CASE OF WYNEN AND CENTRE HOSPITALIER INTERRÉGIONAL EDITH-CAVELL v. BELGIUM

Violation of Art. 6-1 as regards the inadmissibility of statement of grounds of appeal;No violation of Art. 6-1 as regards notification to the applicants of the hearing in the Court of Cassation;No violation of Art. 6-1 as regards the possibility of replying to the advocate-general's submissions;No violation of Art. 6-1 as regards refusal of the request for a reference for a preliminary ruling;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The first applicant was born in DATE and lives in GPE . The second applicant has its registered office in GPE .

NORP In DATE a magnetic - resonance imaging ( MRI or ORG ) unit with a built - in electronic calculator DATE a high - technology medical device – was installed at the IMEC . In accordance with a royal decree of CARDINAL DATE , a department in which an MRI unit was installed was regarded as a “ high - cost medico - technical service ” within the meaning of LAW CARDINAL of LAW , consolidated on DATE . Pursuant to that statutory provision , such services had to be approved . The criteria for approval were laid down in the royal decree . The relevant department at the ORG had not , however , obtained the necessary approval .

On DATE the Ministers of Public Health for the GPE - Capital bilingual region lodged a complaint with the public prosecutor against the first applicant for installing high - cost medical equipment without the prior approval of the minister responsible for public health . In DATE the first applicant and the ORG , his employer , which was civilly liable for his acts , were summoned to appear in ORG . ORG subsequently applied to join the proceedings as a civil party .

NORP On DATE ORG acquitted the first applicant and cleared the ORG .

On DATE that judgment prompted the following speech by a member of ORG during the passage of a bill amending LAW :

“ I was shocked by the court ruling DATE in the PERSON case . Everyone knows Dr PERSON ’s habit of not caring about legislation . He illegally installs high - cost scanners at his hospital , the Edith - Cavell , and justifies his actions with arguments about medical ethics . ” ( summary record , ORG , DATE ordinary session , sitting of DATE )

State Counsel ’s Office and the civil party appealed against the judgment of CARDINAL DATE .

In their appeal submissions the applicants argued , among other things , that the royal decree of DATE , which had formed the basis for the prosecution , was unlawful , particularly as it concerned a matter dealt with by legislation at community rather than federal level . They pointed out in that connection :

“ Section CARDINAL of the Hospitals Act empowers the King to lay down approval and planning criteria for the installation of magnetic - resonance imaging ( MRI ) units with built - in electronic calculators , with a view to controlling public expenditure .

The decree lays down a number of conditions relating to :

( CARDINAL ) the department in which the equipment is installed ; ( CARDINAL ) the number of employees and their qualifications ; ( CARDINAL ) the safety of the equipment and of the surrounding area ; ( CARDINAL ) quality control of the work carried out by users ; ( CARDINAL ) the geographical location of the equipment ( the requirements vary according to the power of the equipment ) ; and ( CARDINAL ) the number of beds .

At best , only the fifth criterion can possibly come under the responsibility of ORG . The other conditions pursue a quite different aim , namely that of regulating the provision of health care , responsibility for which currently falls to the Communities by virtue of section CARDINAL(CARDINAL)(I)(CARDINAL ) of GPE DATE on institutional reform .

Seeing that CARDINAL of the CARDINAL conditions it lays down do not come under the responsibility of the national authorities , the royal decree of DATE should be declared unlawful in its entirety since it can not be applied only in part . ”

The applicants also submitted that the complaint , civil - party application and appeal by ORG were unlawful , inadmissible and void ; that the complaint by ORG infringed the principle of equality enshrined in LAW and CARDINAL of the LAW in that the public authorities , without applying any objective or reasonable criteria proportionate to the aim pursued , had refrained from reporting other similar offences to the public prosecutor ; that the royal decree of DATE and , at the very least , the penalty for which it provided , had been tacitly repealed ; and , lastly , that the decree infringed several fundamental rights , including the right to life and health , freedom of choice with regard to medical treatment and the prohibition of inhuman and degrading treatment .

On DATE ORG reversed the judgment , imposed a suspended fine of MONEY on the first applicant and ordered him to pay costs , applying , inter alia , sections DATE and CARDINAL of LAW . The ORG was held to be jointly and severally liable for payment of the fine and the costs . In particular , ORG dismissed the applicants’ arguments that the royal decree of CARDINAL DATE had been tacitly repealed or was unlawful .

The applicants appealed to ORG against that judgment . In their pleadings they relied on , inter alia , Articles CARDINAL and CARDINAL of the LAW , their main arguments being that ORG had based its judgment on contradictory and inconsistent reasoning and had , in particular , applied section CARDINAL(CARDINAL ) of LAW ( which concerned high - cost medical “ equipment ” ) , whereas , pursuant to the royal decree of CARDINAL DATE , an MRI unit constituted a high - cost medico - technical “ service ” , the setting up or operation of which came under section CARDINAL(CARDINAL ) of that LAW ; that ORG had omitted to examine whether the royal decree of CARDINAL DATE was compatible with LAW DATE on institutional reform , which had apportioned powers among the ORG , the ORG and the Regions , or with the principle of equality enshrined in LAW and CARDINAL of the LAW , and that it had failed to refer the matter to GPE and Procedure Court ; that it had infringed the general principle of the burden of proof and the presumption of innocence ; that the lawfulness of the royal decree of CARDINAL DATE , which ORG had applied , had not been established ; and that , in any event , the penalty for which it provided had been tacitly abolished by a subsequent provision , namely section CARDINAL(CARDINAL ) of the PERSON of DATE .

Under the second limb of their second ground of appeal , the applicants asserted that ORG had breached section CARDINAL ) of GPE and Procedure Court ( see paragraph CARDINAL below ) by refusing to refer a preliminary question to that court as to whether section CARDINAL of LAW contravened the rules laid down by or pursuant to the LAW to determine the respective powers of the ( federal ) ORG , the ORG and the Regions . They submitted in that connection :

“ The appellant argued in his appeal submissions that the royal decree of DATE did not comply with LAW DATE on institutional reform in that it laid down approval criteria relating to health - care policy , a matter which is the responsibility of the ORG .

The judgment appealed against should not merely have assessed whether the royal decree of DATE was compatible with the consolidated Hospitals Act which it implemented , since the King is not entitled to stay or dispense with the enforcement of the laws on institutional reform ; moreover , the consolidated Hospitals Act does not confer , and could not possibly have conferred , on him the authority to derogate from the laws on the distribution of powers . ...

Furthermore , seeing that [ ORG ] held that the royal decree complied with the consolidated LAW , it was required by section DATE ) of GPE DATE to submit a preliminary question to GPE and Procedure Court as to whether the LAW contravened the rules on the distribution of powers between the ORG , the ORG and the Regions . ”

The applicants accordingly asked ORG to submit the following question to ORG :

“ In so far as section DATE of the consolidated Hospitals Act of CARDINAL DATE is to be construed as empowering the King to lay down the rules set out in the royal decree of CARDINAL DATE ‘ establishing standards which a service that has installed a magnetic - resonance imaging unit with a built - in electronic calculator must satisfy in order to be approved as a high - cost medical service within the meaning of LAW , consolidated on DATE CARDINAL’ , does that provision contravene :

( CARDINAL ) the rules on the distribution of powers , seeing that by virtue of , inter alia , section CARDINAL(CARDINAL)(I)(CARDINAL ) , policy on the provision of health care within and outside health institutions is the responsibility of the FAC ; ... ”

Under the third limb of the second ground of appeal , based on LAW , which lays down the obligation to give reasons for judgments and decisions , the applicants asked ORG to submit a further preliminary question to ORG as to whether section CARDINAL of LAW breached Articles DATE , which safeguarded the principle of equality and non - discrimination .

