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

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

NORP The applicant 's son PERSON was killed in a road traffic accident on DATE in GPE . He was travelling in the car with : PERSON , PERSON , who was taken by ambulance to FAC , where she died TIME after intensive surgery ; PERSON , the driver of the vehicle , who died on the spot ; and Mr PERSON 's bodyguard , PERSON , who was seriously injured .

At the request of the public prosecutor and Professor PERSON , the requisitioned forensic pathologist , Chief Inspector Mules , a senior police officer with the serious crime squad , was present when the body of PERSON underwent an external forensic examination , at TIME , with no taking of body samples , and the officer was provided with the pathologist 's report at TIME During DATE , following an official ceremony , the coffin was conveyed in a cortege to Villacoublay airport , after a burial permit had been issued and the NORP authorities had made the necessary arrangements for repatriation of the body to GPE .

The body of the applicant 's son was taken to ORG for an examination by Professor PERSON , with the assistance of Chief Inspector PERSON . The police officer 's report mentioned that the pathologist 's report had been given to him at TIME and that “ blood , urine and other usual samples ” had been taken .

NORP The pathologist 's report concerning the autopsy on the driver 's body was given to Chief Inspector PERSON at TIME

On DATE the public prosecutor of GPE applied for the opening of a judicial investigation in respect of charges of unintentional homicide and wounding and failure to assist a person in danger . The case was assigned to an investigating judge at the GPE tribunal de grande instance and a second investigating judge was appointed later in the proceedings .

In a letter of DATE from CARDINAL of his lawyers , the applicant applied to join the proceedings as a civil party .

CARDINALand in particular the press photographers ' insistent and intense activity which culminated in their pursuit of the car in which the victims were travelling , CARDINAL photographers were placed under judicial investigation on charges of unintentional homicide and wounding and failure to assist a person in danger .

On DATE Chief Inspector PERSON drafted a report stating that , contrary to the indication on the report drawn up on DATE of the autopsy , no samples had been taken from the body of the applicant 's son and that the forensic pathologist had only carried out an external examination of the body in accordance with the instructions received .

On DATE the investigating judge requested Professor PERSON to provide all useful indications for the purpose of establishing whether or not the injuries on the bodies of the CARDINAL victims had been such as to have resulted in their instantaneous death .

NORP In a report of DATE Professor PERSON indicated that an external examination of the body of PERSON could not by itself provide the answer to that question and that it would be necessary to examine the records of the emergency paramedics ( the ORG ) present at the scene of the accident and the autopsy report . The expert pathologist also considered that the external examination of PERSON body and her surgical treatment were not sufficient either and that only an autopsy could provide additional information concerning organs .

It was also stated by the applicant that , from the beginning of the investigation , the investigating judge had decided to make enquiries in order to identify a vehicle and its driver that had been involved in the accident according to witnesses and in the light of technical analysis by the national gendarmerie . Those enquiries were discontinued in the course of the investigation .

On DATE the investigating judge appointed Professors PERSON and PERSON as experts with the following assignments : to apprise themselves of all current and future material in the case file , documents from medical records to be obtained in GPE and any useful medical documents that might be forthcoming from the NORP authorities ; to provide any useful medical indications , in particular on the exact causes , circumstances and precise time of the deaths and on the treatment dispensed at the scene of the crash ; and , as regards PERSON , to indicate what treatment was given to her in the ambulance and then at the hospital , and whether it was in conformity with current medical knowledge .

On DATE the investigating judge supplemented the experts ' assignment by authorising them to hear representations from any person other than those under judicial investigation and giving them the opportunity to consult specially qualified persons for the purpose of completing their assignment .

In their report of CARDINAL DATE the CARDINAL experts noted in particular that there had been no determination of blood group or biological examination in respect of PERSON . They further indicated that they had visited GPE on DATE to apprise themselves of the particulars of her autopsy and that they had met CARDINAL doctors and a senior police officer during that visit . They had been informed by a forensic pathologist there that the description of the injuries had been made difficult by the fact that the body had been embalmed before departure from GPE . Moreover , the CARDINAL NORP experts mentioned that copies of the autopsy reports had been given to them “ on a personal basis ” . The applicant indicated that since the documents had been supplied “ on a personal basis ” they had not been added by the experts to the case file .

The applicant further alleged that there had been a persistent rumour , relayed by numerous press articles and a certain number of published books that had been added to the investigation file , to the effect that the NORP and GPE intelligence services had possessed material information on the circumstances surrounding the death of his son and the other passengers in the car . The applicant pointed out that , according to a number of documents in the investigation file , the judge had also received information to that effect from ORG in GPE .

On DATE the investigating judge examined PERSON , a former officer of the NORP intelligence service MICARDINAL . PERSON complemented his statements by letters dated DATE and DATE . In his letter of DATE he mentioned the involvement of CARDINAL counsellors at FAC in GPE , who were presumed to be members of MICARDINAL . In another letter of DATE he informed the judge that he had recently become aware of a new fact that might be of interest for the investigation into the deaths of PERSON and PERSON . That letter was not followed up and PERSON 's lawyer in turn wrote , without success , to the investigating judge to seek the examination of his client .

The investigating judge sent CARDINAL letters , on CARDINAL and DATE to the Secretary for ORG at FAC in GPE . The Secretary replied on DATE and DATE .

The applicant considered that there had not been any precise response , still less any statement under oath , concerning : the possibility , referred to by PERSON , that PERSON had been a correspondent for NORP intelligence ; the presence in GPE at the material time of the CARDINAL above - mentioned counsellors to ORG in GPE ; and the presence of an unknown person , claiming to be a NORP photographer , seen in front of the ORG before the departure of the vehicle by the photographers under investigation . Accordingly , he called for the examination of the CARDINAL Embassy counsellors and the Secretary for ORG , in order to shed light on certain questions . He also sought the examination of representatives from ORG ( ORG ) , which he claimed had a file concerning surveillance of PERSON . The applicant added that an official letter from the ORG confirmed the existence of such surveillance and of a CARDINAL,CARDINAL-page file on the subject .

NORP In a decision of DATE the investigating judge dismissed a request for additional investigative measures made by the applicant on DATE concerning the damaged vehicle , certain calls made by mobile phone at the material time and the area covered by cell sites . The judge also dismissed a request from PERSON and PERSON , submitted on DATE , also concerning mobile phones and the damaged vehicle but also seeking an additional expert 's report on the level of carboxyhaemoglobin observed in their son 's blood .

By notice of CARDINAL DATE the judges investigating the unintentional homicide charges informed the applicant 's counsel that their investigation appeared to be at an end and that they intended to transmit the case file to the public prosecutor . Counsel for the applicant replied in a letter and note dated DATE .

On DATE the investigating judges dismissed the requests for examination of members of ORG and the ORG . They also dismissed a request from PERSON and PERSON for a confrontation with experts . The applicant appealed .

NORP In a judgment of DATE ORG of ORG upheld the decisions of DATE and DATE dismissing the requests for investigative measures .

In another judgment of DATE , ORG of ORG upheld the decision of DATE .

On DATE the investigating judges discontinued the proceedings against all the individuals under investigation . They also dismissed a request from Mr and PERSON seeking the restitution of certain samples taken from their son 's body .

On DATE counsel for the applicant wrote a letter to the public prosecutor at the GPE tribunal de grande instance seeking to ascertain : the reasons why the case file did not contain PERSON autopsy report , which had been given to the NORP experts by their NORP counterparts and information as to its destination ; the circumstances in which the Princess ' body had been embalmed while still in GPE and the reasons for that measure , with its prejudicial consequences for a subsequent autopsy ; whether or not samples had been taken from the body of his son , in view of the corrective statement of DATE , and from that of PERSON , having regard to the examinations carried out in GPE .

In a letter of DATE the public prosecutor declared the requests inadmissible , having regard to the judicial investigation , the discontinuance decision and the referral of the case to ORG .

In a judgment of DATE ORG of ORG upheld the discontinuance decision . Moreover , it held that the samples taken for analysis in the course of judicial proceedings were not covered by the provisions on restitution in LAW . After noting that the request called into question the blood analyses , the court found that the requested action was not necessary for discovery of the truth , since the results of those analyses were not such as to exonerate from criminal responsibility any third party or parties that may have contributed to the damage .

In a judgment of DATE ORG ordered the return to the investigating judge of the case file opened on the basis of a complaint , with civil - party application , for unlawful invasion of privacy , requiring the judge to continue his investigation speedily as “ the court [ could not ] but deplore the lack of activity for DATE ” .

In a decision of DATE the urgent applications judge of the GPE tribunal de grande instance dismissed a similar request from ORG , on the ground that only the criminal court which had ordered that those samples be administered by the courts was competent to order their restitution or to appoint an expert for their examination . The applicant considered that this decision contained a contradiction as it referred to a letter dated DATE from ORG at ORG to the parents of PERSON in which they had been assured that the samples would be retained for the subsequent proceedings , whilst it also quoted the said expert 's comment on “ the total unreliability of the blood alcohol analyses DATE after the samples were taken ” .

