No violation of Art. 3;Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The first applicant , PERSON , is a NORP national born in DATE . The second applicant , PERSON , is a NORP national born in DATE . The applicants are brothers . At present they live in GPE .

On DATE the applicants , who practice body - building , were attending an athletics club at a FAC university . The club manager urged the applicants to exit , as they had been present at the club without the appropriate permission . He warned that he would call the police if they did not leave . The applicants did not agree to leave . The manager called the police , and CARDINAL uniformed officers arrived soon thereafter .

According to the applicants ' account , the officers allegedly “ showed a hostile attitude ” towards them and “ were not interested in checking their [ identity documents ] but simply to force them out ” of the athletics club . The policemen “ immediately wanted to handcuff them and pulled their arms backwards ” . The applicants state that they “ resisted this treatment ” . The first applicant “ managed to get free for a moment ” , while the second applicant was “ pushed and pulled ” by CARDINAL police officers . He was treated with tear - gas and struck with a stick .

According to the Government , the applicants resisted and attacked the policemen who were trying to apprehend them . CARDINAL of the officers was kicked in the face and another in the crotch .

The parties submit that only when CARDINAL officer drew a gun from his holster did the applicants yield . They were then handcuffed .

The applicants were immediately put in a police vehicle .

The Government state that the applicants still resisted whilst being taken to the vehicle , and force again had to be used against them .

The applicants were taken to a police station situated QUANTITY from the athletics club .

According to the applicants ' account , in the police van they were put on the ground and stayed handcuffed . The van had no separate cell for the arrested . The policemen and the applicants were closed together in the rear part of the van . The applicants “ had no chance but to expose their bodies to the treatment of the policemen ” . They “ suffered heavy blows in their heads , kidneys , backs and spines ” . The policemen used their police sticks to beat them up . The first applicant lost consciousness .

The Government deny that any ill - treatment occurred in the van .

At the police station the applicants were briefly questioned . The part of the first applicant 's custody interview record concerning his physical condition reads : “ before [ the arrest the applicant was ] well , at present [ he complains of ] pain in the left eye , the neck , the left kidney , the jaw and the head ” . The relevant part of the second applicant 's custody interview record reads : “ pain in the temples , the hands , the nose , the teeth , the right thumb ” . In TIME of the same day the applicants were examined by doctors . The x - ray photograph of the first applicant 's cranium showed no apparent injuries to his head . On the basis of the applicants ' physical examination , which disclosed no problems in their circulatory and respiratory systems , a doctor concluded that they could be regarded as fit for detention .

The applicants remained in custody until TIME , DATE , when they were brought before a district prosecutor . They were released after having been questioned by the prosecutor .

The first applicant was taken to a hospital where he remained for DATE . The second applicant was taken to the same hospital , was immediately released , and later underwent out - patient treatment .

On DATE , when being questioned by the prosecutors , the applicants complained that they had been beaten up by the police officers in the athletics club and in the police van . The applicants said that they had doubts as to the officers ' identity , and that they had asked the policemen to present documents attesting to their authority . They alleged that the officers had refused to do so and that the policemen had instead attempted to arrest them . The applicants further stated that , in the police van , which lacked a separate cell for the arrested , the officers had started to inflict heavy blows all over their bodies . They had been defenceless and had not been able to lessen the impact of the blows because of their hands being handcuffed behind their backs and themselves being pushed onto the vehicle 's floor . They submitted that the officers had beaten them all the way to the police station .

On DATE a district prosecutor , on suspicion that offences against the applicants ' personal rights had been committed in breach of LAW Criminal Code and LAW , instituted investigations relating to the applicants ' complaints against the police officers . The police officers who allegedly ill - treated the applicants were regarded as witnesses , not as accused , in the proceedings .

The applicants were called to appear before the district prosecutor on DATE , but failed to present themselves on that date .

On DATE the prosecutor examined a witness ORG ( policeman ) . On DATE witnesses GPE and GPE ( police officers ) were examined . On DATE witnesses MW ( the applicants ' acquaintance ) and PERSON ( the club manager ) were questioned . On DATE the prosecutor summoned witnesses JS and PERSON , and on DATE he summoned a witness PW ( all police officers ) .

The applicants were examined on CARDINAL and CARDINAL DATE . During the inquiries the applicants maintained that the officers had been very hostile towards them from DATE , that they had not asked them to leave the athletics club , and that they had , without any reason , beaten them up . The policemen contended that they had been attacked by the applicants , and that only threatening them with a firearm had permitted their apprehension .

On CARDINAL DATE the prosecutor heard witnesses GPE , PERSON and PERSON ( police officers ) . On DATE he summoned witnesses ORG and PERSON ( doctors ) . On DATE the prosecutor examined a witness DJ , and on CARDINAL May he questioned a witness ORG ( both doctors ) .

The investigation into the conduct of the policemen was prolonged by decision of a regional prosecutor of DATE , with a view to examining further witnesses .

On DATE the district prosecutor examined witnesses AW and RM ( doctors ) .

On DATE ORG of ORG produced an opinion as to the applicants ' physical condition following the incident . The opinion was delivered at the request of ORG in the proceedings against the applicants ( also see § DATE below ) .

The forensic experts , based on the medical records collected throughout the applicants ' treatment from DATE , found that immediately after the incident the first applicant had a haematoma around the left eye , a bruise of CARDINAL x QUANTITY on the back of his head , a bruise with grazed skin of QUANTITY on the left side of his jaw , CARDINAL band - like bruises of significant size on his chest , and that his abdomen and spine were sensitive . The second applicant had small isolated bruises on his chin and neck , bruises on a grazed upper lip , an inner wound in the mucous membrane of the upper lip , lesions of the front teeth , and an injury to the right knee and wrist .

The forensic experts also stated that DATE after the incident the first applicant had been increasingly complaining of pain in his head , vertigo , diminished clarity of sight and hearing , and that the second applicant had been complaining about a weak right hand , diminished sensitivity of his fingers , severe headaches , vertigo , nausea , pain in the spine and a reduced ability to move . The experts noted that the subsequent examinations of the applicants had not confirmed any deviations from the normal state of their heath . The experts stated that on DATE the first applicant should have been released from hospital but remained following an intervention by the applicants ' father . The experts also stressed that the father , himself a doctor , during his visits at the hospital had been instructing the first applicant of what and how he should complain . The first applicant had been released from hospital on DATE , although after this date he underwent further out - patient treatment of his jaw , chest and spine .

The forensic experts concluded that the injuries sustained by the applicants might have occurred from the use of a rigid , blunt instrument , e.g. a truncheon , and that the lesions might have occurred in the circumstances alleged by them , e.g. from blows by truncheons and fists . The experts held that the damage caused by these injuries to the applicants ' soft tissues did not DATE , but that those injuries were serious enough to warrant application of LAW of LAW Criminal Code [ causing light bodily harm ] against the police officers . The experts also emphasised that the applicants ' grievances had contained a certain measure of simulation and exaggeration .

On DATE the district prosecutor requested experts at ORG to produce a medical opinion specifically in the context of the proceedings concerning the applicants ' allegations against the police officers .

By decisions of DATE and DATE the regional prosecutor again prolonged the investigation .

The opinion of the experts at ORG was produced on DATE . They found that following the arrest the first applicant had had bruises on his face and a swollen left eye , and that the second applicant had isolated bruises on the face , a grazed lip and lesions of CARDINAL teeth . The experts also found that the first applicant had not been suffering from concussion . The experts stated that the injuries of the applicants could occur in the circumstances alleged by the police officers , the applicants or in other circumstances .

The applicants requested the district prosecutor to hear additional witnesses , namely their parents , CARDINAL district prosecutors and an NORP basketball player who had witnessed the events of DATE . On CARDINAL DATE the prosecutor dismissed the request on the ground that the applicants ' parents had not witnessed the incident , that the testimonies of the prosecutors had not been relevant to the determination of the facts , and that the statements of the NORP basketball player had been recorded in the proceedings against the applicants . On these grounds the prosecutor considered that no examination of further witnesses was necessary .

