The applicant was born in DATE and lives in GPE .

The applicant worked as a sheet - iron worker . He had graduated from secondary school and had received training in technical design . He had also taken a course in management with the intention of carrying on his father 's sheet - iron business . On DATE he was involved in an accident at his place of work . He sustained injuries to his legs and heels . After the accident he commenced business studies at a university in DATE .

An insurance company granted the applicant an allowance for PERCENT reduction of his working capacity for the period from DATE to DATE . The same insurance company also granted the applicant an industrial injury pension for the period from DATE to CARDINAL DATE .

On DATE the insurance company gave CARDINAL decisions regarding the applicant 's further insurance claims . It granted the applicant an allowance for DATE for studies which would upgrade his skills in technical design . He was also granted funding for DATE support training for finding a job .

The insurance company also granted the applicant inconvenience compensation ( haittaraha , menersättning ; ” compensation ” ) and found that the injuries sustained to the applicant 's right leg and heel corresponded to the category CARDINAL disability ( haittaluokka , invaliditetsklass ; ” category ” ; see paragraph CARDINAL below ) .

NORP The applicant appealed to ORG ( tapaturmalautakunta , olycksfallsnämnden ) about the said decisions . He requested , inter alia , that his compensation be graded at category CARDINAL ( instead of CARDINAL ) . For this purpose , he submitted CARDINAL medical opinions written by his doctors , PERSON , in which the applicant 's injuries were assessed as being comparable to category CARDINAL or CARDINAL injuries .

The applicant requested an oral hearing in order to present evidence in support of his view on how his injuries should be graded . In particular , the applicant wanted PERSON to be heard concerning the facts on which they based their estimation of the injuries . The applicant also wanted to give an oral statement about the handicaps in his everyday life due to his injuries .

ORG requested further written arguments from the insurance company , which objected to an oral hearing . ORG then requested the applicant to present his written observations on the insurance company 's arguments . The applicant submitted further arguments in support of his view on the grading of his injuries .

On DATE ORG rejected the applicant 's claim and his request for an oral hearing , reasoning that the proceedings before it were usually written . It noted that PERSON had already submitted their written statements to ORG and , thus , there was no need for an oral hearing .

The applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) , again claiming a higher ( category CARDINAL ) grading of his injuries . He also requested an oral hearing , repeating his wish to have Drs H. and A. heard as witnesses concerning his disability in movement and standing in order to assess the disability category to which he was entitled . He requested that the latter question be examined from the wider perspective of the condition of the “ lower extremities as a whole ” and not from the more restricted perspective of the injuries to his heels and ankles .

ORG received further observations from the parties regarding their demands and a new medical opinion . On DATE ORG upheld the decision of ORG and rejected the applicant 's request for an oral hearing , reasoning that the procedure in ORG was as a general rule written and that an oral hearing in the present case was unnecessary . It found that given the medical opinions submitted , the applicant 's entitlement to compensation had to be based on the evaluation of the injuries sustained to his heels and ankles , in which assessment it was satisfied with the written medical evidence . ORG maintained that the various medical reports at its disposal were sufficient evidence without the need to have them confirmed under oath . It further noted that the hearing of the applicant in person was not necessary as the decisive factor in the decision - making was the medical reports .

There was no appeal against the decision of ORG .

The procedure in ORG and ORG is governed by ORG ( hallintolainkäyttölaki , förvaltningsprocesslag ; Act no . ORG ) , which entered into force on DATE . Section CARDINAL of the Insurance Court Act ( laki vakuutusoikeudesta , lag on försäkringsdomstolen ; Act no . CARDINAL/CARDINAL , as amended by the Act no . CARDINAL ) , as in force at the relevant time , provided that LAW was to be applied when examining a matter in the ORG unless otherwise stipulated .

On DATE the new LAW ( vakuutusoikeuslaki , lag om försäkringsdomstolen ; Act no . CARDINAL/CARDINAL ) entered into force . Under LAW of the Act the Insurance Court shall hold an oral hearing as provided in LAW .

NORP Under LAW of ORG an oral hearing , in which witnesses and experts may be heard and other evidence obtained , shall be held when necessary for establishing the facts of the case . Under LAW an oral hearing must be held if requested by a private party . An oral hearing may however be dispensed with if the application is dismissed without considering its merits or if an oral hearing would be manifestly unnecessary in view of the nature of the matter or for another reason .

Section CARDINAL of the Insurance Court Act , as in force at the relevant time , provided that a medical doctor participated in the decision - making in ORG in cases where a medical assessment was deemed necessary .

Section CARDINALa , paragraph CARDINAL of LAW ( tapaturmavakuutuslaki , lag om olycksfallsförsäkring ; Act no . CARDINAL/CARDINAL as amended by Act no . CARDINAL/CARDINAL ) provides that inconvenience compensation shall be paid to an employee who , inter alia , has suffered permanent injuries as a result of an accident .

NORP The grading of injuries is based on the decision of ORG and Health ( sosiaali- ja terveysministeriö , social- och hälsovårdsministeriet ; decision No . CARDINAL.CARDINAL.CARDINAL/CARDINAL ; “ ORG 's decision ” ) , according to which injuries and disabilities are divided into CARDINAL disability categories . The applicable category is determined by choosing an equivalent or comparable injury on the scale of injuries . For example , an amputation of instep bones corresponds to category CARDINAL and an amputation of an ankle or QUANTITY corresponds to category DATE . In cases where the above scale of specific injuries can not be applied , a more general title , for example “ the lower extremities as a whole ” , may be used . In such a case , minor insufficiency in movement corresponds to category CARDINAL and medium insufficiency category CARDINAL .

The quality and extent of the injuries are taken into consideration in the assessment . On the other hand , personal circumstances , such as a profession , are not material . The injured person 's abilities are compared with the abilities of a healthy person of the same age .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

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

On DATE the applicant was involved in a car accident as a result of which CARDINAL person died . Subsequently , the prosecution service opened an investigation in the case .

On DATE the prosecution service discontinued the investigation . Subsequently , an auxiliary prosecutor appealed and the investigation was resumed .

On DATE the applicant was charged with manslaughter . It appears that the applicant had by then left the country and was not notified of the decision .

On DATE the applicant was indicted before ORG .

On DATE the trial court decided to stay the proceedings on the grounds that the applicant ’s address could not be established as he had left the country .

On DATE ORG issued an arrest warrant against the applicant . On DATE the applicant was arrested by the police while crossing the NORP border .

On DATE the trial court resumed the proceedings and held a hearing . Subsequently , ORG held hearings on DATE and DATE and DATE and DATE .

In DATE the court held hearings on DATE , DATE , CARDINAL DATE and CARDINAL DATE .

On DATE ORG gave judgment . The trial court acquitted the applicant .

On DATE ORG ( PERSON ) examined the appeal lodged by the auxiliary prosecutor . The appellate court quashed the judgment and remitted the case .

On DATE ORG held a hearing . In DATE the trial court held CARDINAL hearing on DATE and ordered that an expert opinion be prepared .

On DATE the next hearing was held . At the hearing on DATE the applicant pleaded guilty . On DATE ORG found the applicant guilty and sentenced him to a suspended prison sentence . The judgment is final .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

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

The applicant was born in DATE and lived until his arrest in the town of LOC in LOC . He is now serving his sentence in a correctional colony in GPE .

On DATE , at TIME , police officers of ORG in GPE stopped the applicant and his friend , PERSON , in a street and took them to the LOC police station .

The applicant provided the following description of the subsequent events . He was placed in office no . CARDINAL where QUANTITY police officers , NORP , A. , NORP , PERSON and PERSON . severely beat him up . PERSON was left in a hall , near office no . DATE , and heard him screaming . She saw the applicant , covered with injuries and barely walking , TIME . On DATE , unable to bear the beatings , the applicant wrote a statement , prompted by the police officers , in which he confessed to having committed a robbery . He was released on the following day under his own recognisance not to leave the town .

On DATE the applicant attended ORG where he was examined . The examining doctor recorded the following injuries on the applicant ’s body : injuries to the kidneys , injuries and bruises on the upper extremities , buttocks and left shank and an injury to the soft tissue of the head . Treatment was recommended .

On DATE the applicant lodged a complaint with ORG , seeking institution of criminal proceedings against the police officers who had ill - treated him on DATE .

DATE the NORP Town prosecutor ’s office remitted the applicant ’s complaint to ORG with a request to conduct an official inquiry into the events of DATE .

