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

Mr H. , a NORP citizen born in DATE , lives at Vandoeuvre ( Meurthe - et - GPE ) . In DATE he entered the teaching profession as a primary - school supply teacher and worked continuously until DATE .

ORG In DATE Mr H. went to ORG , taking with him a letter of introduction from his general practitioner to Professor PERSON , the head of the neurological clinic . As Professor PERSON did not hold a surgery on DATE in question , PERSON was examined in the neurological clinic by PERSON , the doctor in charge of " Department CARDINAL " of the psychiatric clinic . PERSON allegedly assured him that his problems were " not very serious " but apparently advised him to enter hospital for " a fortnight at most " in order for the doctor to get to know him better .

The general practitioner ’s letter and the report of this first examination are said to have disappeared from PERSON hospital file .

ORG On DATE , on PERSON recommendation but without having been ordered by him to stop work , PERSON , who was unaccompanied , reported to the neurological clinic at ORG for observation , thinking that he would be in hospital for DATE and of his own free will . He allegedly waited for a house physician for TIME and was then placed in " Department CARDINAL " . The admission notes read as follows :

" Presented himself alone at TIME Being treated by Dr PERSON and seen by PERSON . ‘ I do n’t feel right , I do n’t know what ’s wrong with me . I ’m depressed.’ has been for DATE . asthenia , difficulties with work . no interest in anything . ( Limited answers , difficulties expressing himself . ) Has worked withouta break until DATE . unmarried . lives with his parents at ORG . Referred to CARDINALB. "

The applicant claims that the comments on an interview of DATE have been antedated and that the pages of his file covering the period from DATE to DATE have vanished .

ORG On DATE Professor ORG , the head of the psychiatric clinic , diagnosed the applicant as suffering from schizophrenia with developing symptoms of catatonia ( a state of motor and mental inertia ) and prescribed narcoanalysis , i.e. an investigation of the subject ’s unconscious after he has been put into a sleeplike state . This was allegedly the only occasion on which he examined PERSON TIME before a large group of students , at a time when PERSON was already being treated with neuroleptic drugs .

ORG On DATE a house physician , PERSON , instead of carrying out the narcoanalysis prescribed DATE , gave PERSON an intravenous injection of an unspecified dose of " Maxiton " dexamphetamine , which caused " amphetamine shock " .

In so doing , he acted , so the applicant alleges , without either a prior examination or PERSON consent , on a purely experimental basis , in public and without the knowledge even of the CARDINAL persons primarily responsible for " Department CARDINAL " , PERSON and PERSON .

The injection allegedly brought about something akin to a myocardial infarction together with violent muscular contractions and hysterical fits , of which the applicant immediately complained , as appears from the medical file .

Mr H. further claims that PERSON , who was on leave at the time , had promised him that no treatment would be given him without his ( Mr H. ’s ) consent ; the doctor is said not to have learned what had happened until he returned .

In an article entitled " Methods of inducing shock ( other than ECT and Sakel ’s method ) " , published in DATE in the ORG médico - chirurgicale , PERSON and PERSON wrote , under the heading " Amphetamine shock " :

This treatment should not be given to patients with weak cardiovascular systems or to those suffering from hypertension , coronary disease or atheroma .

Catatonic symptoms are generally worsened in certain schizophrenics , and may even make their first appearance after amphetamine shock .

There is lasting therapeutic benefit in comparatively few cases .

ORG After spending CARDINAL and a half months in " Department CARDINAL " , PERSON left hospital on DATE . He claims to have resumed work as a primary - school teacher the very DATE - although it was only with the greatest difficulty that he managed to remain up - in order that the holidays should not be counted as sick leave and for fear of being transferred to " another institution " .

ORG On DATE he received a letter from a school doctor requesting him to undergo a medical examination on DATE . The doctor decided that PERSON condition made it necessary for him to go on sick leave , and this began DATE . On DATE a ORG medical board studied his file and took a " decision to remove " , which was upheld on appeal on DATE .

PERSON name was subsequently taken off the list of supply teachers in the département , with effect from DATE .

ORG On DATE ORG of the départements of ORG , ORG and GPE informed the applicant that he had been registered with effect from DATE as a Category CARDINAL disabled person ( " capable of performing paid work " - PERCENT disablement ) . After a further medical examination on DATE , he was registered as a Category CARDINAL disabled person ( " wholly unable to perform any work " - PERCENT disablement ) , and remained in that category until DATE , his registration being renewed in DATE .

From DATE until DATE he did not receive his pension , as a medical examination on DATE had shown that the extent of his disablement had dropped to PERCENT . Since DATE he has again been receiving a LAW pension .

Mr H. allegedly learned from a letter of CARDINAL DATE written by Professor PERSON that the drug injected by the house physician in DATE was not a " powerful tonic " , as he had been told at the time , but an amphetamine . He claims that in DATE he asked ORG to disclose his medical file and that his request was refused .

ORG On DATE he applied to the appropriate office of ORG for legal aid . He was granted this on DATE , on the grounds that legal representation was compulsory in ORG and that that court would probably order investigative measures . The sum ordered to be paid out of public funds for the expenses and fees of the lawyer appointed was CARDINAL FF .

ORG On DATE , at the request of his lawyer , PERSON obtained a medical certificate from PERSON , the general practitioner who had been treating him since DATE . It read as follows :

" I , the undersigned , certify that Mr H ... , aged DATE , a graduate in ORG ) , has been treated by me for DATE for the following complaints : Extreme liability to physical and mental fatigue with major dystonic consequences , feelings of loss of concentration and of speech disturbances associated with feelings of paralysis on the left side of the body .