On DATE the prosecutor decided to discontinue the investigation against the policemen . The prosecutor held that there was a lack of evidence in favour of the applicants ' allegations that the officers had committed an offence . On the basis of witnesses ' evidence , he held that the policemen had been compelled to use force only following the applicants ' refusal to leave the sports club . The prosecutor did not establish that any force had been used against the applicants in the police van . By virtue of the medical opinion of ORG , the prosecutor stated that the fact of the applicants ' hospitalisation for DATE did not necessarily infer that the full period of DATE had been required to complete the treatment of lesions suffered by the applicants . The prosecutor concluded that “ the injuries [ sustained by the applicants ] could occur both in the circumstances alleged by themselves , as well as in the circumstances alleged by the police officers ” . Given the principle of benefit of doubt in favour of the accused , the prosecutor decided to discontinue the case against the police officers .

The applicants appealed against the decision . On DATE a regional prosecutor dismissed the appeal and finally discontinued the proceedings . The regional prosecutor found no “ unequivocal evidence ” of the officers ' guilt . He held that the district prosecutor had properly assessed the collected material , and that he had adopted a well - motivated decision .

NORP After questioning the applicants on DATE , a district prosecutor commenced investigations against them on suspicion that they had attacked the police officers , thereby obstructing them in the course of their duties . On DATE the prosecutor ordered the applicants ' bail on suspicion of their having committed an offence under LAW in regard to the events of DATE .

On DATE the applicants appealed against the bail decision , requesting the prosecuting authorities to appoint a free defence lawyer on the ground of their difficult financial situation , referring inter alia to LAW ( c ) of the LAW . The applicants received no reply to the requests .

In the course of the investigation the policemen , the applicants and witnesses of the events of DATE , including witnesses on the applicants ' behalf , were summoned . The applicants submitted many applications in which they contended that the allegations against them should have been examined from the angle of their own complaints that the officers had beaten them up . However , by virtue of relevant provisions of domestic criminal procedure , the prosecution decided that the material contained in the case - file relating to the applicants ' allegations on their maltreatment by the police officers be separated and that CARDINAL parallel investigations be conducted in relation to the incident of DATE .

On DATE the applicants were charged with affray , assault and battery on the police officers in the course of the execution of their duties .

On DATE ORG decided to obtain from ORG of ORG an opinion as to the applicants ' injuries following the incident . The opinion was produced on DATE ( also see § § CARDINAL above ) .

On DATE ORG decided to obtain an opinion from forensic psychiatrists to establish whether the applicants had been “ able to ascertain and measure their actions ” to determine their criminal responsibility . The court also decided to appoint a free lawyer to represent the applicants in view of the concern over their state of mind , in accordance with LAW .

By a letter of CARDINAL DATE the applicants informed the court that they refused to undergo a psychiatric examination . They did not appear for the out - patient psychiatric examination at FAC on the date fixed by the court on DATE . The court ordered compulsory appearance of the applicants on the next date fixed for out - patient psychiatric examination on DATE . The applicants were brought to the experts on the above date , but refused to be subjected to an examination . The above situation repeated itself on DATE . In view of the fact that the applicants had refused to undergo out - patient psychiatric examination CARDINAL times , on DATE the forensic psychiatrists requested the court to place the applicants at a mental hospital for a forensic - psychiatric opinion to be produced .

On DATE ORG ordered the applicants ' compulsory placement at FAC for a period of no longer than DATE . The applicants and their counsel appealed against the above decision . In the appeal the applicants ' representative declared that he undertook to ensure their voluntary appearance for out - patient psychiatric examination . On DATE ORG , having regard in particular to the above commitment by the applicants ' defence counsel , quashed the decision of DATE .

On DATE fixed for the applicants ' out - patient psychiatric examination on DATE , they again failed to submit to out - patient examination . On DATE the experts repeatedly requested the court to order compulsory measures against the applicants in order to produce a forensic - psychiatric opinion .

DATE . On DATE ORG again ordered the applicants ' compulsory placement at a mental hospital for a period of DATE . On the applicants ' appeal from this decision , on DATE ORG upheld the decision of ORG .

On DATE the first applicant was placed at FAC . Upon the experts ' application requesting to prolong the first applicant 's stay at the ward in view of his negative attitude obstructing the production of a proper diagnosis , on DATE , ORG extended the term of the first applicant 's examination until DATE . On his appeal against the above decision , on DATE ORG upheld the decision of ORG . The first applicant was released from the psychiatric ward on DATE .

On DATE the final opinion as to the mental condition of the first applicant was issued . The forensic psychiatrists concluded that at the moment of the incident with the police on DATE he was able to comprehend the meaning of his acts and to control his conduct . The first applicant was not found to be of unsound mind . The experts also noted that he had been very suspicious and distrustful of the examination .

As the second applicant expressed his willingness to undergo out - patient psychiatric observation , he was not placed in a mental hospital . The forensic psychiatrists delivered their opinion in regard to the second applicant on DATE . According to the experts ' conclusions , the second applicant was mentally sane . The experts also noted that he had been very stressed throughout the examination , often speaking with a raised voice and not noticing the requests to calm him down .

On DATE ORG found the applicants guilty under LAW in that they had resisted and assaulted the officers on DATE . It held that the manager of the athletics club had been entitled to demand the applicants ' removal notwithstanding his motives therefor , and that the police had lawfully enforced this demand . The applicants were sentenced : the first applicant to DATE and DATE imprisonment and the second applicant to DATE imprisonment . The court suspended the sentences for DATE for each of the applicants .

On DATE ORG , upon the applicants ' appeal , upheld the first - instance judgment . ORG concluded that “ the fact that the defendants did not comply with the request of the CARDINAL police officers to leave the sports hall shows a lack , on their part , of a critical judgment of their own conduct - this was also confirmed by the forensic psychiatrists ” . That decision was final . The applicants were not imprisoned as a result of the conviction .

Articles DATE and CARDINAL of LAW entitle the police to arrest a person who obstructs the public order and to use direct coercive force LAW “ to accomplish subordination to given orders ” .

A special governmental ordinance of CARDINAL DATE ( ORG ) provides that coercive means should cause as little ailment as possible , and should be abandoned if a person conforms to orders .

Under LAW , an accused may apply to a prosecutor to be appointed a free defence counsel in case of insufficiency of means . The prosecutor must refer the request to the court for a lawyer to be appointed .

Under LAW , in the course of the trial the court may of its own motion appoint a lawyer to represent the defendant in view of the justified concern over his state of mind .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant , together with CARDINAL other persons , was questioned by the police as a suspect in a forgery that allegedly took place in DATE .

On DATE charges were brought against the applicant . A hearing before the GPE ORG ( käräjäoikeus , tinsgrätten ) was scheduled for CARDINAL DATE but it was cancelled due to the absence of CARDINAL codefendants .

On DATE the GPE ORG convicted the applicant of aiding and abetting forgery and sentenced him to pay CARDINAL dayfines , in total CARDINAL .

NORP By letter dated DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting that his sentence be mitigated due to the excessive length of the proceedings . Subsequently , the applicant also claimed compensation under LAW .

On DATE ORG upheld ORG conviction but decided not to impose any sentence on the applicant . It found that there was reason to mitigate the sentence as a considerably long period had passed since the commission of the offence . As to compensation , the court found that the mitigation of the sentence in itself was a sufficient remedy and that the applicant could therefore not be granted any monetary compensation under LAW .

NORP By letter dated DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , claiming that mitigation of the sentence was not sufficient compensation for the excessive length of proceedings .

On DATE ORG refused the applicant leave to appeal .

According to LAW , section CARDINAL , of LAW ( rikoslaki , strafflagen ; as amended by Act no . CARDINAL/CARDINAL ) ,

“ [ ORG addition to what is provided above in LAW , grounds mitigating the punishment that are also to be taken into consideration are ;

( CARDINAL ) a considerably long period that has passed since the commission of the offence ; if the punishment that accords with established practice would for these reason lead to an unreasonable or exceptionally detrimental result . ”

In its judgment of DATE ( GPE ) ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably lengthy proceedings , such a dismissal or declaring a case inadmissible might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not so in that precedent case . In considering whether there were grounds for applying LAW , section CARDINAL , subsection CARDINAL , of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( in the precedent case over DATE ) had been unreasonable . It concluded that in that case there were no grounds to waive a sentence or to mitigate the sentence owing to the duration of the proceedings .

NORP In its judgment of DATE ( PERSON ) , ORG , applying LAW , section CARDINAL , subsection CARDINAL , of LAW , reduced the sentence imposed upon the applicant by DATE owing to the length of the proceedings that had lasted DATE . The court imposed an immediate term of CARDINAL months’ imprisonment , finding that it was not justifiable to mitigate the sentence further by suspending the term of imprisonment .

