Preliminary objection dismissed (non-exhaustion);Violation of Art. 2 with regard to death in custody;Violation of Art. 2 with regard to failure to carry out an effective investigation;Violation of Art. 3;Violation of Art. 13;Violation of former Art. 25;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , particularly concerning events on CARDINAL and CARDINAL DATE when PERSON , the applicant 's husband , was detained by police and subsequently died , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission heard witnesses in GPE from DATE and in GPE on DATE and DATE . The witnesses included the applicant ; her son PERSON ; her brother - in - law PERSON ; PERSON and PERSON , police officers who apprehended PERSON ; PERSON , ORG and PERSON , custody officers on duty over the period of PERSON detention ; PERSON , PERSON and PERSON , interrogation team officers who took PERSON to the hospital ; PERSON , the ORG public prosecutor who attended the autopsy ; Dr PERSON , the doctor at ORG who declared that PERSON was dead ; Dr PERSON , who conducted the autopsy ; Dr PERSON , Professor at ORG , a forensic expert called by the applicant , and PERSON , a member of ORG which had reviewed the autopsy carried out by PERSON .

The ORG also requested an expert opinion on the medical issues in the case from Professor PERSON , Professor of ORG at ORG , GPE ( GPE ) and Director of ORG .

The ORG 's findings of fact , which are accepted by the applicant , are set out in its report of DATE and summarised below ( Section A ) . The ORG 's submissions concerning the facts and the expert medical reports are also summarised below ( Sections B and C respectively ) .

PERSON , the applicant 's husband , worked as a taxi driver in GPE . At the time of events in this case he was DATE . He had no history of ill - health or heart problems .

On DATE PERSON was taken into custody by police officers from the anti - terrorism branch of ORG . PERSON was the officer in charge of interrogating him . PERSON was released at TIME on DATE . He told the applicant and their son PERSON that he had been beaten and immersed in cold water during TIME of his detention . He remained off work for DATE with a chill .

During an operation conducted to apprehend a number of persons suspected of involvement with the ORG ( ORG of Kurdistan ) , police officers came to the applicant 's house in DATE , looking for PERSON . He was on a wanted list for activities which included attending the PERSON ( Kurdish New Year ) celebrations on DATE and involvement in starting a fire and in an attack on the security forces in which CARDINAL person died and CARDINAL were injured . However , PERSON was out working in his taxi .

Police officers located PERSON at a taxi rank at ORG at TIME on DATE . Assistant PERSON and officers PERSON and ORG took him into custody . The apprehension report of the officers made no mention of any struggle or the necessity to use force to place PERSON in the police car . There was an inconsistency between their written statements later given to the public prosecutor on CARDINAL DATE when they stated that some pushing and pulling might have occurred and their evidence to ORG . In their oral evidence to the Commission delegates , PERSON and PERSON were adamant that they had to lead PERSON by the arms to the car but this did not involve the use of force and he did not receive any knocks or marks in the process . PERSON heard from the taxi drivers at the taxi rank that his father had not resisted arrest , nor had CARDINAL taxi drivers who were asked to give statements by the public prosecutor heard that PERSON had resisted arrest .

Agit PERSON was not taken to a doctor before being placed in a cell in the custody area . The Commission found that it was not established that he had suffered any injury on arrest or that he showed any signs of ill - health or respiratory difficulties .

The custody officer on duty , PERSON , entered PERSON arrival in the custody area as occurring at TIME on DATE . There was no information recorded or evidence accounting for the time which elapsed between his apprehension , which took place according to the arresting officers ' report at TIME , and his registration in the custody area at TIME

Assistant Superintendent PERSON was the leader of the interrogation team assigned to PERSON . His team included officers PERSON , PERSON and PERSON .

CARDINAL other suspects are known to have been apprehended in connection with the same operation : PERSON , taken into custody on DATE , and PERSON , detained also on DATE . A third suspect , PERSON , was also detained in the custody area in relation to the offences under investigation . PERSON took a statement from PERSON and PERSON on DATE . PERSON stated that he had been interrogated before the arrival of PERSON , which would have been on or before DATE .

No records existed of the movements of detainees to and from their cells , for example , noting the times of interrogations . The police officers concerned in the events denied in their statements to the public prosecutor taken CARDINAL DATE that PERSON had been interrogated during his detention , in particular , as no interrogations would take place before the operation was completed . PERSON , PERSON and PERSON gave oral evidence to the same effect to the ORG 's delegates . The ORG found that their assertion that PERSON had not been questioned during TIME following his apprehension to be implausible , inconsistent and lacking in credibility ( see the ORG 's analysis of the evidence , ORG 's report of DATE , § § CARDINAL - CARDINAL ) . Taking into account also the other evidence , it found that PERSON had been questioned by the interrogation team during his period of detention .

In TIME of DATE PERSON , PERSON , PERSON and PERSON brought PERSON to ORG . Dr PERSON examined him immediately . His heartbeat , breathing and other vital functions had stopped , cyanosis had developed on the face and ears and the pupils were dilated . He declared that PERSON was dead on arrival and concluded that he had died TIME previously .

According to a statement signed by the police officers who had said they had brought PERSON to hospital at TIME on DATE , the custody officer had informed them at TIME that PERSON was ill . The suspect told them that his heart was giving him trouble and they took him without delay to ORG emergency ward .

On DATE Dr PERSON , the forensic doctor at ORG , examined the body in the presence of the public prosecutor . The examination record noted that there were CARDINAL dried QUANTITY by QUANTITY graze wounds at the front of the right armpit , a fresh QUANTITY by QUANTITY graze on the front of the left ankle and an old traumatic ecchymosis measuring QUANTITY by QUANTITY on the front of the chest . There were no injuries from a pointed instrument or firearm . He concluded that an autopsy was necessary to discover the cause of death . The documents indicate that the autopsy was carried out DATE . Samples of organs were sent for analysis .

At TIME on DATE PERSON was brought by the police to ORG , where the public prosecutor informed him that his father had died of a heart attack . PERSON went to the forensic department on DATE to identify the body . The body was released to the family who undertook to bury it DATE . The family washed the body at the cemetery . PERSON saw bruises and visible marks in the armpits . There were marks in the back resembling holes . There were marks on one foot , which was swollen . CARDINAL colour photographs of the body were taken on behalf of the family .

On DATE Dr PERSON issued the autopsy report . It repeated the physical findings of the examination record , this time describing the ecchymosis on the front of the chest as purple . The internal examination disclosed that the lungs weighed CARDINAL g each and were oedematic and that the heart , weighing QUANTITY , was larger than the norm . The brain was oedematic . There was some indication of arteriosclerosis in certain vessels and the parietal layer of the myocard adhered tightly to the heart . The sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation .

Reference was made also to the histopathological report of CARDINAL DATE , which found chronic bronchitis in the lungs , arteriosclerotic changes narrowing the lumen in the coronary arteries and chronic constructive pericarditis , chronic myocarditis , myocardial hyperplasy and hypertrophy in the heart . The toxicology report of CARDINAL DATE found no abnormalities . The report concluded that the actual cause of death could not be established and suggested that the case should be referred to ORG .

On CARDINAL DATE the photographs taken by the family were handed over to the public prosecutor .

Statements were taken by the public prosecutor from the interrogating team ( PERSON , PERSON , PERSON and PERSON ) on DATE . Statements were taken from the arresting officers PERSON , PERSON and PERSON and the custody officers PERSON , ORG and PERSON on DATE . Statements were also taken from ORG and PERSON on DATE , the applicant on CARDINAL DATE , PERSON ( the father of PERSON ) on CARDINAL DATE , PERSON and ORG , CARDINAL taxi drivers , on CARDINAL and DATE respectively and from Dr PERSON on DATE .

On DATE ORG issued its opinion , which was signed by CARDINAL members of ORG , including PERSON . This report recalled that PERSON had been pushed and shoved during his arrest , that he had become unwell before his interrogation or , as was claimed , that he had died during interrogation . It deduced from the witness statements that he had been in his cell until he complained that his heart was giving him trouble , at which point he was taken immediately to hospital .

The report took up the findings of the internal and external examination conducted at the autopsy . It concluded that , apart from small , fresh , traumatic abrasions on the ankle and the old purple ecchymosis on the front of the chest , no other traumatic injuries were identified . The fresh haemorrhage around the sternum could be attributed to a resuscitation attempt . There was no evidence to suggest that he had died from any direct trauma . The superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle , although they could have been inflicted directly . They were not independently fatal . The relatively large size of the heart , the sclerosis in the heart arteries and the signs of an old infectious disease on the membrane and muscles of the heart , pointed to a long - standing heart disease . The report concluded that , although the deceased had lived and worked actively prior to his arrest , his death within TIME of being apprehended could have been caused by cardiac arrest connected with neurohumoral changes brought about by the pressure of the incident in addition to his existing heart disease .