On DATE the head of the ORG issued a decision , approving the findings of the official police inquiry into the applicant ’s complaints . The decision read as follows :

“ On DATE the police department received [ the applicant ’s ] complaint from the town prosecutor ’s office ; [ in that complaint the applicant ] indicates that the police officers of the district police station applied psychological and physical pressure to him and his acquaintance , PERSON , in order to extract a confession statement .

According to [ the applicant ] , on DATE , at TIME , he and PERSON were arrested by a police officer , NORP , and taken to ORG , where in office no . CARDINAL , [ officer ] NORP , having handcuffed [ the applicant ] to the chair back , beat him with a shovel handle .

[ The applicant ] indicated that on a number of occasions , in the police station CARDINAL DATE , the police officers PERSON , NORP , PERSON and PERSON . had taken him from a detention unit to the service garage , where [ they ] had beaten him up , had buried him naked in the snow , had threatened him and his girlfriend with violence , [ and ] had applied psychological pressure .

PERSON explained that after [ she had been ] taken to the police station , she had been near office no . CARDINAL for TIME and had heard [ the applicant ] screaming . After [ the officer ] NORP had questioned her , she was placed in a detention unit where she remained until TIME on DATE . PERSON also asserts that psychological pressure was applied to her .

The police officer , NORP , stated that on the basis of information received pertaining to an armed robbery , on DATE , at TIME , he had arrested [ the applicant ] . As the latter had attempted to hide on the LOC of a psychiatric hospital and a [ hospital ] staff member had called [ the police ] , [ the applicant ] was taken to the police station in a police car . On DATE criminal case no . DATE was opened pursuant to LAW in respect of the robbery .

[ The officer ] NORP also explained that PERSON had voluntarily gone to the police station . NORP had a talk with her ( not an [ official interrogation ] ) as she had close ties to [ the applicant ] and could have certain information . PERSON was not detained in the detention unit .

A police officer working with arrestees , Mr Se . , stated in his explanation note , that PERSON had been registered by housing maintenance authorities ( registration no . DATE ) and , on an order from [ officer ] NORP , [ he ] had verified information about her in the address inquiry office . However , she had not been placed in the detention unit .

All the police officers , who were named in [ the applicant ’s ] complaint and statements , save for PERSON who had been on DATE leave since DATE , firmly deny that physical force , threats or psychological pressure were applied to [ the applicant ] .

However , taking into account that on DATE [ the applicant ] applied to ORG ( certificate no . DATE ) , which recorded injuries , [ and having regard to ] discrepancies between statements of individuals and police officers , it is necessary to perform certain investigative actions to establish the truth , which is impossible to do within the limits of the official inquiry and is within the competence of the prosecution authorities . ”

On DATE the applicant was re - arrested and placed in a temporary detention ward .

DATE an assistant of ORG , having examined the medical certificate of DATE and the conclusions of the official police inquiry , dismissed the applicant ’s request for institution of criminal proceedings against the police officers because “ there was no objective data ” confirming the applicant ’s allegations .

On DATE the applicant underwent a chest X - ray examination . As is apparent from a medical certificate issued by a prison doctor on CARDINAL DATE , the X - ray showed that the applicant had a fracture in the front part of the ninth rib in the consolidation phase .

Relying on medical evidence in support of the applicant ’s allegations of ill - treatment , the applicant ’s father complained to the NORP Town Prosecutor about the assistant prosecutor ’s decision of DATE . On DATE ORG quashed the decision of DATE , pointing to the incompleteness of and defects in the assistant prosecutor ’s decision , and authorised an additional inquiry .

On DATE an assistant of ORG , once again relying on the police ORG denials of the use of force , refused to institute criminal proceedings against them . The relevant part of the decision reads as follows :

“ On DATE , in the trauma unit , [ the applicant ] was diagnosed with several injuries ; however , in the course of the inquiry it has been impossible to establish the time and mechanism of their appearance without a forensic medical examination . The circumstances of [ the applicant ’s ] beatings as indicated by him were not corroborated by any objective data . The police officers ... interrogated in the course [ of the inquiry ] strongly object to [ the applicant ’s ] arguments concerning the application of unlawful investigation methods ... ”

On DATE the ORG sent a letter to the applicant ’s father informing him that his complaints had been examined and had been dismissed by a decision of DATE . ORG also informed the applicant ’s father that he had no standing in the proceedings pertaining to the alleged beatings of the applicant and that , therefore , he had no right to appeal against the decision of DATE .

On DATE the Prokopyevsk Town Prosecutor sent a letter to the applicant , notifying him of the decision of DATE . The ORG added that the decision of DATE had been lawful and that there were no grounds to annul it . As shown by the postmark , the letter was served on the applicant on DATE .

In the meantime , on DATE , ORG found the applicant guilty of aggravated theft , fraud and robbery and sentenced him to DATE and CARDINAL months’ imprisonment . ORG based the conviction on the applicant ’s partial confession given in open court , statements by the victims and witnesses , including PERSON , a record of a search in the applicant ’s flat showing that the GPE belongings had been found and seized , records of identification parades and other material evidence . The applicant ’s confession which he had given on DATE did not serve as the basis of his conviction . ORG examined the applicant ’s allegations of police brutality . It noted that the prosecution authorities had conducted an inquiry into the applicant ’s complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven .

NORP The applicant and his lawyer appealed , arguing , inter alia , that ORG had not examined his ill - treatment complaints thoroughly and that it had disregarded the medical evidence supporting the applicant ’s version of events .

On DATE ORG upheld the applicant ’s conviction , endorsing the reasons given by ORG .

According to the Government , on DATE the case file pertaining to the inquiry into the applicant ’s ill - treatment complaints was destroyed due to the archiving time - limit .

On DATE a deputy prosecutor of the Kemerovo Region instituted criminal proceedings against the police officers who , according to the applicant , had tortured him in DATE .

On DATE an investigator of the ORG office closed the criminal proceedings , finding that there was no prima facie case of ill - treatment . The investigator based his decision on statements by the applicant and PERSON , who had confirmed their allegations of police brutality , and statements by a number of police officers , investigators and a judge who had come into contact with the applicant in DATE . Due to the remoteness of the events in question the interrogated officials could not recall certain details of the applicant ’s arrest and his subsequent detention in the police station or even if they had seen or talked to the applicant on DATE . The police officers , the alleged perpetrators of the offence , were also interrogated . They fiercely denied that force had been used and also had difficulties recalling either the applicant himself or the details of his presence in the police station . The investigator questioned CARDINAL persons who had allegedly been detained in the police station together with the applicant in DATE . Those persons did not remember the applicant and merely stated that during their detention in the police station they had not been ill - treated and had not heard anyone complain about police brutality .

The investigator had been unable to examine the medical evidence , including the X - ray records made in DATE and records of the medical emergency unit of ORG , as they had been destroyed due to the archiving time - limit .

The investigator concluded that the applicant ’s ill - treatment allegations were not supported by any evidence , save for statements given by him and his relatives . The investigator noted that those statements had to be treated with caution as they had been made by persons having a direct interest in the case .

It appears that , on an unspecified date , the decision of CARDINAL DATE was annulled and a new round of criminal proceedings commenced .

The applicant lodged a complaint with ORG , seeking the transfer of the case file to ORG office for further investigation . He also asked to change the legal classification of the police ORG actions and to ensure his and his relatives’ safety .

On DATE a deputy to ORG dismissed the applicant ’s complaint in full .

On DATE the applicant received a letter from ORG , informing him that the criminal proceedings were stayed as “ it was impossible to identify persons who could be charged ” with a criminal offence against the applicant .

LAW of GPE ( in force since DATE , “ the CCrP ” ) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities’ own initiative , where there are reasons to believe that a crime was committed ( Articles CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( Article CARDINAL ) . He can order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there are no grounds to initiate a criminal investigation , the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party . The decision is amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction within a procedure established by LAW Article CARDINAL ) . Article CARDINAL of the ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen must be compensated for in full by the tortfeasor . Pursuant to LAW , a ORG agency or a ORG official will be liable to a citizen for damage caused by their unlawful actions or failure to act . Such damage is to be compensated for at the expense of the federal or regional treasury . Articles CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that compensation must be awarded for non - pecuniary damage irrespective of any award for pecuniary damage .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage)

The applicants , PERSON and PERSON , born respectively in DATE and DATE , are resident in PERSON , PERSON and in GPE .