The Act on Compensation for Excessive Duration of Judicial Proceedings ( laki oikeudenkäynnin viivästymisen hyvittämisestä , lagen om gottgörelse för dröjsmål vid rättegång ; Act no . ORG ) entered into force on DATE . The LAW provides for a party a right to receive compensation from ORG funds whenever judicial proceedings concerning that party have been excessively long .

According to LAW , sections CARDINAL , of LAW ,

“ LAW of day fines ( PERSON )

A fine shall be passed as day fines , the minimum number of which is one and the maximum number is CARDINAL .

Section CARDINAL - Amount of a day fine ( CARDINAL/CARDINAL )

The amount of a day fine shall be set so that it is reasonable in view of the solvency of the person fined .

CARDINAL sixtieth of the average DATE income of the person fined , less the taxes and fees defined by a Decree and a fixed deduction for basic consumption , is deemed to be a reasonable amount of DATE fine . The maintenance liability of the person fined may decrease DATE fine .

The primary basis for the calculation of the DATE income is the income of the person fined as indicated in the most recent taxation . If the income of the person fined can not be reliably ascertained from the tax records or it has essentially changed since the most recent taxation , it may be assessed also on the basis of other information .

Section CARDINAL - Total amount of the fine ( CARDINAL )

The total amount of the fine is equal to the number of day fines times the amount of DATE fine .

Chapter CARDINAL , section CARDINAL , of the same PERSON provides the following :

“ Section CARDINAL - Passing a conversion sentence ( CARDINAL/CARDINAL )

A person who has been sentenced to a fine and from whom the collection of the fine has failed , shall be ordered to imprisonment in lieu of the unpaid fine . A conversion sentence shall be passed for an unpaid threat of a fine , the collection of which has failed , if the court has imposed it in order to ensure the conduct of court proceedings or pursuant to LAW ( CARDINAL/CARDINAL ) . Any other threat of fine may not be converted into imprisonment . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The first and the second applicants were born in DATE and DATE , respectively , and live in Požega . The third applicant , “ NORP ” , is a meat production company .

In DATE the first and second applicants founded the company “ NORP ” , a personal private company in PERSON . The company is entirely owned by the first and second applicants and they are liable for the company 's obligations with all their assets . The present case concerns several proceedings in respect of “ NORP ” .

By virtue of ORG ( veterinarski inspektor Ureda za gospodarstvo Županije požeško - slavonske ) decision of CARDINAL DATE , the applicant company was prohibited from slaughtering animals and producing meat for human consumption .

Upon the applicant company 's appeal ORG of ORG ( Uprava za veterinarstvo poljoprivrede i šumarstva ) quashed the first instance decision on DATE .

On DATE the applicant company filed a suit with ORG ( PERSON ) seeking payment of damages from the PERSON and GPE ( PERSON ) , due to the fact that it had been prohibited from producing meat from CARDINAL DATE until DATE .

Prior to CARDINAL DATE ORG ordered that a financial expertise be carried out and invited the applicant company to pay an advance for expenses related to the expert opinion . The applicant company paid the advance in part .

On DATE the court invited the applicant company to pay the remainder of the advance .

On DATE the appointed expert informed the court that the applicant company had not paid the remainder of the advance for the expenses .

At the hearing on DATE the court invited ORG to submit documentation about the applicant company 's income in DATE and DATE in order to carry out a complete financial expertise . In DATE the requested documents were submitted . On DATE the court sent this documentation to the appointed expert . The applicant company was invited to pay an advance for the expenses related to a new expertise .

The next hearing scheduled for DATE was adjourned at the request of the applicants ' counsel .

At the hearing on DATE the court stayed the proceedings because the first and second applicants , although they received the notice of the hearing date , did not appear .

On DATE the applicants ' counsel asked the court to resume the proceedings . The court then ordered that additional expertise be carried out and invited the defendant to pay an advance for the expenses of the expertise .

On DATE the defendant informed the court that it did not wish to pay the expenses .

On DATE the court requested PERSON ( PERSON ) to provide documentation concerning the applicant company 's registration .

On DATE the requested documentation was submitted .

At the hearing on DATE CARDINAL witness was heard and the defendant filed further written submissions . The applicants ' counsel was asked to file a written reply and to specify their claim within DATE .

It appears that the proceedings are pending before the court of first instance .

On DATE the police seized a vehicle owned by the first applicant 's wife . The vehicle had been used for transportation of goods related to “ NORP ” . On DATE the vehicle was returned .

On DATE the applicant company filed a suit with ORG against ORG ( ORG unutarnjih poslova ) and ORG ( ORG financija ) , seeking payment of damages for the profits lost due to its inability to transport goods with the vehicle .

On DATE ORG pronounced judgment granting the applicant company 's claim . Both parties appealed against the judgment .

On DATE ORG PERSON u GPE ) quashed the first instance judgment and remitted the case for re - trial .

The hearing scheduled for DATE was adjourned due to the illness of the expert who was to be heard .

The hearing scheduled for DATE was adjourned due to the expert 's absence .

On DATE the Act on Changes of LAW was introduced providing that all proceedings concerning actions for damages resulting from acts of members of the NORP army or police when acting in their official capacity during the war in GPE were to be stayed pending the enactment of new legislation on the subject .

On DATE the proceedings were stayed pursuant to the above Act .

The applicants ' counsel appealed against that decision . The appeal was rejected on DATE by ORG .

The proceedings are accordingly pending before the first instance court .

On DATE ORG ( Postaja financijske policije za Požeško - slavonsku županiju ) ordered the applicant company to pay a transfer and sale of goods tax ( porez na promet proizvoda i usluga ) in the amount of CARDINAL NORP PERSON ( HRK ) and HRK CARDINAL,CARDINAL.CARDINAL in interest . As the applicant company refused to pay those sums , its bank account was blocked .

The applicant company 's ensuing appeals were successful and on CARDINAL DATE ORG re - assessed the amount of tax to be paid to HRK CARDINAL,CARDINAL.CARDINAL and HRK CARDINAL,CARDINAL,CARDINAL in interest . The applicant company paid those sums immediately after receiving this decision .

Subsequently , on DATE the applicant company filed a suit with ORG seeking payment of damages from ORG due to the fact that the authorities ' miscalculation of the tax had caused an unwarranted blocking of the bank account of the company .

On DATE the defendant filed its submissions objecting to the applicant company 's claim .

The preliminary hearing scheduled for DATE was adjourned due to the defendant 's absence .

On DATE the defendant submitted a detailed reply denying the applicant company 's claim .

The next hearing was held on DATE .

On DATE the court invited the applicant company to pay the court fees . The applicant company failed to do so .

On DATE the court informed ORG that the applicant company had not paid the court fees .

At the hearing on DATE the defendant asked the court to stay the proceedings until the applicant company had paid the court fees . The court invited ORG to inform it whether the applicant company had paid the fees . It also invited ORG ( PERSON u GPE ) to submit documentation concerning the assets of the applicant company .

On DATE ORG submitted the requested documentation .

It appears that the proceedings are presently pending before the court of first instance .

In respect of the above - mentioned CARDINAL sets of civil proceedings the applicant company lodged a complaint with ORG ( Ustavni sud PERSON ) complaining about the excessive length of the CARDINAL above sets of proceedings and requesting the speeding up of those proceedings .

By decision of CARDINAL May CARDINAL ORG rejected the applicant company 's complaint finding that the proceedings did not exceed the reasonable time requirement .


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

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

The applicants’ dwelling , related buildings and their right to lease the land on which these were located were due to be forcibly sold on DATE at TIME by ORG of GPE . The ORG creditors had met in ORG office on DATE at TIME

On DATE at TIME the applicants filed , with ORG ( käräjäoikeus , tingsrätten ) of PERSON , a request to have their debts adjusted , pending which they sought to have the forced sale suspended . The request had been drawn up by PERSON from ORG for ORG .

At TIME a judge ordered as an interim measure that the forced sale be called off and enforcement be stayed . This decision was taken without any oral hearing having been held . The court based itself on the need to safeguard the applicants’ effective possibility of retaining their dwelling , even though the evidence they had adduced to that effect was insufficient . The urgency of the matter nevertheless required that the court issue an interim order without hearing the creditors . No separate appeal lay against this order .

