Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1+6-3-c;Violation of P7-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

NORP In DATE the applicant , a widower with CARDINAL children , remarried . His second wife was a NORP national who herself had CARDINAL children from a previous marriage with a NORP national from whom she had been divorced in DATE . During DATE the applicant ’s wife ’s son and daughter were on school holidays at the applicant ’s home at GPE , near FAC .

The daughter , ORG , was DATE and a NORP national . On DATE she spent DATE wind surfing . On her return she complained that she felt tired and was not as tanned as she would have liked . As he had done several times in the past , the applicant injected her at TIME with a ferric preparation that was sold under the brand name ORG and was in principle intended for the treatment of anaemia .

At TIME on DATE the applicant found PERSON dead in her bedroom and proceeded to inject her with various products in an attempt to revive her . A call was made to the emergency services and the body examined by a doctor at TIME He put the time of death at TIME and found no traces of violence , apart from marks made by injections to the thorax and right arm .

NORP The police immediately started an investigation into the death at the hands of a person or persons unknown and an autopsy was carried out by CARDINAL pathologists on DATE . Although they were unable to determine the cause of death , primarily because the body was in an advanced state of decomposition , they found no evidence of sexual or other assault . Consequently , on CARDINAL DATE the PERSON public prosecutor ’s office made the first of CARDINAL decisions to take no further action in the case , in accordance with LAW of LAW .

The girl ’s father then requested the PERSON public prosecutor ’s office to make further inquiries , notably on the ground that the autopsy report had been criticised by a NORP forensic doctor to whom he had submitted a copy . The public prosecutor ’s office agreed to his request and sought an expert opinion from ORG in GPE .

On DATE CARDINAL of the pathologists who had carried out the autopsy said that wounds found to the girl ’s external genitalia had been caused after death . On DATE , after he had carried out a chemo - toxicological and histological analysis and heard the pathologists , the applicant and other members of the family , the expert concluded that the girl had not died of natural causes . However , he was unable to reach any further conclusion about the cause of death , which , in his opinion , could not be attributed to the injection of the ferric product , no traces of which had been found in the body . In DATE a further expert pharmacological examination was carried out to determine the side - effects or contraindications of the ferric product that had been injected on DATE before the girl ’s death .

On DATE ORG at ORG decided for the second time to take no further action . ORG at ORG ( Oberlandesgericht ) took the view that an appeal lodged against that decision by the victim ’s father on DATE was an internal appeal ( PERSON ) and dismissed it on DATE .

On DATE the victim ’s father lodged a complaint through his NORP lawyers in which the applicant was named as the suspect in the rape and murder of his daughter . The case file in the investigation that had been started in DATE against a person or persons unknown was joined to the new investigation procedure that had been initiated on the complaint of the victim ’s father . On DATE the public prosecutor ’s office at ORG decided for the third time , on the basis of the conclusions of the various experts in the previous investigation , to take no further action .

The decision of CARDINAL DATE to take no further action was upheld by ORG at ORG on DATE on the ground that the investigation had produced insufficient evidence to justify a prosecution .

On DATE , after a petition had been sent to the NORP ORG , the investigation was resumed for the fourth time and on DATE ORG at ORG instructed the public prosecutor ’s office to make further inquiries .

On DATE the PERSON public prosecutor ’s office requested the ORG public prosecutor ’s office under arrangements for judicial mutual assistance to question the victim ’s younger brother , who was born in DATE , about the circumstances of his sister ’s death . The boy was questioned on DATE .

In addition , a further pharmacological report on the toxicological effects of the ferric preparation was requested from ORG in GPE , which set out its conclusions in CARDINAL reports dated DATE and DATE . On DATE the PERSON public prosecutor ’s office also requested the NORP authorities under the arrangements for judicial mutual assistance to exhume the body which had been buried in GPE . The LOC investigating judge made an order to that effect on DATE and on CARDINAL DATE the body was exhumed and examined by CARDINAL forensic doctors .

On DATE , in the light of the conclusions of the expert report and of the negative results of the autopsy that had been carried out after the exhumation , the PERSON public prosecutor ’s office decided for the fourth time to take no further action in the case . That decision was upheld on CARDINAL DATE by ORG at ORG .

In accordance with the provisions of Article CARDINAL of the NORP Code of Criminal Procedure , the victim ’s father issued proceedings ( ORG ) in ORG in which he complained that ORG should not have upheld the decision to take no further action and sought an order compelling the public prosecutor ’s office to charge the applicant with voluntary or involuntary homicide . In a judgment of CARDINAL DATE ORG of ORG declared the appeal inadmissible .

On DATE , while continuing to press for the applicant ’s prosecution in GPE , the victim ’s father lodged a criminal complaint for involuntary homicide against a person or persons unknown with the GPE investigating judge and applied to be joined as a civil party to the proceedings . The complaint was based on LAW , which lays down that aliens who commit a serious crime ( crime ) outside the territory of the Republic may be prosecuted and tried under LANGUAGE law if the victim is a NORP national .

NORP In support of his complaint the victim ’s father lodged documents , expert reports , investigative papers and witness statements that had been obtained by the PERSON public prosecutor ’s office in GPE .

On DATE the GPE investigating judge sent letters rogatory to the NORP authorities requesting them to question various witnesses and to take certain steps . The PERSON public prosecutor ’s office replied on DATE .

On DATE the PERSON public prosecutor ’s office sent the investigating judge a photocopy of the investigation file comprising CARDINAL volumes .

A new investigating judge assigned to the case in GPE was informed by the victim ’s father on DATE that the public prosecutor ’s office had decided for the fourth time on DATE to take no further action . He sent new letters rogatory to the NORP authorities on CARDINAL DATE , in which he invited them to make available to CARDINAL NORP experts , whom he had appointed that day , samples that had been taken during the autopsy and examined by the CARDINAL NORP experts who had compiled the report of CARDINAL DATE .

In accordance with the NORP letters rogatory , the samples were delivered to the NORP police on DATE and , on DATE , to the experts who had been appointed on CARDINAL DATE . The experts lodged their report on DATE and a supplementary report on CARDINAL DATE , in which they corrected an error of transcription .

On DATE the GPE investigating judge ordered an additional expert report with a view to ascertaining the precise role and effects of the medicines with which the applicant said he had injected his stepdaughter when attempting to revive her . That report was lodged on DATE .

On DATE the third investigating judge assigned to the case issued a summons requiring the applicant to appear before him . In a letter of CARDINAL DATE the applicant informed the investigating judge that the NORP authorities had concluded after an investigation that no third party bore responsibility for ORG ’s death and that he saw no reason to travel to GPE . He indicated , however , that he was willing to be interviewed at his home .

On DATE the investigating judge sent a third set of letters rogatory to the NORP authorities asking them to notify the applicant of the conclusions of the expert reports of DATE and CARDINAL DATE and to put to him , as an “ assisted witness ” , certain precise questions regarding the sequence of events . The applicant was questioned by a NORP judge on CARDINAL DATE .

On DATE the applicant informed the investigating judge in reply to a request of CARDINAL May that it was not possible for him to travel to GPE and that he had already answered the judge ’s questions . He said , however , that he was willing to reply in writing to any further questions the judge might wish to ask .

On DATE after the investigation had begun – the applicant was charged with the crime of assault resulting in unintentional death . On DATE he was questioned by a NORP judge acting pursuant to letters rogatory .

On DATE the investigating judge made an order closing the investigation and sending the file to ORG at ORG , who lodged written submissions on DATE .

Using the system established by the scheme for international mutual assistance in law enforcement , the applicant was notified of the date of the hearing before ORG on DATE . His lawyer was informed on DATE . Neither the applicant nor his lawyer attended the hearing on DATE .