The background to the case is a dispute between neighbours over sewerage . Initially the applicants’ neighbours , Mr and PERSON , instituted proceedings seeking damages for problems experienced with their sewerage , allegedly caused by work carried out by the applicants . Mr and PERSON won their case . On DATE the applicants then instituted proceedings against Mr and Mrs T. in ORG in GPE , alleging that the latter ’s sewage was seeping onto their land . On DATE , Judge PERSON gave judgment against the applicants . Their appeal was subsequently dismissed by ORG .

In GPE and GPE it is usual that the unsuccessful party to litigation pays the costs of the successful party ( see paragraph CARDINAL below ) . On CARDINAL DATE , Mr and PERSON , who were not in receipt of legal aid , requested a hearing to determine costs issues . The applicants had been and were legally aided throughout the litigation to appeal stage . Although this did not affect the amount of costs Mr and PERSON T. would be entitled to receive , after having made an order for costs it would be necessary for the judge to assess the applicants’ means for the purposes of section CARDINAL of LAW DATE ( “ the DATE LAW see paragraph CARDINAL below ) .

After hearings on CARDINAL and CARDINAL DATE , the matter was adjourned until DATE , to be heard at ORG , also in PERSON . As the question of costs could not be resolved because of factual disputes and conflict between the parties , on CARDINAL DATE Judge PERSON made a direction that the inquiry should be adjourned and not restored until a number of points concerning the applicants’ entitlement to legal aid had been clarified . In particular , information was sought as to ORG whether the applicants had advised ORG ( “ LAB ” ) of any change in their circumstances and whether revocation of their legal - aid certificate , if necessary , would have any retrospective effect .

On DATE , the court received a report from the LAB outlining events from the time the applicants first applied for legal aid . This report was sent to the parties on DATE , when they were informed that the matter could be re - listed for hearing . However , on DATE , the ORG informed the court that a fresh ORG ( “ ORG ” ) assessment of the applicants’ means was required in view of the fact that they had separated . The ORG later explained , in a letter filed with the court on DATE , that a delay of DATE had been caused because of a misapprehension in this respect ; in fact , the applicants had not separated .

The restored hearing was held on DATE before Judge PERSON , as Judge PERSON had fallen ill . Examining the criteria set out in section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , the judge ordered that QUANTITY ( GBP ) , which had previously been retained by the ORG following an award of damages to the applicants resulting from a successful negligence action against a firm of solicitors , should be paid to PERSON and PERSON T. forthwith and that the applicants should in addition pay them GBP CARDINAL,CARDINAL in instalments of GBP DATE .

The applicants sought legal aid to appeal against this decision . On DATE they applied for an extension of time , since the time - limit for appealing the costs order had expired on DATE . Subsequently queries were raised by a lawyer in ORG as to whether leave to appeal was required , and the matter was referred to the registrar .

In DATE , DATE and DATE DATE the applicants contacted ORG asking why there was a delay in dealing with their application .

On DATE , the registrar directed that leave was not required to appeal against the costs order . With a view to avoiding the time and expense of holding CARDINAL hearings , CARDINAL before him for the extension of time and another before the full ORG , he referred the application to the full court to determine the question of the time extension and , if granted , immediately to hear the appeal .

The applicants were requested to lodge the relevant documents by CARDINAL DATE . Extensions of this time - limit were granted on DATE , CARDINAL May , DATE , CARDINAL DATE and again on DATE at the request of the applicants , because they were experiencing difficulty in obtaining transcripts and judge ’s notes of hearings from the first - instance courts . It later transpired that Judge PERSON ’s notes had been either lost or did not exist . On DATE , the registrar granted the ORG request that transcripts of the judgment of Judge PERSON be produced at public expense .

Another extension of the time - limit for the submission of documents was granted , upon the ORG request , on DATE . On DATE the documents were finally lodged with ORG and on DATE the application was listed for hearing . After the hearing on DATE , ORG confirmed Judge PERSON judgment of CARDINAL DATE and dismissed the appeal .

Legal aid is available to litigants in the NORP courts subject to various requirements as to means and the merits of the case in question . Financial assessments of a litigant ’s disposable income and capital are carried out by specialist staff of ORG . The resources of the litigant ’s spouse are treated as belonging to the litigant unless they are living “ separate and apart ” ( see ORG DATE ( ORG DATE no . CARDINAL ) , Regulations CARDINAL and CARDINAL ) .

In the NORP courts , the award of costs generally ( in all cases , including those where one or more parties are legally aided ) is a matter for the discretion of the court ( see ORG , section CARDINAL ) . However , rules of court lay down certain principles which are normally applied in the exercise of this discretion , including the principle that the LAW unsuccessful party to litigation pays the costs of the successful party ( see the Rules of ORG , Order CARDINAL , Rule CARDINAL , and ORG , Order DATE , Rule CARDINAL ( CARDINAL ) ) .

This principle is not affected by the fact that an unsuccessful litigant is legally aided . However , after an order for costs has been made against such a person , the court which tried or heard the proceedings must determine how much of these costs it would be reasonable for the legally aided litigant to pay , in accordance with section CARDINAL ( CARDINAL ) of LAW DATE , which provides :

“ The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount ( if any ) which is a reasonable one for him to pay having regard to all the circumstances , including the financial resources of all the parties and their conduct in connection with the dispute . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE PERSON and PERSON ( “ the plaintiffs ” ) brought an action in ORG ( PERSON ) against the applicant seeking damages for breach of contract .

From DATE until DATE the plaintiffs were represented by their legal counsel , PERSON and thereafter by his daughter , PERSON , who took over her father 's law practice .

The plaintiffs , but not PERSON , attended the first hearing in the case that was held on DATE . PERSON 's activity in the proceedings was thus limited to filing one set of submissions with the court on DATE in which he responded to the applicant 's arguments .

At the next hearing held on DATE ORG replaced her father as the plaintiffs ' counsel .

On DATE ORG gave judgment for the plaintiffs . Following an appeal by the applicant , on DATE ORG ( ORG ) quashed the first - instance judgment and remitted the case to ORG .

In the resumed proceedings , on DATE ORG again gave judgment for the plaintiffs . The applicant appealed .

On DATE ORG reversed the first - instance judgment , only accepting part of the plaintiffs ' claim .

The applicant then lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) in which he argued , inter alia , that he had been unable to present his case properly in ORG .

On DATE ORG dismissed the applicant 's appeal on points of law .

On DATE the applicant filed a constitutional complaint with ORG ( Ustavni sud PERSON ) .

Following the service of ORG decision , on DATE S.T. informed ORG that she had ceased to act for the plaintiffs DATE and that the decision should have been served on the plaintiffs directly .

On DATE ORG dismissed the applicant 's complaint . It found that the articles of the LAW on which the applicant sought to rely did not contain any substantive provisions enshrining human rights or fundamental freedoms .

Judge PERSON was a member of the panel of CARDINAL judges which delivered that decision . The panel was presided over by another judge . The applicant became aware of the composition of the panel when he received ORG decision .

NORP The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . DATE LAW ” ) as in force at the material time provided as follows :

“ A judge of ORG may not abstain from voting , unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which ORG is required to rule . ”

“ Unless provided otherwise by LAW , in the proceedings before it the ORG shall apply mutatis mutandis the provisions of the relevant procedural laws of GPE as ancillary rules . ”

Section CARDINAL provides that , if a constitutional complaint is successful , ORG must quash the impugned decision and remit the matter to the competent authority .

The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL – “ LAW ” ) as in force at the material time provided as follows :

“ A judge ... shall be disqualified from exercising his functions :

if he is ... a counsel of the party ... ;

if ... the party 's counsel is his relative in the direct line ... ;

if other circumstances exist to cast doubt on his impartiality . ”

The grounds enumerated in section CARDINAL subparagraphs DATE are considered absolute grounds for withdrawal in that the judge concerned is automatically disqualified from sitting .

Section CARDINAL(CARDINAL ) provides that , from the moment he becomes aware of an absolute ground disqualifying him from sitting , the judge must take no further part in the case and bring the circumstances which disqualify him from sitting to the immediate attention of the president of the court of which he is a member , whereupon the president designates another judge to hear the case .

In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE ORG held that for section CARDINAL to apply it was not necessary for the ground for withdrawal to have existed throughout the proceedings or , in particular , when the decision complained of was delivered ; it was sufficient for it to have existed at some point during the proceedings .


Each of the first CARDINAL applicants was , and the fifth applicant is , a NORP national . Their particulars appear below .