The order was faxed to PERSON at TIME

ORG and ORG were located on different floors of the same building . At TIME a court clerk placed the judge ’s decision – marked as urgent – on the desk of ORG messenger . The court ’s office hours ended at TIME but apparently the messenger had already left for DATE .

On DATE the messenger brought the decision , together with the ordinary incoming mail , to ORG which was not situated on the same floor as ORG but from where the incoming mail was distributed further to the registry of ORG which was located on the third floor of the building .

The forced sale was carried out as scheduled without the applicants being either present or represented .

According to the applicants , a friend of the applicants , DATE , had allegedly enquired with the Enforcement Officer around TIME whether he had received the ORG decision . ORG had replied in the negative . TIME had made an initial telephone call to ORG on DATE .

According to the Government , it is impossible to verify at this stage whether TIME actually telephoned ORG . They point to discrepancies in the applicants’ account on this point in their various appeals . What appears clear to the Government is that TIME at least did not speak with ORG responsible for carrying out the forced sale . Moreover , the applicants did not find out TIME alleged enquiry until after the forced sale . Neither the applicants themselves nor their counsellor PERSON contacted the competent Enforcement Officer or any other person in ORG prior to the sale , even though they were aware of the PERSON meeting and the forced sale and had the right to attend both .

The ORG appeal against the forced sale was dismissed by ORG ( lääninhallitus , länsstyrelsen ) of PERSON on DATE , finding that they should themselves have ensured that ORG order reached ORG in time . As he had not been aware of the decision when proceeding to the sale , he had not acted incorrectly .

The applicants appealed further to ORG ( hovioikeus , hovrätten ) of GPE , referring inter alia to the constant practice whereby ORG would pass on its interim orders directly to ORG . Relying on that practice and since time had not allowed for the original of the order to be communicated to them , the applicants and their counsellor had had no reason to take any further steps . On DATE ORG dismissed the appeal , upholding the reasons given by ORG .

The applicants were granted leave to appeal to ORG ( korkein oikeus , högsta domstolen ) but , on DATE , their appeal was dismissed by CARDINAL votes to CARDINAL ( precedent no . CARDINAL ) . ORG inferred from the silence in GPE ( laki yksityishenkilön velkajärjestelystä , lag om skuldsanering för privatpersoner CARDINAL ; “ the DATE LAW ) that the legislator had not intended to place on the court the responsibility for communicating to the enforcement authority an interim decision to suspend execution proceedings . Furthermore , since only the debtor could request such an interim order prior to the actual commencement of the debt adjustment , the LAW could not be interpreted so broadly as to place such a communication obligation on the court at that stage of the proceedings .

ORG further noted that the applicants had sought the suspension TIME the day of the forced sale . The applicants had not pointed to any reason for being unable to communicate ORG decision to ORG , either personally or through their counsellor PERSON Neither had the telephone enquiry made in TIME the day of the sale placed ORG under an obligation to enquire of his own motion into whether the decision had actually been made . Finally , the applicants could themselves have attended the forced sale and in that connection informed ORG of ORG order .

In the meantime , the merits of the applicants’ debt adjustment request were examined by ORG on DATE . The payment schedules adopted for each of the applicants on DATE would have enabled them to retain their dwelling by paying off their debt within DATE . On DATE , however , the creditor bank requested that ORG annul those payment schedules as the applicants had failed to respect them . ORG found that the second applicant had knowingly given incorrect information about his income when his payment schedule had been considered . It therefore annulled his schedule . ORG upheld this decision on DATE .

The applicants were forced to leave their property in DATE .

In his decision of DATE , ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) considered that neither the conduct of ORG nor that of ORG could be considered incorrect . He nevertheless undertook to examine whether there was a need to improve the legal protection of debtors in similar situations , and whether amendments to LAW were necessary to that effect .

In his further decision of CARDINAL DATE the ORG noted that in light of ORG DATE LAW ( Suomen Hallitusmuoto , ORG ) the authorities were responsible in the last resort for the effective administration of justice . Debtors had been confused by the lack of clarity in the CARDINAL Act as to where the responsibility lay for notifying the enforcement authority of an interim order . Even though the wording of the CARDINAL Act did not require the district courts to inform the enforcement office of an order staying execution , they had nevertheless adopted such a practice . The ORG therefore proposed that the ORG should consider adding to LAW a provision explicitly rendering the courts responsible for notifying the enforcement office of such orders .

According to LAW , a court may write off debts on condition that the debtor agrees to a payment schedule in favour of the creditors determined by the court ( section CARDINAL ) . If the debtor fails to adhere to the payment schedule or contracts a new debt the schedule may be revoked , thereby enabling all creditors to claim payment as if no debt adjustment had been granted ( section CARDINAL ) . Both the debtor and the creditors may seek to have the payment schedule amended , extended or revoked while it remains in force or , in certain circumstances , within DATE from the adoption of the schedule ( sections DATE ) . The court may hear CARDINAL or several creditors , guarantors and co - debtors before deciding on the request for debt adjustment ( section CARDINAL ) .

The DATE Act , as in force at the relevant time , was silent as to whether the onus was on the competent court or on a physical debtor to communicate to the enforcement authority an interim order suspending enforcement while the court was examining his or her request for debt adjustment . By contrast , in the legislation on the adjustment of company debts such an obligation was imposed on the court as regards both the commencement of adjustment proceedings and any interim measure suspending execution .

If a notice of a forced sale had been published before debt adjustment proceedings had been initiated , the sale could still be carried out . However , the court could stay enforcement and cancel the sale if the assets belonged to the debtor ’s basic necessities and it was evident that they were protected from being recovered in the course of the debt adjustment ( section CARDINAL ) .

If so requested by the debtor , the court could order a stay of enforcement even before the debt adjustment had commenced , provided such an order was deemed necessary . The order could be issued without hearing the creditors if the urgency of the matter so required . No appeal lay against such an order . If the court refused to issue an order staying an enforcement measure whereby basic necessities would be realised to cover debts , the debtor was entitled to file an appeal which the court had to examine urgently , if necessary after hearing the creditors ( section DATE ) .

When the actual debt adjustment proceedings had commenced the court was to notify the enforcement authorities at the debtor ’s place of residence of the debtor and wherever the debtor owned real property ( section DATE ) . According to the existing section CARDINAL , subsection CARDINAL of LAW ( as amended by Act no . CARDINAL ) , the court shall without delay inform those enforcement authorities already of an order staying enforcement .


The applicant , PERSON van GPE , is a GPE national who was born in DATE and , at the time of the introduction of the application , was detained in a remand centre in LOC . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE , the applicant was arrested and placed in police custody ( inverzekeringstelling ) for a maximum of DATE on suspicion of involvement in the exportation of synthetic drugs . At the time of his arrest , MONEY was found on him . The search of the premises where he was arrested resulted in the finding of , inter alia , a plastic bag with CARDINAL pills with a horse - like logo , a pill with a euro logo , an order for dried flowers , a GPE passport in the applicant 's name , a NORP passport in the name of a Mr X. containing an identity photograph of the applicant , CARDINAL papers with telephone numbers and CARDINAL address books . When heard on DATE in connection with his placement in police custody , the applicant stated that he knew that he did not have to answer any questions , that he understood that he had been arrested in connection with trafficking in and/or exporting hard drugs , and that he wished to be represented by a lawyer .

When heard by the police on DATE , the applicant stated , inter alia , that he had been convicted and sentenced to DATE imprisonment in the past for drug offences , that he knew nothing about drugs , that he had obtained the NORP passport from a man from GPE and that the particulars therein had been made up , and that the pills found , which looked like XTC pills , might have been left behind by CARDINAL of his acquaintances who had visited him . He further stated that he did not know anything about the transport of CARDINAL XTC pills which had been seized in GPE on DATE . After he had been confronted with photographs taken under surveillance , the applicant stated that he only recognised someone whom he knew as PERSON , an acquaintance who visited him sometimes . He did not know the other persons in the photographs shown to him .

On DATE , the applicant was heard by the investigating judge ( rechter - commissaris ) of ORG ( arrondissementsrechtbank ) on the public prosecutor 's request to place the applicant in detention on remand ( inbewaringstelling ) on suspicion of his involvement in the exportation of an estimated quantity of CARDINAL XTC pills , membership in a criminal organisation involved in drugs offences , and the possession of a NORP passport he knew to be forged .

