Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;No violation of Art. 5-2;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

On DATE the applicant entered GPE with a tourist visa valid until DATE and started business activities . In DATE , when the applicant requested extension of the visa , the authorities asked for proof of residence in GPE that she could not provide .

In DATE the authorities refused the applicant ’s request for extension of her visa as out of time . They told her that she needed to “ know people ” who could help her receive a new visa .

On DATE the applicant was questioned by CARDINAL officers from the GPE police to whom she claims she gave a bribe of CARDINAL NORP Lei ( ROL ) to let her go .

On DATE at TIME the applicant was again stopped by officers from the NORP police when she was on her way to the NORP consulate . The officers took her identity papers and verified her data . After TIME wait the applicant was taken to ORG no . CARDINAL for additional checks .

From Precinct no . CARDINAL she was taken by CARDINAL officers to ORG , where she explained that her visa had not been extended before its expiry because she had not had a valid residential tenancy contract . The person in charge asked her to return DATE to have her situation regularised .

The applicant was made to wait in the police car with CARDINAL of the officers while the other CARDINAL officers checked her passport . After the check they returned to FAC no . CARDINAL , where after a TIME wait the applicant was taken to the basement and body - searched by a female police officer while her bag was searched by another officer . She was informed that that was the standard procedure for any person who entered the police headquarters .

After the search , the applicant was questioned by CARDINAL officers from ORG and then taken again to their headquarters . Her fingerprints and photograph were taken and she was put in a room where the commander of Precinct no . DATE was writing on a paper that he was hiding from the applicant with his hands .

NORP The commander informed the applicant , who requested an explanation , that she was not allowed to ask questions , to read or to know anything , and that she had to sit in a corner and wait . He then told her to stop crying , because the treatment she was subjected to was not even comparable to that inflicted on NORP arrested by the NORP police .

The applicant replied that , unlike the great majority of NORP in GPE , she had come to invest money in GPE and not to steal or commit crimes . She also said that the NORP police respected procedures , human rights and in particular the presumption of innocence , which was not the case in GPE , where foreigners were badly treated .

The applicant ’s bag was searched again by another officer who entered the room . He took ROL CARDINAL,CARDINAL from her purse , the cost of a visa stamp that was applied on the applicant ’s passport valid from CARDINAL to CARDINAL DATE . He made an inventory of the bag and reported that the applicant had a mobile phone and ROL CARDINAL,CARDINAL,CARDINAL .

At TIME the applicant was taken for questioning to a different passport bureau . After a TIME wait in the police car outside the building , she was informed that the questioning could not take place as the person in charge was absent , but that she would be taken to a hotel in ORG for the night .

Instead of being taken to a hotel as informed the applicant was placed in police custody . Her fingerprints were taken again and her money confiscated by the police officers , except for ROL CARDINAL,CARDINAL that she was allowed to keep for personal expenses .

NORP The wardens informed her that she was to be repatriated DATE because she did not have a valid residence permit , but that since she had not committed any crimes in GPE she was free to return immediately .

On DATE at TIME the applicant called the NORP consulate in GPE to ask the reasons for her arrest . The consulate was not aware of her situation . DATE someone from the consulate staff informed the applicant that she was going to be repatriated to GPE on DATE by the TIME Tarom flight but that they still did not know the reason for her arrest .

On DATE the applicant was taken by a police officer to the airport where she was taken on to the flight by a NORP intelligence officer who accompanied her throughout her journey to GPE . Asked by the applicant about the reasons for her repatriation , the officer told her that if she had not committed a crime it must be because of a quarrel with the police . He confirmed that the incident with the commander of the passport police team could have been the real reason for her repatriation . He also informed the applicant that she was under a prohibition on returning to GPE for DATE .

In GPE the applicant was taken to the NORP police , who were not aware of her arrival . The police returned her passport and released her .

On DATE the applicant ’s husband , who was living in GPE in the same situation as the applicant , returned to GPE of his own free will .

NORP The applicant ’s residence permit was granted for the periods DATE and DATE .

According to the official records , the applicant was not arrested or remanded in police custody DATE .

On DATE the applicant was stopped by officers from ORG no . CARDINAL and taken to ORG in ORG , which was aware of the applicant ’s irregular situation .

The Office for Foreigners filled in a standard form on the applicant ’s situation under PERSON no . CARDINAL/CARDINAL . It recorded therein the dates of validity of her visa , the fact that she had been unlawfully resident for DATE and DATE and that she could not give reasons for her situation . It also noted that she was not married to a NORP national nor did she have children of NORP nationality and that she owned a company in GPE which had ceased trading . ORG recorded on the standard form that the applicant was not under criminal investigation in GPE , that no expulsion order had been made against her and that she had not asked for asylum . It also noted that the applicant had ROL CARDINAL at her disposal . For these reasons , the ORG decided that the applicant should be placed in ORG ( “ the FAC ” ) with a view to her repatriation on the next flight to GPE . It ordered the purchase of a ticket to that end , at the authorities’ expense , and issued a prohibition on the applicant entering GPE for DATE . It stamped on the applicant ’s passport an exit visa valid from CARDINAL to CARDINAL DATE .

She arrived at FAC on DATE at TIME On arrival she was body - searched and the record indicated that she had ROL CARDINAL at her disposal .

On DATE the applicant was repatriated . An employee from ORG accompanied her throughout her journey . This measure was taken in order to ensure security on the flight , given the applicant ’s aggressive behaviour and her continual refusals to embark on the aeroplane .

On DATE the applicant sent a letter to ORG of the NORP ORG protesting against her repatriation . The letter was transmitted to ORG which informed ORG of the irregularity of the applicant ’s stay in GPE and the decision to repatriate her and the prohibition on her entering GPE for DATE under PERSON no . CARDINAL .

On DATE the applicant sent a similar letter to the border police .

On DATE the NORP embassy in GPE , answering a letter sent by the applicant , congratulated her on her good command of the NORP language , expressed regret for her distress , informed her that the prohibition had been lifted and advised her to contact the NORP embassy in GPE to assist her with the formalities in GPE .

The relevant provisions of PERSON no . CARDINAL on administrative litigation at DATE of the facts are described in PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE .

Law CARDINAL/CARDINAL on the status of foreigners provides as follows :

“ ( CARDINAL ) A foreigner who resides temporarily in GPE has the obligation to leave the country when the residence permit expires .

( CARDINAL ) The residence permit can be extended by ORG . A request for extension shall be made TIME before the expiry of the permit ... ”

“ The Minister of ORG may cancel or limit the right to reside in GPE to a foreigner who has breached NORP law ... ”

“ ( CARDINAL ) A foreigner temporarily residing in GPE whose right of residence has been cancelled shall leave the country within TIME of the time when the interdiction is communicated to him ...

( CARDINAL ) If he does not comply with the obligation above , he may be expelled by order of the Minister of ORG . ”

The legislation has changed several times since DATE . Nowadays , under Emergency Ordinance no . CARDINAL/CARDINAL as amended by PERSON no . CARDINAL/CARDINAL and Emergency Ordinance no . CARDINAL/CARDINAL , a decision to expel a foreigner drafted in NORP and in an international language is served on the person concerned , who may appeal against it before the court of appeal ; the expulsion is suspended during the proceedings ( see PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE - on - Don . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

In DATE Mr N. lodged an action against the applicant seeking repayment of a loan . ORG of GPE listed the first hearing for DATE . The applicant informed ORG that he was unable to attend because he was in hospital . He asked for a stay of the proceedings .

The hearing of DATE was adjourned and rescheduled for DATE . According to the Government , ORG sent a summons to the applicant notifying him of the hearing . According to the applicant , he was not summonsed to that hearing .

On DATE the ORG upheld Mr N. ’s action in the applicant ’s absence and ordered that the applicant should repay him the loan and interest thereon . Mr N. ’s representative attended the hearing and made oral submissions .

On DATE the Rostov ORG quashed the judgment and remitted the case for fresh examination .

The President of ORG lodged an application for supervisory review of the judgment of DATE . On DATE the ORG of ORG , by way of supervisory - review proceedings , quashed the judgment of DATE and upheld the judgment of DATE .

On DATE ORG of GPE , on a petition by the applicant for supervisory review , quashed the judgment of DATE and upheld the judgment of CARDINAL DATE . ORG , in so far as relevant , held as follows :

“ ... it appears from the case materials [ that ] the first - instance court examined the case in the absence of the defendant .

The judgment of ORG of GPE was quashed on appeal , and the case was sent for re - examination . The judgment of the appellate court stated that the judgment of the [ District ] court was to be quashed because it had been made in violation of the requirements of LAW . In particular , there was no evidence in the case file that Mr Babunidze had received a telegram containing information on the date of the hearing , which is a ground for quashing a judgment according to paragraph CARDINAL of Article CARDINAL of the RSFSR Code of Civil Procedure .

The judgment of DATE of the ORG of ORG should be quashed because it was issued in violation of the procedural legal norms .

Pursuant to LAW , in force at the material time , parties to the proceedings and their representatives should be informed by a court summons about the time and place of a court hearing or about other procedural actions ...

A summons should be served on the parties and their representatives in such a way [ as to ensure ] that they have enough time to prepare their case and arrive at the court .

Pursuant to LAW , where a party fails to appear and there is no evidence that he / she was properly summonsed , the court hearing is to be adjourned .

Pursuant to LAW , examination of a case in the absence of a party which was not properly notified of the date and place of the court hearing is an unconditional ground for the quashing of a judgment .

