Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Josep Casadevall;Ledi Bianku;Luis López Guerra;Nicolas Bratza;Peer Lorenzen

The applicant was imprisoned in GPE in DATE for his involvement in a bombing for which ORG ( “ IRA ” ) was held responsible . On DATE he escaped from prison .

In DATE a high profile kidnapping in GPE ended in a gunfight with the security forces . The kidnapped man was released but a soldier and policeman were killed . A forensic report identified fingerprints found on items at the crime scene as those of the applicant . On DATE an internal police circular was issued stating that the applicant was wanted on serious charges connected to the kidnapping .

In DATE the applicant was arrested in the GPE . In DATE he was extradited to GPE where he resumed serving his sentence . The NORP police did not interview the applicant about the kidnapping while in prison in GPE for the reasons later outlined by ORG ( see paragraph CARDINAL below ) .

From DATE the applicant was granted periods of temporary release during which he visited GPE . In DATE he was released on parole from prison in GPE .

On DATE the applicant was arrested in GPE by the NORP police under LAW , as amended ( “ ORG ” ) . He was questioned and charged before ORG ( “ SCC ” ) with offences relating to the kidnapping : false imprisonment , unlawful possession of firearms and kidnapping ( a life sentence was the maximum prison term for the first and third charge ) . The SCC later noted ( prior to dismissing the charges in DATE ) that the evidence against the applicant was an admission he had made during his police interviews that he had been at the kidnap location ( which admission he had denied in evidence before the SCC ) as well as the fingerprint evidence .

On DATE an official of ORG , ORG received a printed notice of the report of the applicant 's arrest and he made handwritten notes thereon ( “ memorandum of CARDINAL CARDINAL ” ) . The applicant submitted that those notes proved that the NORP police had been aware of his presence in GPE prior to his arrest .

He applied for bail and on DATE he was released on bail , subject to certain reporting conditions . ORG later noted that he had to sign on once a month at a police station in GPE ( a QUANTITY round trip from his home in GPE ) and that he had also to attend on CARDINAL occasions since DATE at the SCC in GPE ( a round trip of QUANTITY ) during the criminal proceedings against him .

On DATE the Book of Evidence ( statement of the evidence on which the prosecution proposed to rely ) was served on the applicant . The Government maintained that the applicant informed the SCC on that date that he might bring judicial review proceedings to prohibit his trial on grounds of delay prior to his arrest .

Correspondence took place between the prosecution and the applicant from DATE on disclosure by the prosecution of any other relevant evidence not in the Book of Evidence : it concerned correspondence between the NORP and other authorities as regards his whereabouts prior to his arrest in DATE and matters relating to the fingerprint issue . The case was put in for mention on the SCC list CARDINAL times between DATE and DATE . On the latter date the disclosure issues were resolved with further disclosure by the prosecution .

It was through this disclosure process that the applicant was made aware of the loss ( on DATE ) of the items on which the original fingerprints had allegedly been found ( “ the original fingerprint evidence ” ) . The forensic report ( including photographs of the original fingerprints ) was retained and available . The ORG submitted that the applicant was informed of this loss on DATE .

A trial date was fixed for DATE .

The applicant then took expert advice as to the implications for his trial of the loss of the original fingerprint evidence . In DATE the expert advised that the fingerprint evidence could not be comprehensively evaluated from the forensic report retained .

On DATE the applicant was granted leave to apply for judicial review and , further , a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings . The relief sought by the applicant included a declaration that the delay until DATE ( mainly concerning the pre - arrest delay ) was irreparably prejudicial to a fair trial , a declaration that the loss of the original fingerprint evidence limited his ability to contest the evidence against him as well as an order prohibiting his further prosecution on these bases . The return date for this application was DATE and the trial date was vacated . The application was re - listed once DATE ( from DATE ) and on DATE the prosecution filed its ORG .

On DATE the applicant requested voluntary discovery from the prosecution . No substantive response having been received , on DATE he filed a notice of motion for such discovery . While the return date for the motion was in DATE , the parties agreed to adjourn it to the first hearing date ( DATE ) . Neither party attended on that date , due to a misunderstanding , and the motion was struck out . The applicant submitted that he then sent several letters to the prosecution to obtain its consent to re - enter the motion : the Government accepted that CARDINAL such letter from the applicant ( of CARDINAL DATE ) was on the file .

The applicant filed a fresh motion for discovery on DATE and a return date was accorded ( DATE ) . On the latter date the prosecution agreed to make voluntary discovery and , on DATE , the prosecution filed an affidavit of discovery listing CARDINAL documents in its schedule . This list included the memorandum of CARDINAL DATE but the applicant did not request sight of that document at that point . On DATE the applicant 's motion for discovery was therefore struck out on a consent basis .

On DATE the prosecution applied to re - enter the applicant 's judicial review action and a hearing date was set for DATE .

The applicant then filed a motion for further and better discovery returnable before the Master of the High Court on DATE . The Master refused the order sought ( DATE ) as did ORG on appeal ( on DATE ) .

When the prohibition action came on for hearing on DATE , a judge was not available to hear the case . It was adjourned to DATE , when it was heard .

On DATE the ORG delivered an ex tempore judgment . ORG made an order prohibiting the trial of the applicant on the basis that the loss of the original fingerprint evidence meant that there was a real or serious risk of an unfair trial . ORG rejected the applicant 's claim based on the delay : the decision to prosecute was a decision of the prosecuting authorities and depended on the sufficiency of evidence ; there were no grounds to suggest that any delay was deliberate ; and the decision to prosecute was prompted by new evidence ( the applicant 's alleged admission during questioning following his arrest in DATE ) .

On DATE the prosecution appealed and the applicant lodged a cross - appeal . On DATE the prosecution lodged ORG . Since ORG judge did not formally approve his judgment until DATE , the prosecution could not file ORG ( that the appeal was ready to be heard ) until DATE .

On DATE the applicant was granted leave to have his crossappeal heard with the prosecution 's appeal . On DATE the appeal hearing took place before ORG .

On DATE ORG delivered its judgment allowing the prosecution 's appeal and refusing the applicant 's cross - appeal . As to the lost original fingerprint evidence , there had been a forensic examination of the fingerprints before they were lost and the results of that examination were preserved so that the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and he had therefore not demonstrated that there was a real risk of an unfair trial . As to the impugned pre - arrest delay , all CARDINAL judges of ORG considered that that lapse of time was not such as should give rise to a prohibition order . The court considered it legitimate for the NORP police to have waited for his release from prison to arrest him under section CARDINAL of the ORG . There was insufficient evidence to initiate a prosecution prior to his being questioned . The parameters of any questioning while he was in prison in GPE would have been entirely different from those applicable to a person arrested under section CARDINAL of the FAC . In this latter respect , he was obliged to at least listen to the questions ; the structure and duration of the questioning ( subject to the proper treatment of persons in custody ) would have been under their control and not under that of other ( NORP ) authorities or that of the applicant himself ; and , in the end , he made some statements during questioning which provided additional evidence and , consequently , a basis to initiate a prosecution . PERSON partly dissented as regards the loss of the original fingerprint evidence only : in doing so he referred to the advice on the issue of the applicant 's expert .

Following this judgment , the stay on the criminal proceedings pending the first prohibition action was lifted . On DATE the SCC fixed the applicant 's trial for DATE .

On CARDINAL DATE the applicant was granted leave by ORG to seek judicial review and , further , a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings . He sought a declaration and a prohibition order on the basis that the delay since DATE ( namely , during his first prohibition action ) had delayed the criminal proceedings which had , inter alia , violated his constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial .

On DATE ORG refused the prohibition application . It considered that , at best , the evidence demonstrated at most CARDINAL periods of unnecessary delay by the prosecution during the first judicial review action . However , any increased stress or culpable delay and impact on his right to an expeditious trial did not outweigh the community 's considerable interest in having offences of such gravity prosecuted .