These complaints are reflected objectively in electroencephalographic disturbances , which were clearly shown up in DATE :

‘ Irregular electrical activity combining a moderate number of unstable alpha waves with numerous irregular theta - delta potentials and with anterior and posterior bilateral spikes , aspects increased by hyperpn÷a with strong photic stimulation.’ PERSON .

At times , complete physical prostration with depressive ideas , weariness of life , painful sensations of mental blankness with pressing need to be alone and even to take to his bed .

These various complaints currently make any gainful activity impossible .

Mr H ... ’s extreme tendency to physical and mental fatigue makes it impossible for him to work to any regular pattern or to be at all productive , he very quickly feels rejected by any working teams he tries to be part of , and he feels such rejection very keenly .

The problems reportedly go back to about DATE , but PERSON ... claims that they grew markedly worse in DATE while he was in ORG psychiatric clinic and PERSON attributes this worsening to the pernicious effect of an intravenous amphetamine injection he received during his stay in that clinic .

This certificate has been given to [ Mr H. ] in person and at his request , for the appropriate legal purposes .

This certificate may not be used in court proceedings . "

Although intended solely for the lawyer , this document was nonetheless given by the latter to ORG .

ORG On DATE Mr F. took out a writ against the hospital , returnable at ORG , with a view to having the hospital declared liable for the harmful consequences of the intravenous amphetamine injection . He asked the court :

" Before giving judgment : [ to ] appoint a specialist doctor [ as ] an expert with instructions to examine the plaintiff , obtain all documents , interview all persons able to give information , give an opinion on the physical damage sustained by the plaintiff and generally carry out the instructions given him by the court . "

On DATE the court served the writ and statement of claim on the hospital .

ORG The hospital instructed a lawyer on DATE and filed CARDINAL pages of defence pleadings on DATE . It conceded that PERSON had indeed been given an amphetamine injection in DATE but resisted the claim on the ground that it was time - barred under the special statutory limitation period of DATE for actions against public bodies and further argued that " the complaints regarding the treatment received [ were ] quite absurd and manifestly due to an insufficiently stable mental state " .

The court served the pleadings on Mr F. on CARDINAL DATE .

ORG After CARDINAL reminders from the court - dated DATE and CARDINAL DATE - , PERSON produced his pleadings in reply on DATE . He sought a determination of " the hospital ’s negligence " , " the disablement suffered by the plaintiff " and " the causal link between the hospital ’s negligence and this disablement " , and to that end he earnestly requested that the court should appoint an expert .

Mr H. moved house in DATE and again in DATE , after obtaining a council flat . On each occasion he informed his lawyer .

ORG On CARDINAL DATE the court asked PERSON to advise it of PERSON social - security number and of the office with which he was registered . PERSON DATE , on DATE , after a reminder dated DATE . He had notified PERSON of the request on DATE and again on DATE , and PERSON had given him the requisite information .

On DATE the court asked PERSON for this information again . According to the ORG , this was a mistake on the part of the registry , which had probably lost or misfiled the letter of DATE ; moreover , when telephoned by the court , PERSON had allegedly said that he did not have the information in question and was not able to provide it straightaway because his client was refusing to give it to him . It is not clear from the evidence at what juncture the court registry realised that it was pointless to persist in asking for information it already had .

ORG On DATE ORG informed ORG that it did not intend to intervene in the case .

ORG On DATE the court summoned the parties to a hearing on DATE .

ORG DATE before the hearing , on DATE , the hospital submitted their final pleadings . They were not served either on Mr F. or on PERSON As PERSON considered that his presence was unnecessary since the proceedings were in written form , he did not appear and was therefore unable to reply to these pleadings , whereas Mr L. appeared for the defendant .

ORG On DATE of the hearing , ORG asked the court for PERSON address , notwithstanding that according to PERSON it had been paying him his disablement pension since DATE and that he had not changed address since DATE .

ORG dismissed the action on CARDINAL DATE , for the following reasons :

" Even supposing that a worsening of Mr H ... ’s condition was observed in DATE , the evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in DATE ; consequently , in the absence of any causal link between the injection complained of and the alleged damage , and seeing that such a link can not in this instance be presumed , PERSON ... has no grounds for seeking to establish the hospital ’s liability ; ... it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed . "

ORG On DATE the court served the judgment on the applicant by registered letter with recorded delivery , but ORG returned the letter marked " not known at this address " .

On DATE the court asked PERSON to give it PERSON new address . The lawyer replied on DATE that he did not know it . On DATE , the court attempted to serve the judgment on the applicant through a court bailiff .

ORG Concerned at the length of the proceedings , PERSON telephoned the ORG registry on DATE . He learned that the court had given judgment on CARDINAL May and he immediately gave his address ; he received a copy of the judgment on DATE .

ORG On DATE wrote to the leader of ORG , to complain of the shortcomings on the part of the lawyer who had been assigned to him by ORG . In particular , he blamed Mr F. for always losing his address , for not having informed him of the date of the hearing and for not having appeared in court on DATE .

After interviewing PERSON , the leader of the Bar disposed of the complaint in a letter dated DATE , in which he endorsed PERSON explanation , namely that he had seen no point in appearing at the hearing because the proceedings were essentially in written form and were designed , in the first instance , to secure the appointment of an expert on the basis of " medical certificates which [ had ] been submitted to the court " .

Mr H. appealed to the ORG d’État on DATE by lodging pleadings and a file . He asked whether he could argue his own case and , if not , what he should do to secure the assistance of a lawyer and the appointment of a medical expert , which he maintained was essential .

ORG On DATE the Secretary of ORG of the ORG d’État acknowledged receipt of the appeal , which had been registered in the registry on DATE .

On DATE he again wrote to PERSON , to tell him that an application such as his was not exempt from the requirement that he should be represented by a lawyer , and that he had DATE in which to apply for legal aid .