There is no evidence in the file that Mr Babunidze was notified of the time and place of the court hearing , [ and ] thus the appeal judgment by which ORG judgment , made in violation of LAW , was quashed , is lawful and substantiated . The Presidium of ORG had no grounds for quashing it . ”

The case file was returned to ORG . After receiving the case file , the court fixed several hearings . According to the Government , the applicant was summonsed to the hearings but failed to appear on every occasion . In particular , ORG fixed CARDINAL hearings in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . The applicant did not attend , motioning ORG to stay the proceedings because he was undergoing outpatient treatment for hypertension .

ORG listed a hearing for DATE . The applicant again asked ORG to adjourn the hearing , alleging that he had sustained an injury and could not attend .

ORG asked the hospital for information on the applicant ’s state of health . On DATE the hospital replied that the applicant had complained to a doctor about pain in a knee - joint and that that injury was not serious enough to have prevented him from participating in the hearing of DATE .

The following hearing was fixed for DATE . ORG sent a telegram to the applicant ’s home address , notifying him of the hearing . The telegram could not be delivered because the applicant was not at home . A postman left a notice in the applicant ’s mail box , informing him about the telegram and noting that it had been sent by ORG . The applicant failed to retrieve the telegram .

On DATE ORG held a hearing . The applicant did not attend . ORG considered that he had been properly summonsed and delivered judgment in Mr N. ’s favour . ORG held , in particular :

“ By virtue of LAW , parties to the proceedings are to be summonsed to a hearing by a letter sent by registered mail with an acknowledgment of receipt , by a court summons with an acknowledgment of receipt , by a telegram , by phone or fax or by any other means which can guarantee the recording of the fact that the summons was sent and was received by the party . Parties must inform the court of changes to their address during the proceedings . If a party fails to notify the court of such a change , a court summons is to be sent to the addressee ’s last known address and is considered to be delivered even if the addressee no longer lives or resides there ( LAW ) .

At the last court hearing in which the defendant participated on DATE , he indicated the following address as his residence ... This circumstance is also confirmed by the address certificate of CARDINAL DATE , enclosed in the case file . Under LAW , the applicant was under an obligation to inform the court of any change in his address during the proceedings , but did not do this .

Having regard to the above considerations , the court finds that under LAW , the summons in the form of the telegram which was sent to the defendant ’s last known address , was delivered to him and considers it possible to examine the case in Mr Babunidze ’s absence , in accordance with LAW . ”

The applicant appealed against the judgment , alleging defective notification of the hearing of DATE . ORG accepted the statement of appeal and fixed a hearing for DATE . The applicant was summonsed . However , he asked ORG to adjourn the appeal hearing on account of his ill - health .

On DATE ORG upheld the judgment of DATE in the applicant ’s absence . It addressed in detail the applicant ’s complaint about the defective notifications to the hearings before ORG . ORG again confirmed that the telegram had been sent to the applicant , notifying him of the hearing on DATE . It had not been delivered because the applicant had not been at home . He had not responded to the note about the telegram . Furthermore , the applicant had been aware that the hearing of DATE had been adjourned at his request , submitted on DATE . He had had an opportunity to ask ORG about the date of the following hearing but had failed to do so .

Furthermore , ORG pointed out that , during the re - examination of the case following the quashing of the judgment of CARDINAL DATE , the applicant had failed to attend CARDINAL hearings over DATE . He had been properly summonsed to every CARDINAL of them and had had an opportunity to appoint a representative . However , he had persistently lodged motions for adjournment on the ground that he had been undergoing outpatient treatment . At the same time , he had not submitted any evidence showing that he had been unable to take part in the hearings due to his state of health . Furthermore , the applicant had not attended the hearing on DATE , complaining about an injury , although it subsequently became clear that he had been fit to take part . ORG concluded that the applicant had abused his procedural rights and had procrastinated in the proceedings . ORG had had no choice but to issue the judgment in his absence .

ORG dismissed the request for an adjournment of the appeal hearing , holding as follows :

“ On DATE Mr Babunidze did not attend the appeal hearing before ORG . He filed a written petition for an adjournment of the appeal proceedings on the ground that he was ill . He submitted a certificate issued on DATE by GPE town hospital no . CARDINAL , confirming that Mr Babunidze had several illnesses , including hypertension , stenocardia , etc . , on the basis of which he was recommended for outpatient treatment .

The representative [ of the plaintiff ] objects to the adjournment , insisting that the defendant systematically defaults , referring to various illnesses from which he suffers , and that he intentionally procrastinates in the examination of the present case .

In accordance with LAW , by virtue of which the absence of a party properly notified of the date and place of a court hearing does not prevent an appellate court from examining the case , and having regard to the fact that there is no evidence that [ Mr Babunidze ’s ] illnesses and the state of his health on DATE prevented him or his representative from participating in the hearing ( under LAW the defendant has a right to participate in the appeal proceedings himself or through some form of representation , including an advocate , but [ the applicant ] did not consider it necessary to make use of such a right ) , the [ Regional ] court decides to reject the request [ for an adjournment ] . ”

The RSFSR Code of Civil Procedure of CARDINAL DATE ( in force until DATE ) :

“ Parties and their representatives are to be notified by court summonses of the date and place of a court hearing or certain procedural actions ...

A summons is to be served on parties and their representatives in such a way [ as to ensure ] that they have enough time to appear at the hearing and prepare their case ...

Where necessary , parties and their representatives ... may be summonsed by a phone call or a telegram . ”

“ Summonses are to be sent by mail or by courier . The time when the summons was served on an addressee is to be recorded on the summons and on its copy , which is to be returned to the court ... ”

“ The summons is to be served on a person against his / her signature , made on a copy of the summons , which is to be returned to the court ... ”

“ A civil case is to be heard in a court session with mandatory notification to all parties to the case ... ”

“ If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned .

If the party was duly notified of the date and place of the court hearing , the hearing is to be adjourned if the court considers that the reason for the absence is valid .

A party is to inform the court of the reasons for his / her absence and provide evidence confirming the validity of the excuse . A court may examine a case in the defendant ’s absence if he / she did not provide information concerning the reasons for his / her absence , if the court considers that the excuse for the absence is invalid or if the defendant intentionally delays examination of the case .

A party may ask the court to examine the case in his / her absence and to provide him / her with a copy of the judgment ... ”

“ FAC for the quashing of a court judgment on appeal and for remittance of a case for fresh examination by a first - instance court are :

( CARDINAL ) violation or incorrect application of substantive and procedural legal norms ... ”

“ Violation or incorrect application of procedural legal norms shall only serve as a ground for the quashing of a judgment if such a violation led or could have led to incorrect determination of the case .

A judgment is to be quashed if :

( CARDINAL ) a court examined a case in the absence of a party which had not been notified of the date and place of a hearing ... ”

The Code of Civil Procedure of GPE ( in force from DATE ) :

“ CARDINAL . NORP Parties ... are to be summonsed to court by a letter sent via registered mail with an acknowledgment of receipt , a court summons with an acknowledgment of receipt , a telegram , by phone or fax or by any other means of communication which guarantee recording of the fact that the court summonses or notifications were received by the parties .

A court summons is a form of court notification . Parties are notified by court summonses of the date and place of a court hearing or of particular procedural actions ...

A summons is to be served on parties in such a way [ as to ensure ] that they have enough time to prepare their case and to appear at the hearing .

A court notification , addressed to a party , is to be sent to an address indicated by that party or his / her representative . If a party does not reside at the indicated address , the court summons may be sent to his or her place of work ... ”

“ CARDINAL . ORG summonses and notifications are to be sent by mail or delivered by a person whom the court authorises to deliver them . The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court .

With a party ’s consent , a judge can serve him / her with summonses or notifications to be delivered to another party . A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee ’s signature recording receipt . ”

“ CARDINAL . A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons , which is to be returned to the court ...

NORP If the current place of residence of an addressee is unknown , an entry to this effect is to be made on the court summons , showing the date and time of the attempted service and the source of the information . ”

“ Parties are to inform the court of any change in their address in the course of the proceedings . If no such notification is provided , court summonses or notifications are to be sent to the addressee ’s last known address and are considered to be delivered even if the addressee no longer lives or resides there . ”

“ When a defendant ’s place of residence is unknown , the court begins examination of a case once it has received information to that effect from the defendant ’s last known place of residence . ”

“ CARDINAL . Parties are to inform the court about the reasons for their absence and provide evidence confirming the validity of the reasons .

NORP If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned . If a party was duly notified of the date and place of a court hearing , the hearing is to be adjourned if the court considers that the reason for the absence is valid .

A court can examine a case in the absence of a defendant duly notified of the date and place of a court hearing if he / she did not provide valid reasons for his / her absence and did not ask the court to adjourn the examination of the case .

Parties can ask a court to examine a case in their absence ... ”


The applicants , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . The first and second applicants live in GPE and the third and fourth applicants live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) did not designate an Agent for the purposes of the proceedings before the ORG .

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

On DATE , CARDINAL DATE , DATE and CARDINAL DATE respectively the applicants were arrested on suspicion of membership of an illegal organisation .

On an unspecified date , ORG filed an indictment against the applicants and CARDINAL other accused . The applicants were charged under LAW with attempting to undermine the constitutional order .

The applicants had legal representation during the proceedings . Mr PERSON was represented by PERSON , Mr PERSON was represented by PERSON İnceoğlu and Mr PERSON and PERSON were represented by PERSON .

The applicants were released pending trial .

On DATE the Istanbul Martial Law Court convicted the applicants as charged .