The public prosecutor 's request was accompanied by the written record of the provisional findings in the criminal investigation ( voorgeleidingsproces - verbaal ) . This written record ran to CARDINAL pages and consisted of a full account of the criminal investigation ( relaas van onderzoek ) and the relevant appendices , including the written records of the arrest of the applicant and CARDINAL co - suspects , their subsequent questioning by the police , CARDINAL searches , the notifications of seizures , the finding DATE on DATE on a drugs courier – of CARDINAL bags containing QUANTITY . pills tested positive for ORG , a report dated DATE from the NORP authorities stating that the substance found in seized cardboard boxes had tested positive for ORG , the summaries of CARDINAL conversations intercepted on tapped telephones used by co - suspects , a written record on a surveillance operation conducted on DATE and on the authenticity verification of the CARDINAL passports found in the search when the applicant was arrested . These written records were made available to the applicant .

According to the written record of the investigation , in DATE the GPE - Amstelland ORG ( PERSON ) had received information about several persons involved in ORG trafficking . On this basis , as of DATE , an investigation was made into a group of persons involved in the commission of drug offences under the direction of CARDINAL of these persons , PERSON E. This investigation disclosed , inter alia , that the applicant was apparently involved in exporting ORG . In the course of the investigation , the authorities had intercepted telephone conversations , conducted surveillance operations and intercepted various ORG shipments . CARDINAL drug couriers had been arrested on DATE in the GPE upon their arrival on a flight from GPE ; one drug courier had been arrested on DATE in the GPE and , on DATE , a shipment of CARDINAL XTC pills – packed in cardboard boxes hidden between boxes of dried flowers and transported in a truck driven by a GPE driver , Mr DATE had been intercepted by the NORP authorities when the driver was unloading the XTC in PERSON ( GPE ) . The truck driver had apparently transported these boxes on the instructions of the applicant , who in turn had acted under instructions from PERSON who would have bought the ORG from the applicant . In the course of surveillance carried out , the applicant had often been seen in the company of PERSON

When heard by the investigating judge on DATE , the applicant submitted that the suspicions against him were based on unsubstantiated conclusions drawn by the investigating authorities and therefore could not be taken into account in assessing the question whether there were serious suspicions ( ernstige bezwaren ) against him . He contended that the written record of the provisional findings in the criminal investigation had not been accompanied by documents containing the facts and/or circumstances from which these conclusions had been drawn by the investigating authorities ( e.g. the surveillance records , or the record of the intercepted communications and/or statements taken in the course of the investigation ) .

On DATE , the investigating judge ordered the applicant 's detention on remand for DATE . Noting the applicant 's suspected involvement in the exportation of an estimated quantity of CARDINAL XTC pills , his membership in a criminal organisation and his possession of a forged NORP passport , the investigating judge considered that there were grave suspicions against the applicant . The judge found that there was a serious risk of the applicant absconding and that there were important reasons of public safety ( gewichtige redenen van maatschappelijke veiligheid ) which required his immediate detention : the offence of which he was suspected could attract a CARDINAL-year prison sentence ; the legal order had been seriously shaken by that offence ; there was a serious risk that the applicant would commit a further offence whereby the health of persons might be endangered , and the applicant , in view of statements made and/or drugs found , was apparently involved in extensive drug trafficking .

By letter of DATE , the applicant 's lawyer informed the public prosecutor that it appeared from the copies of the written records ( processenverbaal ) with which he had been provided that , in the course of the investigation , several so - called special investigative powers ( bijzondere opsporingsbevoegdheden ) had been deployed . He requested the public prosecutor to provide him with all the written records and orders relating to the exercise of these powers .

On DATE , the applicant was heard by ORG on the public prosecutor 's request for his further detention on remand ( gevangenhouding ) . At this hearing , the applicant requested ORG to lift his pre - trial detention , arguing that the investigating judge had unjustly assessed the seriousness of the suspicions against him on the basis of conclusions drawn by the police , whereas the facts and/or circumstances ( e.g. the surveillance records or the intercepted communications and/or statements taken in the course of the investigation ) , on which these police conclusions were based , were not included in the case file . On DATE , ORG ordered the applicant 's further detention on remand for DATE . It considered , after having heard the prosecutor and the applicant , that the suspicion and grounds which had led to the applicant 's detention on remand were still pertinent .

By letter of DATE , the GPE public prosecutor dealing with the applicant 's case informed the latter 's lawyer that he would shortly transmit copies of all written records and orders issued in the applicant 's case . However , owing to the prosecution 's workload , this could not be done immediately . The public prosecutor added that no documents would be withheld , as the interests of the investigation did not require that .

On DATE , acting on a request by the public prosecutor , ORG prolonged the applicant 's further detention on remand by DATE . After having heard the prosecutor and the applicant , it considered that the suspicion and grounds which had led to the applicant 's further detention on remand were still pertinent .

On DATE , the applicant filed an appeal against the decision of DATE with ORG ( gerechtshof ) .

On DATE , the public prosecutor transmitted to the applicant 's lawyer copies of the requests , authorisations and orders in respect of the investigative powers that had been used in the applicant 's case . These documents were accompanied by various written records containing the findings of the investigation authorities in support of their requests for authorisation to use special investigative powers .

On DATE , acting on a request by the public prosecutor and having noted that the applicant had indicated in writing that he did not wish to be heard on that request , ORG prolonged the applicant 's detention on remand for a further period of DATE , considering that the suspicion and grounds which had led to the applicant 's further detention on remand were still pertinent .

On DATE , having noted the impugned decision of DATE and the documents relating to the applicant 's pre - trial detention , and after having heard the parties , ORG rejected the applicant 's appeal and upheld the decision of DATE . As regards the applicant 's request – made orally at the hearing DATE to lift his pre - trial detention on the same grounds as those he had raised before ORG on DATE , ORG considered that the serious reasons of public safety referred to in the order for the applicant 's further detention on remand , and which continued to require his detention , outweighed the applicant 's interests in being released and , consequently , rejected the request .

On an unspecified date at DATE and after having received copies of the written records containing the results of the special investigative powers that had been used in the criminal investigation , the applicant 's lawyer requested that several witnesses be heard . At the time of the introduction of the application , first - instance trial proceedings against the applicant had started . No further information about these trial proceedings has been submitted .

Pursuant to LAW the “ ORG ” ) , officials with powers of investigation into offences must record as soon as possible in writing ( procesverbaal ) the investigated punishable fact or what they have done or found in the investigation .

LAW ORG defines pre - trial detention ( voorlopige hechtenis ) as a deprivation of liberty pursuant to an order for detention on remand ( inbewaringstelling ) , a warrant for the taking into pre - trial detention ( gevangenneming ) , or an order for further detention on remand ( gevangenhouding ) . The statutory rules governing pre - trial detention are set out in ORG CARDINAL of the ORG .

An order for pre - trial detention can only be issued against persons suspected of an offence attracting a punishment of DATE or more , or of a number of other specified criminal acts ( LAW ORG ) . Pursuant to LAW ORG , pre - trial detention can only be applied when it appears from the facts or circumstances that there are serious suspicions against the suspect ( “ wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte ” ) . Orders for pre - trial detention are immediately enforceable ( LAW ORG ) .

A ( deputy ) public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence , in respect of which detention on remand may be ordered ( LAW ORG ) . A ( deputy ) public prosecutor can further order a person 's subsequent detention in police custody ( inverzekeringstelling ) , after having seen and heard that person ( LAW ORG ) . An order for detention in police custody can only be issued in respect of offences for which detention on remand may be ordered . A custody order is valid for a maximum of DATE and may only be prolonged for a further maximum period of DATE ( Article CARDINAL of the ORG ) . No appeal lies against a police custody order .

Article CARDINAL of the ORG requires that DATE and TIME after the arrest , the suspect must be brought before an investigating judge in order to be heard . On that occasion the suspect may request the investigating judge to order his or her release ( Article QUANTITY § CARDINAL of the ORG ) . Where the investigating judge finds the police custody order unlawful , the suspect 's immediate release must be ordered ( Article CARDINAL § CARDINAL of the ORG ) . In order to prolong the detention of a suspect , the public prosecutor can request the investigating judge to issue an order for detention on remand under LAW ORG . A remand order given by the investigating judge is valid for a maximum period of DATE ( Article QUANTITY of the ORG ) .

