Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The first and second applicants are NORP citizens , born in DATE and DATE respectively , and live in GPE , GPE . The third applicant is a NORP citizen born in DATE and lives at the same address as the first and second applicant . The first applicant was the stepfather of PERSON , the second applicant was her mother and the third applicant her daughter .

The applicants are represented before the ORG by Cairns Brown , solicitors practising in GPE , GPE .

A.

PERSON was born on DATE . She died , aged DATE , on DATE from asphyxia caused by self - suspension whilst on remand at FAC PERSON ( “ FAC ” ) awaiting sentence for an offence of theft .

PERSON was a heroin addict by the time she gave birth to her daughter , the third applicant , on DATE . As she was unable to care for the child , the third applicant lived with her grandparents . Until DATE , she lived with the first and second applicant , after which she moved out to live with friends . She was given the tenancy of a local authority house next door to the first and second applicants . She kept in close touch with them and the third applicant .

PERSON had a number of convictions for shoplifting and breach of the peace , and had passed several spells in drug rehabilitation clinics . She had been held on remand in GPE on CARDINAL occasions prior to her final remand on DATE to CARDINAL DATE , DATE to DATE , and DATE to DATE . In DATE , the deceased went to a drug rehabilitation centre but she left after DATE before completing the programme . In DATE , she was readmitted to the centre and stayed until DATE when she again left early .

On DATE , PERSON was arrested on charges of theft and vandalism . On appearance at GPE ORG on DATE , she pleaded guilty and was remanded in custody for ORG . She was due back in court on DATE for sentencing . She was remanded in GPE in the block used for remand prisoners .

On arrival in GPE , PERSON was seen by a nurse . She was seen by a doctor on DATE after admission and assessed again . According to ORG , each prisoner on admission is assessed as to the likelihood of being suicidal . PERSON claimed , as on previous admissions , that she had taken heroin and was vulnerable to withdrawal symptoms . She was prescribed the relevant medicine . She was not found to present any risks of suicide .

On DATE , PERSON was woken up in the normal way by a prison officer at TIME She was allowed out of her cell for breakfast and to go to the toilet and wash . Afterwards , she was asked to clean a corridor . The prison officer asked her to do it again properly . She complied . She was then locked in her cell again . The mail for the unit was distributed . There was none for PERSON . She did not go that morning to the medical officer to receive her medication , diazepam , a drug substitute .

From TIME , prisoners who wished were taken under supervision to the canteen to make purchases . PERSON had no money and remained in her cell as was the routine . Generally , when prisoners were brought back from the canteen , they were placed under supervision in the sitting room where they were joined by prisoners brought from their cells for the period immediately preceding lunch .

At TIME the deceased started kicking her cell door . Prison Officer PERSON asked what was wrong and she said she wanted to know why she could not get out of her cell . Prison Officer PERSON explained she would get out when there was enough staff back from canteen escort duty . As he walked away , she kicked the door a couple of times . He returned and told her she would be kept in the cell for a bit longer for kicking the door again . PERSON replied , “ That ’s fine ” .

At TIME Prison Officer PERSON met the Residential Officer for PERSON unit and told him about her behaviour . He was concerned as this was not like her usual behaviour but did not consider it a serious situation . He did not think that it amounted to a disciplinary offence and did not tell her that she was being punished . The Residential Officer went up to PERSON cell and found her lying on her bunk . He told her that she would remain in her cell until she calmed down , probably until the TIME meal was ready . He told her that she would not be put on report . PERSON shrugged her shoulders , seemed angry and tense but did not say anything in reply . ORG returned to his office and was then called to another unit soon after TIME . He did not mention PERSON to his supervisor or anyone else . He overlooked her .

Later , after TIME , Prison Officer PERSON was serving dinners to the inmates and noticed towards the end of lunch that he had not seen PERSON come for lunch . He went to her cell at TIME , unlocked the door and found her hanging from the window . The subsequent attempts at resuscitation failed and PERSON was declared dead at TIME

PERSON had not previously been involved in disciplinary incidents in the prison .

In a period of DATE , there had been CARDINAL suicides in GPE and therefore , in DATE , the Procurator Fiscal set up a ORG which was delayed due to a further suicide at the prison . The inquiry lasted DATE and the determination by the Sheriff was dated DATE .

The ORG found the cause of death of PERSON to be asphyxia due to hanging , and the verdict was suicide . The Sheriff did not make any determination about the reasonable precautions whereby her death might have been avoided , nor about any defects in the prison system which contributed to her death . The Sheriff did however make various general determinations in respect of the systems in place at the prison , including proposals for improving procedures to prevent suicide which were relevant to the other cases under consideration .

In his determination the ORG stated :

“ The weight of the evidence was clearly that < PERSON > was forward looking , expressed a desire to obtain a house for herself and her child and gave no indication that she had any desire or impulse to kill herself . ...

... It was ... accepted by < counsel for the applicants > that certainly up until DATE of her life < PERSON > did not present as a likely person to commit suicide ...

Looking at the evidence as to what < the deceased > did it is clear that it did not amount to a breach of discipline meriting a report to the Governor . If that is correct then < counsel for the applicants > would argue that the Officers were at fault in keeping < the deceased > in her cell at a time when other prisoners were in free association . The CARDINAL officers did not consider they were operating in terms of the Rules ... .What they did say they were doing was giving her a “ cooling - off period ” . ...

It was a practice whereby somebody who created a scene or a fuss which of itself did not merit a Governor ’s report was left in her cell or put in her cell for a short period to calm down . It was not part of any official code of practice ... It was known to the Governor and Assistant Governor . They accepted it as a necessary part of the discretion in each Officer in carrying out his or her duties of control .

On CARDINAL view < the deceased > was not locked up for operational reasons , for example in the course of a security alert . On the other hand if cooling - off was used as a tool by Officers to quell situations and calm people down then in my view it was a valid exercise of the Governor ’s powers exercised through ORG . The evidence from the Officers was not clear . They changed from a cooling - off period through an alternative to a ORG to a punishment . I fully accept that Officers might in the course of their duties have to put prisoners in cells for disciplinary reasons to keep order and so on . It may be a fine distinction but it is one which in my view has to be made . I am of the view that Prison Officers do not have the power to mete out punishment . They do not in my mind have the right to impose periods behind doors as a punishment for some minor infraction of the Rules . It is CARDINAL thing to say to a prisoner : “ Now I ’m going to keep you in your cell for a bit to let you calm down . ” It is quite another matter to say : “ Because you are creating a fuss ... I will punish you by keeping you in your cell for TIME . ” It seems to me that FAC does not have the power to behave as in the second example . ...

... Some time was spent on considering the consequences of < the deceased > missing her medication in the morning . The weight of the evidence was that it would have made little or no difference to her physical condition or her state of mind . ...

I can not set out any reasonable precautions which might have prevented the death of < the deceased > ... I can not set out any defects in the system which contributed to her death . I do not know why < the deceased > killed herself . ...

I make a composite determination in terms of LAW ( CARDINAL)(e ) of ORG as follows : - ...

In relation to < PERSON > , < the Residential Officer > had no power to inflict punishment upon her ; therefore insofar as he imposed a further period behind the door as a punishment he was acting incorrectly . ”

On DATE , the applicants commenced an action in ORG , claiming on behalf of the third applicant damages for loss of society of her mother and loss of support due to the negligence and breach of statutory duties by ORG employees . It is claimed , inter alia , that the officers had no right to keep PERSON locked in as a punishment and that if she had been reported to the Governor under rule CARDINAL , instead of being left in her cell until lunchtime , she would not have taken her own life .

The applicants requested an adjournment , agreed by the court , in order to apply for legal aid . An opinion as to causation was obtained from ORG . Legal aid was refused . An application for review of that refusal was rejected . The applicants state that without funding the action will proceed no further .

B. Relevant domestic law and practice

Prison disciplinary provisions

The principal statute regulating the management of prisons is the Prisons ( GPE ) Act DATE . This provides that the Secretary of ORG is responsible for prisons and is empowered to appoint governors and officers to run them . He is empowered to make rules for the regulation of prisons and the control of persons detained in them .

The relevant rules in this case are ORG ( GPE ) Rules DATE ( “ the Rules ” ) .

