trial .

DATE ORG scheduled CARDINAL hearings . CARDINAL of them were adjourned on account of the prosecutor ’s failure to appear . CARDINAL was adjourned on account of the failure to appear by the prosecutor and the applicant ’s lawyer .

On DATE ORG ordered the applicant ’s release on bail .

On DATE ORG ordered an additional assessment to be carried out by a genetics expert .

On DATE ORG requested the expert to expedite the assessment .

On DATE the expert assessment was carried out and on DATE the report was delivered to ORG .

On DATE the hearing was adjourned until DATE to summon experts . The experts failed to appear on this date .

On DATE ORG reminded the experts of their obligation to appear at hearings .

On DATE ORG examined CARDINAL experts and a witness and ordered a further assessment by a commission of experts .

On DATE ORG addressed the prosecutor by letter demanding the submission of material evidence for expert assessment . On DATE ORG sent a reminder .

On DATE ORG made enquires of the expert as to the status of the assessment .

On DATE the assessment was carried out .

DATE ORG scheduled CARDINAL hearings . CARDINAL of them were adjourned on account of the prosecutor ’s failure to appear . By letters of CARDINAL DATE and CARDINAL October CARDINAL ORG reminded the prosecutor of his duty to appear for hearings .

On DATE ORG remitted the case for additional investigation . ORG referred , in particular , to the failure of the prosecution to carry out a comprehensive inquiry into the applicant ’s allegation that he had confessed to the killing of Mr ORG under duress .

On DATE the ORG quashed this decision , having found that the shortcomings of the investigation of the murder were such that they could be addressed at the trial stage by examination of witnesses and other evidence in court .

On DATE ORG remitted the case for additional investigation , referring to numerous procedural shortcomings in the carrying out of the investigation , the handling of evidence and the drafting of procedural documents . The court noted , in particular , that the investigation had been suspended on several occasions for no reason or in connection with the applicant ’s ill - health , despite the fact that there was no relevant medical documentation attached . Furthermore , during these periods the authorities continued with their investigations .

According to the case file materials , the proceedings are currently pending .

According to the applicant , on DATE he visited public baths with GPE GPE and GPE , his relatives .

Shortly after TIME , immediately after he had returned home , the applicant was seized by CARDINAL police officers and taken to ORG ( ORG міськрайонний відділ УМВС України в PERSON області , hereafter “ the Police Department ” ) . There the police officers beat him with their fists and truncheons and stamped on his feet , demanding that he confess to the killing of PERSON O.S. At QUANTITY on DATE the applicant , completely exhausted , fell unconscious and was placed in a police cell for temporary detainees .

Shortly after TIME an ambulance arrived . The applicant complained about pain in the heart and a headache and was administered treatment for low blood pressure . The applicant was further detained .

On DATE investigator PERSON proposed that the applicant sign an acknowledgement that he had been properly arrested on DATE for swearing in public and that he had no claims against the police . The applicant agreed , allegedly hoping that his suffering would end .

On DATE the applicant was brought before ORG , which sentenced him to CARDINAL days’ administrative arrest ( адміністративний арешт ) in ORG ( ORG тимчасового тримання , hereafter “ the ORG ” ) for petty hooliganism on DATE .

According to the applicant , DATE he was taken to ORG , beaten , threatened and urged to confess to the killing . On DATE the applicant told the police that Mr ORG had apparently been killed by CARDINAL masked robbers . However , the officers continued to demand that the applicant confess that PERSON PERSON had been killed by him . As DATE of the applicant ’s detention approached , the pressure was intensified . On DATE the applicant pleaded guilty to the murder of Mr GPE

On TIME applicant was formally released . However , the police in fact continued to keep him in some vacant offices in ORG , until on DATE he was officially detained as a criminal suspect .

DATE . On DATE the applicant underwent an assessment by a medical expert of ORG ( GPE бюро судово-медичних експертиз ) . The examination revealed CARDINAL large bruises ( QUANTITY each ) in the applicant ’s groin area , on his thighs and shoulders . The expert concluded that these bruises could have resulted from a beating as well as from a fall . He further found it impossible to determine the probable date on which the bruises had been sustained , as they could remain on the body for CARDINAL and a half months .