On DATE made an application for legal aid , requesting the assignment of a lawyer who was genuinely willing to represent him ; this was so that he could be sure that his interests would be defended conscientiously .

ORG By a decision of CARDINAL DATE , notified on DATE , ORG at the ORG d’État granted PERSON legal aid , setting the amount to be paid to the lawyer at CARDINAL FF .

The lawyer , PERSON , was appointed by the leader of the Bar on DATE and contacted PERSON on DATE .

ORG The applicant forwarded to the PERSON d’État a certificate issued by PERSON on DATE , which read as follows :

" I , the undersigned PERSON , hereby certify that I have been treating PERSON ... for DATE and that on CARDINAL.CARDINAL.CARDINAL I gave him a medical certificate for his lawyer , purely for information purposes and in confidence .

This certificate bore the words : ‘ THIS CERTIFICATE MAY NOT BE USED IN COURT PROCEEDINGS’ , followed by my signature

Despite being formally so marked , the certificate was made use of by ORG , and moreover as evidence against PERSON ...

The use made of the certificate is clearly indicated in the report of the judgment , which states :

‘ The evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in CARDINAL ...

... ‘ it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed’ ...

Accordingly , it seems to me that Mr H ... is fully entitled to appeal against a judgment based largely on a medical certificate which was not officially admissible .

I , the undersigned , hereby certify that on CARDINAL.CARDINAL.CARDINAL , a medical opinion was indeed essential , as it still is DATE , in order to study the course of PERSON ... ’s illness before and after the treatment given him by ORG .

In support of my certificate , I would cite a letter sent to PERSON ... on DATE by Professor PERSON , the doctor in charge of the department in which Mr H ... was treated .

In that letter Professor PERSON wrote :

‘ The hospital ’s regulations do not allow me to send you your medical file . But if a doctor or an expert wishes to inspect it , we will make it available to him in its ORG

Mr H ... has shown me this letter and is willing to make it available to the ORG d’État .

Lastly , I , the undersigned , hereby certify that the reason why in DATE I did not give PERSON ... a certificate which could be used in legal proceedings was that I thought that under the legal - aid scheme and without a judgment of the court it was possible for PERSON ... ’s lawyer to request an expert medical opinion on his own initiative which would be paid for direct by the legal - aid fund , in view of his client ’s financial difficulties at the time .

It appears that this was not possible , but I , the undersigned , hereby certify that I was not informed of this before the GPE court ’s judgment . Otherwise I would obviously have advised PERSON ... to try to finance for himself an authoritative expert medical opinion which he could have submitted to the GPE court with his file .

Steps must therefore be taken to ensure that a similar situation does not arise again and I have therefore advised PERSON to ask the PERSON d’État for the list of medical experts from which he could choose an expert who might agree to draw up an opinion in defence of PERSON ... ’s medical interests before the ORG d’État , provided that the fees of these experts remain within limits compatible with PERSON ’s current resources if he is required to pay these fees himself .

I shall be able to give this expert all the medical information known to me in connection with this case , medical information which it is impossible for me to set out and discuss here , even in summary form , as part of this certificate .

Lastly , I certify that Mr H ... ’s current position is much the same as in DATE as regards both his state of health and his financial resources , and that consequently it will be only with the greatest difficulty that he will be able to take the measures necessary for the preparation of the file for his appeal to the ORG d’État .

PERSON , CARDINAL.XI.CARDINAL

This certificate has been given to [ Mr H. ] for the appropriate legal purposes .

THIS CERTIFICATE MAY BE USED IN COURT PROCEEDINGS . "

ORG After unsuccessfully asking several doctors to go through his medical file at ORG , PERSON approached PERSON , a radiologist in Schiltigheim , who agreed and was appointed for the purpose on DATE . Professor PERSON consented to the inspection , stating that the file would be made available TIME

The applicant claims that on CARDINAL DATE PERSON was given access only to a " falsified and truncated " file ( see paragraphs CARDINAL and DATE in fine above ) and was allowed to photocopy CARDINAL pages of it .

On DATE PERSON drew up a CARDINAL - page report with several appendices . In it he concluded inter alia :

" It can be stated that had PERSON ... been treated less drastically , without the use of this highly dangerous drug , which destroys the physiology of the brain , he would have stood a good chance of leading a normal life , of being able to work and to earn his living instead of leading the life of an invalid .

ORG should therefore be required to compensate him . "

PERSON produced this report to the ORG d’État . He states that it did not have the status of a medical opinion by a court expert as PERSON had not personally examined him and had only been able to study the file made available by the hospital .

ORG On DATE PERSON filed supplementary pleadings seeking the appointment of an expert who would assess the extent of the damage suffered and , if necessary , would establish the causal link between the injection complained of and the state of PERSON health .

On DATE the presiding judge of ORG ordered that these pleadings should be served on the hospital and ORG .

On DATE the hospital produced its defence pleadings , in which it relied in particular on the special DATE limitation period for actions against public bodies . ORG filed pleadings on DATE in which it expressed the following opinion :

" As is pointed out in ORG defence pleadings of DATE , the decisions on the presumption of imputability associated with a presumption of negligence constitute an exception and they all relate to cases in which the consequences of a given treatment are so incommensurate with what would normally be foreseeable that they suggest professional negligence .

This is not so in the instant case . The treatment given in DATE was carried out in accordance with proper practice and it is difficult to suppose that an injection administered in DATE could have had consequences that did not become apparent until DATE , seeing that the patient had had problems as far back as DATE , even though in DATE he did have to be struck off the list of supply teachers in the département after an opinion had been given by a medical board . As ORG rightly recognised , the causal link between the injection and the damage relied on is wholly unsubstantiated .