The management of a prison and supervision of prisoners is vested in the Governor ( Rule CARDINAL(CARDINAL ) ) . Officers act under the authority of the governor in carrying out the DATE tasks of running the prison ( Rule CARDINAL ) .

Part CARDINAL of the Rules deals with security and control . In particular , by Rule CARDINAL , the Governor may order in writing that a prisoner be removed from association with other prisoners where it seems desirable for the purpose of maintaining good order and discipline , protecting the interests of any prisoner or ensuring the safety of other persons . An order may be general or related to a specific activity . If general , it shall not be effective for TIME without the written authority of the Secretary of ORG . An authority granted by the Secretary of ORG may not exceed DATE but may be renewed . Where the order relates to a specific activity , it may not exceed TIME but the Governor may make a further order , subject to DATE review .

By Rule DATE , the Governor may order that a prisoner be restrained by means of a body belt if it seems necessary to restrain a prisoner who threatens to injure , or is injuring himself or others ; who threatens to damage , or is damaging property or who threatens to create or is creating a disturbance . The medical officer must be advised of the use of a body belt . If he does not concur , the belt must be removed .

By Rule CARDINAL , the Governor may order the temporary confinement in a special cell of any prisoner who is refractory or acting in a violent manner . Such confinement must last no longer than necessary and in any event not more than TIME . Notice of it must be given to a medical officer and the prisoner must be visited once TIME . A special cell is other than one normally occupied by the prisoner , and having special facilities for observation .

Part CARDINAL of the Rules deals with breaches of discipline . Rule CARDINAL , interpreted in accordance with Schedule CARDINAL , indicates a range of behaviours , including conduct disrespectful to an officer , use of threatening , abusive or insulting words or behaviour , refusal to obey a lawful order or failure to comply with any rule or regulation . Rule CARDINAL provides that the officer to whose notice it has come shall report every suspected breach of discipline to the Governor , who may then order that the prisoner be removed from association , such removal save in exceptional circumstances , to last no longer than TIME . Rule CARDINAL provides that a charge of breach of discipline shall be brought as soon as possible and in any event within TIME . The prisoner must have written notice of the charge TIME prior to the inquiry . Rule CARDINAL further provides for the Governor to hear an inquiry into a charge . The prisoner must have full details of the charge , receive a full opportunity to present his own case , call witnesses on his own behalf and cross - examine witnesses . In exceptional cases the Governor may allow the prisoner legal representation . Rule CARDINAL provides for punishment , including a caution , a forfeiture of privileges and postponement of the release date . Rule CARDINAL , in Part CARDINAL , provides for appeals to the Secretary of ORG , on findings of guilt and sentence .

Complaint procedures available to prisoners

Part CARDINAL of the Rules deals with requests and complaints .

By Rule CARDINAL , a prisoner may ask to speak to an officer of the Secretary of ORG , a member of ORG or a sheriff or justice of the peace who is visiting the prison . Rule CARDINAL provides that a prisoner wishing to complain to ORG shall be given paper and his letter posted without delay .

Rules CARDINAL to CARDINAL provide a system whereby a prisoner may complain firstly to a residential officer , then to the residential unit manager and then to an internal complaints committee , from there to the Governor and finally to the Secretary of ORG .

A NORP Prison Complaints Commissioner operates outside the statutory framework to hear complaints by prisoners .

Prisoners alleging a breach of the rules may challenge decisions of the Governor or officers acting on his behalf by way of judicial review proceedings in ORG .

Domestic case - law on confinement within prison

In the case of GPE v. Deputy Governor of FAC and others , and GPE v. ORG ( DATE ORG CARDINAL ) ORG held concerning the complaints of prisoners that their liberty had been unlawfully restricted by measures taken within the prison :

“ He is lawfully committed to prison and while there is subject to the Prison Act DATE and the Prison Rules DATE . His whole life is regulated by the regime . He has no freedom to do what he wants , when he wants . His liberty to do anything is governed by the prison regime . Placing GPE in a strip cell and segregating GPE altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE , GPE .

On DATE ORG ( Sąd Rejonowy ) declared the applicant the sole heir of his mother ’s estate . Consequently , he became a co - owner of an apartment building situated in GPE . The building was owned in equal parts by the applicant and his brother , Mr M. P. , who had inherited his share of the property from their father in DATE . It consisted of CARDINAL separate apartments , a staircase and several rooms situated in the basement and in the attic .

On DATE Mr GPE instituted non - contentious proceedings ( postępowanie nieprocesowe ) before ORG in which he sought a ruling on how the property should be used by the co - owners .

The Government averred that the proceedings were stayed DATE and DATE because the parties had failed to make a downpayment to cover expert fees . The applicant claimed that he had made the required payment on time .

The Government submitted that DATE the trial court had held QUANTITY hearings and that the applicant had failed to attend QUANTITY of them . The applicant contested that submission .

Before CARDINAL DATE the presiding judge on CARDINAL occasions inspected the property .

DATE and DATE the trial court held CARDINAL hearings . The Government submitted that the applicant had failed to attend CARDINAL of them and that CARDINAL of these absences had not been justified . The applicant claimed that he had attended all CARDINAL hearings .

During the hearing held on DATE the trial court dismissed CARDINAL requests concerning evidence submitted by the applicant . It also suggested a friendly settlement to the parties , but to no avail .

On DATE ORG decided that the applicant should have exclusive access to a room situated in the attic and that he should share a garden with his brother . Both parties appealed to ORG ( Sąd Wojewódzki ) against that decision .

On DATE ORG held the first hearing , which was adjourned because of the applicant ’s absence . The applicant submitted that he had not attended the hearing because he had not been served with the summons .

On DATE ORG quashed the judgment of ORG except for a part concerning the division of the garden and remitted the case to the first - instance court . ORG considered that the decision to award the applicant exclusive access to a room situated in the attic could lead to further conflicts between the parties . It also pointed out that on several occasions the applicant had changed his claims and that ORG had failed to take into account certain proposals submitted by the plaintiff in the first - instance proceedings .

On DATE Mr PERSON died and was replaced as a party to the proceedings by his widow , PERSON and his son , PERSON During the hearing held on DATE ORG stayed the proceedings to allow them to obtain a declaration of heirs . The proceedings were resumed on CARDINAL DATE .

The next hearing was held on DATE . On DATE the judge visited the property .

The Government submitted that during the hearing held on DATE the applicant had asked the court to take evidence from CARDINAL expert witnesses . The applicant disputed that submission .

DATE and DATE ORG held CARDINAL hearings . The Government submitted that the applicant had failed to attend the first of these hearings . The applicant disagreed with that submission .

During the hearing held on DATE the court allowed the applicant ’s request and appointed an expert witness . On DATE the witness submitted his report . The Government submitted that a delay in taking evidence from the expert witness resulted from the trial court ’s “ unsuccessful attempts to find an expert who was able to prepare the opinion ” .

On DATE and CARDINAL DATE ORG held hearings .

On DATE the presiding judge and the parties visited the property . The applicant refused to sign the record of the survey because he considered that it was not objective .

The next hearing was held on DATE . The applicant was absent for health reasons .

On DATE the applicant challenged the presiding judge . On DATE the challenge was dismissed by ORG but the applicant appealed to ORG .

On DATE ORG held a hearing . The Government submitted that it had been adjourned since the applicant had failed to attend it and his challenge to the judge had not been decided . The applicant claimed that he had not received the summons for that hearing .

On DATE ORG dismissed as manifestly ill - founded the applicant ’s appeal against ORG decision of CARDINAL DATE .

On DATE the applicant filed with ORG a written statement in which he complained about a delay in the proceedings and submitted several requests concerning evidence .

On DATE the President of ORG responded to the applicant ’s complaint of DATE about the excessive length of the proceedings in his case . He pointed out that the case involved both legal and factual complexity and that both parties had changed their claims on many occasions . Furthermore , he noted that QUANTITY hearings had taken place since DATE . The inspection of the property on CARDINAL DATE had been necessary since a new judge had taken over the case and in order to establish the actual condition of the house . The President concluded that in those circumstances the court could not be blamed for the lack of activity in the case .

On DATE ORG decided that rooms situated in the attic should be used exclusively by the plaintiffs , whereas a room in the basement should be shared with the applicant . Both parties appealed to ORG .

On DATE ORG dismissed the applicant ’s appeal against ORG decision rejecting as lodged out of time his request to supplement the judgment ( wniosek o uzupełnienie wyroku ) .