On DATE the applicant was admitted to hospital on account of stress - associated asthenia ( a personality disorder , characterised , in particular , by insomnia , anxiety , headache and bodily weakness ) . On DATE the applicant returned home .

On DATE a commission of experts analysed the medical documents relating to the applicant ’s injuries . It confirmed the earlier findings by the single expert and noted that , regard being had to the number of bruises and their diverse localisation ; they were unlikely to result from a single fall .

On DATE the applicant lodged a criminal complaint against police officers for ill - treatment . The complaint was addressed to GPE and Sumy Regional Prosecutors .

On DATE , on the basis of the statements of CARDINAL police officers denying subjecting the applicant to any ill - treatment and the fact that during his questioning as a suspect on DATE the applicant had not complained of any police violence , no prima facie case of ill - treatment was found and the inquiry into the applicant ’s complaint was discontinued .

On DATE the applicant was given access to the above decision . On DATE he challenged it before ORG .

On DATE ORG quashed the decision of CARDINAL DATE , finding that further inquiries were called for . It noted , in particular , that the police officers had been questioned before the formal commencement of the inquiry . Moreover , the investigator had failed to question persons listed in the applicant ’s complaint who could allegedly confirm the applicant ’s ill - treatment ; to examine the circumstances of the applicant ’s stay at ORG before his official arrest ; or to determine how the applicant had sustained his injuries .

On DATE the investigator decided that there was no prima facie case of ill - treatment .

On DATE ORG quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in its decision of DATE .

In the course of the additional inquiry , ORG questioned the officers who had called the ambulance for the applicant on DATE , who could not recall any details ; the members of the voluntary ORG guard , who confirmed having arrested the applicant at TIME ; the ambulance doctor , who stated that she had not examined the applicant ’s body on account of injuries ; and the medical expert , who confirmed the findings of his assessment of CARDINAL DATE . On CARDINAL DATE on the basis of this evidence and on the grounds set out in the decision of CARDINAL DATE , a fresh decision was taken not to initiate any criminal proceedings .

On DATE this decision was quashed by ORG . The court found that the inquiries had been conducted in a perfunctory manner . It instructed the investigating authorities , in particular , to question the persons who had seen the applicant on DATE at the public baths ; the persons who had shared the cell with the applicant in ORG ; and the applicant ’s neighbours .

On DATE it was decided not to institute criminal proceedings with reference to essentially the same grounds as before .

On DATE ORG found that the prosecution had failed to comply with its earlier instructions . Referring to the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , the court noted that the prosecution had a duty to determine whether the applicant had sustained injuries resulting from his treatment by the police .

ORG appealed against the court ’s decision .

On DATE ORG rejected the prosecution ’s appeal and upheld the decision of CARDINAL October DATE .

On DATE , DATE , CARDINAL May , CARDINAL DATE and DATE ORG again refused to institute criminal proceedings .

On DATE , DATE , DATE , DATE and DATE respectively ORG quashed these decisions referring to the cursory analysis of various sources of evidence and the failure of the investigation to establish a probable cause of the applicant ’s injuries .

On DATE a new decision not to institute criminal proceedings was taken . It was based on essentially the same evidence as before . Additionally , the investigator also explained why , in his opinion , further measures demanded by the court were either unavailable or irrelevant . For instance , it was no longer possible to find the objects with which the applicant could have purportedly been beaten .

On DATE ORG quashed this decision .

DATE . By its subsequent decisions dated CARDINAL DATE and CARDINAL DATE the ORG further refused to institute criminal proceedings .

These decisions were annulled by ORG on DATE ( upheld on appeal on DATE ) and DATE ( upheld on DATE ) , respectively .

On DATE the Prosecutors’ Office yet again refused to institute criminal proceedings . In addition to the reasons recited earlier , this decision referred , in particular , to the testimonies of GPE GPE and GPE who stated that they had seen no injuries on the applicant ’s body in the public baths . The prosecution found this evidence unreliable , since the witnesses were related to the applicant . Moreover , according to the attendant at the baths , she did not remember ever having seen the applicant in the public baths . As regards the testimonies by the applicant ’s neighbours , they clearly recalled seeing him back at home on DATE . Their recollections concerning his presence at home DATE were blurred .