On DATE ORG upheld the decision . An appeal on points of law was lodged .

On DATE PERSON and PERSON filed a criminal complaint with civil - party application for the falsification of data by the CARDINAL court - appointed experts responsible for analysing the samples taken from their son 's body , on account of failure to comply with the statutory procedures for taking samples and with conservation requirements , and in respect of subsequent work . Their complaint was based above all on the statements of CARDINAL of those experts in the course of civil proceedings and on the results of a private analysis carried out by ORG , GPE and PERSON , who had indicated a certain number of major shortcomings in the forensic examinations .

In a judgment of DATE , of which notice was given on DATE , ORG declared inadmissible the applicant 's appeal on points of law in respect of the third and fourth grounds of appeal ( challenging the judgment upholding the dropping of charges of unintentional homicide and failure to assist a person in danger ) , on the basis of LAW . ORG dismissed the first ground of appeal ( concerning the fact that the principal investigating judge and his deputy were joint signatories of the discontinuance decision ) and the second ( concerning the refusal to join these proceedings to those arising from the applicant 's criminal complaint and civil - party application of DATE for the offence of unlawful invasion of privacy committed against his son and PERSON ) .

On DATE a decision refusing investigative measures was made in the context of the investigation opened following the criminal complaint filed by PERSON and PERSON on DATE for falsification of data , proceedings in which the applicant had applied for civil - party status . Subsequently , in a judgment of DATE ORG of ORG reclassified a discontinuance decision of DATE as a decision not to open an investigation and ordered the continuation of the investigation by the judge assigned to the case . On DATE ORG granted an application by the applicant to disqualify the court from hearing the case on grounds of apprehended bias and transferred the case to the GPE tribunal de grande instance for the judicial investigation , which is still in progress .

On DATE , in the letter in which the applicant applied for civil - party status in the judicial investigation opened that same day in respect of unintentional homicide and wounding and failure to assist a person in danger , he further indicated as follows :

“ ... presumably because a public prosecution may only be brought on the basis of a criminal complaint by the victim , his representative or his heirs , in accordance with the provisions of LAW , the originating application for a judicial investigation does not refer to the offence of attempted invasion of privacy , as provided for and punishable under ORG CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , whereas it appears to me that such a charge is made out , as the photographers who were pursuing the vehicle before it crashed clearly intended to take photographs invading the privacy of PERSON and PERSON .

The prosecution of that offence is crucial , in so far as it had continuously been committed by the photographers throughout DATE , but also , and above all , after the couple had left FAC and during the pursuit , of which the route , via the Alma underpass in particular , can be attributed solely to that pursuit .

The acts constituting that offence , in so far as they played a major part in the organisation of the departure from the hotel and in the driving of the car , form the initial and decisive element in the causal chain that led to the death of the CARDINAL victims .

I therefore submit to you an additional application by Mr PERSON , in his capacity as heir of Mr PERSON , to be granted civil - party status in respect of the charge of attempted invasion of privacy , on the basis of LAW , kindly requesting you to transmit the file to the public prosecutor with a view to obtaining his authorisation for the extension of the judicial investigation to encompass that charge ... ”

On DATE , as no reply to that request had been received , the applicant lodged with the senior investigating judge a criminal complaint , together with a civil - party application , for the criminal offence of unlawful invasion of privacy . He reiterated his arguments , emphasising the close connection between the subject - matter of this complaint and that of the investigation by the investigating judges , opened on DATE , and indicated “ that it [ would ] therefore [ be ] particularly appropriate , for the proper administration of justice ” , to entrust the complaint to the same judges by joining the CARDINAL sets of proceedings .

The judicial investigation in respect of that complaint was entrusted to CARDINAL of the CARDINAL judges responsible for the investigation opened on DATE , but the CARDINAL sets of proceedings were not joined .

On DATE representations from the applicant were heard .

On DATE the applicant 's counsel wrote to the investigating judge to point out that the judge 's inactivity in the investigation in respect of the complaint of CARDINAL DATE “ could be understood to the extent that the joinder of those proceedings with the main set of proceedings [ had been ] envisaged ” , and to reiterate his request for joinder , in view of the lack of investigative measures , informing the judge that he would otherwise refer the matter to ORG .

On DATE the investigating judge issued a warrant for purposes of “ making enquiries to determine comprehensively the particulars of the offence and to identify all perpetrators , co - perpetrators and accomplices ” , without any other indication as to the required measures .

In a note of CARDINAL DATE , drafted in response to the notice of CARDINAL DATE in the other proceedings , the applicant 's counsel dwelt at length on the facts that characterised the offence of unlawful invasion of privacy with which the photographers could be charged , and pointed out the case - law to the effect that such a charge was made out when photographs were taken through the windows of a private vehicle , adding that , on account of the inseverable nature of the facts , it was necessary to join the proceedings , as had been requested on several occasions , and that joinder would likewise be justified “ if the investigating judges were to consider that the charge of unlawful invasion of privacy was actually made out by the findings of their principal investigation ” .

The police officers to whom the warrant had been addressed reported back to the investigating judge on DATE , DATE after the discontinuance decision of DATE in the investigation concerning the unintentional homicide charge . From DATE , the date of referral to them , until DATE , the date of their transmission report , the police officers drew up CARDINAL reports simply concerning the contacts they had had with the investigating judge .

On DATE the applicant requested the examination of the photographers whose presence at the scene of the accident had been established in the first investigation . His request having remained unanswered , he referred the matter to ORG by an application of DATE .

That ORG examined the case file on DATE . In the course of the hearing the applicant learned from the public prosecutor 's submissions that the case file contained only a copy of the discontinuance decision of DATE and , moreover , that it had not been accompanied by a record of joinder of documents .

Furthermore , the case file having been transmitted to ORG without a copy first being made or kept , the applicant 's counsel was unable to consult the file in the investigating judge 's office after the hearing of DATE in ORG .

On DATE the applicant brought proceedings against the Government Law Officer ( agent judiciaire du Trésor ) to obtain a ruling that the ORG 's responsibility was engaged on account of gross negligence and denial of justice in the handling of his criminal complaint of DATE .

In a judgment of DATE ORG of ORG ordered the return of the case file to the investigating judge in GPE for the continuation of the judicial investigation , with in particular the examination of certain expressly named individuals . In its judgment ORG found in particular as follows :

“ An examination of the case file reveals that , with the exception of representations from the civil party and a warrant upon which no action was taken , the successive investigating judges took no other investigative measure .

Contrary to the indications of counsel for the civil party , this case file does not contain a copy of the investigation file in respect of the charges of unintentional homicide and wounding and failure to assist a person in danger , but only a copy of the discontinuance decision .

... Under these circumstances it is appropriate to return the case file to the investigating judge in order that , notwithstanding the workload of his office , he should continue the investigation speedily ... ; the court can not but deplore the lack of activity for DATE ... ”

DATE . On DATE the GPE tribunal de grande instance , ruling in the context of the proceedings brought on DATE , dismissed the applicant 's complaint . He appealed against this judgment .

On DATE the investigating judge issued a decision of partial discontinuance in respect of CARDINAL of the individuals under investigation and ordered that CARDINAL other photographers be committed to stand trial before ORG for unlawful invasion of privacy . The case was set down for hearing on DATE .

In a judgment of DATE ORG reversed the judgment of DATE , finding that the responsibility of the ORG was engaged on account of gross negligence in the administration of justice and of a denial of justice . Its main findings read as follows :

“ ... from the outset , it was established that the CARDINAL judicial investigations opened were connected ; the Government Law Officer , who accepts this , also acknowledges that ' the results of CARDINAL and its procedural developments naturally influenced the conducting of the other ' .

Accordingly , whilst the investigating judge is not obliged , procedurally speaking , to order the joinder requested insistently by PERSON , the decision not to join the investigations DATE a measure of judicial administration left to the judge 's discretion – is nevertheless part of the series of facts relied upon by the appellant in support of his claims .

Mr PERSON is justified in observing that , in deciding on the discontinuance of the unintentional homicide investigation , the investigating judge made an assessment of the facts set out in the complaint submitted to him for the second investigation ...

As has been claimed quite rightly by PERSON , it transpires that , in order to assess criminal responsibility in the first investigation , it was necessary to examine the reality of the facts involved in the second and the potential classification of those facts as a criminal offence could not be indifferent to the first . Accordingly , contrary to the argument of the Government Law Officer it was not appropriate to carry out CARDINAL successive investigations .

The inactivity of the successive judges ... was noted by this court in its judgment of DATE , when it found that it could not ' but deplore the lack of activity for DATE .

It transpires from these findings that the judges responsible for conducting the CARDINAL investigations into connected facts , while refusing to join the investigations , omitted for DATE to take any investigative measures in respect of Mr PERSON complaint .