On DATE ORG dismissed the applicant ’s appeal . The court pointed out that the applicant contributed to a delay in the proceedings by submitting and changing numerous requests and appeals and refusing to settle the case .

On DATE the applicant filed a cassation appeal but it was rejected by ORG on DATE .

On DATE the applicant lodged with ORG an appeal against ORG decision rejecting his cassation appeal . On DATE ORG dismissed his appeal .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON ( GPE ) .

The applicant is the owner of a flat in GPE , which he had let to V.D.F.

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

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

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

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

Pursuant to section CARDINAL of Law no . CARDINAL , the enforcement proceedings were suspended until DATE .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

A. The system of control of the rents

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

Obligations of the tenant in the case of late restitution

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Violation of Art. 6-1 (adversarial trial);Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Mr PERSON is a NORP national who lives in GPE . In DATE he joined the ORG company as an engineer . Following its nationalisation in DATE , ORG was absorbed into ORG , PERSON ( " Petrogal " ) , a ORG - owned concern . On DATE PERSON became a public limited company , in which the ORG is still the majority shareholder . In the meantime , on DATE , the applicant had retired .

ORG On DATE Mr PERSON brought proceedings against GPE in the GPE industrial tribunal ; the company was represented by a lawyer appointed by the chairman of its board of directors . Mr PERSON sought recognition of the occupational grade of " director - general " instead of that of " director " which had been assigned to him by his employer . As that classification had an effect on the amount of his retirement pension , he also sought payment of the sums that , under the collective labour agreement ( acordo colectivo de trabalho ) , should have been paid him since DATE .

ORG The GPE industrial tribunal dismissed his claims in a judgment of DATE . That decision was upheld by ORG in a judgment of DATE .

ORG The applicant appealed to ORG ( Supremo Tribunal de Justiça ) .

ORG After the parties had exchanged pleadings , the case file was sent to the representative of the Attorney - General ’s department at ORG , a Deputy Attorney - General , on DATE . On DATE that representative delivered an opinion in which he recommended that the appeal should be dismissed , as follows :

" CARDINAL . Seen .

ORG The appellant reiterates the arguments already presented to ORG and seeks to have that court ’s judgment and the one of the court of first instance set aside and to have his action allowed . Those arguments , however , were duly considered in the judgment appealed against , which is sufficient in itself as regards the reasons given for it . No further consideration is therefore necessary .

ORG I am consequently of the opinion that the appeal must be dismissed . "

ORG On DATE ORG , sitting in private , considered the appeal . CARDINAL judges , a registrar and the member of the Attorney - General ’s department were present at the deliberations . The parties had not been asked to attend . At the end of the deliberations the court adopted a judgment in which it dismissed the appeal and this was served on the applicant on CARDINAL DATE .

ORG The independence and status of the Attorney - General ’s department are similar to those of the judiciary . In Article CARDINAL paras . CARDINAL and CARDINAL of the LAW its functions are laid down as follows :

" CARDINAL . ORG The duties of the Attorney - General ’s department are to represent the ORG , to act as prosecuting authority and to uphold the democratic legal order and the interests determined by law .

ORG The Attorney - General ’s department shall have its own status and shall be autonomous , in accordance with law . "

Law no . CARDINAL of DATE defines the scope of the powers of the Attorney - General ’s department and lays down the manner in which it is to intervene - as plaintiff or defendant or else in an " associated " ( acessória ) capacity - in judicial proceedings . The following provisions are relevant to the instant case :

" By law , the Attorney - General ’s department is the body responsible for representing the ORG , acting as prosecuting authority and upholding the democratic legal order and the interests assigned to it by law . "

" It shall be the duty of the Attorney - General ’s department in particular to :

( a ) represent the ORG ... ;

( b ) act as prosecuting authority ;

( c ) represent workers and their families in defence of their social rights ;

( d ) uphold the independence of the courts , within the limits of its responsibilities , and ensure that the judicial function is discharged in accordance with the LAW and statute law ;

( e ) further the execution of court decisions in respect of which it is so empowered ;

( f ) direct criminal investigations , even where they are carried out by other bodies ;

( g ) promote and cooperate in campaigns for the prevention of crime ;

( h ) monitor the constitutionality of legislation ;

( i ) intervene in bankruptcy and insolvency proceedings and in any other proceedings of public interest ;

( j ) act in an advisory capacity , as provided in this PERSON ;

( l ) supervise police proceedings ;

( m ) lodge appeals against decisions resulting from collusion between the parties with the intention of evading the law or which have been given in breach of an express statutory provision ; and

( n ) discharge all the other functions assigned to it by statute . "

" CARDINAL . ORG The Attorney - General ’s department shall intervene in proceedings as plaintiff or defendant :

( a ) where it represents the ORG ; ...

( d ) where it represents workers and their families in defence of their social rights ;

ORG The Attorney - General ’s department shall intervene in proceedings in an ` associated’ capacity :

( a ) where none of the cases provided for in subsection ( CARDINAL ) applies and where the parties concerned in the case are autonomous regions , local authorities , other public entities , charities and other institutions promoting the public interest , persons lacking legal capacity or missing persons ; and

( b ) in all other cases provided for by law . "

" CARDINAL . ORG Where the Attorney - General ’s department intervenes in an ` associated’ capacity , it shall watch over the interests entrusted to it by taking all necessary measures .

ORG The intervention shall be made in the manner laid down in procedural law . "

" [ The Attorney - General ’s department ] shall be represented [ in the supreme courts ] by Deputy Attorneys - General ... "

" The Minister of ORG may :

( a ) give specific instructions to the Attorney - General concerning civil cases in which the ORG has an interest ;

( b ) authorise the Attorney - General ’s department ... to admit the other side ’s case , conclude settlements or discontinue proceedings in civil cases to which the ORG is a party ;

ORG The relevant provisions of LAW , which are also applicable to cases falling within the jurisdiction of the industrial tribunals , are the following :

" CARDINAL . ORG The ORG shall be represented by the Attorney - General ’s department .

ORG If the case concerns ORG property or ORG rights but the property is managed or the rights exercised by autonomous bodies , the latter may instruct counsel , who shall act conjointly with the Attorney - General ’s department in the proceedings . In the event of disagreement between the Attorney - General ’s department and counsel , the view of the Attorney - General ’s department shall prevail . "

" CARDINAL . ORG After inspecting the case file , each judge shall append his signature and the date , together with any comments . At the end of this process , the registry shall enter the case in the court ’s list .

ORG On DATE on which the court sits to adopt its judgment , the reporting judge shall read out the draft judgment , after which each of the other judges shall vote in the order in which they have inspected the case file . Where possible , a photocopy or a manuscript or typescript copy of the draft judgment shall be distributed to the presiding judge and the other judges of the court at the beginning of the sitting .

ORG ... "

" Where the Attorney - General ’s department must intervene [ in proceedings ] , the case file shall be sent to it [ for observations ] for DATE , after which the file ... shall be sent to the reporting judge and the other non - presiding judges for the purposes of a final decision ; the reporting judge may keep the file for DATE and the other judges for DATE . "

ORG Under LAW and LAW governing the Attorney - General ’s department , the latter must intervene in all proceedings in which the public interest ( interesse público ) is at stake .

In labour - law cases the practice of ORG of ORG is for the representative of the Attorney - General ’s department at that court ( a Deputy Attorney - General ) to be given the file so that he can express an opinion on the merits of the appeal . As a general rule , that representative also takes part in the sitting held to consider the appeal .

ORG The Government cited the following provisions of LAW :

" The representatives of the Attorney - General ’s department must automatically represent :

( a ) workers and their families ;

( b ) ... "

" Where a legal representative is appointed , the automatic representation by the Attorney - General ’s department shall cease , without prejudice to that department ’s intervention in an ` associated’ capacity . "


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

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

Until DATE , the applicants lived in Erkenciler hamlet of GPE in PERSON , ORG , where they own property . Following an armed clash with the ORG militants in a nearby area , the security forces came to ORG and required the inhabitants to establish a village guards system . Upon their refusal , the security forces evacuated the hamlet .

After the evacuation , the applicants moved to the city centre of ORG , where they currently live .

On an unspecified date , the security forces set fire to the houses and the cultivated fields in the hamlet .