By a judgment of DATE ORG of ORG committed the applicant to stand trial in ORG on a count of involuntary homicide . ORG noted the conflicting opinions of the NORP experts who had seen the evidence in the NORP file , including the expert reports . By way of conclusion ORG stated :

“ The investigation was started on a complaint of voluntary homicide . However , in the order closing the investigation the investigating judge charged PERSON with voluntary assault resulting in unintentional death . ORG and the civil party have also submitted that he should be committed for trial on that charge .

The court finds that the medical evidence gathered in the course of the investigation suggests that ORG ’s death was a direct consequence of an intravenous injection of a solution that might have been ORG . The injection was contemporaneous with the death .

In order to justify that act , PERSON has furnished conflicting and untrue accounts , stating firstly that his intention had been to help the girl to tan more quickly and subsequently to treat her for her anaemic condition . ORG does not help people to tan and at the material time ORG was a girl in perfect health , there being no reference in her medical records to any symptoms of anaemia .

PERSON also lied about the chronology of the events when he affirmed that the injection had taken place TIME before the death . Lastly , the faked attempt to revive her and the use of mutually incompatible products on a living being can only be explained by an intention to conceal the cause of death .

These factors taken as a whole constitute sufficient grounds for suspecting that PERSON gave the fatal injection not as a cure , but with the intention of causing death . ”

ORG also issued an arrest warrant .

On DATE the judgment was served on the applicant through the foreign public prosecutor ’s service . The applicant was summonsed on several occasions for preliminary questioning in order to establish his identity , but refused to comply with any of the summonses .

The applicant appealed to ORG against the committal order . In his written submissions he argued , inter alia , that the non bis in idem principle had been contravened and that an estoppel per rem judicatam arose , as , although LAW enabled aliens to be tried under LANGUAGE law if the victim of the crime was a NORP national , no prosecution could lie if there had been a final judgment overseas . In that connection , the applicant maintained that a discharge order had been made in his favour on DATE by the PERSON public prosecutor ’s office , an investigating body , and had become final with the decision of ORG of ORG of CARDINAL DATE .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s ground of appeal on the ground that it raised a new issue as neither the impugned judgment nor any of the procedural documents showed that the appellant had argued before ORG that the NORP judicial authorities had made a discharge order in his favour in respect of the same offence .

On DATE the applicant ’s NORP lawyer was informed that the applicant was required to appear before ORG from DATE . On DATE he applied to the President of ORG for an order for a supplementary measure to ensure that the case file contained all the documents from the NORP proceedings . The President dismissed that application by a letter of DATE in which he informed the lawyer that it was for the assize court with lawful jurisdiction in the case to determine whether such a measure was necessary .

By an order of CARDINAL DATE , which was served on CARDINAL DATE , the President of ORG invited the applicant to report to the authorities within DATE . In accordance with Articles CARDINAL et seq . of LAW , that order was published in ORG ) and displayed in the courtroom of ORG and on the front door to the town hall of the first administrative district of GPE .

On DATE the applicant wrote a letter to the President of ORG explaining that he was willing to attend the hearing on DATE provided that he received an assurance that he would remain at liberty throughout the duration of the trial . He said that he could not understand the conduct of the NORP authorities , who had failed throughout the investigation in GPE to take the discharge order that had been made in GPE into account . He added that it was his intention to be represented by a lawyer .

By an order of CARDINAL DATE the President of ORG adjourned the case to CARDINAL DATE .

The applicant ’s NORP lawyer , assisted by a NORP lawyer , lodged submissions with ORG based on LAW . He sought permission to represent the applicant in his absence and to make submissions regarding various matters , namely : the existence of an estoppel per rem judicatam , a ruling on the estoppel issue by ORG acting on its own initiative , an order for an additional investigation to secure the communication of the investigation file by the NORP authorities and an examination of the scope of the discharge orders .

By a judgment of CARDINAL DATE delivered by ORG after it had heard ORG submissions calling for a DATE prison sentence , the applicant was found guilty of voluntary assault on his stepdaughter unintentionally causing her death and sentenced to DATE imprisonment .

ORG explained in its judgment that if the applicant had reported to the authorities , it would have been able to discontinue the in absentia procedure and the applicant would have been able to make any requests that would assist in his defence when complying with that mandatory procedural requirement . It also reminded the applicant ’s lawyers , who were present at the hearing , that LAW prohibited representation for absent defendants and laid down that their submissions were inadmissible .

In a civil judgment that was also delivered in absentia on CARDINAL DATE , ORG ordered the applicant to pay MONEY ( ORG ) as reparation for non - pecuniary damage and LAW for costs and expenses . The applicant ’s lawyer had lodged a note to ORG in deliberations in which he had pointed out that the total lack of representation for the defence in the civil action constituted a breach of LAW . He complained in particular that he had not been informed of the heads of claim or of ORG submissions .

By an order of DATE made under LAW , the President of ORG declared the applicant ’s appeals against the judgments of ORG inadmissible .

A “ GPE ” warrant followed by an international warrant were issued , on dates which are not indicated in the case file , for the applicant ’s arrest .

On DATE the victim ’s father applied to ORG for an authority to execute ORG judgment ordering the applicant to pay ORG CARDINAL in damages . On CARDINAL DATE ORG granted that application and its decision was upheld by ORG on DATE .

The applicant appealed on points of law . By a decision of DATE ORG ( ORG ) referred the case to ORG of ORG with a view to obtaining a preliminary ruling on the interpretation of LAW DATE on ORG , which lays down that judicial decisions shall not be recognised if recognition would be contrary to public policy in the ORG in which recognition is sought .

Among the reasons given by ORG for seeking a ruling was that it considered that the enforcement of the judicial decision obtained by proceedings in absentia such as those conducted in GPE might be regarded as contrary to NORP public policy , at least so far as the civil limb of the proceedings was concerned , as LAW laid down that everyone had the right to be heard ( PERSON auf rechtliches PERSON ) , and that that right incorporated the right to representation by a lawyer . Lastly , referring to LAW , ORG indicated that the decision delivered in absentia appeared to it to infringe the right to access to a court and , as regards the civil limb , the right to equality of arms .

In a judgment of DATE , ORG of ORG held : “ the court of the ORG in which enforcement is sought can , with respect to a defendant domiciled in that ORG and prosecuted for an intentional offence , take account , in relation to the public - policy clause in DATE the fact that the court of the ORG of origin refused to allow that person to have his defence presented unless he appeared in person ” .

Following that judgment ORG dismissed the application by the victim ’s father of DATE for an order to enforce the civil judgment delivered by ORG on DATE .

On DATE the applicant was arrested in GPE and detained pursuant to an order of the judge of ORG ( ORG ) pending the hearing of a request for his extradition . By an order of DATE the judge concerned dismissed a bail application by the applicant , despite his offer of a surety .

However , on DATE ORG ( GPE ) quashed that order and ordered the applicant ’s immediate release . It considered that the judgment of ORG of CARDINAL DATE ( see paragraph CARDINAL above ) , against which there was no right of appeal under NORP law , raised a relative estoppel per rem judicatam , since the investigation could only be restarted in GPE if new evidence came to light . Once the courts in the state in which the offence had been committed had decided not to prosecute the applicant and had taken a final decision in that regard , he could not be detained for the purposes of extradition . Lastly , ORG held that LAW implementing the Schengen Agreement ( PERSON ) , which incorporates the non bis in idem principle , precluded the applicant ’s being retried in GPE in respect of the matters for which a final discharge order had been made in his favour in GPE .

Article CARDINAL of the Code of Criminal Procedure lays down that if the offence charged is classified by statute as a serious crime ( crime ) , the indictment division will commit the accused for trial by the assize court .