The civil party , which was the respondent before ORG , filed pleadings in reply on DATE .

On DATE the applicants filed supplementary pleadings in which , among other things , they set out CARDINAL fresh grounds of appeal – based , in their submission , on public policy – alleging violations of various provisions of the LAW and the LAW , in particular LAW and CARDINAL . In their new grounds they submitted that the royal decree of CARDINAL DATE was unlawful ; that the principle of equality had been infringed in that , among the many hospitals that possessed the equipment in issue , only the applicants had been prosecuted ; that the penalty set forth in LAW had been abolished ; and , lastly , that a number of fundamental rights , including the right to life , had been infringed . The applicants also reiterated their request to have the preliminary question cited above submitted to ORG .

On DATE the date set for the hearing was entered on the list displayed at the registry and in the courtroom of ORG .

ORG held a public hearing on DATE . The applicants assert that they were not notified of the date of the hearing , such an omission being in accordance with LAW , second paragraph , of LAW ( ORG ) , which provided that dates set for hearings in ORG were entered on the list of pending cases DATE in advance , without any further notification . As is apparent from the record of the hearing , the court heard evidence from the reporting judge , the representative of ORG and counsel for the civil party . ORG did not attend the deliberations that took place after the hearing . On DATE , after the deliberations , ORG dismissed the ORG appeal , having declared their supplementary pleadings inadmissible as being out of time , pursuant to LAW paragraph , of the ORG , which provided that persons appealing to ORG could not file any pleadings once DATE had elapsed from the date on which the case was entered on the general list .

NORP In its judgment , delivered on DATE , ORG held , in particular , that the reasoning given in the judgment appealed against had not been contradictory and that the contention that ORG had applied section CARDINAL(CARDINAL ) instead of section CARDINAL(CARDINAL ) of LAW amounted to complaining of an incorrect reference to the applicable legal provision , an error that had no bearing on the penalty imposed since the CARDINAL provisions in question provided for the same penalty . It further held that the complaint that the royal decree was incompatible with LAW of DATE amounted to challenging the PERSON ’s constitutionality , a question outside ORG jurisdiction . Furthermore , ORG was under no obligation to submit a preliminary question to GPE and Procedure Court if it considered that the reply to the question was not essential for it to be able to give judgment .

ORG further noted that ORG had not infringed the rules on the burden of proof as , in dismissing the complaints that the royal decree of CARDINAL DATE was unlawful , it had based its decision not on the appellants’ arguments but on the consideration that it was not for the courts to take the place of the executive in assessing the appropriateness of a measure falling within the executive ’s sphere of competence .

ORG also dismissed the argument that the royal decree in question was unlawful or had been repealed , holding that section CARDINAL of the Law of DATE was in no way incompatible with LAW of DATE as it merely provided for an additional sanction in the form of a limit on fees and , consequently , had not tacitly abolished the criminal penalties provided for in that Act .

Lastly , ORG refused the request to submit a preliminary question to ORG . In so far as the question concerned the compatibility of section CARDINAL of LAW with the rules on the distribution of powers , ORG held :

“ Furthermore , in so far as the appellant asked the ORG to submit a preliminary question to ORG as to whether section CARDINAL of LAW , consolidated on DATE , contravenes the ‘ rules on the distribution of powers , seeing that by virtue of section CARDINAL(CARDINAL)(I)(CARDINAL ) , policy on the provision of health care within and outside health institutions is the responsibility of the PERSON , he did not state the precise nature of the alleged contravention .

Under the aforementioned section CARDINAL(CARDINAL)(I)(CARDINAL ) of LAW of DATE on institutional reform , policy on the provision of health care is a ‘ person - related matter’ falling within the responsibility of the Communities [ matière personnalisable ] , but only subject to certain exceptions , such as legislation laying down organisational principles , or funding arrangements , where these are governed by such legislation .

Since the consolidated LAW DATE lays down organisational principles governing hospitals and , in particular , their funding , the appellant should have explained in the preliminary question he intended to have submitted to ORG precisely why he considered that section CARDINAL of the Act was not covered by the exceptions whereby legislation laying down organisational principles , and the funding arrangements made in such legislation , are not ‘ person - related ORG for which responsibility is assigned to the Communities by LAW former LAW bis ) of the LAW , but are matters which under LAW remain the preserve of federal legislation .

Accordingly , the request for the submission of a preliminary question in relation to this limb of the ground of appeal is inadmissible as being insufficiently precise . ... ”

ORG also declared the preliminary question inadmissible in so far as it concerned the compatibility of section CARDINAL of the Act with Articles CARDINAL and CARDINAL of the LAW , on the ground that the question was “ extraneous both to LAW , the only provision alleged to have been infringed in this limb of the ground of appeal , and to the failure to reply to the appellant ’s submissions , the only complaint raised in the limb in question ” .

At the material time Article CARDINAL bis of the ORG provided :

“ Appellants wishing to make oral submissions in ORG shall set out their grounds of appeal in pleadings which must be communicated in advance to ORG DATE before the hearing .

However , they may not produce any pleadings or documents – other than those concerning the discontinuance or resumption of the proceedings or indicating that the appeal has become devoid of purpose DATE have elapsed from the date on which the case was entered on the general list . ... ”

At the material time LAW ORG provided :

“ Proceedings shall be governed by the provisions of Articles CARDINAL to DATE of the Judicial Code .

Nevertheless , by way of derogation to the second paragraph of Article PERSON of the LAW , the date set for a hearing shall , without any further notification , be entered on the list of cases pending before the court DATE prior to the hearing .

The list shall be displayed at the registry and in the courtroom and shall contain the names of the parties , the lawyers and the representative of ORG instructed to make submissions in the case . ”

In practice , however , the parties and their lawyers were entitled to ascertain the date of the hearing by telephoning the registry of ORG or requesting it by ordinary mail to inform them of the date in writing . That practice was long established and its existence was reiterated in ORG DATE report for DATE .

However , the PERSON of DATE ( see paragraph CARDINAL below ) repealed the second and third paragraphs of LAW ORG , bringing the arrangements for notifying the parties of hearings in criminal cases into line with those laid down in the second paragraph of Article PERSON of the Judicial Code .

At the material time LAW provided :

“ After the report has been read out , submissions shall be heard from the lawyers present at the hearing . Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal .

ORG Office shall then make its submissions , after which no further documents shall be accepted . ”

However , since ORG ( judgment of DATE , Series A no . CARDINAL-B ) , ORG had allowed the parties or their lawyers to address the court a second time after ORG had made his submissions . The parties could also seek an adjournment in order to give themselves additional time to prepare their submissions in reply , which could , moreover , take the form of a memorandum for the deliberations ( note en délibéré ) . Such requests were systematically allowed by ORG . In the rare cases in which ORG submissions had been prepared in writing and communicated to the court before the hearing , a copy was also sent to the parties before the hearing . ORG took note of those judicially initiated procedural amendments in its Interim Resolution DH ( CARDINAL ) CARDINAL of DATE .