Contrary to the argument of the Government Law Officer and contrary to the findings of the court below , the conduct of the investigating judges can not be explained by the fact that the investigations carried out in the first set of proceedings were capable of ensuring progress in the second set , and thus that it was out of a concern for efficiency in establishing the truth that the investigating judges gave priority to investigative measures concerning the unintentional wounding and homicide charges and adopted a strategy which resulted in their investigating the CARDINAL cases successively .

It has been noted , first of all , that the outcome of the second investigation was not indifferent to the first . Contrary to the argument of the Government Law Officer , the results of the investigations opened on charges of unintentional homicide and wounding and failure to assist a person in danger were certainly not decisive for the continuation of the proceedings concerning unlawful invasion of privacy . In addition , if the investigations conducted were useful to both sets of proceedings , the refusal to join them can not be explained . Moreover , if that were the case , it was necessary to add to the case file of the second investigation any documents from the first that might be useful for the judicial investigation into the allegation of unlawful invasion of privacy , but this was only done after the bringing of the present proceedings . In this connection , the fact that the discontinuance decision was added to the case file was not sufficient to enable the investigation to progress , absent any other document . Lastly , when the judges had informed Mr PERSON that they considered the investigation opened on the unintentional homicide charge to be at an end , and then gave a decision of discontinuance , they had still not taken any measures in the other proceedings , the warrant having been issued with no prospect of execution for the reasons mentioned above .

The above facts reveal the inability of the public service to fulfil the mission vested in it , in so far as they led the civil party to believe that the judicial investigation in respect of his complaint had been impeded and that not all the investigative measures required for the establishment of responsibility in the death of his son had been taken , especially as , far from losing interest in the case or obstructing the discovery of the truth , Mr PERSON , through the intervention of his lawyers , was proposing that the judges proceed with detailed analysis of the facts by making use , in particular , of evidence gleaned in the unintentional homicide investigation , and was complaining of the ' regrettable separation ' between the QUANTITY investigations , the joinder of which he did not cease to demand .

In particular , these facts reveal a breach by the judiciary of their obligation to ensure that victims are informed and that their rights are guaranteed throughout any criminal proceedings , as provided for by LAW , together with an infringement of the right of all members of the public to have meaningful and effective access to a court and to have their case heard within a reasonable time .

Although in the present case the proceedings nevertheless continued , that does not make good the shortcomings observed , since it was only after the action to establish ORG responsibility and the decision of ORG , ruling on an application from the civil party following the investigating judge 's refusal to take the requested investigative measures , that the judicial investigation was effectively pursued , such that the civil party is justified in believing that if he had not taken those procedural initiatives the inactivity of the judges , even though they had been properly seised of the case , would have continued .

In addition to the gross negligence there has been a denial of justice . Contrary to the findings of the court below , the fact ' that through the normal operation of the institutions and in particular of the appeal mechanism and the possibility of review by ORG , the complainant has secured vindication of his rights and the continuation of the proceedings in the proper conditions ' and that , the proceedings having been resumed , the case has been set down for hearing in ORG on DATE , does not suffice to cure the denial of justice .

The latter is characterised by the unjustified inactivity of the judges for DATE , which led to a delay in the investigation of the case assigned to them , bearing in mind that the proceedings were only resumed as a result of the complainant 's initiatives . There was consequently a delay in the examination of the case by the court , which did not take place until DATE after the filing of the complaint and civil - party application , a period that does not constitute a reasonable time in the present case .

The responsibility of the ORG is therefore engaged .

On account of Mr PERSON inevitable loss of confidence in the judicial institution responsible for elucidating the circumstances of his son 's death , as a result of the said shortcomings , even though they occurred in the context of the proceedings concerning the offence of unlawful invasion of privacy , he has sustained non - pecuniary damage for which full compensation is to be awarded in the sum of MONEY ... ”

On DATE ORG acquitted the CARDINAL defendants , finding that the photographs taken after the accident , firstly , had not captured any intimate gesture or conduct , especially bearing in mind that the relationship between the applicant 's son and PERSON had been widely reported in the media and , secondly , could not be regarded as having been taken in a private place because the emergency services were present , tending to the wounded .

On DATE ORG upheld that judgment .

On DATE ORG quashed the judgment on the basis of LAW , finding in particular that ORG had not sufficiently addressed the civil party 's submissions concerning the lack of consent on the part of the victim , and that neither the presence of emergency services nor a crash victim 's involuntary exposure to the public eye could deprive the vehicle carrying the victim of its private nature . It remitted the case to be heard by a different bench of ORG .

On DATE ORG ordered the CARDINAL photographers to pay the applicant the sum of MONEY in damages and to have notice of the judgment published . CARDINAL of the defendants lodged an appeal on points of law .

On DATE the applicant brought proceedings against persons unknown by filing a criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance , alleging destruction of evidence and concealment of a body , on account of the embalming of PERSON body .

On DATE the investigating judge ruled that the conditions for opening an investigation were not satisfied .

In a judgment of DATE ORG of ORG upheld the decision of DATE . The applicant lodged an appeal on points of law , which is still pending .

On DATE the applicant brought further proceedings against persons unknown by filing a criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance , alleging that an aggravated offence of concealment and removal of evidence had been committed . The applicant 's complaint mainly concerned the alleged concealment , by representatives of ORG and of ORG in GPE , during the investigation conducted in GPE , of a note drafted by PERSON personal legal representative after a meeting with her in which he recorded information “ from reliable sources ” that she had shared with him to the effect that she might be the victim of a pre - prepared road traffic accident .

On DATE the applicant filed a fresh criminal complaint and civil - party application with the senior investigating judge at the GPE tribunal de grande instance against persons unknown , this time for premeditated murder .

By a writ of DATE , the applicant brought an action against ORG , in the person of the Government Law Officer , under LAW , seeking to obtain compensation for the defective operation of the judicial system on account of the conditions in which the forensic medical examinations had been carried out , the handling of the complaint of DATE , in respect of which the judicial investigation was still pending , the conditions of the autopsy , the taking of samples and the toxicological analyses concerning PERSON , and the embalming of PERSON body .


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence in person);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The applicant is a practising NORP and attended a mosque , where he met PERSON , GPE was arrested by officers of ORG ( “ the ORG ” ) on suspicion of having had contact with ORG in the past and being the leader of a group planning to carry out terrorist acts in GPE . The authorities considered the group to be religious fundamentalists ( referred to as “ adherents of NORP ” ) .

On DATE the applicant was also arrested by the ORG officers , on suspicion of being associated with that group .

A search of his place of residence , carried out on DATE , did not reveal any incriminating evidence . However , a hand grenade was found in the flat of the applicant ’s wife , which the ORG officers had also searched .

The applicant was charged with illegal possession of a weapon under LAW . In addition to the applicant , the criminal proceedings involved CARDINAL other accused ( including A. ) , all of whom were charged with more serious offences than the applicant . CARDINAL of them were charged with complicity in the preparation of terrorist acts .

On DATE the applicant was brought before a judge , who ordered his detention pending trial .

The applicant was tried by ORG , together with the other CARDINAL accused . The trial was closed to the public . According to the applicant , before ORG he argued that the hand grenade did not belong to him and that it had been “ planted ” in his wife ’s flat by the ORG officers who , having tricked his wife , had gained access to the flat TIME before she , the applicant himself , and CARDINAL passers - by who had been asked to witness the search , entered the flat .

On DATE ORG convicted the applicant of illegal possession of a weapon and sentenced him to CARDINAL GPE imprisonment . The other accused were convicted of more serious criminal offences ( terrorist activities ) and received longer prison sentences , ranging from DATE imprisonment .

On DATE the applicant lodged an appeal against the judgment , requesting ORG to quash the judgment in the part concerning him and to terminate the criminal case against him . He reiterated his allegations that the hand grenade had not belonged to him , that the case file did not contain any other evidence against him , and that he had not committed the criminal offence for which he had been convicted . He argued that , in circumstances where the discovery of the hand grenade in his wife ’s flat was essentially the only incriminating evidence against him , the trial court had failed to take into account the unlawful manner in which the search had been conducted and to properly assess the admissibility and reliability of the evidence obtained as a result of the search . He also noted that the first - instance court had applied the most severe sentence provided for in LAW and had not taken into account his personal circumstances when imposing the sentence , such as , inter alia , the fact that he had to provide and care for his aged and ailing mother .

Some of the other defendants also lodged appeals .

At a preliminary hearing on DATE , held in the presence of the public prosecutor but in the absence of the defendants and their lawyers , ORG fixed the date of the hearing on the merits for DATE and decided that only the public prosecutor and the defendants’ lawyers should be invited to that hearing . ORG decision was silent as to whether the defendants or their lawyers had been informed of the time and place of the preliminary hearing ( see paragraph CARDINAL below ) . It was also silent as to whether the hearing on the merits would be held with or without a “ court investigation ” ( see paragraph CARDINAL below ) .