The applicant appealed by notice dated CARDINAL DATE . ORG heard the appeal on DATE . On DATE judgment was delivered dismissing the appeal unanimously . PERSON , PERSON and PERSON delivered separate judgments , with PERSON and PERSON concurring .

Fennelly J. noted that , while the applicant had included in his motion a request for “ any further and/or other relief as this Honourable Court deems meet and just ” , the only substantive relief specifically and explicitly sought by him was the prohibition of his trial on grounds of delay . Such a prohibition could only be granted if there were a real risk that his trial would be unfair , and this had been rejected in the first judicial review proceedings as regards the delay prior to the preferment of charges and was undemonstrated as regards the length of the first judicial review proceedings .

However , ORG noted that the courts had also recognised the possibility of making a prohibition order for the quite distinct reason that there had been a breach of an accused 's right to trial with “ reasonable expedition ” . Noting that the judgment of PERSON in PERSON v. PERSON ( ( DATE ) CARDINAL GPE CARDINAL ) of ORG of GPE had been influential in the development of the case - law of the NORP courts on the right to reasonable expedition and the consequences of its breach , ORG stated that “ we have now established a consistent approach , particularly in some recent cases ” .

Referring to the approach of ORG in DATE v ORG ( [ DATE ] CARDINAL I.R. CARDINAL ) and to the reiteration of that approach by PERSON in DATE v ORG ( [ DATE ] CARDINAL ORG CARDINAL ) , PERSON considered that it was necessary to consider , firstly , whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant 's right to a trial with due expedition and , secondly , assuming an affirmative answer to that question , whether , having regard to all the circumstances , the ORG should make an order prohibiting ORG ( “ ORG ” ) from continuing with his prosecution .

As to the first question , PERSON considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment ( DATE ) . However , the applicant had taken no steps to expedite the appeal , probably because of the ORG prohibition order . While this delay was significant , in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him .

As to the second question , and even assuming there had been a breach of his constitutional right to an expeditious hearing , the circumstances did not warrant a prohibition order : any delay of DATE was not significant in the trial for offences alleged to have been committed in DATE . As to his anxiety caused by delay , he was , during that period of delay , the holder of an order of ORG prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them . In addition , the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review .

Finally , ORG noted that the right to a trial within “ a reasonable time ” and to a trial “ with reasonable expedition ” were “ indistinguishable ” . However , he differentiated between this ORG 's finding of unreasonable delay under LAW with an award of just satisfaction ) , on the one hand , and the balancing exercise a domestic court had to carry out between delay and the public interest in pursuing crime in a prohibition action on grounds of delay ( the domestic proceedings ) , on the other . This ORG 's role ( and therefore the criteria used by it ) was more analogous to the decision as to whether delay violated the constitutional right to expeditious proceedings . He noted the ORG 's submission to this ORG in GPE v. GPE ( no . CARDINAL , § DATE , DATE ) to the effect that judicial review was an effective domestic remedy and that “ damages might have been available ” on judicial review . Having noted this ORG 's response to that argument ( paragraph CARDINAL of the PERSON judgment ) , he continued :

“ CARDINAL . I made a similar observation in my own judgment in [ GPE v ORG ] .

These observations are relevant to the interpretation of the judgments of ORG . That court does not engage in the balancing exercise described in the Opinion of Powell J in PERSON v PERSON and in the decisions of this Court ( such as P.M. v Malone and [ P.M. v DPP ] . That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction . Consequently , the decisions of ORG provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition . For example , in its judgment in the case of PERSON v GPE ... , the ORG restated its consistent approach to the assessment of a reasonable time as follows ( paragraph CARDINAL of the judgment ; citations omitted ) :

' ....... On the latter point , what is at stake for the applicant in the litigation has to be taken into account . '

A further passage from the judgment of the ORG also calls for observation . It appears that the representatives of GPE had submitted to the ORG that judicial review , which was available to the applicant in that case , provided an effective remedy in domestic law and that “ damages might have been available as a remedy in the judicial review proceedings , if the applicant had sought them . ” The ORG 's response to that argument ( at paragraph [ CARDINAL ] ) was :

' There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings . Although the ORG argued that the common law might be flexible enough to provide such a remedy , they did not refer to CARDINAL precedent even tending to support this argument . Moreover , the judgment of ORG made it clear that Convention case - law would not cause the domestic courts to fashion any remedies that would not otherwise have been available ... . '

DATE . ... in [ the PERSON ] case , as in the present case , no claim for damages had been made . Nor , so far as I am aware , has any such claim ever been made in such a case . In every such case , the accused person , in practice , seeks the remedy of prohibition of his trial . It is clearly not possible for this ORG , having an appellate function only , to pronounce in the abstract on whether damages would be available as a remedy , [ if they were claimed ] . Any such claim would have to be made in ORG in the first instance . The [ ORG DATE ] might be relevant .

I would also add that the ORG may have somewhat misapprehended the remarks of PERSON in the passage of his judgment in [ PERSON v ORG ] , which ... [ the ORG ] also quoted . PERSON was merely saying that a particular judgment of ORG did not have effect in domestic law . Whether these courts would “ fashion remedies ” in the light of the case - law of that ORG is a quite different matter and would have to await an appropriate case . Again the [ NORP Convention of Human Rights Act DATE ] may or may not be relevant . ”

PERSON agreed in the main with ORG judgment . He explained , in addition , the various forms of delay in criminal proceedings :

“ This appeal raises serious issues about the effects of delay on the entitlement of the ORG to prosecute criminal offences . It is an issue which has given rise to much anxious consideration by this ORG in DATE , particularly in the context of offences relating to the sexual abuse of children . Evaluating reasons for delay and attributing blame for delay in reporting abuse ( complainant delay or pre - charge delay ) came to be seen as a far from simple exercise in those cases . ...

That was CARDINAL form of delay . Delay can also arise from the tardiness of the police , either in investigating an alleged crime after it has been reported , or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial . The jurisprudence makes clear that this form of delay , called ' prosecutorial delay ' , may also entitle an applicant to relief in the form of prohibition in certain circumstances . This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under LAW .

Delay may also arise when the ORG , by its failure to provide adequate resources or facilities for the disposal of litigation , has itself contributed to delay . ' Systemic delay ' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it . There may be prosecutorial delay within systemic delay . Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed . There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame . Where systemic delay is established it may amount to an infringement of a citizen 's constitutional right to a trial with reasonable expedition . Such forms of delay may also amount to an omission or failure on the part of the ORG to comply with its obligations under LAW , in particular LAW thereof ...

In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time . There is no suggestion that there was any form of judicial delay contributing to that alleged delay ..... ”

PERSON assessed the criteria by which prosecutorial delay would be measured ( a test which he considered reflected that of this ORG ) and found those principles equally applicable to systemic delay ( described as “ failures of the criminal justice system ” ) . Prior to applying the test , he made a number of preliminary comments , notably to the effect that degrees of dilatoriness which may have been acceptable in the past could no longer be tolerated since LAW DATE ( “ the DATE LAW ) gave effect in GPE to the provisions of the Convention : both the constitutional and Convention rights to trial with reasonable expedition had to be “ vindicated by being given real effect ” .

