The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently detained in GPE , GPE . He was represented before the ORG by Mr PERSON , ORG , a non - governmental civil liberties organisation based in GPE .

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

On DATE a post office was held up by an armed robber . TIME , a man , DA , approached the police claiming that he had been forced at gunpoint by CARDINAL men to drive his car away from the area DATE . However , the police suspected that DA had been a voluntary ‘ get NORP driver for the robbery , searched his house and found letters from the applicant addressed to DA . They suspected that the applicant was the armed robber and arrested him on DATE .

On DATE the applicant was interviewed by the police . At the start of the interview the police explained the applicant ’s legal rights and gave him a caution in the following terms :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”

The transcript of the interview then has the following note :

“ [ The applicant ] states that after consulting his solicitor he has elected to make no comment to any questions . ”

The police officer leading the interview explained the caution and then commenced the interview . The applicant was questioned about the robbery and he made no comment . He was released without charge and agreed to attend an identification parade .

On DATE , at the identification parade , CARDINAL of CARDINAL witnesses picked out the applicant as the assailant . The other witnesses picked out volunteers or could not pick out anyone . The applicant was interviewed for a second time after the identification parade and again refused to comment . He was then charged with robbery and remanded in custody .

On DATE the applicant escaped from a remand hearing before ORG . As he was being taken to the cells , the applicant threw away his crutches ( he had alleged that he had sustained a leg injury in prison ) , vaulted over the dock and ran out through the GPE retiring room . He got away by smashing open a fire escape . He was re - arrested on DATE and held thereafter in Category A security conditions .

The trial of the applicant and DA was held in ORG from CARDINAL to DATE . The prosecution case was that the applicant was the armed robber and ORG was the ‘ get NORP driver .

Given the applicant ’s Category A security status , he was handcuffed for transfer to and on arrival in ORG . The trial judge rejected a prosecution application that he remain handcuffed during his trial .

The trial judge granted the prosecution application for a number of other security measures despite the applicant ’s objections . CARDINAL police officers sat in court in front of the dock in standard street uniform ( including a belt equipped with a baton , mace spray and handcuffs ) . CARDINAL prison officers were immediately behind the applicant in the dock and CARDINAL prison officer sat beside him . DA had CARDINAL security officer sitting next to him . Another security officer sat next to the door to the cells . The trial judge rejected the applicant ’s suggestion that the police officers could sit in the public gallery near to the door of the courtroom with their equipment not visible to the jury . He noted that the police officers were required to have those items on them and that it was a matter of “ health and safety ” for the officers concerned . He considered that jurors were used to seeing police officers dressed that way in public . The trial judge also rejected the defence submission that the security arrangements were out of proportion to the risk involved and created a grave prejudice for the applicant given the difference in security applicable to each of the co - accused .

The applicant then applied for the exclusion of the evidence from the police interviews . Evidence concerning the second police interview ( after the identification parade ) was excluded as the police had already decided to charge the applicant and therefore had no grounds to interview him ( Code of Practice C of the Police and Criminal Evidence Act DATE ) . However , the application to exclude evidence from the first police interview was refused .

At the end of the prosecution case , the applicant submitted that there was no case to answer on the grounds that the only evidence against him was identification evidence of poor quality . This was rejected by the trial judge in a ruling of DATE , finding that the identification evidence could not be characterised as of poor quality and that there was significant other evidence against the applicant , including the fact that the applicant was a friend of ORG , whom the prosecution had reason to believe was the ‘ get NORP driver . The trial therefore continued .

The applicant gave evidence in his defence and offered an alibi for DATE of the robbery . He stated that he had been working at the time of the robbery in a kitchen company in a different town and therefore could not have committed the robbery . When questioned by prosecution counsel ( Mr O’B ) on why he had not revealed his alibi to the police when interviewed , the applicant initially submitted that he had not mentioned it because he was not declaring his earnings for tax purposes . However , when the prosecution persisted with this line of questioning , the applicant began to explain that he had been advised by his solicitor not to answer questions during the police interview . Prosecution counsel interrupted the applicant and told him that he was not entitled to know what the applicant ’s solicitor had said to him :

“ Q : Are you saying to the jury that because you were embarrassed for a relatively small amount of tax not paid you deliberately decided not to tell the police where , in fact , you PERSON been that day ?

A : Not at all . What I ’m telling you is that it was a factor but the main factor is when a solicitor who ’s experienced in these matters came to see me --- .

Q : I do n’t want you to tell me --- .

A : --- police --- .

Q : --- because I ’m not entitled to know what your solicitor said to you so just ... I ---

A : Right .

Q : If that ’s what you ’re gon na do , please stop because I ’m not entitled to know .

A : Okay .

Q : All right Mr Coghlan but if you ’re going to say something else , do n’t let me stop you .

A : No I was gon na explain to you what you told me to ... ”

At this point , the judge intervened and requested defence counsel and the applicant to attend a voire dire in the absence of the jury in order to agree the position on whether privilege between the applicant and his solicitor would be waived if the applicant disclosed to the court the advice which his solicitor had given him . The transcript of the voire dire is reproduced below ( Mr H was defence counsel ) :

JUDGE O : ... In a sense , of course , Mr. PERSON is perfectly correct from stopping the defendant from saying what passed between his solicitor and him particularly since you were scrupulously careful not to canvass precisely the same ground .

PERSON : And , indeed , forgive me for interrupting , your honour will recall my friend Mr. PERSON who was then acting for him was called . He was only asked matters which in no way would breach privilege .

JUDGE O : Correct but , of course , the defendant is perfectly entitled to tell us what passed between him and his solicitor if he wants to .

PERSON : Yes your honour .

JUDGE O : And in that sense Mr O’B ca n’t stop him if he wants to .

PERSON Indeed .

JUDGE O : But I just want the defendant to understand that if he does want to tell us , of course , he does waive the privilege and he can then be asked further questions . I ’m sure he understands that perfectly well .

PERSON Not only that but it is conceivable that my learned friend might be entitled to ask for the recall of the solicitor .

JUDGE O : Yes .

PERSON : And he will be cross - examined about a much wider range of matters . I ’m sorry I ’m interrupting your honour .

JUDGE O : No , no I just want to be completely clear that you have explained this position to Mr GPE and he understands the position .

PERSON : Your honour I have certainly explained it . I hope he understands it . The extent to which the solicitor can be asked questions assuming privilege is waived is , I would submit , something of a grey area but perhaps we do n’t need to go that far at this stage .

JUDGE O : No that ’s quite correct , thank you .

PERSON : But I have explained the consequences to Mr Coghlan .

JUDGE O : Right .

PERSON ---should he choose to discuss what passed between him and the solicitor .

JUDGE O : Right . Right . Thank you . You understand the position Mr GPE do you ? That ... just stand up a moment . That Mr O’B can not ask you what passed between you and your solicitor .

THE DEFENDANT COGHLAN : Right sir .

JUDGE O : But you are ... if you want to tell him what passed between you and the solicitor , you are quite entitled to do so but if you start the ball rolling in that way , you can be asked questions , do you follow me ? That is why your own counsel did not ask those questions .

THE DEFENDANT COGHLAN : Right . Am I ---

JUDGE O : So the choice is entirely yours but if you start to tell us what passed between you and your solicitor and the other way round , then you remove the privilege that otherwise would attach and you can be asked further questions . Am I making myself clear ?

THE DEFENDANT COGHLAN : Right .

PERSON : Your honour I think now that that ’s been made clear to Mr. PERSON , we ’re in a position to continue .

JUDGE O : Yes .

PERSON : Would your honour think it appropriate just to say something however brief to the jury to explain why we ’ve had this short interruption in his evidence ?

JUDGE O : ( After a brief pause ) If ... I ’m quite prepared to do that but is that a good idea ?

PERSON : Your honour on reflection probably not .

JUDGE O : No , that ’s my assessment .

PERSON : Grateful .

JUDGE O : Thank you . ”

Following the voire dire , the cross - examination of the applicant by prosecution counsel resumed in open court and the applicant did not state in evidence that he had remained silent in the police interview on the advice of his solicitor . The following exchange took place as regards the reason the applicant had not mentioned his alibi during that interview :

“ PERSON : ... Now , Mr. PERSON , I was simply asking you this , you may remember just to bring us back to where we were before , that the amount of money involved so far as non payment was not great , the police were , as you would have it , falsely accusing you of being involved in an armed robbery and the question I was going to ask you is this : the fact you did n’t pay tax pales into insignificance does n’t it in relation to the serious allegation being made against you ?

A : Yes sir .

Q : Yes .