Following the incidents , the applicants filed applications with the administrative and military authorities , asking for an authorization to return to their hamlet , or in the alternative , to continue to cultivate their fields . The applicants maintained that they were unable to provide copies of all of the complaints and requests they had filed , except for CARDINAL letter dated CARDINAL DATE , which had been sent to the Governorship of ORG . In the letter , which was later transmitted to the gendarmerie command , Mr PERSON stated that the hamlet had been burnt down by the security forces and requested to be remedied .

The authorities have not responded to these requests or taken any action .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG , § § CARDINAL , ORG CARDINAL-VI )


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the village of GPE , GPE .

According to the applicant , a number of third persons unlawfully occupied a part of her house .

On DATE she filed a civil action with the GPE ORG ( “ the ORG ” ) in which she sought the eviction of a number of third persons .

On DATE the statement of claim and supporting documents reached ORG .

By decision of CARDINAL DATE ORG accepted the case for examination .

It appears that a proper resolution of the dispute required questioning of a person living in the town of GPE . On DATE ORG made such request to ORG .

According to the Government , the hearings in the case were suspended pending the response .

On an unspecified date ORG received the transcripts of the questioning of the witness .

Having resumed the hearings in the case on DATE , by judgment of the same date ORG partly granted the applicant ’s claim and ordered the defendants not to prevent the applicant from using her house . The court rejected the claim insofar as the eviction was concerned .

A copy of the judgment was served on the applicant on DATE . The applicant appealed against the judgment .

On DATE ORG ( “ the Regional Court ” ) accepted the applicant ’s appeal on the ground that ORG had failed to notify the applicant and her counsel of the hearing in the case and had taken decisions in their absence . ORG quashed the judgment of DATE and remitted the case for a fresh consideration at first instance .

ORG returned the case - file to ORG on DATE .

On DATE the judge in charge of the case withdrew from the proceedings on the ground that she had already expressed an opinion on the merits of the dispute .

By decision of CARDINAL DATE the Presidium of ORG quashed the withdrawal and on DATE returned the case to the first instance .

Thereafter the proceedings were adjourned due to the judge ’s illness and the transfer of the case to another judge .

On DATE the applicant amended her claims .

The next hearing took place on DATE .

On that date a prosecutor joined the case , acting for the applicant . The applicant and her counsel failed to attend that hearing .

The hearings were postponed on DATE , DATE , DATE and DATE due to the defendants’ failure to attend .

On DATE ORG delivered a judgment in the case in which it dismissed the applicant ’s claims .

It does not appear that the parties appealed against that judgment .

On DATE the prosecutor , acting for the applicant , brought a supervisory review complaint against the judgment of DATE .

The outcome of those proceedings is unclear .

On several occasions , DATE , the applicant complained about the excessive length of the case to the prosecutors and higher courts , requesting them to speed up the proceedings and to bring criminal proceedings against the judge who sat in her case .

On DATE the applicant received a letter from ORG in which the authority admitted unjustified delays in the proceedings . However , it rejected the applicant ’s requests .

According to the Government , in DATE disciplinary proceedings were brought against the judge in charge of the case in ORG and by decision of DATE ORG dismissed her from the post for , among other things , excessive delays in the examination of the applicant ’s case .


CASE OF M. AND OTHERS v. ITALY AND BULGARIA

Preliminary objection partially dismissed (Article 34 - Victim);Preliminary objection partially allowed (Article 34 - Victim);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect) (Italy);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) (Italy)

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE and DATE respectively and live in the village of GPE in LOC ( GPE ) . The applicants are of GPE ethnic origin . At the time of the events ( DATE ) , the first applicant was still a minor . The second and third applicants are her father and mother , and the fourth applicant is the first applicant ’s sisterinlaw .

CARDINAL .

The first , second and third applicants arrived in GPE on DATE following a promise of work by X. , a GPE man of NORP nationality , residing in GPE , who accommodated them in a villa in the village of GPE , in the province of GPE , where he lived with his family . The third and the first applicants provided different versions on this point to the NORP authorities . In her declarations to the NORP police , on DATE , the third applicant maintained that she , her husband and her daughter , who lived in GPE in a condition of extreme precariousness , moved to GPE in search of work ; when they arrived in GPE they approached an individual who spoke their language , X. , who proposed to them to work as domestic employees to take care of his big house . The first applicant , in her declarations to the public prosecutor on DATE , maintained that she had met X. in “ GPE ” , where she was with her mother in search of a job , and from there X. had driven them to GPE in his car after proposing a job . They remained in the villa for DATE , during which time they undertook household chores . After a while , X. declared to the second applicant that Y. , his nephew , wanted to marry his daughter ( the first applicant ) . As the second and third applicants refused , X. threatened them with a loaded gun . Then the second and third applicants were beaten , threatened with death and forced to leave the first applicant in GPE and go back to GPE . Although the applicants denied this , it seems from their initial submissions that the second and third applicants had been offered money to leave their daughter behind . On DATE , the second and third applicants went back to GPE . On their return the second applicant was diagnosed with type CARDINAL diabetes , which he alleged was a consequence of the stress endured .

The applicants submitted that during DATE ( following DATE ) spent at the villa in GPE , the first applicant was kept under constant surveillance and was forced to steal against her will , was beaten , threatened with death and repeatedly raped by DATE while tied to a bed . During CARDINAL of the robberies in which the first applicant was forced to participate , she had an accident and had to be treated in hospital . However , the NORP family refused to leave her there to undergo treatment . The applicants submitted that they were not aware of the name and location of this hospital .

On DATE the third applicant returned to GPE , accompanied by the first applicant ’s sisterinlaw ( the fourth applicant ) , and lodged a complaint with the NORP police in GPE , reporting that she and her husband had been beaten and threatened and that the first applicant had been kidnapped . She further feared that her daughter might be led into prostitution . They were settled in a monastery near GPE . Subsequently , the police accompanied them with an interpreter to identify the house in GPE .

Apparently frustrated with the police ’s slowness in responding to the complaint , the second applicant lodged written complaints with many other institutions . A letter of CARDINAL DATE , addressed to the NORP Prime Minister , the NORP Ministers for Foreign and ORG , the NORP Ambassador in GPE , the Prefect of GPE , the NORP Prime Minister , the NORP Minister for ORG and the NORP Ambassador to GPE , is included in the file .

It has been shown that , DATE after the lodging of the complaint , on DATE , the police raided the house in GPE , found the first applicant there and made a number of arrests . At TIME that day , she was taken to a police station in ORG and questioned , in the presence of an interpreter , by CARDINAL female and CARDINAL male police officers . The applicants alleged that she was treated roughly and threatened that she would be accused of perjury and libel if she did not tell the truth . Allegedly she was then forced to declare that she did not wish her supposed kidnappers to be prosecuted , to answer “ yes ” to all other questions , and to sign certain documents in NORP , which she did not understand and which were neither translated into NORP nor given to her . They also alleged that the interpreter did not do her job properly and remained silent in the face of the treatment being inflicted . The applicants further alleged that PERSON was present during certain parts of the first applicant ’s questioning .

DATE , the third applicant was questioned by the police in GPE in the presence of an interpreter . The third applicant alleged that she was also threatened that she would be accused of perjury and libel if she did not tell the truth , and that the interpreter did not do her job properly . She claimed that , as she refused to sign the record , the police treated her badly .

At TIME on DATE the first applicant was questioned again . The applicants alleged that no interpreter or lawyer was present and that the first applicant was unaware of what was recorded . The first applicant was then taken to a cell and left there for TIME . On DATE at TIME , she was transferred to a shelter for homeless persons , where she remained until TIME

On DATE , upon their request , the first , third and fourth applicants were taken by the police to the railway station in ORG and travelled back to GPE . They submitted to the Court that the facts were then investigated by the NORP authorities , but that no criminal proceedings were instituted in GPE against the first applicant ’s kidnappers , or at least that they were not informed , nor were they able to obtain information about any ongoing criminal investigation . They also complained that the NORP authorities did not seek to question the second applicant in order to establish the facts , by means of cooperation with the NORP authorities .