However , that did not mean that the prohibition of a criminal trial had to be resorted to more readily and PERSON pointed to the difference between the role of this ORG under the reasonable time requirement of LAW and its award of just satisfaction and that of the domestic courts in prohibition proceedings where unreasonable expedition had to be balanced against the public interest in continuing with a prosecution . Given this added element in the domestic prohibition proceedings , prohibition should only be granted exceptionally and where there was an assessed serious breach of the rights under LAW CARDINAL § CARDINAL of the Convention . In so noting , PERSON referred to other domestic remedies as follows :

“ I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy , such as one in damages . However , any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case . ”

As to whether there was blameworthy delay , PERSON hesitated on the same period of delay ( noted by ORG ) in approving the High Court judgment but he did not consider that “ blameworthy ” given the absence of evidence that it deviated from the norm . Accordingly , even given the passage of time since the original alleged offence and a consequent “ heightened degree of urgency in advancing this prosecution ” , it was not considered that the applicant had established blameworthy prosecutorial or systemic delay . Even assuming he had , PERSON was satisfied that there was no demonstrated prejudice to the applicant or impairment of his other rights including the constitutional right to a trial in due course of law . As regards the motion struck out on DATE , PERSON noted that the applicant had not done anything about re - entering it for DATE and that it had taken DATE to re - enter the motion . As regards discovery by the prosecution in DATE , PERSON noted that this affidavit listed CARDINAL documents and was clearly the result of “ considerable effort ” .

Geoghegan J. broadly agreed with those judgments . He considered that no important issue of “ systemic delay ” arose in the present case and he reserved his view on its nature and relevance for a future case , though noting that the rather new concept of systemic delay was not the same thing as prosecutorial delay . He suggested that an inadequate number of judges would , if anything , be a reason to assess a longer delay as reasonable in the circumstances , although he acknowledged that that view might not accord with the Convention . The ORG 's jurisprudence in NORP cases was not sufficiently clear as to the correct approach to systemic delay and , notably , as to the blameworthiness of a ORG for systemic delay : could , for example , a ORG be blamed for diverting limited economic resources to a hospital as opposed to judicial institutions ? In any event , the present case was not the appropriate one to examine systemic delay as none of the impugned periods of delay warranted a prohibition order . As to the lapse of time in approving the High Court judgment , he found it unnecessary to consider whether this delay should be taken into account in considering whether a trial should be prohibited because he was “ quite satisfied that prohibition would not be appropriate in this case at any rate ” .

Following this judgment , the stay on the criminal proceedings pending the second prohibition action was lifted . On DATE the criminal proceedings were reinstated before the SCC when the trial date was fixed for DATE . The memorandum of CARDINAL DATE ( paragraph CARDINAL above ) was again disclosed as additional evidence on DATE .

On DATE , and following a ruling by the SCC that the principal evidence in the case ( the alleged admission of the applicant during police questioning ) was inadmissible , the prosecution indicated that they did not propose to adduce further evidence and the charges were dismissed .

The applicant introduced a second application to this ORG in DATE in which he complained under , inter alia , Articles DATE and CARDINAL about the length of the criminal proceedings against him and about the lack of an effective domestic remedy in this regard . Referring to the general time - line of events since DATE , he mainly complained about delay during the first prohibition action . That application has not been joined to the present one .

Article CARDINAL(CARDINAL ) of the LAW reads as follows :

“ All judges shall be independent in the exercise of their judicial functions and subject only to this LAW and the law ” .

Article CARDINAL ) of the LAW provides that :

“ No person shall be tried on any criminal charge save in due course of law ” .

Article CARDINAL(CARDINAL)(CARDINAL ) of the LAW also provides that :

“ The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen . ”

Section CARDINAL of the CARDINAL Act provides that ORG shall establish and maintain a register of judgments reserved by , inter alia , the High and ORG in civil proceedings and supervise the delivery of those judgments within prescribed periods . This Act entered into force on DATE .

The background and terms of reference of ORG were outlined in its ORG as follows :

“ In DATE there have been significant changes in NORP society . GPE 's population has grown from CARDINAL in DATE to MONEY in DATE . There has been an increase in economic activity and demographic diversity . Changes in social and public policy have occurred . International developments now have a greater impact on NORP affairs and the courts .

These changes have had important implications for the NORP legal system . In particular , ORG and ORG have experienced a significant expansion in litigation .

Despite the relative success of the courts in introducing procedures to deal with these developments , the current ORG structure was not designed to cope with developments of such a profound nature . There has been a need for some time to conduct a strategic review of the current ORG structure .

In DATE the Government decided to set up ORG to consider the question of establishing a ORG , with the following terms of reference :

' ( a ) to review and consider the necessity for a general ORG for the purpose of processing certain categories of appeals from ORG .

( b ) to address and consider such legal changes as are necessary for the purposes of establishing a ORG , and

( c ) to make such other recommendations as are appropriate for the purposes of ensuring greater efficiencies in the practices and procedures of ORG . '

The ORG recommended the establishment of a Court of Appeal in order to , inter alia , eliminate undue delay in processing appeals before ORG . The ORG described the increase in High and ORG litigation and the backlog this had created particularly at the ORG level :

“ ORG has seen a significant increase in the volume and complexity of its appellate caseload . Unsurprisingly , this greater volume of cases has created a backlog of appeals in ORG . This has led to longer delays in ORG , with some cases now taking DATE to get a hearing .... A delay in determining these appeals can cause uncertainty for individuals , for businesses and for government . It can put unnecessary emotional and financial pressure on litigants . It leaves others unsure about the law , which inhibits their ability to organise and plan their affairs . In short , delays create confusion and costs and are bad for business . This situation poses serious problems for the NORP legal system and for NORP society as a whole . ”

The Report recorded the average delays in obtaining a hearing before ORG as follows : DATE ( DATE ) , DATE ( DATE ) , DATE ( DATE ) , DATE ( DATE ) , DATE ( DATE ) and DATE ( DATE ) .

Chapter CARDINAL of the ORG is entitled “ ORG - limits and ORG ” and noted that GPE had been found in breach of LAW v. GPE , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL/CARDINAL , ORG CARDINALX ( extracts ) ; PERSON and Others v. GPE , no . CARDINAL , DATE ; and PERSON v. GPE , cited above ) . It noted that a common feature of those cases was that they involved litigation in which the violations of LAW were , in large part , attributed to delays occurring as a result of a shortage of judges , relative to the caseload of the courts . This underlined the fact that any logistical difficulties encountered by the courts might result in a breach of GPE 's obligations under the ORG .

As to GPE 's efforts to comply with its Convention obligations , the ORG continued :

“ The increase in judicial appointments to ORG has alleviated these difficulties at that level . As this chapter has already noted , however , the fact that the CARDINAL - division ORG is obliged to deal with all ORG civil appeals means that there is a significant risk of delays of the sort impugned in PERSON , PERSON , PERSON and PERSON occurring at appellate level .

ORG has identified delays caused by the courts themselves ( as a result of logistical pressures ) as the key factors offending the requirements of Article CARDINAL in each case . Violations have been found , as in [ Price and PERSON v. the GPE , ORG . CARDINAL and CARDINAL , DATE ] , where the courts themselves were held to have acted reasonably in respect of the relevant proceedings . The ORG is obliged to organise its system to avoid the risk of parties unduly delaying their proceedings . It must also therefore be required to ensure that the structure of the legal system itself does not generate undue delays . The institutional bottleneck at ORG level has just such an effect on our system . ”

In the case of PERSON v. the ORG , the Minister for ORG , LAW and the Attorney General ( [ DATE ] IEHC CARDINAL ) , ORG granted a prohibition order to stop a prosecution concerning events which took place in DATE . In so finding , ORG commented :

“ Despite the absence of any explanation for the delays already enumerated it is clear that some part at least of this delay was caused by the overwhelming pressure on the , then , inadequate facilities of the legal system . The government had an obligation to “ organise [ its ] legal system so as to enable the courts to comply [ with the requirements of LAW ] ...

... significant improvements have been made in court waiting times through better management and facilities and the systemic delays of that period are now , thankfully , a thing of the past . ”

On an application for leave to apply for judicial review , ORG ( and on appeal , ORG ) can prohibit a prosecution on the basis of delay considered to constitute a real and serious risk of an unfair trial . This does not exclude the inherent and constitutional duty of the trial court to ensure that there was a fair trial and to stop a trial if matters arose which rendered it unfair ( ORG v. PERSON [ DATE ) .