In a letter of CARDINAL DATE to the Minister of ORG , ORG at ORG made the following observations in relation to the present case :

“ In the instant case the submissions were made orally and the parties did not reply to them , either orally or by submitting a memorandum for the deliberations , as they were entitled to do , if necessary after an adjournment which they would have been granted in accordance with standard practice if they had requested it . By establishing this practice in a statutory instrument , the PERSON of DATE confirmed that the practice complied with the requirements of NORP case - law . ”

A law of DATE , which came into force on DATE , amended LAW as follows :

“ After the report has been read out , ORG Office shall make its submissions . Submissions shall then be heard from the parties . Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal or of particular grounds .

Where the submissions of ORG are in writing , the parties may , at the very latest during the hearing and solely in reply to those submissions , submit a memorandum in which they may not raise any new grounds of appeal .

At the hearing each party may seek an adjournment in order to reply orally or by means of a memorandum to the written or oral submissions of ORG . The ORG shall fix the time - limit for submitting the memorandum . ”

Other relevant provisions of the Judicial Code read as follows :

“ The rules set out in this Code shall apply to all proceedings , except such as are governed by statutory provisions which have not been expressly repealed or by principles of law whose application is not compatible with that of the provisions of this Code . ”

“ The file shall include the following :

State Counsel ’s opinion ;

A list of documents , kept up to date by the registrar and indicating the date on which the documents were submitted , shall be appended to the file . ”

“ In so far as no derogation is laid down in the provisions of this Book , the rules concerning first - instance procedure shall be applicable to appeal proceedings . ”

Section CARDINAL of GPE of DATE on GPE and Procedure Court , as worded at the material time , provided :

“ ( CARDINAL ) The Administrative Jurisdiction and Procedure Court shall give a preliminary ruling , in the form of a judgment , on questions concerning

( i ) contravention by CARDINAL of the statutes , decrees or rules contemplated by LAW rules laid down by or pursuant to LAW to determine the respective powers of the State , the Communities and the Regions ;

( ii ) without prejudice to ( i ) above , any conflict between decrees or rules as contemplated by LAW promulgated by different legislative authorities , provided that the conflict stems from the scope of the decrees or rules in question ; and

( iii ) contravention of Articles CARDINAL , CARDINAL and DATE of the LAW by one of the statutes , decrees or rules contemplated by LAW .

( CARDINAL ) A court before which a preliminary question has been raised must seek a ruling on the matter from GPE and Procedure Court .

However , the court shall be exempted from this obligation where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling .

A court whose decisions are open to challenge in the form of an ordinary appeal , a petition to reopen proceedings , an appeal on points of law or an application for judicial review in the ORG d’Etat shall also be exempted from this obligation

( i ) where GPE and Procedure Court has already given a ruling on a question or appeal having the same object ;

( ii ) where it considers that the reply to the preliminary question is not essential for it to be able to give judgment ; or

( iii ) where it is manifestly apparent that the law , decree or rule contemplated in LAW does not contravene any rule or LAW contemplated in section CARDINAL(CARDINAL ) . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 6-3-d;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG The applicant is an NORP national born in DATE and resident in GPE . He has a taxi business .

ORG On DATE a car identified as belonging to the applicant was seen to drive through a red traffic - light .

ORG On CARDINAL DATE ORG Bundespolizeidirektion ) in GPE sent the applicant a letter ordering him to disclose the identity of the driver .

ORG On DATE ORG imposed a fine of CARDINAL NORP schillings ( ORG ) with QUANTITY imprisonment ( Arrest ) in default on the applicant by way of a provisional penal order ( Strafverfügung ) for having failed to comply with his obligation as registered owner ( GPE ) of a car to disclose the identity of the driver at a particular time , contrary to LAW see paragraph CARDINAL below ) .

ORG The applicant states that he tried to submit a written appeal at a police station , or in the alternative to declare his objections orally , but the officers at the police station refused to cooperate .

ORG When ORG proceeded to the enforcement of the provisional order , the applicant referred to this refusal . The authority thereupon instituted ordinary penal administrative proceedings which - after a hearing of the applicant - led to a penal order ( PERSON ) on DATE imposing a fine of LAW ( again with QUANTITY imprisonment in default ) and ordering the applicant to pay costs to an amount of ATS CARDINAL .

ORG The applicant appealed to the GPE regional government ( ORG PERSON ) , which on DATE quashed this penal order as being null and void on the ground that the applicant had not effectively raised objections against the initial provisional penal order . The latter order accordingly remained valid .

ORG The applicant lodged a complaint regarding this decision with ORG ( Verwaltungsgerichtshof ) , which on DATE dismissed the appeal without a hearing ( section CARDINAL ( CARDINAL ) of LAW ) and confirmed the decision of the regional government . It found that the refusal of the police to accept his written appeal had not deprived the applicant of the possibility to lodge it ; he could still have dropped it into the letter - box or sent it by post .

ORG On DATE officers of the GPE police found that a tyre on one of the applicant ’s taxis had too low a tread . They drew up a report and confiscated the car ’s number plates and logbook .

ORG On DATE ORG , having heard the applicant , fined him ORG CARDINAL for failure to comply with his duties as the registered owner of a motor vehicle ( see paragraph CARDINAL below ) , with QUANTITY imprisonment in default .

ORG The applicant appealed to the GPE regional government , which confirmed the decision of ORG on DATE .

ORG The applicant filed a further appeal to ORG on DATE , complaining , inter alia , that the regional government had refused to hear the evidence of witnesses whom he had sought to bring forward .

ORG dismissed this appeal on CARDINAL DATE without a hearing and ordered the applicant to pay ORG CARDINAL costs . Its reasoning reflected the finding that the further evidence which the applicant had wished to put forward was in any event irrelevant .

ORG Under LAW ( CARDINAL ) , first sub - paragraph , of the Motor Vehicles Act CARDINAL , the registered owner of a motor vehicle is responsible for maintaining the vehicle in such a way as to comply with the LAW or delegated legislation .

Section CARDINAL ( CARDINAL ) of the LAW requires motor vehicles to be equipped with appropriate tyres for the type of vehicle . Regulation CARDINAL ( CARDINAL ) of ORG ( Kraftfahrzeuggesetz - Durchführungsverordnung ) requires the tyres of the type of vehicle at issue in the present case to have a tread CARDINAL mm high over their entire surface .

Section CARDINAL ( CARDINAL ) of the LAW entitles the competent authority , inter alia , to require the registered owner to communicate the name and address of the person who has used the vehicle at a specific time .

ORG Under section CARDINAL ( CARDINAL ) , first sub - paragraph , it is an administrative offence ( Verwaltungsübertretung ) not to comply with the above - mentioned provisions , punishable by a fine of up to ORG CARDINAL,CARDINAL or CARDINAL GPE imprisonment in default .

ORG For a description of the relevant domestic procedure , reference is made to the PERSON v. GPE judgment of DATE ( Series A no . CARDINAL-B , pp . DATE , paras . DATE ) .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant was born in DATE and lives in ORG .