Although no direct appeal lies against a remand order , a person whose detention on remand has been ordered can , in accordance with LAW ORG , apply to ORG for a lifting order ( opheffing voorlopige hechtenis ) . Under LAW ORG , an appeal against a rejection by ORG of a first request to lift the detention on remand may be lodged with ORG .

Upon a request by the public prosecutor , ORG can , after having heard the suspect , order the prolongation ( gevangenhouding ) of the original remand order of the investigating judge ( DATE the ORG ) . ORG order for further detention on remand is valid for a maximum period of DATE ( Article CARDINAL of the ORG ) .

An appeal against an order for further detention on remand lies to ORG who is to determine such an appeal as soon as possible ( Article CARDINAL of the ORG ) .

According to LAW ORG , the investigating judge or the public prosecutor can , if the interests of the investigation so require , withhold certain case file documents from the suspect . In that case , the suspect will be informed in writing that the documents available to him or her are incomplete . If documents are withheld from a suspect , the latter can file an objection ( bezwaar ) , within DATE after the notification of the decision , to the court to which the public prosecutor or investigating judge is attached , which court must determine the matter as soon as possible ( Article CARDINAL of the ORG ) .

Pursuant to LAW ORG , a suspect must be given access to all documents in the case file as soon as the decision to close the preliminary judicial investigation has become final or , where there has been no preliminary judicial investigation , as soon as the decision to pursue the prosecution or the indictment has been served on the suspect .


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

The applicant was born in DATE and lives in GPE .

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

NORP In DATE the applicant , who had just turned DATE , and a CARDINAL-year - old boy called “ GPE ” , approached an CARDINAL-year - old woman in the street . The applicant attempted to take the woman 's bag , causing her to fall to the ground and fracture her left arm . The applicant ran away and GPE stayed with the victim . The applicant was charged with attempted robbery . His defence was that he had acted under duress , having been threatened by GPE

In DATE , in connection with other offences , he was given a DATE supervision order and was remanded to the care of the local authority and placed with foster parents .

In DATE ORG , looking at the applicant 's offending history , which included offences of robbery , burglary , theft and arson , considered that it might be appropriate to impose a custodial sentence if he were convicted of the attempted robbery , and committed him for trial in ORG . After committal , the applicant 's legal representatives obtained CARDINAL expert reports . The first report was prepared by PERSON , an adolescent forensic psychiatrist , who was able to talk to the applicant for TIME in DATE before the latter terminated the interview . The applicant was also seen by PERSON , a consultant clinical psychologist , on DATE .

NORP In his report PERSON observed , inter alia :

“ Mental state examination

[ The applicant ] sat motionless in the chair throughout my brief interview . He appeared distracted and frequently asked me to repeat my questioning claiming that he could not understand me . He appeared defensive when questioned regarding family circumstances and was vague about his past schooling . He appeared reluctant to discuss his offending behaviour , asking me what point was there discussing it with me .

Ultimately , after repeating the statement that he was bored and wanted to eat he informed me that he would not answer any more questions and wanted to leave . Since it was clear that he was resistant to further questioning or probing I consented to his wish .

Impression

It has been extremely difficult to form a detailed impression of this young man 's problems and needs by virtue of his unwillingness to enter into the assessment process and a failure to obtain collateral information regarding his personal development and family background .

It is evident from the limited information available that [ the applicant ] has exhibited a behaviour disturbance from an early age which has resulted in restricted academic progress and alienation from his peers . ... [ The applicant 's ] persistent pattern of disruptive and socially inappropriate behaviour would be consistent with a diagnosis of conduct disorder of the unsocialised type .

It would appear from PERSON psychological report ... that [ the applicant ] has a significant degree of learning difficulties . He has a full scale IQ of CARDINAL ( CARDINAL.CARDINALnd centile ) , a verbal IQ of CARDINAL ( CARDINALst centile ) and a performance IQ of CARDINAL ( CARDINAL.CARDINALst centile ) . These scores would be consistent with his academic underachievement and could be viewed as a consequence of his disrupted schooling . PERSON notes that with [ the applicant 's ] cognitive abilities being more consistent with a child of CARDINAL rather than CARDINAL , his ' ability to reason is noticeably restricted ' . ...

It is clear that [ the applicant ] has complex needs which should ideally be addressed under the provisions of a care order for the foreseeable future . ...

It is conceivable that , if a coordinated package of care fails to meet [ the applicant 's ] complex educational and emotional needs , he will potentially pose a high risk of reoffending . At this time however I believe that a long term care order , with a stable foster placement and an appropriate educational package should be considered if an alternative to a custodial sentence were felt viable .

Recommendations

It is difficult to assess issues concerning [ the applicant 's ] fitness to plead since his discussion of the offence with me was limited . However , based on the information available to me and the findings of the psychological testing I would conclude that [ the applicant ] on balance was aware of his actions and that they were wrong . His understanding of their consequences however may have been adversely affected by his learning difficulties and impaired reasoning skills . Overall I would consider that [ the applicant ] is sufficiently capable of entering a plea though obviously the court process would have to be explained carefully in a manner commensurate with his learning difficulties .

NORP [ The applicant ] should be placed on a Supervision Order for as long as possible with a plan to address his emotional and educational needs and reduce his offending behaviour .

Long - term foster care should in my opinion be considered in preference to a custodial sentence if this were deemed possible .

A copy of PERSON report should be forwarded , with her consent , to [ the applicant 's ] school in order to devise an appropriate educational package to meet his complex needs . ”

PERSON 's report , dated DATE , states as follows :

“ [ The applicant ] was seen in the company of his Youth Justice Worker in the outpatient department . He was friendly and cooperative with a reasonable attention span in the individual setting . He generally understood what was required of him although some explanations required repetition and he occasionally needed encouragement to persevere . ...

[ The applicant ] was given the WISC - III [ Wechsler Intelligence Scale for Children - CARDINALrd edition ) , which looks at the development of reasoning skills as applied to both verbal and non verbal problem solving . ... [ O]verall , [ the applicant ] is presenting with a significant degree of learning delay . His Verbal IQ is slightly higher than his Performance IQ , but both fall at or below the first percentile .

On FAC , [ the applicant ] gained a score that was only just outside the average range on ORG , indicating reasonably good rote memory skills . Consistent with this was his ability to carry out the mental calculations for ORG . His scores on the remaining subtests were more significantly below average , reflecting poorly developed verbal reasoning skills . He found it particularly difficult to define words for Vocabulary , which he did to the level expected of most children aged DATE .

In general , [ the applicant ] experienced more difficulty with the Performance Scale subtests than with those that were language based . His age equivalents on this Scale ranged from DATE at the lowest to DATE at the highest . His approach to tasks that were reliant on the appreciation of visuo - spatial relationships was noticeably immature and he did not always attend to the relevant features .

[ The applicant 's ] attainments in literacy were looked at using the WORD [ Wechsler Objective Reading Dimensions ] and it was found that his ability to read and spell individual words out of context were both at levels that would be predicted from his general intelligence . He coped less well than expected with the Reading Comprehension section but this should be interpreted in the context of his disrupted educational career .

Summary

[ The applicant ] is currently presenting with a significant degree of learning difficulty that is most apparent in his ability to carry out visually based tasks . ... If looked at in terms of age equivalents , [ the applicant 's ] cognitive abilities cover a range from DATE , which will mean that his ability to reason is noticeably restricted . ... ”

There was a pre - trial hearing in DATE . The applicant 's counsel relied on Articles CARDINAL and CARDINAL of the LAW and argued that the trial should be stayed as an abuse of process because of the applicant 's low attention span and educational age , which meant that he would be unable fully to understand and participate in the trial . This submission was rejected by the judge , who ruled , inter alia :

“ I do not accept that placing [ the applicant ] on trial in the ORG amounts to inhuman or degrading treatment or will be unfair . Following the procedures now habitually adopted in ORG when trying children , the trial before the jury will be conducted in as informal a manner as is consistent with the requirements of a fair trial . Legal wigs and robes will not be worn . The issue before the jury will be a simple one . There is no reason to think that [ the applicant ] will be any less able to give his evidence to the jury than to ORG . On the material before me he appears to be a ' streetwise ' child , whose intellectual impairment is largely the result of spending CARDINAL of his critical DATE outside the education system .