A : With CARDINAL hindsight as I ’ve said , if I ’d have know I ’d be land ... I PERSON eventually land here DATE running for me life I would n’t obviously never have gone down the road I did .

Q : But you made a conscious decision did n’t you ? You decided not to for whatever reason , you decided not to ?

A : Yes .

Q : Even though you recognised the serious position potentially you were in then ? I ’m looking back to DATE .

A : Not gon na concede that I really did recognise the potentially serious position I was in then , sir , no . As far as I was concerned there was no chance in the world that I could be picked out by somebody for being somewhere I was n’t which is why I agreed to help the police with their enquiries to be eliminated by going on the identification parade which is what I did .

Q : And is that the truth you decided not to tell about the money and the job ?

A : Yes , sir . ”

At the end of the trial , the judge directed the jury on the question of drawing adverse inferences from the applicant ’s failure to mention his alibi during the police interview . Not mentioning that the applicant had remained silent on the advice of his solicitor , the trial judge directed as follows :

“ The [ applicant ] as part of his defence has relied upon this alibi . He admits that he did n’t mention it when first ... well did n’t mention it , in fact , at all when questioned by the police . The prosecution case is that in the circumstances and having regard to the warning which had been given , if this alibi had been true , he could reasonably have been expected to mention it at the stage that he was interviewed . As he did not do so , you may , therefore , conclude , say the prosecution , that it has since been invented .

It is for you to decide whether in the circumstances the mentioning of the alibi was something which could reasonably have been expected of him at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

I ’ve made clear to you , members of the jury , failure to mention an alibi at the time can not , of course , on its own prove guilt but if you ’re sure that quite regardless of this failure , that there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true . That is to say you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .

The [ applicant ] has given an explanation for not giving this alibi at the time . He said that at first he could n’t remember and did n’t know where he had been and then later when he realised that he had been working for [ Mr. G ] , he said that naively and stupidly he did n’t want to declare the fact that he ’d been paid cash in hand , something that would put him and [ Mr. G ] in trouble with the tax authorities .

That is the [ applicant ’s ] explanation for not mentioning the alibi at this time . If you think that this amounts to a reason why you should not hold the [ applicant ’s ] failure to mention it against him , then of course , you must not do so . If , on the other hand , it does not in your judgement provide an adequate explanation , if you are sure that the real reason for his failure was that he had no innocent explanation to offer in relation to this aspect of the case , well then you may hold it against him . ”

The trial judge also noted the security arrangements in his directions to the jury , providing as follows :

“ You must consider and evaluate [ the applicant ’s ] evidence in precisely the same way as every other witness . It carries no less weight because he comes from the dock or because he is afforded the degree of security appropriate to the seriousness of this case . ” .

On DATE the applicant was convicted of robbery and was sentenced to CARDINAL years’ imprisonment .

The applicant applied for leave to appeal against conviction and an extension of time for this purpose . He appealed on the grounds , inter alia , that the security arrangements during the trial caused unnecessary prejudice to him , that the trial judge was wrong to reject the submission that there was no case to answer and that the trial judge wrongly directed the jury that they could draw adverse inferences from the applicant ’s failure to answer questions at the police interview .

On DATE a single judge of ORG refused the application for leave to appeal . He ruled that the jury would not be familiar with the degree of security commonly employed in ORG and that the trial judge had “ gone out of his way to say that ” the security arrangements “ were appropriate to the charge ” . The single judge decided that the trial judge had not erred in rejecting the submission that there was no case to answer and that “ it was plainly a matter for the jury whether the silence was adequately explained ” .

On DATE the full ORG refused the renewed application for leave to appeal . The applicant had briefed another barrister for his appeal .

As to the security arrangements at trial , ORG noted the applicant ’s prior escape from ORG and consequent Category A status . It found that the trial judge had properly exercised his discretion as regards the security measures . In particular , the court did not accept the applicant ’s suggestion that the police officers could have been placed away from the applicant but near the courtroom doors : it could not have been foreseen from where an accused would try to make his escape . The policemen wore the same uniform and equipment as a juror would see everyday on the street and policemen commonly gave evidence in court so - dressed . The number of prison officers in the dock with the applicant did not detract from the court ’s conclusion that the trial judge properly exercised his discretion . The court was “ wholly unpersuaded ” that the trial judge was wrong in any way with respect to the security measures .

ORG went on to find that there was a case for the applicant to answer at the end of the trial on the basis that there was “ significant evidence which supported the identification by PERSON ” .

ORG then dealt with the question of adverse inferences from the applicant ’s failure to mention his alibi during the police interview . The transcripts of the cross - examination of the applicant and of the voire dire were not before the court . The applicant submitted that the court asked his counsel to outline the basis for the submission that he had remained silent on the advice of his solicitor and that his counsel stated that he had been so instructed and that this was corroborated by the transcript of the police interview . The applicant was not present at court and could not therefore give evidence on this point . An application that the applicant be brought before the court to give evidence was refused . An application to adjourn to allow further evidence to be obtained was also refused . The applicant submitted that ORG did not accept that the voire dire had actually taken place . ORG considered that if the reason for his silence had been legal advice , it was “ incredible ” that he did not mention this at trial :

“ In relation to the adverse inference point taken , the judge was fully entitled to say that the jury could draw an adverse inference from the refusal by [ the applicant ] to give evidence as to alibi . Merely to say at page CARDINAL of the transcript [ of the police interview ] ... that he is going to make no comment on the advice of his solicitor , wholly fails to explain the point which [ the applicant ’s counsel ] is making TIME which he says was not CARDINAL that was taken until very recently . He takes it solely on the instructions of his client and he submits that if we think there is anything in it , we should adjourn the hearing of this application . Nothing which was said at the trial of [ the applicant ] weakens this question at all . If [ the applicant ] had given evidence about it and the judge had failed to remind the jury of it , we are confident that experienced trial counsel at the end of the summing - up would have corrected the judge . Indeed , [ the applicant ’s counsel ] more or less conceded that in his submissions before us DATE . It is far too late , in our view , for [ the applicant ’s counsel ] to come to court DATE , long after the event , and say that he is instructed that that advice was given . If it was given ( about which we have considerable doubts ) , it is far too late to go into that matter now . There is nothing further in that point . What matters is the evidence at trial . There was no evidence at trial or by [ the applicant ] that the reasons for his silence was on the advice of his solicitor . If that had been the explanation in the light of what he was saying to the jury , it is incredible that he did not give that explanation . It reinforces us in the conclusion that there is nothing is this point . ”

Section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) provides that :

“ ( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused–

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies–

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL ) of the DATE Act adds that :

“ ( CARDINAL ) A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

In NORP v. PERSON ( ( DATE ) CARDINAL Cr . App . PERSON ) , Lord PERSON highlighted several “ essentials ” relating to the application of section CARDINAL of the DATE Act including the following :

“ ... If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

This interpretation of LAW was confirmed by ORG in PERSON ORG , CARDINAL DATE ) and NORP v. PERSON and ORG DATE Cr . App . PERSON ) . In NORP v. FAC ( ( DATE ) Crim . L.Rep . CARDINAL ) ORG elaborated on the factors relevant to whether an accused could reasonably have been expected to mention a fact later relied on at trial during his police interview :

“ ... this depend[s ] on all the circumstances relevant in relation to [ the accused person ] at the time he was questioned , that is taking into account , among other things , his age , personality , experience , knowledge of the law , previous experience of police stations , the legal advice he was given and the reasons for that advice ... ” .

In NORP v. FAC ( cited above ) ORG stressed that the defendant has the right not only to reveal to the jury the fact that he remained silent on legal advice , but also to adduce evidence before the jury ( by way of oral evidence from the defendant himself and/or from the solicitor who gave the advice ) about the contents of the advice , namely , the reason why the defendant had been so advised . This approach was confirmed in the later cases of NORP v. PERSON ( ( DATE ) CARDINAL Cr . App . Rep . CARDINAL ) , NORP v. PERSON ( ( DATE ) CARDINAL WLR CARDINAL ) , and PERSON judgment of DATE , unreported ) .

The general position in LANGUAGE law is that legal professional privilege attaches to confidential communications between a lawyer and his client in connection with the giving of legal advice to the client and in connection with legal proceedings . If communications are privileged , the defendant in a criminal trial and his lawyer may refuse to produce documentary evidence or give oral testimony on the ground that the information sought is privileged . This privilege can be expressly or impliedly waived by the defendant . Where a defendant ventures into an area of privilege , the trial judge frequently informs the defendant of his rights .