The respondent Government were represented by PERSON , their Agent , who was succeeded in that function by PERSON .

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

The first applicant , Mr PERSON , was born in DATE and died in DATE . He was the father of the fifth applicant . The second applicant , ORG , was born in DATE and died on DATE . She was the wife of the first applicant and the mother of the fifth applicant . The third applicant , Mr PERSON , was born in DATE and died on DATE . He was the husband of the fourth applicant , PERSON ORG , who was born in DATE and died in DATE . The third applicant was the uncle of the fifth applicant and the fourth applicant was his aunt .

The fifth applicant , Mr PERSON , was born in DATE and resides in GPE . He originally represented the first CARDINAL applicants and then expressed the wish to continue the application in their stead .

In DATE family ORG bought real property located in LOC . In DATE they exchanged that property with another family for different real property .

In DATE the real property in PERSON was confiscated . The area was subsequently divided into plots , some of which were allocated to the first CARDINAL applicants as “ assigned owners ” ( prídeloví vlastníci ) under a deed of DATE .

In DATE the allocated plots were effectively taken over by an agricultural cooperative and in DATE the allocation was formally quashed and the ownership of the plots passed to the ORG .

The fifth applicant submits that in DATE the first CARDINAL applicants donated their claims to the title to the relevant plots to him and that he became their legal successor in respect of these plots .

In DATE the first applicant and the third applicant lodged , unsuccessfully , demands with the above agricultural cooperative for restitution of the assigned plots and for compensation . The claims were based on a special law of DATE , LAW ( Law no . CARDINAL/CARDINAL Coll . - “ the LAW ” ) . However , they were not lodged with the competent ORG , as required under section CARDINAL(CARDINAL ) of that LAW .

In DATE the applicants lodged a claim for restitution of the land in question under a newly adopted special law , ORG of DATE ( Law no . CARDINAL/CARDINAL Coll . ) . It is still pending .

In DATE several members of family F. lodged a claim under LAW with ORG for restitution of the land in PERSON . They submitted that it had belonged to their legal predecessors at the time of the confiscation in DATE .

On DATE the claimants and the agricultural co - operative which was using the land entered into an agreement on restitution ( dohoda o vydaní ) of the property in question to the claimants . The agreement was submitted for approval to ORG as envisaged under LAW .

Considering that it was questionable whether the claimants had any title to the land , ORG invited them to seek a determination of their rights before a court and stayed the restitution proceedings pending the outcome of such judicial proceedings .

On DATE the ORG ( ORG súd ) found that the land had been in the co - ownership of the claimants’ legal predecessors at the time of their death in DATE and DATE , respectively .

On DATE ORG approved the restitution agreement of DATE . The decision became final on CARDINAL DATE .

In DATE the first CARDINAL applicants unsuccessfully challenged the decision of DATE before ORG in a special procedure outside the framework of ordinary appellate proceedings ( mimo odovlacieho konania ) . Nevertheless , the decision of DATE was finally quashed on a protest lodged by the prosecution service .

The restitution agreement of DATE was then examined anew , by ORG ( legal successor to ORG ) , which decided – twice - not to approve it . Both decisions were judicially reviewed and quashed by ORG ( PERSON súd ) .

The proceedings are still pending

On DATE the first CARDINAL applicants brought an action against ORG in ORG for a determination of ownership in respect of the relevant plots .

In DATE the proceedings were discontinued on the ground that the matter fell outside the jurisdiction of the courts .

On DATE the first CARDINAL applicants brought an action against family PERSON They sought a ruling declaring them to be the owners of the land in question and an interim measure suspending the above - mentioned court rulings concerning the title of family ORG to the land .

All judges of ORG declared that they were unable to sit in the case further to a previous incident when the fifth applicant and his son had insulted the president and CARDINAL of the judges of that court .

On DATE ORG ruled that there were no grounds for disqualifying the entire bench of ORG from dealing with the case .

In DATE and DATE ORG requested the defendants’ observations in reply and other information from ORG and ORG .

On DATE ORG dismissed the request for an interim measure , discontinued the proceedings and decided to transmit the matter to the administrative authorities within the jurisdiction of which it fell . The plaintiffs appealed and challenged all judges of ORG for bias .

DATE ORG sought the defendants’ observations in reply to the appeal , an explanation of the GPE challenge of bias , information from ORG and ORG and an amendment to the action in view of the fact that one of the defendants had died .

On DATE ORG quashed both the decision concerning the interim measure as well as that concerning the discontinuation of the proceedings . The former ruling was found to be premature and the latter ruling to be erroneous given that the defendants were natural persons .

In DATE and DATE and DATE ORG requested CARDINAL times that the plaintiffs substantiate the challenge of bias , pay the court fees and complete the request for an interim measure . In the meantime they had withdrawn the power of attorney from their lawyer .

In DATE , in response to ORG request , the plaintiffs’ new representative submitted the missing information .

A hearing was scheduled for DATE . DATE before that hearing the plaintiffs’ representative apologised for not being able to attend due to health reasons . The plaintiffs did not appear . The hearing was adjourned until DATE .

The GPE lawyer then requested a postponement of the hearing which was planned for DATE due to health reasons and the plaintiffs withdrew the power of attorney from their representative . The hearing was adjourned until DATE . Following the latter hearing , on DATE , ORG decided to join the present action to the action of the third and fourth applicants ( see below ) .

On DATE the third and fourth applicants brought separate proceedings against family PERSON for a determination of ownership in respect of the land in question . They also sought an interim measure , similar to that sought by the first CARDINAL applicants .

On DATE ORG ruled , in the context of the incident mentioned above , that there were no grounds to disqualify ORG judges from dealing with the case .

In DATE ORG requested information concerning the case from ORG and ORG . In DATE it demanded that the plaintiffs bring their request for an interim measure in line with the applicable formal requirements and specify who the actual defendants were , given that CARDINAL of the original defendants had died . In response , their legal representative informed ORG that the plaintiffs had withdrawn his power of attorney . The request was reiterated .

In DATE the plaintiffs submitted that they had new legal representation but they submitted no power of attorney . ORG again requested that they specify the action and the request for an interim measure and sought further information from ORG .

A hearing scheduled for DATE had to be adjourned until DATE owing to the absence of the plaintiffs and their legal representative who had informed the court that he had been unable to appear for health reasons DATE before the hearing . The plaintiffs then again cancelled their legal representation .

On DATE ORG held a hearing and the proceedings in the present action were joined with the proceedings in the action of the first CARDINAL applicants . Following the hearing , on DATE , ORG dismissed both actions . A copy of the judgment was served on the first CARDINAL applicants in DATE . The third and fourth applicants refused to accept the service . All the plaintiffs appealed .

On DATE ORG corrected clerical errors in its judgment and requested the defendants’ observations in reply to the appeal .

On DATE ORG held a hearing following which , on DATE , it quashed the first - instance judgment and remitted the case to ORG for re - examination . It pointed out , inter alia , that it was the plaintiffs’ responsibility to substantiate the scope , the legal nature and the factual basis of their claims .

In DATE and DATE ORG invited the GPE representative to submit valid powers of attorney from all the plaintiffs and to substantiate the action .

In DATE and DATE the GPE legal representative demanded that the court proceedings be stayed pending the outcome of the administrative proceedings on the restitution claim of family F. in view of the fact that the administrative decisions on that claim had been quashed ( see above ) . In DATE the plaintiffs appointed a lawyer to represent them in the proceedings . The lawyer submitted the missing information on DATE .

On DATE ORG appointed a geodesy and cartography expert to draw up a report on the land in question and ordered the parties to pay an advance on his fees .

On DATE the plaintiffs appealed against the ruling concerning the expert ’s fees and requested an exemption from the obligation to pay the court fees . On DATE they submitted further information .

On DATE ORG sought information from the NORP and LOC municipal authorities concerning the GPE material standing . It was supplied in DATE .

On DATE ORG decided not to exempt the plaintiffs from the obligation to pay the court fees . They appealed and stated that they would supply the reasons for their appeal later .

On DATE ORG invited the GPE lawyer to submit the reasons for their appeal of DATE , which they finally did on DATE .

On DATE ORG upheld the decision of DATE .

On DATE ORG admitted ORG to the proceedings as the eighth defendant .

On DATE the expert submitted CARDINAL reports . The parties were then requested to submit observations in reply to the reports .

On DATE and CARDINAL DATE , respectively , the GPE lawyer informed ORG that CARDINAL of the defendants had died in DATE and submitted the death certificate .