On DATE ORG quashed the judgment of the first - instance court .

On DATE the Istanbul Martial Law Court convicted PERSON and Mr PERSON and acquitted PERSON Sağır and Mr PERSON of the charges against them .

On DATE the lawyer of the third and fourth applicants , PERSON , appealed against the judgment of ORG in respect of his other clients who had been convicted . The names of the third and fourth applicants , who had been acquitted of the charges against them , were not listed in the appeal petition .

In their observations the Government submitted that the judgment of ORG was served on DATE on Mr PERSON mother , on DATE on Mr PERSON in person , and on DATE on Mr PERSON mother . The Government further stated that PERSON PERSON could not be found at his address and as he had failed to report his new address to the domestic court , the judgment in question was attached to the door of his last known address on DATE in accordance with LAW of ORG .


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings

ORG Mr PERSON , who is unemployed and has no fixed abode , is currently in custody at ORG ) .

ORG On DATE and DATE an investigating judge at FAC ( GPE - Garonne ) , who was inquiring into the murder of a banker , Mr PERSON , at GPE on TIME CARDINAL - CARDINAL June ( " the PERSON case " ) , issued CARDINAL warrants to the commanding officer of the investigation section of the ORG gendarmerie . In the second of these the officer was instructed to tap the telephone of a suspect , Mr PERSON , who lived in GPE .

From DATE the gendarmes intercepted CARDINAL telephone calls in all . The applicant , who was staying with Mr Terrieux at the time and occasionally used his telephone , had been a party to several of the telephone conversations and more especially to CARDINAL TIME on DATE with someone calling him from a public telephone - box in GPE ( ORG ) .

During their short conversation the CARDINAL men had spoken in veiled terms about a different case from the PERSON case , concerning in particular the murder on CARDINAL DATE of PERSON , an employee of the Gerbe d’Or jewellers in GPE ( " the Gerbe d’Or case " ) . The gendarmes reported DATE to colleagues from the criminal - investigation branch of the police . On DATE an investigating judge in GPE had issued a warrant to these officers to investigate that case , and they now immediately listened to the recording of the telephone conversation in question , had it transcribed and appended the text to a report drawn up at TIME on DATE ; the original tape remained , sealed , with the gendarmerie .

ORG At dawn on DATE the gendarmes arrested PERSON at Mr ORG ’s home and held him in custody in connection with the PERSON case .

TIME he was questioned about the Gerbe d’Or case by the police ( who had already questioned him on DATE and then released him after TIME ) and - the next day , it seems - he was charged together with Mr ORG and CARDINAL PERSON with murder , aggravated theft and attempted aggravated theft . On DATE the ORG investigating judge held a confrontation of the CARDINAL men , during which after the seals had been broken in their presence - the aforementioned taperecording was heard in its entirety , including the conversation on TIME of DATE .

PERSON adopted the same attitude as when questioned by the police on DATE : he protested his innocence and denied - in respect of this conversation but not of the others - that the voice was his . Mr CARDINAL now said that he did not recognise the voice , whereas he had identified it earlier .

The tape was resealed , again in the presence of the persons charged . The applicant refused to sign either the report or the form recording the sealing .

He subsequently applied for an examination by experts , and the investigating judge granted the application in an order of CARDINAL DATE . In their report of CARDINAL DATE , however , the CARDINAL experts who were appointed felt able to state " with PERCENT certainty " that the voice they had analysed was indeed PERSON ’s .

Before ORG ( chambre d’accusation ) of ORG , to which the case was sent after the judicial investigation was completed , the applicant requested that the recording of the disputed conversation should be ruled inadmissible in evidence because it had been made in connection with proceedings which , he claimed , did not concern him - the PERSON case . On DATE ORG dismissed this plea in the following terms :

" ... while this telephone tapping was ordered by the investigating judge at the Saint - Gaudens tribunal de grande instance in connection with other proceedings , the fact remains that judges are not prohibited by either LAW [ which lays down the principle that judicial investigations shall be confidential ] or ORG R.CARDINAL and PERSON of LAW from deciding to include in criminal proceedings evidence from other proceedings which may assist them and help to establish the truth , on the sole condition - which was satisfied in the instant case - that such evidence is added under an adversarial procedure and that it has been submitted to the parties for them to comment on ... "

In so doing , ORG , it appears , took as its inspiration - and extended by analogy to the field of telephone tapping the settled case - law of ORG , developed in respect of other investigative measures ( see , for example , CARDINAL DATE , ORG . ) no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL ; DATE , ORG . no . CARDINAL ; CARDINAL DATE and DATE , ORG . ORG . CARDINAL and CARDINAL ; DATE and DATE , ORG . ORG . CARDINAL and CARDINAL ) .

In the same decision ORG committed PERSON - with CARDINAL others , including Mr Terrieux and Mr Antoine - for trial at the Haute - Garonne Assize Court on charges , in his case , of aiding and abetting a murder , aggravated theft and attempted aggravated theft .

The applicant appealed to ORG on points of law . In the second of his CARDINAL grounds of appeal he relied on DATE ( article CARDINAL) of the Convention . He criticised ORG of ORG for having

" refused to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible ;

whereas interference by the public authorities with a person ’s private and family life , home and correspondence is not necessary in a NORP society for the prevention of crime unless it is in accordance with a law that satisfies the following CARDINAL requirements : it must be of a quality such that it is sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence , and it must define the scope and manner of exercise of such a power clearly enough to give the individual adequate protection from arbitrary interference ; these requirements are not satisfied by any provision of NORP law , and particularly not by LAW " .

In his supplementary pleadings of DATE ( pp . CARDINAL - CARDINAL ) counsel for Mr ORG relied on the case - law of ORG , both in regard to telephone tapping ( PERSON and Others judgment of DATE and ORG judgment of CARDINAL DATE , Series A nos . CARDINAL and DATE ) and in other respects ( PERSON judgment of CARDINAL DATE , ORG judgment of DATE and Silver and Others judgment of CARDINAL DATE , Series A nos . CARDINAL , DATE and DATE ) .

ORG dismissed the appeal in a judgment of DATE . As regards the point in question it gave the following reasons for its decision :

An examination of the evidence shows that the transcript of a tape recording of conversations in calls made on ORG ’s telephone line was included in the file of the murder investigation then being conducted by the ORG investigating judge following the death of PERSON at the hands of a person or persons unknown ; this recording had been made pursuant to a warrant issued by the investigating judge at FAC in connection with the investigation of another murder , likewise committed by a person or persons unknown ; it was because of its relevance to the investigation into PERSON ’s death that the transcription was made by senior police officers acting under a warrant issued by the investigating judge in GPE ;

The tenor of the conversations recorded was made known to the various persons concerned , notably ORG , who was asked to account for them both during the inquiries made pursuant to the investigating judge ’s warrant and after he was charged ; furthermore , an examination of the tape recording by an expert , whose report was subsequently added to the evidence , was made pursuant to a lawful decision by the investigating judge ;

That being so , ORG did not lay itself open to the objection raised in the ground of appeal by refusing to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible ;

In the first place , there is no statutory provision prohibiting the inclusion in criminal proceedings of evidence from other proceedings which may assist the judges and help to establish the truth ; the sole condition is that such evidence should be added under an adversarial procedure - which was so in this case , in which the documents were submitted to the parties for them to comment on ;

In the second place , it is clear from ORG and CARDINAL of LAW and from the general principles of criminal procedure that , among other things , firstly , telephone tapping may be ordered by an investigating judge , by means of a warrant , only where there is a presumption that a specific offence has been committed which has given rise to the investigation which the judge has been assigned to undertake , and that it can not be directed , on the off chance , against a whole category of offences ; and , secondly , that the interception ordered must be carried out under the supervision of the investigating judge , without any subterfuge or ruse being employed and in such a way that the exercise of the rights of the defence can not be jeopardised ;

These provisions governing the use of telephone tapping by an investigating judge , which have not been shown to have been infringed in the instant case , satisfy the requirements of LAW article CARDINAL) of ORG ;

... " ( ORG . no . CARDINAL , pp . CARDINAL - CARDINAL )

ORG It appears from the file that the recording of the telephone conversation of CARDINAL DATE was a decisive piece of evidence in the proceedings against the applicant . These proceedings ended , on DATE , with a judgment of the Haute - Garonne Assize Court . PERSON was acquitted of murder but sentenced to DATE imprisonment for armed robbery and attempted armed robbery ; an appeal by him to ORG was dismissed on DATE . He seems always to have protested his innocence .

ORG In the PERSON case ORG of ORG likewise committed the applicant , on DATE , for trial at the GPE - Garonne Assizes , together with Mr PERSON and one PERSON . At that trial too he alleged that the telephone tapping carried out from DATE was inadmissible ; on CARDINAL DATE ORG dismissed this plea on grounds identical , mutatis mutandis , to those in its judgment of DATE previously cited ( see paragraph CARDINAL above - PERSON ( ORG ) DATE , sommaires , p. CARDINAL ) . On DATE ORG sentenced the applicant to life imprisonment for premeditated murder ; he lodged an appeal on points of law , but this was dismissed by ORG on DATE .

The complaints he made to the Commission , however , related solely to the telephone tapping whose results were used in the Gerbe d’Or case .

ORG NORP criminal law adopts the principle that any kind of evidence is admissible : " unless otherwise provided by statute , any type of evidence shall be admissible to substantiate a criminal charge ... " ( LAW ) .