In NORP v. ORG and ORG ( ( DATE ) CARDINAL Cr . App . PERSON ) , ORG decided that a defendant ’s bare assertion that he remained silent during a police interview because he was following his solicitor ’s advice did not amount to a waiver of privilege . However , if a defendant were to state the basis or reason for that advice , privilege may be waived . This approach was confirmed in NORP v. PERSON ( ( DATE ) CARDINAL Cr . App . R. CARDINAL ) . ORG considered that if a suspect stated during the police interview that he refused to answer questions due to legal advice , evidence of that factual statement could be given at trial without waiving privilege . However , privilege is waived if the defendant , at trial , seeks to rely upon the reasons given in interview by his solicitor for his advice to remain silent .

In NORP v. PERSON ( ( DATE ) EWCA Crim.CARDINAL ) , ORG applied the foregoing case - law to the facts of the case before them and considered that :

“ ... It is plain from ( PERSON ) and earlier authority that the defendant ’s evidence merely that he had been advised to say ‘ no comment’ will not waive his privilege in the substance of communications between himself and his solicitor . Moreover it seems to be established ( ORG ) that a defendant may seek to rebut an allegation of recent invention by calling his solicitor to testify that his account at trial had been earlier given without losing the veil of privilege .

On a proper consideration of PERSON and the other authorities there considered it seems to us that the trial judge in this case was wrong to rule that the appellant had waived his privilege . In substance the appellant had said no more than that his solicitor had advised him to make no comment . Asked by the judge whether he wanted to say what passed between him and his solicitor , he answered affirmatively – as if there were more to come ; but all he had to say about it was to repeat , ‘ she advised me to say no comment’ . This was no waiver of privilege . ”

In NORP v. ORG ( ( DATE ) Cr . App . PERSON ) ORG confirmed that legal advice was one of the circumstances to be taken into account by the jury in assessing whether to draw adverse inferences from an accused ’s silence . CARDINAL conditions had to be met before section CARDINAL could allow such inferences to be drawn . Lord PERSON explained the sixth condition as follows :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ‘ in the LOC restrictively : matters such as the time of day , the defendant ’s age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

In NORP v. ORG and ORG ( cited above ) ORG considered that the mere statement that an accused had remained silent due to legal advice would not be sufficient to prevent adverse inferences from being drawn :

“ But ... the bare assertion is unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defence . So it will be necessary , if the accused wishes to invite the court not to draw an adverse inference , to go further and state the basis or reason for the advice ... ”

However , in NORP v. PERSON and PERSON ( cited above ) ORG stated that if it was plausible that the reason for an accused ’s silence was that he / she acted on legal advice , no adverse inference could be drawn under LAW of LAW . According to Lord Justice PERSON :

“ In the passage that we quoted ... the judge made repeated references to valid reasons and adequate explanations [ for the accused ’s silence ] . These and the whole of this passage would seem to be inviting consideration by the jury of the quality of the decision not to answer questions made by each appellant . In the light of the judgment in ORG v. GPE , it is not the quality of the decision but the genuineness of the decision that matters . If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no satisfactory answer to give then no inference can be drawn .

That conclusion does not give licence to a guilty person to shield behind the advice of his solicitor . The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts . A person , who is anxious not to answer questions because he has no or no adequate explanation to offer , gains no protection from his lawyer ’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts .

In the instant case , we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely as a result of the advice , however adequate or inadequate that explanation might be , and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation . ”

The ORG specimen direction was duly amended to reflect the judgment of ORG in ORG see paragraph CARDINAL of the DATE specimen direction reproduced below ) .

ORG recently returned to this issue in ORG v. the Queen ( ( DATE ) PERSON . CARDINAL ) :

“ ... the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him , is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial . And it may encourage solicitors to advise silence for other than good objective reasons . We do not consider , pace the reasoning in ORG , that once it is shown that the advice ( of whatever quality ) has genuinely been relied on as the reason for the suspect ’s remaining silent , adverse comment is thereby disallowed . The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question . We do not believe that is so . What is reasonable depends on all the circumstances ... The kind of circumstance which may most likely justify silence will be such matters as the suspect ’s condition ( ill - health , in particular mental disability ; confusion ; intoxication ; shock , and so forth ... ) or his inability , genuinely to recollect events without reference to documents which are not to hand , or communication with other persons who may be able to assist his recollection . There must always be soundly based objective reasons for silence , sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police . Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind .

We should say that we consider this approach to be perfectly consistent with ORG on a proper reading of the GPE judgment . The holding in that case referred to the applicants remaining silent for good reason on the advice of their solicitor ... ”

The different approaches in the cases of ORG have both been followed in subsequent cases by ORG , producing CARDINAL lines of case - law on the matter .

The Police and Criminal Evidence Act sets down the requirements which must be met in order for an individual to be arrested and questioned in connection with a criminal offence . Section PERSON ) provides as follows :

“ Where an arrestable offence has been committed , any person may arrest without a warrant-

anyone who is guilty of the offence ;

anyone whom he has reasonable grounds for suspecting to be guilty of it . ”

With respect to reliance on identification evidence at trial ( not confined to cases where adverse inferences may be drawn ) , the case of NORP v. PERSON ( ( DATE ) PERSON ) provided , as relevant , that :

“ When , in the judgment of the trial judge , the quality of the identifying evidence is poor as , for example , when it depends solely on a fleeting glance or on a longer observation made in difficult conditions ... the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification ... ” .

In NORP v. PERSON ( cited above ) , Lord PERSON highlighted the fact that there must be a case for the defendant to answer before any adverse inferences can be drawn under LAW of the CARDINAL Act :

“ ... Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer before drawing an adverse inference from the defendant ’s silence . ”

The specimen direction at the time of the applicant ’s trial reflected this by providing that there must be a case for the defendant to meet ( see paragraph CARDINAL reproduced below ) .

In NORP v. PERSON ( ( DATE ) Crim . PERSON ) , ORG ( per Lord Justice Auld ) interpreted the requirement established by PERSON in the following terms :

“ ... What is plain is that it is not for the jury to repeat the threshold test of the judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of s.CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”

Specimen directions of the ORG offer guidance as to the directions which the trial judge should give a jury about the drawing of adverse inferences from a defendant ’s silence . The specimen directions are revised from time to time in accordance with developments in the case - law .

At the time of the applicant ’s trial , the relevant specimen direction , formulated in light of the judgments of ORG in NORP v. PERSON , NORP v. ORG , and NORP v. ORG and ORG ( cited above ) , read as follows :

“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .

The defendant as part of his defence has relied upon ... ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .

The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .

If you are sure that he did fail to mention ... when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

Failure to mention ... can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is ... If you think this amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”

The specimen direction was revised in DATE as a result of further developments in the case - law including the case of NORP v. PERSON and PERSON ( cited above ) in which ORG confirmed that a jury could only draw an adverse inference from a suspect ’s silence if satisfied that the defendant had no answer or none that would stand up to questioning or investigation . The revised specimen direction read as follows :

“ CARDINAL . NORP Before his interview(s ) the defendant was cautioned .... He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .

As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies – ... But [ the prosecution say / he admits that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ... from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution ’s PERSON refer to any other reasonable inferences contended for – ... ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ... ; but you may take it into account as some additional support for the prosecution ’s case ... and when deciding whether his [ evidence / case ] about these facts is true .

You may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third , that apart from his failure to mention those facts , the prosecution ’s case against him is so strong that it clearly calls for an answer by him ...

( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant ’s silence , on the basis of the following evidence ( here set out the evidence DATE ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so .

NORP ( Where legal advice to remain silent is relied upon , add the following instead of paragraph CARDINAL : ) The defendant has given evidence that he did not answer questions on the advice of his solicitor / legal representative . If you accept the evidence that he was so advised , this is obviously an important consideration : but it does not automatically prevent you from drawing any conclusion from his silence . Bear in mind that a person given legal advice has the choice whether to accept or reject it ; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence . Take into account also ( here set out the circumstances relevant to the particular case , which may include the age of the defendant , the nature of and/or reasons for the advice given , and the complexity or otherwise of the facts on which he relied at the trial ) . Having done so , decide whether the defendant could reasonably have been expected to mention the facts on which he now relies . If , for example , you considered that he had or may have had an answer to give , but reasonably relied on the legal advice to remain silent , you should not draw any conclusion against him . But if , for example , you were sure that the defendant had no answer , and merely latched onto the legal advice as a convenient shield behind which to hide , you would be entitled to draw a conclusion against him , subject to the direction I have given you ... ”


CASE OF MARIA VIOLETA LAZARESCU v. ROMANIA

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

In DATE the ORG seized under Decree no . CARDINAL/CARDINAL on nationalisation the building situated in GPE , ORG no . CARDINAL , property of the applicant 's ancestor .