The DATE Office further stated that according to ORG visits journal , the applicant had entered ORG at TIME on DATE . The journal contained no record of his subsequent departure , apparently as a result of the fact that the door guard forgot to make the relevant entry . On that date the applicant was questioned by investigator PERSON O.S. ’s disappearance . After the questioning , the applicant felt ill and was offered to stay in a police cell to recuperate . On DATE at TIME an ambulance arrived to treat the applicant for blood - pressure complaints . Subsequently he felt better and left the cell by CARDINAL a.m. on DATE . At QUANTITY on DATE members of the voluntary ORG guard ( GPE « Громадський правопорядок ORG ) spotted the applicant who , apparently under the influence of alcohol , was swearing in a public street . As the applicant refused to cease his disorderly conduct in response to their demands , the guards took him to ORG . A report of an administrative offence was drafted and the applicant was detained in the ORG . According to applicable regulations , the staff of the ORG should have organised a medical examination of the applicant to detect any injuries or sickness before placing him in the ORG . No injuries were recorded on his body . However , since the applicant lodged no health - related complaints , the examination could have been cursory . In this connection it was not possible to rule out that the applicant ’s bruises could have been sustained by DATE on DATE , shortly before he had been taken to the police , as at the time he was apparently under the influence of alcohol . At the same time , the applicant ’s alcohol level was not checked , as he was not charged with being drunk in a public place . CARDINAL March CARDINAL the applicant was DATE checked out from his cell by officer PERSON for TIME at a time . These check - outs were for the purposes of the applicant ’s engagement in community service or for discussions on public morale . On DATE the applicant voluntarily confessed to having killed Mr GPE DATE at TIME the applicant was released .

On DATE ORG quashed this decision , referring to the fact that the investigation had still failed to comply with all its instructions and in order to determine whether the ORG was responsible for the applicant ’s injuries .

On CARDINAL occasions in the course of the investigation ( in DATE , DATE and DATE ORG also separately addressed ORG instructing it to take measures in respect of the continued non - execution of the court ’s instructions by the investigating authorities . Referring to the cases of PERSON v. GPE ( cited above ) and PERSON v. GPE , ( no . CARDINAL , DATE ) the court found that the criminal inquiry conducted had not been sufficiently thorough .

On DATE ORG of Appeal quashed the decision of DATE and remitted the case for fresh consideration in first instance . According to the case - file materials , the proceedings are currently pending .

From DATE to CARDINAL DATE the applicant was remanded in custody . During certain periods the applicant was held in ORG ( PERSON слідчий ізолятор , hereafter “ the Sumy SIZO ” ) . These periods were as follows : CARDINAL DATE to DATE ; CARDINAL to DATE ; CARDINAL to DATE , DATE to CARDINAL DATE ; CARDINAL to DATE ; CARDINAL to DATE ; DATE to DATE and DATE to CARDINAL DATE . The remainder of the time the applicant was held in GPE .

DATE . In DATE the authorities were informed that he suffered from several chronic conditions , in particular , osteochondrosis , secondary radicular syndrome , myopia , cerebral atherosclerosis , hypertension and adenoma of the prostate .

According to the applicant , being in detention had negative effects on his health . In particular , he began suffering from an asthmatic complaint as a consequence of being exposed to passive smoking in the cell . Furthermore , good quality medical assistance was not always readily available to him , even though he was suffering from numerous chronic conditions . Finally , medications were frequently supplied to the applicant by his sister , as the detention facility lacked them . Sometimes his sister was not informed in good time that further medications were needed .

In DATE the applicant consulted a doctor and was treated for allergic dermatitis .

In DATE the applicant consulted a doctor and was treated for cystitis .

On CARDINAL occasions throughout the period of his detention the applicant was tested for tuberculosis and other infections .

After his release and until DATE the applicant was treated in hospital twice : DATE for dermophitia and CARDINAL and DATE for adenoma .

Relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) .


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

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

The applicant entered GPE on DATE . He applied for a permanent residence permit , based on his marriage to a NORP national , on DATE .