There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping , or indeed to carry out or order various measures which are nonetheless in common use , such as the taking of photographs or fingerprints , shadowing , surveillance , requisitions , confrontations of witnesses and reconstructions of crimes . On the other hand , LAW does expressly confer power on them to take several other measures , which it regulates in detail , such as pre - trial detention , seizure of property and searches .

ORG Under the old LAW had condemned the use of telephone tapping by investigating judges , at least in circumstances which it regarded as disclosing , on the part of a judge or the police , a lack of " fairness " incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence ( combined divisions , DATE , ministère public PERSON , PERSON , jurisprudence , pp . CARDINAL - CARDINAL ; ORG , DATE , ORG , ORG . no . CARDINAL , pp . CARDINAL ; ORG , second section , DATE , époux PERSON c. époux Lubrano et autres , ORG , jurisprudence , pp . CARDINAL - CARDINAL , and ORG ( ORG ) DATE , jurisprudence , p. CARDINAL ) . Some trial courts and courts of appeal which had to deal with the issue , on the other hand , showed some willingness to hold that such telephone tapping was lawful if there had been neither " entrapment " nor " provocation " ; this view was based on LAW , ORG , CARDINAL DATE , ministère public contre X , GPE DATE , jurisprudence , pp . CARDINAL - CARDINAL ) .

ORG Since the DATE Code of Criminal Procedure came into force , the courts have had regard in this respect to , among others , Articles CARDINAL , CARDINAL and CARDINAL , which provide :

" The investigating judge shall , in accordance with the law , take all the investigative measures which he deems useful for establishing the truth .

If the investigating judge is unable to take all the investigative measures himself , he may issue warrants to senior police officers ( officiers de police judiciaire ) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles CARDINAL and CARDINAL .

The investigating judge must verify the information thus gathered .

" An investigating judge may issue a warrant requiring any judge of his court , any district - court judge within the territorial jurisdiction of that court , any senior police officer ( officier de police judiciaire ) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions .

The warrant shall indicate the nature of the offence to which the proceedings relate . It shall be dated and signed by the issuing judge and shall bear his seal .

It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate .

" The judges or senior police officers instructed to act shall exercise , within the limits of the warrant , all the powers of the investigating judge .

An Act of DATE added to LAW an Article CARDINAL guaranteeing to everyone " the right to respect for his private life " . It also added to LAW an Article CARDINAL , whereby :

" Anyone who wilfully intrudes on the privacy of others :

By listening to , recording or transmitting by means of any device , words spoken by a person in a private place , without that person ’s consent ;

shall be liable to imprisonment for not DATE and not DATE and a fine ... or to CARDINAL of these CARDINAL penalties . "

During the preparatory work , one of the vice - chairmen of ORG , PERSON , sought " certain assurances " that this enactment " [ would ] not prevent the investigating judge from issuing strictly within the provisions of the law warrants to have telephones tapped , obviously without making use of any form of inducement and in compliance with all the legal procedures " ( ORG , ORG , DATE proceedings , p. CARDINAL ) . The Minister of ORG , PERSON , replied : " ... there is no question of interfering with the powers of investigating judges , who are indeed empowered , in the circumstances laid down by law , to order tapping " ; he added a little later : " When an official taps a telephone , he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister " ( ibid . , p. CARDINAL ) . Both ORG thereupon passed the PERSON without amending it on this point .

ORG Article CARDINAL of ORG provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in LAW - a fine , imprisonment and temporary disqualification from any public office or employment . Article CARDINAL provides that anyone who , without permission from the sender or the addressee , divulges , publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in LAW ( on professional confidentiality ) - a fine or imprisonment .

General Instruction no . CARDINAL - CARDINAL on the telephone service - intended for ORG and ORG officials - contains the following provisions , however , given here in the amended version of DATE ( LAW ) :

" PERSON and sub - postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority , made by :

An investigating judge ( Articles CARDINAL , CARDINAL of the Code of Criminal Procedure ) or any judge or senior police officer ( officier de police judiciaire ) to whom a judicial warrant has been issued ( Art . CARDINAL ) ;

ORG was published in the official bulletin of ORG and was described by the Government as an " implementing regulation " .

ORG The striking development of various forms of serious crime - large - scale thefts and robberies , terrorism , drug - trafficking - appears in GPE to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping . The courts have as a result given many more decisions on the subject than formerly ; telephone tapping has not been held to be unlawful in itself , although the courts have occasionally shown some distaste for it ( ORG , ORG , CARDINAL DATE , PERSON , DATE , jurisprudence , pp . CARDINAL - CARDINAL ) .

The decisions cited to ORG , the Commission and the applicant , or of which the ORG has had cognisance by its own means , are mostly of later date than the facts of the instant case ( DATE ) and have gradually provided a number of clarifications . These do not all stem from judgments of ORG , and do not for the time being constitute a uniform body of case - law , because the decisions or reasons given in some of the cases have remained unique . They may be summarised as follows .

( a ) Articles CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL above ) empower investigating judges - and them alone , as far as judicial investigations are concerned - to carry out telephone tapping or , much more commonly in practice , to issue a warrant to that effect to a senior police officer ( officier de police judiciaire ) within the meaning of LAW ( see , in particular , ORG , CARDINAL DATE , ORG . no . CARDINAL , pp . CARDINAL - CARDINAL ; DATE , PERSON , PERSON et autre , ORG , jurisprudence , pp . CARDINAL - CARDINAL ; DATE - see paragraph CARDINAL above ; CARDINAL DATE - see paragraph CARDINAL above ; DATE , PERSON , and DATE , PERSON . no . CARDINAL , pp . CARDINAL - CARDINAL ) . Telephone tapping is an " investigative measure " which may sometimes be " useful for establishing the truth " . It is comparable to the seizure of letters or telegrams ( see , among other authorities , ORG , ORG , DATE , NORP , Juris - Classeur périodique ( ORG ) DATE , jurisprudence , no . DATE , and ORG , ORG , DATE , F. et autre , ORG DATE , jurisprudence , pp . CARDINAL ) and it similarly does not offend the provisions of LAW , having regard to the legislative history and to the principle that any kind of evidence is admissible ( see paragraphs CARDINAL and CARDINAL above and GPE tribunal de grande instance , DATE , PERSON , unreported ; ORG , DATE , PERSON , unreported but cited by ORG at the Commission hearing on DATE ; ORG , ORG , judgment of DATE previously cited and judgment of CARDINAL DATE , PERSON , ORG , sommaires , pp . CARDINAL - CARDINAL ) .

( b ) The investigating judge can only issue such a warrant " where there is a presumption that a specific offence has been committed which has given rise to the investigation " which he is responsible for conducting and not in respect of a whole category of offences " on the off chance " ; this is clear not only from ORG and CARDINAL ( second and third paragraphs ) of LAW but also " from the general principles of criminal procedure " ( see , among other authorities , ORG , judgments of DATE , CARDINAL DATE and DATE previously cited ) .

The NORP courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it .

( c ) " Within the limits of the warrant " that has been issued to him - if need be by fax ( ORG , ORG , CARDINAL DATE , Lecesne et autres , ORG , sommaires , p. CARDINAL ) - the senior police officer exercises " all the powers of the investigating judge " ( LAW ) . He exercises these under the supervision of the investigating judge , who by the fifth paragraph of LAW is bound to " verify the information ... gathered " ( see , among other authorities , ORG , judgments of CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE previously cited ) .

The warrant apparently sometimes takes the form of a general delegation of powers , including - without its being expressly mentioned - the power to tap telephones ( Court of Cassation , Civil Division , second section , judgment of CARDINAL DATE previously cited , and ORG , judgment of CARDINAL DATE previously cited ) .

( d ) In no case may a police officer tap telephones on his own initiative without a warrant , for example during the preliminary investigation preceding the opening of the judicial investigation ( see , among other authorities , ORG , CARDINAL DATE , ORG , and DATE , ORG . no . CARDINAL , pp . CARDINAL , and no . CARDINAL , pp . CARDINAL ; full court , CARDINAL DATE , ORG , ORG , p. CARDINAL , and ORG , jurisprudence , no . DATE , with the submissions of Mr Advocate - General PERSON ) .

( e ) Telephone tapping must not be accompanied by " any subterfuge or ruse " ( see , among other authorities , ORG , judgment of CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE previously cited ) failing which the information gathered by means of it must be either deleted or removed from the case file ORG , judgments of CARDINAL and DATE previously cited ) .

( f ) The telephone tapping must also be carried out " in such a way that the exercise of the rights of the defence can not be jeopardised " ( see , among other authorities , ORG , judgments of CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE and DATE previously cited ) . In particular , the confidentiality of the relations between suspect or person accused and lawyer must be respected , as must , more generally , a lawyer ’s duty of professional confidentiality , at least when he is not acting in any other capacity ( Aix - en - ORG , ORG , DATE and DATE , PERSON et autres , ORG , jurisprudence , pp . CARDINAL - CARDINAL , and DATE , jurisprudence , pp . CARDINAL - CARDINAL ; ORG , ORG , judgment of DATE previously cited ) .

( g ) With this reservation , it is permissible to tap telephone calls to or from a charged person ( Court of Cassation , Criminal Division , judgments of CARDINAL DATE and DATE previously cited ) or a mere suspect , such as Mr ORG in the instant case ( see paragraph CARDINAL above and also the previously cited judgments of the GPE tribunal de grande instance , DATE , ORG , DATE , and ORG of ORG , DATE ) or even a third party , such as a witness , whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence ( see , among other authorities , Aix - en - Provence Court of Appeal , judgment of DATE previously cited ) .