A trial can also be prohibited on the basis of a breach of the right of an accused to trial with “ reasonable expedition ” ( ORG ( PERSON ) v Donoghue [ DATE , PERSON ) .

In DATE v. PERSON ( cited above ) PERSON reviewed recent NORP cases on the subject . He found that “ in determining whether the concern and anxiety caused to an accused person is such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated , the court , depending entirely on the circumstances of the particular case , may be entitled to take into account , not merely delay subsequent to his being charged and brought to trial , but also delay prior to the formal charge . ” He went on to identify as the essential issue being whether , assuming a breach of the constitutional right to a reasonably expeditious trial , the prohibition of the trial was justified . He answered that question as follows :

“ Where , as here , the violation of the right has not jeopardised the right to a fair trial , but has caused unnecessary stress and anxiety to the applicant , the court must engage in a balancing process . On CARDINAL side of the scales , there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay . On the other side , there is the public interest in the prosecution and conviction of those guilty of criminal offences . In all such cases , the court will necessarily be concerned with the nature of the offence and the extent of the delay . ”

ORG reiterated that approach in DATE v ORG ( cited above ) . PERSON , speaking for a unanimous court , cited the above judgment of PERSON Having done so , he continued :

“ I believe that the balancing exercise referred to by PERSON in DATE v. PERSON is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition . It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial . In most cases , pre - trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial . Secondly , while he may assert increased levels of stress and anxiety arising from prosecutorial delay , any balancing exercise will have to take into account the length of such blameworthy delay , because if it is a short delay rather than DATE , the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial . ”

In GPE v. ORG ( [ DATE ] CARDINAL IR CARDINAL ) the applicant had been charged in DATE with sexual assault alleged to have occurred in DATE . He was granted leave to seek judicial review as regards a number of issues arising from the prosecution of the case . ORG dismissed his judicial review proceedings but nevertheless granted a prohibition order on the grounds that the blameworthy delay by the prosecution in conducting the judicial review proceedings had denied the applicant his right to a criminal trial with reasonable expedition . The ORG appealed to ORG which allowed the appeal finding that , where inordinate delay did not jeopardise the applicant 's right to a fair trial but had caused unnecessary stress and anxiety , the court had to engage in a balancing process between the applicant 's right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences . PERSON , with whom the other judges of ORG concurred , stated :

“ It is important to clear up any misunderstanding concerning the import of such decisions of ORG . The ORG does not and did not , in that case , hold that the prosecution had to be stopped . It would be most surprising if a judgment of that ORG holding that the prosecuting authorities were “ partially or completely responsible ” for certain periods of delay had the automatic consequence that a prosecution had to be halted . Such a conclusion would , in any legal system , call for some consideration of the public interest in the prosecution of crime . We know , of course , from other parts of the case - law of the ORG that it does recognise the public interest in prosecuting crime ( see PERSON v GPE [ DATE ] CARDINAL ORG ; [ Doorson ] v GPE CARDINAL EHRR CARDINAL ) . Thus , the decision of the ORG leads to a monetary award . It has no consequence for the pending prosecution .

In brief , the decision in PERSON v GPE adds nothing to the applicant 's claim to have his trial stopped . The applicant has not , at any stage , advanced a claim for damages as part of the relief sought in these proceedings . As in almost all such cases , the principal objective has been to seek to prevent his trial from proceeding . ”

The later case of PERSON ( [ DATE ] DATE ) concerned the accused 's application for an order prohibiting his criminal trial ( on numerous charges of sexual assaults on his nieces DATE ) on the basis of delay in the institution and prosecution of the charges . He was only partially successful before ORG and he unsuccessfully appealed to ORG . Having reviewed the pre - conditions for an order of prohibition and noted that there “ may be other remedies ” , Judge PERSON noted the above - quoted reference of PERSON ( in GPE v. ORG ) to PERSON v. GPE and , notably , the sum of money awarded in just satisfaction . PERSON also stated that :

“ I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of ORG , has any relevance in the circumstances of this case . I wish , therefore , to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance . ”

In PERSON v. ORG ( [ DATE ] DATE ) the accused alleged prosecutorial delay in pursuing firearms and criminal damage charges against him . ORG ( in DATE ) granted the prohibition order and ORG ( delivering its judgment in DATE following the judgment of ORG in the present case ) allowed the ORG 's appeal .

PERSON recalled and summarised the principles governing prosecutorial delay in NORP law ( laid down in the above - cited cases of TIME v. PERSON and DATE v. ORG ) as follows :

“ ( a ) Inordinate , blameworthy or unexplained prosecutorial delay may breach an applicant 's constitutional entitlement to a trial with reasonable expedition .

( b ) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition .

( c ) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at ( b ) , and no actual prejudice is demonstrated , the court will engage in a balancing exercise between the community 's entitlement to see crimes prosecuted and the applicant 's right to an expeditious trial , but will not direct prohibition unless one or more of the elements referred to in [ the above cited case of ORG v. PERSON and DATE v. ORG ] are demonstrated .

( d ) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition .

When applying the test , the court must , however , keep certain considerations in mind . On the one hand , the court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since LAW DATE gave effect in this jurisdiction to the provisions of the Convention , including the right under Article CARDINAL to a trial with reasonable expedition . This right must be given real effect .

In the context of prohibition this is not to say that an NORP court must readily or too easily resort to prohibition , whatever about other remedies , when vindicating rights under LAW . Under our jurisprudence , ... , prohibition is a remedy to be granted only in exceptional circumstances . The ORG does not adopt a punitive or disciplinary role in this context . Further , any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when exercising this jurisdiction . It must analyse the causes for delay with great care , weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay . In this context not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry by the court under P.M. v. ORG or PERSON v. PERSON . In my view an applicant should ordinarily adduce and place before the court some evidence of what is the norm in terms of time taken for the particular proceedings or the identified process or processes within it which are the subject matter of complaint . This is information which is readily available from ORG with regard to various forms of proceedings . ”

GPE J began her judgment noting that the case , raising issues of delay in prosecuting criminal offences , was CARDINAL of a number of cases which had been decided in ORG ( DATE ) at a time when the jurisprudence was being clarified by ORG . Finding that ORG had not applied the correct test as regards prosecutorial delay , PERSON referred to the restatement of the law in TIME v. ORG ( cited above ) :

“ This test requires that in circumstances where there was blameworthy prosecutorial delay , a further step is required to be taken by ORG , this step was not taken by ORG . To prohibit a trial , in addition to the finding of blameworthy prosecutorial delay CARDINAL or more of the interests protected by the right to an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief . The bar of the test is high because this is a very significant relief - an order prohibiting the public prosecutor from prosecuting an accused .

In this case the second step required by the test was not taken . Indeed the learned trial judge stated that the applicant did not complain of any specific prejudice , and that he did not complain that his right to a fair trial had been impaired by the delay . ”

In GPE v. GPE and the Attorney General ( [ DATE ] IEHC CARDINAL ) ORG set aside the applicant 's conviction for rape and sexual assault on the grounds that the manner in which his trial had been conducted rendered his trial unfair . A retrial was not ordered . However , by that date the accused had served his sentence and had been released . Not being entitled to damages under section CARDINAL of LAW DATE ( his conviction was not quashed on the grounds of a miscarriage of justice ) , he took proceedings against the ORG claiming essentially damages for a breach of his constitutional right to a fair trial . In dismissing the application , ORG found that the ORG could not be vicariously liable for errors which a judge may commit in the administration of justice nor could a plaintiff sue the ORG on other grounds as regards the failure by the trial judge to ensure a fair trial . In addition , ORG opined that , in any event , the immunity conferred by law on the judiciary also applied for the benefit of the ORG when an attempt was made to render the ORG liable for the wrongs of a judge . ORG stated :

“ I am of the view that many of the reasons which support personal judicial immunity – the promotion of judicial independence , the desirability of finality in litigation , the existence of an appeal and other remedies as well as the public interest – can also support the argument for ORG immunity in cases such as those before this ORG . Indeed it is my view that not to extend the immunity to the ORG in the present circumstances would represent an indirect and collateral assault on judicial immunity itself .