On DATE the ORG public prosecutor issued a decision not to prosecute . He stated that at TIME on DATE PERSON had informed officers that his heart was giving him trouble and he had been taken to ORG , where he died . According to the forensic report , PERSON had had a long - standing heart disease , any superficial injuries could have occurred during his arrest and death was the result of a heart attack brought on by the pressure of the incident and his heart problem . There was no evidence justifying a prosecution .

On DATE the applicant appealed against the decision not to prosecute , claiming that PERSON had been interrogated and had died under torture .

On DATE the President of ORG rejected the applicant 's appeal .

On DATE the Minister of ORG referred the case to ORG under LAW . On DATE ORG quashed the non - prosecution decision and sent the case back to the ORG public prosecutor for the preparation of an indictment .

In an indictment dated DATE , QUANTITY police officers ( PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON ) were charged with homicide in case no . CARDINAL/CARDINAL . Hearings took place before ORG on , inter alia , DATE , DATE , DATE and DATE . The defendants pleaded not guilty . Oral statements were given by CARDINAL of the QUANTITY police officers ( PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) maintaining their written statements and denying any ill - treatment of PERSON . The court also heard PERSON , the father of PERSON , the applicant and Dr PERSON , the doctor on duty in the emergency ward at ORG . A written statement was obtained from ORG .

In its decision of DATE , ORG found that it could not be established that the defendants had exerted force or used violence on PERSON or threatened him or tortured him in order to force him to confess . The superficial traumas on his body could have derived from other causes , for example , when he was arrested . The forensic reports indicated that PERSON had died from his previous heart condition being compounded by superficial traumas . However , there was no evidence proving that the traumas were caused by the accused . It acquitted the defendants on the ground of inadequate evidence .

The applicant , who had been a party to the proceedings as a complainant , did not appeal against the acquittal which became final on DATE .

The ORG found , in light of the written and oral evidence , the photographs and the medical opinions given by Professor PERSON and Professor PERSON , that PERSON had died rapidly , without a prolonged period of breathlessness . There were marks and abrasions on his left ankle for which there was no explanation and there was bruising and swelling on the sole of the left foot , which could not have been caused accidentally . These were consistent with the application of falaka ( see paragraph CARDINAL below ) . The bruise in the centre of the chest had not been dated with any accuracy by histopathological means and had not been shown to be dissociated from the broken sternum . These injuries together could not have been caused by cardiac massage . ORG also disbelieved the oral evidence of officers PERSON , PERSON and PERSON that cardiac massage had been applied , noting that this had first been mentioned as having occurred when evidence was given before its delegates in DATE , DATE after the events . ORG concluded that PERSON had been subjected to torture during interrogation , which had provoked cardiac arrest and thereby caused his death .

On DATE the applicant was summoned to the anti - terrorism branch of ORG . A statement was taken by officers , on which her thumbprint was placed . It was headed “ Concerning her application for help to ORG [ institutions ] ” and began , “ The witness was asked : You are asked to explain whether you applied to ORG , if you asked for help and whether you filled in the application form . Who mediated in your application ? ” The statement purported to set out her explanations as to how she came to submit her application to the Commission . She confirmed that the legal aid documents had been filled in by her . In her oral evidence , which the ORG found credible and substantiated , the applicant claimed that she had been blindfolded , kicked and struck at the ORG and that the officers had told her to drop the case .

The applicant was summoned a second time . A report dated DATE , signed by police officers , listed details of the applicant 's income and expenditure and confirmed her declaration of means . On this or another date , she was taken before the public prosecutor and again asked about her statement of means . No threats were made during that interview .

The Government referred to the evidence given by the police officers , the autopsy report and the report of ORG , and the oral evidence of PERSON before the ORG 's delegates .

PERSON had suffered from a pre - existing heart disease . When he was arrested , he sustained minor injuries . The bruise on his chest , which was purple and therefore old , predated his arrest . During his detention in the custody area at ORG , he was not interrogated as the operation had not yet been completed . At TIME , he called for assistance and told the custody officer that his heart was giving him trouble . The custody officer sought help from the officers of the interrogating team who were waiting nearby for the next stage of the operation . These officers put PERSON , who was having difficulty breathing , in a police van and drove him to the hospital . On the way , they stopped the van and PERSON briefly applied mouth - to - mouth resuscitation and cardiac massage . They took PERSON to the emergency ward , where they were told that he had died .

The autopsy and the report of ORG established that PERSON had not suffered any major trauma , that the broken sternum was caused by cardiac massage and that he had died of natural causes , despite all possible assistance being given .

In her evidence before the Commission delegates , PERSON had expressed the opinion that the bruise on the chest was DATE and unrelated to the broken sternum and that the oedema in the brain was indicative of a prolonged period of breathlessness prior to death . No findings could be drawn from the photographs , which were amateur and of poor quality . She did not consider the lack of proper forensic photographs to be a major deficiency . There had been no findings of ill - treatment in the ORG 's report since there was no evidence of such . Cardiac arrest as in this case could be triggered by hormonal or environmental factors , such as extremes of temperature . If a direct blow had caused the bruise and fractured the sternum , she would have expected to see contusion and ecchymosis on the back surface of the sternum and bruising on the front and back surface of the right ventricle of the heart . While the lungs of an individual who had been breathless for TIME could generally be expected to increase to a weight of QUANTITY , this was not necessarily the case but depended on the individual ( see the summary of PERSON evidence , ORG 's report , § § CARDINAL - CARDINAL ) .

ORG Professor PERSON was Professor of ORG at ORG , and was , inter alia , a Fellow of ORG Overseas Fellow of ORG Pathologists , a Fellow of ORG and a Fellow of ORG . The report was drafted , inter alia , on the basis of the domestic autopsy documents and statements and testimony of witnesses . It may be summarised as follows .

The autopsy findings indicated that PERSON suffered from pre - existing natural heart disease , namely , chronic inflammation involving pericardial adhesions , which was old and inactive . In the distant past , he might have suffered from rheumatic heart disease , which would have manifested itself at that time as an acute febrile illness , without necessarily any symptoms of heart involvement . The heart was enlarged , weighing CARDINAL g , showing that the heart muscle had increased to compensate .

A heart with a weight greater than CARDINAL g might give rise to sudden unexpected death at any time as a consequence of an abnormality of heart rhythm . This might be precipitated by physical or emotional stress or occur apparently spontaneously without any precipitating event .

In addition to the heart disease , there were CARDINAL injuries .

At the front of the right armpit , there were CARDINAL abrasions , each QUANTITY by QUANTITY and described as dried and parchmented . It was not apparent whether they had been dissected to discover if there was any associated bruising but , given the description , it was reasonable to accept they were post - mortem changes .

There were CARDINAL grazes measuring QUANTITY by QUANTITY on the front of the left ankle and described as fresh and bloody . It appeared that these must have been caused during the period of police detention , but their location and size did not point to any specific cause .

There was a QUANTITY by QUANTITY bruise in the centre of the chest , which was described as old and purple in colour .

The sternum was fractured , with fresh bleeding in adjacent soft tissues .

The bruise to the chest directly overlay the fracture to the sternum . The haemorrhage around the fracture suggested that the fracture was produced before and not after death . The production of such a fracture would be sufficient to induce an abnormality in the rhythm of the underlying heart and thus cause a sudden death . Consequently , the fracture of the sternum represented a possible cause of death . While , theoretically , a fracture could be produced by DATE , it would be unusual , requiring impact on a raised object or edge and it would be associated with injuries to other parts of the body . Cardiac massage could also produce a fracture if very considerable force was applied . The fracture could also have been produced by a blow . In that case , bruising of the skin would be expected , even if the death which followed was rapid . Although Dr PERSON characterised the bruise on the chest as old and by implication as resulting from a different event , his own view was that , given that the bruise directly overlay the fracture , it would require compelling medical evidence to conclude that they were unrelated . PERSON opinion on the age of the bruise was based on the subjective , naked - eye assessment of the colour . However , the bruise was described as purple , which was entirely consistent with a fresh bruise . A bruise DATE would have been expected to have developed a yellowish tinge . A simple histopathological test would have clearly established whether it was a fresh bruise or an old bruise . Such a bruise would not have occurred as a result of the hand pressure applied during cardiac massage . His opinion was that , given the contiguity of the bruise and fracture and the absence of any clear evidence that the bruise occurred on a separate occasion , the bruise and fracture occurred at the same time as a result of a blow , which precipitated an abnormality of heart rhythm .