( h ) A public telephone - box may be tapped ( ORG , ORG , CARDINAL DATE , Trésor public et ORG courses c. L. et autres , ORG DATE , jurisprudence , pp . CARDINAL - CARDINAL ) just like a private line , irrespective of whether current is diverted to a listening station ( ORG , CARDINAL DATE , and full court , PERCENT DATE , previously cited ) .

( i ) The senior police officer supervises the tape or cassette recording of the conversations and their transcription , where he does not carry out these operations himself ; when it comes to choosing extracts to submit " for examination by the court " , it is for him to determine " what words may render the speaker liable to criminal proceedings " . He performs these duties " on his own responsibility and under the supervision of the investigating judge " ( GPE tribunal de grande instance , judgment of CARDINAL DATE previously cited , upheld by ORG on DATE ; ORG , judgment of DATE previously cited ) .

( j ) The original tapes - which in the instant case were sealed ( see paragraphs CARDINAL - CARDINAL above ) - are " exhibits " , not " investigation documents " , but have only the weight of circumstantial evidence ; their contents are transcribed in reports in order to give them a physical form so that they can be inspected ( Court of Cassation , Criminal Division , DATE , PERSON , ORG . no . CARDINAL , pp . CARDINAL ) .

( k ) If transcription raises a problem of translation into NORP , Articles CARDINAL et seq . of LAW , which deal with expert opinions , do not apply to the appointment and work of the translator ( Court of Cassation , Criminal Division , DATE , ORG , ORG . no . CARDINAL , pp . CARDINAL - CARDINAL ( extracts ) , and DATE , PERSON , not yet reported ) .

( l ) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings , such as tapes and reports containing transcriptions , if they may " assist the judges and help to establish the truth " , provided that such evidence is added under an adversarial procedure ( ORG , ORG , DATE - see paragraph CARDINAL above ; ORG , DATE - see paragraph CARDINAL above - and DATE previously cited ) .

( m ) The defence must be able to inspect the reports containing transcriptions , to hear the original tape recordings , to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion , as in the instant case ( see paragraph CARDINAL in fine ) - relating to their contents and the circumstances in which they were made ( see , among other authorities , ORG , DATE - see paragraph CARDINAL above ; DATE , GPE , unreported ; and DATE , PERSON , previously cited ) .

( n ) Just as the investigating judge supervises the senior police officer , he is himself supervised by ORG , to which he - exactly like the public prosecutor - may apply under LAW .

Trial courts , courts of appeal and ORG may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also , on occasion , by the prosecution ( ORG , judgments of DATE and CARDINAL DATE previously cited ) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable . A failure of this kind , however , would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion ; they affect only defence rights ( Court of Cassation , ORG , DATE , ORG , not yet reported ) .

ORG Since DATE , parties have increasingly often relied on DATE ( article CARDINAL) of FAC , much less frequently , on LAW ( Court of Cassation , Criminal Division , DATE , Pellegrin et autres , ORG . no . CARDINAL , pp . CARDINAL - CARDINAL , and CARDINAL DATE , PERSON ) - in support of their complaints about telephone tapping ; they have sometimes as in the instant case ( see paragraph CARDINAL above ) - cited the case - law of ORG .

Hitherto only telephone tapping carried out without a warrant , during the police investigation ( see , among other authorities , ORG , judgments of DATE and CARDINAL DATE previously cited ) , or in unexplained circumstances ( see , among other authorities , ORG , judgment of DATE previously cited ) or in violation of defence rights ( ORG , ORG , judgment of DATE , previously cited ) has been held by the NORP courts to be contrary to LAW ( article LAW ) ( " in accordance with the law " ) or to domestic law in the strict sense . In all other cases the courts have either found no violation ( ORG , judgments of DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE previously cited , and DATE , PERSON , unreported , and the judgments of CARDINAL DATE ( GPE ) , CARDINAL DATE ( GPE ) and DATE ( GPE ) previously cited ) or else ruled the plea inadmissible for various reasons ( Court of Cassation , ORG , judgments of DATE , CARDINAL DATE and CARDINAL DATE previously cited and the unreported judgments of CARDINAL DATE , PERSON ; CARDINAL DATE , PERSON ; DATE ; CARDINAL DATE , J. ; and CARDINAL DATE , B. et autres ) .

ORG While academic opinion is divided as to the compatibility of telephone tapping as carried out in GPE - on the orders of investigating judges or others - with the national and international legal rules in force in the country , there seems to be unanimous agreement that it is desirable and even necessary for ORG to try to solve the problem by following the example set by many foreign States ( see in particular NORP di PERSON , comments on the NORP judgment of DATE ( ORG ) , ORG , jurisprudence , no . DATE ; PERSON , ‘ Les résultats de l’audio - surveillance comme preuve pénale’ , Revue internationale de droit comparé , DATE , pp . CARDINAL - CARDINAL and CARDINAL ; PERSON , ‘ FAC téléphoniques’ , Studies in honour of PERSON , DATE , p. CARDINAL ; PERSON , ‘ ORG téléphoniques et Convention européenne des Droits de l’Homme’ , ORG , chronique , pp . CARDINAL ) . In DATE the ORG set up a study group chaired by Mr PERSON , who was then President of ORG , and consisting of senators and MPs of various political persuasions , judges , university professors , senior civil servants , judges and a barrister . The group submitted a report on DATE , but this has remained confidential and has not yet led to a bill being tabled .


The applicant is a NORP citizen , born in DATE and living in GPE , GPE . She is represented before the ORG by PERSON PERSON , chairman of an association for patients .

A.

Since DATE the applicant has suffered from various health problems , e.g. arrhythmia , blood pressure , headaches , and pain in her back and neck . In DATE , she sought compensation from her insurance company on the basis of a voluntary insurance claiming her problems were related to her work as a dentist .

On DATE , the insurance company refused her claim for compensation . ORG ( tapaturmalautakunta , olycksfallsnämnd ) and ORG ( vakuutusoikeus , försäkringsdomstol ) rejected her appeals on DATE and DATE respectively . ORG ( korkein oikeus , högsta domstolen ) refused her leave to appeal on DATE . These proceedings are later referred to as “ the first set of proceedings ” .

After receiving new medical statements , the insurance company reviewed the applicant ’s claim for compensation and , on DATE , upheld its previous refusal .

The applicant appealed to ORG , which rejected the appeal on DATE . The proceedings before ORG were conducted in writing .

The applicant appealed to ORG requesting , inter alia , an oral hearing . ORG received a statement from the insurance company and the applicant submitted her observations to it . On DATE , ORG rejected the appeal without holding an oral hearing . It reasoned its refusal to hold an oral hearing as follows :

( translation from NORP )

The applicant sought leave to appeal against ORG decision from ORG arguing , inter alia , that ORG had no legal ground for its refusal to hold an oral hearing . Furthermore , she claimed that ORG should wait for ORG decision on her complaint before deciding the case . On DATE , ORG refused the applicant leave to appeal . The latter proceedings are later referred to as “ the second set of proceedings ” .

B. Relevant domestic law

According to Section CARDINAL , subsection CARDINAL , of ORG ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen CARDINAL/CARDINAL ) as in force at the relevant time , the proceedings before ORG were written . However , ORG could for special reasons decide to hold an oral hearing where the parties , witnesses and experts could be heard . It could also request that evidence be taken by an ordinary court of first instance .

According to Section CARDINAL(b ) of LAW ( tapaturmavakuutuslaki , lagen on olycksfallsförsäkring CARDINAL/CARDINAL ) , one who wants to appeal against ORG decision to ORG must seek leave to appeal , which can be granted under the provisions set out in LAW , Section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalk ) .

According to LAW , LAW , of LAW , ORG may , when necessary , hold an oral hearing , where the parties , witnesses and experts may be heard , and other evidence may be taken .


CASE OF LEON AND AGNIESZKA KANIA v. POLAND

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in LOC .

In DATE the craftsmen ’s cooperative ( spółdzielnia rzemieślnicza ) “ GPE ” established its seat next to the applicants’ home . It was engaged in a wide range of commercial activities , including various maintenance services for lorries , metal cutting and grinding machines and other small - scale operations in the iron and steel industry .

On an unspecified date in DATE the applicants instituted administrative proceedings to have the cooperative cease its activities . They alleged that the level of noise and pollution emitted by the cooperative exceeded a tolerable level .

On DATE ORG ordered the liquidation of the craftsmen ’s cooperative “ GPE ” by DATE or alternatively that it switch to activities that did not cause a nuisance . During DATE the cooperative was to adapt its activities in order to comply with the rules on the protection of the environment and the emission of noise .

On DATE the Director of ORG in PERSON upheld that decision . The applicants appealed , contesting the lengthy period foreseen for the cooperative ’s liquidation and urging its shutdown .

On DATE ORG dismissed their appeal ( thus the decision of DATE became final ) .

On DATE the applicants again lodged a complaint with ORG in PERSON alleging that the DATE operations of the cooperative caused unbearable noise and were life - threatening for people living in the vicinity .

On DATE the Director of ORG in PERSON issued a decision establishing the maximum level of noise to be emitted .

Due to the non - compliance of the cooperative with the established noise - level limits , by a decision of CARDINAL DATE the Director of ORG in PERSON ordered the cooperative to suspend the operation of all its technical devices . The cooperative appealed to the Minister of the Environment .

On DATE , as the time - limit for the cooperative ’s liquidation established by the decision of DATE had expired , the applicants lodged a motion with ORG in PERSON to have the decision of CARDINAL DATE executed .