On DATE company ORG , a ORG - owned company responsible for the management of property belonging to the ORG , sold a QUANTITY . m. flat of the building and the appurtenant land to the tenants , V.D and ORG , under PERSON no . LANGUAGE .

On DATE , the applicant sought annulment of the contract before ORG requesting the court to declare the nationalisation of her property unlawful and to order its return to her .

On DATE , ORG , in the operative part of a final decision , dismissed as groundless an appeal on points of law by the applicant . In the reasoning of the judgment the court considered that although the seizure was null and void the bona fide principle should apply to the tenants who bought the flat from the ORG , who at that time was its legal owner .

On an unknown date the applicant lodged an application with the administrative authorities for restitution in kind of the property under PERSON no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG . Since she had not received any answer , she brought court proceedings against the Mayor of GPE seeking to have him ordered to issue a reasoned decision upon her request . She also claimed a DATE pecuniary penalty until execution .

On DATE ORG upheld in part her action and ordered the Mayor to issue a reasoned decision regarding the restitution of the building located in GPE , ORG no . CARDINAL as the applicant requested . On CARDINAL DATE ORG dismissed the Mayor appeal . There is no evidence in the file as to the course of the proceedings .

The relevant legal provisions and jurisprudence are set forth in the judgments ORG v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINAL ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINAL-VII ) ; GPE v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINAL-XII ( extracts ) ) ; and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

Measures in order to urge the award of compensation through the NORP company have recently been adopted by the national authorities , especially in accordance with the Emergency Ordinance no . CARDINAL .


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

A list of the applicants is set out in the Appendix . Additionally , the case and decision numbers of the impugned proceedings appear in the Appendix .

On various dates , the applicants initiated actions before various civil courts or civil proceedings were brought against them before the civil courts . The procedures are still pending before the domestic courts .

A description of the relevant domestic law may be found in Müdür PERSON and Others ( ( dec . ) , no CARDINAL/CARDINAL , § § DATE , DATE ) .


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

The applicant was a refugee from GPE who fled to GPE in DATE . In accordance with a number of governmental decisions , the applicant – together with other refugees DATE was placed in a flat in a building previously owned by ORG and used as the ORG ’s graduate school .

On an unspecified date , the applicant instituted proceedings against ORG ( PERSON քաղաքապետարան ) seeking to obtain title to the above flat . She claimed that the flat was ownerless and that she had bona fide , manifestly and continuously been in possession of the flat for DATE , which entitled her to acquire ownership of it in accordance with LAW . ORG for ORG ( ՀՀ կառավարությանն առընթեր պետական գույքի կառավարման վարչություն ) was also joined as a defendant .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) granted the applicant ’s claim . No appeal was lodged , so this judgment became final and enforceable on CARDINAL May CARDINAL .

On DATE the applicant ’s title was formally registered and the relevant ownership certificate was provided to her .

On an unspecified date , the Deputy General Prosecutor ( ՀՀ գլխավոր դատախազի տեղակալ ) lodged a cassation appeal on points of law against this judgment with ORG ( ՀՀ վճռաբեկ դատարան ) , in accordance with LAW .

On DATE ORG granted the appeal and quashed the judgment of DATE . ORG found that the flat in question , in accordance with the decision of ORG of GPE of DATE and ORG , was in ORG ownership and , therefore , the applicant was not entitled to acquire ownership under LAW . The case was remitted to ORG ( ORG քաղաքացիական գործերով վերաքննիչ դատարան ) for a new examination .

On DATE ORG examined the applicant ’s claim anew . The applicant and the CARDINAL defendants , namely ORG and ORG for ORG , made their submissions . Having heard the parties , ORG decided to dismiss the applicant ’s claim on the ground that she had failed to provide evidence of bona fide , manifest and continuous possession of the flat in question .

The applicant lodged a cassation appeal on points of law and procedure .

On DATE ORG dismissed the applicant ’s cassation appeal on the ground that the flat in question was in ORG ownership and was in the possession of the applicant not as her own property but as a temporary place of residence .

According to LAW , public authorities are entitled to institute court proceedings seeking to defend the pecuniary interests of the ORG . The public authority which has instituted proceedings enjoys all the rights of a plaintiff and bears his responsibilities . If the relevant public authority does not institute proceedings , the proceedings seeking to defend the pecuniary interests of the ORG shall be instituted by the public prosecutor in accordance with the PERSON on ORG .

According to LAW , judgments of first instance courts enter into force DATE after their delivery . According to LAW , appeals against judgments of first instance courts which have not entered into force can be brought by the parties and persons who were not parties to the proceedings but whose rights and obligations were affected by the judgment . According to ORG CARDINAL and CARDINAL , such appeals can be brought within DATE after the delivery of the judgment of the first instance court and are examined by ORG .

According to LAW , judgments of ORG enter into force DATE after their delivery . According to LAW , appeals against judgments of ORG which have not entered into force can be brought by the parties and persons who were not parties to the proceedings but whose rights and obligations were affected by the judgment .

According to LAW , judgments of first instance courts and ORG which have entered into force can be reviewed through cassation proceedings . According to LAW , appeals against judgments of first instance courts and ORG which have entered into force may be brought by ( CARDINAL ) ORG of GPE and his deputies in cases prescribed by LAW and in accordance with the PERSON on ORG ; and ( CARDINAL ) advocates holding a special licence and registered with ORG .

According to Article CARDINAL , cassation appeals shall be examined by ORG of ORG .

According to LAW , a cassation appeal can be lodged on ( CARDINAL ) points of law or a procedural violation of the parties’ rights ; or ( CARDINAL ) on the ground of newly discovered circumstances . A cassation appeal on the ground envisaged by the first paragraph of this Article can be lodged within DATE from the date of entry into force of the judgment .

According to Articles CARDINAL and CARDINAL , ORG shall review the judgments on the basis of the grounds presented in the appeal . The ORG can either dismiss the appeal , or otherwise quash the whole or part of the judgment and remit the case for a new examination by ORG .

According to Articles CARDINAL and CARDINAL , ORG shall adopt a decision . ORG is not entitled to establish or consider as proven circumstances which have not been established by the contested judgment or have been rejected by it , to determine whether or not this or that piece of evidence is trustworthy , to resolve the issue of CARDINAL piece of evidence having more weight than another or the issue of which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case .

According to LAW , the decision of ORG enters into force from the moment of its delivery and is not subject to appeal . According to LAW , a copy of this decision shall be sent to the appellant , to the parties and to the relevant court within DATE from its adoption .

According to LAW , where a violation of pecuniary interests of the ORG has been disclosed , the public prosecutor or , upon his instruction , the relevant public authority or public official shall institute court proceedings .

According to LAW , ORG can lodge appeals against court judgments and decisions according to the relevant rules of criminal and civil procedure . Such appeals can be also lodged by the subordinate prosecutors within the limits of their competence . The public prosecutor is entitled to ask the court for the case file of any case in which a final judgment or a decision has been taken . The public prosecutor , if he considers the court judgment or decision to be unlawful or unsubstantiated , shall lodge an appeal with the superior court .

According to LAW , a property is considered ownerless if it has no owner or its owner is unknown or has renounced his ownership in respect of that property . Ownership of an ownerless immovable property can be obtained by virtue of adverse possession ( LAW .

According to LAW , a citizen or a legal person , who is not the owner of an immovable property but has bona fide , manifestly and continuously possessed it as his own property for a period of DATE , shall obtain ownership in respect of that property ( adverse possession ) .


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON , a lawyer practising in GPE .

The applicant ’s aunt did not have any direct heirs and on DATE she made a will in the applicant ’s favour . The witnesses had signed the will on DATE . The aunt died on DATE . On DATE and DATE respectively , CARDINAL of her heirs contested the will , requesting that the will be annulled or declared invalid . They claimed that the will had not been drafted in proper form as the testator and the witnesses had not signed the will concurrently . Moreover , the testator had no longer been capable of making a will as she had been DATE and suffered from dementia at the time of the drafting of the will .

On DATE ORG ( käräjäoikeus , tingsrätten ) rejected the action unanimously . It found that the will had been done in proper form . Moreover , on the basis of a medical certificate attesting the testator ’s state of mental health , it also found that the testator had been capable of making the will . The will was thus valid .

On an unspecified date the CARDINAL heirs appealed to ORG ( hovioikeus , hovrätten ) , reiterating the grounds already presented before ORG .