To make the ORG liable in such a situation would indirectly inhibit the judge in the exercise of his judicial functions and this , in turn , would undermine his independence as guaranteed by LAW . It would introduce an unrelated and collateral consideration into the judge 's thinking which could prevent him from determining the issue in a free unfettered manner . It might , for example , encourage the other organs of government to monitor the conduct of the judges in this regard , thereby resulting in “ a chilling effect ” .

The fundamental reason for supporting this conclusion , however , is that when the judge is exercising judicial authority he is acting in an independent manner and not only is he not a servant of the ORG in these circumstances , he is not even acting on behalf of the ORG . He is not doing the ORG 's business . He is acting at the behest of the people and his mission is to administer justice . ...

... The plaintiff 's case might be advanced to another stage by arguing that the above line of reasoning , which recognises personal immunity for judges and ORG immunity for the majority of wrongs committed by judges in the administration of justice , does not apply when the constitutional rights of the individual are at stake . I can not agree . If CARDINAL were to accept that line of argument one would have to acknowledge that the immunity given to judges personally would also have to yield in such situations . ...

In my view , the acceptance of personal immunity for the ORG must logically extend to the ORG when sued directly for judicial error even when a fundamental right is asserted . That this immunity is not specially recognised in the LAW , is no impediment , since the ORG immunity in these circumstances is a corollary of the personal immunity conferred on the judges and the ORG immunity can be inferred from the personal immunity long since recognised by our courts , though not explicitly acknowledged in the LAW . ”

This Scheme provides payment for legal representation in cases not covered by the civil or criminal legal aid schemes . It is an ex gratia scheme set up with funds made available by ORG . Special rules apply which are contained in the ORG itself including , the following .

The Scheme applies to the following forms of litigation : ( a ) habeas corpus applications ; ( b ) bail motions ; ( c ) such judicial review application as consist of or include certiorari , mandamus or prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue ; and ( d ) applications under section CARDINAL of LAW DATE , extradition applications and NORP Arrest Warrant applications .

The purpose of the Scheme is to provide legal representation for persons who need it but can not afford it . It is not an alternative to costs . Accordingly , a person wishing to obtain from the court a non - binding recommendation to the Attorney General that the Scheme be applied must make his or her application , personally or through his or her lawyer , at the commencement of the proceedings and must obtain the recommendation at the commencement of the proceedings .

DATE . The applicant must satisfy the court that he or she does not have the means to pay for legal representation and that the case warrants the assignment of legal representation .

ORG provides legal advice and legal aid for non - criminal matters to those who satisfy the requirements of ORG DATE . In order to obtain legal aid , a person must have limited means and merit to their case and their case must not be CARDINAL of the categories excluded by section CARDINAL(CARDINAL ) of LAW . None of the categories listed excludes an action for damages for breach of the constitutional right to reasonable expedition .

During the preparation of its “ Report on ORG in respect of Excessive Length of Proceedings ” , ORG provided a questionnaire to ORG . The questions as well as the responses of ORG , in so far as relevant , are set out below :

“ CARDINAL . Is any statistical data available about the extent of this problem in your country ? If so , please provide it in LANGUAGE or LANGUAGE .

ORG is responsible for the management of courts . Average waiting times in each court for DATE are as set out below . Provision is made to accord early hearing dates to urgent and emergency matters . The average times are as follows :

ORG DATE from lodgement of a certificate of readiness to hearing date ( earlier hearing dates are allocated by the court for urgent cases ) .

ORG ( excluding asylum ) DATE ( cases taking TIME will be dealt with sooner ) . ... ”

“ CARDINAL . Does a remedy in respect of excessive delays in the proceedings exist in your country ? If so , please describe it ( who can lodge the complaint , before which authority , according to what - ordinary / special – procedure , within what deadline etc . ) . Please provide the texts of the relevant legal bases in LANGUAGE or LANGUAGE .

Criminal

In the criminal context an accused can take ORG proceedings seeking an order for prohibition against the prosecution on the ground of delay . This application is to be made before ORG by an accused and must be made ' promptly ' [ PERSON v DPP DATE , ORG , PERSON . The ORG has an inherent jurisdiction to prohibit a prosecution where there is unreasonable delay .

Civil

In the civil context defendants may seek an order for dismissal for want of prosecution in circumstances where there has been delay on the part of the Plaintiff . This application is made to the courts .

In ORG [ DATE , ORG , PERSON ] ORG held that the applicant in family proceedings could obtain a declaration of breach of rights under Article CARDINAL.CARDINAL.CARDINAL and be awarded damages for delay in the ORG providing her with legal aid . This case was not appealed to ORG .

Under the [ CARDINAL Act ] an applicant may apply to ORG for damages if an organ of ORG has not fulfilled its obligations under the ORG . Under that legislation the courts are excluded from the definition of organ of ORG but delay by the ORG or other ORG agents or agencies might give rise to this remedy .

Under the [ CARDINAL Act ] section DATE , if judgment has not been delivered within a prescribed period ORG will list the matter before the relevant judge and at that time the Judge must fix a date by which time judgment will be delivered .

According to a procedure initiated in DATE any litigant who has a complaint in relation to delay must address it formally to the President of ORG . However , the [ ORG ] in [ PERSON and Others v. GPE , no . CARDINAL , DATE ] found that this did not constitute an adequate remedy .

The ORG themselves employ a system of case management and judges seized of a case will set deadlines by which time the parties are required to have submitted or served documents . Legislation , including LAW DATE , stipulates the period in which applicants must take proceedings , before they become ' statute barred ' . ”

“ CARDINAL . Is there a cost ( ex . fixed fee ) for the use of this remedy ?

Generally , costs follow the event of the trial i.e. they are awarded to the winning party . However , awards may be made to a particular party in relation to specific interlocutory proceedings . ”

“ CARDINAL . What are the available forms of redress :

- acknowledgement of the violation YES

- pecuniary compensation

o material damage YES

o non - material damage YES

- measures to speed up the proceedings , if they are

still pending ORG YES

- possible reduction of sentence in criminal cases NO

- other ( specify what )

In criminal proceedings if LAW is held to have been breached because of delay , an order of prohibition will be granted directing that the prosecution be restrained . Similarly , in a civil action if a Defendant successfully argues that Article CARDINAL.CARDINAL.CARDINAL has been violated by reason of delay the claim will be dismissed for want of prosecution . In a judgment in ORG a Plaintiff in a civil matter complain successfully about delay and declaration of breach of rights and damages were awarded . In the case of ORG [ DATE ] CARDINAL IR CARDINAL ] it was held that , although a breach of constitutional rights in the context of criminal proceedings had not been made out , any further delay would not be tolerated and the courts should not permit it to occur .

In criminal proceedings if an accused has been in custody pending trial , the period spent in custody will be set off against a sentence imposed .

Are these forms of redress cumulative or alternative ?

Generally , proceedings will be restrained where unacceptable delay has been shown to exist . A declaration of breach of rights has been accompanied by an award of damages in a civil case .

If pecuniary compensation is available , according to what criteria ? Are these criteria the same as , or linked with , those applied by ORG ? Is there a maximum amount of compensation to be awarded ?

In ORG damages were calculated with regard to the loss suffered by the applicant ... and stress and upset caused .

If measures can be taken to speed up the proceedings in question , is there a link between these measures and the general case - management of the relevant courts ? Is the taking of these measures co - ordinated at a central or higher level ? On the basis of what criteria and what factual information concerning the court in question ( workload , number of judges , nature of cases pending , specific problems etc . ) does the competent authority order such measures ?

No ”

“ CARDINAL . Is there any statistical data available on the use of this remedy ? If so , please provide them in English / French .