On DATE the applicants sent a letter to the Director of ORG in PERSON repeating their allegations with regard to the unacceptable noise and pollution emitted by the cooperative . They invoked the decision of DATE ordering the cooperative to cease its activities .

On DATE in response to their above request ORG in PERSON stated that all documents issued DATE had been destroyed , and thus the decision invoked by them no longer existed . Subsequently ORG referred the case to ORG in PERSON to determine its factual circumstances .

On DATE ORG in PERSON carried out an inspection of the cooperative .

On DATE ORG informed the applicants about the state of their case .

On DATE ORG in GPE notified the applicants of an extension of the time - limit granted to settle their case .

On DATE ORG in GPE referred the case to the President of PERSON to decide on the legality of the cooperative ’s activities .

On DATE ORG in PERSON informed the applicants that there were no grounds for the cooperative ’s liquidation . It also requested ORG ( ORG ) , ORG in PERSON , and ORG ( ORG ) to carry out an inspection of the ORG . The inspections took place on DATE and DATE , as well as on DATE . It was established that the cooperative ’s activities did not cause a nuisance .

On DATE the applicants submitted to ORG in PERSON an original copy of the decision of CARDINAL DATE .

On DATE the applicants sent a letter to the President of PERSON requesting the liquidation of the cooperative . Their request was transferred to ORG in GPE , which in a letter of DATE informed the applicants that there were no grounds for the cooperative ’s shutdown , having regard to the results of the inspections carried out in DATE and DATE .

On DATE ORG in PERSON checked the level of noise emitted by the cooperative . It was found that it exceeded the permissible threshold .

In a letter of DATE addressed to the Director of ORG in GPE the GPE Governor ordered the execution of the decision of CARDINAL DATE on the basis of those documents which had not been destroyed . On DATE ORG in PERSON informed the applicants about the state of their case .

On CARDINAL DATE ORG in GPE reprimanded ( udzielił nagany ) the cooperative and ordered it to bring its activities into compliance with the established noise - levels .

On DATE the cooperative filed a motion with ORG in PERSON to have the decision of DATE amended in respect of the permissible level of noise .

On DATE ORG in PERSON carried out an inspection of the cooperative ’s premises and found the level of noise emitted to be in conformity with the permissible threshold .

On DATE ORG in PERSON informed the applicants that there were no grounds to begin enforcement proceedings .

On DATE the Director of ORG in PERSON established the noise threshold at a lower level . The applicants appealed to the Minister of the Environment .

On DATE the Minister of the Environment quashed the decision of DATE and remitted the case , initiating proceedings for amending the decision of DATE in respect of the permissible level of noise .

On DATE ORG in PERSON carried out an inspection and found the level of noise emitted by the cooperative to be in conformity with the threshold . On DATE an additional inspection was carried out with the same results .

On DATE ORG informed the applicants that there were no grounds to begin enforcement proceedings .

On DATE the Minister of the Environment quashed the decision of DATE and discontinued the proceedings in the case since , according to a test performed on DATE , the level of noise emitted by the cooperative was in conformity with the established noise threshold .

Subsequently , the applicants lodged a motion to have their case reexamined . On DATE the Minister of the Environment upheld the decision of CARDINAL DATE . The applicants lodged an appeal with ORG .

On DATE ORG upheld his opinion given on DATE .

On DATE ORG transferred the case to ORG , requesting that an inspection of the cooperative ’s premises be carried out . The inspection took place on DATE . It was found that the cooperative was not acting in violation of the binding provisions of the construction law , although it had failed to produce valid documents concerning vehicle weighing equipment .

On DATE ORG informed the applicants about the state of their case .

On DATE the applicants lodged a motion with GPE to have the decision of DATE executed and the cooperative liquidated . They further requested that , in accordance with LAW ( Chapter II ) of the DATE PERSON on enforcement proceedings in administration ( ustawa o postępowaniu egzekucyjnym w administracji ) , a fine be imposed on the cooperative for non - implementation of a legally binding decision .

On DATE the ORG requested the cooperative to acquire valid documents for the vehicle weighing device . The applicants filed a complaint against this decision . On DATE ORG quashed the decision and remitted the case for re - examination . On DATE the ORG again ordered the cooperative to acquire documents for the weighing device . The applicants filed a complaint . On DATE the decision was upheld by ORG .

On DATE ORG ordered the applicants to supplement their motion of DATE with the decision of CARDINAL DATE joined by an enforcement clause . On DATE ORG returned the motion due to the applicants’ failure to submit those documents .

On DATE ORG quashed the contested decision of CARDINAL DATE and remitted the case for reconsideration .

On DATE the Minister of the Environment again upheld its decision of CARDINAL DATE . On DATE the applicants appealed to ORG , contesting the results of the test performed on DATE .

On DATE the ORG requested the cooperative to produce additional documents for the vehicle weighing equipment .

On DATE the ORG informed ORG in GPE that the cooperative had acquired the requisite documents for the equipment .

DATE . On DATE ORG in GPE suspended the proceedings until the question whether the level of noise emitted by the cooperative was in conformity with the threshold had been examined by ORG .

On DATE ORG quashed the decision of DATE due to procedural shortcomings .

On DATE ORG in Rzeszów carried out an inspection on the cooperative ’s premises and found that the level of noise emitted was in conformity with the relevant provisions .

On DATE the applicants filed a motion with ORG in PERSON requesting to have the decision of DATE enforced and the cooperative liquidated . Their request was transferred to ORG .

On DATE ORG decided to join the proceedings concerning the cooperative ’s shutdown .

On DATE ORG ordered ORG in GPE and the applicants to provide the original copy of the decision of DATE .

On DATE the applicants lodged a complaint with ORG about the administrative authorities’ inactivity with regard to the cooperative continuing its activities . The complaint was transmitted to ORG on DATE .

On DATE ORG in GPE discontinued the proceedings concerning the level of noise emitted by the cooperative .

On DATE ORG found that the ORG complaint about inactivity was well - founded and informed the applicants about his intention to lodge a motion with ORG to have administrative enforcement proceedings instituted .

On DATE the Regional Construction Inspector gave ORG an instruction to implement the decision of CARDINAL DATE .

On DATE ORG ordered that the cooperative be liquidated .

On DATE ORG again found their complaint about the non - execution of the decision well - founded and informed the applicants that the motion to have the decision of DATE enforced had already been lodged with ORG .

On DATE an on - site inspection took place on the cooperative ’s premises .

As a result of the above , in a letter of CARDINAL DATE ORG stated that some of the cooperative ’s buildings had not been constructed in conformity with the law . He further stated that the vehicle weighing device was to be destroyed .

On DATE the applicants lodged a complaint with ORG complaining about the excessive length of the enforcement proceedings , the inactivity of ORG and , further , the authorities’ failure to dismantle the cooperative ’s buildings .

On DATE the cooperative lodged a motion with ORG to have the decision of CARDINAL DATE declared null and void and its execution suspended .

On DATE the ORG initiated the enforcement proceedings , imposed a fine on the cooperative and issued a document joined by an enforcement clause ordering dismantlement of the weighing equipment .

On DATE the cooperative filed an objection with regard to the enforcement proceedings . On DATE the ORG decided to overrule their objection .

On DATE ORG discontinued the proceedings for annulment , finding that the competent authority to examine the case was ORG . Their complaint was thus subsequently transferred for reply to ORG .

DATE . On DATE ORG quashed the decision of DATE and discontinued the enforcement proceedings , finding that the enforcement clause had not been issued in accordance with the decision of CARDINAL DATE . The applicants failed to appeal .

On DATE ORG refused to suspend the decision of CARDINAL DATE and , in addition , found no grounds for its annulment .

On DATE the cooperative informed ORG that it had terminated its commercial activities on DATE .

On DATE ORG upheld his own decision of DATE ( after having reconsidered the case ) . The applicants failed to appeal to ORG , although it was open to them to do so .

On DATE the ORG conducted an on - site inspection on the cooperative ’s premises . It found that the cooperative had ceased its activities and that the vehicle weighing device had been destroyed . Thus , the proceedings were regarded as completed . The record of the inspection was signed by the applicants without reservation . A subsequent inspection on DATE did not provide any evidence indicating that the cooperative had resumed its activities .

For a presentation of the relevant domestic law , see PERSON v. GPE , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , DATE ; and PERSON , no . PERSON , DATE .

The relevant domestic remedies for nonenforcement of a final administrative decision are listed in the PERSON of DATE on enforcement proceedings in administration ( ustawa o postępowaniu egzekucyjnym w administracji ) . In particular , LAW applies to the execution of non - pecuniary obligations . LAW in so far as relevant ( Articles CARDINAL et seq . ) provides for a possibility of imposing a pecuniary penalty on an individual or a natural person compelling him to comply with an imposed obligation .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of the PERSON of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V ; NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.

The relevant provisions on acoustic pollution levels emitted into the environment are provided for by LAW DATE on the protection of the environment ( LOC o ochronie środowiska ) . LAW gives the Minister of the Environment the authority to determine permitted external noise - reception levels by reference to the main user of each of the areas . By the LAW DATE the Minister of ORG ( Rozporządzenie Ministra Środowiska ) established permissible noise thresholds for different areas marked on the city development plans , to be issued by the competent administrative authorities .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr J. Palatinus , a lawyer practising in PERSON . When introducing the application , the applicant was serving a sentence in FAC . The respondent Government were represented by Mr L. GPE , Agent , ORG and ORG .