I questioned whether there is felt to be a public interest in proceeding with the prosecution , having regard to the fact that [ the applicant ] is already subject to a DATE supervision order for offences including robberies . I was told that since that order was made on DATE ( at which time [ the applicant ] was also taken into local authority care ) , he has committed ( and admitted ) a number of other offences . He was placed with foster parents , who in DATE felt ( according to PERSON report ) that he was making some progress . Now , they are unwilling to keep him , finding him uncontrollable . In these circumstances it is entirely understandable that the ORG wish to proceed with the prosecution .

Mr PERSON also wished to take the point at trial that [ the applicant ] is unfit to plead . This argument is not supported by PERSON written report , but I was told that in a subsequent conference with counsel PERSON was equivocal on this point and his oral evidence might support it , although he has not seen [ the applicant ] since DATE ( when the boy was uncooperative anyway ) . No supplementary written report has been served . Mr PERSON has overlooked the fact that the evidence of CARDINAL medical practitioners would be needed before a jury could be invited to find his client unfit to plead ; also that PERSON is not a medical practitioner . He asked me to vacate [ the ] trial date to give the defence time to engage a second doctor .

I refused this application also , inviting PERSON to reflect on whether this point can really be pursued in the light of PERSON conclusions . If the boy is unfit to plead , then he would presumably have been unfit to plead in ORG , yet the point has apparently never been suggested on his various appearances there . Since TIME hearing I understand from Mr PERSON that he has duly reflected and discussed the matter with his instructing solicitors , and does not now intend to pursue the issue of fitness to plead . The trial will therefore proceed on the merits , the issue being duress . ... ”

At the hearing in DATE , which lasted DATE , the applicant was accompanied by his social worker . He was not required to sit in the dock and the court took frequent breaks and dispensed with the formality of wearing wigs and gowns . The ORG case consisted of CARDINAL written statements ( by the victim of the alleged crime and the arresting police officer ) and the oral testimony of QUANTITY eyewitnesses . The applicant gave evidence that he had committed the offence under duress , and PERSON also gave evidence consistent with her report .

The applicant was convicted and sentenced to DATE detention .

He appealed to ORG , inter alia , on the grounds that he had been deprived of a fair trial in view of his age and impaired intellectual capacity . The applicant advanced new evidence before ORG , including a statement by the applicant 's supervising social worker , who had been with him in ORG , and who said , inter alia :

“ To address [ the applicant 's ] first appearance [ in the ] ORG , the court was attired in full regalia and [ the applicant ] was totally perplexed at the rigid formality and surroundings of ORG , and it is my opinion that he did not fully understand the situation .

... [ A]t his trial I was pleased to see that the ORG was dressed in mufti . Whilst the jury was being sworn in [ the applicant ] asked me who they all were . I explained in as simple language [ sic ] a boy of DATE should understand , that they were members of the public who would have the duty of finding [ the applicant ] not guilty or guilty .

He then said if they were the public why could not his mother sit there to help him . [ The applicant ] did not have a member of his family in attendance despite efforts made by myself .

Whilst the trial was taking place [ the applicant ] kept turning around to talk to myself asking what was happening . [ The applicant ] has an extremely short attention span and it is my opinion that his lack of understanding of the formalities of ORG led to the jury observing what could have been misinterpreted as bad behaviour and a ' could not care less ' attitude .

I believe this also antagonised some jury members when [ sic ] I observed watching [ the applicant ] closely . Even when the sentence was passed [ the applicant ] again did not understand what had been passed or where he was being placed .

[ The applicant ] was under the impression that he would be returning to his foster / remand placement with [ his foster father ] , who was present at ORG . Despite my efforts to explain the situation to him [ the applicant ] did not comprehend the situation he was in . When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused . ”

On DATE the applicant 's appeal was dismissed by ORG , which refused leave to argue the abuse of process / unfair trial ground , holding that it was clear that the first - instance judge , in exercising his discretion to allow the trial to proceed , had taken account of the applicant 's age , level of maturity and intellectual and emotional capacities , and that steps had been taken to promote the applicant 's ability to understand and participate in the proceedings . ORG also rejected the application for leave to appeal against the sentence imposed . It noted , from a comprehensive report prepared by the unit where the applicant was detained , that there had been great improvements in both the applicant 's behaviour and his work and considered that , given the long period of instability in the applicant 's life , a settled period of support and education of the kind he was now receiving must be in his best interests .

Under section CARDINAL of ORG as amended by section CARDINAL(CARDINAL ) of ORG DATE ( “ the DATE LAW ) , the age of criminal responsibility in GPE and GPE is DATE , below which no child can be found guilty of a criminal offence .

Pursuant to section CARDINAL of the Magistrates ' Courts Act DATE , children and young persons under CARDINAL must be tried summarily in ORG , where the trial usually takes place in the specialist ORG , which has an informal procedure and from which the general public are excluded . The exceptions are children and young persons charged with murder , manslaughter or an offence punishable if committed by an adult with DATE imprisonment , who are tried in ORG before a judge and jury .

NORP Under LAW of LAW , every court dealing with a child ( under CARDINAL ) or young person ( under CARDINAL ) , whether as an offender or otherwise , must have regard to his or her welfare .

On DATE , following the ORG 's judgments in GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , DATE ) and PERSON v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINAL-IX ) , the Lord Chief Justice issued a practice direction concerning the trial of children and young persons in ORG . This practice direction , which was not , however , in force at the time of the applicant 's trial , states as follows :

“ CARDINAL . This practice direction applies to trials of children and young persons in ORG . Effect should be given to it forthwith . In it children and young persons are together called ' young defendants ' . The singular includes the plural and the masculine includes the feminine .

CARDINAL .

The overriding principle

NORP Some young defendants accused of committing serious crimes may be very young and very immature when standing trial in ORG . The purpose of such trial is to determine guilt ( if that is an issue ) and decide the appropriate sentence if the young defendant pleads guilty or is convicted . The trial process should not itself expose the young defendant to avoidable intimidation , humiliation or distress . All possible steps should be taken to assist the young defendant to understand and participate in the proceedings . The ordinary trial process should so far as necessary be adapted to meet those ends . Regard should be had to the welfare of the young defendant as required by section CARDINAL of ORG .

Before trial

NORP If a young defendant is indicted jointly with an adult defendant , the court should consider at the plea and directions hearing whether the young defendant should be tried on his own and should ordinarily so order unless of the opinion that a joint trial would be in the interests of justice and would not be unduly prejudicial to the welfare of the young defendant . If a young defendant is tried jointly with an adult the ordinary procedures will apply subject to such modifications ( if any ) as the court may see fit to order .

At the plea and directions hearing before trial of a young defendant , the court should consider and so far as practicable give directions on the matters covered in DATE below inclusive .

It may be appropriate to arrange that a young defendant should visit , out of court TIME and before trial , the courtroom in which the trial is to be held so that he can familiarise himself with it .

If any case against a young defendant has attracted or may attract widespread public or media interest , the assistance of the police should be enlisted to try to ensure that a young defendant is not , when attending for the trial , exposed to intimidation , vilification or abuse .

The court should be ready at this stage ( if it has not already done so ) to give a direction under LAW DATE or , as the case may be , section CARDINAL of ORG and Criminal Evidence Act DATE . Any such order , once made , should be reduced to writing and copies should on request be made available to anyone affected or potentially affected by it .

The trial

The trial should , if practicable , be held in a courtroom in which all the participants are on the same or almost the same level .

A young defendant should normally , if he wishes , be free to sit with members of his family or others in a like relationship and in a place which permits easy , informal communication with his legal representatives and others with whom he wants or needs communication .

The court should explain the course of proceedings to a young defendant in terms he can understand , should remind those representing a young defendant of their continuing duty to explain each step of the trial to him and should ensure , so far as practicable , that the trial is conducted in language which the young defendant can understand .

NORP The trial should be conducted according to a timetable which takes full account of a young defendant 's inability to concentrate for long periods . Frequent and regular breaks will often be appropriate .

Robes and wigs should not be worn unless the young defendant asks that they should or the court for good reason orders that they should . Any person responsible for the security of a young defendant who is in custody should not be in uniform . There should be no recognisable police presence in the courtroom save for good reason .

The court should be prepared to restrict attendance at the trial to a small number , perhaps limited to some of those with an immediate and direct interest in the outcome of the trial . The court should rule on any challenged claim to attend .