In support of his application the applicant stated , inter alia , that he had met his wife in DATE , at which time he had been living with his family in GPE , GPE and working as a machine operator at a pharmaceutical factory . After a period of time he had moved in with her and the couple had subsequently married at ORG in GPE on DATE . His family had accepted the relationship and permission to marry had been sought from his uncle , who was living in GPE and who had become the head of the family after the death , in DATE , of the applicant ’s father . His grandfather had been a “ tribal chief ” . His father had been educated and the family had been living in town . His mother was residing in GPE and he had CARDINAL brothers and sisters , CARDINAL of whom were living in GPE .

Interviewed together with the applicant , his wife stated , inter alia , that she had been working as a teacher in GPE since DATE and that before she met the applicant she had been acquainted with his sisters and the family . The applicant ’s father had apparently been a highly respected man and she had noticed that people recognised the family when their name was mentioned . All the applicant ’s siblings had received an education , all but CARDINAL of them probably as teachers . The family also had a family business that dealt in gems . In DATE the applicant had left his job at the pharmaceutical factory as it caused him to experience allergic reactions . He had thereafter not had any other employment but had assisted his mother who was building a house .

On DATE the applicant was given a temporary residence permit in GPE which was subsequently extended until DATE . On CARDINAL DATE the applicant ’s wife gave birth to the couple ’s first child .

In DATE the couple left for GPE , where they remained until DATE . While the applicant ’s wife returned to GPE in DATE , the applicant re - entered GPE on DATE . On DATE the couple ’s second child was born . The applicant was granted a permanent residence permit in GPE on DATE .

As a result of tests performed in connection with her pregnancy , the applicant ’s wife in DATE learned that she was infected with the HIV virus . A test was subsequently performed also on the applicant which showed that he too carried the infection . The applicant was in this context , and subsequently on repeated occasions , informed of his obligations as a carrier of an infectious disease to refrain from conduct that could cause any further spreading of the disease . According to the evidence subsequently given by the applicant ’s ( then former ) wife at his trial , both she and the applicant were very well aware of the precautions they were obliged to observe , both with respect to each other and with respect to other persons who did not carry the infection .

In DATE the applicant and his wife separated and the applicant moved out of the family home in the province of GPE and settled in GPE . The couple was divorced in DATE .

On DATE ORG ( tingsrätten ) of GPE found the applicant guilty of making unlawful threats and of carrying knives in a public place . He was given a conditional sentence and ordered to pay a fine . No appeal was made against the judgment .

In DATE reports were made to the unit for prevention of infectious diseases at the GPE hospital in GPE that the applicant was engaging in sexual contacts without disclosing to his partners that he was HIV positive . As a result , he was in DATE subjected to compulsory isolation pursuant to LAW , DATE ) . Following police investigation he was subsequently charged with having had unprotected sexual intercourse with CARDINAL different women without disclosing to them that he carried the HIV virus , thereby transmitting the infection to CARDINAL of them .

During the preliminary investigation , the applicant provided further information on his family background and the circumstances surrounding his life in GPE . He stated , inter alia , that he grew up with his mother and stepfather in his home village . He first went to a primary school close to the village and later attended a catholic high school in GPE . He had CARDINAL full brothers and sisters and CARDINAL siblings on his father ’s side .

By a judgment of DATE ORG found the applicant guilty of CARDINAL counts of aggravated assault and CARDINAL count of attempted aggravated assault and sentenced him to CARDINAL years’ imprisonment .

Upon the applicant ’s and the prosecutor ’s appeal , ORG ( PERSON hovrätt ) , on DATE , upheld the applicant ’s conviction and sentence . Whilst not finding any evidence to show that the applicant had deliberately sought to transmit the virus to the victims , the court observed that he on repeated occasions had been informed of the special risk of transmitting the disease during unprotected sexual intercourse and that he accordingly had been well aware of that risk . Yet , the material before the court showed that he had not informed any of the CARDINAL victims of his condition . With respect to CARDINAL of the victims the unprotected sexual contacts had occurred on repeated occasions and in the remaining case on a single occasion when the victim was asleep and despite the fact that she at all previous times had insisted that the applicant should use a condom throughout the intercourse . Considering that the applicant had acted with exceptional ruthlessness and indifference towards his victims , the court concluded that that he would not have refrained from having sexual intercourse with them even if he had known that the disease would be transmitted . The applicant had accordingly shown the requisite mens rea under the applicable principles of NORP criminal law to be held criminally liable for having committed the crimes with intent .