There is an assize court in GPE and in each of the NORP départements . The court is composed of professional judges ( the president and CARDINAL wing members ) and a CARDINAL - person lay jury whose members are drawn by lot from a panel of CARDINAL jurors and CARDINAL substitute jurors chosen DATE by lot for jury service during the CARDINAL ordinary assize sessions held in the département .

The inquiry into the facts of a serious criminal case ( affaire criminelle ) must be conducted orally at the trial . At the end of the hearing , the court retires to decide on its verdict and sentence . LAW provides that the court must answer each of the questions contained in the operative provisions of the committal order by either “ yes ” or “ no ” and that each question must be put in the following way : “ Is the accused guilty of having committed such an offence ? ” . The votes of a majority comprising CARDINAL jurors are required for the accused to be convicted of the offence .

As regards the accused ’s presence at the trial , LAW lays down that the committal order , which is valid only if it contains a statement and the legal classification of the alleged offences , shall be accompanied by a warrant for the accused ’s arrest , specifying his or her identity . LAW provides that an accused who is on bail must surrender to custody at the latest on DATE the hearing in the assize court and that the arrest warrant shall be executed if , after being duly summonsed and without due cause , he or she fails to attend on DATE for questioning by the president of the assize court . Article CARDINAL provides for the accused to be tried in absentia if he or she can not be apprehended and does not attend the trial ( see paragraphs CARDINAL below ) .

As soon as the committal order has become final and the accused , after being detained , has been transferred to the prison in the locality where the assize court will sit , the president of the assize court must , in accordance with LAW , establish the accused ’s identity and ensure that he or she has been duly served with the committal order . LAW also requires the president to invite the accused to choose a lawyer to assist with his or her defence ; if the accused fails to do so , the president must assign counsel to represent him or her . This is because LAW makes the accused ’s representation at the trial mandatory and provides that if no counsel appears on behalf of the accused , the president must on his or her own initiative assign the accused counsel . LAW lays down that if an accused refuses to appear at the trial after being summonsed to do so by a bailiff the president may order that he or she be brought before the court by force . The president may also order that the hearing shall proceed notwithstanding the accused ’s absence .

As regards the procedure for trial in absentia , the main provisions of LAW are as follows :

“ If , after the committal order has been made by the indictment division , it has not proved possible to apprehend the accused or he or she has failed to report within DATE after the service of notice at his or her home to do so or the accused has absconded after reporting or being apprehended , the president of the assize court or , in his absence , the president of the court in the locality where the assize court will sit , or the judge replacing him or her , shall issue an order requiring the accused to report within a further period of DATE , failing which the accused shall be declared an outlaw , the exercise of his or her rights as a citizen shall be suspended , his or her assets shall be sequestered for the duration of the contempt , he or she shall not be entitled to take part in any court proceedings during that period , the criminal proceedings shall continue and any person knowing where the accused is to be found shall be under a duty to report that information . The order shall also contain particulars of the serious crime ( crime ) and of the arrest warrant . ”

“ Within DATE that order shall be published in CARDINAL of the newspapers in the département and displayed on the door to the accused ’s home , the door to the town hall in the district where the accused lives and in the courtroom of the assize court . ORG shall send an office copy of the order to the director of the ORG lands department in the locality where the accused who is in contempt resides . ”

“ After DATE the court shall rule on the contempt issue . ”

“ No lawyer ( avocat or avoué ) may attend on behalf of an accused who is in contempt . However , if it is totally impossible for the accused to comply with the injunction contained in the order made pursuant to LAW , his or her close relatives or friends may explain the reason for his or her absence . ”

“ If the court finds that due cause has been shown , it shall order a stay of the accused ’s trial and , if necessary , of the order for the sequestration of his or her assets for a period commensurate with the nature of the cause shown and the distance to be travelled . ”

“ Except in those circumstances , the order committing the accused for trial before the assize court , the affidavit of service of the order requiring the person in contempt to report and the affidavits confirming that that order has been published and displayed shall be read out . After that has been done and after it has heard the submissions of ORG the court shall make an order for trial in absentia . If any of the formalities prescribed by Articles CARDINAL and CARDINAL have been omitted , the court shall declare the contempt procedure void and order it to be restarted from the stage where the first unlawful act occurred . Otherwise , the court shall deliver its verdict on the accusation without the assistance of the jurors and without being entitled to take into account any circumstances mitigating the guilt of the person in contempt in the event of a conviction . The court shall then decide the civil parties’ claims . ”

“ If the person in contempt is convicted , his or her assets shall , if no confiscation order has been made , remain sequestered and a sequestration account shall be delivered to the person entitled to receive it once the conviction has become irrevocable as a result of the expiry of the limitation period for purging the contempt . ”

“ Once all the publication procedures prescribed by [ LAW ] have been carried out , the convicted person shall be subject to all the statutory disabilities . ”

“ Persons in contempt shall not be entitled to appeal on points of law . ”

Article CARDINAL , which concerns the procedure when the contempt is purged , provides as follows :

“ If the person in contempt surrenders to custody or is arrested before the time allowed for enforcing the sentence has expired , the judgment and the procedural steps taken after the order requiring the accused to report shall be automatically null and void and the proceedings will continue under the ordinary procedure ... ”

Under the case - law , if a person convicted in absentia dies during the period allowed for the enforcement of the sentence , the conviction becomes irrevocable ( Court of Cassation , Criminal Division , DATE , PERSON , p. CARDINAL ) .

Resolution ( CARDINAL ) CARDINAL of ORG on the criteria governing proceedings held in the absence of the accused also contains a number of basic rules , including the following :

“ CARDINAL . No one may be tried without having first been effectively served with a summons in time to enable him to appear and to prepare his defence , unless it is established that he has deliberately sought to evade justice ...

The accused must not be tried in his absence , if it is possible and desirable to transfer the proceedings to another state or to apply for extradition .

Where the accused is tried in his absence , evidence must be taken in the usual manner and the defence must have the right to intervene ...

Any person tried in his absence must be able to appeal against the judgement by whatever means of recourse would have been open to him , had he been present . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (victim);Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient

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

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

On DATE the ORG regional police stopped a car . During an inspection of the car , the police discovered a large quantity of aviation fuel . As the driver was unable to produce a certificate for the fuel he was transporting , the police ( officer S ) seized QUANTITY of fuel . The police entrusted it for safe keeping to a Belogorsk technical college and later to military unit no . DATE .

As the fuel allegedly belonged to a private company ORG ( the “ company ” ) , officer S required the company director , ORG , to produce a document confirming that the fuel had been acquired lawfully . Mr P submitted an invoice dated DATE . Criminal proceedings were , however , instituted against Mr P on suspicion of forgery of this invoice . The NORP town prosecutor subsequently discontinued the proceedings on the ground that only the forgery of official documents was punishable under LAW . No decision was taken regarding the fate of the fuel .

As can be seen from the domestic ORG findings ( see paragraph CARDINAL below ) , in the meantime , officer S decided not to institute any criminal proceedings in relation to the seized fuel . However , on DATE the PERSON deputy prosecutor set aside this decision and ordered an additional inquiry . There is no indication that this inquiry led to any prosecution or that any decision was taken in relation to the seized fuel .

The company thus attempted to regain possession of its fuel . By a letter of CARDINAL DATE the PERSON deputy prosecutor informed the company that the fuel had not been attached to the criminal case file against Mr P as evidence and thus no decision had to be taken . He invited Mr P to collect the fuel through the police department . On an unspecified date , however , the company learnt from the LOC police department that the fuel had been stolen when it had been stored in the military unit .