The autopsy findings , in particular the weight of the lungs ( CARDINAL g each , that is , close to the minimum ) indicated that the death was very rapid rather than prolonged . In individuals dying slowly with gradual heart failure , a lung weight of CARDINAL g was common and CARDINAL g could occur . This was the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and was expressed clinically by breathlessness and difficulty in breathing . Deaths involving instantaneous collapse were associated with light lung weight as in this case . A relatively slow death would also be associated with a congested liver . Thus , the autopsy findings and histopathological examination weighed heavily against the possibility of a prolonged dying period with symptoms of breathlessness and pointed rather towards a rapid death .

As regarded the autopsy procedures , these were seriously deficient . Although the CARDINAL theoretical possibilities for the fracture were external heart massage or a blow , no steps were taken to establish conclusively whether or not massage had been performed . The statement in the autopsy report that it could have been caused by massage did not represent a full and frank statement and could be misread to imply that PERSON had knowledge that such resuscitation was attempted whereas he did not . He should have distinguished fact from speculation . There was also a need to include as much descriptive detail as possible concerning the bruise , fracture and heart disease and in this respect the detail was manifestly insufficient .

In the addendum of CARDINAL DATE , there was an analysis of the CARDINAL photographs , which were described as being of poor quality . However , the photograph of the soles of the feet nonetheless showed a distinctive purple - red discolouration of the sole of the left foot , with mild swelling . The right little toe had a white glistening band at its base . The discolouration of the instep and sole of the left foot was strongly suggestive of bruising with associated minor swelling and was not consistent with post - mortem gravitational pooling of blood . Bruising of this extent could not be produced as a result of post - mortem injury and injury in such a location was unlikely to be caused by a fall sustained while the victim was alive . Therefore the injury was strongly suggestive of CARDINAL or more blows to the foot . The mark to the right little toe was strongly suggestive of a ligature mark , although there was no congestion such as to suggest tight application of a ligature while the victim was alive ; nor was the appearance suggestive of the passage of electricity . Neither possibility could be excluded and the mark was unusual .

The red injuries to the front of the left ankle , taken with the injuries to the sole of the left foot , suggested that the ankles were restrained by a mechanism across the front of both ankles and that , so restrained , the person was struck on the sole of his left foot .

The marks in the right armpit were not clearly shown . Their position , alignment and colouration were not what would normally be expected of post - mortem artefactual injury and raised the possibility of an electrical contact mark produced while the victim was alive . Combined with the unusual marking to the right little toe , it raised the suspicion of the use of electricity with CARDINAL terminal tied round the little toe and the other terminal applied to the right armpit . Whether or not the marks were electrical burns could have been established by histopathological examination .

The photograph of the back showed post - mortem artefactual staining , with white areas of contact pallor . There were distinct marks , including a bright red abrasion at the spine at waist level and above this CARDINAL dark reddish marks . Above these was a horizontal line of pink bruising or abrasion . All these could be post - mortem injuries , caused by the manipulation of the body over a rough or cutting surface . They could also have been caused before death . To distinguish the CARDINAL would have required dissection .

The photographs indicated that the autopsy dissection was inadequate in that the back was not dissected , nor were the sole of the left foot or the injuries to the ankle . It was not clear whether the injury to the armpit was dissected . They also indicated that the description of the body in the autopsy was incomplete .

This report was drawn up by Professor PERSON , instructed by the ORG 's delegates ( see paragraph CARDINAL above ) , on the basis of the domestic medical evidence , the witness testimonies , the reports of Professor PERSON and the photographs supplied by the applicant .

As regarded the photographs , the variation in colour or mottling on the foot represented bruising . He considered that the photograph was too blurred to conclude that the white glistening band on the right little toe was associated with a ligature nor could he reach any conclusion that the marks in the right armpit were the result of the application of electrical devices . On the legs , he noted , in addition to the marks which could correspond to the abrasions on the left ankle , small areas of reddening on the front and inner side of the right ankle . He agreed with Professor PERSON 's findings on the back and noted in addition other areas of redness . Without the benefit of a dissection and/or histology of the dissection , the nature of the marks was uncertain . They could have been caused before death or be a post - mortem phenomenon . Bruising of the soles of the feet was relatively unusual and represented at least moderately severe force . Beating on the sole of the foot could cause such bruising . A person with such an injury would not be able to walk without at least an obvious limp .

As regarded the ageing of the chest bruise , recent authors in forensic medicine agreed that caution should be exercised . It was not practicable to construct an accurate calendar of colour changes as was done in earlier textbooks as there were too many variables . If the purple colour of the chest bruise was relied on to distinguish its age from the “ fresh ” haemorrhage around the sternal fracture , this was an invalid conclusion . The materials did not permit a distinction in age to be drawn between the CARDINAL . A recent study issued to show the level of disagreement amongst authors concluded that the only point of agreement was that a bruise with identifiable yellowing was TIME . Thus , the purple bruise could be fresh ( that is , TIME ) but could be older .

Concerning the broken sternum , there had been no complaint of chest pain so one could infer that it occurred shortly before or around the time of death . His view was that there was a coincidence of CARDINAL injuries ( the bruise and the fracture ) which could not be distinguished in age , or there was just one injury . If there was no chest bruise when PERSON was taken into custody , the issue was relatively easily resolved . Most pathologists would tend to regard them , prima facie , as one injury or state that there was a rebuttable presumption that they were one injury . As regarded the possibility of the bruising and fractured sternum being caused by an attempt at resuscitation , significant chest bruising was rare in this context . Sternal fractures caused by cardiopulmonary resuscitation were usually associated with fractured ribs and not with surrounding haemorrhage or overlying bruising . If the chest bruise and fracture with accompanying haemorrhage were the result of CARDINAL trauma , it was not CARDINAL associated with a resuscitation attempt . A fracture from a fall onto a flat surface would be unusual . A heavy direct fall onto a relatively smooth broad protrusion could cause such an injury but he had no recollection of having seen this as an isolated accidental injury ( that is , without injuries to other parts of the body occurring at the same time ) . A blow from a fist , knee or foot could also cause such an injury .

Lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness of TIME weighed QUANTITY g. The lung weights in this case fitted with a substantially more rapid death . The oedema found in the brain was not significant , the weight of the victim 's brain being slightly under the average brain weight for a man of his age .

The finding of underlying heart disease was undisputed . In his view , the best explanation for the death was as follows . Before he died , PERSON sustained significant traumas to the sole of his left foot and to the front of his chest , causing bruising and prima facie fracturing the sternum and causing a surrounding haemorrhage . Fear and pain associated with these events resulted in a surge of adrenalin increasing the heart rate and raising blood pressure . This put a severe strain on an already compromised heart , which caused cardiac arrest and a rapid death . Alternatively , the compression of the chest associated with the fracturing of the sternum fatally disturbed the rhythm of the heart without leaving observable damage . The weakness of this opinion lay in the conclusion that the chest injuries represented CARDINAL trauma rather than CARDINAL , and this depended partly on circumstantial factors and could not be completely resolved . However , even allowing for the possibility that they were separate injuries , the chest bruise could still be regarded as fresh and as having occurred while in custody , in which case the formal cause of death would be the same , namely , cardiac arrest in a man with heart disease following the occurrence of injuries to the left foot and chest . If the fractured sternum was regarded as due to an attempt at resuscitation , the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody .

The critical task of an autopsy in this case was to evaluate the circumstances in which it was proposed that this man died , in particular , whether it was a natural death in custody or not . In this evaluation , the age of the chest bruise was critical . Even allowing for PERSON view of the age based on colour , the autopsy should have been conducted in a way which allowed another pathologist at another time to come to his or her own view . Important observations had to be justified objectively . In the absence of photographs , histology was the obvious way for PERSON to establish the truth of his view . The lack of proper photographs had also seriously impeded the investigation and evaluation of this case . Deficiencies also appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally and the absence of a histological examination of the lesions critical to the proper evaluation of the circumstances of the death .

Professor PERSON had met Professor PERSON professionally . He had not met either PERSON or PERSON .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL - CARDINAL ) and attempted homicide ( Articles CARDINAL - CARDINAL ) constitute criminal offences . It is also an offence for a ORG employee to subject anyone to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

DATE . Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .

ORG for the Prevention of Torture ( CPT ) has carried out seven visits to GPE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill - treatment of persons deprived of their liberty , in particular , those held in police custody . A third periodic visit took place at DATE , involving a visit to ORG . Further visits took place in DATE , DATE and DATE and DATE ( the latter CARDINAL of which involved a visit to police establishments in GPE ) . The ORG 's reports on these visits , save that of DATE , have not been made public , such publication requiring the consent of the ORG concerned , which has not been forthcoming .

The ORG has issued CARDINAL public statements .

In its public statement adopted on DATE , the ORG concluded that torture and other forms of severe ill - treatment were important characteristics of police custody . On its first visit in DATE , the following types of ill - treatment were constantly alleged , namely , NORP hanging , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and psychological nature . The on - site observations in police establishments revealed extremely poor material conditions of detention .

On its second visit in DATE , it found that no progress had been made in eliminating torture and ill - treatment by the police . Many persons complained of similar types of ill - treatment DATE an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations . On its third visit , from DATE to DATE , its delegation was inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . On this visit , the ORG had visited ORG , where a prisoner at FAC displayed haematomas on the soles of his feet and a series of vertical purple stripes ( QUANTITY long , QUANTITY wide ) across the upper part of his back , consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody . At the headquarters of GPE and ORG , it found equipment that could be used for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that “ the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ” .

In its second public statement , issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe ill - treatment by the police . It referred to its most recent visit in DATE to police establishments in GPE , ORG and GPE , when it also went to CARDINAL prisons in order to interview certain persons who had very recently been in police custody in GPE and GPE . A considerable number of persons examined by the delegations ' forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police , and in particular of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of QUANTITY persons who had been very recently detained at the headquarters of the anti - terrorism branch of ORG and which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . They showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons , who had lost the use of both arms , threatened to be irreversible . It concluded that resort to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .

The “ Manual on ORG - legal , Arbitrary and LAW ” adopted by ORG in DATE includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel . In its introduction , it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details :

“ It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope . The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results . ”

NORP In part CARDINAL(c ) , it stated that adequate photographs were crucial for thorough documentation of autopsy findings . Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report .


Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicants , Mr PERSON and ORG , are NORP nationals , who were born in DATE and DATE respectively and live in ORG . They were represented before the ORG by PERSON , a lawyer practising in GPE .

s , may be summarised as follows .

Mr PERSON owns PERCENT and Mr PERSON owns PERCENT of the active shares of a limited company , ORG , which in turn owns a restaurant , PERSON . Both applicants are involved in the DATE running of the restaurant which is open for lunch , dinner and , during DATE , a discotheque .

During DATE ORG ) in GPE carried out a tax audit of the restaurant covering the period from DATE . It found that the bookkeeping of the restaurant was severely deficient and that it had not kept the necessary evidence of the business ’s expenses and sales . Based on certain calculations and statistics , ORG estimated that the restaurant had omitted to account for and declare all its sales in its bookkeeping and tax returns . Consequently , it found it necessary to make a discretionary assessment of the restaurant ’s unrecorded sales , which it calculated at SEK CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL ) and to adjust its tax returns accordingly .

On DATE , on the basis of the results from the tax audit , ORG decided to increase the applicants’ income from business for the tax assessment DATE and DATE and to impose tax surcharges on them amounting , in total , for Mr GPE to SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) and for Mr PERSON to SEK CARDINAL,CARDINAL ( approximately ORG CARDINAL ) . As the applicants , together with a third person , were the main owners of the company which owned the restaurant , and as they were in charge of its DATE running , ORG found that most of the unrecorded sales from the restaurant were to be considered as taxable income , in the form of salary , for the applicants and the third person . Moreover , since the applicants had failed to provide correct and complete information concerning their income , ORG considered it justified to impose tax surcharges on them and found no grounds on which to remit the surcharges .

In DATE the applicants and the company appealed against the decisions to ORG ( länsrätten ) of GPE , disputing ORG findings and claiming that there were no grounds for changing their tax returns or imposing tax surcharges on them . In both their appeals and their supplementary submissions , the applicants stated that they wished to rely on the same grounds as the company had in its appeal and supplementary submissions to the court . The applicants and the company were represented by the same lawyer .

On DATE ORG made the obligatory reassessment of its decisions of DATE but decided not to change them . Following this , it forwarded the appeals to ORG .

On DATE the applicants requested ORG to grant them legal aid to engage a lawyer to represent them . They referred to LAW ) of the LAW , claiming that since their cases concerned tax surcharges they had a right to free legal aid . The applicants stated that they lacked the means to pay for a lawyer since they had been obliged to pay the additional taxes and tax surcharges , as they had not been granted respite from the payment . Furthermore , they alleged that , as immigrants in GPE , they did not have a complete command of NORP or knowledge of the NORP legal system and that their cases were complicated and involved significant amounts of money for them .

On DATE ORG rejected the applicants’ request . It first noted that , according to LAW Rättshjälpslagen , DATE ) , the possibilities for a businessman to be granted legal aid in tax matters were very limited and it could only be granted if there were special reasons . It further observed that Article CARDINAL § FAC ) of the ORG laid down that a person was entitled to free legal assistance only if he could not afford it himself and the interests of justice so required . It also noted that the domestic case - law indicated that there was no absolute right to legal aid in cases involving tax surcharges but that regard must be had to the amount at stake ( the tax surcharges ) and the complexity and nature of the case . Turning to the particular circumstances of the ORG cases , the court considered that the material invoked by the parties was relatively voluminous but that the legal questions at issue and , in relation to these , the ancillary questions concerning tax surcharges were not of such a character as to warrant a grant of legal aid , under either NORP law or the Convention .

The applicants appealed against the decisions to ORG ( kammarrätten ) in GPE , repeating their claims and adding that , having regard to their financial situation , the tax surcharges amounted to substantial amounts for them . They added that they needed professional help to show that ORG audit report and decisions were flawed .

On DATE ORG upheld the lower court ’s decisions in full .

The applicants lodged a further appeal to ORG ( Regeringsrätten ) , which , on DATE , refused them leave to appeal .

The tax proceedings are still pending before the national courts .

The relevant rules concerning legal aid in GPE are to be found in LAW ( Rättshjälpslagen , DATE hereinafter “ the Act ” ) . Section CARDINAL , paragraph CARDINAL , of the LAW provides that legal aid may be granted if the person applying for it is in need of legal assistance and can not obtain it by other means . Moreover , pursuant to LAW CARDINAL of the LAW , legal aid may only be granted if it is reasonable for the ORG to contribute to the costs , having regard to the nature and importance of the matter , the value of the contentious issue and other relevant circumstances . In any event , in matters concerning taxes and various fees for taxes , legal aid may be granted only when there are special reasons ( LAW , paragraph CARDINAL , point CARDINAL ) .

Furthermore , section CARDINAL , paragraph CARDINAL , of the LAW stipulates that legal aid may not be granted to a person who is , or has been , a businessman where the contentious issue has arisen in connection with the business , unless there are special reasons relating to the nature and limited scope of the business , his or her financial and personal situation and other relevant circumstances . The LAW defines a businessman as a natural person who runs a business of an economic nature that can be described as professional , or who has a deciding influence over a legal entity which runs such a business ( section CARDINAL , paragraph CARDINAL ) .

From the case - law of the national courts , it appears that when a case involves tax surcharges , Article CARDINAL § CARDINAL(c ) of the LAW is applicable , but that consideration must be given to the amount of the imposed tax surcharges as well as to the nature and character of the case . Moreover , only if there is a risk of particularly serious consequences or if complicated legal questions arise should free legal assistance be granted on the basis of the LAW in cases involving tax surcharges ( PERSON Årsbok DATE ref DATE ) .

Section CARDINAL of the Administrative Court Procedure Act ( ORG CARDINAL:CARDINAL ) requires the administrative courts to ensure that the circumstances of each case are clarified to the extent that its character demands . Where necessary , the courts must give directions for the case - file to be supplemented with the requisite information .


Violation of Art. 2 (susbtantive aspect);Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

On DATE her son , Mr PERSON , who was born in DATE and lived in GPE , GPE , was involved in a road traffic accident . On DATE he died from his injuries .

In DATE Mr PERSON befriended ORG On TIME of CARDINAL DATE the CARDINAL travelled from GPE to GPE . They were travelling by car , a ORG CARDINAL Series belonging to a company owned by ORG ’s family . In TIME they left GPE and headed back to GPE . On their way back , they passed through the town of GPE at TIME , where they met ORG ’s brother and CARDINAL friends of his , GPE and GPE According to later statements of ORG and a friend of his , S.S. ( see paragraphs CARDINAL and CARDINAL below ) , shortly after that on the road to GPE they saw FAC , whose car was stopped at the side of the road because he had a flat tyre . They lent him the ORG ’s spare tyre and continued on their way .

