Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 13;Violation of Art. 2 concerning the effectiveness of the investigation;Not necessary to examine Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . Her late partner , PERSON , born in DATE , was a NORP national .

Mr Sliti had been committed to a psychiatric hospital several times both in GPE and in GPE .

Mr Sliti had been sentenced to CARDINAL years’ imprisonment and permanently excluded from NORP territory by a judgment of ORG of DATE . The order permanently excluding him from NORP territory was not enforced immediately after he had served his prison sentence .

In DATE PERSON set fire to the applicant ’s house and threatened to throw himself out of the window with their DATE son . He was sentenced to DATE imprisonment for this by a judgment of ORG of DATE .

After being compulsorily detained in ORG in GPE ( ORG PERSON – “ the FAC ” ) DATE and DATE ( psychiatric department ) , PERSON had later been transferred to ORG to serve the above - mentioned sentence .

A psychiatrist ’s report ordered by the President of the GPE tribunal de grande instance , dated DATE and prepared by Dr Goujon of the ORG , concluded , among other things , that PERSON should undergo “ long - term psychiatric treatment , or even [ hospitalisation ] in a psychiatric ward ” .

There was also a letter ( dated DATE ) from Dr ORG , a psychiatrist at the FAC , saying that PERSON “ depressive and anxious ” condition had made it necessary to keep him in hospital for DATE in DATE , his “ suicide threats suggest[ing ] that he might harm himself ” .

A medical certificate dated DATE and issued by the same doctor contained the following observations :

“ ... [ Mr Sliti ] , whose condition is currently stable ... is being treated with a combination of anti - depressants , tranquillizers and neuroleptics . It is in [ his ] best interests to continue receiving psychiatric care once he is released especially [ as he ] has himself requested psychiatric support . CARDINAL of the practitioners at ORG will continue to act as his responsible medical officer ” .

The medical treatment prescribed to PERSON before his placement in administrative detention was composed of the following anti - depressants , neuroleptics and tranquillizers : Lysanxia - DATE mg ( CARDINAL tablets every CARDINAL hours ) , Deroxat - CARDINAL mg ( CARDINAL tablet every CARDINAL hours ) , Phenergan ( CARDINAL tablets every TIME ) and GPE mg ( CARDINAL tablets every CARDINAL hours ) .

On DATE the Bouches - du - Rhône Prefect decided to enforce the order that had been made on DATE permanently excluding Mr Sliti from GPE and ordered him to be deported to GPE . To that end he ordered PERSON to be held in ORG until DATE .

PERSON was still receiving medical treatment , as evidenced by a prescription made out by Dr NORP on DATE .

At ORG the police took responsibility for fetching the medicine prescribed to PERSON and giving it to him .

NORP In an order of CARDINAL DATE the President of the GPE tribunal de grande instance extended the detention order in ORG to TIME on CARDINAL DATE pending issue of a cross - border pass . An appeal lodged on DATE was dismissed on CARDINAL DATE by an order of the President of ORG on the grounds that the procedure had been lawful and that “ PERSON [ had ] been removed DATE [ so that ] the administrative detention measure had been lifted and the appeal therefore [ had to be ] declared devoid of purpose ” .

In TIME of CARDINAL DATE PERSON twice refused to take his medicine . He was not examined by a doctor despite DATE according to the Government ’s memorial – having been in a state of extreme agitation . At TIME he was taken ill and collapsed . After being alerted by other detainees , police officers on duty at ORG quickly arrived on the LOC and turned him onto his side in the recovery position before alerting the ORG firefighters ( marins - pompiers ) . At TIME the ORG firefighters doctor gave him first aid . He observed that he had fallen into a coma and administered medical treatment on the LOC . A TIME was taken to ORG in GPE where he was admitted to the intensive care unit at TIME He died there at TIME

On DATE an inquest was commenced in accordance with LAW CCP ) “ to determine the causes of the death ” of PERSON .