On DATE ORG examined the appeals lodged by all CARDINAL defendants , including the applicant . The court examined the appeals “ without a court investigation ” , that is , without a full rehearing of the case ( see paragraph CARDINAL below for an explanation of the differences in appellate proceedings conducted with and without a “ court investigation ” ) . According to the applicant , ORG hearing lasted DATE . According to TIME of the hearing , the applicant was absent but the applicant ’s lawyer and the public prosecutor were present . On DATE ORG upheld ORG judgment of DATE . ORG judgment was largely a word - for - word copy of the judgment of DATE .

On DATE the applicant lodged a cassation appeal with ORG . He claimed , inter alia , that his absence from ORG ’s hearing had breached his rights under the domestic law . ORG examined the applicant ’s cassation appeal separately and , on DATE , upheld the lower courts’ judgments . ORG decision was silent on the applicant ’s complaint about his absence from the hearing before ORG . At ORG hearing the applicant was represented by his lawyer but was not present personally .

In accordance with LAW ( “ the CCrP ” ) , an appellate court ( second instance ) verifies whether the court of first instance correctly established the facts of the case and correctly applied the provisions of the criminal law and the CCrP.

In accordance with LAW CCrP , following the examination of an appeal , the appellate court may dismiss the appeal and uphold the judgment of the first - instance court , quash the first - instance judgment and deliver a new judgment , quash the first - instance judgment and terminate the criminal proceedings , or amend the first - instance judgment .

In accordance with LAW ORG , the accused has the right to be present at hearings before the first - instance and appellate courts , and to examine the case materials .

NORP In accordance with LAW CCrP , if the issues raised before the appellate court may lead to the worsening of the situation of the convicted or acquitted person as a result of the appeal proceedings , or if the appellate court decides that a full judicial review of the case ( “ a court investigation ” ) is necessary , it is imperative that the convicted or acquitted person , as well as his or her counsel , be summoned to the appeal hearings . In such cases the participation of the public prosecutor is also compulsory . According to the same provision , the participation of the appellant and the consequences of his or her absence are determined with reference to the criteria set out in LAW

According to LAW CCrP , the accused has a right to participate in all trial hearings and enjoys all the defence rights provided for in the LAW CARDINAL specifies CARDINAL exceptional circumstances where the court can examine the case in absence of the accused : ( a ) the accused is abroad and intentionally avoiding attending the hearing ; or ( b ) the person is charged with a minor criminal offence and has waived his or her right to be present at the court hearings .

According to LAW ORG , except for the circumstances specified in LAW CCrP , if the accused is absent from the hearing , the court ’s examination of the case must be postponed .

Under LAW CCrP , the appellate court must hold a preliminary hearing within DATE ( in some circumstances , within DATE ) of receiving an appeal . Persons who have the right to lodge an appeal , and the public prosecutor , have the right to be present at the preliminary hearing . These parties must be informed in advance of the time and place of the preliminary hearing ; however , their failure to attend does not prevent the preliminary hearing from taking place . If a convicted person who is detained lodges a request to participate in the preliminary hearing , it is for the court to order that he or she be brought to the hearing .

During the preliminary hearing the appellate court examines various admissibility issues and decides on a number of procedural matters , following which , in accordance with LAW CCrP , it can decide to fix a date for a hearing on the merits . According to LAW CCrP , if the court decides to proceed with the examination of the merits of the appeal and fixes a date for a hearing on the merits , it must also decide on the following issues , inter alia : whether a “ court investigation ” is necessary and , if so , its scope ; whether it is necessary to procure additional evidence ; and which persons should be invited to attend the hearing on the merits .

According to Article CARDINAL of the ORG ( which contains further references to Articles CARDINAL - CARDINAL of the CCrP ) , if the appellate court examines the appeal “ without a court investigation ” , the appeal hearing on the merits proceeds approximately as follows : the court ( a ) opens the hearing by , inter alia , explaining the substance of the first - instance judgment , summarising the points of appeal and asking if the parties have any objections ; ( b ) notifies the participants of any additional requests lodged at the appeal hearing ; ( c ) hears the arguments of the parties concerning the points of appeal ; ( d ) invites the parties to make closing statements and exercise their right of reply to the other party ’s closing statement ( in the manner stipulated in Articles CARDINAL - CARDINAL of the CCrP ) ; and ( e ) closes the hearing and retires to the deliberations room .

In accordance with Articles CARDINAL and CARDINAL of the ORG ( which contain further references to ORG of the CCrP ) , if the appellate court examines the appeal by means of a “ court investigation ” , the appellate hearing essentially takes the form of a full rehearing of the case resembling the first - instance trial ( but limited to the issues raised on appeal ) . Specifically , the appellate hearing proceeds approximately as follows : the court ( a ) opens the hearing by , inter alia , explaining the substance of the first - instance judgment , summarising the points of appeal and verifying if the parties have any objections ; ( b ) begins the “ court investigation ” by reading out the operative provisions of the public prosecutor ’s indictment , explaining to the accused the substance of the charges against him and his rights as an accused , and asking the accused whether he wishes to plead guilty or not guilty ; ( c ) questions the accused concerning all relevant aspects of the case and gives the other party the opportunity to cross - examine him , and , where necessary , examines any other statements made by the accused prior to the trial stage ; ( d ) determines the order in which evidence will be presented , invites the parties to present their evidence and examines the evidence in an open hearing , allowing the parties to cross - examine the witnesses : this includes hearing witnesses , reading out witness statements , hearing victims , examining expert opinions , questioning experts , examining material and documentary evidence , and so on ; ( e ) closes the “ court investigation ” by notifying the parties that the court is ready to proceed to closing statements and enquiring if the parties have any additional requests ; ( f ) invites the parties to make their closing statement and exercise their right of reply to the other party ’s closing statement ; ( g ) provides an opportunity for the defendant to make a final plea ; and ( h ) closes the hearing and retires to the deliberations room .

Under LAW of the ORG , when examining the merits of an appeal ORG deals only with points of law , verifying whether the rules of criminal law and criminal procedure have been applied correctly . Persons having the right to lodge a cassation appeal , and the public prosecutor , have the right to be present at ORG hearing ( LAW CCrP ) . The absence of the person who has lodged the appeal , if he or she has been duly informed of the hearing , does not prevent ORG from deciding to proceed with the hearing in his or her absence ( Article CARDINAL of the CCrP ) .

Article CARDINAL of LAW ( illegal acquisition , transfer , sale , storage , transportation or carrying of firearms or their accessories or explosives ) provides for a maximum sentence of CARDINAL PERSON imprisonment .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant was issued with an occupancy voucher ( yaşayış orderi ) for a flat in a recently constructed residential building in GPE on the basis of an order of ORG of DATE .

At the same time , the applicant became aware that the flat had been occupied by PERSON and his family , who were internally displaced persons ( “ ORG ” ) from Shusha , a region under the occupation of the NORP military forces following the NORP - GPE conflict over NagornoKarabakh .

According to the applicant , despite numerous demands , PERSON refused to vacate the flat , pointing out that he was an ORG and had no other place to live .

On an unspecified date in DATE the applicant lodged an action with ORG asking the court to order the eviction of PERSON and his family from the flat .

On DATE the ORG granted the applicant 's claim and ordered that PERSON and his family be evicted from the flat . The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of CARDINAL DATE and therefore that the flat was being unlawfully occupied by PERSON and his family .

No appeals were filed against this judgment and , pursuant to the domestic law in force at the material time , it became enforceable within DATE of its delivery . However , PERSON and his family refused to comply with the judgment and , despite the applicant 's complaints to various authorities , it was not enforced .

On an unspecified date in DATE , the applicant and a group of other persons who were in the same situation lodged an action with ORG complaining that ORG ( “ ORG ” ) had not taken measures to enforce the judgments .

On DATE ORG dismissed that complaint as unsubstantiated . The applicant appealed against this judgment . On DATE ORG quashed the first - instance court 's judgment and delivered a new judgment on the merits in the applicant 's favour . ORG held that ORG inaction had been unlawful and that the judgment of DATE should be enforced . Following a cassation appeal of PERSON and other persons against this judgment , by a decision of DATE , ORG quashed ORG judgment and remitted the case for a new examination . On DATE ORG quashed the judgment of DATE and terminated the civil proceedings . ORG held that the judgments should be enforced under the domestic law and there was no need to deliver a new judgment on that issue . It appears from the case file that ORG judgment was not challenged by the parties in the proceedings .

On DATE M. and a group of other persons who were in the same situation lodged a request with ORG asking for postponement of the execution of the judgment of DATE . PERSON alleged that , as he was an ORG , he had no other place to live but the flat in question .