Not applicable .

What is the general assessment of this remedy ?

Not applicable

Has this remedy had an impact on the number of cases possibly pending before ORG ? Please provide any available statistics in this connection .

Not applicable

Has this remedy been assessed by ORG in respect of Articles CARDINAL or CARDINAL ORG ? If so , please provide reference to the relevant case - law .

The remedy available before this development was considered by ORG in the cases of [ PERSON v GPE , cited above , PERSON v. GPE , no . CARDINAL , ORG CARDINALX ( extracts ) ; PERSON v. GPE , cited above ; and PERSON v. GPE , no . CARDINAL , DATE ] . In each of these decisions GPE was found to be in breach of the Convention for failure to provide an adequate remedy for delay . ”


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

DATE two sets of criminal proceedings for car theft , illegal possession of arms and robbery were opened against their son , Mr Gancho Vachkov , born in DATE . In DATE a warrant for his arrest was issued and his name was placed on the list of wanted suspects . In DATE the police published a call for information about him .

On TIME , Mr PERSON and friends of his were playing football in a school playground in central GPE . At CARDINAL point Mr Vachkov found out that the police had located him and were watching him . He decided to leave the place and drove away at high speed . He was accompanied by Mr A.M. A police car followed his car .

During the ensuing chase through the streets of GPE , Mr PERSON or Mr DATE opened fire on the police with an automatic weapon . The police fired back and after some time managed to shoot out the tyres of Mr Vachkov ’s car . Mr PERSON and Mr A.M. abandoned the car and started running . Apparently the exchange of gunfire continued . Mr PERSON and PERSON TIME split up as the latter had been shot in the leg . Shortly after that PERSON A.M. was caught by the police .

Mr PERSON continued to run , followed by the police . He entered a building situated on FAC , in a residential area of GPE , and went up the staircase of the building to the top floor . The police sealed off the area , urging the inhabitants to stay in their homes . Several masked police officers entered the building . Gunfire was heard . Thereafter , Mr PERSON was taken out of the building by police officers , who were still masked . He had been shot in the head but was still alive . His hands were tied behind his back .

He was taken to a hospital , where he died DATE .

A masked officer took out of the building a handgun wrapped in a cloth and handed it over to the police officers who were standing around after the incident . The weapon was later identified as a “ ORG handgun ” , calibre QUANTITY . In TIME of CARDINAL June DATE it was delivered by a police officer to an investigator on duty in the hospital where PERSON had been taken .

Subsequently it was established that the masked officers who had followed PERSON in the building and had directly participated in his arrest were from the Special Anti - Terrorism Squad ( GPE отряд за борба с тероризма , “ the ORG ” ) of ORG . They were not under the command of the police forces who had participated in the earlier stages of PERSON chase .

A criminal investigation of the events was opened on DATE .

On DATE an on - site inspection was carried out at the staircase of the building on FAC . The record stated that the site had not been preserved . Traces of blood and body tissue were found at the site , as well as a number of cartridge shells , metal splinters and projectiles .

Mr Gancho Vachkov ’s abandoned car was inspected on DATE . The inspection established that the car ’s front left tyre was torn and flat and the rear left tyre was flat as well . The rear window was broken and marked by bullets . On the front seats the police found a PERSON automatic rifle and numerous cartridge shells . In the boot they found munitions and false passports .

A PERSON handgun was found on the street in the area around the car .

A post - mortem examination of Mr Gancho Vachkov ’s body was performed by CARDINAL medical doctors on TIME CARDINAL DATE . They found entrance and exit wounds to the head and concluded that the death had been caused by cranio - cerebral trauma . The entrance wound , with an opening QUANTITY in diameter , was in the right temple . The exit wound was in the left temple , with an opening measuring TIME . The doctors concluded that the fatal shot had been fired at “ immediate range ” . They described numerous bruises and evidence of haemorrhage on PERSON head and limbs which , in their view , were unrelated to the cause of death and seemed to have been caused within a short space of time .

Laboratory tests showed that there were no traces of alcohol or narcotic substances in Mr PERSON blood .

A second autopsy was carried out at the applicants’ request on DATE . The report was drawn up in DATE . The experts confirmed that the lethal shot had been fired at very close range . According to them , as the entry opening in the right temple measured TIME , the shot had been produced by a weapon whose calibre did not exceed QUANTITY . This might have been a ORG handgun . The experts confirmed that there were numerous bruises and contusions on Mr PERSON head , face and limbs , which had probably been caused by blunt objects . They noted bruises on the wrists which , in their view , might have been caused by handcuffs .

On DATE another expert who examined the relevant part of the skin from Mr PERSON right temple , concluded that the fatal wound had been caused by a firearm fired at very close range . It was “ possible ” that this was a ORG handgun .

On CARDINAL and DATE ballistic experts examined the ORG handgun allegedly found at the site where PERSON had been shot , and the cartridge shells and projectiles also found there . They concluded that CARDINAL of the shells had been fired by the ORG handgun . Another CARDINAL cartridge shells found on the spot had been fired by CARDINAL and the same weapon , a QUANTITY calibre PERSON .

A medical report of an unspecified date concluded that the blood found at the site where PERSON had been shot might have been his .

Residents of the building on Murphy Street were interviewed on CARDINAL and DATE . Mr PERSON , PERSON and PERSON explained that they had seen masked police officers who had instructed them to stay in the bathroom of their apartment . Thereafter , they had heard several gunshots , not consecutively , and then CARDINAL more powerful shots . After that it had become quiet . They had come out of the apartment and seen bloodstains on the landing . Some time later PERSON and PERSON washed the blood off . Police officers who had arrived later to inspect the site had told them that they should not have done this .

NORP In her testimony , PERSON stated in addition that she had heard the police officers urge PERSON to surrender .

Mr DATE was interviewed on DATE . He explained that he and PERSON had been acquaintances and that on DATE the latter had been giving him a lift home when he had noticed that the police were following him . During the chase Mr PERSON had given Mr TIME a PERSON automatic rifle and insisted he open fire on the police ; when Mr PERSON refused Mr PERSON shot him in the leg . After that Mr PERSON had himself started shooting at the police while driving . When the CARDINAL abandoned the car , Mr A.M. was not able to run , due to the injury to his leg , and was soon caught by the police and taken to hospital .

PERSON , interviewed on DATE , explained that she had seen from the balcony of her apartment CARDINAL young men running . CARDINAL of them had had a weapon ; later on she had seen him being led away by the police . They had been chased by other men , all of whom were armed . Mr S.V. , also interviewed on DATE , had also seen the CARDINAL young men running . According to him , none of them were armed .

In the course of the investigation the authorities questioned a number of protected witnesses , whose anonymity was preserved in accordance with Article PERSON of the Code of Criminal Procedure ( see paragraph CARDINAL below ) , including police officers involved in the chase in the streets of GPE , but not those from the ORG who had been the last to be in contact with the applicants’ son in the building on FAC .

On DATE protected witness no . CARDINAL said that she had seen Mr GPE enter the courtyard of the building on FAC , armed with a handgun .

Protected witness no . CARDINAL , a senior police officer who had been in charge of Mr PERSON chase , but had not been involved in the events inside the building on FAC , was interviewed on DATE and explained that the arrest operation had been planned in advance . On DATE he explained that he did not know the identities of the ORG masked officers who had been in the building as they enjoyed a special status .

Other witnesses interviewed during the investigation described what they had seen of the car chase in the city and outside the building on Murphy Street .

The ORG officers who had followed PERSON into the building were never identified or questioned . In a letter dated DATE and addressed to ORG the prosecutor in charge of the case requested their names . He undertook to protect their identities in accordance with Article PERSON of the Code of Criminal Procedure ( see paragraph CARDINAL below ) . The reply , signed by the head of ORG , was dated DATE . It contained information on the police operation of DATE , but did not mention the names of the officers in question .