On DATE ORG ordered the plaintiffs to pay the fees of the expert . They all appealed .

On DATE , DATE and DATE ORG repeatedly requested the GPE lawyer to bring the action in line with the applicable requirements . On DATE the lawyer informed the court that the third and fourth applicants had withdrawn the power of attorney from her .

On DATE a new lawyer informed ORG that the third and fourth applicants had appointed him to represent them in the proceedings . On DATE he responded to the court ’s request for further and better particulars .

On DATE ORG informed the GPE lawyer that the particulars of their claim did not reflect the specification of the land as in the expert ’s reports and warned him that he would be fined if he failed to correct the claim within DATE . The lawyer responded on DATE but did not change the identification of the land as instructed .

On DATE ORG quashed the decision of CARDINAL DATE concerning the expert ’s fees and remitted the question to ORG for re - examination .

In DATE the GPE representative submitted that they had cancelled his power of attorney . ORG ruled again on the expert ’s fees and warned the plaintiffs that the proceedings would be discontinued if they failed to correct their claim .

DATE ORG made inquiries following a finding that the third applicant had died .

On DATE ORG discontinued the proceedings under LAW on the ground that the plaintiffs had failed to pursue the case . They refused to accept the service of the decision . It became final on DATE .

On DATE the fifth applicant made a written submission by which he sought to appeal against the decision of DATE . He made similar submissions later .

On DATE ORG informed the fifth applicant that there were doubts as to his power of attorney to act in the name of the first CARDINAL applicants and invited him to show that he was authorised to do so . In a letter of DATE ORG warned the fifth applicant that it would be unable to continue communication with him unless he produced evidence that he was empowered to act on behalf of the first CARDINAL applicants . There is no indication that any formal proceedings ensued from the fifth applicant ’s submissions .

On DATE the first CARDINAL applicants , who were represented by the fifth applicant , filed a petition ( podnet ) with ORG . They complained about the length of the proceedings concerning the restitution claim of family PERSON and their ownership actions of DATE .

On DATE ORG rejected their motion as falling short of the statutory requirements .

On DATE applicant was charged with the offence of unauthorised use of someone else ’s property under LAW . The charge was based on the suspicion that he had been using illegally a plot which belonged to the real estate in dispute .

On DATE and DATE , respectively , the applicant was committed for trial and found guilty as charged by ORG in summary proceedings by way of a penal order ( trestný rozkaz ) .

The applicant successfully appealed ( protest ) . The order was ex lege vacated and the matter fell to be determined in ordinary proceedings .

In DATE the proceedings were stayed under LAW ( c ) of LAW on the ground that the fifth applicant had become unable to understand them owing to the state of his mental health .

In DATE the proceedings were stayed under LAW ( a ) of LAW on the ground that it was not possible to secure the fifth applicant ’s presence .

On DATE the proceedings were resumed and joined with the proceedings concerning the charge of DATE ( see below ) .

On DATE the fifth applicant was charged with the offences of violence and grave disturbance under Articles FAC and DATE § CARDINAL of LAW .

In DATE the ORG ordered examination of the fifth applicant ’s mental health by CARDINAL experts .

On DATE the proceedings on the charges of DATE and DATE were joined . The proceedings are still pending .


Violation of Art. 6-1 on account of the absence of an oral hearing;Violation of Art. 6-1 on account of the non-communication of the opinion of the Principal Public Prosecutor;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Gaukur Jörundsson;Luzius Wildhaber;Paul Mahoney

At the material time the applicant was employed as a clerk in the GPE CARDINALnd ORG . On DATE the ORG forwarded the name and workplace of the applicant to the GPE public prosecutor 's office , stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case .

On DATE the office of the public prosecutor referred the case to ORG .

At TIME on DATE the applicant was taken into police custody and detained at ORG . He was accused of the above offences . The applicant gave a statement in which he denied that he had been involved in the incident relating to the court 's case file . The applicant later claimed that he was not permitted to contact his family or consult a lawyer and that he was insulted and beaten for TIME .

CARDINAL other suspects were also detained and statements were taken from them . A statement was also taken from PERSON , a party to the divorce proceedings .

On DATE an investigation record was drawn up for the applicant and the CARDINAL other suspects . At TIME on DATE the applicant was released pursuant to the decision of the public prosecutor . The CARDINAL other suspects were kept in custody .

In TIME of DATE , following his release , the applicant went to ORG . He was subsequently granted DATE sick leave by his employer . The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair .

On DATE the office of the public prosecutor of PERSON decided not to bring charges against the applicant ( takipsizlik kararı ) for lack of evidence . The decision was served on the applicant on DATE .

The public prosecutor took a statement from the applicant on CARDINAL DATE . In his statement the applicant declared that he had applied to ORG to have proceedings brought against the individual who had reported him to the authorities .

On DATE the public prosecutor decided not to bring charges against the person named by the applicant .

On DATE the applicant filed a complaint under PERSON no . CARDINAL with ORG ( Ağır Ceza Mahkemesi ) against the ORG requesting MONEY ( TRL ) by way of compensation for his detention between “ CARDINAL and DATE ” . In the petition , the applicant 's lawyer stated , inter alia , that the applicant , while in detention , had been tortured and ill - treated by being beaten and insulted for TIME and deprived of his right to contact his family and a lawyer . As a result of his injuries , the applicant had had to take DATE sick leave . Furthermore , the applicant 's reputation had suffered . He did not rely on any specific section of Law no . CARDINAL .

On DATE the CARDINAL - judge PERSON appointed CARDINAL of its members ( naip hakim ) to investigate the case and draft a report . The judge designated for this purpose verified , inter alia , that the office of the public prosecutor of GPE had dropped the charges against the applicant . He also obtained information about the applicant 's personal , financial and social status . The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under LAW no . CARDINAL that it was unnecessary to hear the applicant . The public prosecutor was asked for his written observations on the applicant 's claim . On DATE the public prosecutor , as required by Law no . CARDINAL , submitted his opinion to ORG . The public prosecutor noted that the applicant was taken into custody on DATE , and not on DATE as claimed , and was released on DATE . The public prosecutor recommended that the applicant be granted compensation for non - pecuniary damage in an amount to be assessed by the court . This opinion was not served on the applicant .

The judge stated in his report of DATE to the President of ORG , inter alia , that the applicant had been detained for DATE from DATE to DATE and upon his release had obtained a medical report which indicated that he had been assaulted ( darp edildiği ) . The judge noted that the applicant had been given DATE sick leave by his employer . He further observed that , at the time when he was taken into custody , the applicant had been working in the CARDINAL ORG , had been paying ORG in rent , was divorced and had CARDINAL children . The judge concluded :

“ The complainant requested that he be granted the sum of TRL CARDINAL in compensation . In determining the amount of compensation the court should consider both the complainant 's economic and social position as well as the intensity of his emotional suffering . In the light of the above facts , I propose that the court grant the amount of compensation requested by the complainant . ”

On DATE ORG found that the applicant had been detained for DATE and qualified for compensation . In its judgment , the court took note of all the complaints set out in the petition lodged by the applicant 's lawyer as well as the content of the judge 's report and the written submissions of the public prosecutor ( see paragraphs CARDINAL and CARDINAL above ) . The court concluded that

“ ... at the time he was taken into custody , the applicant had been working in ORG , had been paying ORG in rent , and was divorced with CARDINAL children . The complainant requested that the court award him GPE CARDINAL , including interest , for the non - pecuniary damage suffered . The court considers that , in determining the amount of compensation , it should have regard both to the complainant 's economic and social position as well as the intensity of his emotional suffering . In the light of the above facts and having considered the above criteria , the court concludes that the sum of TRL CARDINAL should be awarded to the complainant ” .

The court also awarded the applicant LAW for his legal costs .

NORP The applicant 's lawyer and the ORG both appealed against the award . The applicant 's lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention . He did not challenge the dates of detention as determined by the court . The ORG considered that the amount awarded was excessive .

According to the relevant rules governing the functioning of ORG in litigation of this nature , the case file at ORG was referred to the competent division of ORG through the intermediary of the office of the public prosecutor at ORG . On DATE ORG submitted his opinion on the merits of both parties ' appeals . In his written opinion ( tebliğname ) to ORG of ORG ( Yargıtay ) , ORG stated that , having regard to the first - instance proceedings , the evidence collected , the subject matter of the claim and the discretion of the first - instance court , neither of the parties had grounds for appeal . He advised that both appeals be rejected and that the first - instance judgment be approved , being in compliance with procedural rules and law .