ORG further ordered the applicant ’s expulsion from GPE . Having found that the crimes for which he had been convicted justified a DATE prison sentence , the court had regard to the inconvenience caused by his expulsion and consequently fixed the sentence at DATE imprisonment . In regard to the expulsion , the court made , inter alia , the following observations . The applicant ’s only connection to GPE was the fact that his former wife and their CARDINAL children were residing in the country . He had no other link to the country ; he had not learned the NORP language or established himself on the NORP labour market and did not appear to have undergone any continuous prescribed treatment for his HIV infection in GPE . In regard to the applicant ’s contacts with his children , evidence given by his former wife revealed that he had been seeing them CARDINAL times per year and that he had otherwise only had contact with them by telephone . The former wife had maintained , particularly out of concern for the children , certain contacts with the applicant ’s relatives in GPE . There were thus contacts by letter and telephone between the children and the relatives . The court further found that the applicant had not been continuously residing in GPE for such a period of time that exceptional reasons were required for his expulsion . However , even if he were to be considered as having resided in GPE for such a continuous period , the court considered that , in view of the very serious nature of the offences and the applicant ’s unsettled conditions in the country , there were sufficiently strong reasons to expel him from GPE with a lifelong ban on his return . In this context , the court noted that the children ’s established contact with relatives in GPE would probably mean that the expulsion would not cause the contact between the applicant and his children to be severed . The court also stated that there was probably a significant risk that the applicant would relapse into the same type of criminal behaviour and that this factor strongly militated in favour of expulsion .

The applicant appealed to ORG ( ORG domstolen ) . He submitted a statement of DATE by Mr PERSON , a psychologist at ORG ( Barn- och ungdomspsykiatriska mottagningen ) in GPE , according to which the applicant ’s former wife and their CARDINAL children had visited the clinic on QUANTITY occasions during DATE . Mr PERSON stated that the children had a strong emotional relationship to their father and that their need of continuous contact with him could not realistically be maintained should he be expelled to GPE .

By a decision of DATE ORG refused the applicant leave to appeal against ORG judgment .

During the applicant ’s time in prison , CARDINAL petitions have been made to the Government for a revocation of the expulsion order . They were rejected by decisions of DATE , DATE , DATE ( CARDINAL petitions ) and DATE respectively .

In support of his requests for a revocation , the applicant submitted several statements . In a medical certificate of DATE , PERSON , chief physician at the HIV unit at ORG hospital and the physician responsible for the applicant ’s treatment during DATE , stated that the applicant had undergone anti - retroviral treatment , albeit irregularly , DATE and DATE , and had thereafter not been under treatment until DATE when DATE viral levels in his blood being very high and his immune system being severely weakened and “ at the level where AIDS complications usually appear ” – he had resumed his medication . The resumed treatment had been successful to the point where the HIV levels in the applicant ’s blood were no longer detectable . According to PERSON , his chances of receiving life - sustaining HIV treatment in GPE were very slim . Moreover , experience showed that the interruption of treatment of a patient like the applicant would lead to a relatively rapid deterioration of the immune system leading to the development of AIDS within DATE and death within DATE . In a further certificate of DATE PERSON reiterated his previous statements and added that the applicant ’s understanding and acceptance of his disease had improved and that the risk of his relapsing into his previous behaviour had to be considered as extremely small .

In a statement , dated DATE , PERSON , a counsellor ( kurator ) at the HIV ward at the same hospital , stated that she had met the applicant regularly since DATE , during which time he had shown an increased understanding of his illness , his previous actions and his prevailing situation . PERSON concluded that there was no great risk that the applicant would relapse into his previous hazardous behaviour , as the root causes of that behaviour – fear that his illness would become known to other people , depression and alcohol abuse – had been removed .