When , some time after TIME , they were passing through the village of GPE , where the speed limit was QUANTITY , they started overtaking a lorry with a trailer . The lorry , driven by P.P. , reached a crossroad and started turning left . The ORG was moving behind it at QUANTITY . It did not slow down and collided headon with the lorry ’s trailer . Immediately after the crash the ORG caught fire . P.P. , who had not sustained any injuries , got out of the lorry and , with the help of the driver of a Lada Niva with registration plates from the town of GPE , took Mr PERSON and ORG out of the burning ORG .

At TIME Mr PERSON and ORG were taken to a hospital in GPE . Mr PERSON was in a very bad condition and unconscious . ORG ’s injuries , although serious , were not as critical . Some time later a police officer came to the hospital . He was unable to interview Mr PERSON or ORG , the former being unconscious and the latter apparently being in a state of shock and incapable of making coherent statements . After that the officer visited the scene of the accident and took notes and pictures .

On DATE Mr PERSON was transferred to a hospital in GPE . He did not regain consciousness and died on DATE .

On DATE a doctor from the forensic medicine department of ORG performed an autopsy on PERSON PERSON ’s body . He found numerous traumatic injuries to his head , limbs and internal organs . The doctor ’s conclusion was that he had died from his brain injuries . In his opinion , these injuries had been caused by the impact of the collision .

On TIME the accident the police opened an inquiry into the actions of ORG on suspicion that , by breaching road traffic regulations , he had caused the accident and had thus negligently inflicted bodily injury on PERSON PERSON .

On DATE the police interviewed P.P. He described the accident and said that he had taken the CARDINAL injured men out of the ORG with the help of other drivers who had stopped nearby . DATE he gave a blood sample . The sample was analysed on DATE and it was determined that his blood had no alcohol content .

On DATE the officer investigating the case asked an expert to determine whether Mr PERSON ’s death had been a result of the accident .

On DATE the police sent the case to ORG , proposing to convert the inquiry into a fully fledged homicide investigation . The case was then forwarded to ORG , which on DATE opened a criminal investigation .

On DATE the investigator to whom the case had been assigned asked an expert to determine whether P.P. had manoeuvred properly . In his report , filed on DATE , the expert said that ORG had carried out the left turn correctly and that the accident had occurred because of the ORG ’s high speed , well above the maximum allowed on that part of the road .

On DATE the investigator interviewed P.P. again .

On DATE the investigator asked an expert to determine ( a ) the exact spot where the ORG and the lorry ’s trailer had collided ; ( b ) the ORG ’s and the lorry ’s exact speed before the accident ; ( c ) the distance between the ORG and the lorry at the time the lorry began its left turn ; and ( d ) whether it had been possible for the ORG ’s driver to avoid the accident . In his report , filed on CARDINAL DATE , the expert said that ( a ) the collision had taken place on the road ; ( b ) the lorry had been travelling at QUANTITY and the ORG at QUANTITY ; ( c ) the ORG had been eightythree metres behind the lorry at the time the lorry had started to turn ; and that ( d ) the ORG ’s driver could have stopped before the collision point .

It seems that no procedural steps were taken during DATE .

On DATE the investigator sent the file to ORG with a recommendation to discontinue the proceedings . On DATE that ORG referred the case back , noting that , although DATE had passed following the opening of the proceedings , the inquiries had not been comprehensive and thorough . No steps had been carried out with the participation of ORG and various other pieces of evidence had not been gathered .

In the meantime , on DATE the applicant and her husband , who later passed away , brought a civil party claim against ORG

On DATE the investigator interviewed ORG He described the events of DATE and asserted that , although the ORG had belonged to his and his brother ’s company , PERSON had been the one driving it at the time of the accident . He also said that he would be able to find witnesses who could confirm that assertion .

On DATE the investigator interviewed P.P. once again . He mentioned the driver of the Lada Niva ( see paragraph CARDINAL above ) , but said that he did not remember his name or the exact number of his registration plates . He described how the CARDINAL of them had taken the CARDINAL injured men out of the ORG , and said that the CARDINAL behind the wheel had been ORG After that the investigator organised an identity parade at which P.P. identified ORG as the ORG ’s driver .

On CARDINAL DATE the investigator interviewed ORG He said that he knew ORG well , but had not known Mr PERSON at all . He also said that when ORG and PERSON had stopped to help him with the flat tyre , the CARDINAL driving the ORG had been Mr PERSON .

On DATE the investigator charged ORG and interviewed him . ORG asserted that the person driving the ORG at the time of the accident had been Mr PERSON . On the way from GPE they had switched several times , but at the time of the accident the CARDINAL behind the wheel had been Mr PERSON . This had been witnessed by several people in GPE . It had also been witnessed by his friend , FAC , on the road between GPE and the place of the accident .

DATE the investigator interviewed GPE and GPE , who said that they had been having dinner with ORG ’s brother in PERSON when they had met PERSON and PERSON . They also said that they were acquainted with ORG , but had known Mr PERSON only by sight . Both of them stated that the one driving the ORG at the time of their meeting had been Mr PERSON .

On DATE the investigator sent the case to ORG , recommending that the proceedings be discontinued . He noted that the technical expert report and the inspection of the site of the accident showed that the accident had been the fault of the ORG ’s driver . The only contentious issue was whether this had been ORG or PERSON . P.P. had stated that the one behind the wheel had been ORG However , the latter had disputed this assertion and had provided CARDINAL witnesses – I.M. , GPE and DATE who had all asserted that the one driving the ORG had been Mr PERSON . It could therefore be concluded that the ORG had been driven by PERSON .

On DATE ORG referred the case back to the investigator for additional investigation .

On DATE the investigator interviewed the police officer who had started the inquiry . He said that he had first gone to the hospital and then to the scene of the accident , but was unable to say which of the CARDINAL persons in the ORG had been the driver .

On DATE the investigator asked CARDINAL medical experts to assess the extent of ORG ’s injuries and to express an opinion on whether he had indeed been unable to make coherent statements after the accident . In their report , filed on DATE , the experts said that it was impossible to determine this solely from the materials in the file because shortly before the accident ORG had been involved in another road traffic accident . It was necessary to examine him personally .

On DATE the investigator asked CARDINAL experts to express their opinion on whether PERSON or ORG had been driving the ORG at the time of the accident . However , the experts were unable to examine ORG , who had gone missing , and the report could not be completed . On DATE the experts sent the file back to the investigator and asked him to order that ORG be compelled to appear .

On DATE ORG , to which the file had been sent , returned it for further investigation . It ordered that ORG be compelled to submit to an examination by the experts .

On DATE the investigator requested the police to trace ORG with a view to summoning him . The police supplied information about his address on DATE . On CARDINAL DATE he was summoned for DATE , but failed to appear . Accordingly , on DATE the investigator ordered that he be brought by force . On DATE ORG decided to place him in custody . On DATE instructions were given for him to be found .

On DATE ORG appeared before the investigator . He was charged , interviewed and allowed to examine the file with his counsel . He said that he stood by his previous statements .

On DATE the investigator sent the case to ORG , recommending that ORG be brought to trial .

On DATE ORG sent the case back to the investigator , noting , among other things , that he had not properly worded the charge , that no information had been gathered on any previous road traffic offences committed by ORG , and that the medical expert report ordered on DATE had not been finalised . It instructed the investigator to examine whether ORG had made the left turn in line with road traffic rules and , if he found that this was not the case , to charge him as well .

NORP On DATE the investigator asked an expert to determine whether P.P. had turned left properly . In his report , filed on DATE , the expert stated that ORG had not breached any road traffic rules .

On DATE the investigator asked CARDINAL experts to determine , on the basis of the injuries sustained by PERSON and ORG , which of the CARDINAL had been driving the ORG at the time of the accident . The experts studied the documents in the file , including the medical report drawn up when PERSON had been admitted to the hospital in GPE , his autopsy report , and a medical report on ORG ’s condition on DATE after the accident . On DATE they examined ORG and on DATE subjected him to an X - ray and a CAT scan . However , they were not able to inspect the ORG , as it had apparently disappeared .

On DATE the investigator interviewed ORG in relation to the ORG ’s whereabouts . He said that he had left it on a street in the village of PERSON . Somebody had later removed it from there and he had no idea where it was .