PERSON in writing on DATE , asking the PERSON d’État to " order an expert to be appointed to assess the extent of the damage suffered and possibly establish the causal link between the intravenous injection administered in DATE and the state of PERSON ’s health " .

The applicant asserts that in DATE he again ( see paragraph CARDINAL above ) asked the hospital for access to his medical file , and that this was refused .

ORG At the PERSON d’État hearing on DATE , Mr PERSON , a Government Commissioner ( commissaire du ORG ) , made the following submissions :

" Mr H ... , who was born in DATE and at the material time was a primary - school teacher , was admitted on DATE to the psychiatric clinic of ORG suffering from depression . On DATE ‘ amphetamine ORG treatment was administered . This consists in an injection of amphetamine - in this instance ‘ ORG [ dexamphetamine ] - designed to overcome the patient ’s emotional and affective inhibitions , thereby facilitating analysis of his psychological problems . In PERSON ... ’s case this procedure caused what the doctors described as an ‘ aggressive and anxious’ reaction , and PERSON ... complained of various problems . He left hospital on DATE , however , and apparently went back to work . He was again placed on sick leave from DATE and then on DATE his name was removed from the list of primary - school teachers for the département .

In DATE after his stay in hospital - Mr H ... asked ORG to compensate him for the harmful consequences of the amphetamine injection he had been given in DATE , consequences which he alleged had not become apparent until DATE . When the hospital refused , [ Mr H. ] brought an action in ORG to have the hospital declared liable and an expert appointed in order to assess the extent of the damage caused . In a judgment of [ CARDINAL ] DATE the court dismissed the action , [ pointing out ] that there was no causal link between the amphetamine injection complained of and the alleged deterioration in PERSON ... ’s health in DATE . Mr H ... is appealing against that judgment .

I consider that ORG was right in finding that a causal link had not been established . Admittedly , the very scanty evidence on which its decision was based has been supplemented , on appeal , by the medical file opened by the hospital in DATE and by a very well researched report . But it does not enable a real causal link to be established . The evidence shows that :

( a ) the appellant ’s psychological problems date back to before his admission to hospital in DATE ;

( b ) while he complained of real problems after the injection administered on DATE , the hospital carried out the necessary tests ( electrocardiogram , biological tests ) ;

( c ) when he left hospital on DATE , his state of health had improved , since he wished to return to work ;

( d ) his state of health seems to have worsened more particularly in DATE , as he was removed from the list of primary - school teachers and again admitted to hospital ;

( e ) in DATE , however , ORG found him PERCENT incapacitated for work and discontinued payment of his disablement pension , which was restored in DATE .

PERSON , who was consulted by the applicant ’s medical adviser , wrote : ‘ A single dose of amphetamine , however large , can only decompensate but not cause psychological disturbance . No one can say whether in any case your patient ’s psychosis [ would ] not [ have ] been decompensated at a later date.’

In these circumstances , I do not consider that a causal link has been established or that the presumptions relied on are sufficient to justify ordering the expert opinion applied for .

Contrary to the appellant ’s submission , a causal link can not be presumed . Admittedly , in our case - law negligence in the organisation or functioning of a hospital is presumed where a common , mild form of treatment - in particular an injection - has caused particularly serious health problems ( DATE , ORG , page CARDINAL , and a great many decisions : CARDINAL DATE , ORG v. PERSON , page CARDINAL ; CARDINAL DATE , ORG , page CARDINAL ; DATE , ORG v. PERSON , page CARDINAL ; CARDINAL DATE , PERSON , ORG , page CARDINAL ; CARDINAL DATE , ORG , page CARDINAL ) . But in all these decisions it was noted at the outset that there was a direct relation of cause and effect between the treatment complained of and the damage relied on : it is the negligence which is presumed and not the imputability of the damage .

I believe that accordingly you can not but dismiss PERSON ... ’s appeal and affirm ORG judgment , without needing , it seems to me , to express a view either on the negligence alleged against the hospital or on the DATE limitation period on which the hospital relies .

( CARDINAL ) As regards the first of those points , I do not think it possible to say that the use of the ‘ amphetamine shock’ technique amounted , in DATE , to gross negligence , even though that technique has apparently now been superseded . Nor would it seem that special tests should have been carried out before it was used . On the other hand , I think that such a technique could not be used , even in the case of psychiatric treatment , without the patient ’s consent ( J. , DATE , PERSON , page CARDINAL ; DATE , ORG , page CARDINAL ) . The appellant , however , states - and it was not denied - that he was not told about the treatment .

( CARDINAL ) As to the DATE limitation period , the hospital could in any event only rely on it in respect of part of PERSON ’s claim , since the alleged damage is continuing damage and the date on which it stabilised has not been determined ( J. , DATE , PERSON , page CARDINAL ) .

For these reasons I submit that PERSON appeal must be dismissed . "

ORG On DATE the ORG d’État gave the following judgment :

" The PERSON d’État , sitting in its judicial capacity , ( ORG , CARDINALrd and CARDINALth sections combined ) ,

It is unnecessary to express a view on the hospital ’s objection that the action is time - barred under the DATE limitation period .

Mr H ... was admitted to the psychiatric clinic of ORG in DATE ; he claims that treatment received on that occasion - and , in particular , an intravenous amphetamine injection administered on DATE - caused a deterioration in the state of his health and led to a permanent disruption of his life .

It appears from the preliminary examination of the case and the evidence before us that there is no direct relation of cause and effect between the alleged deterioration in the appellant ’s health and the treatment he underwent at ORG in DATE .

The court below was accordingly right in dismissing the appellant ’s action against the hospital and his application for an expert to be appointed both to establish the links between the treatment and the alleged damage and to assess the latter ’s extent .

DECIDES AS FOLLOWS :

Mr H ... ’s appeal is dismissed .