On DATE the Yasamal ORG granted PERSON 's request and ordered the postponement of the execution of the judgment of DATE until PERSON could move to one of the houses recently constructed for temporary settlement of IDPs . The court relied on ORG on Approval of ORG ( “ LAW of DATE ” ) , according to which the relevant ORG organs were instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses , IDPs should not be evicted from public apartments , flats , lands and other LOC , regardless of ownership , they had settled in DATE . Following a series of appeal proceedings , on DATE the ORG delivered a new decision , which it subsequently rectified on DATE . The court granted PERSON 's claim and ordered the postponement of the execution of the judgment of DATE . It appears from the case file that the applicant did not challenge that decision .

On an unspecified date in DATE the applicant lodged an action against ORG on ORG , ORG and other authorities asking for compensation for non - enforcement of the judgment of DATE . On DATE ORG dismissed the applicant 's claim as unsubstantiated . On DATE ORG and on DATE ORG upheld the first - instance court 's judgment .

NORP citizens are entitled to obtain the right of use of apartments owned by the ORG or other public bodies under the terms of a tenancy agreement ( ORG CARDINAL and CARDINAL ) . A decision to grant an apartment is implemented by way of issuing the citizen with an occupancy voucher ( yaşayış sahəsi orderi ) from the local executive authority ( Article CARDINAL ) . The voucher serves as the sole legal basis for taking possession of the apartment designated therein ( Article CARDINAL ) and for concluding a tenancy agreement ( yaşayış sahəsini icarə müqaviləsi ) between the tenant and the housing maintenance authority ( Article CARDINAL ) . The right of use of apartments is granted for an indefinite term ( Article CARDINAL ) .

Individuals residing , pursuant to a tenancy agreement , in apartments owned by the ORG and other public bodies have a right to transfer those apartments into their private ownership ( LAW . Such privatisation is voluntary and free of charge ( LAW . The right to privatise a ORG - owned apartment free of charge may be exercised only once ( DATE ) .

NORP IDPs are defined as “ persons displaced from their places of permanent residence in the territory of GPE to other places within the territory of the country as a result of foreign military aggression , occupation of certain territories or continuous gunfire ” ( LAW ) . The IDPs may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed . Otherwise , the relevant executive authority must ensure that the internally displaced persons are resettled in other accommodation ( LAW .

DATE of ORG provides as follows :

“ In order to prevent the eviction of internally displaced persons from dwellings in which they settled DATE , the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended ... ”

DATE of the IDP Resettlement Regulations provides as follows :

“ In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals , the former must be provided with other suitable accommodation ”

In the order , inter alia , the relevant state organs of GPE are instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses , IDPs should not be evicted from public apartments , flats , land and other LOC , regardless of ownership , they had settled in DATE .

A judge examining a civil case may , at the request of a party to the case , decide to postpone or suspend the execution of the judgment or change the manner of its execution because of the parties ' property situation or other circumstances ( Article CARDINAL ) .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

In DATE the applicant ’s mother , ORG , became the owner of a QUANTITY plot of land in GPE and was registered as such in the land register . It would appear that the land in question was sequestered on DATE by the NORP authorities .

Meanwhile , in DATE the applicant ’s mother had built a garage and a QUANTITY residential building comprising of CARDINAL flats on it , but without recording them in the land register .

The applicant claims that in DATE , her mother and she were forcibly evicted from the building by the NORP authorities without any formal decision . She further claims that no proceedings leading to appropriation of the building were ever instituted , nor was it ever transferred into social ownership and registered as such in the land register .

During the NORP regime , the authorities awarded the flats in the building to various persons under specially protected tenancies ( stanarsko pravo ) .

On DATE , following the applicant ’s request , ORG ( Zemljišnoknjižni odjel ) of ORG ( PERSON ) recorded the building and the garage in the land register , and registered the applicant ’s mother as their owner , on the ground that the applicant ’s mother , who died in DATE , had until then been recorded in the land register as the owner of the plot of land on which those constructions had been built . Once the proceedings concerning her late mother ’s estate ended ( inheritance proceedings ) , on DATE the applicant , as her heir , registered herself as the owner of the property in question .

On DATE A.S. and A.B. , the tenants of CARDINAL flats located in the building at issue , brought a civil action against the applicant in ORG seeking : ( a ) a declaration that in DATE the building had been nationalised and transferred into social ownership , ( b ) a declaration of nullity of the applicant ’s and her mother ’s registration as owners in the land register , and ( c ) deletion of those entries from the land register and registration of the property in the name of GPE . GPE later intervened in the proceedings on the side of the plaintiffs .

On DATE ORG dismissed the plaintiffs’ action and ruled in favour of the applicant . The court held that , while LAW and Construction Land of DATE ( “ the DATE LAW ” ) had indeed provided that residential buildings conforming to certain criteria were nationalised and transferred into social ownership by its mere entry into force ( ex lege ) , it had also required the authorities to issue individual decisions determining which buildings had been nationalised under that LAW . Thus , in the absence of an individual decision issued in respect of the building in question , the court concluded that it had not been nationalised .

Following an appeal by the plaintiffs and the intervener , on DATE ORG ( Županijski sud u GPE ) reversed the first - instance judgment and ruled for the plaintiffs . It held that under LAW all residential buildings conforming to the criteria set forth in that LAW had been nationalised ex lege and that the individual decisions to be issued by the authorities had only been of a declaratory nature . Thus , the failure of the NORP authorities to issue such a decision in the applicant ’s case did not mean that the building in question had not been nationalised . The relevant part of ORG judgment read as follows :

“ The gist of the dispute between the parties is whether the building [ in question ] , in which the plaintiffs were holders of specially protected tenancy in respect of the flats in it , could be considered nationalised by the operation of law on DATE of the entry into force of [ LAW ] .

The first - instance court correctly found , given the absence of a decision on nationalisation of the said building ( ... ) , that as a preliminary issue it had to be determined whether the provisions of [ the DATE LAW ] could be applied to the building in question .

Relying on section CARDINAL of [ the DATE LAW ] , the first - instance court established beyond dispute that the building at issue has CARDINAL flats or CARDINAL small flats , as it did at the time the LAW had been passed , and that [ the LAW ] accordingly applied to it .

... However , the first - instance court is of the view that a decision on nationalisation should also have been rendered in order to establish which building or part of a building was nationalised , [ which meant that ] ‘ those buildings and parts of buildings in respect of which the competent authority did not establish that they were nationalised DATE in a decision rendered in the proceedings prescribed by [ the DATE LAW ] DATE were not nationalised.’

This view of the first - instance court is incorrect , primarily because it contradicts section CARDINAL(CARDINAL ) of [ LAW ] .

Section CARDINAL(CARDINAL ) of that Act expressly provided that buildings , parts of buildings and construction land passed into social ownership on DATE of [ its ] entry into force .

Therefore , what is important is the date of the entry into force of [ LAW ] and not the delivery of a decision .

On DATE of the Act ’s entry into force all immovable property to which [ it ] was applicable was by the operation of law nationalised and became social property . [ Accordingly ] , from that date the former owners were no longer able to exercise any prerogatives of an owner in respect of those buildings , and the decisions issued in implementation of that Act were of a declaratory character .

Therefore , the fact that a certain immovable property was nationalised by the operation of law on DATE of the entry into force of [ LAW ] , is not altered by the fact that a potential decision on nationalisation was not issued or executed in the land register , or even by the fact that , as in the present case , the property itself was not recorded in the land register .

As regards the arguments raised in reply to the appeal , it should also be said that even though the legal system of GPE no longer recognises social ownership , for certain legal relations derived from social ownership it is sometimes still necessary to interpret provisions of statutes enacted [ during the NORP regime ] . This does not mean that nationalisation is being carried out retroactively , because , as already stated above , it occurred in DATE , on DATE of the entry into force of [ the DATE LAW ] .

However , the protection of the rights of [ third ] persons acquired in the implementation of that and other statutes enacted in that period depends on their correct interpretation . In the present case that means protection of the rights of plaintiffs who acquired specially protected tenancy of ( and thereby the right to purchase ) the flats [ located ] in the building [ in question ] . ”

On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging violations of her constitutional rights to a fair hearing and ownership . On DATE ORG ( Ustavni sud PERSON ) dismissed her complaint . The relevant part of ORG decision read as follows :

“ LAW paragraph CARDINAL of the LAW provides :

The right of ownership shall be guaranteed .

ORG protects the right of ownership at the constitutional level in a manner that it prevents restriction or taking of that right by the state authorities , unless a restriction or taking is provided for by law .

ORG , having regard to the reasons [ adduced by ] the second - instance court ... , finds that the constitutional guarantee [ of ownership ] was not breached .

The provision of LAW paragraph CARDINAL of the LAW , which provides that ownership may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to its market value , is not relevant in the present case because it [ the case ] concerns [ a ] fact which occurred on DATE . ”

The relevant part of the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , ORG nos . CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , which entered into force on DATE , reads as follows :

LAW .

“ ( CARDINAL ) The acquisition , modification , legal effects or termination of rights in rem after the entry into force of this LAW shall be assessed on the basis of its provisions ...