On DATE the parliament passed the PERSON on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne ; “ the DATE LAW ” ) . It entered into force on DATE . Persons falling under the provisions of the DATE LAW , i.e. candidates or holders of public office such as ministers and members of parliament , were required to declare whether or not they had worked for or collaborated with the security services during the communist regime . The provisions of the LAW extended to , inter alia , judges , prosecutors and advocates .

On an unspecified date the applicant , who was an advocate , declared that he had not collaborated with the communistera secret services .

On an unspecified date in DATE ORG ( ORG ) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of ORG ( PERSON ) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services .

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had submitted an untrue lustration declaration . The operative part of the judgment was served on the applicant . However , the reasoning was considered “ secret ” and , in accordance with LAW , could only be consulted in the secret registry of that court .

The applicant lodged an appeal in which he maintained , in particular , that his rights had been breached because he could not freely consult the reasoning of the judgment .

On DATE ORG , acting as the secondinstance lustration court , upheld the impugned judgment .

NORP The applicant lodged a cassation appeal against the judgment .

On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal as being manifestly illfounded . The applicant was removed from ORG with the result that he is unable to practise as an advocate for DATE in application of the CARDINAL LAW .

The judgment was notified to the applicant ’s representative on CARDINAL DATE .

The relevant law and practice concerning lustration proceedings in GPE are set out in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ORG ORG


Partly inadmissible under Art. 6-1 (civilian judges on state security court and Court of Cassation);Violation of Art. 6-1 (military judge on state security court);Not necessary to examine other admissible complaints under Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , CARDINAL , DATE , DATE and DATE respectively and live in GPE .

On DATE PERSON , PERSON , PERSON and PERSON were arrested and taken into custody by the Anti - Terror branch of ORG on suspicion of aiding and abetting an illegal organisation . On DATE PERSON was arrested and taken into custody by the same police officers on the same grounds .

On DATE the applicants were brought before ORG . The court ordered their remand in custody .

On DATE the public prosecutor at ORG filed a bill of indictment accusing PERSON and PERSON of membership of an illegal organisation and the other applicants of aiding and abetting an illegal organisation . He requested that PERSON and PERSON Öndeş be convicted and sentenced under LAW and LAW no . ORG . In respect of the other applicants , the public prosecutor requested that they be convicted and sentenced under LAW CARDINAL of LAW and LAW no . ORG .

On DATE ORG convicted the applicants as charged and sentenced PERSON to DATE , PERSON DATE and DATE , PERSON to DATE and DATE and PERSON and PERSON to DATE and CARDINAL months’ imprisonment .

On DATE ORG quashed the judgment of ORG for non - compliance with procedural rules .

On DATE ORG convicted the applicants as charged and sentenced PERSON to DATE imprisonment , PERSON to DATE and CARDINAL months’ imprisonment and the other applicants to CARDINAL years’ and QUANTITY months’ imprisonment .

On DATE ORG held a hearing and upheld the judgment of ORG . On DATE the judgment of ORG was deposited with the registry of ORG .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

By PERSON no . CARDINAL of DATE , published in the Official journal on DATE , ORG have been abolished .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in ORG . She is represented before the ORG by Mr PERSON , counsel practising in GPE , and PERSON , a solicitor practising in ORG .

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

The applicant , now aged DATE , is microcephalic , has spasticity to her lower limbs and is autistic . She has limited verbal skills and has been assessed as having the mental age of CARDINAL and a half years .

From DATE , she was resident in a longstay hospital for the mentally handicapped . In DATE , she was moved to live in ORG , a purpose built complex of CARDINAL bungalows and communal facilities for severely disabled adults which forms a unit within the grounds of ORG , ORG . At the time of her move , the applicants and others who were also moved at this time were promised a “ home for life ” at ORG .

In DATE , ORG ( the “ ORG ” ) issued proposals for consultation which would result in the provision at ORG ceasing and the site being used for CARDINAL assessment / treatment and forensic beds . It was envisaged that the current residents would be transferred to social care in the community by DATE .

During the period of consultation , the applicant ’s parents wrote to the ORG complaining of this intention to renege on its promise to provide a home for life for the applicant at ORG . The applicant ’s parents took the view , as later set out in their judicial review application , that the applicant would be adversely affected by the change to her routine and environment and that the applicant was adamant that she wished to remain in ORG .

On DATE , the ORG considered the outcome of the consultation process , whose proposals had been supported by ORG but opposed by the ORG carers . While they agreed to proposals to transfer provision for the residents to “ ORG ” they deferred a decision about the future use of the site and sought legal advice concerning the “ home for life ” promises allegedly made to the residents . It was acknowledged by the ORG , in face of the consistent statements by the families of PERSON residents , that there was a possibility that such had been given to some of the residents .

The ORG were given advice by solicitors that :

“ The view is that ‘ home for life’ does not necessarily mean a ‘ home for life’ at a particular hospital or place of residence ; rather a ‘ home for life’ by reference to the needs of those individuals being met appropriately . Their need at the time that any decision is made to transfer them to other accommodation must be taken into account as must their own wishes . ”

On DATE , the ORG took the decision to stop the provision of long term care beds at PERSON and to transfer the future care of the residents to ORG , with due regard to working closely with the users of the services , their relatives and carers in the shape and design of new services to replace those long term care beds .

The applicant took judicial proceedings through her mother and litigation friend , alleging inter alia that the ORG had failed to respect the promise made to the applicant of a home for life at ORG , that the ORG had failed to assess her needs prior to deciding to move her and failed to give rational reasons for the decision to resile from the promise .

In his judgment of DATE , the Deputy High Court judge rejected all the applicant ’s arguments . He found that the decision reflected the government policy which was to encourage the removal of persons with learning disabilities away from long term care in institutions , particularly where there was no need for the use of health resources , since the view was being taken that it would benefit the individual by promoting their independence , choice and civil rights . The decision was not taken on an erroneous view that all persons in institutional care had to be moved but was based on an assessment of the personal circumstances of the residents in this case . The judge was also satisfied that the authority did properly take into account the strong preference of the applicant and her family that she should continue to live at PERSON . While the ORG regarded this as a weighty factor , they nonetheless concluded that it would be very much in the interests of the applicant to move into the community as she had no health needs requiring a hospital setting and her autonomy and progress would be enhanced by the move . He referred to the evidence of the consultant psychiatrist , according to whom previous patients moved into community homes had made impressive progress in health , behaviour , social skills and communication , and to his opinion that such a move would have a positive impact . He considered that there was no failure in assessment of the applicant ’s situation as the consultant psychiatrist and the ORG were entitled to rely on their experience of the applicant to conclude that she would be able to adjust well to a move with adequate support without seeking a specific psychological assessment of the impact of the change . As regarded the giving of the promise of “ a home for life ” , the judge found that the local health authority ’s approach had accorded with legal requirements of giving due consideration to the promise - they had quite properly taken legal advice on the point – and that they had been entitled to decide to move the applicant in light of their conclusion that she would benefit positively from the move . He concluded :

“ For similar reasons , I am satisfied that the assessment ... of the benefits to [ the applicant ] of moving her out of ORG care and the [ ORG ’s ] decision to act on those views , mean that the interference with [ the applicant ’s ] right to respect for her home is justified under LAW . The [ ORG ] are entitled to a degree of deference in relation to such a decision and I can not say that their decision is a breach of LAW , in the particular circumstances of [ the applicant ’s ] case , having regard , again , as I have mentioned , to the fact that moving [ the applicant ] will promote other aspects of her rights as a citizen in the community . ”

The applicant applied for permission to appeal against this decision . A single judge of ORG refused permission finding that the judge had reached the right decision for the right reasons . ORG refused the renewed application on DATE , finding that the judge had taken into account all relevant matters and that his approach to the issues could not be faulted .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by Mr Tyge Trier , a lawyer practising in GPE .