Meanwhile , the national authorities endeavoured to identify the officials responsible for the loss of the fuel . Criminal proceedings were instituted against officer S for abuse of power , as well as against the commander of the military unit and officer PERSON , who had allegedly misappropriated the fuel in the military unit . On DATE the Belogorsk town military prosecutor discontinued the proceedings against officer GPE and the head of the military unit because there was no indication of a criminal offence . On DATE the proceedings against officer S were discontinued because his participation in the disappearance of the fuel had not been proven .

It does not appear that any criminal or other investigation continued thereafter in relation to the seized but missing fuel . No further claim was lodged in respect of it by the company or any other person or legal entity . Nor does it appear that the company made any attempts to obtain compensation after CARDINAL DATE ( cf . paragraph CARDINAL above ) . Instead , the company chose to assign the related claims to the applicant ( see below ) .

On DATE the company transferred title to the seized fuel to the applicant . On DATE the parties amended the assignment agreement , indicating that the assignment included a claim in respect of any damage or loss caused by the authorities on account of the seizure of the fuel , as well as a claim for compensation in respect of unjustified enrichment on the same account and a claim for return of the fuel . The amended agreement also stated that the signing of that agreement “ annulled the company ’s debt of MONEY under a contract dated DATE ” .

NORP The company informed the regional police department of the transfer of title . Since DATE the applicant has unsuccessfully requested the police department to return the fuel .

In DATE the applicant sued the ORG , claiming compensation for the damage incurred as a result of the seizure and loss of the fuel . ORG of the LOC designated ORG as the proper respondent , with the applicant ’s consent . The court also gave the regional police department , the military unit and the company leave to intervene as third parties in the proceedings .

By judgment of DATE ORG of GPE dismissed the applicant ’s action . The court held as follows :

“ Under an assignment agreement of DATE the ORG company transferred all its rights to the fuel to [ the applicant] ... The assignment did not contravene Articles CARDINAL , CARDINAL and CARDINAL of ORG ... The fuel had been seized in relation to the accusation of forgery against Mr P ...

[ T]he criminal prosecution against officer PERSON was discontinued ... The fuel was misappropriated by officer PERSON , against whom proceedings were discontinued on DATE ...

[ T]he responsibility of an officer of ORG for unlawful seizure of the company ’s fuel must be established by a final judgment in a criminal case . The commercial court , under LAW , does not have the right to assess the lawfulness or unlawfulness of the actions ( failure to act ) of the investigating authorities and the prosecutor ’s office .

The plaintiff did not submit any evidence showing that the seizure of the fuel by the officer of the ORG regional police department had been declared unlawful by a court and that [ the officer ] was responsible for the loss of the fuel .

The action must be dismissed because there was no fault on the part of the person who allegedly caused the damage . ”

The applicant appealed contending that the absence of a criminal conviction in respect of the officer had been irrelevant and that the respondent and the military unit had entered into a contract for storage of the fuel seized from the company . On DATE ORG of the Amur Region upheld the judgment of DATE . The court stated inter alia as follows :

“ Officer PERSON acted lawfully when he inspected and seized the fuel ... Having verified whether the fuel had been lawfully acquired , officer S decided not to bring criminal proceedings ; on DATE the PERSON deputy prosecutor set aside this decision and ordered an additional inquiry ...

Officer PERSON ’s failure to observe the procedure for inspection and transfer of the fuel for safe - keeping purposes has no direct causal link with the loss of the fuel ... ”

Lastly , the appeal court made the following observations in relation to the military unit :

“ Military unit no . DATE received the seized fuel for storage ... in accordance with LAW . Under LAW of GPE the military unit became civilly liable vis - à - vis the plaintiff for the safe keeping of the fuel . Under LAW of GPE , in the event of the loss of the fuel [ the military unit ] had to compensate the plaintiff for the resulting damage , unless otherwise provided by the law . ”

The appeal judgment became final on DATE .

On DATE ORG of ORG , sitting as a cassation - instance court , upheld the judgments of DATE and DATE . The court noted that the seizure of the fuel had been due to the absence , at the time , of any document confirming the company ’s title to it . The court held that the plaintiff had not proved that the investigator had been responsible for the damage caused .

In the meantime , on DATE the applicant brought proceedings in the NORP ORG of the Amur Region against , inter alia , the military unit . He claimed that the authorities’ failure to return the fuel or to pay compensation be declared unlawful .

By a judgment of CARDINAL DATE ORG rejected the applicant ’s claim . The court held that the fuel seizure had been carried out by officer S before any criminal proceedings had been initiated because of the need to conduct urgent investigative measures , namely a crime - scene inspection , in compliance with LAW ( see paragraph CARDINAL below ) . ORG also held as follows :

“ As established in the judgment of the commercial court , during the seizure of the fuel the OPIUMIK company had not supplied any document to confirm the lawfulness of its acquisition . Later PERSON P submitted a forged invoice , which gave rise to criminal proceedings against him . An agreement dated DATE between the ORG company and a Mr G for the purchase of QUANTITY of fuel was produced before this court . It can not be accepted as a proof of the lawfulness of the fuel acquisition because the content of that agreement does not correspond to the materials in the criminal case which had been discontinued . Nor does it correspond to Mr P ’s deposition in the criminal proceedings , to the invoice or the expert report no . DATE which stated that the handwritten inscriptions in invoice no . CARDINAL of CARDINAL DATE had been done by PERSON rejects as unfounded Mr P ’s allegation that the documents in the criminal file and his deposition had been obtained under duress . Besides , the ORG considers that Mr P ’s and [ the applicant ’s ] arguments are intended to challenge the circumstances already determined by the final judgment of the commercial court , in particular as regards the lawfulness of the fuel acquisition by the company ... The ORG concludes that no evidence has been adduced to confirm [ it ] . The ORG does not accept [ the applicant ’s ] argument that the commercial court had confirmed the lawfulness of the fuel acquisition ; such matter had not been contested before the commercial court ...

The grounds for compensation in respect of damage caused by the investigating authorities , including a claim for restitution of the fuel , are regulated by Articles CARDINAL and CARDINAL of LAW . Those grounds were also examined by the commercial courts and can not be subject to a re - examination in the present case . No legal relationship ( обязательственные отношения ) was established between [ the applicant ] on the one hand and the military unit , ORG or ORG on the other . Hence , his claims ... should be rejected . ”

Lastly , the court found that the applicant had missed the statutory time - limit under LAW for bringing the matter before the courts of general jurisdiction .

On DATE the ORG upheld the judgment . The court considered that the commercial court ’s judgment of DATE had dismissed the applicant ’s claims , inter alia , due to his failure to produce evidence confirming the lawfulness of the fuel acquisition . Neither was the civil court provided with any proof that the company had had title to the fuel .

A commercial court issued a private company with an enforcement order for a sum of money against a ORG - owned enterprise . The company did not submit the writ within the statutory time - limit and bailiffs refused to enforce the judgment . The company assigned the claim to the applicant , who then requested the commercial court to designate him as creditor in respect of the above judicial award and to restore the time - limit for lodging the enforcement order . In DATE the commercial court rejected both requests . The applicant did not appeal .

NORP The applicant also requested a court of general jurisdiction to designate him as creditor in respect of the assigned award and to award him compensation for the damage sustained . On DATE ORG , at final instance , disallowed the first claim because it had already been determined on DATE by the final decision of the commercial court . On DATE ORG , at final instance , dismissed the claim for damages on the ground that the applicant ’s title had never been confirmed by a court .