( CARDINAL ) The acquisition , modification , legal effects and termination of rights in rem until the entry into force of this LAW shall be assessed on the basis of the rules applicable at the moment of the acquisition , modification or termination of those rights or of the legal effect thereof .

( CARDINAL ) ... ”

The relevant provisions of LAW and ORG ( Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta , ORG of ORG of Yugoslavia no . CARDINAL/CARDINAL DATE “ the DATE LAW ” ) , which entered into force on DATE , provided as follows :

I. GENERAL PROVISIONS

Section CARDINAL

“ ( CARDINAL ) Buildings , parts of buildings and construction land nationalised by this LAW shall become [ that is , be transferred into ] social property on DATE of its entry into force .

( CARDINAL ) A decision of the competent authority rendered in the proceedings prescribed by this LAW and [ relevant ] subordinate legislation ... , shall determine which objects are nationalised by this LAW . ”

II . OBJECT OF NATIONALISATION

Residential buildings and special parts of residential buildings

Section CARDINAL

“ On DATE of the entry into force of this LAW the following [ property ] shall be nationalised :

CARDINAL ) NORP residential buildings , that is , privately owned buildings with CARDINAL flats or with CARDINAL small [ CARDINAL - room ] flats ;

CARDINAL ) NORP ... ”

ORG has consistently held that the nationalisation of property falling within the scope of the DATE LAW had occurred by the operation of law ( ex lege ) , that is , by the LAW ’s mere entry into force on DATE , and that the decisions issued pursuant to its section CARDINAL(CARDINAL ) had had been merely declaratory . Accordingly , the absence of such a decision or the failure of the competent authorities to record in the land register that the property had been transferred into social ownership had been of no relevance ( see judgments in cases nos . CARDINAL of DATE , Rev-CARDINAL/CARDINAL - CARDINAL of DATE and PERSON CARDINAL/CARDINAL - CARDINAL of DATE and decision no . LAW of DATE ) .

The Act on Compensation for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , PERSON ( amendments ) and DATE ( corrigendum ) DATE “ the DATE LAW ” ) , which entered into force on DATE , enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and spouse ) , to seek under certain conditions either restitution of or compensation for appropriated property .

Section CARDINAL(CARDINAL ) provides that former owners shall have the right to restitution of , or compensation for , property appropriated on the territory of GPE on the basis of legislation listed in that section , including LAW .

Section CARDINAL provides that former owners shall also have the right to restitution of , or compensation for , property appropriated by judgments , decisions , rulings or other acts issued by military or civilian authorities from DATE until the enactment , or in the implementation of legislation listed in section CARDINAL of LAW , as well as for property appropriated without a legal ground or without basis in any legislation .

Section CARDINAL of the Denationalisation Act provided that nationalised flats in respect of which third persons had acquired specially protected tenancies ( stanarsko pravo ) were not to be restored to their former owners . The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) . At the same time , the former owners were entitled to financial compensation in respect of the flats . Section CARDINAL reads as follows :

“ ( CARDINAL ) Unless they were appropriated by means of confiscation , the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners .

( CARDINAL ) The former owner shall have the right to compensation and the tenant [ i.e. the holder of a specially protected tenancy ] shall have the right to purchase the flat . ”

Section CARDINAL(CARDINAL ) provides that the former owners have to lodge their requests within DATE from the LAW ’s entry into force ( that is , by DATE ) . Section CARDINAL ) provides that requests submitted after that date shall be declared inadmissible , resulting in the loss of all rights under LAW .

Section CARDINAL , which stipulates what documents should be enclosed with the request of the former owner , prescribes that such a request should be accompanied by , inter alia , the act whereby the property was transferred into state or social ownership ( “ akt o podržavljenju , odnosno podruštvovljenju imovine ” ) as well as an extract from the land register containing all entries from the date the property was transferred into state or social ownership .

Section CARDINAL provides that if in the administrative proceedings for restitution of , or compensation for , property appropriated during the NORP regime a dispute arises between the parties as regards facts on which a certain right of theirs depends , or as regards the existence of a right , the competent administrative authority shall stay the administrative proceedings and instruct the parties to bring a civil action or institute other proceedings before the competent authority .

In interpreting LAW held that the DATE time - limit stipulated in its section CARDINAL(CARDINAL ) was of a substantive - law nature ( decision no . ORG of DATE ) and preclusive in its character ( decision ORG of DATE ) , meaning that after its expiry a former owner lost his or her right to restitution of or compensation for property appropriated during the NORP regime .

In its decision no . Us-CARDINAL/CARDINAL of DATE ORG held that the former owner was entitled to obtain compensation for property appropriated during the NORP regime even if the decision on nationalisation had never been recorded in the land register and he had remained recorded as the owner of the nationalised property .

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) provide as follows :

Section CARDINAL ) provides that if the authority before which the administrative proceedings are pending finds that the case can not be decided without deciding an issue the resolution of which is within the competence of a court or other authority ( preliminary issue ) , it may decide on that issue itself or stay the administrative proceedings until the competent authority resolves it .

Section CARDINAL provides that administrative proceedings that ended in a definitive decision may be reopened if , inter alia , the contested decision is based on a preliminary issue which the competent authority later resolved differently in important aspects .


Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE , DATE , DATE and DATE respectively and live in NORP and NORP

The first applicant is married to the second applicant and the third applicant to the fourth applicant .

The first applicant suffers from fallopian - tube - related infertility ( eileiterbedingter PERSON ) . The second applicant , her husband , is also infertile .

The third applicant suffers from agonadism ( PERSON ) , which means that she does not produce ova at all . Thus she is completely infertile but has a fully developed uterus . The fourth applicant , her husband , in contrast to the second applicant , can produce sperm fit for procreation .

On DATE the first and third applicants lodged an application ( PERSON ) with ORG ) for a review of the constitutionality of section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW ( Fortpflanzungsmedizingesetz - see Relevant domestic law below ) .

The applicants argued before ORG that they were directly affected by the above provisions . The first applicant submitted that she could not conceive a child by natural means ; thus the only way open to her and her husband would be in vitro fertilisation using sperm from a donor . That medical technique was , however , ruled out by section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW . The third applicant submitted that she was also infertile . Suffering from agonadism , she did not produce ova at all . Thus , the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryotransfer , which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant . However , that method was not allowed under LAW .

The first and third applicants argued before ORG that the impossibility of using the above - mentioned medical techniques for medically assisted conception was a breach of their rights under LAW . They also relied on LAW , which guarantees equal treatment .

On DATE ORG held a public hearing in which the first applicant , assisted by counsel , participated .

On DATE ORG decided on the first and third ORG request . ORG found that their request was partly admissible in so far as the wording concerned their specific case . In this respect , it found that the provisions of section CARDINAL of LAW , which prohibited the use of certain procreation techniques , was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken .

As regards the merits of their complaints ORG considered that LAW was applicable in the applicants’ case . Although no case - law of ORG existed on the matter , it was evident , in ORG view , that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under LAW .

The impugned provisions of LAW interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation . As for the justification of such an interference , ORG observed that the legislature , when enacting LAW , had tried to find a solution by balancing the conflicting interests of human dignity , the right to procreation and the well - being of children . Thus , it had enacted as leading features of the legislation that , in principle , only homologous methods – such as using ova and sperm from the spouses or the cohabiting couple itself – would be allowed and only methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception . The aim was to avoid the forming of unusual personal relations such as a child having more than one biological mother ( a genetic mother and CARDINAL carrying the child ) and to avoid the risk of exploitation of women .

The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well - being of children thus conceived , their health and their rights , and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( PERSON ) .

Applying the principle of proportionality under LAW , however , such concerns could not lead to a total ban on all possible medically assisted procreation techniques , as the extent to which public interests were concerned depended to a large extent on whether a heterologous or homologous technique was used .

In ORG view , the legislator had not overstepped the margin of appreciation afforded to member GPE when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception . This compromise reflected the current state of medical science and the consensus in society . It did not mean , however , that these criteria were not subject to developments which the legislator would have to take into account in the future .

NORP The legislator had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques . Besides strictly homologous techniques it had accepted insemination using sperm from donors . Such a technique had been known and used for a long time and would not bring about unusual family relationships . Further , the use of these techniques was not restricted to married couples but also included cohabiting couples . In so far , however , as homologous techniques were not sufficient for the conception of a child the interests of the individuals concerned ran counter to the above - mentioned public interest .

ORG also found that for the legislator to prohibit heterologous techniques , while accepting as lawful only homologous techniques , was in accordance with the prohibition of discrimination as contained in the principle of equality . The difference in treatment between the CARDINAL techniques was justified because , as pointed out above , the same objections could not be raised against the homologous method as against the heterologous one . As a consequence the legislator was not bound to apply strictly identical regulations to both . Also , the fact that insemination with donor sperm was allowed while ova donation was not did not raise a discrimination issue because again , as pointed out above , there was no risk of creating unusual relationships which might adversely affect the well - being of a future child as there was with heterologous insemination .