This decision shall be served on Mr H ... , ORG and ORG . "

The judgment was served on DATE .

ORG On DATE wrote to the leader of the Bar of avocats practising at the ORG d’État and ORG to complain that he had been badly represented . In particular , he criticised PERSON for having never allowed him to speak to him directly before the hearing , for having avoided any dialogue " because he [ was ] legally aided and it would be detrimental to [ his ] case " , and for having refused to tell him of the date of the hearing and to send him the file , thereby preventing him from adding to it .

In a letter of DATE the leader of the ORG replied that he did not intend taking up each of his complaints , as they mostly showed his " ignorance of administrative procedure and its characteristic features " .


CASE OF ALATULKKILA AND OTHERS v. FINLAND

No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1

The applicants , all NORP nationals , are :

( i. ) Mr PERSON , born in DATE and resident in GPE , both as the owner of the real properties GPE CARDINAL:CARDINAL and PERSON in ORG and as Chairman of the ORG fishing association ;

( ii . ) Mr PERSON , born in DATE and resident in GPE , both as the owner of the real property PERSON CARDINAL:CARDINAL in Armassaari and as Chairman of the LAW fishing association ;

( iii . ) Mr PERSON , born in DATE and resident in GPE , both as owner of the real property PERSON in PERSON and as Chairman of the PERSON fishing association ;

( iv . ) Mr PERSON , born in DATE and resident in GPE , both as owner of the real properties ORG and Kaivosoja CARDINAL in ORG and as Secretary to the GPE fishing association ;

( v. ) PERSON , born in DATE and resident in GPE , both as owner of the real property ORG CARDINAL:CARDINAL in ORG and as Chairman of the PERSON whitefish fishing association ;

( vi . ) Mr PERSON , born in DATE and resident in ORG , both as owner of the real property Kaishannu CARDINAL:CARDINAL and as Chairman of the NORP fishing association ;

( vii . ) PERSON , born in DATE and resident in GPE , both as owner of the real properties PERSON , PERSON , GPE CARDINAL:CARDINAL and Paavola CARDINAL:CARDINAL in Pirkkiö and as Chairman of the NORP association for joint ownership ;

( viii . ) PERSON , born in DATE and resident in GPE , both as owner of the real property PERSON and as Chairman of the NORP association for joint ownership ;

( ix . ) Mr PERSON , born in DATE and resident in ORG , both as owner of the real property Rantalahti CARDINAL:CARDINAL in Laivaniemi and as Chairman of the ORG association for joint ownership ;

( x. ) Mr PERSON , born in DATE and resident in ORG , both as owner of the real property Stark CARDINAL in PERSON and as Chairman of the PERSON fishing association and the PERSON association for joint ownership .

The applicants are owners of water areas , or are fishermen , in LOC . They are also elected representatives of their respective local fishing co - operative ( kalastuskunta , fiskelag ) or association for joint ownership ( jakokunta , osakaskunta ; samfällighet , delägarlag ) .

By decision of DATE and in application of ORG ( kalastussääntö , fiskestadgan ) for LOC ( ORG / ORG älv ) Area , the NORP - Swedish ORG ( suomalais - ruotsalainen rajajokikomissio , finsk - svenska gränsälvskommissionen ) prohibited inter alia all fishing of salmon and sea trout in the relevant waters in the open sea during DATE and DATE . Fishing other species in the relevant sea area with fixed equipment was prohibited during the periods CARDINAL May-CARDINAL DATE and CARDINAL May-CARDINAL DATE . ORG further prohibited all fishing of salmon and sea trout in the river area , except for fishing with hand - held equipment which was authorised on DATE during the period CARDINAL May-CARDINAL DATE and CARDINAL May-CARDINAL DATE . With some minor exceptions , all fishing in the river area was prohibited during the periods CARDINAL September-CARDINAL DATE and DATE .

The DATE 's decision was announced publicly on DATE .

The Fishing Regulation was issued following the enactment of Act no . CARDINAL incorporating the NORP - Swedish Frontier Rivers Agreement ( as far as GPE was concerned ) . A subsequent agreement to amend Annex B of the Agreement was incorporated into NORP law by Decree no . CARDINAL/CARDINAL , entitling ORG to decide on the protection of a particular fish species or on the prohibition or restriction of fishing with equipment which had proved harmful for the species either in the entire fishing area or in a specific part thereof , provided such a measure was deemed necessary for the preservation of the species in question for a maximum period of DATE at a time ( section CARDINAL , subsection CARDINAL of the Regulation ) .

The applicants indicated at paragraph CARDINAL(x . ) above received FIM CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) in compensation paid out of the supplementary ORG budget for DATE with a view to covering economic losses which they suffered during the DATE due to the restrictions imposed by ORG . The relevant Government decision ( no . CARDINAL ) was applicable to professional fishermen fishing in the sea area adjacent to the ORG river .

Meanwhile , on DATE ORG ( högsta domstolen ) dismissed charges concerning fishing in violation of the prohibition which ORG had imposed on fishing with certain equipment . ORG held that the ORG 's order issued by virtue of section CARDINAL , subsection CARDINAL of ORG could not be applied , since LAW had not been brought into force and implemented as required by LAW , namely by LAW ( decision No . DB CARDINAL ; ORG DATE p. CARDINAL ) .

At DATE GPE and GPE declared that certain provisions of ORG , including section CARDINAL , subsection CARDINAL of the Regulation , should not be applied .

Thereafter GPE enacted GPE in LOC ( CARDINAL ) which entered into force on DATE . The LAW entitles ORG to issue rules concerning fishing on the NORP side of the ORG river . A decision to that effect ( CARDINAL ) entered into force at the same time as the LAW . The decision was essentially identical to ORG decision of CARDINAL DATE . In DATE the ORG issued a new decision ( CARDINAL/CARDINAL ) .