By indictment of CARDINAL DATE the applicant was charged with malicious damage in that , while walking on a road along with CARDINAL other young men on their way to a discotheque an evening in DATE , he had knocked his fist against the front window of an oncoming slow driving car with the result that the window cracked .

At the first court session , held on DATE , the applicant was heard . Furthermore , the driver testified that she had seen the applicant very close up when the incident happened and therefore was able to identify him shortly afterwards at the discotheque and again in court . The applicant requested an adjournment of the trial in order to hear witnesses on his behalf , more specifically CARDINAL of the above CARDINAL men , henceforth called ORG and ORG . In the following court session ORG testified that he had not seen any window crack and he could not remember if any of the men had discussed later who might have cracked it . The witnesses CJ and CE did not appear . It appears that ORG was not called and the applicant withdrew his request to hear CE . At the prosecution ’s request a police officer who was present in the discotheque on TIME when the driver had identified the applicant finally testified .

By judgment of CARDINAL DATE ORG Sj.(retten i PERSON . ) found the applicant guilty of the charges brought against him following an evaluation of the available evidence and sentenced him to pay a fine of MONEY ( DKK ) .

On DATE the Leave to Appeal Board ( Procesbevillingsnævnet ) received an application from the applicant for leave to appeal , co - signed by ORG , in which the applicant declared that ORG was the perpetrator .

Consequently , ORG was provisionally charged with the offence and questioned by the police on CARDINAL and DATE . According to the police reports ORG stated that he could not remember any car or any cracked window , but the applicant had told him that he ( CE ) was the perpetrator . He refused to elaborate on the exact time when the applicant had told him so . According to a police report of DATE , ORG told the police on the phone that he did not have time to read his previous statements and he did not care either . However , after the last interview he remembered , although he had been very drunk , that he did stretch his arm and thereby hit the car , but he could still not remember that the window cracked .

The applicant was granted leave to appeal to ORG of Eastern GPE ( PERSON ) on DATE .

On DATE the applicant ’s appeal was scheduled to take place on CARDINAL DATE , and on DATE a summons was served on CE to appear as a witness . On DATE the applicant informed ORG that CE was going to work in GPE for DATE as from DATE , and therefore he requested an adjournment of the trial . A copy of ORG ’s work contract was enclosed . ORG , however , proceeded with the trial as scheduled . The driver and a police officer gave testimony . As for the driver she confirmed her identification of the applicant as the perpetrator once more . As to the witnesses on the applicant ’s behalf ORG did not appear , since he was detained on remand in another case . Accordingly his statement during ORG trial was read out during the ORG trial . As for ORG his statements given to the Police on DATE , DATE and DATE were read out during the trial . Having regard to the available evidence , including the above statements submitted by ORG , ORG did not find an adjournment necessary as requested by the applicant in order to hear CE in person . On DATE ORG upheld ORG judgment on the basis of the evidence as set out above .

The applicant ’s request for leave to appeal to ORG ( Højesteret ) was refused by the Leave to Appeal Board on DATE .


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

The applicant was convicted at ORG on DATE of CARDINAL counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to LAW ) of ORG . Each count related to a photograph in an album which had been part of a consignment from GPE addressed to the applicant in GPE . The applicant had signed a form declaring that he was not bringing in prohibited material in that way . Each photograph was of a young naked child , engaging in normal outdoor activity such as playing on a beach . The questions put to the jury in respect of each count were :

“ Considering each count separately , has the prosecution made you sure that :

On DATE the defendant knowingly brought into this country the photograph of the child that is the subject of the count ?

The child is DATE ?

The photograph is indecent ?

[ A photograph is indecent if in your judgment in offends against recognised standards of propriety ]

The defendant deliberately failed to disclose his possession of the photograph because he believed that it was or might be indecent ?

If the answers to all CARDINAL questions are YES , the defendant is GUILTY . If the answer to any of the above questions is NO , the defendant is NOT GUILTY . ”

The applicant was sentenced to DATE imprisonment on DATE . On DATE a single judge granted leave to appeal against sentence as it was arguable that the sentence was too long . Leave to appeal against conviction was refused , the judge considering that the trial judge 's direction to the jury had been entirely satisfactory , and that the offence was sufficiently precisely defined so as to comply with LAW . In this latter respect he referred to PERSON and Others v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) and the domestic decision of NORP v. PERSON ( [ DATE ] EWCA Crim CARDINAL ) .

The applicant 's appeal against sentence was allowed by ORG on DATE . No alternative sentence was passed , although the applicant was still required to register as a sex offender under LAW DATE .

A renewed application for leave to appeal against conviction was dismissed by ORG on DATE . ORG noted that :

“ whereas counsel 's advice and grounds of appeal are set out in CARDINAL paragraphs over CARDINAL pages , those arguments put forward by the applicant himself extend to CARDINAL paragraphs over CARDINAL pages . He is a dedicated enthusiastic and well - researched apologist for what he sees as innocent and non - exploitative pleasure in viewing photographs of juvenile nakedness . He raises many philosophical , social and artistic arguments about that which we regard as irrelevant to the CARDINAL legal questions for us :

( CARDINAL ) Was the conduct of the trial and the summing up correct ?

( CARDINAL ) Are the convictions safe ? ”

ORG dealt with the various grounds of appeal as follows :

- ORG did not accept that the concept of “ indecent ” material was too vague to allow a citizen to conduct himself in knowledge of what the law was . It recalled that the test of whether an article was indecent was an objective one , and that the quality of indecency was to be determined by looking at the article alleged to be indecent , and nothing else . To require absolute certainty in advance as to whether an article was or was not indecent would set an impossible task which could only be met in the rare case in which a second set of proceedings was brought in respect of specific material already found to have been indecent .

- As to the ground of appeal that the judge was alleged to have dealt wrongly with the “ context ” of the photographs in that he had suggested that that was relevant to whether the photographs were indecent , and that he misdirected the jury that visibility of genitalia was a relevant consideration in determining whether the material was indecent , ORG referred to the questions which the judge had put to the jury , in which he had stated that a photograph was indecent if it offended “ against recognized standards of propriety ” . As to context , the trial judge had said :

“ ... here what you should do is to ignore context . Forget about context . Just look at the photographs of these young children , ignoring any context , and ask yourselves the question : Are they decent or indecent ? The real question is ... : Are we sure they are indecent ? ”

ORG added that the extent of the display of genitalia was a factor which one could expect to be considered by the jury , and the judge 's reference to it was not surprising .

- As to the ground of appeal that in using the CARDINAL questions put to the jury , the judge had reduced the statutory requirement of “ knowingly ” being concerned in importation to a belief that the photograph was or may have been indecent , ORG considered that the statutory requirement of “ knowledge ” was met by the fourth question .