Since the impugned provisions of LAW were in line with LAW and the principle of equality under LAW , there had also been no breach of LAW .

NORP This decision was served on the first and third applicants’ lawyer on DATE .

LAW ( Fortpflanzungsmedizingesetz , ORG DATE ) regulates the use of medical techniques for inducing conception of a child by means other than copulation ( section CARDINAL(CARDINAL ) ) .

These methods comprise : ( i ) introduction of sperm into the reproductive organs of a woman , ( ii ) unification of ovum and sperm outside the body of a woman , ( iii ) introduction of viable cells into the uterus or fallopian tube of a woman and ( iv ) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman ( section CARDINAL(CARDINAL ) ) .

Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage , and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success ( section CARDINAL ) .

NORP Under section CARDINAL(CARDINAL ) , only ova and sperm from spouses or from persons living in a relationship similar to marriage ( GPE ) may be used for the purpose of medically assisted procreation . In exceptional circumstances , sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman ( section CARDINAL(CARDINAL ) ) . In all other circumstances , and in particular for the purpose of in vitro fertilisation , the use of sperm by donors is prohibited .

Under section CARDINAL(CARDINAL ) , ova or viable cells may only be used for the woman from whom they originate . Thus ova donation is always prohibited .

The further provisions of LAW stipulate , inter alia , that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries ( section CARDINAL ) and with the express and written consent of the spouses or cohabiting persons ( section CARDINAL) .

In DATE LAW was supplemented by LAW Fertilisation Treatment ( FAC ein Fonds zur Finanzierung der In - vitro - ORG eingerichtet wird – ORG I No . DATE ) in order to subsidise in DATE vitro fertilisation treatment allowed under LAW .

On the basis of the material available to the ORG , including the document “ Medically - assisted ORG and ORG on the ORG in GPE ” ( ORG , DATE ) and the replies by the member ORG to ORG on ORG LAW ( ORG , DATE ) , it would appear that ORG treatment is regulated by primary or secondary legislation in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE such treatment is governed by clinical practice , professional guidelines , royal or administrative decree or general constitutional principles .

The study in particular sets out the position of domestic law as regards CARDINAL different artificial procreation techniques : artificial insemination within a couple , in vitro fertilisation within a couple , artificial insemination by sperm donor , ova donation , ova and sperm donation , embryo donation and intracytoplasmic sperm injection ( an in vitro fertilization procedure in which a single sperm is injected directly into an egg ) .

As far as can be seen , sperm donation is currently prohibited only in CARDINAL countries : GPE , GPE and GPE , which all ban heterologous assisted fertilisation as a whole . Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation . As regards the donation of ova , it is prohibited in GPE , GPE , GPE and GPE , in addition to the CARDINAL countries mentioned above . Since GPE in practice allows donation of sperm only for non - in vitro fertilisation , the legal situation is quite similar to the situation in GPE .

In a number of countries , such as GPE , GPE , GPE , GPE , GPE , GPE and GPE , where the matter is not regulated , the donation of both sperm and ova is used in practice .

A comparison between ORG study of DATE and a survey conducted by ORG of DATE shows that in the field of medically assisted procreation legal provisions are developing quickly . In GPE , GPE and GPE sperm and ova donation , which was previously prohibited , is now allowed since the entry into force of new legal provisions in DATE , DATE and DATE respectively . In GPE sperm donation for in vitro fertilisation has been allowed since DATE , but not ova donation .

Principle CARDINAL of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences , the expert body within ORG which preceded the present ORG ( ORG , DATE ) , states :

“ CARDINAL . In principle , in vitro fertilisation shall be effected using gametes of the members of the couple . The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro . However , in exceptional cases defined by the member states , the use of gametes of donors may be permitted . ”

The Convention on Human Rights and Biomedicine of DATE does not deal with the question of donation of gametes , but forbids to use a medically assisted reproduction technique to choose the sex of a child . Its Article CARDINAL reads as follows :

“ The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child ’s sex , except where serious hereditary sex - related disease is to be avoided . ”

The Additional Protocol to the above Convention , on Transplantation of ORG and Tissues of Human Origin , of DATE , which promotes donation of organs , expressly excludes from its scope reproductive organs and tissues .


The applicant , born in DATE , is a NORP national and resident in GPE . When lodging his application , he was serving a prison sentence in FAC . In the proceedings before the ORG , he is represented by PERSON R. ORG , a lawyer practising in ORG . The respondent Government are represented by Mr PERSON , ORG .

A.

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

In DATE criminal proceedings were instituted against the applicant and others on the suspicion of inter alia theft . In these proceedings , the applicant was assisted by a court - appointed defence counsel .

The trial against the applicant and the CARDINAL co - accused , PERSON opened before ORG ( Landgericht ) on DATE . In the course of the trial , the applicant repeatedly applied to the presiding judge to be allowed to put personally questions to the co - accused S. This was refused . The applicant ’s defence counsel did not put the questions concerned .

On DATE the ORG convicted the applicant of CARDINAL counts of theft . Taking into account the applicant ’s previous sentences imposed by ORG ( Amtsgericht ) in DATE and ORG in DATE , respectively , ORG fixed a cumulative sentence of CARDINAL years’ imprisonment . Moreover , he was convicted of kidnapping ( räuberischer ORG ) and extortion with violence ( räuberische GPE ) as well as of theft on CARDINAL counts and , in respect of these offences , a cumulative sentence of CARDINAL years’ imprisonment was imposed . He was acquitted of the remainder of charges .

ORG convicted the co - accused PERSON kidnapping and extortion with violence and , taking into account his previous prison sentence , it fixed a cumulative sentence of DATE and CARDINAL months’ imprisonment and confirmed his preventive detention . PERSON was convicted of kidnapping and extortion with violence on CARDINAL counts as well as of CARDINAL counts of theft , and he was sentenced to DATE imprisonment .

In its judgment , insofar as it concerned offences involving the applicant , ORG found that in DATE the applicant and PERSON had committed several burglaries and , together with PERSON , they had taken part in a bank robbery . Moreover , DATE , the applicant , while serving an earlier prison sentence in an open prison , had committed further counts of burglaries with PERSON and other persons , including PERSON , who had meanwhile been convicted .

ORG noted that the accused Mr S. had fully confessed his participation in the offences in question . The applicant had , to a large extent , confessed his participation in the burglaries . These statements were confirmed in particular by the statements made by the other participants in the offences in question as well as by the statements of the victims as to the stolen goods .

As regards the offences of kidnapping and extortion with violence , ORG found that the applicant had denied any participation in bank robberies , which had taken place on CARDINAL and DATE , respectively .

ORG found that the statements made by the co - accused Mr S. on the bank robbery of DATE , including his indications as to the participation of the applicant and the co - accused PERSON , were credible . In this respect , ORG considered that several witnesses had confirmed Mr S. ’s account of details of the robbery .

ORG rejected the applicant ’s and GPE ’s defence that Mr S. had made false statements about his and their participation in this offence . ORG noted their allegation that PERSON himself had intended to obtain a long term of imprisonment or that he had wanted to cause sensation and that he had wanted to revenge himself on them . ORG considered that these arguments were far - fetched . In particular , PERSON own participation in the offence was proven by his detailed knowledge about the robbery . Moreover , PERSON had stated a valid reason for his confession , namely the intention to terminate his criminal activities and to start a new life following therapy in the course of his detention after conviction . From the angle of psychiatric evidence , ORG found no indication that , due to mental reasons , PERSON had wrongly accused himself and the co - accused . According to ORG , PERSON disappointment and annoyance about bad treatment and insufficient pay by the applicant might have contributed to his open confession . However , there was nothing to show that he had therefore wrongly accused the applicant of a serious criminal offence . Moreover , there was no explanation that , for such a reason , PERSON would wrongly accuse himself and PERSON , who in the past had been his friend .

In assessing the credibility of PERSON , ORG had also regard to the general context of statements made in the course of the investigations against the persons involved in the offences in question . It noted that , following the full confession of Mr S. at an early stage , the applicant and the other accused , who had been prosecuted separately , had confessed their participation in the burglaries . Furthermore , an accomplice , who had been prosecuted separately , had stated that the applicant had told him in the course of a telephone conversation in DATE that he had robbed a bank . ORG noted that the applicant had admitted the contents of this conversation , pretending that it had been a joke . Further statements made by PERSON the weapon used in the course of the robbery as well as statements made by witnesses on the circumstances of the bank robbery confirmed Mr S. ’s deposition . The applicant ’s and PERSON affirmations that they had been elsewhere at the relevant time were contradictory and inconclusive . The witnesses named by them had not confirmed their alleged alibi .

ORG dismissed the applicant ’s request to hear PERSON , one of the accomplices having been convicted in separate proceedings , on the question that the applicant had never talked about having been with the other accused after the bank robbery . ORG considered that this issue was irrelevant , as the circumstance that the applicant had not told others about his participation in the offence could not prove his innocence .