The Civil Code of GPE , in force from DATE , provided as follows :

“ Damage caused to an individual or a legal entity as a result of the unlawful actions ( failure to act ) of ORG agencies , agencies of local self - government or officials of these agencies , including as a result of the issuance of an act of a ORG agency or agency of local self - government which is contrary to a law or any other legal act , shall be subject to compensation . The damage shall be compensated for at the expense , respectively , of the ORG of GPE , the treasury of the region of GPE , or the treasury of the municipal authority . ”

“ CARDINAL . Damage caused to an individual as a result of his or her wrongful conviction or unlawful criminal prosecution , or the unlawful application , as a preventive measure , of remand in custody or of a written undertaking not to leave a specified place , or the unlawful imposition of an administrative penalty in the form of arrest or corrective labour , shall be compensated for in full at the expense of the ORG of GPE and in certain cases , stipulated by law , at the expense of the treasury of the subject of GPE or of the municipal authority , irrespective of any fault by the officials of the agencies of inquiry or preliminary investigation , prosecutor ’s offices or courts , in accordance with the procedure established by law .

Damage caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry or preliminary investigation or prosecutor ’s offices , which has not entailed the consequences specified in paragraph CARDINAL of this Article , shall be compensated for on the grounds and according to the procedure provided for by LAW ... ”

Article CARDINAL of the Code required the person or entity making an assignment to supply the new creditor with the documents certifying the assignor ’s claims . On DATE ORG of GPE issued an information note summarising the existing case - law on various aspects of the interpretation and application of the provisions of LAW on the assignment of claims and liabilities . In particular , it noted that the invalidity or invalidation of the claim assigned did not imply the invalidity of the assignment agreement . At the same time , it noted that the former gave the assignee the right to sue the assignor under LAW . Nor did LAW prevent the assignment of a future claim or one that was still non - existent when an assignment agreement was signed . ORG also noted that the assignor ’s failure to provide the assignee with documents certifying the former ’s entitlement or claim did not mean that the entitlement or claim had not been conferred on the assignee .

Under LAW , an obligation to keep or store items arises under a contract ( LAW ) or if provided for by law ( LAW ) .

The RSFSR Code of Criminal Procedure of DATE , in force at the material time , provided as follows :

“ ... Material exhibits must be stored in a criminal case . If items of evidence , owing to their size or for any other reason , can not be stored in the criminal case file , their picture must be taken ; if possible , [ they ] must be sealed and stored in a place specified by the investigator , prosecutor , court ... ”

“ Material exhibits shall be stored until the trial judgment becomes final or until expiry of the time - limit for lodging an appeal against a decision by which proceedings are discontinued ...

Material exhibits which can be damaged easily and whose return to their owner is impossible should be given to appropriate entities for use in accordance with [ the GPE ] purpose . If necessary , items of the same type and quality shall be returned to the owner as compensation , or the owner shall be paid a sum equivalent to their value . ”

Article CARDINAL of the Code provides that an investigator may inspect the crime scene or other locations , LOC or items for the purpose of detecting physical evidence of the crime or clarifying the circumstances . In urgent situations , the inspection may be carried out before criminal proceedings are instituted . In such situations , the proceedings should be instituted immediately after the inspection .


Preliminary objections dismissed;Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations) (Procedural aspect)

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

Thirteen of the applicants live in the municipality of PERSON , in GPE ( GPE ) . The other CARDINAL work there .

From DATE to DATE a state of emergency ( stato di emergenza ) was in place in the GPE region , by decision of the then Prime Minister , because of serious problems of solid urban waste disposal .

From DATE to CARDINAL DATE the management of the state of emergency was entrusted to “ deputy commissioners ” appointed by the Prime Minister and assisted by assistant commissioners . CARDINAL high officials – including CARDINAL presidents of the region of GPE and the head of the civil emergency planning department of ORG – were appointed deputy commissioners .

From CARDINAL DATE to DATE the management of the state of emergency was entrusted to an under - secretariat in ORG under the head of the civil emergency planning department .

Regional Law no . CARDINAL of DATE ( “ PERSON no . CARDINAL/CARDINAL ” ) laid down guidelines for the adoption of a waste disposal plan in GPE which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – DATE .

On DATE the President of the Region , having been appointed deputy commissioner , drew up a regional waste disposal plan . Among other things , it provided for the construction of CARDINAL incinerators – CARDINAL of which would be built on land in the municipalities of GPE , GPE , PERSON and ORG ( DATE of these were to serve the municipalities where the applicants lived ) , and the fifth on a site to be determined at DATE and also CARDINAL main landfill sites and CARDINAL secondary sites .

On DATE the President of the Region , acting as deputy commissioner , issued a call for tenders for a DATE concession to operate the waste collection and disposal service in the province of GPE . According to the specifications , the successful bidder would be required to ensure the proper reception of the collected waste , its sorting , conversion into refuse - derived fuel ( combustibile derivato da rifiuti – “ ORG ” ) and incineration . To that end , it was to construct and manage CARDINAL waste sorting and ORG production facilities and set up an electric power plant fuelled by ORG , by DATE .

When the tendering process ended on DATE , the concession was awarded to a consortium of CARDINAL companies : ORG ( main contractor ) , ORG , ORG , ORG DATE GmbH and ORG ( subcontractors ) .

Under the terms of a service concession agreement signed on DATE , the CARDINAL successful companies undertook to build CARDINAL ORG production centres in GPE and NORP in DATE , starting on CARDINAL and DATE respectively , and another in PERSON in DATE , starting from DATE . The ORG - fuelled power plant to be built in GPE was to be built in DATE , starting from a date to be determined later .

In the meantime , on DATE the deputy commissioner had issued a call for tenders for the waste disposal service concession in GPE . The concession was awarded to ORG a consortium of companies formed specially for the purpose . On an unspecified date they formed a company called ORG

Under the concession agreement signed on DATE , ORG was to build and manage CARDINAL ORG production centres and CARDINAL electric power plants fuelled by ORG . It was also required to ensure the proper reception , sorting and treatment of the waste collected in the region and transform PERCENT of it into ORG and PERCENT into compost , and produce PERCENT of non - recyclable waste and PERCENT of ferrous waste .

In DATE the closure of the NORP landfill site resulted in the temporary suspension of waste disposal services in the province of GPE . To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis , under LAW no . CARDINAL of DATE ...

From DATE to DATE CARDINAL ORG production centres were built , in GPE , NORP , GPE , ORG , PERSON , GPE and GPE .

On DATE the urban waste collection and transport service of the municipality of PERSON was entrusted to a consortium of CARDINAL companies : ORG and ORG . On DATE the management of the service was handed over to ORG , a publicly - owned company .

NORP In DATE ORG opened a criminal investigation ( ORG no . ORG ) into the management of the waste disposal service in GPE since the signature of the concession contracts on DATE and CARDINAL DATE .

On DATE the public prosecutor ’s office requested the committal for trial of the administrators and certain employees of ORG , ORG , ORG , ORG and ORG ( “ the companies ” ) , as well as the deputy commissioner in post from DATE and several officials from his office , on charges of fraud , failure to perform public contracts , deception , interruption of a public service or utility , abuse of office , misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations , committed DATE .

The members of the companies concerned were accused , inter alia , of having , with the complicity of the deputy commissioner and of officials from his office , failed in their contractual duty to receive and process the region ’s waste . The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the ORG production centres , causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner .

NORP The public prosecutor ’s office also accused the companies of having ( CARDINAL ) produced ORG and compost by means not provided for in their contracts ; ( CARDINAL ) failed to carry out the requisite ORG energy recovery operations pending the construction of the ORG power station ; ( CARDINAL ) subcontracted the transportation of the processed waste produced by the ORG production centres , in breach of the terms of the concession contract ; and ( CARDINAL ) stocked pollutants from the production of ORG on illegal sites with no effort to protect the environment .

NORP The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal , authorised the opening of non - regulation waste disposal sites , the temporary storage of the ORG pending the opening of the power stations , and the dumping of pollutants produced by ORG production plants , and authorised derogations from the contractual specifications governing ORG production .