- As to the ground of appeal that the applicant had been denied the right to silence because the judge had instructed the jury that they could draw adverse inferences from the fact that applicant had not given evidence , ORG noted that the judge 's direction under LAW of ORG LAW DATE had been absolutely orthodox . The defence had asked the judge to rule in advance that if the applicant gave evidence he could not be cross - examined about a number of matters , in particular matters which would reveal his general attitude to the “ philosophical , social and artistic arguments ” referred to above , and which could colour the jury 's determination of the fourth question . To this , ORG replied that the judge was wise to refuse to make any such ruling , as if he had done so , he would have given carte blanche to the defence “ to give the sort of proselytising combative assertions which we find in the grounds of appeal through the defendant 's evidence ”

According to Section CARDINAL(CARDINAL ) of the ORG and Excise Management Act :

" Without prejudice to any other provision of the Customs and Excise Acts DATE , if any person is , in relation to any goods , in any way knowingly concerned in any fraudulent evasion or attempt at evasion –

( b ) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment ;

he shall be guilty of an offence under this section and may be arrested . "

As ORG found in the case of PERSON ( [ DATE ] ORG CARDINAL ) :

“ This provision extends to all cases involving the evasion or attempted evasion of a prohibition or restriction . It requires proof by the prosecutor of CARDINAL things . First he must prove that the goods in question were the subject of a prohibition or restriction under or by virtue of any enactment which was in force at the time of the evasion or attempt at evasion . This is an essential element in any prosecution , but its proof in many cases is likely to be a formality . In the present case the fact that the video cassettes contained indecent photographs of children , which is prohibited indecent material , was agreed between the defendant and the prosecutor . The second thing which the prosecutor must prove is that the defendant was knowingly concerned in a fraudulent evasion or attempt at evasion of the prohibition or restriction . ”

A number of provisions create prohibitions on indecent photographs , including LAW DATE ( obscene publications ) , LAW DATE ( indecent photographs of a child under the age of CARDINAL ) and LAW of LAW CARDINAL ( indecent photographs ) .

Section CARDINAL of ORG LAW DATE provides , so far as relevant , as follows :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

The applicant complained under LAW that domestic law is not sufficiently precise to enable an individual to know in advance whether his conduct is criminal .

He also complained under LAW that the trial was unfair for the same grounds as made in his appeal against conviction , that his appeal was refused in an ill - considered way , in particular that his grounds of appeal entitled “ misdirection on standard of proof ” and “ infringement of right to silence ” were not properly dealt with .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in ORG .

On TIME DATE the applicant met with her friend .

Subsequently the applicant took a taxi to go home and refused to pay the allegedly exorbitant fare without obtaining a proper bill . As a result , the driver did not let the applicant out of the taxi in front of her house but took her to a soberingup centre in ORG . The applicant called the police from the taxi as she felt threatened by the driver ’s behaviour . So did the driver as regards the applicant ’s behaviour .

Subsequently , the applicant was detained in the soberingup centre . She refused to undergo a breathalyser test . The applicant submitted that she had had CARDINAL beers . The ORG maintained that she had been in a state of “ average intoxication ” .

The applicant submitted that the staff of the centre had insulted her and that she had been brutally manhandled and beaten . She had also been forcibly stripped naked by CARDINAL men and a woman . Afterwards , she had been forcibly put into a disposable gown .

The Government submitted that it was the applicant who had been aggressive towards the staff and had verbally insulted them . They had therefore had no choice but to undress her by force as she had refused to undress herself and had subsequently resisted their legitimate efforts to dress her in a disposable gown .

They further argued that she had had to be placed in restraining belts because after being put to bed she had been kicking the doors of the room and screaming abuse , waking other patients .

NORP The parties’ submissions are concordant as to the fact that the applicant was subsequently restrained by belts , tied to a bed and locked in a cell until TIME of DATE , when she was released .

The applicant submitted that she had remained in the cell , restrained by the belts , for TIME . The Government did not challenge this submission .

On DATE the applicant obtained a medical certificate concerning her condition .

The relevant part of the certificate read :

A bloody bruise on the left hip , at the front , of QUANTITY in diameter , abrasion at the wrist at the elbow side ; mobility and rotation of the shoulder limited ( unclear whether passive or active movements concerned ) ; the [ applicant ] complained of pain in her jaw at the left side ; the jaw at that side swollen .

Shortly afterwards the applicant filed a complaint against the staff of the centre with the head of the district police in ORG . She submitted that she had not been intoxicated , that nothing in her conduct had justified the decision to deprive her of her liberty and that she had been brutally manhandled and undressed by the staff of the centre .

On DATE the head of the district police refused to institute an investigation in her case . The grounds of the decision read :

On CARDINAL PERSON complained to ORG that on DATE a taxi driver and the staff of the sobering - up centre had used physical force against her and insulted her . In her formal complaint that a criminal offence had been committed , which she submitted on DATE , she [ explained ] that on DATE at TIME approximately a driver of a taxi No . [ ... ] had first insulted her verbally and afterwards had taken her to the sobering - up centre where she had been detained against her will and physical force , resulting in bruises and scratches , had been used against her by the staff . A number of persons were requested to provide information , but no one confirmed the applicant ’s allegations . The taxi driver stated that PERSON had been taken to the sobering - up centre because she had not wanted to pay the fare or to leave the taxi and that she had herself agreed to be taken there ; while she could have left the taxi at any time ; she was detained at the centre by the police , not by the taxi driver himself as she says ; furthermore she did not want to have a breathalyser test but when she was already in the centre she did not want to undress herself and when she was put in the room for the patients she was hitting the door with her hands and other parts of her body inflicting injuries on herself so that restraining belts had to be used for fear that her life and health might be endangered . ”

On DATE the ORG district prosecutor upheld this decision .

On DATE the applicant appealed . In particular , she reiterated that her detention had been completely unjustified as she had not been intoxicated . She had had CARDINAL beers on TIME of DATE which by no standards could be described as intoxication , still less as intoxication justifying deprivation of liberty in a soberingup centre . She had been illtreated by the staff of the centre after her arrest , but the decision of CARDINAL DATE had obviously failed to elucidate the facts of the case . She submitted that during her detention she had been stripped naked . She stressed that the police had failed to grant her access to the file concerning her detention and that the investigation had been superficial .

On DATE the head of the district police in ORG decided to investigate the applicant ’s allegations .

On DATE an expert prepared an opinion as to the applicant ’s health upon her release on the basis of the file of the investigation . The opinion reiterated the findings of the certificate of CARDINAL DATE and stated that the injuries could have been sustained both as a result of the use of force against the applicant or of her behaviour after she had been undressed and put into the cell .

The investigation was subsequently discontinued by the police and on DATE the district prosecutor confirmed this decision . The written grounds of the decision read :

“ During the investigation factual findings were made , witnesses were questioned , the [ applicant ’s ] medical records were examined and a medical expert was appointed with a view to establishing the injuries and circumstances in which they might have been sustained . It was established on the basis of this material that on DATE CARDINAL PERSON , having drunk alcohol and having refused to pay for the taxi , had been taken by the taxi - driver to [ the sobering - up centre ] . Afterwards she was taken , in the presence of a police patrol , to the building of the centre . Once she was inside , a decision was taken to detain her in the centre , regard being had to her behaviour which was vulgar and offensive towards those who were present there . As she did not want to comply with the regulations in force by taking a breathalyser test and by voluntarily undressing and changing into a gown , the staff used force against her in order to make her change her clothes and put her in a room for detainees . As she continued to be aggressive and to destroy property and could have harmed herself , she was put in restraining belts so that she could calm down .