As regards the second bank robbery of DATE , ORG found that the statements of Mr S. were credible as far as his own participation in the offence was concerned . However , as regards his accusation of a participation of the applicant and PERSON , his statements , though plausible , were , unlike in the other case , not corroborated by any other evidence . ORG therefore acquitted the applicant and PERSON of the charges in respect of the bank robbery of DATE .

On DATE ORG ( ORG ) , upon the applicant ’s appeal on points of law ( Revision ) , quashed ORG judgment as far as the fixing of a cumulative sentence of CARDINAL years’ imprisonment was concerned , and referred this matter back to ORG . The remainder of the appeal was dismissed .

ORG found in particular that ORG had not been required to stay the criminal proceedings and to refer to ORG the question concerning the constitutionality of section CARDINAL(CARDINAL ) , second sentence , of the NORP Code of Criminal Procedure ( PERSON ) , excluding the direct questioning ( direkte GPE ) of an accused by a co - accused .

According to ORG , the decisions of the Presiding Judge on this matter could not be objected to from a procedural point of view . Moreover , in the circumstances of the present case , the applicant , as conceded by him , could have availed himself of the opportunity to have his questions to the co - accused Mr S. put by the Presiding Judge . Having regard to LAW ( d ) of the LAW , ORG considered that the right to examine or have examined witnesses against him was a procedural right of the defence . However , it was the applicant ’s own submission that his defence counsel had not wished to put questions to Mr S.

As regards the fixing of the sentence of CARDINAL years’ imprisonment , ORG found that ORG reasoning did not show that it had considered the cumulative effect of CARDINAL years’ imprisonment appropriate .

On DATE ORG ( ORG ) refused to entertain the applicant 's constitutional complaint ( ORG ) about his conviction by ORG , as confirmed by ORG .

ORG considered that the complaint did not raise any fundamental questions of constitutional law and that the refusal of a decision on the merits did not cause the applicant any particularly serious disadvantage .

As regards the main issue raised by the applicant , ORG found that section CARDINAL(CARDINAL ) , second sentence , of LAW was not unconstitutional . This provision did not affect the right of an accused to a fair trial . In this respect , ORG recalled that in a fair trial an accused should not be the object of proceedings , but be in a position actively to participate in the proceedings in order to safeguard his rights . Section CARDINAL(CARDINAL ) , second sentence , did not limit the contents of the right of the defence to examine a co - accused . In the interest of the proper conduct of the trial , the right to put questions to a co - accused was merely limited to an indirect questioning , i.e. the right to have a co - accused examined by the defence counsel or by the presiding judge . In these circumstances , there was no indication of a breach of the right to a fair trial .

The decision was served on DATE .

PERSON Relevant domestic law

Section CARDINAL of the Code of Criminal Procedure provides as follows :

“ CARDINAL . Upon request , the presiding judge shall permit the associate judges to address questions to the accused , to witnesses and to experts .

The presiding judge shall permit the public prosecutor ’s office , the accused and the defence counsel , as well as the lay judges , to do the same . Direct questioning of an accused by a co - accused is not permitted . ”


The application was originally introduced by PERSON , a GPE national , born in DATE and living in GPE . Following her death in or DATE , her daughter PERSON has expressed her intention of continuing the application . She is represented before the ORG by PERSON , legal director of ORG , GPE .

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

PERSON , the sister of the applicant , was born in DATE and killed in DATE .

In DATE , PERSON started associating with CARDINAL older men , Mr B and Mr T. She had sex with them and smoked cannabis . On DATE , she took an overdose of paracetamol tablets following an argument with her mother . She was seen by an adolescent psychiatrist who found no ascertained evidence of mental illness and attributed her conduct to “ rebellion in the context of a liberal household ” .

On DATE , PERSON was referred to the social services .

The applicant ’s mother sought the help of ORG and ORG repeatedly in relation in particular to her concerns about PERSON ’s contacts with B and PERSON Though she told the police after each occasion that she was aware that PERSON had passed the night at the men ’s flats , she stated that she was told that they could do nothing as PERSON refused to complain .

On DATE , a case conference was convened by PERSON ’s social worker using child protection law . It was attended by CARDINAL social workers , CARDINAL police officers from the sexual offences and child abuse unit and the applicant . It was decided that , first , the police officer would liase with ORG about PERSON ’s exposure to drugs and talk to T to reinforce concern about his relationship with PERSON and , secondly , the social worker would continue working with PERSON in the hope that the latter would begin to recognise the risks to which she was exposed because of her relationship with T.

In DATE the applicant ’s mother wrote to the police and received a reply to the effect that “ her comments had been passed on to the officers in the case ” . The applicant ’s mother was not aware of any action being taken .

In DATE PERSON , now aged DATE , left home to live with T. However , in DATE she returned home .

In DATE however PERSON began working as a prostitute ( unbeknown to her mother ) on B ’s instructions . On DATE , DATE , PERSON left home in the evening telling her mother that she would not return that TIME . When she had not returned by DATE TIME , DATE , her mother reported her missing to the police . On DATE , she was taken to the mortuary where she identified the body of a girl found on DATE as being PERSON . PERSON had been killed by a client , D , who hit her head repeatedly on the floor .

D was arrested on DATE .

An inquest into PERSON ’s death was opened on DATE at the ORG ’s ORG in GPE . Since the Coroner had been informed that D had been charged with murder , the inquest was adjourned . On DATE , a death certificate was issued to the effect that PERSON had died of head injuries . The inquest was not resumed in the light of the criminal proceedings .

In DATE D pleaded guilty to murder and was sentenced to life imprisonment .

On DATE , the applicant ’s mother wrote to the Chief Constable of the South Yorkshire Police raising various questions about the lack of police action before PERSON ’s death , including a specific question as to why LAW had not been used . On DATE she received a reply in which a representative of the police referred to the difficulties of applying various provisions of the criminal law in this case , but acknowledged “ with the benefit of hindsight that more could have been done to prevent < PERSON > from being drawn into the maelstrom of drugs and vice . ”

On DATE , the applicant ’s mother issued a writ in ORG against ORG and ORG claiming damages for negligence . She applied for legal aid , submitting a statement of case in which she alleged that the police and social services had been aware of her daughter ’s connection with CARDINAL men with criminal records and had been warned that she was being led into underage sex and drugs . It was argued that there was no absolute immunity against suing the police , this depending on sufficient proximity existing between the parties , and that in this case the police and social services should have taken decisive action to protect PERSON from these men and prevented her from drifting into prostitution with its inevitable consequences . On the form where it was required to estimate prospects of success of the action , the solicitor indicated that it was not possible to say .

On DATE , ORG area office refused the applicant ’s mother legal aid for these proceedings , stating that “ on the information submitted it is considered that you are unlikely to succeed in establishing negligence either in relation to your daughter ’s death or in relation to your own post - traumatic stress ” .

On DATE , after a hearing at which the applicant ’s mother and her legal representative had attended to make representations as to why legal aid should be granted , the ORG area committee rejected her appeal on the ground that it had no reasonable prospects of success .

On DATE , the applicant ’s mother was advised by counsel that the common law position was such as to preclude her from pursuing a claim for damages in the domestic courts .

The applicant ’s mother made requests to various authorities for information about the background to and circumstances of PERSON ’s death . By letter dated CARDINAL DATE , ORG informed her that PERSON ’s file would have been destroyed in DATE , pursuant to a DATE rule applying to persons who were not on a child protection register or otherwise in the care of the social services .

By letter dated DATE , the applicant ’s mother was informed by ORG that records existed holding details of the enquiry into PERSON ’s murder , but that they were not in a position to give any information additional to the extensive material provided during the police investigation by the Senior Investigating Officer . By letter dated DATE , the solicitors for the Chief Constable of GPE Police disputed that they were under an obligation to provide any further information or documents , and stated that the Chief Constable would however do so if ordered by a court .

Following further requests to the social services , documents from ORG , including the case conference TIME , were given to the applicant ’s mother on DATE .

In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation . Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ; and ,

– that it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

In PERSON v. Chief Constable of GPE ( DATE A.C. CARDINAL ) , the mother of a victim of the PERSON instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of various murders and to protect members of the public who might be his victims . Lord PERSON in ORG found that there was no sufficient foreseeability of harm to this victim , there being no general duty of care to protect all young females from a risk at large and that the imposition of liability was also excluded by strong policy reasons relating to the operational efficiency of the police . Exceptions to this approach arose in later cases ( e.g. FAC and another v. the Chief Constable of GPE [ DATE ] Q.B. CARDINAL ) .

In X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) , ORG held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . In subsequent cases , it was not excluded that in certain circumstances a duty of care might arise ( see e.g. PERSON v. ORG of GPE [ DATE ] CARDINAL WLR CARDINAL ) .