On DATE the investigator in charge appointed an expert in psychiatry to assess Mr PERSON mental state during TIME of his life . The expert , who submitted her report on an unspecified date , noted that Mr PERSON had no record of mental problems or indeed any particular health problem . However , there were reasons to believe that he had displayed the major symptoms of a “ dissociative personality disorder ” . Furthermore , according to the expert , in the “ extremely tense and psychologically strained situation ” when he was surrounded by the police

“ it is possible that he attempted suicide as an impulsive reaction , seeking a solution to the situation without considering possible alternatives ” .

On DATE the evidence collected in the case was presented to the applicants , who were given the opportunity to familiarise themselves with it and make any remarks and objections . The first applicant stated that she disagreed with the findings of the psychiatric expert report .

On DATE a prosecutor from the GPE military regional prosecutor ’s office discontinued the criminal proceedings . He found that no offence had been committed in relation to Mr PERSON death and that the immediate cause of his death was suicide , committed with the ORG handgun allegedly found on the spot . Furthermore , he noted that :

“ The actions of the [ police officers ] during [ Mr Gancho ] ORG ’s chase and arrest were a direct response to the actions and the behaviour of [ Mr ] PERSON and [ Mr DATE ] , which were in flagrant violation of public order and threatened public security . [ ... ] In the case , the [ police officers ] did not exceed their powers and their actions did not exceed what was necessary and lawful within the meaning of [ Article CARDINALa ] of LAW . ”

On DATE the applicants appealed against the discontinuance , arguing that the investigation had been flawed . They pointed out that the authorities had failed to question the police officers directly involved in the arrest of their son . Furthermore , no evidence establishing a link between their son and the ORG handgun had been gathered and no plausible explanation had been given for the other injuries on his body . Also , the wording of the decision of CARDINAL September CARDINAL did not make it clear whether the prosecutor accepted that their son had been shot but the shooting was lawful under LAW , or considered that their son had committed suicide .

On DATE a prosecutor from the military appellate prosecutor ’s office dismissed the appeal . He found that the police officers who had followed PERSON into the building on Murphy Street had rightly not been questioned ; they enjoyed “ a special status ” and the disclosure of their identities was not warranted , since sufficient other evidence had been collected to establish the relevant facts . The prosecutor reiterated the conclusion that Mr PERSON had committed suicide and dismissed the argument that the bruises and contusions on his body had remained unexplained , stating that the post - mortem reports had provided sufficient explanation .

On DATE the applicants appealed to ORG . They pointed out that no rules of criminal procedure exempted police officers from the duty to testify and that , furthermore , Article PERSON of the Code of Criminal Procedure provided for the questioning of protected witnesses . The applicants claimed once again that the authorities had failed to establish the timing and origin of the numerous injuries on their son ’s body .

In a letter accompanying the appeal the applicants referred to Article CARDINAL of LAW ( see paragraph DATE below ) and requested that in the event of a dismissal of the appeal the case file be forwarded to the appropriate court .

On DATE a prosecutor from ORG dismissed the appeal without commenting on the ORG argument that the police officers involved had not been identified or questioned . He considered that in his decision of CARDINAL September CARDINAL ( see paragraph CARDINAL above ) the prosecutor from the GPE military regional prosecutor ’s office had rightly relied on LAW and that , in addition , it had been clearly established that Mr Gancho Vachkov had committed suicide . Furthermore , he considered that the bruises on PERSON body had been the result of the violent chase preceding his arrest , as he had climbed fences and gone through bushes . Furthermore , none of the witnesses living in the building had heard sounds indicating that PERSON might have been beaten by the police officers .

NORP The decision did not mention the applicants’ request for the case file to be forwarded to the appropriate court . Instead , it stated that the file should be sent back to the GPE military regional prosecutor ’s office .

In a letter of CARDINAL March CARDINAL the applicants insisted again that the file be transmitted for review by the courts , pursuant to LAW .

On DATE a prosecutor from ORG dismissed the request . In his view , there were no grounds for forwarding the case file to a court , since the decision of the GPE military regional prosecutor ’s office of CARDINAL September CARDINAL had become final as early as CARDINAL September CARDINAL , after the applicants had failed to appeal to the military appellate prosecutor ’s office within DATE . The provisions requiring the forwarding of the case file to the appropriate court had entered into force on DATE , by which date the decision to discontinue the proceedings had already become final .

On DATE the applicants lodged a complaint with ORG . They stated that the file did not contain information on DATE when they had received the decision of DATE , and that the prosecuting authorities had the duty to examine any complaint containing information that a serious offence might have been committed .

No reply to that complaint was ever received .

Article CARDINAL of the DATE LAW provides that murder is punishable by CARDINAL to twenty years’ imprisonment . By LAW ( CARDINAL ) of the Code , if a murder is committed by a police officer in the course of or in connection with the performance of his or her duties , it is punishable by DATE imprisonment , or life imprisonment , with or without parole . By LAW , where death occurs as a result of wilfully inflicted grievous bodily harm , the punishment is CARDINAL years’ imprisonment . Those offences are publicly prosecutable .

Article CARDINAL § § CARDINAL and CARDINAL of the DATE Code of Criminal Procedure , as in force at the material time , provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator . By LAW , read in conjunction with its Articles CARDINAL , those authorities were under an obligation to initiate a preliminary inquiry or institute proceedings and investigate , where they have been informed of facts or events on the basis of which a reasonable supposition could be made that a criminal offence may have been committed .

The remaining relevant provisions of LAW and LAW related to the duty to investigate death and to the competences of the relevant authorities have been summarised in the ORG ’s judgment in the case of ORG and PERSON v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .

Article CARDINALa of LAW , added in DATE , provides that causing harm to a person while arresting them for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .

Article CARDINAL § CARDINAL of LAW , as worded until DATE , provided that the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor within a DATE period . The period ran from the date of receipt of the decision by the person concerned . No judicial review was provided for .

On DATE that Article was amended to provide for a system of automatic control of the discontinuance : after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor ’s office , which could confirm , modify or quash it . If it confirmed the decision , it had to forward the file to the appropriate court , which had to review the matter in private . The court ’s decision was final . No provision was made for those concerned to be notified of the discontinuance .

Following a further amendment of that Article in DATE , the discontinuance of preliminary investigations became subject to judicial review . DATE Code of Criminal Procedure maintained that position , in Article CARDINAL § § DATE .

Article PERSON of the CARDINAL Code of Criminal Procedure provided for the protection of witnesses who might be at risk . The prosecuting authorities or the courts could decide to preserve the ORG anonymity and make orders for their security . Protected witnesses had to be questioned in secret . Their identity could only be known to the prosecuting authorities , the courts , and to the ORG legal representatives .

Under the DATE ORG , in force from DATE , ORG ( “ the SATS ” ) was a specialised service of ORG for combating terrorism , protecting strategic objects and participating in the prevention and investigation of crimes . By section CARDINAL(CARDINAL ) of the LAW , “ in the performance of the SATS’ tasks , the identity of its members [ was ] to be kept secret ” .


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life;Article 8-2 - Necessary in a democratic society;Protection of the rights and freedoms of others)

André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and lives in PERSON .

On DATE the applicant married PERSON The couple separated in DATE . In DATE Ms NORP informed the applicant that she was pregnant . The couple divorced on DATE .

On DATE Ms NORP gave birth to a daughter , PERSON

On DATE the applicant wrote a letter to PERSON , indicating that he wished to have access to the child and to acknowledge paternity .

On DATE Mr E. , with the consent of PERSON , acknowledged paternity of the child before ORG . On DATE the applicant declared in a document certified by a notary that he acknowledged paternity of the child .

On DATE the applicant lodged an action with ORG ( ORG ) to have his paternity established , submitting that he had had sexual intercourse with the child ’s mother during the period of conception . PERSON that PERSON was the biological father and that he lived with the child and herself in a social and family relationship .