The applicant ’s complaints were not confirmed by the witnesses . Her behaviour was reprehensible and it was necessary to put her in the sobering - up centre . It has not been established that physical force was used against her over and above what was necessary to calm her down . Hence , as there was no indication that a criminal offence had been committed the investigation has to be discontinued . ”

The applicant , represented by a lawyer , appealed to the regional prosecutor . She submitted that she had not been intoxicated and that the actions of the employees of the centre had infringed her personal rights , her dignity and her bodily integrity . She also submitted that her procedural rights had been breached in that the police had failed to inform her representative about any of the investigative measures that had been taken during the proceedings . It was also submitted that during the investigation the applicant should have had an opportunity to confront the employees of the centre .

On DATE the ORG regional prosecutor , having regard to the applicant ’s procedural arguments , quashed the contested decision of DATE . He noted that there had been significant discrepancies between the applicant ’s testimony and that given by other persons , which had to be elucidated .

On DATE the LOC district prosecutor discontinued the proceedings , finding that no criminal offence had been committed . The written grounds of the decision read :

“ In TIME of DATE [ the applicant ] called a taxi [ ... ] After the trip a disagreement as to the amount of the fare to be paid arose between her and the driver . As the parties disagreed , [ the driver ] decided to solve the problem with the assistance of the police . After he had called the dispatch centre [ of the taxi company ] , he drove to the vicinity of the sobering - up centre and waited for the police to come . They then waited for the patrol to come ; at that time the driver entered the building of the centre , while the applicant stood by the taxi and also called the police from her mobile phone .

It is noted that the driver did not commit the offence of unlawful deprivation of property against the applicant , given that at that time both parties wanted to solve the problem with the assistance of the police ; it is also noted that at that time the applicant could simply have walked away or used her phone .

After police officers PERSON and PERSON arrived at the scene , they tried to obtain a friendly resolution of the situation , but to no avail . Having regard to the vulgar and aggressive behaviour of the applicant , who smelled of alcohol , the officers decided that she should be detained in the sobering - up centre , where she refused to take a breathalyser test . Hence , the doctor on duty decided , on the basis of a general examination , that the applicant was in a state of intoxication justifying her detention for TIME .

Staff member ORG [ a woman ] subsequently tried to make the applicant change into a disposable garment .

As the applicant offered stubborn resistance , ORG requested other members of staff , PERSON and T.P. [ men ] to help her ; the applicant was dressed in a gown with their assistance and put into the room for intoxicated persons .

The applicant continued to be aggressive ; therefore physical force against her was used and she was put in restraining belts .

It transpires from the provisions governing the organisation of the sobering - up centres and job descriptions of the members of staff , the staff acted in compliance with law on the basis of the applicable legal provisions and there is therefore no basis for a well - founded suspicion that a criminal offence of unlawful deprivation of liberty or coercion had been committed .

On the basis of section CARDINAL of the PERSON on Education ... in GPE and the Fight against Alcoholism and sections CARDINAL of the ... ordinance a bill for ORG was drawn for the applicant to pay for the costs of her detention .

It should be unequivocally stated that the conduct of the staff toward the applicant was lawful .

During the investigations all persons involved in the applicant ’s arrest and detention were questioned . The ample evidence gathered in the case did not give rise to a suspicion that a criminal offence had been committed .

Subsequently , the decision reiterated the findings of the medical report ( see paragraph CARDINAL above ) . The decision further read :

In her submissions the applicant complained that the staff of the centre had breached her dignity and ... Having in mind that the injuries which the applicant suffered and the insults can be examined in proceedings instituted by a private bill of indictment , it is open to the applicant to bring such a bill within DATE from the service of the present decision .

The applicant appealed , reiterating the arguments she had submitted in her previous appeal . She also submitted that she had been humiliated by the staff of the centre as she had been forcibly undressed and tied to a bed with restraining belts until TIME of DATE . This had made it impossible for her to go to the toilet .

On DATE ORG upheld the decision to discontinue the proceedings . In its decision , which consisted of CARDINAL lines , the court observed that the evidence gathered in the case had led it to the logical conclusion that the applicant had been intoxicated and that therefore her detention in the sobering - up centre and the use of force against her had been justified .

The Law on ORG in GPE and the Fight against Alcoholism ( LOC o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi ) provides for measures which may be applied in respect of intoxicated persons . Sections DATE set out measures which may be applied to such persons .

Pursuant to section CARDINAL of the PERSON , soberingup centres are to be set up and managed by the authorities of municipalities with CARDINAL inhabitants . LAW , as applicable at the relevant time , provided , in so far as relevant :

“ CARDINAL . Intoxicated persons who behave offensively in a public place or a place of employment , are in a condition endangering their life or health , or are themselves endangering other ORG life or health , may be taken to a soberingup centre or a public health care facility , or to their place of residence .

In the absence of a sobering - up centre , such persons may be taken to a [ police station ] .

[ Intoxicated ] persons who have been taken to a sobering - up centre or a [ police station ] shall remain there until they are sober but for no longer than TIME . ... ”

The Ordinance of the Minister of ORG of DATE on the procedure for dealing with intoxicated persons , the organisation of soberingup centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in soberingup centres ( ORG i ORG Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień ) set out detailed rules relating to detention in a sobering - up centre .

Section QUANTITY of the Ordinance provided , in so far as relevant :

“ CARDINAL . A person taken to a sobering - up centre shall promptly be given a medical examination .

Following the medical examination , a doctor shall ascertain whether such person should be placed in a sobering - up centre ... , or should be placed in a hospital or other medical establishment ... , or whether there are no signs of intoxication justifying placement in a sobering - up centre . ”

Its paragraph CARDINAL ( CARDINAL ) provided :

“ A replacement garment shall be issued to all detained persons . ”

Section CARDINAL of the LAW states that direct coercion may be applied in accordance with the rules laid down in section CARDINAL of the DATE ORG , which provides in particular that direct coercion can consist of immobilisation , among other methods . Section CARDINAL of that Act further refers to the Ordinance of the Minister for ORG of DATE on the form of application of direct coercion ( w sprawie sposobu stosowania przymusu bezpośredniego ) , which determines the manner in which direct coercion may be applied . The latter ordinance provides , in so far as relevant :

“ CARDINAL ( CARDINAL ) . A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than TIME . If necessary , the doctor , after personal examination of the patient , may extend the use of immobilisation for subsequent periods of TIME .

A nurse on duty shall check the state of the immobilised or isolated person no less frequently then TIME , including when the person is asleep . The state of the person shall be recorded on the [ patient ’s ] card without delay . ”


Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is the owner of CARDINAL flats in GPE , which he had respectively let to ORG and PERSON

In a registered letter of DATE , the applicant informed the tenants that he intended to terminate the lease on expiry of the term on DATE and asked them to vacate the LOC by DATE .

In a writ served on the tenants on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenants to appear before the Rome Magistrate .

By a decision of DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , he informed the tenants that the order for possession would be enforced by a bailiff on CARDINAL DATE .