Meanwhile , on DATE ORG ( GPE ) found that the sections of LAW concerning prohibited fishing equipment and applicable sanctions fell within the scope of the legislation . As Annex B ( containing LAW ) had been brought into force by a Decree , ORG decided not to apply certain sections of the LAW by virtue of section CARDINAL , subsection CARDINAL of LAW ( NORP hallitusmuoto , PERSON för GPE , CARDINAL ) which was in force at the material time ( decisions CARDINAL . CARDINAL - CARDINAL ) .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) dismissed a request lodged by , among others , the associations represented by applicants listed at paragraph CARDINAL . ) above , and whereby they sought to have ORG decision of DATE annulled . The associations had argued that the decision was contrary to the LAW and ordinary law ( including LAW as incorporated ) . Furthermore , the Commission had allegedly failed to hear the associations in a matter affecting the civil rights both of individual owners of fishing waters and of fishermen entitled to the continued enjoyment of the compensation in natura which had been awarded by ORG in DATE . The applicants did not request an oral hearing before ORG .

In its submissions to ORG had stated , inter alia , that it was hardly for an organ established by a bilateral agreement to examine whether LAW contravened LAW . The fishing restriction addressed in the annulment request had been imposed of ORG own motion after it had afforded the known parties an opportunity to comment in writing on the fishing restrictions proposed by the NORP and the NORP expert whom ORG was regularly consulting . According to the dispatching list , all those who had sought an annulment – except for the ORG association for joint ownership ( the applicants at paragraph CARDINAL(ix . ) above ) DATE had been so consulted and had also commented on the proposal . The nature of the matter had not been such that an oral hearing could have been expected to further the examination thereof .

ORG further opined that the prohibition in question had only concerned salmon and trout and had been consistent with the restriction imposed simultaneously in respect of the NORP coastal waters . Moreover , as the ORG 's decision of DATE was to be considered administrative in nature , LAW did not provide for any ordinary appeal against it , nor for any extraordinary remedy .

ORG had also obtained opinions on the annulment request from ORG and ORG . The applicants had commented on the aforementioned CARDINAL opinions .

In its decision ORG held :

" The Frontier Rivers Agreement between GPE and GPE , annex B of it being LAW for the LOC fishing area , has been incorporated by law no CARDINAL/CARDINAL .

Article CARDINAL of chapter CARDINAL of ORG ordains that , unless there are other special provisions in the LAW , the applicable law in each ORG is the law in force in that ORG . With regard to the above , the national LAW is applicable where LOC does not contain special provisions on fishing .

According to paragraph CARDINAL , subsection CARDINAL of LAW , the LAW and the LAW issued on the basis of the LAW are applied also to waters located at the frontier of a ORG , unless there are provisions stating otherwise that are based on a contract with another ORG . Paragraph CARDINAL , subsection CARDINAL ordains , that when an international agreement binding on GPE or the preservation of fish stocks so requires , a decree can be used to bring into force provisions regarding the fishing or catching of seafood by NORP nationals outside NORP waters . On the basis of subsection CARDINAL of the same paragraph the decree may also , if an agreement referred to in subsection CARDINAL so requires or for another reason , contain provisions regarding restrictions on catching within or outside NORP waters .

A subsection CARDINAL has been added to paragraph CARDINAL of ORG for the LOC area on the basis of an agreement with GPE , incorporated with decree no PERSON , amending annex B of ORG . According to subsection CARDINAL , ORG may protect by law a species of fish or limit the use of a trap that has proven harmful , either for the entire fishing area or a part of it , if this is necessary for preserving the species in question , for DATE at a time . With regard to the above - mentioned paragraph CARDINAL of LAW , the said addition of subsection CARDINAL to paragraph CARDINAL of ORG could be brought into force with a decree .

It appears from the documents that a reply to the proposal by ORG concerning fishing restrictions for DATE and DATE was submitted in writing on DATE by inter alia the FAC fishing association , the NORP fishing association , the ORG fishing association , which on the basis of paragraph CARDINAL of LAW acts as legal representative in matters concerning the LOC area and the common special prerogative , as well as by the NORP fishing association and certain other associations . Considering the fact that the decision of ORG was issued on DATE , all the applicants for annulment have been aware of the pending project and have had the opportunity to make known their opinions on the matter before it was decided .

LAW , paragraph CARDINAL , subsection CARDINAL of LAW ordains , that if building in the waterways causes the fish or fishing apparent harm , the permit - holder should be charged with the duty to take action to prevent or reduce damage to the fish and fishing as well as , if needed , to monitor the results of his action in the water area where damage has also been done ( fish preservation duty ) . Such action may consist , according to the nature of the building and its effects , inter alia of planting fish stocks . According to chapter CARDINAL , paragraph CARDINALa subsection CARDINAL the same duty may be imposed on the holder of a permit .

The purpose of the above - mentioned fish preservation duty is not primarily to ensure certain amounts of catch , but to ensure the preservation of stocks of fish , which has also been the aim of the decision by ORG concerning the prohibition on the fishing of salmon and trout . The decision of ORG does not invalidate the aim of restocking obligations in the way presented in the annulment application . The purpose of the decision is to strengthen fish stocks and thus ensure fishing opportunities in the future . The decision of ORG can not on the grounds specified in the annulment application be held to be contrary to LAW .

On the basis of the above , the decision sought to be annulled is not based on manifestly incorrect application of the law or a ( procedural ) error that might have fundamentally affected the decision . Neither does the application contain any other annulment ground mentioned in paragraph CARDINAL of LAW . "

Informal negotiations between GPE and GPE on further amendments to the Agreement began in DATE .