In their report the experts said that , without inspecting the ORG and on the basis of the medical data alone , they could not reach a definite conclusion as to which of the CARDINAL had been driving it at the time of the accident .

On DATE the investigator charged ORG anew and interviewed him , and on DATE ordered that the applicant be allowed to participate in the proceedings as a civil claimant .

On DATE the investigator sent the case to ORG , proposing that ORG be brought to trial .

However , on DATE ORG decided to discontinue the proceedings , reasoning that it had not been conclusively established who had been driving the ORG at the time of the accident . According to GPE , GPE and FAC , it had been Mr PERSON , whereas P.P. maintained that it had been ORG The experts had been unable to arrive at a categorical conclusion on this point . It was also unclear whether the line in the middle of the carriageway had been continuous or dotted . Therefore , the accusation had not been proved . On DATE the prosecutor ’s office sent the case of its own motion to ORG .

In a decision of DATE ORG , noting that in accordance with an intervening legislative amendment the decision to discontinue an investigation was no longer subject to automatic review by the courts , but could only be reviewed pursuant to an application by those concerned , referred the case back to the prosecution authorities with instructions to inform the applicant of the discontinuance .

On DATE a prosecutor of ORG again discontinued the investigation . He described the circumstances of the accident and said that it was clear that the ORG ’s driver had breached road traffic regulations , whereas ORG had properly made a left turn . However , despite taking all the necessary steps , the investigation had been unable to ascertain who had been driving the ORG at the time of the accident . CARDINAL witnesses – I.M. , GPE and DATE were categorical that the ORG had been driven by PERSON . The experts were unable to arrive at a definite conclusion on this point . The police officer who had inspected the scene could not say who had been driving the ORG either . On the other hand , P.P. , when interviewed , had stated that the ORG had been driven by ORG , and had identified him as the driver during an identity parade . It was also unclear whether the line in the middle of the carriageway had been continuous or dotted . Therefore , the accusation had not been proved .

This decision was sent to the applicant on DATE .

On DATE the applicant sought judicial review by ORG . She argued that the conclusion that it could not be determined whether ORG had been behind the wheel at the time of the accident was based on incomplete evidence . The authorities’ preference for the testimony of GPE , GPE and FAC , who had not witnessed the accident , over the testimony of P.P. , who had taken the victims out of the burning ORG , was unwarranted . The discrepancy between their versions should have been elucidated through a confrontation . She further pointed out that it would not have been very hard to establish the identity of ORG driver and then interview him , which had not been done .

On DATE the court , observing that the prosecution authorities had failed to serve a copy of the application on ORG , referred the case back to them with instructions to do so . They apparently complied with these instructions and re - sent the file to the court .

After holding a hearing on DATE , in a decision of CARDINAL DATE the court upheld the decision to discontinue the proceedings . It held that when hearing a challenge against a decision discontinuing a criminal investigation it could not scrutinise the manner in which the prosecution authorities had assessed the evidence , nor take their place and fill in the gaps in their reasoning . It was not competent to gather fresh evidence either ; its assessment had to be based on the available material . Accordingly , even if it were to find gaps in it , it could not set aside the discontinuance decision on that ground .

The applicant appealed , but , following a legislative amendment effective from DATE and providing that firstinstance court decisions reviewing prosecutor ’s decisions to discontinue criminal investigations were final , the court terminated the proceedings on DATE .

NORP Throughout the proceedings the applicant wrote many letters to the prosecuting authorities , urging them to expedite the processing of the case . On some of those occasions ORG sent letters to the lower prosecutor ’s offices , instructing them to finalise the case promptly .

On DATE the applicant brought a tort claim against ORG in ORG . After holding a hearing on DATE , on DATE the court stayed the proceedings pending the outcome of the criminal investigation . On several occasions DATE it enquired about the investigation ’s progress . On DATE , following the upholding of the investigation ’s discontinuance , it resumed the examination of the claim .

The court then held CARDINAL hearings , on DATE and DATE . The applicant could not be found and summoned for the first of those at her home , and was regarded as summoned under a rule allowing constructive summoning where a party failed to inform the court of a change of address . The court summoned the applicant for the second hearing through the counsel who represented her before the proceedings were stayed . However , neither the applicant nor the lawyer appeared . The court admitted in evidence the prosecutor ’s decision to discontinue the criminal proceedings and the decision whereby ORG had upheld the discontinuance ( see paragraphs CARDINAL and CARDINAL above ) .

ORG dismissed the applicant ’s claim on DATE . It held as follows :

“ [ The ] prosecutor ’s decision [ of DATE – see paragraph CARDINAL above ] and [ the ] PERSON Regional Court ’s decision [ of CARDINAL DATE see paragraph CARDINAL above ] were admitted in evidence without being challenged . The prosecutor ’s decision shows that the criminal proceedings against [ ORG ] under LAW ( c ) , read in conjunction with LAW of LAW [ see paragraph CARDINAL below ] have been discontinued for lack of evidence . The reasons for the discontinuance are that it was not established in a categorical manner who had driven the car at the time of the road traffic accident , and that there was a lack of categorical findings as to whether the line in the middle of the carriageway at the area of the accident had been continuous or dotted .

In those circumstances , the [ court ] finds that the claims under section CARDINAL(CARDINAL ) of the Obligations and Contracts Act [ see paragraph CARDINAL below ] are unfounded and should not be allowed . ... ”

Notice of the court ’s judgment was sent to the applicant ’s address in GPE , but could not be delivered because she no longer lived there . Another notice was sent to the abovementioned lawyer ; it was received by a colleague of his on DATE .

There is no indication that the applicant appealed against the judgment .

Article CARDINAL § CARDINAL ( c ) , read in conjunction with LAW of LAW DATE , makes it an offence to cause the death of another by driving in reckless disregard of road traffic regulations . The penalty on conviction is up to six years’ imprisonment .

The civillaw consequences of road traffic accidents are governed by the general law of torts . The relevant provisions are set out in sections CARDINAL of ORG DATE ( ORG за задълженията и договорите ) . LAW ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . In all cases of tortious conduct , fault is presumed unless proved otherwise ( section ORG ) ) . Compensation is due for all damage that is a direct and proximate result of the tortious act ( section CARDINAL(CARDINAL ) ) . The amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity ( section CARDINAL ) .

The law concerning civilparty claims in criminal proceedings and separate civil claims is set out in the ORG ’s admissibility decision in the case of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) and in DATE and CARDINAL of the ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL/CARDINAL , DATE ) .

The provisions governing discontinuance of criminal proceedings before trial are set out in the ORG ’s decision in the case of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

The rules governing stays of civil proceedings and the effects of a decision to discontinue a criminal investigation on the examination of a separate civil claim arising out of the same events were at the relevant time contained in Articles CARDINAL , CARDINAL and CARDINAL the Code of Civil Procedure DATE . They provided as follows :

“ The court shall stay the proceedings :

( d ) whenever criminal elements , the determination of which is decisive for the outcome of the civil dispute , are discovered in the course of the civil proceedings . ”

“ Proceedings which have been stayed shall be resumed on the court ’s own motion or upon a party ’s request after the respective obstacles have been removed ... ”

“ The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated , whether it was unlawful , and whether the perpetrator was guilty of it . ”

The former ORG has given a number of rulings as to the effect of the above provisions .

In a decision of DATE ( тълк. реш. № CARDINAL от CARDINAL декември DATE , ORG ) , ORG of the former ORG , in giving a binding interpretation of Articles CARDINAL § CARDINAL ( e ) and CARDINAL of the Code , held that a prosecutorial decision discontinuing a criminal prosecution on the ground that the accused has not committed the impugned act is , unlike a judgment of conviction or acquittal , not binding on the civil court that rules on the civil consequences of that act .

In a judgment of CARDINAL DATE ( реш. № DATE от CARDINAL януари DATE г. по гр. д. № DATE г. , ORG , I г. о. ) , ORG of ORG held :

“ In principle , the fact that a criminal offence [ has been committed ] may be established only in proceedings under LAW . That is why , by LAW [ LAW ] ( d ) of ORG [ DATE ] , where an alleged civil right derives from a fact which amounts to an offence under LAW , the civil court is bound to stay the civil proceedings . That is necessary in order to follow the judgment of the criminal court . This is mandatory for the civil courts in all cases , regardless of the criminal offence to which [ the proceedings ] relate . The binding force of the judgments of criminal courts is set out in LAW [ DATE ] .