On DATE ORG , after a DATE CARDINAL vote , declared the will invalid . It found that the will had been done in proper form but , at the time of the drafting of the will , the testator had no longer been able to understand the consequences of her actions . The will was thus invalid . According to the dissenting judge , the fact that the testator may have had a diminished ability to understand economic issues in general was not relevant as she had clearly indicated her intention to draft a will in favour of the applicant .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

On DATE the applicant obtained a new medical certificate about the testator ’s mental abilities from another medical doctor . On an unspecified date she lodged an application for the reopening of the case ( tuomion purku , återbrytande ) with ORG .

On DATE ORG refused her request . It found that the applicant had not shown on a balance of probabilities that she could not have presented that document already during the ordinary proceedings and that she had not shown any valid reason for not having obtained this evidence already during the ordinary proceedings . The case could thus not be reopened .

According to LAW , section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken , Act no . CARDINAL/CARDINAL , as amended by Act no . CARDINAL/CARDINAL ) :

“ A final judgment in a civil case may be reversed :

( CARDINAL ) if a member or official of the court or a representative or counsel of a party has , in connection with the case , been guilty of criminal conduct that may be assumed to have influenced the result of the case ;

( CARDINAL ) if a document that has been used as evidence was false or its contents did not accord with the truth and the person who presented the document was aware of the same , or if a party heard under affirmation or a witness or expert witness has deliberately given a false statement and it may be assumed that the document or the statement has influenced the result ;

( CARDINAL ) if reference is made to a circumstance or piece of evidence that has not been presented earlier , and its presentation would probably have led to a different result ; or

( CARDINAL ) if the judgment is manifestly based on a misapplication of the law .

A judgment shall not be reversed on the grounds referred to in subsection ( CARDINAL ) , unless the party can establish a probability that he or she could not have referred to the fact or piece of evidence in the court that passed the judgment or on appeal , or that he or she has had another justified reason not to do so . ”

A request for the reversal of a judgment in a civil case shall be made within DATE of the date on which the requester became aware of the circumstance upon which the request is based . A request for the reversal of a final judgment shall be filed with ORG .


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

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

Since DATE the applicant had been registered as an unemployed person . ORG ( PERSON työttömyyskassa , PERSON arbetslöshetskassa , “ the Fund ” ) granted him an unemployment allowance by CARDINAL decisions issued in DATE , DATE and DATE .

On DATE , a representative of the Fund informed the police that it intended to report an offence by the applicant for allegedly having obtained unemployment allowances by fraud .

On DATE , the ORG filed a criminal complaint . The applicant was interrogated by the police for the first time on DATE .

On DATE , the ORG , using an extraordinary procedure , requested ORG ( vakuutusoikeus , försäkringsdomstolen ) to annul the ORG ’s decisions in DATE , DATE and DATE to pay an unemployment allowance to the applicant . It referred to a statement of ORG of DATE , according to which the applicant had been self - employed since DATE .

On DATE , having received the applicant ’s observations , ORG annulled the ORG ’s decisions and sent the case back to it for fresh consideration . CARDINAL of the judges deciding on the case was M.T. The Insurance Court ’s legal officer ( referendaire ) noted in his / her memorandum that “ Furthermore , the Fund reported an offence by [ the applicant ] , which led to a police investigation . Apparently no charges have been lodged yet . ”

On DATE and DATE , the ORG issued CARDINAL decisions , by which it considered , inter alia , that it had paid the applicant unwarranted unemployment allowances and training allowances during various periods DATE and ordered him to repay them , in a total amount of MONEY ( ORG , MONEY ( ORG ) ) .

On DATE , the applicant appealed to ORG ( työttömyysturvalautakunta , arbetslöshetsnämnden ) . Having obtained observations from the parties , ORG upheld the ORG ’s decisions on DATE as far as they concerned unemployment allowances paid DATE .

On DATE , the applicant appealed to ORG . He denied having had any business activity during DATE he received unemployment allowances . He also requested an oral hearing . On DATE ORG asked the applicant whether he wished to maintain his request for an oral hearing , and if so , to name his witnesses . It further informed the applicant that the provisions of the LAW on Cost - free Trial ( laki maksuttomasta oikeudenkäynnistä , lag om DATE rättegång ) would not apply to the proceedings . According to the applicant , he subsequently informed the court that he would not request an oral hearing as he could not afford the costs .

On DATE , the applicant requested the court to speed up the proceedings .

On DATE , ORG upheld the decision save for repayment of unemployment allowance which he had received before DATE to which a common period of limitation of DATE applied . Judge PERSON sat on the bench . The decision was final in that the applicant did not have a right to appeal against it under the domestic law .

Subsequently , on DATE , the applicant , using an extraordinary procedure , requested ORG ( korkein oikeus , högsta domstolen ) to annul ORG decision for procedural error , alleging that PERSON was biased as he had decided on the case both in DATE and in DATE . He further alleged that he had been denied a right to an oral hearing as he could not obtain legal aid .

Having issued interim measures , ORG rejected most of the applicant ’s requests on DATE . It however examined his application about the alleged bias of PERSON , finding no grounds to believe that PERSON had been partial in deciding the applicant ’s case twice . It reasoned , inter alia , that the legal nature of the CARDINAL cases was different and found that PERSON did not have any preconceived ideas that would have cast doubt on his impartiality when the second decision was taken .


CASE OF BRANKO TOMAŠIĆ AND OTHERS v. CROATIA

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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

The applicants were born in DATE , DATE , DATE respectively and live in GPE . The first and second applicants are husband and wife and the third to fifth applicants are their children .

During DATE LANGUAGE , the first and second ORG daughter and CARDINAL ORG sister , entered into a relationship with a certain PERSON They started living together with the applicants in their home . On DATE they had a child , V.T. Soon afterwards ORG had a series of disputes with the members of the household and often expressed verbal threats against M.T. , which resulted in him moving out of the house in DATE . On DATE the Čakovec Social Welfare Centre ( NORP za socijalnu skrb DATE hereinafter “ the FAC ” ) filed a report with ORG FAC uprava međimurska ) stating , inter alia , that on DATE PERSON had come to the LOC and claimed that he had a bomb and would “ throw it at his former wife [ meaning PERSON ] and child ” .

On DATE M.T. lodged a criminal complaint with the GPE Attorney ’s ORG against FAC She alleged that on a number of occasions since DATE PERSON had come to her GPE house where she also lived with her daughter and had threatened to kill her and their daughter with a bomb unless she agreed to come back to him . He had also often made telephone calls and sent SMS messages to her by mobile phone repeating the same threats .

On DATE M.M. was detained following the instigation of the criminal proceedings against him in FAC ( PERSON ) on DATE . A psychiatric opinion obtained during the proceedings stated that on DATE PERSON had claimed before the employees of ORG that he had a bomb and that his threats had been meant seriously . He had repeated the same claim on DATE before police officers from ORG . The relevant parts of the conclusions of the report read as follows :

“ CARDINAL . Defendant PERSON is a person suffering from a profound personality disorder etiologically linked to innate malfunctioning of the brain and the highly unfavourable pedagogical circumstances of his childhood . PERSON : mixed personality disorder ...

In the context of the said personality disorder the defendant ’s reaction to a problematic situation was an inadequate and pathological defence mechanism with inflated ideas and related activities . These inflated ideas do not amount to a mental illness .

I have not found elements of either permanent or temporary innate mental illness , diminished intellectual capacity or epilepsy which might be linked to the criminal offences with which the defendant is charged .

He is not addicted to alcohol , drugs or other substances ...

In view of what has been said DATE , CARDINAL DATE and in view of all the other information collected so far in connection with the criminal offences , I consider that his ability to wilfully control and understand the meaning and consequences of his act tempore criminis was diminished , but that [ he was not ] completely unaccountable .

There is a strong likelihood that he will repeat the same or similar criminal offences . In order to prevent this , I recommend that the court , apart from the other measures , order compulsory psychiatric treatment with a predominantly psychotherapeutic approach with the aim of developing an ability to resolve difficult situations in life in a more constructive manner . ”

On DATE ORG found PERSON guilty of threatening PERSON on several occasions during the period DATE and DATE both in front of her family house and at the parking lot near the city graveyard when PERSON had been alone . He had shouted threats that he would kill her , himself and their child with a bomb ; at FAC on DATE he had said that his threats had been meant seriously , that he actually had a bomb and that he would kill himself and the child with the bomb on the child ’s first birthday on DATE . He was sentenced to CARDINAL months’ imprisonment and a security measure of compulsory psychiatric treatment was ordered during his imprisonment and afterwards as necessary . In ordering the defendant ’s compulsory psychiatric treatment the court relied entirely on the findings of the psychiatric report . The relevant part of the judgment read as follows :

“ ... throughout the whole period in question the defendant had been telling the victim that he would throw a bomb at himself and their child as well as her [ the victim ] if she happened to be around . These events came to a head on DATE . The defendant did not refrain from mentioning a bomb either in front of ORG employees or a policeman . Furthermore , he said in front of the policemen that he would blow himself and the child up with a bomb on the child ’s first birthday . Therefore , there is no doubt that both the victim and the witnesses understood these threats as being meant seriously ... Thus , the victim ’s fears for her own as well as her child ’s safety were justified ...