On DATE , the bailiff made CARDINAL attempt to recover possession of the flats which proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

Pursuant to Law no . CARDINAL , on DATE , the applicant addressed himself to ORG in order to be granted the assistance of the police in enforcing the order for possession .

ORG informed the applicant that priority was given to landlords urgently requiring premises as accommodation for themselves , their spouses , children or ascendants and for seeking priority treatment he should have made a statutory declaration .

On DATE , the Rome Magistrate set the date of the eviction proceedings for DATE .

Then , pursuant to Law no . CARDINAL of DATE , the enforcement proceedings were suspended until DATE ; LAW no . FAC suspended them until DATE and LAW no . MONEY suspended them until DATE .

On DATE , the applicant recovered possession of the flat which he had let to ORG

Pursuant to Law no . CARDINAL of CARDINAL DATE , LAW no . CARDINAL/CARDINAL suspended the enforcement proceedings until DATE .

On an unspecified date in DATE , it appears that the applicant has recovered possession of the flat .

The relevant domestic law and practice is described in the ORG ’s judgment in the case of ORG ( no . CARDINAL/CARDINAL , § § DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ... ) .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

NORP The applicant company is a legal entity registered under NORP law with its office in GPE .

On DATE a company PERSON . ( “ PERSON . ” ) , pledged in favour of the applicant company real estate located in the town of GPE ( “ the real estate ” ) . The pledge was notarised and provided that in the event of default by PERSON . under the main agreement the applicant company could request a notary to issue a writ of execution regarding the real estate .

On DATE , following the applicant company 's request , the notary issued a writ of execution ordering that the real estate be sold by the ORG bailiffs at public auction and the applicant company 's claims be satisfied from the funds received .

On DATE ORG of ORG ( “ the Bailiffs ” ) instituted enforcement proceedings in respect of the writ of execution .

On DATE ORG of GPE ordered that PERSON . pay CARDINAL NORP hryvnias ( ORG ) to the applicant company . The Bailiffs instituted separate enforcement proceedings in respect of that judgment .

On DATE the Bailiffs joined the enforcement proceedings in respect of the writ of execution and the judgment .

On DATE the Bailiffs , having failed to sell the real estate at public auction , transferred its ownership to a company , PERSON ( “ M. ” ) , which was one of the other creditors of PERSON . The applicant company challenged those acts of the Bailiffs .

On DATE ORG of GPE declared the applicant company 's complaint against the Bailiffs inadmissible . The court noted that the complaint had been timebarred and , in view of LAW ( “ the ORG ” ) , could not be considered by the commercial courts , since it raised the issue of the allegedly inappropriate enforcement of a notary 's writ of execution , which was outside the competence of the commercial courts .

On DATE ORG ( “ ORG of Appeal ” ) , considering the applicant company 's appeal , decided that the complaint had been lodged in time but endorsed the conclusion of the first - instance court that the commercial courts had no jurisdiction over the complaint . The applicant company appealed in cassation against that resolution .

On DATE ORG imposed an interim measure , by which it attached the real estate pending consideration of the case .

On DATE the Higher Commercial Court quashed the resolution of CARDINAL DATE as unsubstantiated and remitted the case to ORG for fresh consideration .

On DATE ORG found that the commercial courts did have jurisdiction over the applicant company 's complaint , since the enforcement proceedings in question also concerned a judgment of a commercial court ( namely , the judgment of DATE ) . It further declared the decision of ORG unlawful and obliged them to sell the real estate at public auction at a reduced price .

On DATE the ORG quashed the resolution of DATE , for the reason that the parties had not been duly informed of the hearing , and remitted the case to ORG for reconsideration .

In the meantime , under the agreements of CARDINAL and DATE and CARDINAL DATE PERSON sold the real estate to ORG , a physical person .

On DATE ORG declared the Bailiffs ' decision of CARDINAL DATE unlawful and obliged the Bailiffs to sell the real estate at public auction at a reduced price .

On DATE ORG upheld ORG of Appeal resolution of DATE .

On DATE ORG rejected the Bailiffs ' cassation appeal against the Higher Commercial Court resolution of DATE .

On DATE V. lodged with ORG a cassation appeal against the Higher Commercial Court resolution of DATE . He asked for the time - limit for his cassation appeal to be extended for the reason that he had not been aware of the proceedings before DATE . He further requested that the proceedings be terminated as the commercial courts had no jurisdiction over the case .

On DATE ORG gave PERSON leave to appeal in cassation and instituted fresh cassation proceedings .

On DATE ORG , considering ORG 's cassation appeal on the merits , found that the applicant company 's complaint referred to the allegedly improper enforcement of the notary 's writ of execution , while the commercial courts could deal with complaints concerning the enforcement of judgments , rulings , and resolutions taken exclusively by the commercial courts . It further held that at that moment the real estate was owned by a physical person . ORG therefore found that the case was outside the competence of the commercial courts , quashed the resolution of ORG of DATE , and terminated the proceedings in the case .

On an unspecified date the applicant company instituted proceedings in ORG against the Bailiffs and ORG , seeking to invalidate the Bailiffs ' decision of DATE and claiming damages .

On DATE the court found that the Bailiffs ' decision of CARDINAL DATE was unlawful . It further dismissed the applicant company 's claims for damages for failure to pay the required court fees . The applicant company did not appeal against that judgment . The Bailiffs appealed .

On DATE ORG rejected the Bailiffs ' appeal as time - barred .

On DATE ORG upheld ORG of Appeal ruling of CARDINAL DATE .

On DATE ORG upheld the Higher Commercial Court resolution of DATE .

On DATE the applicant company instituted proceedings in ORG against the Bailiffs , ORG , and ORG , seeking damages in compensation for the unlawful decision of ORG .

On DATE the court rejected the applicant company 's claim as time - barred and unsubstantiated .

On DATE ORG upheld the judgment of DATE . The applicant company failed to state whether it had appealed in cassation against the resolution of DATE .

DATE ORG provides , inter alia , that legal entities and citizens who have been registered as private entrepreneurs are entitled to apply to commercial courts , in accordance with the relevant jurisdictional rules , for protection of their rights and interests .

Under LAW ORG , third parties shall be admitted to proceedings before a judgment of the first - instance commercial court has been adopted and shall have the same procedural rights as the other parties .

Under LAW ORG the parties to a case and a prosecutor have the right to appeal in cassation to ORG against a judgment of a first - instance commercial court which has come into effect , and against a resolution of a commercial court of appeal . A cassation appeal may also be lodged by persons who have not participated in the proceedings but whose rights and obligations have been affected by the impugned court decisions .

Article CARDINAL - CARDINAL of the ORG states , inter alia , that the parties to a case and ORG have the right to appeal in cassation to ORG against a Higher Commercial Court resolution .

According to LAW resolution may be appealed in cassation to ORG within DATE of the date of its adoption . However , if the grounds for appealing in cassation arose after the expiration of this time - limit , the ORG shall be obliged to accept the cassation appeal for consideration .

Article CARDINAL of the ORG provides , inter alia , that complaints about acts or omissions of the bodies of ORG concerning the enforcement of judgments , rulings , or resolutions of the commercial courts can be lodged by the creditor , the debtor , or the prosecutor within DATE of the date of the impugned measure or after the above persons have become aware of it , or after the relevant measure should have been taken .