Facilities for reporting the trial ( subject to any direction given under LAW of DATE or section CARDINAL of the Act of DATE ) must be provided . But the court may restrict the number of those attending in the courtroom to report the trial to such a number as is judged practicable and desirable . In ruling on any challenged claim to attend the courtroom for the purpose of reporting the trial the court should be mindful of the public 's general right to be informed about the administration of justice in ORG . Where access to the courtroom by reporters is restricted , arrangements should be made for the proceedings to be relayed , audibly and , if possible , visually , to another room in the same court complex to which the media have free access if it appears that there will be a need for such additional facilities .

Where the court is called upon to exercise its discretion in relation to any procedural matter falling within the scope of this practice direction but not the subject of any specific reference , such discretion should be exercised having regard to the principles in paragraph CARDINAL above .

Appeal and committals for sentence

This practice direction does not in terms apply to appeals and committals for sentence , but regard should be paid to the effect of it if the arrangements for hearing any appeal or committal might otherwise be prejudicial to the welfare of a young defendant . ”

An accused is “ unfit to plead ” if by reason of a disability , such as mental illness , he has “ insufficient intellect to instruct his solicitors and counsel , to plead to the indictment , to challenge jurors , to understand the evidence , and to give evidence ” ( NORP v. PERSON Appeal Reports CARDINAL ) . The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of CARDINAL medical experts . Where a jury has found the defendant unfit to plead , either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence , in which case the court may make a hospital order against him ( Criminal Procedure ( Insanity ) Act DATE , sections CARDINAL , CARDINAL and CARDINAL ) . Alternatively , the trial may be postponed indefinitely until the accused is fit to plead .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE ( Florence ) . He was represented before the ORG by Mr PERSON , PERSON and Mr PERSON , lawyers practising in GPE .

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

On DATE the applicant ’s wife , GPE , who had been suffering from acute leukaemia , died at ORG in GPE . After carrying out a hospital autopsy ( autopsia amministrativa ) on DATE to determine the cause of death , the doctors indicated in the medical record that the applicant ’s wife had died of acute bronchopneumonia .

On DATE the applicant lodged a criminal complaint with the public prosecutor ’s office at ORG ( “ the prosecutor ’s office ” ) , claiming , inter alia , that certain delays had contributed to his wife ’s death , especially delays in performing a chest X - ray and in recording the results of a platelet test . In addition , the applicant stated that CARDINAL of the doctors who treated his wife had described a “ NORP drug ” used in her treatment as “ dreadful ” and “ directly attacking the DNA cells ” . The applicant thus complained that he had not been informed that the drug was dangerous and asked whether it had already passed the trial stage or was still undergoing trials .

On an unspecified date and on the basis of an expert report , the public prosecutor , considering that the delays indicated by the applicant had no causal link with the death of GPE and that her leukaemia had reached a terminal phase , requested that the investigating judge discontinue the proceedings . On DATE the applicant lodged an objection , indicating , inter alia , that the “ question concerning the amsacrine - based drug administered to his wife ” had not been addressed .

On DATE , on the basis of a medical certificate , the investigating judge found that GPE ’s leukaemia had not reached the terminal phase as the expert had indicated . He dismissed the request for discontinuation and ordered a new expert report . The investigating judge questioned in particular whether the amsacrine - based drug had been administered to the applicant ’s wife “ in accordance with the knowledge of specialised medical science in that field ” .

In a report dated DATE , the expert indicated that the doctors had not committed any error , carelessness or negligence in the treatment of GPE ’s illness . Having analysed the medical literature , the expert also expressed the opinion that the amsacrine - based drug had been administered to her in accordance with technical knowledge in the relevant field .

On DATE the public prosecutor again requested that the case be discontinued , and the applicant lodged an objection on CARDINAL DATE .

On DATE the investigating judge dismissed the objection and discontinued the proceedings .

On DATE the applicant applied for the reopening of the preliminary investigation , but his application was rejected on DATE .

On DATE the applicant again lodged a criminal complaint with the prosecutor ’s office . He complained that morphine , which is contra - indicated in cases of respiratory disorders , had been administered to his wife and that certain doctors had fabricated the time of her death on the medical record in order to avoid liability for manslaughter .

According to an expert report dated DATE , the therapy chosen for the treatment of the applicant ’s wife was adequate and there was no causal link between the administration of the morphine and her death .

On DATE the prosecutor ’s office accordingly called for the discontinuance of the proceedings . The applicant lodged an objection on DATE .

On DATE the investigating judge discontinued the proceedings .

On an unspecified date the applicant learnt from an article in ORG of DATE that GPE , a colleague of P.R.F. , the doctor in charge of the haematology department of ORG , had worked on trials involving the amsacrine - based drug “ A. ” , used to treat leukaemia .

In a parliamentary question of CARDINAL DATE , PERSON , a member of parliament , requested that the Minister of ORG and the Minister of Health conduct an inquiry at the haematology department of ORG to ascertain , in particular , details of any trials of the drug “ A. ” .

In a letter of DATE , the ORG Minister therefore requested that ORG provide him promptly with any information about any such trials .

That request , which went unanswered , was repeated on DATE and CARDINAL DATE .

In a note of DATE , ORG informed the ORG Minister that no further trials involving the drug “ A. ” had been carried out since DATE .

On DATE the ORG Minister requested that the GPE carabinieri find out whether there had been any trials of the drug “ A. ” at ORG during DATE the death of the applicant ’s wife and , if so , to obtain details of any such trials .

In a report of CARDINAL DATE , the carabinieri informed the ORG Minister that , according to the information provided by ORG , no trials of the drug “ NORP ” had been conducted at ORG . However , ORG had indicated that the drug in question had been administered to the applicant ’s wife as part of her leukaemia treatment and that she had died following an acute infection that had been an adverse effect of the drug . In addition , ORG asserted that the patient ’s relatives had been informed that the drug had been administered .

In the meantime , on DATE , the applicant had again lodged a criminal complaint with the prosecutor ’s office . He claimed , inter alia , that the drug “ A. ” , whilst still undergoing trials , had been administered to his wife without her knowledge and without the consent of her family . On DATE the prosecutor ’s office ordered an expert report .

On DATE the prosecutor ordered the carabinieri to add to the case file the documents attesting to the participation of the applicant ’s wife in the trials .

In an undated report based on the article from ORG , the expert observed that international trials of treatment for acute leukaemia had been under way during the period when the applicant ’s wife was being treated in hospital . The medication used in that treatment included the drug “ A. ” , which had not been registered in GPE . According to the article , the patients who participated in the trials had given their consent in accordance with the regulations of each hospital . On the basis of the documents provided by the carabinieri , the expert went on to indicate that GPE had been included in the trials without her knowledge and that she had died not from acute bronchopneumonia but from a heart attack following the administration of the drug “ A. ” .

On DATE the doctors who had treated GPE were committed for trial on a charge of manslaughter . They were accused of giving the applicant ’s wife a drug that had not been registered in GPE without informing her either of the risks incurred or of her inclusion in the trials .

The case was listed for a preliminary hearing on DATE . On DATE the applicant joined the proceedings as a civil party .

On DATE the preliminary hearings judge found that there was no case to answer . He considered that it had not been established with certainty that the drug administered to GPE could lead to heart complications or that her death had been caused by a heart attack , since the initial medical report had indicated acute bronchopneumonia as the cause of death . In addition , he noted that the public prosecutor had not ordered a judicial autopsy in the course of the initial investigation . Because of that omission in the judicial investigation , the exact cause of GPE ’s death could no longer be established .

The relevant Articles of LAW ( “ the ORG ” ) provide :

“ Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ... ”

“ Injured parties shall exercise the rights and powers expressly afforded to them by law , and may , furthermore , at any stage of the proceedings , submit pleadings and , except in cassation proceedings , request the inclusion of evidence . ”

“ Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ... ”

“ CARDINAL . In the course of the preliminary investigation , the public prosecutor and the person being investigated [ persona sottoposta alle indagini ] may apply to the judge for the immediate production of evidence [ incidente probatorio ] ... ”

“ CARDINAL . Injured parties may request that the public prosecutor apply to the investigating judge for the immediate production of evidence [ incidente probatorio ] in the course of an investigation .

NORP In the event that the public prosecutor fails to grant that request , he shall give reasons for his decision and notify the same to the injured party . ”

Article CARDINAL of the implementing provisions of the ORG , pertaining to investigations into deaths that appear to have occurred as a result of a crime , provides :

“ Where it is suspected that a person died as a result of a crime , the public prosecutor shall verify the cause of death and , should he consider it necessary , order an autopsy ... ”