This opinion was not submitted to the applicant .

On DATE ORG , having regard , inter alia , to the opinion of ORG , upheld the judgment of DATE .

According to information submitted by the ORG , the applicant never applied to obtain the compensation awarded to him by ORG .

Article CARDINAL of the LAW provides :

“ Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...

A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . ”

Under LAW , an arrested person must be brought before a judge within TIME or , where the offence has been committed by CARDINAL person , within DATE .

Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only . ”

By virtue of section CARDINAL of Law no . CARDINAL , a claimant must apply for compensation to the local assize court within DATE , setting out the facts complained of and indicating the amount claimed . The claim is lodged against the ORG .

According to section CARDINAL of the same PERSON :

“ The competent court ... shall appoint CARDINAL of its members upon the submission of the petition for compensation . The appointed member shall first examine whether the request was lodged within the statutory time - limit . Where the appointed member finds that the request was lodged within the statutory time - limit he shall collect all evidence including the case file and the judgment [ concerning the criminal proceedings ] . If necessary , he shall take oral evidence from the claimant . The appointed member shall transfer the case file to the office of the public prosecutor for his opinion after collecting all the evidence .

Upon the receipt of the public prosecutor 's written opinion , the court shall give its decision without holding a hearing .

The petitioner has the right to lodge an appeal against the court 's decision within DATE after he is notified of this decision . ”

A claimant is entitled to seek compensation for both pecuniary and non - pecuniary damage arising from unlawful detention . A pecuniary claim must be documented . Non - pecuniary damage is awarded on the basis of the claimant 's personal , financial and social status .

The relevant parts of LAW provide :

“ ORG shall examine the appeal without holding a hearing . ORG shall notify the parties of the date of the oral hearing , if either of the parties requested a hearing in their petitions , in the following cases :

– in actions in which the amount requested is MONEY .

In the NORP legal system , when a judgment of a first - instance court is appealed , the case file is first sent to ORG at ORG . ORG , who is independent of the executive and of the parties , submits an opinion ( tebliğname ) on the case to the competent division of ORG .

The submission of the opinion by ORG is regulated by LAW no . CARDINAL . According to the Government , the opinion is prepared by the assistants of ORG and is included in a short document which indicates that the file has been seen by the first - instance court and advises whether the latter 's judgment should be quashed or upheld . The opinion of ORG is not binding on the division of ORG which will consider the appeal .


The CARDINAL applicants , PERSON , PERSON , PERSON , PERSON PERSON , PERSON and PERSON ( on behalf of the deceased PERSON ) , are all NORP nationals . They are represented before the ORG by the law firm PERSON and PERSON in GPE .

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

The applicants are the owners of special social bonds ( Sozialpfandbriefe ) that ORG issued in DATE . The interest rate of these social bonds is lower than the market interest rate , but the profits derived from the bonds were exempted from tax .

In DATE the ORG amended its tax laws and revoked the provision whereby the social bonds were tax - free .

On DATE the applicants lodged a joint complaint with ORG . In this complaint , they argued that the revocation of their social bonds ' tax - free character and , as a consequence , the falling prices of their bonds would entail considerable financial losses for them . This violated their rights to property , their right to protection of their legitimate expectations and their right to equality under LAW , QUANTITY in conjunction with ORG CARDINAL of the NORP Basic PERSON .

Having received a great number of complaints on the same subject matter , ORG communicated CARDINAL of these constitutional complaints to the Government as pilot cases .

Towards DATE the applicants asked ORG to send them the ORG 's submissions in the pilot cases . Their letter went without a response , despite several reminders .

On DATE , in a leading decision , ORG rejected the constitutional complaints in the pilot cases , finding that the revocation of the tax subvention served a legitimate aim and complied with the principle of proportionality .

On DATE ORG , referring to its decision of DATE , refused to entertain the applicants ' constitutional complaint .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr M. Finucane , a lawyer practising in GPE .

NORP The applicant was convicted in DATE of fraudulently using a licence . He received a fine .

NORP On DATE the applicant was arrested and detained at FAC on suspicion of harassment contrary to section CARDINAL of LAW DATE following an incident involving his former wife . Photographs , fingerprints and a DNA sample were taken . The applicant received a caution in respect of the incident and was released on DATE .

NORP In DATE the applicant complained to ORG about the arrest . His complaint was investigated and on DATE Detective Inspector PERSON confirmed that the arrest was lawful .

NORP In or around September CARDINAL the applicant ’s solicitors wrote back to Detective Inspector PERSON questioning the legality of the caution and requesting that it be rescinded .

On DATE the applicant was advised that the caution would be removed from his record .

On or around DATE the applicant ’s solicitors requested that the police use their discretion to delete the applicant ’s DNA , fingerprints and photographs . On DATE , he was advised that his request to have the DNA data destroyed had been refused .

On DATE a further request was received by the police from the applicant for deletion of his DNA , fingerprints and photographs . The request was treated as having been made under the procedure allowing deletion of such data in exceptional circumstances . Receipt of the request was acknowledged on DATE .

On DATE , following an examination of the facts and circumstances relating to the applicant ’s arrest , the police decided to delete the applicant ’s DNA , fingerprints and photographs .

On DATE , the applicant was informed that his case was considered to be exceptional and that his DNA sample and other records would be destroyed .

On DATE the record of the applicant ’s DNA profile was deleted .

NORP On DATE the applicant ’s DNA sample and profile were deleted .

On DATE the electronic record of the applicant ’s fingerprints was deleted .

On DATE the offence recorded in ORG in respect of the applicant was deleted .

On DATE the hard copy record of the applicant ’s fingerprints and his ORG record were deleted .

On DATE the applicant was advised that all his records and samples had been deleted .

For details of the relevant domestic law see PERSON and GPE v. GPE [ ORG ] , ORG . CARDINAL and DATE .


CASE OF MINASYAN AND SEMERJYAN v. ARMENIA

Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of P1-1;Just satisfaction reserved

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The first and the second applicants , who are mother and daughter , were born in DATE and DATE respectively and live in GPE , GPE .

The first applicant was the owner of a QUANTITY . m. flat in an apartment building situated at FAC , GPE . The flat was acquired by the first applicant on DATE . The building in question was situated on a plot of land owned by the ORG .

The applicants alleged that the second applicant enjoyed a right of use in respect of the above flat as the first applicant ’s family member residing in it .

The Government contested this allegation and claimed that the second applicant did not enjoy the right of use in respect of the first applicant ’s flat and simply had the right to live in it .

On DATE the Government adopted Decree no . CARDINAL , approving the procedure for taking plots of lands and immovable property situated within expropriation zones of GPE and for preparing the relevant price offers . The Mayor of GPE was entrusted with its implementation . According to that Decree , the amount of compensation was to be determined on the basis of the market value of the immovable property , which was to be determined by a licensed valuation organisation or organisations selected through a tender process . Financial incentives were envisaged for those proprietors who , within DATE of receiving the price offer , gave their consent to hand over their property . Persons who were registered within the expropriation zones and their minor children were to be awarded QUANTITY ( ORG ) as a support .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .

On DATE the Government adopted Decree no . CARDINAL-N , authorising the Mayor of GPE , for the purpose of facilitating the construction works in the expropriation zones , to include in the compensation offers in specific cases the grant of construction permits without a tender process through direct negotiations .

On DATE the Government adopted Decree no . CARDINAL-N , authorising the Mayor of GPE to grant such a construction permit for CARDINAL of the sections of FAC DATE which was to be renamed FAC – to a private company , GPE .

On DATE GPE and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .

On DATE GPE informed the first applicant that her flat was situated in the expropriation zones approved by Government Decree no . CARDINAL An independent licensed organisation , PERSON , had carried out a valuation of her property , in accordance with the procedure prescribed by Government Decree no . CARDINAL . According to the valuation report prepared by PERSON , the sum of compensation to be paid to her was the NORP dram equivalent of MONEY ( ORG ) . An additional sum equivalent to ORG CARDINAL,CARDINAL would be paid to her as a financial incentive , if she agreed to sign an agreement and to hand over the property within DATE . The sum of compensation and the financial incentive to be paid to the second applicant , pursuant to Government Decree no . CARDINAL , amounted to the equivalent of CARDINAL and CARDINAL respectively .

It appears that the applicants did not accept this offer .