NORP In a judgment of DATE ORG ordered the ORG to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the LOC river area on the basis of ORG at the time when it had been implemented by a Government Decree delegating to ORG , without a basis in an ORG , the power to restrict fishing ( case no . T CARDINAL - CARDINAL ) .

According to LAW , as in force up to DATE , everyone was to be equal before the law and his or her property was to be protected ( sections CARDINAL and CARDINAL ) . A judge or other official was under an obligation not to apply a provision in a Decree which conflicted with constitutional or other laws of ORG ( section CARDINAL , subsection CARDINAL ) . The LAW has been incorporated into NORP law by an ORG with the status of ordinary law ( CARDINAL/CARDINAL ) .

Under LAW anyone who had suffered an infringement of his rights , or damage , through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages , or to report him for the purpose of having charges brought ( section CARDINAL , subsection CARDINAL ) . A similar provision appears in section CARDINAL , subsection CARDINAL , of LAW ( NORP perustuslaki , PERSON grundlag CARDINAL/CARDINAL ) . LAW ( “ Basic rights and liberties ” ) of LAW was amended by Act no . CARDINAL which entered into force on DATE . The new LAW includes , inter alia , the right to property ( section CARDINAL ; as from DATE section CARDINAL ) and has been incorporated as such into LAW . Under LAW a court of law shall give primacy to a provision therein , if the application of a provision of ordinary law would be in evident conflict with LAW . If a provision in a Decree or any other statute of lower rank than an Act of Parliament is in conflict with the LAW or ordinary law , that provision shall not be applied by a court of law or any other public authority ( sections CARDINAL - CARDINAL ) .

Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings for damages may be initiated against the ORG on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority . The ORG 's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question ( Chapters CARDINAL and CARDINAL ) . The claim for damages must be made within DATE from the date when the damage occurred , unless a shorter limitation period applies ( LAW , section CARDINAL ) .

According to section DATE , subsection CARDINAL of ORG , a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed , if the decision is based on a manifestly erroneous application of law or on an error which may have had a fundamental effect on the decision , or if new evidence which could have had a relevant effect on the decision appears and it is not the fault of the applicant that the evidence was not presented in time .

According to LAW , the holder of a construction permit relating to a water area may , if the construction would clearly damage the fish stocks , be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters ( chapter CARDINAL , section CARDINAL , subsection CARDINAL ) .

A claim concerning a measure alleged to be in violation of LAW and whereby it is sought to have such a measure prohibited , the previous conditions re - established or damage compensated , may be lodged with the competent water court ( chapter DATE , section DATE , subsection CARDINAL ) .

The general right to fish in public water areas and within the NORP fishing zone does not include the right to fish salmon and sea trout ( see , for example , section CARDINAL , subsection CARDINAL , and section CARDINAL of LAW ) . Restrictions on fishing within or outside the territorial waters of GPE may be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on GPE , for safeguarding fish stocks or for any other comparable special reason . Domestic law applies to watercourses located in frontier areas , unless otherwise agreed on in an agreement between GPE and another ORG ( section QUANTITY ) . Non - compliance with a fishing restriction may be subject to prosecution ( sections CARDINAL ) .

A ORG concerning fishing legislation ( no . CARDINAL:CARDINAL ) suggested , in DATE , that limited rights in rem be abolished . However , in the Government PERSON for a new LAW ( no . CARDINAL ) , it was suggested that these rights of the ORG be maintained as being relevant for the protection of the salmon stocks . The provisions concerning the ORG 's fishing waters and fishing rights can now be found in chapter CARDINAL of the Fishing Decree ( DATE ) .

In a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) ORG ( vesiylioikeus , vattenöverdomstolen ) found that since time immemorial the owners of fishing waters in the Kemi river ( ORG ) and its estuary had been engaged in the fishing of salmon and sea trout without any state interference and with its de facto consent . Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area , provided they had been using legal fishing gear . ORG further found that the ORG too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters . In addition , compensation was awarded to the ORG for its loss of income from leasing out those waters .

ORG ( korkein oikeus , högsta domstolen ) found in its decision of CARDINAL DATE ( no . DATE ) that the damage which a company had caused by setting up timber floating routes in the PERSON river ( GPE , GPE älv ) had engendered effects on private owners of water areas , causing them losses which were to be compensated by virtue of LAW . The ORG , which traditionally had the right to fish salmon in the river , had not used that right for DATE , either by leasing out its waters or in any other way .

By judgment of DATE ( no . CARDINAL ) ORG upheld a decision of ORG of DATE which had dismissed various fishery associations ' claims for compensation for the allegedly failed restocking of the estuary of the Kemi river as ordered on DATE . ORG had found that the defendants had complied with the obligations imposed on them in DATE for the purpose of safeguarding the relevant fish stocks . In such circumstances the defendants could not be held responsible for the diminution in catches for which compensation had been sought .

In its precedent no . CARDINAL ORG examined an action for damages which a hydro - electric power company had brought against the ORG on the ground that a contract between the CARDINAL with a view to establishing CARDINAL power plants along the GPE river ( GPE , PERSON älv ) could not be implemented in full , as ORG had enacted legislation for the protection of the river ( CARDINAL/CARDINAL ) . The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the LAW on ORG and Special Rights ( PERSON ) . ORG declined to examine this part of the claim as the costs to be compensated had already been finally determined in the procedure under LAW .

In so far as the company had claimed compensation for projected profit and related losses , ORG dismissed the action after having examined its merits . ORG reasoned , inter alia , as follows :

“ ... The contract did not bind the legislative arm . Possible legislative changes and the possibility that no construction permit would be granted were specifically taken into account in the contract . The Government is therefore under no obligation to compensate for the economic losses suffered by the company due to the fact that the contract for the construction of the power plant was never implemented . The company is therefore not entitled to any compensation ... other than that stipulated in the [ specific LAW on the protection of the river ] . ... ”

An account of domestic law can also be found in the ORG 's judgment in GPE and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG first by PERSON , a lawyer practising in GPE , then by PERSON PERSON ORG , a lawyer practising in GPE .