On DATE the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before ORG to be held on DATE .

Legislative Decree no . CARDINAL of CARDINAL DATE , which subsequently became LAW no . CARDINAL of DATE , provided for the termination of the contracts governing waste disposal in GPE signed by the deputy commissioner in DATE , and for the urgent organisation of a new call for tenders . In order to guarantee continuity of service , the companies already under contract were required to continue their activities until the new call for tenders was over , but only until DATE .

An initial call for tenders , issued on DATE by the deputy commissioner then in post , failed for lack of sufficient valid tenders .

On DATE the deputy commissioner issued a new call for tenders for a DATE concession .

Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE , appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in GPE . When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal .

On DATE the regional authorities passed Law no . CARDINAL , providing for the creation of a regional division of the waste disposal scheme , a regional waste disposal observatory , a fully comprehensive regional waste management plan , a regional plan for special waste management , including dangerous waste , and a regional plan to clean up polluted sites .

On DATE the ORG of GPE was appointed deputy commissioner in charge of the waste disposal crisis .

Legislative Decree no . CARDINAL of CARDINAL DATE , which subsequently became Law no . CARDINAL of CARDINAL DATE , authorised the creation , in the municipalities of PERSON ( GPE ) , GPE ( Avellino ) , PERSON ( GPE ) and Sant’Arcangelo PERSON ( ORG ) , of landfill sites with a special derogation from the statutory environmental protection and health and safety standards , and prohibited the creation of new waste disposal sites , in particular in the municipalities of GPE in GPE , GPE , ORG ) , at least until the region had been cleaned up . The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste .

On DATE a third call for tenders was issued . It failed because not enough tenders were received .

On DATE the deputy commissioner drew up a regional plan for urban waste in GPE , in keeping with section CARDINAL of Legislative Decree no . CARDINAL . It comprised a crisis resolution strategy based inter alia on the development of selective waste collection , transparency in the life cycle of waste , the rationalisation and upgrading of the existing structures – in particular CARDINAL of the ORG production centres DATE , the creation of structures for producing compost , and the use of new technologies and methods for the biological treatment of waste .

On DATE the publicly - owned company ORG was put in charge of collecting and transporting organic waste in the municipality of PERSON .

A new crisis situation developed at DATE . QUANTITY of waste were left to pile up for DATE in the streets of GPE and other towns in the province , including those where the applicants lived ( see list appended ) .

On DATE , by order no . CARDINAL/CARDINAL , the Prime Minister appointed a senior police officer deputy commissioner . His task was to open the landfill sites provided for in Legislative Decree no . CARDINAL and to locate new waste storage and disposal sites , with the assistance of the police and the army . The order also invited the municipalities in the region to prepare plans for the selective collection of waste .

Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE ( on “ Extraordinary measures in response to the waste disposal crisis in GPE and subsequent civil protection measures ” ) – appointed the head of the civil emergency planning department to the post of undersecretary of ORG to ORG and made him responsible for managing the crisis until DATE , in place of the deputy commissioner . The undersecretary was authorised to open CARDINAL new landfill sites in the region , including CARDINAL in ORG and ORG , with a special derogation from the statutory environmental protection and health and safety standards .

Legislative Decree no . CARDINAL/CARDINAL also authorised the treatment of certain categories of waste at the ORG - fuelled power plant in GPE DATE against the opinion submitted on DATE by the environmental impact assessment committee DATE and the construction of ORG - fuelled power plants in GPE ( GPE ) and in GPE and GPE .

The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of GPE but provisionally left it to the army to manage the sites .

Paragraphs CARDINAL and CARDINAL of section QUANTITY of the decree classified the sites , the zones , the plants and the headquarters of the waste management services “ strategic national interest zones ” placed under the supervision of the police and the army . The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste .

Section CARDINAL , paragraph CARDINAL , classified preventing , obstructing or hindering waste disposal as the punishable offence of interruption of a public service .

Lastly , LAW instructed the undersecretary of ORG to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in DATE regional plan for urban waste in GPE .

Legislative Decree no . CARDINAL of DATE , which subsequently became PERSON no . CARDINAL of DATE ( on “ Extraordinary measures in response to the waste disposal crisis in GPE and urgent environmental protection provisions ” ) provided for the possibility , in the territories affected by the state of emergency regarding waste disposal , of mayors , provincial presidents , municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect , inter alia , in their duty to plan and organise the collection , transport , processing , elimination and selective sorting of waste . It also provided , in the same territories , for special criminal sanctions to punish , inter alia , ( CARDINAL ) the illegal dumping or burning of waste ; ( CARDINAL ) the unauthorised collection , transport , processing , elimination and sale of waste ; ( CARDINAL ) the creation and management of illegal landfill sites and the mixing of dangerous and non - dangerous waste .

According to the information submitted by the Government , which the applicants did not dispute , CARDINAL landfill sites had already been opened in LOC and Sant’Arcangelo PERSON at DATE , others were on the point of opening in GPE , ORG and PERSON , and preliminary work was under way with a view to opening a site at NORP ( PERSON ) . The finishing touches were being put to the ORG - fuelled power plant in GPE , a call for tenders for the construction of an ORG - fuelled power plant in GPE had been issued and a site for an ORG - fuelled power plant in the province of GPE had been chosen . From DATE to DATE QUANTITY of waste were removed from the streets of the region ’s towns and QUANTITY of ORG were stored . CARDINAL municipalities introduced the selective collection of waste in compliance with order no . CARDINAL/CARDINAL .

On DATE , pursuant to order no . CARDINAL issued by the Prime Minister and following the approval of a selective waste collection programme , a call for tenders for the waste collection service in the municipality of PERSON was won by L’Igiene ORG .

On DATE , by order no . CARDINAL , the Prime Minister urged the provinces of the region to set up semi - public companies to run the waste storage sites , landfills and waste disposal , processing and recycling plants .

In DATE , on an unspecified date , ORG opened a criminal investigation ( ORG no . ORG ) into the waste disposal operations organised on a temporary basis by ORG and ORG during the transition period following the termination of the concession contracts .

DATE . On DATE , at the request of the prosecutor ’s office , the preliminary investigation judge at ORG placed compulsory residence orders on the managing directors of ORG and ORG , several of the ORG executives and employees , the people in charge of the waste sorting centres run by ORG , the manager of the LOC landfill , representatives of the FS Cargo S.p . A. transport company and several officials from the deputy commissioner ’s office .

The accused were charged , inter alia , with conspiring in the illegal trafficking of waste , forgery of official documents , deception , misrepresentation of the facts in the performance of public duties , and organised trafficking of waste .

On an unspecified date in DATE ORG opened a criminal investigation ( ORG no . ORG , nicknamed “ Rompiballe ” ) into the waste disposal operations carried out after DATE . According to the information supplied by the Government , which the applicants did not dispute , the investigation , which was still pending on CARDINAL DATE , concerned a number of offences against the environment and the public authorities and targeted several employees of ORG and other companies in the consortium , as well as officials from the deputy commissioner ’s office .

On DATE the Commission of ORG ( “ the Commission ” ) brought an action for non - compliance against GPE before ORG under LAW establishing ORG ( “ TEC ” ) ( case no . C-CARDINAL/CARDINAL ) . Criticising the existence of a large number of illegal and unsupervised landfill sites in GPE , the Commission alleged that the NORP authorities had failed to honour their obligations under LAW , DATE and DATE of Directive CARDINAL/CARDINAL/EEC on waste , LAW CARDINAL/CARDINAL/EEC on hazardous waste and LAW , letters ( a ) to ( c ) , of Directive CARDINAL/CARDINAL/EC on the landfill of waste .