... all conditions for ordering a security measure [ of compulsory psychiatric treatment ] have been fulfilled since the defendant committed a crime while his capacity for understanding was diminished and it is likely that he will repeat the same or similar offence . It is necessary to order compulsory psychiatric treatment during his prison term and after his release . The treatment shall take a predominantly psychotherapeutic approach , as recommended by the expert , in order to develop [ the defendant ’s ] ability to address difficult situations in life in a more constructive manner . ”

On DATE the Čakovec County Court ( Županijski sud u PERSON ) reduced the security measure to the duration of ORG prison sentence and upheld the remaining part of the judgment . The relevant part of the judgment reads as follows :

“ ... there is no doubt that frequent murder threats by ... a bomb should by any objective test have been understood as meant seriously and that [ such threats ] would cause a real sense of disquiet , fear and anxiety in an average person , in particular in a situation where the victim has known the perpetrator as an aggressive person out of control , as is the case with the victim in the present case .

There is also no doubt that ... the defendant ’s threats extended throughout DATE during which the victim feared , owing to continued threats , not only for her own safety but also for the safety and wellbeing of her child which was not even a DATE old at the time . The victim was thus undoubtedly put in a difficult and unenviable position where she feared DATE for her and her daughter ’s life , which was confirmed not only in her testimony but also the fact that she sought assistance from the competent authorities [ such as ] the police , ORG and the ORG Attorney .

While examining ... the impugned judgment under LAW paragraph CARDINAL(CARDINAL ) of LAW this appellate court has established that the first - instance court violated the statutory provisions to the detriment of the defendant when it ordered that a security measure of compulsory psychiatric treatment should continue after the defendant ’s release [ from prison ] , which is contrary to LAW according to which compulsory psychiatric treatment may last as long as the reasons for its application exist but no longer than the prison term .

... this court does not agree with the defendant ’s argument that in his case the purpose of punishment would be achieved by a suspended sentence , especially in view of the fact that the defendant ... did not show any self - criticism as regards his acts or any feelings of remorse for what he had said ... ”

M.M. served his sentence in FAC and was released on DATE . On DATE he shot PERSON , her daughter PERSON and himself . Before the shooting he was spotted by M.T. ’s neighbour carrying an automatic gun and leaving his bicycle in the adjacent woods . The neighbour immediately called the police . The police arrived at TIME , just after the tragic event .

On DATE the police interviewed PERSON ’s neighbour PERSON who had seen PERSON approaching PERSON ’s house immediately before the critical event . At the request of the police , on DATE an investigating judge of ORG issued a search warrant of a flat and a vehicle belonging to a certain PERSON who was suspected of having procured weapons for M.M. The warrant was executed DATE , but no connection was established between ORG and the weapons used by LOC .. The investigating judge has not taken any further steps in that case .

On DATE the police submitted a report to the GPE State Attorney ’s Office detailing the circumstances of the tragic event .

On DATE the State Attorney ’s ORG dismissed a criminal complaint against FAC for murdering PERSON and GPE on the ground that he was dead . It is unclear who lodged that complaint , but a copy of this decision was sent to the applicants . In a letter of DATE the State Attorney ’s ORG asked ORG to collect all information concerning psychiatric treatment of ORG . The relevant part of a report drawn up on DATE by the PERSON prison authorities reads as follows :

“ PERSON had been kept in detention on remand in FAC from DATE to CARDINAL DATE when he was sent to serve his prison term ... which expired on DATE .

A psychiatric examination of FAC carried out during his stay in detention showed that he suffered from a mixed personality disorder which derived from innate malfunctioning of the brain and the unfavourable pedagogical circumstances of his childhood . In the same opinion the expert psychiatrist recommended that compulsory psychiatric treatment be ordered with a predominantly psychotherapeutic approach with the aim [ that FAC ] develop an ability to resolve difficult situations in life in a more constructive manner .

While ORG served his prison term , intensive treatment consisting in frequent individual conversational sessions was envisaged , in accordance with the individual programme of serving a prison term . He rarely came for the sessions of his own accord and was therefore , in [ order to satisfy ] the need for treatment , requested to do so by the staff . ...

While in prison M.M. saw the prison doctor on CARDINAL occasions , sometimes of his own accord , sometimes at the doctor ’s call . He did not insist on his psychiatric therapy and therefore his treatment was based , as recommended by the expert , on intensive psychotherapeutic treatment by the staff , the prison governor and the others who talked to him . He was a highly introverted person , so his true personality could not be detected in detention or prison conditions . ”

On DATE ORG interviewed the PERSON prison governor , PERSON The relevant part of a report on the interview drawn up on DATE reads as follows :

“ The above - mentioned is the governor of ORG and he states that the late GPE served his prison term in FAC from DATE to DATE ...

While in prison GPE underwent psychiatric treatment pursuant to the expert opinion and recommendation . The treatment was based on intensive psychotherapeutic treatment of ORG consisting of conversational sessions between PERSON and the prison staff , himself [ meaning the governor ] and the prison doctor . During the treatment PERSON neither received nor asked for any pharmacotherapy . It was also established that FAC was a very introverted person who did not wish to cooperate in the treatment .

During his stay in the prison FAC saw the prison doctor on CARDINAL occasions in connection with some other problems , that is to say , illnesses .

He further maintains that there are no internal regulations on the implementation of security measures and that all treatment is carried out in accordance with ORG . ”

According to the Government , since no oversights on the part of the persons in charge of the execution of the ORG ’s prison term and security measure had been established , the investigation was concluded , although no formal decision to that effect has been adopted .

M.M. ’s medical record from prison , submitted by the Government , does not indicate any psychiatric or psychotherapeutic treatment .

On DATE the applicants submitted a proposal to the ORG Attorney for a settlement of their claim for non - pecuniary damages related to the deaths of GPE and PERSON They alleged failures by the competent authorities to take adequate steps to protect the lives of M.T. and GPE and inadequacy of the investigation into the circumstances of their deaths . They sought CARDINAL NORP kunas ( HRK ) in compensation and HRK CARDINAL,CARDINAL for costs . They received no reply . Under section ORG ) of LAW , where such a request has been refused or no decision has been taken within DATE of its submission the person concerned may file an action with the competent court . The applicants have not brought a civil action .

DATE ( Ustav Republike Hrvatske , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE and PERSON ) reads as follows :

“ Every human being has the right to life .

The relevant part of LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads as follows :

“ Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ... ”

“ ( CARDINAL ) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the LAW ... ”

The relevant part of LAW ( Kaznenei zakon PERSON , ORG nos . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) reads as follows :

“ The security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who , at the time of committing a criminal offence , suffered from significantly diminished responsibility [ and ] where there is a risk that the factors giving rise to the state [ of diminished responsibility ] might incite the future commission of a further criminal offence .

The security measure of compulsory psychiatric treatment may be imposed , under the conditions set out in paragraph CARDINAL of this Article , during the execution of a prison sentence , in lieu of a prison sentence or together with a suspended sentence .

Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist , but [ it shall not ] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed DATE .

NORP The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) read as follows :

“ In order to ... decide whether to request an investigation ... the ORG Attorney shall order the police to collect the necessary information and take other measures concerning the crime [ at issue ] with a view to identifying the perpetrator ... ”

“ Where there is a suspicion that a criminal offence liable to public prosecution has been committed , the police shall take the necessary measures with a view to indentifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings ... ”

“ ( CARDINAL ) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence .

( CARDINAL ) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ... ”

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG no . CARDINAL/CARDINAL ) read as follows :

“ ( CARDINAL ) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by LAW .

( CARDINAL ) The right to respect for one ’s personal integrity within the meaning of this LAW includes the right to life , physical and mental health , good reputation and honour , the right to be respected , the right to respect for one ’s name and privacy of personal and family life , freedom et alia .

“ ( CARDINAL ) Where a court finds it justifiable , on account of the seriousness of an infringement of the right to respect for one ’s personal integrity and the circumstances of a particular case , it shall award non - pecuniary damages , irrespective of compensation for pecuniary damage or where no such damage exists .