On DATE the investigating judge sent instructions to ORG to pursue the inquiry and , to that end “ take evidence from any relevant witnesses capable of providing information , make all necessary findings , investigations , lawful searches wherever necessary , and seize any items necessary for establishing the truth ” and “ send ... any necessary requests to any public authorities or private bodies , any civil servants and public or ministerial officers , and more generally any persons capable of providing information or documents that will assist in establishing the truth ” .

An autopsy was carried out on DATE . The autopsy report , of the same date , made the following conclusions :

“ The examination and autopsy of Mr PERSON ’s body show :

– signs of resuscitation .

The mark observed in the left abdominal region may have been left by cardiopuncture . This needs to be confirmed by an anatomicopathological examination of the heart and an examination of the medical file .

– no suspicious signs suggesting violence .

– diffused polyvisceral hyperaemia .

– the presence of abundant spume in the trachea and bronchi and of macroscopic heart transformations that may indicate acute cardiorespiratory failure , subject to confirmation by expert anatomicopathological and toxicological opinion ” .

On DATE , on the basis of the above - mentioned instructions , a senior police officer heard evidence from CARDINAL police officers who had been on duty at ORG during TIME of CARDINAL DATE . On DATE he heard evidence from the deceased ’s uncle and on DATE the ORG firefighters doctor who had treated PERSON after he had been taken ill .

On DATE another police officer heard evidence from CARDINAL persons who had been detained at ORG at the time of the events ( Mr PERSON and Mr GPE ) and were eyewitnesses to them . The records of these interviews show that about CARDINAL people had been in the vicinity of the place where PERSON had been taken ill and had been present during the events . They also show that PERSON had already been in a state of agitation DATE before the events in question occurred .

Further medical samples were taken from the victim ’s body on DATE .

An anatomicopathological examination of swabs taken from Mr ORG ’s body was carried out on DATE by PERSON , who had been appointed for the purpose by the investigating judge . He made the following conclusions in his report :

“ Anatomicopathological examination of the autopsy swabs ( treated with formalin ) showing an acute pulmonary oedema , the cause of PERSON death .

The aetiology of this acute pulmonary oedema must be compared with the facts in the expert toxicological report .

The other organs are histologically normal . ”

The investigating judge ordered a toxicologist ’s report ( orders of DATE and DATE ) and appointed PERSON to prepare it . She carried out her examination on DATE and made the following conclusions in her report , dated DATE :

“ ... the toxics found all result from medication ; they are present in various pathologies ( anxiety , pain , convulsions ... ) .

They do not appear likely , either inherently or by their association or level in the blood ( at the time of death , or even when the first disorders were felt ) to have been the direct cause of the death or to have contributed to its occurrence . ”

The applicant unsuccessfully requested access to the autopsy and toxicology reports . She was never interviewed by the investigating judge and was excluded from the investigation .

On DATE she asked the investigating judge to send the investigation file to the public prosecutor for a supplementary application to be made extending the investigation to include a count of manslaughter . As the investigating judge did not reply within DATE , on DATE she addressed her request to the President of ORG of the Aix - en - Provence Court of Appeal under LAW ORG . Her request was declared inadmissible by an order of CARDINAL DATE on the ground , inter alia , that “ in the proceedings to investigate the causes of death , PERSON does not have standing to request investigative measures ” .

In orders of CARDINAL and DATE the investigating judge appointed Doctor PERSON and Doctor PERSON to carry out the following instructions :

“ Consult PERSON ’s medical file at ORG and the attached copies of the procedural documents .

( i ) Determine the cause of PERSON death and establish , inter alia , whether the treatment administered was in conformity with current medical knowledge .

( ii ) Describe the medical infrastructure of ORG and state whether it complies with the laws and regulations in force .

In the event that you find deficiencies or anomalies , give details of these in your report and indicate the persons or persons who may be deemed responsible from a medical point of view .

You may question anyone whose evidence you consider helpful and request from any public or private establishment any documents that you consider it necessary to consult .