In its judgment of CARDINAL DATE ORG noted “ the general non - compliance of the tips [ with the ] provisions ” , observing , inter alia , that ORG “ does not dispute the existence ... in GPE of CARDINAL illegal tips containing hazardous waste , which are therefore not subject to any control measures ” .

It concluded that GPE had failed to fulfil its obligations under the provisions cited by ORG , because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and to prohibit the abandonment , dumping or uncontrolled disposal of waste .

On DATE the Commission brought a new action for noncompliance against GPE under LAW ( case no . C-CARDINAL/CARDINAL ) .

In a judgment of CARDINAL DATE ORG , while noting the measures taken by GPE in DATE to tackle the “ waste crisis ” , referred to the existence of a “ structural deficit in terms of the installations necessary for the disposal of the urban waste produced in GPE , as evidenced by the considerable quantities of waste which [ had ] accumulated along the public roads in the region ” .

It held that GPE had “ failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ ensure the ] disposal of its own waste and , in consequence , [ had ] failed to fulfil its obligations under LAW CARDINAL ” . According to ORG , that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites , the presence of criminal activity in the region or the non - performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures . It explained that this last factor could not be considered force majeure , because “ the notion of force majeure GPE ] the non - performance of the act in question to be attributable to circumstances , beyond the control of the party claiming force majeure , which [ were ] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence ” , and that a diligent authority should have taken the necessary precautions either to guard against the contractual non - performance in question or to ensure that , despite those shortcomings , actual construction of the infrastructures necessary for waste disposal would be completed on time . ORG also noted that “ GPE [ did ] not dispute that the waste littering the public roads totalled QUANTITY , adding to QUANTITY of waste awaiting treatment at municipal storage sites ” . Concerning the environmental hazard , ORG reiterated that the accumulation of waste , regard being had in particular to the limited capacity of each region or locality for waste reception , constituted a danger to the environment . It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “ risk to water , air or soil , and to plants or animals ” within the meaning of Article CARDINAL ) of Directive CARDINAL , had caused “ a nuisance through noise or odours ” within the meaning of Article CARDINAL ) , and was likely to affect “ adversely ... the countryside or places of special interest ” within the meaning of Article CARDINAL ) of that Directive . As to the danger to human health , ORG noted that “ that the worrying situation of accumulation of waste along the public roads [ had ] exposed the health of the local inhabitants to certain danger , in breach of Article CARDINAL ) of Directive CARDINAL ” .

DATE . Section CARDINAL of Legislative Decree no . CARDINAL of CARDINAL DATE empowers the administrative courts to determine disputes concerning waste disposal activities in general , including when they are carried out by public authorities or the like . The powers of the administrative courts extend to disputes over rights protected by LAW .

In a claim for damages brought by a group of residents on CARDINAL DATE prior to the entry into force of LAW CARDINAL of Legislative Decree no . CARDINAL – against the city of GPE and the company responsible for waste disposal there , ORG noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section CARDINAL of Law no . CARDINAL of DATE ( instituting the regional administrative courts ) .

By CARDINAL judgments delivered on DATE and DATE , ORG , sitting as a full court , held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection , treatment and elimination of waste .

DATE of Directive CARDINAL/CARDINAL/EEC of ORG , of DATE , on waste , as amended by ORG Directive CARDINAL/CARDINAL/EEC of DATE , reads as follows :

“ Member GPE shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and in particular :

— without risk to water , air , soil and plants and animals ,

— without causing a nuisance through noise or odours ,

— without adversely affecting the countryside or places of special interest .

Member GPE shall also take the necessary measures to prohibit the abandonment , dumping or uncontrolled disposal of waste . ”

The relevant provision of LAW CARDINAL/CARDINAL/EEC on hazardous waste , of CARDINAL DATE , reads as follows :

“ CARDINAL . Member GPE shall take the necessary measures to require that on every site where tipping ( discharge ) of hazardous waste takes place the waste is recorded and identified .

Council Directive CARDINAL/CARDINAL/EC on the landfill of waste , of DATE , contains the following provisions :

Member GPE shall take measures in order that landfills which have been granted a permit , or which are already in operation at the time of transposition of this Directive , may not continue to operate unless ... :

( a ) with a period of DATE after the date laid down in Article CARDINAL ) [ that is , at the latest , by DATE ] , the operator of a landfill shall prepare and present to the competent authorities , for their approval , a conditioning plan for the site including the particulars listed in DATE and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ... ;

( b ) following the presentation of the conditioning plan , the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive . Member GPE shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate ;

( c ) on the basis of the approved site - conditioning plan , the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan . ... ”

“ CARDINAL . Member GPE shall bring into force the laws , regulations and administrative provisions necessary to comply with this Directive not DATE after its entry into force [ that is , by DATE ] . They shall forthwith inform the Commission thereof .

The relevant provisions of Directive CARDINAL of ORG and of ORG on waste read as follows :

“ CARDINAL . Member GPE shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment , and in particular :

( a ) without risk to water , air or soil , or to plants or animals ;

( b ) without causing a nuisance through noise or odours ;

( c ) without adversely affecting the countryside or places of special interest .

Member GPE shall take the necessary measures to prohibit the abandonment , dumping or uncontrolled disposal of waste .

Member GPE shall take appropriate measures , in cooperation with other Member GPE where this is necessary or advisable , to establish an integrated and adequate network of disposal installations , taking account of the best available technology not involving excessive costs . The network must enable the ORG as a whole to become self - sufficient in waste disposal and the Member GPE to move towards that aim individually , taking into account geographical circumstances or the need for specialised installations for certain types of waste .

The network referred to in paragraph CARDINAL must enable waste to be disposed of in CARDINAL of the nearest appropriate installations , by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health . ”

By virtue of the precautionary principle enshrined in LAW establishing ORG , the lack of certainty regarding the available scientific and technical data can not justify GPE delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment . The ORG ’s case - law has applied this principle mainly in cases concerning health , whereas the Treaty refers to the principle only in connection with the ORG ’s environmental policy . According to the case - law of ORG of ORG ( “ ECJ ” ) , “ where there is uncertainty as to the existence or extent of risks to human health , the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent ” ( ECJ , CARDINAL DATE , ORG , case C-CARDINAL/CARDINAL , ORG , and ECJ , CARDINAL DATE , ORG , C-CARDINAL/CARDINAL , ORG ) .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant and his late wife PERSON , born in DATE , had lived together since DATE and married in DATE . DATE , PERSON had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep . She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff . She further suffered from spasms . According to the medical assessment , she had a life expectancy of DATE . She wished to end what was , in her view , an undignified life by committing suicide with the applicant ’s help . The couple contacted the NORP assisted - suicide organisation , GPE , for assistance .

In DATE PERSON requested ORG ( NORP für NORP und Medizinprodukte – “ the ORG ” ) to grant her authorisation to obtain QUANTITY of pentobarbital of sodium , a lethal dose of medication that would enable her to commit suicide at her home in GPE .

On DATE ORG refused to grant her that authorisation , relying on section CARDINAL ) ( CARDINAL ) of GPE ( Betäubungsmittelgesetz – see “ Relevant domestic law ” below ) . It found that her wish to commit suicide was diametrically opposed to the purpose of LAW , which was aimed at securing the necessary medical care for the individuals concerned . Authorisation could therefore only be granted for life - supporting or life - sustaining purposes and not for the purpose of helping a person to end his or her life .

On DATE the applicant and his wife lodged an administrative appeal with ORG .

NORP In DATE the applicant and his wife , who had to be transported lying on her back on a stretcher , travelled for TIME over a distance of QUANTITY from GPE to GPE in GPE . On DATE PERSON committed suicide there , assisted by GPE .