Under [ that provision ] , the final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated , whether it was unlawful , and whether the perpetrator was guilty of it . The law does not allow the [ civil ] court freely to assess the evidence and requires that court , in order to abide by the criminal judgment , to regard as established the facts that that judgment has found to have occurred or otherwise . The criminal court ’s judgment is res judicata in relation to the matters mentioned in LAW . That res judicata effect has to be taken into account by all courts and ORG authorities . It can not be challenged when the criminal court ’s judgment has taken effect . It presupposes that the act that forms the subject matter of the criminal judgment and the act that needs to be established in the civil proceedings coincide . It does not matter whether the act has been perpetrated by the defendant to the civil action or is an act by a third party that has an effect on the defendant ’s liability . [ The court ] must treat as binding not only convictions , but also acquittals , in cases where they have established the lack of elements of the tort [ in question ] : for instance , the lack of an tortious act , [ or ] the lack of a causal link between the act and the damage [ suffered by the claimant ] . However , a criminal court ’s judgment does not need to be treated as binding where it has acquitted the defendant on the ground that his or her act was not criminal – an act , although not amounting to a criminal offence , may still be a tort . The binding effect of the criminal court ’s judgment relates to all elements of the criminal offence . When the amount of the damage is an element of the offence , the criminal court ’s findings as to that amount are binding on the court which rules on the civil claim . When the criminal court has made findings in relation to the amount of the damage caused because it was an element of the criminal offence of which a person has been accused , those findings are binding on the court determining the civil claim . [ For instance , ] in the case of a theft , where the sum of money stolen is an element of the criminal offence , the criminal court ’s findings as to that sum are binding in the civil case . [ Similarly , in ] the case of the offence of wilful mismanagement ... , the amount of damage caused is an element of the offence ; in order for the impugned act to have constituted an offence , it must have caused significant damage . In order to determine whether the damage is significant , the criminal court must make findings as to its amount . That is why the amount of the damage featuring in the criminal court ’s judgment is binding [ on the civil court ] . ”

DATE . In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) , concerning a claim for damages arising out of a road traffic accident , ORG of the former ORG held :

“ In dismissing the claim , the [ lower ] court found that the only party responsible for the accident was the claimant , who , at a distance of QUANTITY , suddenly jumped in front of the car in order to cross the street and that therefore , despite the steps taken by the driver , the collision was not avoided .

That conclusion was based on the fact that the criminal investigation against the driver had been discontinued on the grounds of lack of evidence , lack of some of the elements rendering the act a criminal offence , and lack of guilt .

By basing its findings on the discontinuance of the criminal investigation , the [ lower court ] acted in breach of LAW , which provides that only the final judgment of a criminal court is binding on the civil court which deals with the civil consequences of the impugned act ... The prosecutor ’s decision to discontinue the investigation has no evidential value and his or her findings are not binding on the court dealing with the civil consequences of the act . Where there is no judgment of a criminal court finding the accused not guilty of causing the claimant ’s injuries , the civil court must establish whether or not the defendant has committed the alleged act on the basis of all types of evidence admissible under LAW . The prosecutor ’s decision to discontinue the investigation has no evidential value and does not show that the defendant is not responsible for the road traffic accident . ”


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

The applicant company , ORG , is a company incorporated in GPE . It was represented before the ORG by PERSON V. ORG , a lawyer practising in GPE .

The applicant was the proprietor of a NORP patent in the area of chip technology . The patent was contested in an opposition proceeding before ORG ( “ EPO ” ) . At first instance , on DATE ORG of the EPO maintained the patent in an amended ( limited ) form , that is , the proprietor added further features to the granted claims of the patent in order to meet the requirements of LAW . The decision was appealed against by all parties to the proceedings . The applicant requested that the patent be upheld unamended , or , by way of auxiliary request , that it be maintained in accordance with CARDINAL of CARDINAL sets of amended claims filed with the grounds .

On DATE , ORG of the EPO summoned the parties to oral proceedings to commence on DATE . ORG indicated that it “ may disregard evidence which is not submitted in good time prior to the oral proceedings . ” It added that the same applied to amendments to the patent documents , which “ should be filed as early as possible ( DATE before the date set for the oral proceedings ) . ” On DATE , DATE before the expiry of the time - limit , the applicant filed CARDINAL new auxiliary requests . In the course of the oral proceedings the applicant withdrew its previous main request and all but CARDINAL auxiliary requests . It requested that the decision under appeal be set aside and that the patent be maintained in its amended form on the basis of the CARDINAL remaining auxiliary requests .

By letter dated DATE one of the opponents filed new prior art documents . The opponents requested that the decision under appeal be set aside and the patent revoked .

As to the procedural issues , the opponents further argued that those of the CARDINAL requests filed on DATE which opened up new issues were inadmissible , as they had not been lodged in due time . The applicant argued that the requests were admissible since they had been presented within the time - limit set by ORG in the summons to oral proceedings .

At the end of the oral proceedings , on DATE , ORG quashed the decision under appeal and revoked the patent .

It rejected CARDINAL of the applicant ’s ( auxiliary ) requests as inadmissible . Referring to CARDINAL previous decisions , not published in ORG EPO ( “ ORG EPO ” ) , and to LAW ( see relevant law below ) , the ORG considered that requests filed at a point in time just before the minimum period set by the board in a summons to oral proceedings were to be regarded as belated if they raised issues which would require a further written phase in order to be properly dealt with . ORG further noted that , regardless of whether the opponents had been familiar with all the technical issues , they had not accepted that the invention according to the auxiliary requests was patentable . Thus , the divergent features would still have required extensive discussions .

ORG also rejected the applicant ’s CARDINAL remaining requests . In its reasoning it also took into account the documents filed by the opponents on DATE . With regard to the admissibility of these documents the ORG found that their slight lateness had been of no importance and admitted them into the proceedings . It argued that it could always exercise certain discretion to admit documents and that there had been sufficient time left for all parties to study the documents . The written version of the decision was served on the applicant ’s representative on DATE .

On DATE the ORG refused to admit the applicant ’s constitutional complaint for adjudication . Referring to its caselaw establishing the principle that it would refrain from exercising its jurisdiction as long as the protection received within the framework of ORG fundamental rights was in general equivalent to the standard of LAW , it held that the applicant had failed to sufficiently demonstrate that the fundamental rights protection within LAW did not meet this standard .

ORG is an intergovernmental organisation that provides for an autonomous protection mechanism for individual inventors and companies seeking uniform patent protection in CARDINAL NORP countries . When the events at issue occurred , LAW DATE was in force . A revised version of LAW entered into force on DATE .

Article CARDINAL of LAW DATE reads as follows :

“ ( CARDINAL ) Patents granted by virtue of this Convention shall be called NORP patents .

( CARDINAL ) NORP patent shall , in each of GPE for which it is granted , have the effect of and be subject to the same conditions as a national patent granted by that ORG , unless otherwise provided in this LAW . ”

Article CARDINAL of LAW DATE provides :

“ ( CARDINAL ) A NORP patent shall , subject to the provisions of paragraph CARDINAL , confer on its proprietor from the date of publication of the mention of its grant , in each Contracting State in respect of which it is granted , the same rights as would be conferred by a national patent granted in that ORG .

( CARDINAL ) ...

( CARDINAL ) Any infringement of a NORP patent shall be dealt with by national law . ”

Article DATE of LAW DATE provides :

“ The NORP patent application and the resulting patent shall be deemed not to have had , as from the outset , the effects specified in GPE CARDINAL and CARDINAL , to the extent that the patent has been revoked in opposition proceedings . ”

LAW leaves it open to the Member GPE to provide for their own national patent protection system . GPE provides for such a protection mechanism with LAW ( Patentgesetz ) and ORG ( GPE Patent- und Markenamt ) . Neither LAW nor LAW exclude a patentee from applying under the other protection mechanism . Article CARDINAL of LAW DATE provides :

“ ( CARDINAL ) In any designated Contracting ORG a NORP patent application and a NORP patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent .

( CARDINAL ) ORG national patent application and a national patent in a Contracting State shall have with regard to a NORP patent in which that ORG is designated the same prior right effect as they have with regard to a national patent .