On DATE Mr E. and Ms D. got married . The couple live together with the child PERSON and with CARDINAL further children , born in DATE and DATE .

NORP On DATE the applicant further requested ORG to establish that PERSON was not the child ’s father and submitted a statutory declaration that he had had sexual intercourse with the child ’s mother during the time of conception .

On DATE , during a first hearing , ORG informed the parties that a guardian ad litem should be appointed to represent the child ’s interests , as a conflict of interests had arisen due to the fact that PERSON had married . PERSON declared that the applicant was not the child ’s father .

On DATE ORG judge submitted the case file to the judicial officer in charge of appointing guardians ( PERSON ) . On DATE the judicial officer refused to appoint a guardian .

On DATE ORG instituted separate proceedings aimed at appointing a guardian ad litem . On DATE ORG submitted their comments . On DATE ORG appointed a guardian ad litem to represent the child in the pending proceedings and also in case the child should lodge an action in her own right challenging paternity .

On DATE Mr. E and Ms. D lodged an appeal against the guardian ’s appointment . On DATE they submitted reasons for their appeal . On CARDINAL DATE the applicant requested that the appeal be rejected . On DATE the ORG ( Oberlandesgericht ) scheduled a hearing for DATE which was postponed on the applicant ’s request to DATE .

On DATE ORG confirmed the appointment of a guardian , but quashed ORG decision insofar as it concerned the child ’s representation in case she should lodge her own action .

On DATE ORG scheduled a hearing for DATE .

On DATE the guardian ad litem submitted his observations to ORG . Following a visit to the family home , he concluded that there existed a strong social and family relationship between the child and PERSON , and considered that it was most important to assure that the child was allowed to grow up undisturbed within her family . On DATE , ORG cancelled the hearing and invited the parties to submit comments on the guardian ’s observations .

On DATE ORG ordered an expert opinion on the question whether a social and family relationship existed between the child and PERSON , and requested the applicant to pay an advance of MONEY ( ORG ) . On DATE ORG reminded the applicant to pay the advance .

On DATE the applicant , referring to the guardian ’s submissions , conceded that a social and family relationship existed between the child and Mr E. He therefore did not consider it necessary to hear expert opinion in this respect . He contended , however , that his action should be allowed because the applicable legislation did not sufficiently take into account his rights as a parent .

On DATE ORG , on the applicant ’s request , postponed the hearing to DATE .

On DATE the applicant , relying on Article CARDINALa of LAW as in force since DATE ( see Relevant domestic law , below ) , lodged an alternative request to order the child to undergo genetic testing in order to establish her descent .

On DATE , during the hearing , the parties unanimously declared that a social and family relationship existed between Mr E. and the child . Following the hearing , ORG rejected the applicant ’s request . According to that court , the applicant was precluded from contesting paternity under LAW ( see Relevant domestic law , below ) because a social and family relationship existed between the child and her legal father . He did not have the right to have his paternity established or to demand genetic testing because the child already had a legal father .

On DATE the ORG rejected the applicant ’s appeal lodged on DATE . It noted that it was no more in dispute between the parties that a social and family relationship existed between the child PERSON and her legal father , who , in the meantime , had married the child ’s mother and fathered CARDINAL further children . Confirming ORG judgment , that court further considered that the relevant legislation did not violate the applicant ’s rights under the NORP constitution and under LAW and CARDINAL of the Convention . Referring to its own constant case - law and to the case - law of ORG , ORG considered that the legislature had been entitled to let the interests of the child and of her legal parents prevail over the biological father ’s interest to have his paternity legally established and to preclude the biological father from contesting paternity . There was no room for the court to examine in individual cases whether it was necessary in the child ’s best interests to allow the presumed biological father to contest paternity . This general approach also protected the concerned families from being forced to reveal intimate details of their family life .

The Court of Appeal further confirmed that the applicant ’s request to have his paternity established was inadmissible as the child already had a legal father . Relying on the case - law of ORG , the court considered that PERSON acknowledgment of paternity had been valid and that the relevant legislation did not violate the applicant ’s constitutional rights . It was , in particular , justifiable to make acknowledgement of paternity dependent on the mother ’s consent . The legislature was not obliged to make acknowledgment of paternity dependent on a genetic examination of descent . It was acceptable to base the granting of legal status on an assumption which was based on specific factual and social situations . Such an assumption existed if a man declared in a legally binding way and with the express consent of the mother of a child born out of wedlock that he was willing to assume parental responsibility . ORG further considered that the child ’s rights were sufficiently protected by her own right to challenge paternity upon reaching the age of majority .

ORG further considered that the LAW protected a man ’s interest to learn whether a child was his descendant and to have this fact legally established . However , this did not include the right to examine descent in any conceivable case . When developing the procedure for examining a child ’s true descent , the legislature had to take into account the child ’s interest in the stability of his legal and social - family affiliation and the mother and child ’s interest not to have personal data and intimate circumstances revealed , and had done so in an acceptable way . There was , in particular , no right under LAW to have biological descent legally established as long as another man ’s legal paternity persisted .

ORG finally considered that the applicant ’s alternative request to order the child to undergo genetic testing was inadmissible , because such a request had to be lodged in separate proceedings .

On DATE , following a complaint by the applicant , ORG confirmed its judgment of DATE and stated that the alternative request to clarify the child ’s genetic descent was not inadmissible but unfounded , as LAW did not entitle the presumed biological father to demand genetic testing . Relying on ORG case - law , ORG considered that the applicant did not have the right to have biological paternity established without establishing legal paternity .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication . This decision was served on the applicant ’s counsel on DATE .

Under LAW , everyone is equal before the law ( § CARDINAL ) ; men and women have equal rights ( § CARDINAL ) .

Article CARDINAL of LAW , in so far as relevant , provides :

“ ( CARDINAL ) Marriage and the family shall enjoy the special protection of the ORG .

( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The ORG shall watch over them in the performance of this duty . ”

According to LAW , a child ’s father is either the man who on the date of the child ’s birth was married to the child ’s mother ( no . CARDINAL ) , or the man who acknowledged paternity ( no . CARDINAL ) , or whose paternity is judicially established under LAW ( no . CARDINAL ) . An acknowledgement of paternity is not valid as long as the paternity of another man exists ( LAW ) . Paternity can only be validly acknowledged with the mother ’s consent ( LAW ) .

Paternity may be challenged within a time - limit of DATE . The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity ; and the existence of a social and family relationship does not prevent the period from running ( LAW ) . Under LAW , entitlement to challenge paternity lies with the man whose paternity exists under LAW . CARDINAL and CARDINAL , with the mother and with the child , and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’s mother during the period of conception . However , under LAW , the biological father has a right to challenge the paternity of the man who is the child ’s legal father under LAW . CARDINAL or CARDINAL only if there is no social and family relationship between the legal father and the child . A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time . There is , as a rule , an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time ( LAW ) .

Under LAW of LAW as in force since DATE , the legal father , the mother and the child can request the examination of paternity by genetic testing . The outcome of these proceedings does not change the legal status of the persons involved . However , no such right is granted to a third person alleging that he is the biological father .

Research undertaken by ORG in respect of PERCENT ORG GPE shows that in CARDINAL of those GPE acknowledgment of the paternity of a child born out of wedlock requires the mother ’s consent . In GPE ( namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment . This right may be subject to certain time - limits . In GPE this remains the position where the legal father has lived with the child in a social and family relationship . In GPE and GPE , the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of CARDINAL or DATE , respectively ( la possession d’état conforme au titre ) .

By contrast , in CARDINAL GPE ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement . In those CARDINAL jurisdictions , the courts are not entitled to judicially consider ( on the grounds of the best interests of the child or otherwise ) whether the biological father should be allowed to challenge paternity .

None of the Member GPE examined provide a procedure to establish biological paternity without formally challenging the recognised father ’s paternity and without changing the child ’s legal status .