In DATE , following a complaint lodged in DATE and the ensuing police investigations , of which the applicant was aware , the GPE public prosecutor ’s office started a judicial investigation into the activities of the applicant and other persons suspected of fraud and misappropriation of funds . On DATE the applicant ’s home was searched . On DATE the applicant was arrested and remanded in custody . On DATE the prosecutor ’s office sent the indictment to ORG , which opened the main proceedings on DATE . On DATE , after having held CARDINAL hearings , ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment for CARDINAL instances of fraud and misappropriation of funds committed DATE . In its reasoning it noted , inter alia , that there had been no unlawful delays in the proceedings , that the investigation had been complex and that the applicant , by his conduct , had been the cause of the delays in the main proceedings .

On DATE ORG declared an appeal on points of law inadmissible in so far as alleged procedural irregularities were concerned , and the remainder of the appeal ill - founded .

On DATE a bench of CARDINAL judges of ORG rejected a constitutional appeal lodged by the applicant ( no . CARDINAL BvR CARDINAL/CARDINAL ) without giving reasons . The applicant received the decision on DATE .


The applicant , PERSON , is a NORP national who was born in GPE and lives in GPE .

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

On DATE the applicant was sued by certain PERSON and PERSON , the owners of the “ PERSON ” company , before ORG ( Sąd Rejonowy ) . They sought his eviction .

The proceedings are pending .

On DATE the applicant lodged a claim against the “ PERSON ” company with ORG ( PERSON ) . He sought a judgment stipulating that the defendant was obliged to make a declaration of will ( oświadczenie woli ) in the form of a consent to the sale contract .

The proceedings are pending .

On DATE the applicant sued the “ PERSON ” company before ORG , seeking payment .

The proceedings are pending .

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

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

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

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

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

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

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

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

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

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

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


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .

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

On DATE ORG ( PERSON ORG ) , GPE established that GPE , a NORP national living in GPE , was the father of the applicant ’s son , PERSON , born in DATE . The court ordered PERSON to pay child support .

At an undetermined time Franjica PERSON sought an enforcement of ORG judgment with ORG ( PERSON sodišče v PERSON ) on behalf of her minor son .

On DATE ORG upheld the request and allowed the enforcement in order to collect the unpaid child support . The enforcement officer ( izvršitelj ) tried , on two occasions , to enforce the judgment by attachment ( zaplemba ) of the debtor ’s personal property , but the latter evaded the enforcement .

On DATE PERSON objected to the enforcement order . The objection was allowed on DATE .

On DATE Franjica Žagar appealed against the decision of CARDINAL DATE to ORG ( PERSON ) .

On DATE the Convention took effect with respect to GPE .

On DATE ORG upheld the appeal and remitted the case for fresh examination .

On DATE ORG ( ORG sodišče v PERSON ) gained jurisdiction in the present case due to the reform of the NORP judicial system .

On DATE the court denied the debtor ’s objection of CARDINAL DATE and upheld the enforcement order .

On DATE PERSON lodged an appeal with ORG .

On DATE the court dismissed the appeal . The enforcement order thus became final .

On DATE the enforcement officer attempted to carry out the enforcement order , but PERSON was not to be found .

On DATE ORG informed PERSON that the enforcement was unsuccessful and requested her to furnish the debtor ’s new address . She informed the court of the debtor ’s new address on DATE .

On DATE Franjica Žagar requested the court to continue with the enforcement .

The attempt of attachment made in DATE was also fruitless .

On DATE , after the court had learned that the debtor had moved , the case was transferred to ORG ( PERSON sodišče v ORG ) .

On DATE , after another attempt of attachment was made , the enforcement officer informed the court that no objects suitable for attachment were found at the debtor ’s new address .

On DATE Franjica Žagar again urged the court to find a solution to the issue .

On DATE the court made inquiries with the debtor ’s bank , employer and at his address to determine how to proceed with the enforcement . As a result , the court requested PERSON to again propose the attachment of the debtor ’s property .

Upon reaching the age of maturity , Mr PERSON , represented by a lawyer , requested the continuation of the enforcement proceedings by attachment of debtor ’s personal property or funds .

Following the changes in the legislation , the court appointed a new enforcement officer and requested PERSON , on DATE , to pay an advance on the enforcement officer ’s expenses within DATE . The time - limit was subsequently extended and PERSON paid the advance on DATE .

On DATE the court ordered the enforcement officer to proceed with the enforcement .

A new attempt of attachment was unsuccessful , because the debtor had moved again .

On DATE the court requested PERSON to provide the debtor ’s new address . He complied DATE .

On DATE the court appointed a new enforcement officer , since the previous one ceased to exercise his functions .

On DATE Žan Žagar made a proposal for enforcement by new means for attachment . He also sought the re - evaluation of the payments due .

On DATE the court dismissed the proposal for re - evaluation . However , on DATE , the court upheld the proposal for enforcement by new means for attachment .

On DATE , PERSON appealed against the decision of DATE to ORG .

On DATE , the creditor objected to the order of DATE .

The court refused the objection on DATE .

On DATE the debtor appealed to ORG .

On DATE ORG dismissed the appeals of DATE and DATE .

On DATE the enforcement officer was informed of ORG decision .

On DATE the court ordered the enforcement officer to report on the progress made .

On DATE the enforcement officer learned that the debtor had been imprisoned on DATE for DATE .

The proceedings are still pending .