It appears from the file that , after DATE , the applicants sent several letters and e - mails , most of which were in NORP , to the NORP authorities ( such as the NORP Prime Minister , the NORP Ministers for ORG and ORG , ORG attached to ORG of GPE , the mayor of GPE and the NORP diplomatic authorities in GPE ) , with a request to provide them with information about the police raid of DATE and to start criminal proceedings against the first applicant ’s alleged kidnappers . They also complained that they had suffered threats , humiliation and ill - treatment at the hands of the police . They asked those authorities to forward their complaints to ORG in GPE and to the police department of the same town .

At the same time , the applicants also wrote to the Prime Minister of GPE , the Head of ORG of ORG ( ORG ) and ORG in GPE , requesting them to protect their rights and assist them in obtaining information from the NORP authorities . ORG in GPE provided the applicants with certain information .

The applicants did not provide the ORG with any document regarding their questioning and the subsequent criminal proceedings against them ( see below ) . Their representative claimed that , considering the circumstances , including the alleged refusal of ORG in GPE , it was impossible to submit any document . Apart from copies of the letters sent to the NORP institutions , they CARDINAL medical reports , CARDINAL dated DATE establishing that the first applicant was suffering from post - traumatic stress disorder and CARDINAL dated DATE establishing that the first applicant had a bruise on the head , a small wound on the right elbow and a broken rib . It further stated that she had lost her virginity and was suffering from a vaginal infection . The medical report concluded that these injuries could have been inflicted in the way the first applicant had reported .

On DATE and DATE , at the ORG ’s request , ORG submitted a number of documents , among which the transcript of the first complaint lodged by the third applicant on DATE with the GPE police , and TIME of the interviews with the first applicant , the third applicant and some of the alleged kidnappers , which took place on DATE .

It appears from these documents that the transcript of the third applicant ’s first complaint against the alleged kidnappers ( lodged with the NORP police in GPE on DATE ) , as well as the ORG complaints sent by their representative to different NORP institutions , in DATE , were transmitted to the NORP police in GPE ( on CARDINAL May and DATE respectively ) and to ORG of the same town ( on CARDINAL and DATE respectively ) .

More specifically , on CARDINAL DATE the GPE ORG requested help from ORG to identify the location where the first applicant was allegedly being held . On DATE the ORG went to GPE to identify the location together with the third applicant . They inspected the location and the third applicant identified the villa she had mentioned in her complaint . On DATE ORG transmitted the crime report ( notizia di reato ) to ORG . From the communal registry it appeared that no person resided in the identified villa , but that it was owned by an individual who had a criminal record . In consequence , the police kept the place under surveillance . The police raided the villa on DATE , after having observed movement inside . During the search the police seized a number of cameras containing photographs of what appeared to be a wedding .

On DATE , DATE , DATE and DATE , ORG was informed by fax of developments in the case .

On DATE at TIME , immediately after the raid , the first applicant was questioned by ORG , who was assisted by the police . As also transpires from the documents , the first applicant made allegations that showed a number of discrepancies with the complaint previously submitted by her mother , and which led the authorities to conclude that no kidnapping , but rather an agreement about a marriage , had in reality taken place between the CARDINAL families . This conclusion was confirmed by photographs given to the police by X. after the raid , showing a wedding party at which the second applicant received a sum of money from X. When showed the photographs , the first applicant denied that her father had taken money as part of the agreement about the marriage .

At TIME the third applicant was questioned by ORG in Vercelli . She stated again that her daughter had not married Y. of her own free will , and claimed that the photographs were nothing but a fake , taken on purpose by the alleged kidnappers , who had threatened them with a gun , in order to undermine the credibility of their version of the facts . The ORG police also questioned X. , PERSON ( a third party present at the wedding ) and Y. , who all stated that Y. had entered into a consensual marriage with the first applicant .

As a result of these interviews and on the basis of the photographs , ORG decided to turn the proceedings against unknown persons for kidnapping ( CARDINAL/CARDINAL ORG ) into proceedings against the first and third applicants for perjury and libel . TIME , the first and third applicants were informed by the ORG and GPE police about the charges and invited to appoint a representative . They were then provided with a court - appointed lawyer . At TIME the first applicant was transferred to a shelter for homeless people . On DATE she was released into the custody of her mother . The ORG complaints sent to many NORP institutions during DATE were received by ORG in GPE , translated into NORP and forwarded to ORG .

Following information requests , the first dated DATE by ORG in GPE , the NORP authorities updated the Consul about the status of the criminal proceedings ( mentioned below ) on CARDINAL and DATE , and DATE .

On DATE , ORG attached to ORG and GPE d’Aosta started criminal proceedings ( CARDINAL ORG ) against the first applicant for false accusations ( calunnia ) in so far as she claimed that X. , Y. and PERSON deprived her of her personal liberty by keeping her in the villa , thus accusing them of kidnapping while knowing they were innocent .

On DATE the first applicant was invited for questioning by ORG , but she was in GPE and did not appear .

On DATE the Investigating Magistrate of ORG decided not to proceed with the charges in so far as the offences committed were one - off and not serious , and therefore “ socially irrelevant ” .

On DATE ORG of GPE started criminal proceedings ( CARDINAL ORG ) against the third applicant for perjury and false accusations ( calunnia ) in so far as she claimed that X. , NORP and PERSON deprived her daughter of her personal liberty by keeping her in the villa , thus accusing them of kidnapping while knowing they were innocent .

On DATE ORG of Turin concluded the investigation against the third applicant and sent the case to ORG .

On DATE ORG acquitted the third applicant , on the ground that the facts of which she was accused did not subsist . The actual evidence consisting of the notes verbal of the questioning of the accused and her daughter , the photographic evidence and the policemen ’s statements , were indicative and could not establish without doubt the guilt of the accused . The accused and her daughter ’s statements were contradictory and the photos did not certify the circumstances in which they were taken . According to the police statements it could only be deduced that the daughter had been found at the villa and the persons who could have clarified the facts had availed themselves of the right to remain silent . The understanding of the facts was further complicated by the GPE tradition of selling , or paying a sum of money previously established to the family of the bride for the purposes of concluding a marriage , a matter which in the case of a dispute could have created consequences which it had been impossible to establish .

On the basis of the documents produced by ORG , particularly the declarations made by X. , NORP and PERSON , ORG considered the facts to be as follows .

On DATE the first CARDINAL applicants arrived in GPE and were accommodated in the nomad camp in GPE . It was there that X. , Y. and PERSON met them and that PERSON chose the first applicant as his spouse . The first applicant agreed and therefore PERSON and the second applicant bargained over the price of the bride . The second applicant initially demanded EUR CARDINAL , but eventually they agreed on the sum of EUR CARDINAL . PERSON paid the second applicant ORG CARDINAL in advance . After festivities the newlyweds retired to the trailer where they consummated the marriage and Y. confirmed that the first applicant had been a virgin . The CARDINAL families then went to the nomad camp of ORG where they celebrated the marriage . At the end of the wedding X. paid the second applicant the remainder of the amount due , namely LAW , in the presence of both families and other witnesses , as proven by the photographs . After the festivities the bride ’s parents were accompanied to the railway station and left for GPE on DATE .

Once in GPE it was only on DATE , DATE after their departure from GPE , that the second applicant complained to the ORG of GPE . Following this first notification , the NORP authorities took immediate action and on DATE the claim was forwarded to ORG in GPE . Contact was made with the NORP authorities and a successful raid by the NORP police which freed the first applicant was carried out on DATE .

Subsequently , the first and third applicants were questioned by a prosecutor specialised in interaction with minors , in the presence of an interpreter . Following an investigation by the NORP authorities , criminal proceedings against the first and third applicants for perjury were initiated . The applicants did not inform the NORP authorities of the latter proceedings .

According to Article CARDINAL sub - articles CARDINAL and CARDINAL of LAW , ORG undertakes criminal proceedings when the conditions for archiving a case are not fulfilled . When the complaint of the injured party or an authorisation to proceed is not required , criminal proceedings are undertaken ex proprio motu . According to LAW , a request to archive a case is made if the notice of the crime ( notizia di reato ) is unfounded . Such a request is transmitted together with the relevant file and documents to the judge for preliminary inquiry . Notice of such a request is given to any victim who has previously declared his or her wish to be informed of any such action . The latter notice includes information about the possibility to consult the case - file and to submit an objection ( opposizione ) , together with a reasoned request to continue the preliminary investigation .

Article CARDINAL ( CARDINAL ) of LAW provides that the judicial police must , even on their own initiative , receive notice of crimes , prevent further crimes , find the perpetrators of crimes , take any measures necessary to ensure the sources of evidence and the collection of any other relevant material which might be needed for the application of the criminal law .

According to LAW , at the time of the relevant facts , assault / battery ( percosse ) , wounding and wounding with intent ( lesione personale , lesioni personali colpose ) , kidnapping ( sequestro di persona ) , sexual violence ( including rape but not only ) ( violenza sessuale ) , private violence ( violenza privata ) , violence or threat for the purposes of forcing the commission of an offence ( violenza o minaccia per costringere a commettere un reato ) , and threats ( minaccia ) are crimes punishable by imprisonment for periods ranging from DATE to DATE for the more minor offence and to DATE for the more serious offence .

Moreover , some of these crimes are subject to higher prison sentences when the crime is committed against , inter alia , a descendant or wife , as for example in the case of kidnapping , or are subject to the application of aggravating circumstances when , as in the case of sexual violence , the victim is younger than DATE , the victim is younger than DATE and has been assaulted by an ascendant parent or tutor , or the victim was subject to limited personal liberty .

Article CARDINAL of the Criminal Code provides for a prison sentence of DATE for anyone found guilty of ill - treating a member of his or her family , a child under DATE , or a person under his or her authority or who has been placed in his or her care for the purposes of education , instruction , care , supervision or custody .

LAW , at the time of the present case , also included specific provisions relating to minors , which , in so far as relevant , read as follows :

“ Whoever takes away from the parent having parental authority or the curator , without the latter ’s consent , a minor over DATE with his or her consent is punished by imprisonment of a period of a maximum of DATE upon the complaint of the said parent or curator . The punishment is diminished if the purpose of the taking away is marriage and increased if it is lust . ”

“ A term of imprisonment of DATE is applicable for the offence of sexual acts not covered by the offence of sexual violence when the victim is :

CARDINAL ) Under DATE ,

CARDINAL ) Under DATE , if the aggressor is the ascendant , parent , or the latter ’s cohabitee , tutor or any other person having the victim ’s care for the purposes of education , instruction , care , supervision or custody and with whom the victim cohabits .

Save for the circumstances provided for under the offence of sexual violence , the ascendant , parent , or the latter ’s cohabitee , and the tutor who has abused his or her powers connected to his or her position and is guilty of sexual acts with a minor DATE , is punished by imprisonment of from DATE . ”

Law no . CARDINAL of DATE introduced a number of measures against violence in family relations . These included precautionary and permanent measures regarding the ousting of the accused from the family home upon a decree to this effect by a judge .

Italy adopted PERSON no . CARDINAL , namely FAC , on DATE . The latter has added a number of offences to LAW , which in so far as relevant read as follows :

“ Whoever exercises over a person powers corresponding to those of ownership , that is , whoever reduces or maintains a person in a state of continued subjection , forcing the person into labour or sexual services or begging , or in any event services involving exploitation , is punished by imprisonment of a period of DATE .

The holding of a person in a state of subjection occurs when such conduct is carried out by means of violence , threats , deception , abuse of authority or taking advantage of a situation of physical or mental inferiority or of a situation of need , or through the promise or the payment of a sum of money or other advantage to the individual who has authority over the person .

The punishment is increased by DATE if the facts mentioned in subparagraph one above are directed against a minor of DATE or if they are intended for the exploitation of prostitution or aimed at the removal of organs . ”

“ Whoever commits human trafficking for the purposes of holding a person in servitude or slavery as mentioned in LAW above and induces such person , by means of violence , threats , deception , abuse of authority or taking advantage of a situation of physical of mental inferiority or of a situation of need , or through the promise or donation of a sum of money or other advantages to the individual who has authority over the said person , to enter or stay or leave the territory of the state or to displace him or herself internally , is punished by imprisonment of a period of DATE .

Article CARDINAL ( purchase and alienation of slaves )

“ Whoever , save for the cases indicated in article CARDINAL , purchases , alienates or sells a person in the situation laid down in article CARDINAL , is punished by imprisonment of a period of DATE .

Law no . CARDINAL also included other changes to LAW in relation to the above articles when taken in conjunction with pre - existing ones , such as LAW , whereby it provided for specific punishments if association to commit a crime was directed towards committing any of the crimes in articles CARDINAL to CARDINAL . It further provided for administrative sanctions in respect of juridical persons , societies and associations for crimes against individual personality and made the relevant changes to LAW , including its provisions regarding interception of conversations or communications and undercover agents , which became applicable to the new offences . Law no . CARDINAL also created a fund for anti - trafficking measures and the institution of a special assistance programme for victims of the crimes under articles CARDINAL and CARDINAL of LAW , together with provision for preventive measures . In so far as relevant , articles CARDINAL and CARDINAL of the said law read as follows :

“ Save for the cases provided for under article CARDINAL-bis of legislative decree no . CARDINAL of DATE , converted and modified by law no . CARDINAL of DATE , and successive amendments , for the victims of the crimes under article CARDINAL and CARDINAL of the criminal code , as substituted by the present law , there shall be instituted ... a special assistance programme that guarantees temporary , adequate board and lodging conditions and health assistance . The programme is defined by regulation still to be adopted ( ... ) ”

“ In order to reinforce the effectiveness of the action on prevention of the crimes of slavery and servitude and crimes related to human trafficking , the Minister for ORG defines policies of cooperation in respect of any GPE interested in / affected by such crimes , bearing in mind their collaboration and the attention given by such GPE to the problems of respecting human right . The said Minister must ensure , together with the Minister of Equal Opportunities , the organisation of international meetings and information campaigns , particularly in GPE from which most victims of such crime come . With the same aim , the Ministers of Interior , of Equal Opportunities , of ORG and of ORG , must organise where necessary training courses for personnel and any other useful initiative . ”

Law No . CARDINAL of DATE amended earlier laws regarding immigration . Its Article CARDINAL relates to stays for reasons of social protection and in so far as relevant reads as follows :

When the existence of situations of violence or serious exploitation in respect of a foreigner are established during police operations , investigations or proceedings regarding the crimes under LAW no . CARDINAL of DATE [ crimes related to prostitution ] or during assistance intervention by the local social services , and there appears to be a concrete peril for his or her safety as a result of his or her attempts to escape from the influence of the association engaging in any of the above - mentioned crimes , or the declarations made during the preliminary investigation or the proceedings , the Police Commissioner upon request of ORG or with a favourable suggestion by the said authority , releases a special residence permit to allow the foreigner to escape the said violence and influence of the criminal organisation and to participate in a programme of assistance and social integration .

The elements showing the subsistence of such conditions , particularly the gravity and imminence of the peril together with the relevance of the help offered by the foreigner for the identification and capture of those responsible for the said crimes , must be communicated to the Police Commissioner with the above mentioned request or suggestion . The procedure for participating in such a programme is communicated to the mayor . ”

The text states that the permit released for such purposes has a duration of DATE and may be renewed for DATE or for as long as necessary in the interest of justice . It also provides the conditions on the basis of which the permit may be revoked , what it entails , and who may issue it .

According to a Report of ORG organized by ORG for ORG ( DAW / ORG ) , in collaboration with ORG ( ORG ) , of DATE entitled Trafficking in Women and Girls ( EGM / TRAF/CARDINAL/Rep.CARDINAL ) , in DATE of implementation of this provision , CARDINAL people – mostly women and girls – have been accepted in the programmes of assistance and social integration , and CARDINAL have received a residence permit . A hotline has been established , and CARDINAL people have received concrete help in terms of information , counselling and health care .

The NORP law on combating human trafficking entered into force on DATE . In so far as relevant the provisions read as follows :

“ This PERSON shall provide for the activities aimed at preventing and counteracting the illegal trafficking in human beings for the purposes of :

a. Providing protection and assistance to victims of such trafficking , especially to women and children , and in full compliance with their human rights ;

b. Promoting co - operation between the governmental and municipal authorities as well as between them and NGOs for fighting the illegal trafficking in human beings and developing the national policy in this area . ”

“ The diplomatic and consular posts of GPE abroad shall provide assistance and co - operation to NORP nationals who have become victims of illegal trafficking for their return to the country in accordance with their powers and with the legislation of the relevant foreign country . ”

“ ( CARDINAL ) In compliance with the NORP legislation and the legislation of the accepting country , the diplomatic and consular posts of GPE abroad shall distribute amongst the relevant individuals and the risk groups information materials about the rights of the victims of human trafficking .