On an unspecified date , GPE instituted court proceedings against the applicants on behalf of the ORG . Referring to , inter alia , Government Decree no . PERSON , the plaintiff argued that the construction project of FAC , which was supposed to replace FAC , was impossible without demolition of the building in which the flat in question was situated and sought to terminate the applicants’ rights through payment of compensation and to evict them . In support of its claim , the plaintiff submitted the valuation report prepared by ORG

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) granted the claim of GPE . ORG found that it had been decided by the authorities to take the relevant plot of land for ORG needs , which was impossible without terminating the applicants’ rights in respect of the immovable property situated on that land . It decided to terminate the first and the second applicant ’s rights and to award them the NORP dram equivalent of CARDINAL and CARDINAL respectively as compensation . The court based its findings on Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL of LAW , while the amount of compensation awarded to the first applicant was determined on the basis of the valuation report prepared by PERSON

On an unspecified date , the applicants lodged an appeal .

The first applicant alleged that , in the proceedings before ORG , she filed a motion requesting the court to order a commodity expert opinion in order to contest the valuation carried out by PERSON Ltd. This motion was allegedly rejected by ORG .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) upheld the judgment of ORG .

On DATE the applicants lodged an appeal on points of law . In their appeal they argued , inter alia , that the ownership in respect of the flat had been unlawfully terminated by a Government decree and not a statute , as required by the domestic law .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the applicants’ appeal , referring to the findings of the lower courts .

On an unspecified date the flat in question was demolished .

The relevant provisions of the LAW , as in force at the material time , read as follows :

“ ... Public authorities and public officials are competent to perform only such actions as authorised by law . ”

“ GPE is a ORG based on rule of law .

The LAW of [ GPE ] has a supreme legal force and its provisions are directly applicable .

Laws which are found to be incompatible with the LAW , as well as other legal acts which are found to be incompatible with the LAW and laws , have no legal force . ... ”

“ Every one has the right to property and the right to bequeath . ... [ A person ] can be deprived of [ his or her ] property only by a court in cases prescribed by law .

Property can be expropriated for the needs of society and the ORG only in exceptional cases of paramount public interest , on the basis of a law and with prior equivalent compensation . ”

“ ORG , in accordance with a procedure prescribed by law : ( CARDINAL ) decides on the conformity of the laws , the resolutions of ORG , the edicts and directives of the President of [ GPE ] and the decrees of the Government with the LAW ; ... ”

The Law on Legal Acts prescribes the types and hierarchy of legal acts in GPE . The relevant provisions of the PERSON , as in force at the material time , provided as follows .

Section CARDINAL listed the legal acts adopted in GPE which included , inter alia , LAW , the NORP laws and the decrees of the Government .

Section CARDINAL provided that the LAW laid down the principles of legal regulation on the territory of GPE and was the legal foundation of the NORP legislation . It had supreme legal force and its provisions were directly applicable . The laws and other legal acts were adopted on the basis of the LAW or for the purpose of its implementation and were not to contradict it .

Section CARDINAL provided that laws regulated the most important , inherent and stable social relations and were enacted in compliance with the LAW through a referendum or by ORG . They were not to contradict LAW , the active laws and the decisions of ORG .

Section CARDINAL provided that the Government adopted decrees within the scope of the powers vested in it by the LAW and the laws . The decrees of the Government were not to contradict LAW , the laws and the decisions of ORG . They were to regulate any relations not regulated by the laws , unless those relations , pursuant to the LAW and the laws or the edicts and directives of the President of GPE , were to be regulated by other legal acts .

Section CARDINAL of LAW provided that the decisions of ORG were final and not subject to appeal . They entered into force from the moment of their delivery and had a binding effect on the territory of GPE .

Articles CARDINAL - CARDINAL of ORG and ORG and CARDINAL the Land Code , as in force at the material time , stipulated the conditions for taking plots of land for the needs of society and the ORG .

Article CARDINAL of the Civil Code provided that , if it was impossible to take a plot of land for the needs of society and the State without terminating the ownership in respect of buildings , constructions and other immovable property situated on it , the ORG could take such property from the owner by compensating its value .

The provisions of LAW , the conformity of which with the LAW was examined by ORG on DATE ( see paragraph CARDINAL below ) , provided :

“ ... [ CARDINAL . ] The equivalent amount of compensation for expropriation of immovable property for the needs of society and the ORG is determined by a decree of the Government of [ GPE ] on the basis of the results of the negotiation between the Government of [ GPE ] and the owner of the property subject to expropriation and upon [ the owner ’s ] written consent .

[ CARDINAL . ] If the owner of the property disagrees with the expropriation of the property by the Government of [ GPE ] or the amount of compensation , then the immovable property may be expropriated by the Government of [ GPE ] only through court proceedings .

[ CARDINAL . ] The owner of the immovable property subject to expropriation for the needs of society and the ORG must abstain from causing damage to the immovable property before the entry into force of the court decision .

[ CARDINAL . ] The procedure for expropriation of immovable property for the needs of society and the ORG is established by the Government of [ GPE ] , pursuant to the provisions of this Section . ... ”

When deciding on the conformity of paragraphs CARDINAL , CARDINAL , DATE and CARDINAL of Section CARDINAL of the LAW with , inter alia , LAW , the Constitutional Court provided the following interpretation of that provision . Since the phrases “ for the needs of society and the ORG ” and “ only in exceptional cases ” were concepts requiring assessment and concerned a fundamental constitutional right , the LAW stipulated that expropriation of property on such grounds could be carried out only on the basis of a law , thereby creating necessary legislative safeguards . The phrase “ on the basis of a law ” implied not a normative legal act which regulated the expropriation procedure in general , but a law pursuant to which the property in question was to be expropriated . Thus , a person ’s property could be expropriated and – in the absence of his consent – his ownership could be terminated by the ORG only through the adoption of a law in respect of the concrete immovable property , which would substantiate the exceptional importance and significance of the expropriation and which would indicate the needs of society and the ORG to be satisfied by the expropriation . The law would also oblige the Government to fix the amount of compensation , taking market prices into account , on the basis of a financial - economic assessment , the results of the negotiation between the ORG and the owner of the property subject to expropriation , and upon the owner ’s written consent . The ORG was not entitled to establish a procedure for expropriation of property for the needs of society and the ORG that would authorise it to expropriate immovable property .

For the purpose of implementation of construction projects in GPE , the Government decided to approve the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State , with a total area of QUANTITY m. FAC was listed in FAC to this Decree as falling within these expropriation zones .

NORP The Mayor of GPE was instructed to determine the boundaries of the plots of land to be taken for the needs of the ORG and to register them at ORG . The owners and users of the immovable property situated within the expropriation zones were to be informed about the deadlines , sources of financing and the procedure for taking their immovable property . Valuation of the immovable property in question was to be organised and carried out by the relevant licensed organisations .

Article CARDINAL provided that members of the tenant ’s family included his spouse , their children and their parents . Other persons could be recognised as the tenant ’s family members , if they lived with him or her and ran a common household .

Article CARDINAL provided that family members of the owner of a house , whom the owner had accommodated in his or her house , had the right , equally with him or her , to use the accommodation , if no reservations had been made at the time when the family members were accommodated . Persons mentioned in the first sentence of LAW were considered as members of the owner ’s family . These persons were to continue to enjoy the right of use of accommodation even in case of disruption of family ties with the owner .

Article CARDINAL , which concerns State registration of property rights , provides that the right of ownership and other property rights in respect of immovable property , including the right of use , are subject to State registration .

Chapter CARDINAL of the Civil Code entitled “ Ownership of Accommodation and Other Property Rights ” contained specific provisions related to the right of use of accommodation which , at the material time , read as follows :

“ CARDINAL . The family members of the owner of accommodation and other persons have the right of use of accommodation , if that right has been registered in accordance with the procedure prescribed by the PERSON on LAW in Respect of Property .

NORP The origination , implementation and termination of the right of use of accommodation are stipulated by a notarised written agreement concluded with the owner .

If no agreement is reached concerning the termination of the right of use of accommodation , that right can be terminated upon the owner ’s request by a court through payment of compensation equivalent to the market value .

The right of use of accommodation may not be an object of sale or purchase , mortgage and lease .

NORP The person enjoying the right of use of accommodation may demand from anybody , including the owner , to redress the violations of his [ or her ] right in respect of the accommodation .