On DATE ORG confirmed its earlier decision . In addition , it expressed doubts as to whether a ORG - approved right of an individual to commit suicide could be derived from DATE . In any event , LAW could not be interpreted as imposing an obligation on the ORG to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication . A right to commit suicide would be inconsistent with the higher - ranking principle enshrined in LAW of LAW ( see “ Relevant domestic law ” below ) , which laid down the “ comprehensive ” obligation of the ORG to protect life , inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide .

Finally , ORG “ informed ” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection ( Rechtsschutzbedürfnis ) . In particular , the applicant could not improve his own position through an appeal , as his legal position had not been the subject of the administrative proceedings .

On DATE the applicant lodged an action for a declaration that the decision of ORG had been unlawful ( PERSON ) and that it thus had a duty to grant his wife the requested authorisation .

On DATE ORG ( Verwaltungsgericht ) declared the applicant ’s action inadmissible . It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights . ORG refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by LAW ( Grundgesetz – see “ Relevant domestic law ” below ) . Any other interpretation would lead to the assumption that each infringement of the rights of CARDINAL spouse would automatically also be an infringement of the rights of the other spouse . That assumption would water down the separate legal personality of each spouse , which was clearly not the purpose of LAW . Furthermore , the contested decisions did not interfere with his own right to respect for family life under LAW , as they did not affect the way in which the applicant and his wife lived together .

NORP Moreover , the applicant could not rely on his wife ’s rights , as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non - transferable nature . Even assuming that there had been a violation of his late wife ’s human dignity by ORG refusal , according to ORG case - law ( see “ Relevant domestic law and practice ” below ) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant ’s wife ’s image in the eyes of posterity .

Finally , the court held that in any event the refusal of ORG to grant the applicant ’s wife the requested authorisation had been lawful and in compliance with LAW . In particular , any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others . Referring to the ORG ’s judgment in the case of Pretty ( see Pretty v. GPE , no . CARDINAL , § DATE , ECHR CARDINALIII ) , the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse . Therefore , the fact that the provisions of LAW permitted exceptions only for what was medically needed could not be considered disproportionate .

On DATE the North - Rhine Westphalia Administrative Court of Appeal ( Oberverwaltungsgericht ) dismissed the applicant ’s request for leave to appeal . It found , in particular , that the right to protection of marriage and family life under LAW CARDINAL § CARDINAL of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of CARDINAL of them . Moreover , it considered that the decisions of ORG had not interfered with the applicant ’s right to respect for private life within the meaning of Article CARDINAL § CARDINAL of the Convention . Even if the right to die had existed , its very personal character would not allow third persons to infer from LAW a right to facilitate another person ’s suicide . Finally , the applicant could not rely on DATE as he had no arguable claim to be the victim of a violation of a right guaranteed under LAW .

On DATE ORG ( Bundesverfassungsgericht , no . CARDINAL BvR CARDINAL/CARDINAL ) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity . It held that the posthumous protection of human dignity extended only to violations of the general right to respect , which was intrinsic to all human beings , and of the moral , personal and social value which a person had acquired throughout his or her own life . However , such violations were not at stake in respect of the applicant ’s wife . Furthermore , the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife . In particular , it was not possible to lodge a constitutional complaint to assert another person ’s human dignity or other non - transferable rights . A legal successor could only introduce a constitutional complaint in cases , which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor ’s own interests .

Article CARDINAL § CARDINAL of LAW provides that marriage and family enjoy the special protection of the ORG .

Under LAW of LAW every person has the right to life and physical integrity .

ORG has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism , defamation , mockery or other forms of disparagement ( see decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ) .

LAW governs the control of narcotic drugs . CARDINAL annexes to the LAW enumerate the substances , which are considered as drugs , including pentobarbital of sodium in GPE .

According to section CARDINAL ( CARDINAL ) no . CARDINAL ( a ) of LAW it is permissible to obtain the substances listed in GPE if they are prescribed by a medical practitioner . In all other cases , section CARDINAL(CARDINAL)(CARDINAL ) of the LAW provides that the cultivation , manufacture , import , export , acquisition , trade and sale of drugs are subject to authorisation from ORG .

In accordance with section CARDINAL ) of the LAW , no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of LAW , namely , to secure the necessary medical care of the population , to eliminate drug abuse and to prevent drug addiction .

Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified ( section CARDINAL ( CARDINAL)(CARDINAL ) of LAW ) .

Section CARDINAL of the Criminal Code reads as follows :

“ ( CARDINAL ) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from DATE .

( CARDINAL ) Attempts shall be punishable ”

Committing suicide autonomously is exempt from punishment under NORP criminal law . It follows that the act of assisting an autonomous suicide does not fall within the ambit of section CARDINAL of LAW and is exempt from punishment . However , a person can be held criminally responsible under LAW for having provided a lethal drug to an individual wishing to end his or her life .

According to the case - law of ORG ( compare judgment of DATE , CARDINAL StR DATE ) the discontinuation of a lifeprolonging treatment of a terminally ill patient with the patient ’s consent does not engage criminal responsibility . This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device ( ORG , judgment of DATE , CARDINAL StR CARDINAL/CARDINAL ) .

NORP The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities . The codes are largely similar to LAW for ORG , section CARDINAL of which provides as follows :

“ ( CARDINAL ) Doctors may DATE prioritising the will of the patient – refrain from life - prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person .

( CARDINAL ) Doctors may not actively curtail the life of the dying person . They may not put their own interests , or the interests of third parties , above the well - being of the patient . ”

Contraventions against LAW are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine .

In connection with the demand for doctor - assisted suicide , the CARDINALth German Medical Assembly of DATE resolved that doctors should provide assistance in and during the process of dying , but should not help patients to die , as the involvement of a doctor in suicide would contravene medical ethics .

Recommendation no . DATE ( DATE ) of ORG , insofar as relevant , reads as follows :

“ CARDINAL . The assembly therefore recommends that ORG encourage the member states of ORG to respect and protect the dignity of terminally ill and dying persons in all respects :

a. by recognising and protecting a terminally ill or dying person ’s rights to comprehensive palliative care , while taking the necessary measures :

b. by protecting the terminally ill or dying person ’s right to self - determination , while taking the necessary measures :

iii . to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person . Furthermore , safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure ;

iv . to ensure that a currently incapacitated terminally ill or dying person ’s advance directive or living will refusing special medical treatments is observed ...

v. to ensure DATE notwithstanding the physician ’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account , provided they do not violate human dignity ;

vi . to ensure that in situations where an advance directive of living will does not exist , the patient ’s right to life is not infringed upon . A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined .

c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person ’s while :

( i ) recognising that the right to life , especially with regard to a terminally ill or dying person , is guaranteed by the member states , in accordance with LAW which states that “ no one shall be deprived of his life intentionally ” ;

( ii ) recognising that a terminally ill or dying person ’s wish to die never constitutes any legal claim to die at the hand of another person ;

( iii ) recognising that a terminally ill or dying person ’s wish to die can not of itself constitute a legal justification to carry out actions intended to bring about death . ”

Comparative research in respect of PERCENT ORG GPE shows that in CARDINAL countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the Former GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) any form of assistance to suicide is strictly prohibited and criminalised by law . In GPE and GPE , assistance to suicide is not a criminal offence ; however , NORP medical practitioners are not entitled to prescribe a drug in order to facilitate suicide . Conversely , CARDINAL member GPE ( GPE , GPE , the GPE and GPE ) allow medical practitioners to prescribe lethal drugs , subject to specific safeguards ( compare PERSON v. GPE , no . CARDINAL , § § DATE and DATE , DATE ) .