( CARDINAL ) Any Contracting State may prescribe whether and on what terms an invention disclosed in both a NORP patent application or patent and a national application or patent having DATE of filing or , where priority is claimed , the same date of priority , may be protected simultaneously by both applications or patents . ”

With regard to appeals to ORG , LAW DATE provides as follows :

“ ( CARDINAL ) NORP In order to ensure uniform application of the law , or if an important point of law arises :

( a ) ORG shall , during proceedings on a case and either of its own motion or following a request from a party to the appeal , refer any question to ORG if it considers that a decision is required for the above purposes . If ORG rejects the request , it shall give the reasons in its final decision ;

( b ) the President of ORG may refer a point of law to ORG where CARDINAL ORG have given different decisions on that question . ”

Article CARDINAL § CARDINAL of the Rules of Procedure of ORG ( ORG EPO DATE , CARDINAL ) in force at the relevant time provides :

“ ( CARDINAL ) ORG shall ensure that each case is ready for decision at the conclusion of the oral proceedings , unless there are special reasons to the contrary . Before the oral proceedings are closed , the decision may be announced orally by the Chairman . ”


Violation of Art. 6-1;No violation of P1-1

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

On DATE the applicant company dismissed PERSON from his job . On DATE M. initiated court proceedings seeking his re - instatement .

After numerous postponements of the hearing at PERSON ’s request , ORG found in his favour on DATE .

The applicant company appealed . On DATE ORG quashed the first - instance judgment and adopted a new one , rejecting all of PERSON ’s claims . The court found that PERSON had not submitted any evidence to support his claim that on DATE , when he was absent from work , he had been at a close relative ’s funeral .

M. lodged an appeal in cassation . The first hearing before ORG was scheduled for DATE . On DATE the applicant company informed the court that its representative would be away for DATE and asked for a postponement of the hearing .

According to the applicant company , it did not hear from the court and thus did not submit its written reply to PERSON ’s appeal , as it was waiting for a summons for a new date . On DATE it enquired about the new date of the hearing . In response , it was informed that PERSON ’s appeal had been examined on DATE and fully allowed .

In its judgment , the court relied , inter alia , on evidence of PERSON ’s presence at a close relative ’s funeral and on the trade union association ’s opposition to the dismissal .

Having examined the materials in the file , the applicant company found that its request for a postponement had been accepted by the court on DATE and a new date for the hearing had been set for DATE . There was also a summons for that date , which had been signed only by PERSON

The applicant company lodged a request for revision of the judgment of ORG . It informed the court that it had not received any summons for DATE and drew the court ’s attention to the absence in the file of any evidence regarding the delivery of the summons . It invoked LAW .

On DATE ORG rejected the request . It found that the court had sent the summons to the applicant company ’s address on DATE and that the applicant company had failed to appear at the hearing on DATE without informing the court . The court did not see any reason to believe that the applicant company had not received the summons since the stub from the summons proved that it had been sent out and since “ there was no evidence that the summons had not been received ” . It added that , under LAW ( ORG , see below ) , the failure of CARDINAL of the parties to appear did not prevent the court from examining the case and that , under LAW , the examination of the case in the absence of a party was not a ground for the revision of the judgment .

The relevant provisions of LAW read as follows :

“ Article CARDINAL . Service of the summons ...

( CARDINAL ) The summons ... shall be sent by registered mail with confirmation of delivery or through a person authorised by the court . The date of service of the summons ... shall be written on the summons , as well as on the receipt , which shall be returned to the court .

( CARDINAL ) The summons ... addressed to a natural person shall be served on him or her personally and shall be countersigned on the receipt . The summons ... addressed to a legal person shall be served on the authorised employee and shall be countersigned on the receipt ; if such a person is absent , the summons shall be served on another employee in the same conditions ... ”

“ Article CARDINAL

... ( CARDINAL ) NORP The President of the Chamber [ of ORG ] shall set , within DATE , the date for hearing the appeal in cassation and inform the parties accordingly . A copy of the appeal in cassation shall be sent to the other parties together with a summons to attend the hearing , indicating that a written reply should be submitted to the court not DATE before the hearing .

Article CARDINAL

... ( CARDINAL ) The appeal in cassation shall be examined after the parties have been summoned . However , their failure to appear shall not prevent the examination of the appeal . ”

On DATE the plenary meeting of ORG adopted a decision “ Regarding the application of the rules of LAW to the examination of cases by the first - instance courts ” . In point CARDINAL of that decision the court noted that examining a case in the absence of a party which had not been properly summoned was contrary to the law . It added that under LAW a person should be considered as lawfully summoned only if he or she had been personally served with the summons and had countersigned the receipt .

In the following judgments adopted by ORG on DATE ( no . CARDINALra-CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) , that court confirmed the requirement of personal service of the summons and the counter - signature by the addressee , failing which the summons was considered as not having been properly served .


The applicant was born in DATE and is currently detained in FAC , ORG .

He was held in police custody from DATE , on suspicion of having sexually assaulted his stepdaughters . He made a full confession and , at the end of the period in police custody , he was charged with rape and aggravated sexual assault . He was detained on remand .

On DATE , under questioning by the investigating judge , the applicant retracted his confession ; on CARDINAL DATE he denied all the accusations made against him . He said that he had taken valium while in police custody and claimed that this drug could have impaired his mental faculties .

On DATE the investigating judge extended the detention order . By an order of CARDINAL DATE , he rejected an application by the applicant for release . In a judgment of DATE , ORG of ORG upheld the order . On DATE ORG dismissed an appeal on points of law lodged by the applicant . ORG which ruled in that judgment was composed of ORG , President , a reporting judge and CARDINAL other judges , including PERSON and Mr FAC .

NORP On DATE the parties were informed that the investigation was complete . By a judgment of DATE ORG committed the applicant to stand trial at ORG .

The applicant appealed on points of law and put forward CARDINAL grounds in support of his appeal : the first alleged that ORG had failed to comply with the procedural rules necessary for the effective exercise of the rights of the defence , as set out in LAW , concerning the parties ' access to the case file before the hearing ; the second concerned a lack of sufficient reasoning in the order committing him for trial , and noted that it did not set out the facts on which the charges were based or explain why the alleged offences were classified as they were .

ORG delivered a judgment dismissing the appeal on DATE . The ORG which ruled on the appeal was composed of PERSON , acting as president in the absence of the incumbent president who was unable to attend , Mr FAC as reporting judge , and QUANTITY other judges .

In a judgment of DATE , ORG convicted the applicant and sentenced him to DATE imprisonment and suspended his civic , civil and family rights for DATE .

On that same date the applicant lodged an appeal with ORG , in which he raised CARDINAL points of law . The first alleged a violation of LAW , on the ground that ORG had not stated by what majority of votes the sentence had been imposed ; the second concerned a failure to comply with the principle that hearings must be oral and , in particular , with LAW , which in principle prevented the court proper and the jury from deliberating with the case file before them ; in his third point , the applicant complained of a violation of LAW , which prohibited the content of statements being mentioned in the official record , unless the presiding judge decided otherwise ; the fourth and fifth points concerned the wording of the questions put to the jury ; the final point alleged a breach of the rights of the defence , on the ground that the accused had not spoken last on the question of the withdrawal of parental responsibility .

The applicant was provisionally granted legal aid but , in a decision of DATE , ORG refused his request on the ground that “ no arguable ground ” of appeal on points of law could be made out against the judgment of DATE .

In a judgment of DATE , ORG dismissed the applicant 's appeal on points of law . The ORG was composed of PERSON , President , PERSON , reporting judge , and Mr FAC , judge .

On DATE the President of ORG dismissed an appeal on points of law lodged by the applicant against ORG decision .

The relevant provisions of LAW applicable at the material time are the following :

“ Where appropriate , after delivering the judgment the president [ of the assize court ] shall , if applicable , inform the accused of his or her right to lodge an appeal on points of law , and inform him or her of the time - limit for such an appeal . ”

“ In the event of a breach of the law , judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies may be set aside on an appeal on points of law to ORG lodged by the public prosecutor or by the party adversely affected , according to the distinctions made hereafter .

Such appeals shall be lodged with ORG . ”

“ Judgments of indictment divisions and judgments of trial and appellate courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute may be quashed only on grounds of a breach of the law . ”

“ Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case . Where several hearings have been held in one and the same case , the judges who have taken part in the decision shall be presumed to have attended all of them .

Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor .

Subject to the exceptions laid down by law , judgments which have not been delivered , or in respect of which the proceedings have not been conducted in open court , shall also be declared null and void . ”

“ Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable ORG to exercise its power of review and to ascertain that the law has been complied with in the operative provisions .

The same rule shall apply in the event of a failure or refusal to rule either on CARDINAL or more applications by the parties or on CARDINAL or more applications by the public prosecutor . ”

“ In criminal matters , the judgment by the indictment division committing the accused for trial shall , when it has become final , determine the jurisdiction of the assize court and cover all procedural defects , should any exist , arising from the previous proceedings . ”