The right of use of accommodation does not terminate in case of transfer of ownership in respect of a house or a flat to another person , except when the person enjoying the right of use of accommodation has undertaken a notarised obligation to give up that right prior to the transfer of ownership . ”

The above LAW was amended following the circumstances of the present case , namely on DATE , and its fourth paragraph read as follows :

“ CARDINAL . The amount of compensation for a DATE period is determined on the basis of the amount of rent payable for given accommodation at the moment of termination of the right [ of use ] and is calculated the following way : for each person , whose right of accommodation is registered , the area [ is calculated ] by means of dividing the living area by the total number of persons enjoying the right of gratuitous use of accommodation and the owners , but [ should not be ] CARDINAL or QUANTITY .

The compensation is calculated for DATE and is paid at once , unless agreed otherwise by the parties . ”

Section CARDINAL of the PERSON on LAW in ORG provides that rights of spouses , children and other dependants in respect of property , which are conferred on them by law , are effective even if they have not been registered separately .

Section CARDINAL of LAW provides that a child family member of the tenant or owner of accommodation , regardless of his or her place of residence , has the right to live in the accommodation occupied by that tenant or owner .

Article CARDINAL of LAW provides , inter alia , that a child has no ownership in respect of his or her GPE property , while the parents have no ownership in respect of the child ’s property . Children and parents living together may dispose of and use each other ’s property by mutual agreement .


No violation of Art. 5-1;Violation of Art. 5-2;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant fled GPE and arrived at FAC on DATE . On arrival at the immigration desk he spoke to an immigration officer and claimed asylum . He was granted “ temporary admission ” by the immigration officer and was asked to return to the airport at TIME the following morning . TIME the applicant was permitted to stay at a hotel of his choice . On TIME he reported as required and was again granted temporary admission until DATE , DATE at TIME . When the applicant again reported as required he was ( for the third time ) granted temporary admission until DATE , DATE at TIME . Again the applicant reported as required . On this occasion the applicant was detained and transferred to FAC ( “ FAC ) .

On DATE the applicant was given the opportunity to consult with legal representatives . The representative telephoned the Chief Immigration Officer on DATE , and was told that the reason for the detention was that the applicant was an NORP who met the criteria to be detained at GPE . On DATE , the applicant was interviewed by an official of the Secretary of ORG for ORG [ “ SSHD ” ] in relation to his claim . When his asylum claim was refused on DATE he was formally refused leave to enter the GPE . The applicant submitted a notice of appeal against the asylum refusal and was released on DATE .

In the subsequent asylum proceedings , the applicant ’s appeal was allowed by an adjudicator on DATE on the ground that ORG had failed to specify how the applicant could be returned to the autonomous region of GPE . The SSHD ’s appeal to ORG was allowed on DATE , and the case was remitted to an adjudicator . On DATE the adjudicator found that the applicant was a refugee within the meaning of the CARDINAL Refugee Convention , and also that there was a real risk that his return to GPE would expose him to treatment contrary to Articles CARDINAL and CARDINAL of the Convention . The applicant was subsequently granted asylum .

The applicant , together with CARDINAL other NORP detainees who had been held at GPE , applied for permission for judicial review of their detention , claiming that it was unlawful under domestic law and under LAW .

At first instance , Mr Justice PERSON did not consider the detention to be unlawful under domestic law , essentially because he was not prepared to imply into the legislative provisions a requirement that the exercise of the power to detain had to be “ necessary ” for the purpose of carrying out an examination of an asylum claim . He did , however , find that the detention was not compatible with LAW ( f ) of the LAW on the basis that once an applicant had made a proper application for asylum and there was no risk that he would abscond or otherwise misbehave , it could not be said that he needed to be detained “ to prevent his effecting an unauthorised entry ” . He also considered detention disproportionate because it could not be shown that it was reasonably necessary to the stated purpose for the detention which was the speedy examination of the asylum claim .

In connection with the reasons given for the detention , Mr Justice PERSON noted that it apparently took ORG DATE to realise that the wording of the form handed to detainees was not appropriate , and on DATE and again on DATE the form was under revision . As from DATE ( DATE , according to the Government ) , a form of words was available which stated

“ Reason for Detention

I have decided that you should be detained because I am satisfied that your application may be decided quickly using the fast track procedures established at FAC . In reaching this decision I have taken into account that , on initial consideration , it appears that your application may be one which can be decided quickly ” .

That form of words was not available at the time the applicant was detained , and PERSON regarded it as a “ disgrace ” that the form lagged behind the policy . He continued :

“ The form [ in use at the time ] clearly indicated that detention was only used where there was no reasonable alternative . All the reasons and factors reflect some possible misconduct by the detainee or the need for him to be cared for by detention ... it was wholly inappropriate for ORG detention and it is , for example , difficult to follow what reason could conceivably have been close to fitting [ the applicant ’s ] case . Unfortunately , the copy of the [ form ] which should have been retained on the file has disappeared and so I do not know , nor does [ the applicant ] why it was said that he should be detained . ”

The shortcomings as to the reasons for detention did not affect the lawfulness of the detention .

ORG upheld the SSHD ’s appeal on DATE , and ORG dismissed the applicant ’s appeal on DATE . Both ORG and ORG held that the detention was lawful under domestic law . In connection with LAW ( f ) , and by reference to the case of PERSON ( PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions PERSON ) , they each held that the detention was for the purpose of deciding whether to authorise entry and that the detention did not have to be “ necessary ” to be compatible with the provision . The detention was therefore “ to prevent ... unauthorised entry ” , and in addition was not disproportionate , Lord PERSON holding :

“ The need for highly structured and tightly managed arrangements , which would be disrupted by late or non - attendance of the applicant for interview , is apparent . On the other side applicants not living at ORG , but living where they chose , would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions .... Getting a speedy decision is in the interest not only of the applicants but of those increasingly in the queue . ”

The Immigration Act DATE provides for the administrative detention of those subject to immigration control “ pending examination and pending a decision whether to give or refuse ... leave to enter ” ( Schedule CARDINAL , paragraph CARDINAL ) . Temporary admission is used as an alternative to detention . It is a form of licensed consent to enter GPE which may be subjected to conditions , including reporting requirements and restrictions on the person ’s residence , employment or occupation ( Schedule CARDINAL , paragraph CARDINAL ) .

In general ( that is , in cases other than those involving FAC ) , the LOC ’s guidance requires an individual assessment of the need to detain to prevent absconding .

On DATE PERSON MP , Minister of State at ORG , announced a change in detention policy specifically and exclusively related to the new FAC . GPE asylum applicants could be detained where it appeared that their application was capable of being decided ‘ quickly’ , including those which may be certified as being ‘ manifestly unfounded’ . To assist immigration officers , lists of nationalities – and categories within nationalities - were drawn up in respect of which consideration at ORG could be justified because they were expected to be simple to deal with . It was said that ORG would strengthen the ability of ORG to deal quickly with asylum applications .

Further guidance was issued in the Operational Enforcement Manual in respect of individuals who were said to be unsuitable for ORG detention . Cases in which detention at ORG would not be suitable included the following :

- any case which did not appear to be one in which a quick decision could be reached or in which there were complicating factors ;

- unaccompanied minor asylum seekers ;

- cases in which there was a dispute as to age ;

- disabled applicants ;

- persons with special medical needs ;

- cases involving disputes as to nationality ; and

- cases where the asylum seeker was violent or uncooperative .

NORP In addition , all persons believed to be at risk of absconding ( from GPE ) were not deemed suitable for detention at GPE .

The Oakington Reception Centre has high perimeter fences , locked gates and TIME security guards . The site is large , with space for outdoor recreation and general association and on - site legal advice is available . There is a canteen , a library , a medical centre , social visits room and a religious observance room . The following description was used in the present case :

“ All of the normal facilities provided within an immigration detention centre are available – restaurant , medical centre , social visits room , religious observance and recreation . The practical operation and facilities at ORG are , however , very different from other detention centres . In particular , there is a relaxed regime with minimal physical security , reflecting the fact that the purpose is to consider and decide applications . The site itself is very open with a large area for outdoor recreation and general association or personal space . Applicants and their dependents are free to move about the site although , in the interests of privacy and safety , there are CARDINAL areas where only females and families may go . ”

The ‘ House Rules’ for ORG require , inter alia , that detainees must vacate or return to their room when required ; that mail may be required to be opened in front of officers ; that detainees must eat at set times and that visits can only be received at particular times . Further , detainees must carry identification at all times ( to be shown to officers on request ) ; must obey all staff and attend roll - calls . Male detainees are accommodated separately from their spouses and children and can not stay with them TIME .