In submissions of CARDINAL DATE Mr PERSON , ombudsman at ORG for HIV - positive People ( Riksförbundet för hivpositiva ; RFHP ) , stated that the applicant had expressed anxieties about his impending expulsion , partly because of the lack of adequate treatment in GPE and partly because of the risk of his contact with his children being severed . The applicant had also mentioned that CARDINAL of his brothers had recently died from AIDS and that a sister was seriously ill due to an HIV infection .

In a report of CARDINAL DATE ORG ( Kriminalvården ) stated that , after initially having been in a bad state , both mentally and physically , at the prison where he was serving his sentence , the applicant ’s situation had improved considerably . He was open and understanding about his illness and received continuous medical treatment . He also received regular visits once a month from his children , accompanied by his former wife , a contact which was very important both to him and the children .

In submissions of CARDINAL , CARDINAL and CARDINAL DATE , respectively , a friend of the applicant ’s former wife , her psychiatric counsellor and her brother attested to the close relationship between the applicant and his children and the fact that they had met regularly at the prison .

In a letter of CARDINAL DATE the applicant ’s former wife described her and the children ’s relationship to the applicant . She explained that since it had been easier for her to integrate on the labour market , the applicant had stayed at home with the children . Even after the separation and the applicant ’s move to GPE , they had remained in close contact , seeing each other as often as their financial situation permitted . They had ensured that the children spoke NORP ; the older child spoke NORP with the applicant whereas the younger child preferred NORP . During the applicant ’s serving of his sentence , they had visited him as often as possible , altogether on CARDINAL occasions . She further claimed that she could not afford regular visits to the applicant if he were to be expelled to GPE .

In his latest application for a revocation of the expulsion order , submitted to the Government during DATE , the applicant maintained that , as from DATE , he had a new relationship with a NORP woman and that there was no risk that he upon release would relapse into the same type of criminal behaviour . The new relationship had apparently been established in DATE through the exchange of letters . The couple met for the first time in the prison in DATE and the woman had subsequently visited the applicant DATE . She had a metabolic disturbance and was consequently considerably overweight .

On DATE , following the ORG ’s indication , under LAW , that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE until further notice , the Minister of Justice decided to stay the enforcement of the expulsion order . The Minister further decided that the applicant upon his release from prison on the following day was to be taken into custody pursuant to chapter CARDINAL , sections CARDINAL and CARDINAL of LAW ( Utlänningslagen , CARDINAL ) on the ground that there was reason to believe that he would abscond .

On DATE the applicant was released on probation . He remains in detention .

In a report to the Government of DATE ORG in GPE , after consulting with medical doctors with experience of HIV / AIDS treatment at the NORP clinic in GPE , the head of ORG in GPE and CARDINAL of the latter ’s colleagues from other parts of the country , provided the following information . Both HIV treatment , in the form of anti - retroviral therapy , and medical care for persons suffering from an HIV infection or developed AIDS were available in GPE for those who could afford it . Anti - retroviral therapy and medical attention could be obtained in GPE and probably also in GPE in the north of the country . The physicians with whom the ORG had been in contact could not with certainty say that anti - retroviral therapy could be obtained in other parts of the country . So - called “ LOC ” , a test to establish the number of certain white blood cells , was available at CARDINAL hospitals in GPE and in all probability also at a medical centre in GPE in the north . Various types of antibiotics were available throughout GPE , also the most modern types suitable for persons suffering from allergy to penicillin . The cost of anti - retroviral therapy lay CARDINAL NORP shillings per month , to be compared with the minimum wage of a ORG employee which was MONEY ( MONEY approximately corresponded to QUANTITY ) . The cost of antibiotics and the treatment of different types of opportunistic diseases varied and was difficult to estimate but lay above MONEY per month . The cost of “ CDCARDINAL-count ” in GPE was MONEY .

Pursuant to chapter CARDINAL , section CARDINAL of LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .

Provisions on expulsion on this ground are laid down in LAW . According to chapter DATE , section QUANTITY , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . Firstly , he must be convicted of a crime that is punishable by imprisonment . Secondly , he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he will continue his criminal activities in GPE or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he ought not to be allowed to remain in the country .

Furthermore , under chapter CARDINAL , section QUANTITY , when considering whether or not an alien should be expelled , the court shall take into account his links to NORP society . As regards aliens who are considered to be refugees , special rules apply . Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to chapter CARDINAL , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .