The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . Having been granted legal aid , the applicant is represented by PERSON , a lawyer practising in PERSON . The respondent Government are represented by PERSON , their Agent .

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

The applicant was employed and , as such , contributed to the ORG pension scheme ( dôchodkové zabezpečenie ) .

On DATE he retired and started receiving a retirement pension .

In DATE the applicant restarted working as a night watchman . As he was simultaneously receiving a retirement pension , he acquired the status of an “ employed pensioner ” .

Being employed , he was liable to pay income tax on his salary . Being a pensioner , he was not entitled to have a so - called “ untaxable amount ” deducted from his income tax base unlike other employed persons .

On DATE an amendment ( Law no . CARDINAL/CARDINAL Coll . ) to ORG ( Law no . CARDINAL Coll . – “ the LAW ” ) entered into force . It cancelled an exemption , which employed pensioners had enjoyed until then , from the obligation to pay contributions to the State pension scheme . The applicant thus became liable to contribute to this fund like any other employed person .

On DATE another amendment ( Law no . CARDINAL Coll . ) to LAW entered into force which re - introduced the above exemption .

DATE and DATE the applicant paid CARDINAL NORP korunas ( SKK ) in contributions to the pension scheme .

The applicant unsuccessfully requested the President , ORG , ORG and ORG to bring about a change in the relevant legislation .

In a letter of CARDINAL October CARDINAL the Prosecutor General informed the applicant that employed pensioners were not eligible for the deduction of the untaxable amount from their income tax base unless the total of their pension was less than the untaxable amount . If their pension was below the untaxable amount , an amount equal to the difference between the actual pension and the untaxable amount would be deducted from the tax base on their salary .

The letter further explained that the purpose of the pension scheme was to provide income for persons who were unable to provide for themselves by working , for example on account of their retirement age . As the ORG allowed retired persons to obtain income from employment in addition to their retirement pension , it was justified to impose certain restrictions on them , for example by taxing their salaries .

As for the applicant ’s complaint that he was liable to contribute to the pension fund , he was informed that as from DATE the rules had changed ( see above ) .

On DATE the applicant brought an action against the ORG in the form of ORG in LOC ( ORG súd ) . He sought repayment of the contributions which he had paid to the pension scheme DATE ( see above ) .

On DATE the Banská Bystrica District Court forwarded the action to the Bratislava I ORG on the ground that it fell within the territorial jurisdiction of the latter court .

On DATE the Bratislava I ORG submitted the question of jurisdiction to ORG ( Najvyšší súd ) , which ruled on DATE that the action should be determined at first instance by GPE . However , the case file was only forwarded to that court on DATE .

On DATE ORG requested the defendant to submit observations in reply , which ORG did on DATE .

ORG scheduled a hearing for DATE . The applicant stated that he would not be able to appear . He submitted his arguments in writing and requested the court to hear the case in his absence .

On DATE ORG held a hearing following which , on DATE , it dismissed the action . Having heard the defendant ’s representative and having examined complex documentary evidence , the court found that the amount claimed had been withheld from the applicant ’s salary under the relevant provisions of LAW . ORG had not breached any legal obligation and thus could not be held responsible for any loss incurred by the applicant .

The judgment of DATE was served on the applicant on DATE . On DATE he appealed arguing that the bill for the amendment no . CARDINAL/CARDINAL Coll . had been drafted by ORG and that , therefore , it was the ORG which was liable for the damage caused to him by implementing that amendment .

On DATE ORG requested the defendant to submit observations in reply to the appeal , which ORG did on DATE .

ORG ( Krajský súd ) listed a hearing of the appeal for CARDINAL DATE . The applicant stated that he would not be able to appear . He requested the court to hear the case in his absence and submitted his arguments in writing .

On DATE ORG upheld the first - instance judgment . It observed that before a bill became law it was subject to a complex legislative process . Drafting and submitting a bill as such could not engage liability for damage . There was no indication that the ORG had breached any legal duty in connection with the process of amending LAW .

The appellate court ’s judgment was served on the applicant on DATE .

On DATE the applicant lodged a complaint under LAW with ORG ( Ústavný súd ) . He directed the complaint against the GPE I ORG and argued , in substance , that the length of the proceedings had been excessive . He claimed SKK CARDINAL by way of just satisfaction .

On DATE , on his request , ORG appointed an ex officio lawyer to the applicant and , at the same time , declared the complaint admissible .

In DATE the applicant requested his lawyer for a report on the progress of the proceedings .

In a letter of DATE the lawyer informed the applicant that at ORG request he had provided further and better particulars of the complaint and had agreed to ORG deciding on the case without holding an oral hearing .

In a letter of CARDINAL DATE the applicant informed the lawyer that , by accepting that there would be no public hearing before ORG , the lawyer had acted contrary to the applicant ’s right to be heard in court .

On DATE the applicant made a written submission to ORG in which he sought to include in his constitutional complaint the undue delays in the proceedings before ORG .

On DATE ORG found that the GPE ORG had violated the applicant ’s right to a hearing “ without unjustified delay ” ( LAW ) and “ within a reasonable time ” ( LAW ) . It awarded the applicant LAW by way of just satisfaction in respect of his nonpecuniary damage and ordered the reimbursement of his legal costs .

ORG found that the overall length of the proceedings had been DATE and DATE . During that period , the case had been pending before ORG for DATE and before ORG for DATE .

However , the subject - matter of the constitutional proceedings had been determined by the admissibility decision of DATE which , as the applicant ’s original complaint , concerned the proceedings before ORG alone . Therefore , in the framework of the present constitutional proceedings , it was not possible to examine the proceedings before ORG which the applicant had contested after the admissibility decision .

As regards the proceedings before the Bratislava I ORG , ORG found that an unjustified delay had occurred DATE and DATE ( i.e. DATE ) .

All human beings are equal in dignity and rights ( LAW ) regardless of sex , race , colour , language , faith , religion , political affiliation or conviction , national or social origin , nationality or ethnic origin , property , birth or any other status ( LAW ) .

Every person has the right to have his or her case tried without unjustified delay ( LAW ) .

Income from employment is subject to personal income tax ( section CARDINAL ( CARDINAL ) ( a ) in conjunction with section CARDINAL ( CARDINAL ) ) .

The personal income tax base is in general calculated as the difference between the income and the expense incurred in order to achieve it ( section CARDINAL ( CARDINAL ) ) .

The tax base does not comprise income exempted from tax ( section CARDINAL ( CARDINAL ) ) such as , for example , a retirement pension ( section CARDINAL ( CARDINAL ) ) .

Section CARDINAL defines untaxable amounts which are to be deducted from the tax base . These include inter alia SKK DATE in respect of the taxpayer himself ( subsection CARDINAL ( a ) ) . This amount can not be deducted if the taxpayer was receiving a retirement pension at the beginning of the taxation period unless the total of the pension is less than the above untaxable amount . In the latter case the taxpayer can deduct the difference between the untaxable amount and the pension received ( subsection CARDINAL ) .

Employed persons ( zamestnanci ) and their employers are liable to pay contributions to the pension scheme ( section CARDINAL ( CARDINAL ) ( a ) and ( d ) ) .

Employed persons , who were receiving a retirement pension , were exempted from such liability ( section CARDINAL ( CARDINAL ) ( e ) ) until DATE .

As from DATE the exemption under LAW ( CARDINAL ) ( e ) was repealed by amendment no . CARDINAL/CARDINAL Coll . and then reintroduced by amendment no . PERSON . as from DATE .

The amendment no . CARDINAL Coll . had been drafted by an individual member of the parliament . In the explanatory report ( dôvodová správa ) on the bill the deputy considered that the repeal of the exemption under LAW ( CARDINAL ) ( e ) had been contra ORG mores in that employed pensioners had been made to contribute to the pension scheme but had received nothing in return .

ORG submitted the bill to the ORG with an introductory report ( predkladacia správa ) in which they disagreed with the drafter . According to this report the exemption in question had given an unjustified advantage to employed pensioners over other employed persons in that as no contributions had been associated with the employment of pensioners , the latter group had been a more attractive work force than other employees . This had distorted the labour market and had to be corrected by the amendment no . CARDINAL/CARDINAL Coll . Another reason for that amendment had been the recent passive balance of the retirement pension fund .

The situation of persons who are employed after becoming entitled to a retirement pension but do not draw such a pension is addressed in LAW . The amount of the pension to which they are entitled increases with the length of their employment after retirement age according to a formula defined in sub - section CARDINAL .

If a person entitled to a retirement pension takes up employment , the retirement pension is suspended ( section CARDINAL ( CARDINAL ) ) , unless the employment is for a term shorter than DATE ( section CARDINAL ( CARDINAL ) ) .

On DATE another amendment ( Law no . CARDINAL/CARDINAL Coll . ) to FAC entered into force . It again repealed the exemption under LAW ( CARDINAL ) ( e ) and provided that employed persons participate in the pension scheme and are liable to pay contributions to the pension fund ( subsection CARDINAL ) .

As from DATE the SSA Act lost legal effect and the social security regulation was completely re - codified .

Article CARDINAL § CARDINAL provides that national laws may provide that the benefit of a person otherwise entitled to it may be suspended if such a person is engaged in any prescribed gainful activity or that the benefit , if contributory , may be reduced where the earnings of the beneficiary exceed a prescribed amount and , if non - contributory , may be reduced where the earnings of the beneficiary or his other means or the CARDINAL taken together exceed a prescribed amount .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

At the material time the applicant was the director and allegedly the owner of the Passage private company , which provided currency exchange services . On DATE the tax police inspected CARDINAL of the departments of the company , seized some documents and cash assets , and imposed financial sanctions .

On DATE the applicant was invited to ORG ( GPE міліція Державної податкової інспекції м. Харкова ) to retrieve the documents that had been removed by the tax police . According to the applicant , at TIME , when he entered the office of PERSON , the Head of ORG , and asked when the documents in question would be returned , the latter started to beat him and broke the tape recorder which the applicant had in his pocket . According to the applicant , several people were present at the time in LOC 's office . The latter allegedly told his subordinates not to let the applicant out until TIME At TIME the applicant left ORG premises .

On DATE the applicant complained about these events to the Anti - corruption Department of the Kharkiv Regional State Tax Inspectorate ( PERSON по боротьбі з корупцією Державної податкової інспекції в PERSON області ) . The applicant was sent for a medical examination and his complaint was transferred to ORG .

On DATE the medical examination revealed that the applicant had suffered minor injuries , and in particular that he had bruises on his abdomen . No head injury was identified .

From DATE to CARDINAL DATE the applicant was a patient in the neurosurgery department of ORG . CARDINAL . He was diagnosed with concussion and numerous bruises were found on his head .

On DATE a further forensic medical examination concluded that the applicant was suffering from moderately severe physical injuries ( including a head injury ) which had caused a temporary disability .

On DATE the financial sanctions against the Passage company were rescinded .

According to a forensic medical expert opinion of CARDINAL DATE , the applicant 's medical treatment from DATE to CARDINAL DATE was for a head injury , which could have been inflicted on DATE or later . It further stated that , since according to the medical examination of DATE the applicant had not had a head injury , it was impossible to establish a link between the incident of DATE and the applicant 's medical treatment for a head injury .

On DATE ORG ( прокуратура PERSON ) refused to institute criminal proceedings against PERSON for want of corpus delicti . In particular , PERSON and PERSON ( employees of ORG who had been present in the office during the events in question ) and PERSON . ( a security officer ) testified that the applicant had not been subjected to any kind of physical pressure . S. and PERSON . submitted that the applicant had tried to record his conversation with PERSON and when the latter had asked the applicant to give him the tape recorder , the applicant had dropped it on the floor and stepped on it . PERSON ( an associate of the applicant , who had accompanied him to the Tax Police office ) testified that he had seen the applicant through the window being beaten by S. It was established that it had not been physically possible for PERSON to have seen the events in question ; in any event his testimony was rejected since he was “ an interested person ” .

On DATE the cash assets seized in DATE were returned to the applicant .

On DATE ORG rejected the applicant 's request to institute criminal proceedings against the tax police officers who had carried out the inspection on DATE .

On DATE ORG ( прокуратура PERSON області ) quashed the decision of CARDINAL DATE and opened criminal proceedings to investigate the circumstances of the incident of DATE . It was stated that the applicant had indeed received moderately serious physical injuries but that the origin of these injuries was unknown . Therefore , more extensive investigation into the facts of the case was needed .

On DATE and DATE CARDINAL additional forensic medical examinations were carried out . The experts held that there was not enough information to conclude that the head injury sustained by the applicant had been received CARDINAL . The bruises on the applicant 's abdomen could have resulted from a blow inflicted DATE before DATE .

On DATE ORG terminated the criminal proceedings for lack of evidence that the applicant had been beaten by S.

On DATE ORG quashed the decision of DATE , in particular because the hospital doctors who had examined the applicant had not been questioned , and remitted the case for additional investigation to ORG ( прокуратура ORG ) .

By a decision of DATE the investigating officer of ORG refused to recognise the applicant as a victim in the proceedings , on the ground of lack of proof that he had sustained moderately severe physical injuries . Following this decision the applicant refused to testify or participate in the investigation .

On DATE an investigator of ORG terminated the criminal proceedings on the ground that the minor physical injuries sustained by the applicant could have been inflicted DATE and that there was no evidence that they had been inflicted by S. In particular , there was no medical evidence to confirm when the applicant had received the head injury . ORG employees testified that PERSON had not beaten the applicant and the only witness who testified otherwise ( PERSON ) had not physically been able to see the events in question ; this had been confirmed in a reconstruction of the events .

On DATE ORG of Kharkiv quashed the decision of DATE and ordered that the criminal proceedings be reopened . The court emphasised that the investigation had failed to find out how the applicant had received the injuries in question .

On DATE the applicant was declared a victim of an alleged crime .

On DATE the applicant introduced a civil claim for compensation for pecuniary damage against S. to be considered in the course of the criminal proceedings .

On DATE ORG refused to institute criminal proceedings for abuse of power against S. , for want of corpus delicti .

On DATE a forensic medical examination concluded that on DATE the applicant had had bruises on his abdomen which could have been inflicted on DATE .

On DATE ORG discontinued the criminal proceedings for the infliction of moderately severe physical injuries , in the absence of evidence of a crime .

On DATE ORG quashed the decision of DATE and remitted the case back for further investigation .

On DATE ORG of ORG quashed the decision of DATE .

On DATE a fresh medical examination again concluded that on DATE the applicant had had bruises on his abdomen which could have been inflicted on DATE .

On DATE ORG terminated the criminal proceedings on the ground that it was not possible to establish with sufficient certainty that the injuries suffered by the applicant had been inflicted by S. Moreover , the injuries sustained ( bruises on the applicant 's abdomen ) were classified as minor and in this case , according to LAW , the applicant should have brought a private prosecution directly before the court .

On DATE ORG refused to institute criminal proceedings against S. on suspicion of burglary , for want of corpus delicti . It was stated that the applicant 's tape recorder had been broken as a result of a dispute which had occurred on DATE between the applicant and S. However , the applicant had provoked PERSON 's reaction by trying to record their conversation .

By letters of DATE , DATE and DATE and DATE and DATE , ORG informed the applicant that the criminal proceedings had been terminated lawfully .

In DATE the applicant instituted defamation proceedings in ORG of ORG against ORG . He stated that he had submitted numerous complaints of violations to different ORG authorities . These had been forwarded to ORG , which in its response letters to the NORP ORG Commissioner for Human Rights , to the Member of ORG , L. , and to ORG , had provided false information about the actions of the tax police in respect of the applicant 's enterprise and about the investigation in the applicant 's criminal case .

On DATE the court upheld the applicant 's complaint .

On DATE the ORG of Appeal quashed the judgment of DATE and rejected the applicant 's complaint as unsubstantiated .

On DATE a panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal under the cassation procedure .

On an unidentified date the applicant instituted proceedings in ORG against ORG , claiming that he had unlawfully refused to examine the applicant 's complaints . On DATE the court returned the applicant 's complaint as he had failed to comply with the procedural requirements .

The relevant provision of the LAW of GPE reads as follows :

Article CARDINAL

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

Article CARDINAL of the LAW provides that the court , prosecutor or investigator must , to the extent that it is within their power to do so , institute criminal proceedings in every case where signs of a crime have been discovered , take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them .

In accordance with LAW criminal proceedings on infliction of minor physical injuries are instituted by the courts following complaints by the victims ( private prosecution proceedings ) . No pre - trial investigation is held in such cases .

Article CARDINAL of the Code provides that an investigator 's decision to discontinue the proceedings can be appealed against to the prosecutor or to the court .


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 the ORG by Pierce Glynn , 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 . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and PERSON v. the GPE nos . CARDINAL and CARDINAL , DATE ) .


The applicant , Mr PERSON , is a GPE national , born in DATE and detained in ORG . He is represented before the ORG by ORG , lawyers practising in GPE .

The applicant , then aged DATE , was arrested on DATE , together with another youth NORP aged DATE in connection with the murder of PERSON , aged DATE . The applicant was interviewed in police custody over a period of DATE . He admitted being present on the LOC where the killing had taken place but denied having taken an active part . He said that he left the room on QUANTITY occasions and when he returned the second time , he saw NORP stabbing PERSON . NORP was charged with murder on DATE , the applicant on DATE .

The prosecution case was that the CARDINAL had acted in furtherance of a joint enterprise and that the murder had been committed as an act of sacrifice to the devil . It was alleged that NORP had plunged a knife into PERSON chest in the presence of the applicant after the applicant had prevented the victim from leaving and had struck him . The applicant and NORP were committed for trial to ORG on an indictment charging them with murder and , in the alternative , manslaughter . His co - accused , NORP , entered a guilty plea to manslaughter by reason of diminished responsibility . After consideration of medical reports , the plea was accepted by the ORG and NORP was sentenced to committal to hospital under a hospital order subject to a restriction order without limit of time under sections CARDINAL and CARDINAL of LAW DATE .

The applicant appeared before ORG on DATE . The evidence of CARDINAL psychiatrists who had examined the applicant was that he was suffering from paranoid schizophrenia . Counsel acting on the applicant ’s behalf submitted that the applicant was unfit to plead or to stand trial by reason of his mental disability .

On DATE , evidence was heard before the jury from CARDINAL psychiatrists ( CARDINAL for the defence and CARDINAL for the prosecution ) . The trial judge , with the support of both counsel for the prosecution and for the defence , directed the jury to find that the applicant was unfit to plead or stand trial . This finding was in accordance with the R v. PERSON case ( [ DATE ] CARDINAL C & P CARDINAL ) , on the basis that the applicant was unable to instruct his legal representatives to plead to the indictment , to challenge jurors , to understand the evidence or to give evidence in his own defence . Following this finding , and in accordance with section CARDINAL of ORG the “ DATE LAW ) , a second jury was empanelled in order to determine whether the applicant ‘ did the act or made the omission charged against him’ ( a “ section CARDINAL hearing ” ) .

On DATE , counsel for the applicant submitted that the applicant should be entitled to raise the issue of diminished responsibility during the section CARDINAL hearing . The judge made CARDINAL rulings : firstly , that in order to prove that the applicant had committed the act , the prosecution must prove both the actus reus and the mens rea and , secondly , that diminished responsibility could not be raised in a section CARDINAL hearing .

On DATE , the jury heard evidence concerning the events surrounding the killing , including the applicant ’s interviews . The case followed the adversarial procedure of a criminal trial , with evidence being called by each side and subjected to cross - examination , closing speeches and a summing up to the jury . At the conclusion of the evidence , the second jury were satisfied that the applicant had committed the necessary act , and the judge thereupon made an order under the provisions of section CARDINAL of LAW that the applicant be committed to hospital without limit of time .

On DATE , the applicant was granted leave to appeal . On DATE , ORG dismissed the appeal but certified that the case raised a point of law of general public importance , namely , whether it was open to a person found unfit to plead , and who was subject to a trial of the facts on a charge of murder under section CARDINAL , to raise the defence of diminished responsibility . ORG granted leave to appeal on DATE .

On DATE ORG ruled that the prosecution only had to prove the actus reus and not the mens rea in a section CARDINAL hearing . The only time when mens rea might become relevant would be where there is “ objective evidence which raises the issue of mistake or accident or self - defence , then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence ” . Their Lordships also ruled that the statutory defence of diminished responsibility could not be raised in a section CARDINAL hearing . This decision was taken principally because of the effect of the wording of section CARDINAL of the Homicide Act DATE , which established this statutory defence as being available only as an alternative to a liability for murder . Once unfitness to plead has been determined , the trial can not proceed , the defendant can no longer be ‘ liable to be convicted of CARDINAL , and that defence is no longer available .

Lord PERSON , in giving the leading judgment , commented :

“ The purpose of section CARDINAL , in my opinion , is to strike a fair balance between the need to protect a defendant who has , in fact , done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea . The need to protect the public is particularly important where the act done has been CARDINAL which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future . I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act ( or has made an omission ) which would constitute a crime if done ( or made ) with the requisite mens rea . ”

The criminal proceedings are currently stayed against the applicant indefinitely , and ORG has indicated in this case an intention to revive the proceedings if , at any time in the future , the applicant should recover .

A jury can not make a determination that a defendant is unfit to be tried “ except on the written or oral evidence of CARDINAL or more registered medical practitioners ” ( section CARDINAL(CARDINAL ) of ORG . The test for the jury is whether the defendant is able to plead to the indictment , whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial , so as to make a proper defence , to challenge a juror to whom he might wish to object , and to understand the details of the evidence ( NORP v. PERSON [ DATE ] CARDINAL C. & P. CARDINAL ) .

On a finding of unfitness to plead “ the trial shall not proceed ” ( section CARDINALA(CARDINAL ) ) , and a further jury must be empanelled to determine “ whether they are satisfied , as respects the count or each of the counts on which the accused was to be tried , that he did the act or made the omission charged against him as the offence ” ( section CARDINALA(CARDINAL ) ) . If they are so satisfied , then “ they shall make a finding that the accused did the act or made the omission charged against him ” ( section CARDINALA(CARDINAL ) ) . If they are not so satisfied “ they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion ” ( section CARDINALA(CARDINAL ) ) .

The burden of proof is on the prosecution and , in order to prove that the defendant was guilty of doing the act charged , the prosecution must prove their case beyond reasonable doubt . A finding under this procedure is not a finding of guilt ( NORP v. Southwark ORG ex parte PERSON [ DATE ] CARDINAL Cr . App . PERSON , GPE ) .

Under LAW , if the accused is found unfit to plead and the jury determines that he did the act or made the omission charged , then the court may make CARDINAL of the following orders :

( a ) an admission order to such hospital as the Secretary of ORG specifies ;

( b ) a guardianship order under LAW DATE ;

( c ) a supervision and treatment order ; or

( d ) an order for the accused ’s absolute discharge .

Where however the offence to which the finding relates is murder , then the court must make an admission order together with an order restricting his discharge without limitation of time . If the jury are not satisfied that the accused did the act or made the omission charged they must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion ( section CARDINALA(CARDINAL ) ) .

If , while a person is detained under an admission order , the Secretary of ORG is satisfied that he can be properly tried , he may remit the person for trial ( Schedule CARDINAL of the Criminal Procedure ( Insanity and Unfitness to Plead ) Act DATE , paragraph CARDINAL ) ) .

Following the decision in the applicant ’s case and the entry into force of LAW DATE , ORG gave leave to appeal to ORG in the case of PERSON and the Secretary of ORG , certifying as a point of law of general public importance the question whether the section CARDINAL procedure was compatible with an accused ’s rights under LAW , DATE and CARDINAL(d ) of the Convention .

In ORG judgment of DATE , Lord PERSON endorsed the views expressed in the applicant ’s case by Lord PERSON ( see above ) and referring to the PERSON v. the GPE case ( judgment of DATE , Series A no . CARDINAL ) in considering whether the section CARDINAL procedure fell within the scope of LAW , held , inter alia :

“ CARDINAL . It is first necessary to know how the issue is classified in domestic law . This test is far from decisive and rightly so , since the ORG seeks the achievement of broadly equivalent standards among the member states of ORG and such aim would be defeated if domestic rules were determinative . But this is the starting point , and it is clear that the domestic law of GPE and GPE does not treat the section CARDINAL procedure as involving the determination of a criminal charge . When a finding of unfitness is made it is provided that the trial ( meaning the criminal trial ) “ shall not proceed or further proceed ” . Section CARDINAL ) is expressed in terms which make it clear that the task of the jury is not that carried out by a jury in a criminal trial : ... the jury have the power to acquit but they have none to convict . The jury take an oath different from that in a criminal trial . There can be no verdict of guilty . There can be no punishment . In a case such as the present , as the legislation has been amended to make clear , an order of absolute discharge may be made in the absence of any conviction and without consideration of the expediency of punishment . It is true that by virtue of section CARDINAL(CARDINAL)b of the Rehabilitation of Offenders Act DATE references in that Act to a conviction are expressed to include reference to a finding that a person has done the act or made the omission charged , but this was an Act designed to promote the rehabilitation of offenders by enabling them to live down past convictions and the obvious purpose of this provision was to give persons subject to adverse findings under section CARDINALA the benefit of that protection . It is also true that a person found to have done the act or made the omission charged is subject , by virtue of section CARDINAL(CARDINAL)b of LAW , to the notification requirements of that LAW . But I regard it as clear , as a matter of domestic law , that this provision is designed to protect the public and not to punish the subject of the order . The non - punitive nature of the order was recognised by the Commission in PERSON v. GPE ( DATE ) CARDINAL EHRR CD CARDINAL . The registration order is analogous to a sex offender order or an anti - social behaviour order ...

The second PERSON test , and that on which the appellant ’s argument depended , directed attention to the very nature of the offence . ...

It would be highly anomalous if section CARDINAL , introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial , were itself to be held incompatible with the Convention . It is very much in the interest of such persons that the basic facts relied on against them ( shorn of issues concerning consent ) should be formally and public investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances . The position of accused persons would certainly not be improved if section CARDINAL were abrogated . In my opinion , however , the argument is plainly bad in law . Whether CARDINAL views the matter through domestic or NORP spectacles , the answer is the same : the purpose and function of the section CARDINAL procedure is not to decide whether the accused person committed a criminal offence . The procedure can result in a final acquittal , but it can not result in a conviction and it can not result in punishment . Even an adverse finding may lead , as here , to an absolute discharge . But if an adverse finding leads to the making of a hospital order , there is no bar to a full criminal trial if the accused person recovers , an obviously objectionable outcome if the person has already been convicted . ...

... [ As regarded the third PERSON test ] PERSON for the appellant accepted that he could not rely on this test , because he accepted that the orders which the court could make on a finding by the jury adverse to the accused under section CARDINAL were none of them punitive . But the fact that the procedure can not culminate in any penalty is not neutral . The ORG was referred to no case in which ORG has held a proceeding to be criminal even though an adverse outcome for the defendant can not result in any penalty . It is , indeed , difficult if not impossible to conceive of a criminal proceeding which can not in any circumstances culminate in the imposition of any penalty , since it is the purpose of the criminal law to proscribe , and by punishing to deter , conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions . ”

Section CARDINAL provides for a defence of diminished responsibility to a charge of murder :

“ ( CARDINAL ) Where a person kills or is a party to the killing of another , he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing . ...

( CARDINAL ) On a charge of murder , it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder .

( CARDINAL ) A person who but for this section would be liable , whether as principal or as accessory , to be convicted of murder shall be liable instead to be convicted of manslaughter . ”


Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE .

On DATE the ORG laid charges of large - scale fraud against the applicant . On DATE the prosecutor ordered his detention on remand in connection with those charges . He also issued a search and arrest warrant in respect of the applicant . Subsequently , on an unspecified date the prosecution received information that the applicant had left GPE .

On DATE the prosecutor stayed the investigation due to the fact that the applicant was abroad . On DATE he issued an international search and arrest warrant for the applicant .

On DATE the applicant was arrested in GPE .

On DATE the NORP authorities extradited the applicant to GPE where he was placed in police custody . On DATE ORG ordered his detention on remand on suspicion of large - scale fraud . His detention was subsequently prolonged on DATE and DATE .

On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with large - scale fraud to the detriment of ORG . There were CARDINAL other defendants in the case .

ORG held hearings on the following dates : CARDINAL DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE and DATE , DATE , DATE and DATE .

In the course of his original trial , the applicant lodged numerous unsuccessful applications for release and appealed DATE likewise unsuccessfully DATE against refusals to lift the detention . In his applications , he argued that his detention was excessive and had , for all practical purposes , amounted to serving a prison sentence . He asked the courts to release him either on bail or under police supervision , or to accept a guarantee from a responsible person or persons who would undertake to ensure his presence at trial , or to order him to surrender his passport , or to subject his release to all those conditions .

On DATE the trial court gave judgment . It convicted the applicant as charged and sentenced him to DATE imprisonment and a fine . The court further ordered that the period spent by him in pre - trial detention from DATE up to the date of his conviction be set off against the sentence imposed .

On DATE , on an appeal lodged by the applicant , ORG quashed the first - instance judgment and remitted the case . The subsequent proceedings were conducted only against CARDINAL defendants , including the applicant , as the third defendant had not appealed against the first - instance judgment .

On DATE ORG joined the proceedings in question to the other set of proceedings . The number of defendants increased to CARDINAL .

The retrial was to begin on DATE but was adjourned since CARDINAL of the defendants had to undergo a psychiatric examination . The next hearing scheduled for CARDINAL DATE had to be adjourned due to the illness of a lay judge . ORG held the first retrial hearing on DATE . Subsequent hearings were held on CARDINAL , DATE and DATE , CARDINAL DATE , DATE , DATE and DATE , CARDINAL and DATE , DATE and DATE and DATE .

In the meantime , on DATE the ORG dismissed the applicant 's application for release on bail or under police supervision , or under guarantee by a responsible person or under the condition that he surrender his passport . The court found that there was a considerable likelihood that he had committed the offence with which he had been charged . The court further noted that the applicant had already been detained on remand for DATE but it considered that , given that he had previously been sought under an international arrest warrant and that he was liable to a severe penalty , there was a real risk that he might obstruct the proper conduct of the trial . In the court 's view , that risk justified his being kept in custody . That decision was upheld on appeal .

On DATE ORG prolonged the applicant 's detention pending trial until DATE . The applicant appealed , invoking , inter alia , LAW . He submitted that his right to trial within a reasonable time or to release pending trial was not respected . He also maintained that his detention was so excessive that it amounted in reality to serving a prison sentence .

On DATE ORG upheld the contested order . Repeating the grounds previously given for the applicant 's detention , the court stressed that he had already evaded justice and an international arrest warrant had had to be issued . It considered that the trial had not progressed because of his conduct . In the court 's opinion , those circumstances clearly indicated that there was a considerable risk that the applicant , if released , might again upset the proper conduct of the proceedings . Lastly , the court noted that he faced an exceptionally heavy sentence , which had already been shown by the severity of the penalty originally imposed at first instance .

On DATE ORG dismissed an application for release on bail or subject to other guarantees or conditions . The court repeated the grounds previously invoked , attaching particular importance to the fact that he had earlier absconded and had already been sentenced to DATE imprisonment . In view of the severity of the sentence to which he was liable , the court considered that neither bail , nor police supervision nor any other guarantee would secure the proper course of the trial .

On DATE ORG extended the applicant 's detention until DATE , repeating the grounds mentioned in the previous decisions .

NORP The applicant appealed , maintaining , among other things , that there was no legal basis for keeping him in custody and that , pursuant to LAW , his detention could have been prolonged only by ORG because it had exceeded the maximum statutory period of DATE laid down in paragraph CARDINAL of that provision .

On DATE ORG rejected the appeal . It stressed that both the fact that the applicant had earlier evaded justice and the nature of his , in the court 's words , “ criminal relations ” with certain witnesses involved in the case , indicated that detention was the only preventive measure which would effectively secure the proper course of the trial . As regards the legal basis for his detention , the court pointed out DATE as had already been mentioned in the previous detention decisions DATE his detention continued on the grounds listed in Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of the DATE Code as there was a risk that he might obstruct the proper course of the trial and a heavy penalty was likely to be imposed on him . Lastly , as to the question of which court was competent to prolong his detention , ORG stated that the applicant had misconstrued Article CARDINAL § § QUANTITY CARDINAL of the CARDINAL Code . That provision , the court added , indeed imposed a statutory time - limit of DATE on pre - trial detention and laid down that only ORG could prolong it beyond that term . However , that rule applied only as long as there had been no conviction at first instance . Since the applicant had already been convicted at first instance , no time - limit for detention applied to his case , even though his original conviction had subsequently been quashed on appeal .

On DATE ORG dismissed a further application for release filed by the applicant in DATE . It reiterated the grounds invoked in the previous detention decisions and added that , in the light of the material before it , there was a considerable likelihood that the applicant had committed the offence with which he had been charged .

On DATE ORG dismissed the applicant 's subsequent application for release . It recalled that it had already ruled on numerous occasions on his detention . Noting that the applicant had not adduced any new relevant circumstances , the court found it unnecessary to address his arguments .

On DATE ORG prolonged the applicant 's detention until DATE . It considered that the material gathered in the case justified the opinion that the applicant had committed the offence in question . It observed that a severe penalty ( DATE imprisonment ) might be imposed on him . Stressing that the applicant had evaded justice at the initial stage of the proceedings , the court also pointed out that his detention served the purpose of securing the proper conduct of the trial . Furthermore , the court found it necessary to extend his detention until DATE because DATE were approaching , which , for all practical purposes , meant that the examination of the case would be postponed .

On DATE ORG dismissed the applicant 's further application for release .

On DATE the applicant requested that the CARDINAL sets of criminal proceedings conducted against him before the courts in GPE , including the proceedings at issue , be transferred to other courts . On DATE his request was refused .

On DATE the ORG prolonged the applicant 's detention until DATE . It reiterated all the grounds previously given for his detention . The applicant 's appeal , based on LAW , was rejected by ORG on DATE .

On DATE ORG extended the applicant 's detention until DATE . Upon the applicant 's appeal , ORG reduced the prolongation to DATE .

On DATE ORG ordered that the applicant be kept in custody until DATE . It further held that he could be released if he put up bail of PLN CARDINAL . The applicant appealed .

On DATE ORG quashed ORG decision . It ordered that the applicant should be released on condition that he put up bail of ORG MONEY by DATE . ORG further placed the applicant under police supervision and imposed on him a prohibition on leaving the country .

On DATE ORG ordered the applicant 's release as he had paid the bail . He was released on DATE .

On DATE the ORG convicted the applicant of large - scale fraud and breach of official secrecy . It sentenced him to a cumulative sentence of DATE imprisonment and a fine . The applicant appealed .

On DATE the ORG amended ORG judgment by reducing the applicant 's cumulative sentence to DATE imprisonment . The applicant appealed .

On DATE ORG dismissed the applicant 's cassation appeal .

The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of GPE v. GPE [ ORG ] , no . GPE , § § DATE , ECHR CARDINAL-XI ; PERSON v. GPE , no . CARDINAL , § § DATE , DATE ; and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in ORG .

The applicant , married and father of a minor , was arrested on DATE , because the police found several suspicious spare car parts , car documents and various tools in his vehicle . On DATE he was interrogated on suspicion of attempted aggravated larceny , allegedly committed in respect of a van .

On DATE the prosecution proposed the applicant ’s pre - trial detention . Relying essentially on the above material evidence , it was of the view that there was reasonable suspicion that the applicant and his accomplice , together with other unknown helpers , were active in the car theft business .

On DATE , ORG ordered the applicant ’s pre - trial detention , referring to , but not substantiating , the risks of absconding , collusion and repetition of crime . An accomplice was detained as well .

The applicant appealed , challenging the suspicion against him and pointing out that his settled background – he had never been convicted before , had legal income , and supported several family members – rendered unlikely the risks of absconding and repetition of crime . The Pest County Regional Court dismissed the appeal on DATE , without addressing in detail the applicant ’s arguments .

On DATE the applicant ’s detention was prolonged . The decision referred to CARDINAL counts of larceny . In his appeal , the applicant pointed out that the material evidence relating to CARDINAL of the thefts was in no way capable of connecting him to the vehicle in question , whereas in respect of the remaining CARDINAL counts , he had not formally been implicated as a suspect .

On DATE ORG dismissed the appeal . Without addressing in detail the defence ’s arguments , the court pointed out that it could not assess the evidence at that stage of the proceedings .

On DATE the applicant requested his release . He argued that the living conditions of those supported by him had deteriorated . His request was to no avail .

Subsequently , the applicant ’s detention was repeatedly prolonged at the statutory intervals . The reasoning in the decisions was largely identical to that in the previous ones , and the discrepancy in the counts of theft with which the applicant was charged persisted . His requests for release were to no avail .

On DATE the prosecution again proposed the prolongation of the applicant ’s detention . This time , reasonable suspicion was invoked in respect of CARDINAL counts of car theft . The reasons for the applicant ’s proposed detention remained the same .

On DATE ORG held a hearing and sustained the prosecution ’s motion , while including in the decision the suspicion of another car theft . The applicant ’s appeal and subsequent requests for release were to no avail .

On DATE an expert was appointed to examine whether or not the material evidence found in the applicant ’s car was capable of connecting him to any car theft .

Further prolongations took place on DATE and DATE , with essentially unchanged reasoning . The applicant ’s ensuing requests for release or a less stringent measure were unsuccessful .

On DATE the applicant was charged with further counts of car theft .

On DATE the Pest County Regional Court prolonged the applicant ’s detention . The underlying reasons were the same as before . In his appeal , the applicant complained that the expert opinion had never been communicated to him .

After further prolongations , on CARDINAL DATE a bill of indictment was preferred . The applicant was charged with altogether CARDINAL counts of car theft or attempted car theft and CARDINAL count of forgery of documents . The applicant ’s detention was maintained , with reference to the risk of absconding and repetition of crime .

The first hearing took place on DATE . The applicant ’s detention was upheld because , in the trial court ’s view , the potential severe sanction gave rise to a risk of absconding . No reason was given as to the risk of repetition of crime .

The applicant ’s subsequent requests for release or a less stringent measure were to no avail .

Apart from DATE , none of the prosecution ’s motions to have the applicant ’s detention prolonged had made any specific reference to the actual evidence which underlay the alleged risks held against him . The applicant ’s lawyer repeatedly complained about having no access to these pieces of evidence – in particular , on DATE and DATE however , this omission was not redressed ; and the courts did not refute the defence ’s allegations of having no access .

Of the altogether CARDINAL decisions on the applicant ’s detention , CARDINAL contained separate arguments in respect of each of the CARDINAL co - detainees .

The authorities prolonging the applicant ’s pre - trial detention considered the possibility of applying less stringent measures on CARDINAL May DATE and DATE , but eventually they did not avail themselves thereof .

The applicant was finally released on DATE . A prohibition on leaving his domicile was imposed on him .

On CARDINAL DATE the applicant was convicted at first instance . The case is currently in the appeal stage .

Act no . ORG of DATE on LAW provides as follows :

“ ( CARDINAL ) Pre - trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial , but may never be longer than DATE . The pre - trial detention may be extended by the investigating judge by DATE at the most on each occasion , but the overall period may still not exceed DATE after the order of pre - trial detention . Thereafter , pre - trial detention may be extended by the county court acting as a single judge by DATE at the most on each occasion , in compliance with the procedural rules pertaining to investigating judges . ”

“ ( CARDINAL ) If the period of the pre - trial detention ordered or maintained after filing the indictment

a ) exceeds DATE and the court of first instance has not delivered a conclusive decision , the justification of such pre - trial detention shall be reviewed by the court of first instance ,

b ) exceeds DATE , the justification of such pre - trial detention shall be reviewed by the court of second instance .

( CARDINAL ) After the lapse of the time period specified in subsection ( CARDINAL ) b ) , the justification of the pre - trial detention ordered or maintained after filing the indictment shall be reviewed by the court of second instance , or , if the procedure is held before the court of third instance , by the court of third instance , at least once in DATE . ”

“ ( CARDINAL ) At the session the party [ that is , the prosecution ] having submitted the motion [ on ordering or prolonging pre - trial detention ] shall present the evidence substantiating the motion in writing or orally . Those present shall be granted the opportunity to examine – within the limits set forth in section CARDINAL – the evidence of the party having submitted the motion . If the notified party does not attend the session but had submitted his observations in writing , this document shall be presented by the investigating judge . ”

“ ( CARDINAL ) Any person having the right to be present at an investigatory action may forthwith inspect the TIME taken .

( CARDINAL ) The suspect , the counsel for the defence and the victim may inspect the expert opinion during the investigation as well , but they may only inspect other documents if this does not injure the interests of the investigation .

( CARDINAL ) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect .

( CARDINAL ) The copy of the documents produced , obtained , filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness . No copy may be issued of the draft decisions of the prosecutor or the investigating authority . No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections CARDINAL and CARDINAL , except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case DATE including particularly the document containing the prosecutor ’s instruction concerning the conduct of the investigation , provided that the specific investigation was conducted DATE provided that this does not interfere with the interests of the investigation . ”


DESTILACIJA PLC v. BOSNIA AND HERZEGOVINA

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant is a private company with headquarters in LOC , GPE . It was represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in PERSON . ORG GPE ( “ the Government ” ) were represented by their Deputy Agent , PERSON .

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

The applicant company had a right of allocation with respect to a flat in LOC ( as explained below , the allocation right holders were socially owned enterprises and other public bodies which administered socially owned flats in the former ORG ) . On DATE it initiated administrative proceedings for the eviction of ORG who had remained in the flat after the death of his grandfather .

On DATE the competent first - instance administrative body ruled that the occupancy right over the flat could not be transferred to ORG from his late grandfather and , accordingly , ordered his eviction . On DATE and CARDINAL DATE , respectively , the competent second - instance administrative body and ORG of ORG upheld that decision . PERSON was evicted on DATE .

On DATE PERSON complained to ORG , a domestic human - rights body , about the outcome of the administrative proceedings mentioned above , relying on Articles CARDINAL and CARDINAL of , and LAW No . CARDINAL to , LAW .

On DATE ORG ( the legal successor of ORG ) found a violation of GPE ’s right to respect for his home , quashed the ORG decision of DATE and ordered that he be reinstated in the flat . The applicant company was informed of that decision through the housing authorities on CARDINAL DATE .

On DATE ORG , pursuant to the ORG decision , quashed the decisions of DATE and DATE and ruled against the applicant company .

It would appear that the applicant company has subsequently agreed to the privatisation of the flat by ORG under LAW ( see below ) .

In the former ORG practically all flats were under the regime of “ social ownership ” . They were generally built by socially owned enterprises or other public bodies for allocation to their employees , who became “ occupancy right holders ” . The rights of both the allocation right holders ( public bodies which nominally controlled the flats ) and the occupancy right holders were regulated by law ( LAW DATE , which is still in force in GPE ) .

In accordance with this LAW , an occupancy right , once allocated , entitled the occupancy right holder to permanent , lifelong use of the flat against the payment of a nominal fee . When occupancy right holders died , their rights transferred , as a matter of right , to their surviving spouses or registered members of their family households who were also using the flat ( see sections DATE and CARDINAL of that Act ) . In practice , these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass , as of right , to multiple generations for whom the initial employment - based link to the allocation right holder no longer existed ( for more information about socially owned flats see PERSON GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

The concept of “ social ownership ” was abandoned during the DATE - CARDINAL war . As a result , socially owned flats were effectively nationalised . Under LAW , which entered into force on DATE , the occupancy right holders were entitled to purchase their flats . Furthermore , the role of the allocation right holders changed . They are now obliged to agree to the privatisation of flats if the occupancy right holder so requests ( see section CARDINAL of that Act ) , or , in the absence of such a request , to let out the flat ( section CARDINAL ) of that Act ) . In both cases , the proceeds ( that is , the purchase price or the rent ) are to be paid to ORG ( sections CARDINAL and CARDINAL ) of that Act ) .


CASE OF HOVHANNISYAN AND SHIROYAN v. ARMENIA

Reminder inadmissible;Violation of P1-1;Just satisfaction reserved

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

According to the applicants , they enjoyed a right of use of accommodation in respect of QUANTITY . m of a flat which in total measured QUANTITY m. and was situated at CARDINAL FAC , GPE . It appears that the flat was owned by their family member , GPE The Government contested this allegation and claimed that only the applicants PERSON and PERSON ( “ the first applicant ” and “ the second applicant ” ) enjoyed such a right , while the applicant ORG ( “ the third applicant ” ) , who was a minor , was only entitled to live in the flat in question .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .

On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC DATE which was to be renamed FAC – to a private company , ORG

On DATE PERSON and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .

By a letter of CARDINAL DATE PERSON informed the first and second applicants that the flat in question was situated within the expropriation zone of the FAC area and was to be taken for ORG needs . Each applicant was offered a total of the NORP dram ( ORG ) equivalent of MONEY ( ORG ) as financial assistance , pursuant to paragraphs CARDINAL(c ) and CARDINAL ) of the compensation procedure approved by Government Decree no . CARDINAL of DATE ( see paragraphs CARDINAL and CARDINAL below ; hereafter , “ the compensation procedure ” ) .

It appears that the first and second applicants did not accept this offer .

On an unspecified date , ORG instituted proceedings against the first and second applicants on behalf of the ORG , seeking to terminate their right of use through payment of financial assistance and to evict all the applicants with reference to , inter alia , Articles CARDINAL and CARDINAL of LAW . The plaintiff claimed that persons enjoying a right of use were entitled , pursuant to paragraph CARDINAL of the compensation procedure , to receive assistance in the NORP dram equivalent of FAC .

It appears that in the course of the court proceedings ORG offered the same amount of compensation also to the third applicant , since she was also registered at the flat in question . The third applicant joined the proceedings as a co - defendant .

On DATE a contract was signed between ORG and the owner of the flat , GPE , according to which she agreed to cede the flat to the ORG in exchange for another flat . It appears that CARDINAL other persons who also enjoyed a right of use in respect of the same flat accepted the price offers made to them and gave up their rights .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) granted the claim of ORG , terminating the applicants ' right of use and awarding them a total of the NORP dram equivalent of CARDINAL as compensation . In doing so , the court referred to LAW and CARDINAL and LAW , as well as paragraph CARDINAL of the compensation procedure .

On DATE the applicants lodged an appeal .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) granted the claim of ORG on the same grounds as FAC .

On DATE another contract was signed between ORG and the owner of the flat , GPE , similar to that of DATE .

On DATE the applicants lodged an appeal on points of law which they supplemented on DATE .

On DATE the ORG 's ownership in respect of the flat was formally registered on the basis of the contract of DATE .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the applicants ' appeal .

For a summary of the relevant domestic provisions see the judgment in the case of PERSON and PERSON v. GPE ( no . GPE , § § CARDINAL and CARDINAL , DATE ) .

According to LAW , the right of ownership and other property rights in respect of immovable property , their limitations , origin , transfer and termination are subject to ORG registration .

According to Article CARDINAL , in cases when a right in respect of property is subject to State registration , the acquirer 's right of ownership arises from the moment of such registration .

Article CARDINAL § § CARDINAL and CARDINAL provided that a plot of land might be taken from the owner for the needs of the ORG or the community by compensating its value . Depending on for whose needs a plot of land was to be taken , its value was to be compensated by either the ORG or the community . The decision to take a plot of land for the needs of the ORG or the community was to be taken by a public authority .

Article QUANTITY § CARDINAL provided that , if no agreement could be reached with the owner of the plot of land to be taken for ORG needs concerning the amount or other conditions of compensation , the relevant public authority might institute court proceedings seeking to take the plot of land .

According to paragraph CARDINAL(c ) of the compensation procedure , persons and their minor children DATE who were registered , including in unauthorised constructions , prior to the date on which State registration was made ( DATE ) on the basis of the competent public authority 's decision to take the plot of land for the needs of the ORG – shall each receive assistance in the amount of the NORP dram equivalent of MONEY , based on the document confirming the fact of registration ( passport , birth certificate or a certificate provided by the competent authority in charge of the registration ) .

According to paragraph CARDINAL ) of the compensation procedure , persons mentioned in LAW ) of this Procedure shall receive assistance in the amount of the NORP dram equivalent of CARDINAL .

According to paragraph CARDINAL of the compensation procedure , persons who have acquired a right of use or of lease in accordance with the procedure prescribed by law in respect of a plot of land situated in an expropriation zone shall receive as compensation the assessed value of the right of use or of lease of the given plot of land .


ORG The applicant is a NORP citizen resident in GPE . Since DATE he has spent a total of DATE in prison for the commission of serious economic offences . Most recently , in DATE he was sentenced to a DATE term of imprisonment for a serious forgery offence .

ORG The applicant claims that on CARDINAL occasions , in DATE and PERSON , he was the victim of kidnapping and extortion perpetrated by CARDINAL persons . According to the applicant , one of the alleged perpetrators , a certain PERSON , had wanted to be paid for the part he played with him in the commission of certain economic crimes .

ORG On DATE the public prosecutor charged L. with CARDINAL count of kidnapping on DATE , CARDINAL count of aggravated extortion committed between CARDINAL DATE and DATE and CARDINAL count of kidnapping and aggravated extortion committed DATE and DATE . No proceedings were instituted against the other QUANTITY persons , CARDINAL of whom had been named by the applicant as a certain PERSON see paragraph CARDINAL below ) .

ORG In the criminal proceedings instituted against PERSON before ORG ( tingsrätt ) , the applicant requested the court , pursuant to the provisions of chapter CARDINAL of LAW ( PERSON : see paragraph CARDINAL below ) , to order PERSON to pay him a total of MONEY ( SEK ) in compensation in respect of the following items :

( a ) SEK CARDINAL,CARDINAL in material damages to his clothes ;

( b ) SEK CARDINAL,CARDINAL in non - pecuniary damages for injury caused to his head ;

( c ) SEK CARDINAL,CARDINAL for suffering resulting from an eye injury ;

( d ) SEK CARDINAL,CARDINAL in non - pecuniary damages for the mental suffering caused by the CARDINAL alleged kidnappings ( see paragraph CARDINAL above ) .

The applicant reserved his right to present further claims in respect of any such damage as he might suffer in the future .

ORG On DATE the applicant applied for compensation to ORG ( Brottsskadenämnden - hereinafter " the ORG " ) under LAW DATE ( brottsskadelagen CARDINAL:CARDINAL - hereinafter " LAW " ; see paragraphs CARDINAL below ) . In his application he stated that he had sought compensation for personal injury in the amount of SEK CARDINAL,CARDINAL in the proceedings against L. and that he had reserved his right to make any further claims with regard to future damage . In view of the rules on prescription of compensation claims , he submitted to ORG at that stage a claim for compensation of SEK CARDINAL,CARDINAL along the lines stated above . He enclosed a copy of the indictment against L.

ORG On DATE ORG convicted PERSON , sentenced him to six years’ imprisonment and ordered him to pay SEK CARDINAL,CARDINAL in damages to the applicant . ORG found , inter alia , that , on the whole , the applicant could not be considered a particularly trustworthy person in view of the fact that he had been convicted of several economic offences ( see paragraph CARDINAL above ) . It stated , however , that this fact did not in itself mean that his allegations concerning his kidnapping and extortion were untrue and it found the evidence to be such that the prosecution ’s case against PERSON had been partially proven .

ORG On DATE ORG ( PERSON hovrätt ) reversed ORG decision on the ground that the charges against PERSON had not been proven , acquitted PERSON and rejected the applicant ’s claim for compensation . ORG found that the applicant , in view of his criminal background , could not be deemed a trustworthy person . It followed that the information he had provided on the events which had given rise to the charges against PERSON ( åtalade händelserna ) could not , in the absence of strong supporting evidence , ground PERSON ’s conviction , even though the applicant ’s evidence had been corroborated by others whom he had told about the incidents .

The applicant did not seek leave to appeal to ORG ( ORG domstolen ) against the decision .

ORG On DATE the applicant , referring to his application for compensation of DATE ( see paragraph CARDINAL above ) , asked the Board to proceed with its examination of his claim , stating that he had no insurance which would cover the damage in question . He supplied the ORG with copies of the judgments of ORG and ORG .

ORG On DATE the ORG rejected the applicant ’s compensation claim , stating as follows :

" A condition for a grant of compensation is that damage has in fact been caused by crime . ORG ... can not find it established that [ the applicant ] has suffered damage as a result of crime . Consequently , compensation for damage caused by crime can not be awarded . "

ORG On DATE the applicant requested ORG to reconsider its decision . He argued that it was clear from the judgments of ORG and ORG that he had been the victim of a crime and that he had suffered the damage for which he requested compensation . He had identified CARDINAL of the QUANTITY persons who were allegedly involved in the offences ; the fact that ORG had not found it proven that the only one to be charged , PERSON , was guilty was not a reason to doubt that he had been the victim of crime .

In support of his request for reconsideration of the decision the applicant submitted a copy of the investigation report concerning the alleged kidnappings and extortions , including a medical report drawn up on DATE by Dr PERSON , a Deputy Senior Physician . According to this report , on DATE the applicant had sought emergency care for his right eye , which he stated had been punched . He had been operated on by PERSON on DATE and had remained hospitalised until DATE . On DATE he underwent a further operation . Dr Berglin concluded in his report that the applicant ’s eye injury could have been caused by a punch .

The applicant also submitted a transcript of the testimony given by Crime Inspector S. at ORG oral hearing in the criminal proceedings against ORG had been the principal investigator into the economic offences of which the applicant had previously been convicted . He had interrogated both the applicant and PERSON on a number of occasions . Inspector PERSON had told ORG , inter alia :

" I was , probably on DATE , informed [ about the alleged kidnapping of the applicant ] . A colleague ... telephoned me to say that he had been informed that [ the applicant ] had been kidnapped ... , that the kidnapping had been staged by [ L. ] with the help of CARDINAL ‘ ORG , ... and that the kidnapping had been combined with an extortion threat against [ the applicant ] in the amount of MONEY . ... I then ... telephoned [ the applicant ] , who ... denied that he had been kidnapped ...

... I saw [ the applicant ] in DATE [ DATE ] in connection with ... criminal proceedings brought against him ... and noted that he had a bruise at [ CARDINAL of ] his eye[s ] . I asked him what had happened and he stated that he had been the victim of a robbery committed by some persons ...

... Probably in DATE [ the applicant ] mentioned the kidnappings when he was being interrogated as a suspect in another case ... He stated that [ they had been carried out ] by CARDINAL black men and CARDINAL one , whom he did not wish to name ... He repeated several times that CARDINAL kidnapping had taken place in DATE ] and [ the other ] towards DATE [ CARDINAL ] , lasting until DATE [ CARDINAL ] ... We took [ the applicant ’s statements ] seriously ... I have come to know [ the applicant ] so well that I can somehow see when he is lying or when he is telling the truth ... Having been asked on a number of occasions to name the perpetrators , [ the applicant ] stated that he would do so , but not right away ... In the autumn [ of DATE ] he named CARDINAL of the assistants [ during the kidnappings ] , [ P. ] ... [ The applicant ’s description of the environment and LOC where he had been kept during the kidnappings ] was very accurate as regards many details ... "

ORG Both PERSON report and Crime Inspector S. ’s testimony had in essence been reproduced in ORG judgment . Inspector PERSON had also been heard orally before ORG , where he had more or less repeated the same evidence he gave to ORG .

ORG On DATE the ORG rejected the applicant ’s request , for the following reasons :

" The submissions in this case in support of the request for reconsideration are not such as to be a reason for the ORG to change its previous decision . Nor is there any other reason for changing the decision . "

ORG Under chapter CARDINAL , section CARDINAL , of LAW , a private claim arising from a crime may be lodged against the suspect or a third party in connection with the prosecution of the offence . If it concerns an offence forming the object of public charges , the prosecutor is under an obligation to prepare and present any such claim as the victim may wish to make , provided that it is not seriously inconvenient to do so and that the claim is not manifestly unfounded ( section CARDINAL ) . In that event , the trial court will in principle determine the claim for compensation as well as the questions of guilt and sentencing . This is the most frequently used course of action for obtaining compensation for criminal damages .

A private claim against the suspect may in the alternative be made by way of a civil action under the general rules on tort liability contained in LAW DATE .

Otherwise , and at the relevant time , compensation could have been sought from the ORG under the rules of LAW , which was amended as of DATE . LAW was enacted in order to afford crime victims a means of obtaining reparation where the identity of the offender was unknown or where the latter had insufficient means to compensate the victim or where insurance coverage was inadequate .

Section CARDINAL of the DATE Act read , in so far as is relevant :

" This Act regulates compensation to be paid by the ORG for damage caused by crime . The LAW is applicable if the crime has been committed in GPE ... "

Section CARDINAL of the Ordinance on Damage Caused by Crime ( brottsskadeförordningen CARDINAL:CARDINAL ) read , at the time in question and in so far as is relevant :

" ... The claim [ for compensation for damage caused by crime ] shall be lodged with ORG . The claim shall be supported by a police record , a medical statement and other documents of relevance to the [ ORG ’s ] examination . If someone has been convicted of the crime referred to in the request or if someone has been ordered to pay damages , a copy of the judgment [ to this effect ] shall also be enclosed . If no police investigation has been carried out , other material concerning the cause of the damage shall be submitted . "

Section DATE Act provided :

" A claim for compensation for damage caused by crime shall be filed within DATE from the date of the offence . If there are special reasons , a claim may be examined even if it has been lodged out of time . A claim will only be examined if the offence has been reported to the public prosecutor or the police or if the applicant shows a valid reason why such a report has not been made . "

ORG Although it was not a condition for compensation under LAW that the offender had been convicted , it was a condition that the damage had been caused by criminal conduct and that both the subjective and objective conditions for the offence in question had been fulfilled .

ORG decided independently whether the conditions for compensation under LAW had been fulfilled , including whether a crime had been committed . Thus , in some cases ORG had been satisfied that the conditions for compensation had been met , despite a decision by the public prosecutor not to bring charges on the ground of lack of evidence . In rare instances , ORG had granted compensation even though the trial court , because of insufficient evidence , had acquitted the accused or had dismissed the compensation claim . Generally speaking , the standard of proof applied by ORG was less strict than that applied by a trial court .

Compensation could be granted under LAW for physical injury suffered by the victim but could , on certain conditions , also cover damage to property . Other damage could be compensated to a limited extent ( sections DATE of LAW ) .

ORG No appeal lay against a decision of ORG ( section CARDINAL of LAW ) . Nor was it possible to request judicial review of the decision pursuant to LAW ( Rättsprövningslagen CARDINAL:CARDINAL ) .

ORG The ORG set up under LAW was composed of a chairperson , CARDINAL vice - chairpersons and CARDINAL other members , all of whom were appointed by the Government for a limited period ( section CARDINAL of the Ordinance with Instructions for ORG CARDINAL:CARDINAL med instruktion för brottsskadenämnden ) ) . It was a requirement that the chairperson , the vice - chairpersons and their substitutes be lawyers ( " vara lagfarna " ) and have experience as judges ( section CARDINAL of LAW ) . The remaining CARDINAL members did not need to be lawyers , but CARDINAL of them had to be a representative of the insurance business .

The ORG ’s independence was guaranteed by LAW , Article CARDINAL , of ORG ( Regeringsformen ) , which provision implies that neither the ORG nor ORG could intervene or influence the manner in which ORG dealt with an individual case .

ORG The rules governing the procedure before ORG were similar to those found in LAW ( PERSON ) and LAW DATE ( ORG CARDINAL:CARDINAL ) . Thus , for instance , the rules on disqualification of members of ORG from dealing with a case ( sections CARDINAL of LAW DATE ( ORG CARDINAL ) were similar to those applying to members of the ordinary courts ( chapter DATE , section CARDINAL , of the Code of Judicial Procedure ) and the administrative courts ( section CARDINAL of LAW ) . Although the ORG in principle determined cases on the basis of the case file , a party to the proceedings had the possibility to make oral arguments before ORG , if the latter considered it expedient ( LAW DATE ) . A party was entitled to have access to all written documents in a case , unless non - disclosure was required by a strong public or private interest under LAW ( Sekretesslagen CARDINAL:CARDINAL ) . In such a case the party concerned should be informed of the contents of such facts in order to enable him to protect his rights , provided this could be done without serious harm to those interests which are protected by secrecy . No case could be decided on before the parties had been informed of all the evidence adduced and had been given an opportunity to submit observations in reply .

Subject to the provisions in LAW , all documents submitted to ORG were accessible to the public .

ORG Under the new legislation adopted on DATE ( see paragraph CARDINAL above ) , a new public body has been established for the examination of compensation requests , i.e. the Authority for Victims of Crime ( Brottsoffermyndigheten ) . Within that authority a board examines cases of particular interest or cases that are otherwise of particular importance .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

On DATE ORG of GPE ( “ the ORG ” ) found that unlawful actions of police officers in DATE had resulted in harm to the applicant ’s health manifesting itself in partial loss of ability to work . This judgment and a supplementary judgment of CARDINAL DATE recovered from the ORG treasury in the applicant ’s favour lost earnings up to DATE in the amount of MONEY ( RUB ) and compensation of non - pecuniary damage in the amount of RUB CARDINAL . It appears from the applicant ’s own submissions that the award was paid to him in DATE .

On an unspecified date the applicant brought a new action seeking recovery of lost earnings for the period from DATE to DATE and further DATE payments to be re - calculated in accordance with the minimum wage , reimbursement of expert fees and compensation for sanatorium treatment .

By a judgment of CARDINAL DATE ORG granted his claims in part , however the judgment was reversed on appeal on DATE , and the case was remitted to the first instance for fresh examination .

On DATE ORG again granted the claims in part awarding the applicant lost earnings in the amount of RUB CARDINAL and related DATE payments in the amount of RUB CARDINAL,CARDINAL to be adjusted to the cost of living , RUB CARDINAL for sanatorium treatment , and RUB CARDINAL as reimbursement of the expert fees .

The above judgment was not challenged on appeal . The enforcement documents received by ORG on DATE were returned to the applicant in DATE due to unidentified inconsistencies in the judgment .

On DATE ORG considered the applicant ’s application for adjustment of the amounts awarded by the judgment of DATE . The court rejected the application but clarified the original judgment by specifying that the responsibility for its enforcement lay with ORG . A new writ of enforcement was issued .

On DATE the judgment of DATE was enforced in full . It transpires from the documents submitted by the Government and covering the period DATE and DATE that the DATE payments in the amount determined by ORG on DATE were regularly credited to the applicant ’s account .