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

On DATE the ORG imposed on the applicant a cumulative sentence of DATE and CARDINAL months’ imprisonment . This sentence corresponded to his convictions for the offences of abuse of firearms , forging documents , robbery , assault on an official person and escape from detention .

In DATE the applicant was serving his sentence in FAC . CARDINAL DATE he was treated at FAC , where his left leg was operated on DATE . On DATE , while he was waiting for transport back to ORG , a penitentiary officer handcuffed him to a pipe of ORG heating system situated in the corridor . The applicant states that he had to wait in this position for TIME , during which time he could not properly sit down , drink or go to the toilet , was mocked by the passers - by , and his freshly operated leg was hurting badly .

On DATE he filed a complaint with the prosecution authorities . Having investigated the incident , on DATE ORG issued a memorandum in which it stated that the measure , not denied by the FAC administration , was unlawful and might be capable of leading to a violation of LAW or Punishment .

Subsequently , ORG instituted an investigation for abuse of official power .

After remittals , on DATE ORG discontinued the investigation . Relying on testimonies given by witnesses , documentary and medical evidence , and an experiment , ORG held that – although the findings of fact corroborated the applicant ’s complaint , and the officer in charge had already been sanctioned in disciplinary proceedings – it could not be proven that the applicant was subjected to the impugned measure with an intention to cause him unlawful disadvantage , which was a sine qua non condition of the offence of abuse of official power . On DATE the Military Chief Public Prosecutor ’s Office dismissed the applicant ’s complaint .

The applicant did not file a private bill of indictment under section CARDINAL of the Code of Criminal Procedure against the penitentiary officer responsible , nor did he file with the investigating judge a request , under section CARDINAL(CARDINAL ) of the Code , for the resumption of the criminal proceedings in pursuit of his allegations .

On DATE the Pest County Regional Court acknowledged , in a judgment adopted in regard to the applicant ’s civil action for compensation against FAC , that the measure applied to him had been unlawful and amounted to inhuman treatment and awarded him MONEY ( CARDINAL ) plus accrued interests in compensation . The appeal proceedings are still pending .


Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On DATE the applicant , who was DATE , was arrested on charges of theft . On the way to the police car he made an attempt to throw away a pocket - knife . After being alerted by a passer - by , the police officers PERSON and PERSON threw the applicant to the ground . According to the applicant , they also punched him in the face and handcuffed him . They also allegedly assaulted him all the way to the police station .

At the police station the police officers allegedly continued beating the applicant during questioning . They kicked him , punched him and beat him with batons all over his body and on the soles of his feet in order to obtain a confession . During the beatings he was handcuffed . He was also allegedly suspended on a metal bar for a long period of time . The Government deny these allegations .

On DATE the applicant claims to have been taken by the arresting police officers to a forest for the reconstruction of the crime . He was allegedly beaten up on the way to the forest . In the forest , CARDINAL of the officers allegedly put a gun to the applicant ’s head and threatened to shoot him if he did not confess . He was released from detention in the evening . It appears from the documents submitted by the parties that the applicant confessed to having committed the theft . However , later the criminal proceedings against him were discontinued on grounds of lack of “ constitutive elements ” of an offence .

According to the Government , the applicant could not have been threatened with a gun by the police officers because they did not accompany him to the woods . He was taken to the woods for investigation purposes , but not for a reconstruction of the crime .

On DATE , the applicant ’s state of health worsened and his mother took him to a doctor who established that he had suffered a head trauma and cerebral post - concussion syndrome .

On DATE a forensic doctor examined the applicant and established that he had grey - yellowish bruises of CARDINAL x QUANTITY and of QUANTITY around his right eye , right ear , lips and on the sole of his left foot . The soft tissue on his head and his teeth on the right side were painful when touched . The doctor concluded that the injuries could have been inflicted by blows with a blunt object , possibly in the conditions described by the applicant , and corresponded to the category of light corporal injuries .

On DATE the applicant ’s mother lodged a criminal complaint with ORG of GPE , asking it to institute criminal proceedings against the police officers who had allegedly ill - treated her son and threatened him with death .

On DATE an ear , nose and throat specialist examined the applicant and concluded that he was suffering from hyperaemia and had a central perforation of the right tympanic membrane .

On DATE another specialist concluded that the applicant was suffering from post - traumatic acute otitis media on the right side and agnogenic otitis on the left side with perceptive deafness .

DATE , DATE and CARDINAL DATE , CARDINAL and CARDINAL DATE and CARDINAL DATE and CARDINAL DATE , the applicant was hospitalised with the diagnosis of head trauma and sudden deafness ( surditate de percepţie brusc instalată ) .

On DATE the applicant ’s mother was informed by ORG that her complaint had been dismissed on grounds of lack of “ constitutive elements ” of an offence . She appealed against that decision to a hierarchically superior prosecutor .

On DATE the applicant ’s mother received a letter from a hierarchically superior prosecutor of ORG informing her that her appeal had been dismissed . She appealed against that decision to ORG .

On DATE the GPE ORG quashed the prosecutor ’s decision to dismiss the applicant ’s complaint about ill - treatment and ordered that an additional investigation be carried out . It found inter alia that it was undisputed that the applicant had sustained his injuries on DATE either at the police station or on the way there ; however , the circumstances were not clear . The court also found that ORG had not paid sufficient attention to the fact that since DATE the applicant had been permanently undergoing medical treatment in hospital and had thus been prevented from attending school .

On DATE ORG issued a new decision by which it again refused to institute criminal proceedings against the police officers who had allegedly ill - treated the applicant . In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on DATE , when the police officers had to throw him to the ground in order to counter his attack with a knife on CARDINAL of them . The decision relied on a medical report dated DATE which stated that the injuries could have been inflicted either by a blunt object or by a fall . The applicant ’s mother appealed to ORG .

On DATE ORG quashed the decision of DATE for being “ premature ” and the file was remitted to ORG of GPE for “ additional review ” . ORG considered inter alia that the investigation had failed to elucidate the circumstances of the alleged attack with a knife committed by the applicant on CARDINAL of the police officers .

On DATE the Prosecutor ’s Office of GPE issued a new decision by which it refused to institute criminal proceedings against the police officers on the ground that their actions did not disclose any signs of an offence .

On DATE the hierarchically superior prosecutor quashed the decision of CARDINAL DATE on the ground that the applicant ’s alleged attack with a knife on the police officers had not been properly investigated .

On DATE ORG of GPE issued a new decision by which it again refused to institute criminal proceedings against the police officers , because their actions were justified . At the same time ORG found that the applicant did not attack the police officers with a knife , but rather the police officers thought that there was a risk of his attacking them . The applicant ’s mother appealed to the hierarchically superior prosecutor .

On CARDINAL DATE the hierarchically superior prosecutor quashed the decision of DATE and ordered the institution of criminal proceedings against the QUANTITY police officers .

On an unspecified date , the applicant lodged a complaint with ORG .

On DATE ORG informed the applicant that disciplinary sanctions would be imposed on police officers PERSON and PERSON only to the extent that they were found guilty in the criminal proceedings .

On DATE ORG issued a decision dismissing the criminal investigation . The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it . The applicant ’s mother appealed against the decision .

On DATE the hierarchically superior prosecutor of ORG dismissed the appeal . In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on DATE , when the applicant had made an attempt to throw away a knife but the police officers had thought that he was going to use it against them and had thrown him to the ground . The applicant ’s state of health was “ normal ” and none of the witnesses had seen the police beating him . The applicant ’s mother appealed .

On DATE ORG upheld the applicant ’s appeal and ordered the re - opening of the criminal investigation . It stated inter alia that the investigation had been conducted “ in an extremely superficial manner ” . It instructed the investigators inter alia to re - hear the witnesses and the parties to the case and to investigate whether the police officers PERSON and PERSON had fired a gun in the woods . It also ordered the conduct of a medical investigation of the applicant and pointed to several contradictory statements of the witnesses and to procedural irregularities .

On DATE , at the request of investigator PERSON from ORG , an independent medical commission of CARDINAL experienced forensic doctors performed a thorough medical investigation . On the basis of earlier medical certificates and of its own investigation the commission drafted a report which stated inter alia that :

“ At the forensic examination it was found that [ the applicant ] had bruises around his right eye , right ear , on his lips and on the sole of his left foot .

From [ the applicant ] ’s records it appears that at DATE ... he suffered purulent otitis in his left ear .

On DATE a neurologist found that [ the applicant ] had suffered an acute head trauma with cerebrostenic syndrome .

On DATE an ear , nose and throat specialist found that [ the applicant ] had suffered from tympanic hyperaemia and had a central perforation of the right tympanic membrane as a result of a barotrauma [ an injury caused by rapid and extreme changes in pressure ] of CARDINAL DATE .

On DATE , [ the applicant ] did not appear to have any injury to his teeth .

On DATE an ear , nose and throat specialist found that [ the applicant ] had suffered post - traumatic acute otitis media on the right side and agnogenic otitis on the left side . He suffered from sudden deafness ( surditate de percepţie brusc instalată ) .

On DATE a neurologist found that as a consequence of the head trauma [ the applicant ] was suffering intracranial hypertension with signs of epilepsy .

On DATE [ the applicant ] was examined by an otolaryngologist who found that he was suffering from post - traumatic bilateral hypoacusis [ slightly diminished auditory sensitivity , with hearing threshold levels above normal ] . Hospitalisation was recommended .

On the basis of the above , the commission comes to the conclusion that PERSON suffered injuries in the form of bruises on his face ( right eye , right ear and lips ) and the sole of his left foot ; head trauma and concussion ; post - traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis .

... The applicant ’s injuries necessitated medical treatment of a long duration and could be qualified as moderately serious ( mai puţin grave ) .

NORP The commission does not have any objective grounds to believe that the injuries could have been sustained by the applicant prior to DATE .

The injuries were inflicted by blows with blunt objects ( ORG leziuni au fost cauzate prin acţiunea corpurilor contondente ( lovire ) ) , possibly in the circumstances described by the applicant and they could not have been sustained as a result of a fall ( n - au putut fi produse prin cădere ) .

NORP ... Currently Mr PERSON ’s state of health is relatively satisfactory and he suffers of posttraumatic bilateral hypoacusis ... ”

On DATE ORG quashed the decision of DATE and ordered that an additional investigation be carried out . It found inter alia that the quashed decision was illegal and had a tendentious character . It stated inter alia :

“ Contrary to the conclusion of the medical commission , which clearly found that ORG ’s injuries were inflicted by blows with a blunt object , possibly in the circumstances described by the applicant and that they could not have been sustained as a result of DATE , investigator PERSON indicated in his decision that the injuries were caused by the applicant ’s fall ... ”

On DATE ORG issued a decision by which it dismissed the criminal investigation against the applicant for the alleged attack with a knife on the police officers on DATE . It found that there were no grounds to believe that the applicant intended to use the knife against the police officers .

On DATE ORG issued a decision by which the criminal proceedings against the police officers were also dismissed . It stated inter alia that the applicant had had a knife in his hand and that the police officers had interpreted that as a threat and had thrown him to the ground . Accordingly , the applicant had sustained his injuries by hitting the ground with his head while the police officers had been acting in legitimate defence . The applicant appealed against this decision .

On DATE the decision of CARDINAL DATE was quashed by ORG and the criminal proceedings were re - opened .

On DATE ORG again dismissed the criminal investigation against the police officers . The applicant appealed .

On DATE the hierarchically superior prosecutor from ORG quashed the decision of DATE and ordered the re - opening of the investigation .

On DATE ORG issued a decision by which it dismissed the applicant ’s complaint . It stated inter alia that :

“ ... According to the medical certificate of DATE , ORG had bruises around his right eye , right ear , and consequences of a barotrauma , head trauma , which could have been caused by DATE and which fell in the category of light corporal injuries .

According to the conclusion of the Commission [ the medical report of DATE ] , ORG ’s teeth were not injured and it was discovered that he was suffering from post - traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis , which could also have been caused by blows .

It is not disputed that the applicant was injured ; however , his injuries were inflicted within the limits of the law . As to the agnogenic otitis on the left side , the applicant was suspected of having suffered from it since his childhood ... According to doctor TIME , the agnogenic otitis on the left side is not connected with the otitis on the right side and could have been caused by a cold or an infection but not by a blow .

Deafness can have a multitude of causes , and in order to know its origin it is important to determine the moment of its appearance . In the present case it is impossible to establish the exact moment of commencement of the applicant ’s deafness ; more so since , in his first declaration , ORG stated that only after receiving the blows did he start to experience ringing in his right ear , but he did not say anything about the pain and the deafness in his left ear .

The police officers [ PERSON and PERSON ] and the witness C. stated that on DATE , on the way to the police station , no physical force was used against the applicant except when he was relieved of a knife that he had in his hand . Then , by means of a special technique , the applicant was thrown to the ground , which he hit with his head ...

ORG admitted having had a knife and explained that he had been trying to throw it away in order to avoid trouble at the police station .

The police officers ORG and PERSON who were present at the police station on DATE stated that nobody used physical force against the applicant in their presence , no handcuffs were used and that he was not beaten with a baton ...

The applicant ’s mother stated that in TIME of CARDINAL DATE she saw her son at the police station and he did not have any injuries ... The applicant ’s uncle ORG also stated that he had seen the applicant in the police station on DATE QUANTITY and that he did not have any sign of injury ... and the applicant did not complain to him about having been assaulted .

The injuries sustained by ORG were caused by his hitting the ground with his head when police officers PERSON and PERSON faced a real threat of injury . The officers acted within the limits of ORG and CARDINAL of the Law on Police while relieving him of his knife . ”

The decision did not include any reference to the applicant ’s allegation that on DATE he was taken to the woods and threatened with death . The applicant appealed .

After DATE the investigation was re - opened and closed on several occasions . The final decision closing the investigation was that of DATE of ORG .

After the case was declared admissible by the ORG , on DATE , ORG ordered the re - opening of the investigation . The re - opened investigation is still pending . According to the Government the re - opening was prompted by ORG concern that the injuries sustained by the applicant in DATE had deteriorated into invalidity of the second degree which under NORP law is equivalent to a loss of working capacity of PERCENT , and that the applicant needed permanent medical treatment .

The Code of Criminal Procedure in force DATE and DATE provides :

“ Section CARDINAL . Written complaints concerning acts of the criminal investigation organs or concerning acts of the criminal investigator shall be addressed to the prosecutor .

Section CARDINAL . The prosecutor shall examine the complaint and communicate his decision to the interested person within DATE of its receipt . If the complaint is dismissed , the prosecutor shall give reasons for his decision .

Section CARDINAL . The decisions of the criminal investigation organs and of the prosecutor may be challenged in court by an accused , a lawyer , a victim ....

The persons specified in the first paragraph have the right to challenge in court ... decisions regarding the suspension and dismissal of criminal proceedings ...

A complaint shall be addressed to the competent ORG within DATE of the date on which the interested person learns about the decision .

Section CARDINAL/CARDINAL . A person whose rights have been infringed by a refusal to institute criminal proceedings may challenge in court the decision regarding the dismissal of criminal proceedings within DATE of the date on which he learns about the decision .

Section CARDINAL . ... The competent court shall examine the reasons for the refusal to institute criminal proceedings and their conformity with procedural law . Following the examination , the court can adopt one of the following decisions :

CARDINAL ) NORP to quash the decision to refuse to initiate criminal proceedings ;

CARDINAL ) NORP to modify the reasons given for the refusal while upholding the refusal ;

CARDINAL ) NORP to dismiss the complaint .... ”

The old Criminal Code in force DATE and DATE states :

“ LAW . ... An abuse of power accompanied by acts of violence , by use of arms or by acts of torture and humiliation is sanctioned with imprisonment of DATE and with a prohibition on carrying out certain activities for a period of DATE . ... ”

The old Civil Code in force until DATE states :

“ LAW . Any damage caused to a person or to his or her goods ... shall be entirely redressed by the person who caused it ...

No duty of restitution shall arise in respect of damage caused by legitimate actions , except in the cases provided for by law . ”

The Law on Police of DATE states :

“ Section CARDINAL . Conditions and limits of the use of force , special techniques and fire - arms

Police officers have the right to use force , special techniques and fire - arms in the cases and in the manner provided for in the present law . The use of force , of special techniques and of fire - arms shall be preceded by a warning about the intention to use them , and sufficient time shall be allowed for reaction , except in cases in which a delayed use of force ... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences .

In any case , when the use of force can not be avoided , police officers are obliged to do their best in order to cause the least harm possible to the health , honour , dignity and goods of citizens , as well as to ensure medical assistance is provided to victims .

In case of injury or death caused as a result of use of force ... the police officer shall report it to his direct superior , in order that the latter may inform a prosecutor .

The abuse of the power to use force ... shall be punished in accordance with the law .

Section CARDINAL . The use of physical force

Police officers are entitled to use force and special fight techniques for the purpose of ending criminal activities and for neutralising resistance to legal demands , only in cases in which non - violent methods are not sufficient for the discharging of their obligations . ”


The applicant , Mr ORG , is a NORP citizen , who was born in DATE and lives in GPE , GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

On DATE the applicant drove a vehicle from GPE to GPE , without passing through any customs checkpoint at the border . On DATE ORG FAC uprava varaždinska ) seized the applicant ’s vehicle .

Subsequently the applicant was charged with an attempt to smuggle the vehicle into GPE contrary to LAW ( PERSON ) . On DATE ORG ( ORG za carinske prekršaje PERSON ) found the applicant guilty of a customs offence and fined him CARDINAL NORP kunas ( HRK ) . The fine was to be replaced by a prison term if the applicant did not pay it . Moreover , the applicant ’s vehicle was confiscated .

The applicant appealed against the decision stating that he had not had any intention to smuggle the vehicle to GPE , but that he had been lost and therefore missed the border checkpoint .

On DATE ORG ( ORG za carinske prekršaje u drugom stupnju carinske uprave PERSON ) upheld the first instance decision .

On DATE the applicant , represented by a counsel , instituted proceedings in ORG ( ORG ) claiming that the lower administrative bodies had wrongly assessed the facts .

The facts related to the subsequent proceedings are in dispute . According to the Government , on DATE the applicant ’s claim was rejected by ORG . The judgment was served on the applicant ’s counsel on CARDINAL DATE . In support of ORG have submitted a copy of ORG judgment of CARDINAL DATE and a copy of a receipt slip of an envelope addressed to the applicant ’s counsel indicating that it contained a copy of the said judgment . The receipt slip was signed by an illegible name on DATE . It was also stamped by ORG on DATE thus indicating that the signed receipt slip was returned to the court on DATE .

According to the applicant , on DATE , DATE , DATE , CARDINAL DATE and DATE he asked ORG to speed up the proceedings . He maintains that no judgment upon his claim before ORG has ever been served either on him or his counsel . As to the receipt slip submitted by the ORG the applicant alleges that it was signed by an unknown person .