“ ( CARDINAL ) In the case of death or particularly serious invalidity of a person the right to non - pecuniary damages shall vest in his or her close family members ( spouse , children and parents ) .

( CARDINAL ) Such damages may be awarded to the siblings , grandparents , grandchildren and a common - law spouse where these persons and the deceased permanently shared the same household .

Section CARDINAL of LAW ( Zakon o ustrojstvu državne uprave , ORG nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL and PERSON ) reads as follows :

“ GPE shall compensate damage caused to a citizen , legal entity or other party by unlawful or wrongful conduct of a State administration body , a body of local self - government and administration ... ”

NORP The relevant part of section CARDINAL(a ) of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL reads as follows :

“ A person intending to bring a civil suit against GPE shall beforehand submit a request for a settlement with the competent ORG Attorney ’s office .

Where the request has been refused or no decision has been taken within DATE of its submission , the person concerned may file an action with the competent court .

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) read as follows :

“ The main purpose of a prison term , apart from humane treatment and respect for personal integrity of a person serving a prison term , ... is development of his or her capacity for life after release in accordance with the laws and general customs of society . ”

“ During the enforcement of a prison sentence a penitentiary or prison shall , together with the institutions and other legal entities in charge of assistance after release , ensure preparation of a prisoner for his or her release [ from prison ] . ”

( CARDINAL ) The individual programme for the enforcement of a prison term ( hereinafter “ the enforcement programme ” ) consists of a combination of pedagogical , working , leisure , health , psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and possibilities of a particular penitentiary or prison . The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under LAW .

( CARDINAL ) The enforcement programme shall be designed by a prison governor on the proposal of a penitentiary or a prison ’s expert team ...

( CARDINAL ) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... )

“ ( CARDINAL ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”

Section CARDINAL of LAW ( Zakon o državnom odvjetništvu , Official Gazette CARDINAL ) reads as follows :

“ ( CARDINAL ) ORG is entitled to compensation for the costs of representation before the courts and other competent bodies according to the regulations on ORG fees .

( CARDINAL ) Funds obtained as the costs of representation are paid into the ORG ’s budget . ”

As regards civil proceedings for damages the Government submitted several decisions of ORG expressing its opinion on the responsibility of the ORG for damage caused by the administrative authorities .

The relevant parts of decision no . PERSON CARDINAL/CARDINAL - CARDINAL of DATE read as follows :

“ The employees of ORG V .- P. and of FAC caused the damage in question by their unlawful and wrongful conduct in allowing PERSON to escape from the penitentiary instead of preventing his escape by the use of force if necessary ( sections CARDINAL and CARDINAL , paragraph CARDINAL , of ORG LAW , ORG nos . CARDINAL and CARDINAL ) .

Enforcement of a sentence , and in particular the enforcement of a prison term , fulfils the purpose of punishment defined by law which includes , inter alia , preventing a perpetrator from committing [ a further ] criminal offence by restricting his freedom of movement . In the circumstances of the present case the employees of the above - mentioned penitentiaries , for whose conduct the defendant [ the ORG ] is liable , failed to [ prevent the escape ] of a convict who repeated the same act of violence ( in even more serious circumstances ) as the criminal offence for which he had been convicted and placed in prison ... The fact that he committed a criminal offence of robbery and caused damage to the plaintiff and numerous other persons by acts of violence during his escape shows that he is a danger to society who should have been prevented from committing criminal offences by being kept in prison . The same transpires from his previous criminal record ...

Therefore , in the case at issue there is a legally relevant causal link between the unlawful and wrongful conduct of the defendant ’s employees , the escape and the harmful act ... which all lead to the defendant ’s liability . ”

The relevant part of decision no . PERSON CARDINAL/CARDINAL - CARDINAL of DATE reads as follows :

“ Pursuant to section CARDINAL of LAW ( Official Gazette nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL ) GPE is obliged to compensate damage resulting from unlawful or wrongful conduct of the ORG administration bodies , bodies of local self - government and administration ...

Conduct or an omission that is against a law or any other regulation amounts to an unlawful act ... if there exists an intent to cause damage to the rights or interests of third persons or acceptance of that outcome . ”

The applicants submitted several decisions of ORG concerning the same issue .

The relevant part of decision no . PERSON CARDINAL/CARDINAL of CARDINAL September CARDINAL reads as follows :

“ Conduct or an omission that is against a law or any other regulation amounts to an unlawful act only if there exists an intent to cause damage to the rights and interests of a third person or acceptance of that outcome . The same is true in respect of conduct or a failure to act , contrary to the common or prescribed manner of acting , amounting to wrongful conduct . ”

“ The plaintiffs’ claim for damages against GPE is justified only where the statutory conditions have been fulfilled , namely , that the damage is a consequence of unlawful or wrongful conduct of a person or a body performing [ civil ] service . Unlawful conduct means acting against a law or any other regulation or an omission to apply a regulation with intent to cause harm to a third person or acceptance of that outcome . Wrongful conduct means an act or a failure to act that is contrary to the common or prescribed manner of acting and from which it can be concluded that there has been an intent to cause harm to the rights and interests of a third person or acceptance of that outcome . ”

“ ... unlawful conduct means acting against the law or omitting to apply statutory provisions with intent to cause damage to a third person or acceptance of that outcome . Wrongful conduct means an act or a failure to act , contrary to the common or prescribed manner of acting ... The burden of proof is on the plaintiff . ... The plaintiff claiming damages is obliged to prove the existence of damage , a harmful act by the defendant ( in this case unlawful or wrongful conduct of the ORG administration bodies within the meaning of CARDINAL of LAW ) and a causal link between the harmful act and the actual damage . ”

The relevant part of decision no . PERSON CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE reads as follows :

“ The purpose of LAW of LAW is [ to make ] the ORG liable for the damage caused by consciously acting against the law with intent to cause damage to another . ”


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

and as they appear from the documents , may be summarised as follows .

In DATE a deep recession undermined profitability across the entire financial sector and led to a banking crisis in DATE . The authorities took exceptional measures , such as takeovers , government assistance and temporary blanket guarantees to banks , to secure the stability of the financial system . In DATE ORG ( valtion vakuusrahasto , statens säkerhetsfond ) was established with a view to managing the banking crisis . In the state organisation chart ORG was subordinated to ORG until CARDINAL DATE when it was transferred to ORG .

The applicant is the former chief general manager of a bank , STS - Pankki Oy ( hereinafter “ the bank ” ) , which met severe financial difficulties .

In DATE ORG examined the bank ’s situation . Another bank , ORG , bought the majority of the STS - Pankki Oy ’s shares . According to the ORG agreement , however , the authority over the bank was entrusted to ORG . The bank changed its name to PERSON and its function was henceforth to administer unsettled loans and troublesome property . In DATE almost all the shares of ORG were sold for a nominal price and its name was subsequently changed to PERSON . The buyer was a property management corporation controlled by ORG .

Meanwhile , on the strength of the above ORG agreement ORG instructed the bank to institute compensation proceedings against a number of bank managers and directors .

On DATE the bank instituted CARDINAL separate proceedings against its former management , including the applicant , claiming compensation in the amount of MONEY ( ORG ) ( MONEY ( ORG ) ) . On DATE he was served with the summons . At the time , he was chairman of ORG , which did not form part of the Government but he resigned shortly afterwards . He founded his own business and started working as a business consultant . In DATE his assets were seized .

On DATE the ORG ( käräjäoikeus , tingsrätten ) , by CARDINAL separate judgments , found partly in favour of the plaintiff bank , ordering the applicant among others to pay jointly ORG CARDINAL ( about EUR CARDINAL ) plus interest from the service of the summons and legal costs .

On DATE ORG ( hovioikeus , hovrätten ) upheld the lower court ’s judgments .

On DATE the applicant requested that ORG produce documents from its meetings relating to the plaintiff bank ’s law suit against him . On DATE ORG refused the request arguing that the documents were of an internal nature and therefore confidential . On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) overturned the decision .

On DATE ORG ( korkein oikeus , högsta domstolen ) reduced the joint liability to pay compensation to ORG CARDINAL ( some EUR CARDINAL ) .

On DATE in a debt recovery procedure , the Bailiff found that the applicant did not possess any considerable recoverable property . It also appears that the earlier debt recovery procedures in DATE and DATE had proved more or less unsuccessful .

In DATE the applicant contacted the plaintiff with a view to reaching a friendly settlement . Negotiations followed and a concrete settlement was being discussed . CARDINAL of ORG , a social NORP , issued an instruction to ORG to the effect that a friendly settlement should be achieved . ORG then presented the plaintiff bank ’s ORG with an instruction to the same effect .