( CARDINAL ) The diplomatic and consular posts of GPE abroad shall provide information to the bodies of the accepting country regarding the NORP legislation on human trafficking . ”

Article CARDINAL ( CARDINAL ) of LAW in force at the time of the events read as follows :

“ When aware of the commission of a criminal offence punishable by law , civil servants are duty bound to immediately inform the organ competent to undertake preliminary inquiries and to take the necessary measures to preserve the elements of the offence . ”

Article CARDINAL of LAW states :

“ There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed . ”

In so far as relevant the NORP Criminal Code reads as follows :

“ Whoever coerces a person to contract a marriage , which is thereafter annulled on this ground , will be punished by imprisonment of a maximum period of DATE .

( CARDINAL ) Whoever kidnaps a woman with a view to coercing her to marry , will be punished by imprisonment of a maximum period of DATE ; if the victim is a minor , the punishment will be imprisonment for a period of DATE . ”

“ ( CARDINAL ) A parent or any other relative who receives a sum of money in order to authorise the marriage of his or her daughter or a relative , will be punished by imprisonment of a maximum period of DATE or by a fine of MONEY ( ORG ) together with a public reprimand .

( CARDINAL ) the same punishment applies to whoever pays or negotiates the price . ”

“ Whoever abuses his or her parental authority to coerce a child , not having DATE , to live as a concubine with another person , will be punished by imprisonment of DATE , or by a control measure without deprivation of liberty ( пробация ) together with a public reprimand . ”

“ ( CARDINAL ) All adults who without having contracted marriage are living as concubines with a female who has not attained DATE will be punished by imprisonment of a period of DATE , or by a control measure without deprivation of liberty ( пробация ) together with a public reprimand . ( ... ) ”

“ The persons who select , transport , hide or receive individuals or groups thereof with the aim of using such individuals for the purposes of prostitution , forced labour or the removal of organs , or to maintain them in a state of forced subordination , with or without their consent , are punished by imprisonment of a period of from DATE and by a fine of a maximum of MONEY ( ORG ) .

( CARDINAL ) When the offence in paragraph one above is committed CARDINAL ) against an individual , who has not attained DATE , CARDINAL ) with coercion or false pretences , CARDINAL ) through kidnapping or illegal detention , CARDINAL ) by taking advantage of a state of dependence , CARDINAL ) by means of abuse of power , CARDINAL ) through the promise , giving or receipt of benefits , the punishment is imprisonment for a period of DATE and a fine of a maximum of MONEY ( ORG ) . ”

“ Whoever selects , transports , hides or receives individuals or groups thereof and transfers them by crossing the border of the country with the aim mentioned in sub - paragraph CARDINAL ( a ) above , will be punished by imprisonment for a period of DATE and by a fine of a maximum of MONEY ( ORG ) .

( CARDINAL ) if such an act takes place in the conditions mentioned in LAW , the punishment will be imprisonment of a period of DATE and a fine of a maximum of MONEY ( ORG ) . ”

“ If the offences mentioned in LAW ) above are committed by a recidivist or are ordered by a criminal organisation , the punishment is imprisonment for a period of DATE and a fine of a maximum of MONEY ( ORG ) ; the tribunal may also order the seizure of part or the entirety of the possessions of the actor . ”

The Declaration of Basic Principles of Justice for ORG adopted by ORG resolution CARDINAL of CARDINAL DATE , in so far as relevant reads as follows :

“ CARDINAL . “ Victims ” means persons who , individually or collectively , have suffered harm , including physical or mental injury , emotional suffering , economic loss or substantial impairment of their fundamental rights , through acts or omissions that are in violation of criminal laws operative within Member GPE , including those laws proscribing criminal abuse of power .

A person may be considered a victim , under this Declaration , regardless of whether the perpetrator is identified , apprehended , prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim . The term “ victim ” also includes , where appropriate , the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation . ”

An overview of the relevant international instruments pertaining to trafficking in human beings can be found in GPE v. GPE and GPE , no . CARDINAL , DATE .

LAW was ratified by GPE on DATE and by GPE on DATE , both GPE having previously signed the protocol in DATE . ORG Beings ( “ LAW ” ) was signed by GPE on DATE and ratified on DATE . It entered into force in respect of GPE on DATE . It was signed by GPE on DATE , ratified on CARDINAL DATE and entered into force in respect of GPE on DATE .

For easiness of reference the relevant definitions for the purposes of LAW are reproduced hereunder :

a “ Trafficking in human beings ” shall mean the recruitment , transportation , transfer , harbouring or receipt of persons , by means of the threat or use of force or other forms of coercion , of abduction , of fraud , of deception , of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person , for the purpose of exploitation . Exploitation shall include , at a minimum , the exploitation of the prostitution of others or other forms of sexual exploitation , forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs ;

b The consent of a victim of “ trafficking in human beings ” to the intended exploitation set forth in subparagraph ( a ) of this article shall be irrelevant where any of the means set forth in subparagraph ( a ) have been used ;

c The recruitment , transportation , transfer , harbouring or receipt of a child for the purpose of exploitation shall be considered “ trafficking in human beings ” even if this does not involve any of the means set forth in subparagraph ( a ) of this article ;

d “ Child ” shall mean any person DATE ;

e “ Victim ” shall mean any natural person who is subject to trafficking in human beings as defined in this article .

The explanatory report to LAW CARDINAL.V.CARDINAL reveals further detail regarding the definition of trafficking . In particular in respect of “ exploitation ” , in so far as relevant , it reads as follows :

The purpose must be exploitation of the individual . The ORG provides : “ Exploitation shall include , at a minimum , the exploitation of the prostitution of others or other forms of sexual exploitation , forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs ” . National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings .

DATE . The forms of exploitation specified in the definition cover sexual exploitation , labour exploitation and removal of organs , for criminal activity is increasingly diversifying in order to supply people for exploitation in any sector where demand emerges .

Under the definition , it is not necessary that someone have been exploited for there to be trafficking in human beings . It is enough that they have been subjected to CARDINAL of the actions referred to in the definition and by CARDINAL of the means specified “ for the purpose of ” exploitation . Trafficking in human beings is consequently present before the victim ’s actual exploitation .

As regards “ the exploitation of the prostitution of others or other forms of sexual exploitation ” , it should be noted that the ORG deals with these only in the context of trafficking in human beings . The terms “ exploitation of the prostitution of others ” and “ other forms of sexual exploitation ” are not defined in the LAW , which is therefore without prejudice to how states Parties deal with prostitution in domestic law .

The explanatory report continues to list the other types of exploitation , namely forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs and gives their definition according to the relevant international instruments and the ORG case - law where available .

Following ORG of the ORG resolution CARDINAL ( ORG ) of DATE , declaring that certain customs , ancient laws and practices relating to marriage and the family were inconsistent with the principles set forth in GPE and in LAW , and calling on states to develop and implement national legislation and policies prohibiting such practices , LAW , Minimum Age for Marriage and Registration of Marriages was opened for signature and ratification by ORG LAW A ( ORG ) of DATE . GPE signed the Convention on DATE , but has to date not ratified the ORG . ORG has yet to sign LAW .

The relevant provisions read as follows :

“ CARDINAL . No marriage shall be legally entered into without the full and free consent of both parties , such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses , as prescribed by law .

Notwithstanding anything in paragraph CARDINAL above , it shall not be necessary for CARDINAL of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has , before a competent authority and in such manner as may be prescribed by law , expressed and not withdrawn consent . ”

“ GPE Parties to the present Convention shall take legislative action to specify a minimum age for marriage . No marriage shall be legally entered into by any person under this age , except where a competent authority has granted a dispensation as to age , for serious reasons , in the interest of the intending spouses . ”

“ All marriages shall be registered in an appropriate official register by the competent authority . ”

“ CARDINAL . ORG is deeply concerned about the serious and recurrent violations of human rights and the rights of the child which are constituted by forced marriages and child marriages .

The ORG observes that the problem arises chiefly in migrant communities and primarily affects young women and girls .

It is outraged by the fact that , under the cloak of respect for the culture and traditions of migrant communities , there are authorities which tolerate forced marriages and child marriages although they violate the fundamental rights of each and every victim .

The ORG defines forced marriage as the union of CARDINAL persons CARDINAL of whom has not given their full and free consent to the marriage .

Since it infringes the fundamental human rights of the individual , forced marriage can in no way be justified .

The ORG stresses the relevance of ORG ( ORG ) of DATE declaring certain customs , ancient laws and practices relating to marriage and the family to be inconsistent with the principles set forth in GPE and in LAW .

The ORG defines child marriage as the union of CARDINAL persons CARDINAL of whom is DATE . ”

“ CARDINAL . The ORG calls on the GPE community and its representatives to fight discrimination and violence against GPE women and girls in their own community . In particular , the problems of domestic violence and of forced and child marriages , which constitute a violation of human rights , need to be addressed also by the GPE community itself . Custom and tradition can not be used as an excuse for human rights violations , but should instead be changed . The ORG calls on member states to support ORG women activists who engage in debates within their community about the tensions between the preservation of a NORP identity and the violation of women ’s rights including through early and forced marriages . ”

More recently , at ORG on GPE , GPE , DATE , the member ORG agreed on a non - exhaustive list of priorities , which should serve as guidance for more focused and more consistent efforts at all levels , including through active participation of GPE . These included :

“ Women ’s rights and gender equality

( CARDINAL ) Put in place effective measures to respect , protect and promote gender equality of GPE girls and women within their communities and in the society as a whole .

( CARDINAL ) Put in place effective measures to abolish where still in use harmful practices against GPE women ’s reproductive rights , primarily forced sterilisation .

Children ’s rights

( CARDINAL ) Promote through effective measures the equal treatment and the rights of GPE children especially the right to education and protect them against violence , including sexual abuse and labour exploitation , in accordance with international treaties .

Combat trafficking

( CARDINAL ) Bearing in mind that GPE children and women are often victims of trafficking and exploitation , devote adequate attention and resources to combat these phenomena , within the general efforts aimed at curbing trafficking of human beings and organised crime , and , in appropriate cases , issue victims with residence permits . ”


Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 6-1+6-3-c

On DATE ORG ( PERSON ) , sitting with CARDINAL professional and CARDINAL lay judges ( ORG ) , having held an oral hearing in the presence of ORG , the applicant and his official defence counsel , ordered that the applicant be detained in an institution for mentally ill offenders ( GPE geistig abnorme PERSON ) , pursuant to section CARDINAL § CARDINAL of LAW ) . ORG found that the applicant had intimidated numerous persons by threats of murder , but that he could not be held responsible because he was suffering from a mental illness . The applicant had , in several letters addressed to judicial authorities and lawyers , respectively , stated his intention to murder particular judges and lawyers , mentioning also either his " list of death " or details of the threatened offence .

NORP In its decision , ORG noted that the applicant had CARDINAL previous convictions , inter alia , of intimidation , coercion , bodily injury and property offences . The offences at issue in the pending proceedings had started in the context of civil proceedings , which had been instituted by ORG ( GPE ) , claiming compensation for damages of NORP schillings ( ORG ) CARDINAL caused by the applicant in the context of a burglary . In a judgment of DATE , ORG ( Bezirksgericht ) had decided against the applicant . The applicant had filed counter - claims for compensation in respect of an illness suffered while serving a prison sentence and had threatened terrorist attacks . Following the institution of criminal proceedings against him concerning this threat , the applicant addressed written threats of murder to various persons involved in these criminal proceedings , in particular to judges and lawyers .

Furthermore , having heard CARDINAL psychiatric experts , ORG considered that the applicant suffered from a mental illness , namely paranoia querulans . He had a system of fixed ideas and a missionary devotion to the implementation of his plans . His mental disturbances , combined with the further symptoms of aggressiveness , his cruelty and recklessness , entailed a high risk for third persons . ORG regarded a faculty opinion on these matters as unnecessary , taking into account that the CARDINAL experts largely concurred in their opinions and that there were no contradictions or shortcomings , within the meaning of the relevant provision of LAW ( GPE ) .

NORP Moreover , ORG considered that it had not been required to hear the judges and other victims concerned , as requested by the applicant . In this respect , ORG observed that the question of whether these persons had in fact been intimidated was irrelevant for legal reasons , the offence of intimidation being committed in case of threats of such a nature as to intimidate third persons in general , if the offender intended to intimidate . ORG , having regard to the details stated in the applicant 's various letters , found that his threats of murder were of such a nature as to intimidate third persons in general , and he had in fact intended to intimidate the persons concerned . Considering his mental illness , there was also a risk of further offences of the same kind .

The written judgment was served upon the applicant 's official defence counsel on DATE .

The applicant , assisted by his official defence counsel , filed a plea of nullity ( PERSON ) with ORG ( Oberster Gerichtshof ) , challenging the dismissal of his requests for the taking of further evidence as well as the part of the legal reasoning and the findings as to his dangerousness in future . He further lodged an appeal ( GPE ) . Defence counsel did not file any grounds of appeal , and did not request that the applicant be permitted to attend ORG hearing .

On DATE the applicant personally filed submissions with ORG . According to the applicant , he also requested ORG for leave to attend the hearing of his plea of nullity and appeal , but this request was to no avail .

On DATE ORG held the hearing on the plea of nullity and the appeal in the absence of the applicant , who was represented by his official defence counsel . ORG rejected the plea of nullity as well as the appeal .

ORG , in its judgment , found that the rejection by the trial court of the applicant 's requests for the taking of evidence did not impair the rights of the defence . In particular , ORG confirmed the reasoning of the trial court that the applicant had failed to show any contradictions or shortcomings in the expert opinions which would be the only reason to justify a faculty opinion . Moreover , the question of whether the victims had in fact been intimidated had been irrelevant . ORG also confirmed the legal qualification of the offences committed by the applicant .

Finally , ORG proceeded of its own motion to an examination of the applicant ’s appeal . While noting that the applicant had not submitted any grounds of appeal , it examined the arguments challenging the trial court ’s findings as to his dangerousness in the future , which he had submitted in his plea of nullity . In this respect , ORG considered that the prognosis was reliably founded on the expert psychiatric opinions and was confirmed by the general impression conveyed by the applicant 's criminal acts .

NORP The decision was received at the registry of ORG on DATE .

Section CARDINAL of LAW ) provides as follows :

" CARDINAL . If a person commits an offence punishable with a term of imprisonment exceeding one year , and if he can not be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility ( section CARDINAL ) resulting from a serious mental or emotional abnormality , the court shall order him to be placed in an institution for mentally ill offenders , if in view of his person , his condition and the nature of the offence it is to be feared that he will otherwise , under the influence of his mental or emotional abnormality , commit a criminal offence with serious consequences .

If such a fear exists , an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who , while not lacking criminal responsibility , commits an offence punishable with a term of imprisonment DATE under the influence of his severe mental or emotional abnormality . In such a case the placement is to be ordered at the same time as the sentence is passed . "

The duration of these preventive measures is governed by LAW , which states that :

“ CARDINAL . Preventive measures are to be ordered for an indefinite period . They are to be implemented as long as is required by their purpose ...

The termination of preventive measures shall be decided by the court .

The court must of its own motion examine at least once DATE whether the placement in an institution for mentally ill offenders ... is still necessary . ”

A first instance court judgment given by ORG , sitting with lay judges , can be challenged by a plea of nullity to ORG on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . ORG task is mainly to control the correct application of the criminal law , but in so doing it is - as a general rule - bound by the trial court ’s finding of fact .

In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of LAW ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence .

As regards the hearing on a plea of nullity , section CARDINAL of LAW provides :

“ CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...

If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel . ... ”

However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .

The sentence as such can be challenged by way of an appeal . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined , a public hearing must normally be held .

As regards the personal appearance of the accused at a public appeal hearing , section CARDINAL § CARDINAL , second sentence , of LAW provides :

“ An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement , or otherwise if his personal presence appears necessary in the interests of justice . ”

NORP The applicant applied to the Commission on DATE . He alleged , inter alia , a violation of LAW and CARDINAL ( c ) of the LAW on the ground that , in criminal proceedings against him , he was not present at the hearing before ORG .

The Commission declared the application ( No . CARDINAL/CARDINAL ) partly admissible on DATE . In its report of CARDINAL DATE ( former LAW ) it expressed , by a majority , the opinion that there had been a violation of LAW and CARDINAL ( c ) of the LAW .