On DATE the applicant and the plaintiff reached a friendly settlement as to the payment of compensation to the effect that the applicant would pay ORG CARDINAL ( some EUR CARDINAL ) . The settlement was signed by him and the plaintiff ’s chief executive , the latter having received the company ’s ORG authorisation .

The settlement led to a lively public debate according to which the above amount was far too low and to a request by a group of members of ORG , at DATE , for a police investigation into the applicant ’s financial affairs . The relevant social NORP Minister of Finance resigned at about this time .

On DATE ORG decided not to instruct PERSON to commence judicial proceedings with a view to having the friendly settlement declared null and void .

Following ORG judgment in the compensation proceedings , the plaintiff bank , on DATE , requested a police investigation into the underlying facts of the case . By a letter of DATE a public prosecutor , GPE , informed the plaintiff that he saw no reason to commence a pre - trial investigation against anyone in the bank ’s management on account of the events which had been the object of the compensation proceedings ( toimenpiteistä luopuminen , åtgärdseftergift ) .

Meanwhile and during the course of the above compensation proceedings , the plaintiff bank on the instruction of ORG requested , on DATE , that the police investigate whether the applicant had committed debtor ’s dishonesty or fraud . At the beginning of the autumn the police received the applicant ’s written submission . On DATE the plaintiff withdrew its request for an investigation . In their decision of CARDINAL DATE the police , finding that there was no appearance of any criminal activities , decided not to refer the case to the public prosecutor .

As noted above , at DATE a group of MPs requested a police investigation into the applicant ’s financial affairs , following the friendly settlement . On DATE a ORG , GPE , instructed the police to institute a pre - trial investigation ( tutkintakehotus , begäran om förundersökning ) into the applicant ’s financial affairs from DATE , inter alia in view of the fact that he had directed his income into current accounts with credit balances which he had kept below CARDINAL thus preventing any successful debt recovery procedure and he had paid the above ORG CARDINAL although on DATE he had not accounted for such assets in a debt recovery procedure .

On DATE the applicant was arrested and his office , home and DATE cottage were searched and documents were seized . He was released after TIME . He was questioned on DATE . The police also made inquiries with the applicant ’s customers with a view to finding out whether he had revealed all relevant information relating to his income during the investigation . The inquiries did not show that the applicant had withheld any such information . The case was subsequently transferred to ORG Prosecutor PERSON

In his decision of DATE ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) found no reason to take measures on account of ORG actions before and during the compensation proceedings . The applicant had lodged a complaint as regards , among other things , the fact that a law firm engaged by ORG had , in DATE , hired a private investigator to look into the applicant ’s financial affairs . ORG found that the hiring of a private investigator in the present case was not dubious as he had only produced public tax information .

Meanwhile , in his decision of DATE ORG ( valtionsyyttäjä , statsåklagaren ) PERSON charged the applicant with embezzlement . He however waived charges of debtor ’s dishonesty or debtor ’s fraud due to the lack of evidence . Nonetheless , in his decision he drew the applicant ’s attention to the fact that the case might be reviewed by a higher prosecuting authority in accordance with LAW , LAW ( CARDINAL ) of LAW .

On DATE an MP lodged a complaint with ORG ( valtakunnansyyttäjä , riksåklagaren ) on account of ORG Prosecutor PERSON ’s decision not to prosecute the applicant for debtor ’s dishonesty , accusing the former of having failed to take into account the fact that the applicant ’s way of spending money had weakened his financial position and thereby damaged the bank ’s interests .

On DATE the Prosecutor General informed the applicant that he had decided , on the presentation of ORG Prosecutor PERSON , to review PERSON ’s decision .

On DATE State Prosecutor PERSON invited the applicant ’s submission as to the issues raised in the complaint of the MPs . It was received on DATE .

On DATE ORG decided that charges be brought against the applicant for debtor ’s dishonesty . The decision was signed by ORG PERSON

As noted above on DATE State Prosecutor PERSON brought charges against the applicant for aggravated embezzlement committed in DATE . On DATE ORG rejected the charges . It appears that the acquittal became final .

Meanwhile , on DATE , ORG Prosecutor PERSON , acting on the strength of the Prosecutor General ’s decision of DATE , brought charges against the applicant for aggravated debtor ’s dishonesty committed during the period from CARDINAL DATE to DATE . In short , he was charged with having deliberately weakened his financial position thereby damaging the above plaintiff ’s interests .

On DATE the ORG invited the applicant ’s written observations by DATE .

Before replying to the charges , the applicant argued that they should be ruled inadmissible on the ground that the police on DATE had decided not to refer the case to the public prosecutor . Further , ORG Prosecutor PERSON had decided , on DATE , not to prosecute . No new facts had been established between the decision not to prosecute and ORG Prosecutor PERSON ’s subsequent decision to bring charges . On DATE ORG rejected the complaint .

The applicant denied the charges , arguing that he had never been insolvent . In the hearing ORG received oral testimony from the applicant , CARDINAL witness for the prosecution and CARDINAL witnesses for the defence . It also received testimony from a witness on the initiative of both the prosecution and the defence . Having received the evidence , ORG noted that it had no reason to doubt the credibility of the oral testimony . Further , it considered that the case turned on a judicial assessment of the undisputed facts .

On DATE ORG , finding that the applicant ’s conduct did not fulfil the constitutive elements of debtor ’s dishonesty , rejected the charges .

The public prosecutor and the complainant appealed . In his observations in reply the applicant , referring to LAW , requested that the charges be ruled inadmissible on the ground that an examination of the charges was in violation of the ne bis in idem principle .

On DATE ORG rejected the applicant ’s request that ORG give oral testimony regarding his procedural complaint as ill - founded .

On DATE ORG upheld ORG ruling of DATE in so far as the procedural complaint was concerned .

On DATE ORG held a hearing during which it received oral evidence from the applicant and a number of witnesses .

On DATE ORG convicted the applicant of aggravated debtor ’s dishonesty and sentenced him to a suspended term of CARDINAL months’ imprisonment . It however rejected the compensation claim referring to the wording of the friendly settlement according to which the parties had no longer any claims against each other .

On DATE ORG refused leave to appeal .

Section CARDINAL of the Act on Public Prosecutors ( CARDINAL/CARDINAL ) reads :

The following are public prosecutors :

the Prosecutor General and the Deputy Prosecutor General ;

a State Prosecutor ; and

a District Prosecutor and a Prosecutor for GPE .

Section CARDINAL of the LAW provides that the prosecution service is headed by ORG , who is appointed by the President of GPE LAW provides that ORG is appointed by the Government on the nomination of ORG .

The Prosecutor General heads the central administration body for public prosecutors , ORG ( valtakunnansyyttäjänvirasto , statsåklagarämbetet ) , and he or she appoints the ORG .

His or her statutory duties include supervision of the subordinate prosecutors . Although a public prosecutor is independent in the consideration of the charges ( section CARDINAL of the Act on Public Prosecutors ) , ORG has the authority to take over for consideration any case from a subordinate prosecutor or to assign a subordinate prosecutor to prosecute a case where ORG has decided that a charge be brought . The decisions of the prosecutors are subject to complaint lodged with ORG , who is competent to reopen a case if he or she so decides .

In ORG there are a number of ORG Prosecutors , who have jurisdiction as prosecutors throughout the country . Their primary task is to see to the prosecution of criminal matters of the greatest significance to the society as a whole .

The ORG Prosecutors do not in their own right hold any superior authority over the local prosecutors , but some of the authority of ORG may be delegated to them .

LAW , section CARDINAL of LAW provides that the public prosecutor is to bring charges if there is a prima facie case against the suspect .

LAW , LAW ( CARDINAL ) provides that if the public prosecutor has decided not to prosecute , he or she may withdraw the decision only if there is new evidence which shows that the decision has been based on essentially incomplete or erroneous information . Subsection CARDINAL provides that a superior prosecutor has the right to reopen the case in accordance with the specific provisions thereon .

Section CARDINAL of the Act on Public Prosecutors provides that ORG is independent in the assessment of the charge being considered by him or her , unless otherwise provided by LAW . LAW provides that ORG is the superior of all public prosecutors . He or she may decide to take up for consideration any matter belonging to a subordinate prosecutor and to assign a subordinate prosecutor to prosecute a case where ORG has decided on the charge . In addition , ORG may allot a case to a subordinate prosecutor for the assessment of the charge . A re - evaluation by ORG is often brought about by a complainant being dissatisfied with the result of the first consideration of the charges .

There is no statute of limitation as regards the review of a matter by ORG .