You are asked to make any observations that may assist in establishing the truth . ”

The report , dated DATE , described the medical infrastructure of ORG as it was on DATE . It stated that “ prior to DATE , no medical structure existed [ ; ] medicines were distributed to detainees by police officers ” . Regarding the cause of death , it made the following observations among others :

The various evidence suggests that the treatment given to Mr Sliti was administered TIME after he was taken ill .

The description of the clinical disorders presented by PERSON corresponds to generalised and recurring epileptic fits , thus an epileptic condition .

This epileptic condition can be regarded as inaugural in so far as PERSON had no known epileptic history .

It is possible that the refusal to take his medicine ( we are thinking in particular of the Benzodiazepines : CARDINAL mg of ORG ) contributed to the onset of this epileptic condition .

Regarding the results of the toxicological analysis , no toxic substance other than a medicinal one has been found . Moreover , according to the toxicology report these medicinal substances do not appear , inherently , by their association or level in the blood , to have caused the death or to have contributed to its occurrence .

The treatment administered by the ORG firefighters doctor at FAC is that habitually given in cases of epilepsy .

The treatment included the prescription of anticonvulsive drugs and then , when these proved ineffective , barbiturates .

A tube was inserted into the trachea .

The patient was given medical treatment at FAC for DATE before being taken to ORG in GPE at TIME

After being treated with barbiturates he stopped having convulsions , whereupon it was possible to transfer him .

According to PERSON , there was no sign of heart failure . The treatment administered first by the ORG firefighters doctor and then in the multi - purpose intensive care unit at ORG is that habitually proposed in this type of medical emergency .

Despite being resuscitated very quickly and efficiently by means of intubation , artificial respiration , drip , external heart massage , with alkalinisation , Mr Sliti suffered a cardiac arrest resulting in his death at QUANTITY

The treatment administered at FAC on DATE and the immediate intervention of the officers at TIME , the rapid intervention of the ORG [ ORG ] owing to the efficiency of the police officers present on the premises [ , ] at TIME the provision of emergency medical treatment ( full clinical examination , an electrocardiogram , insertion of a catheter , with the use of medication appropriate to an epileptic condition , insertion of tube in trachea ) , the conditions of transfer to ORG in GPE , the treatment administered by the intensive care unit at ORG were in conformity with current medical knowledge .

The analysis of the toxicologist ’s report made by PERSON on DATE does not allow identification of any toxic substance that might have caused the death .

The autopsy of PERSON ( sic ) PERSON ’s body showed both signs of resuscitation , and in particular cardiopuncture , and the presence of large quantities of spume in the trachea of the bronchi and macroscopic heart transformations suggestive of acute cardiorespiratory failure .

Lastly , the anatomicopathological examination performed by PERSON on DATE showed an acute pulmonary oedema as the cause of PERSON death .

Conclusion :

The cause of PERSON ( sic ) death was a cardiac arrest following an acute pulmonary oedema ( acute failure of left auricle ) after an inaugural epileptic condition ( possibly induced by PERSON refusal to take his usual treatment ) .

The treatment administered was done so in accordance with current medical knowledge ( at FAC by the ORG and then at ORG ) ” .

On DATE the public prosecutor discontinued the proceedings “ in the light of the conclusions of the medical experts ” and “ the lack of any evidence of a crime or major offence as the cause of death ” .

On DATE the applicant , acting on behalf of herself and her children , applied to the Minister of the Interior for compensation . She based her claim on the documents produced by the Government in the proceedings before the ORG , stating that she had not previously had access to them . In her submission , they showed that “ the death of PERSON [ was ] the consequence of a serious breakdown in the operation of the service at FAC ” . She complained , in particular , of insufficient medical facilities and staff at the material time .

Article CARDINAL of the ORG provides :

“ On discovery of a dead body , regardless of whether the deceased suffered a violent death , but wherever the cause of death is unknown or suspicious , the senior police officer who is advised thereof shall immediately notify the public prosecutor , promptly visit the place of discovery and make initial observations .

The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death occurred . He may , however , delegate those tasks to a senior police officer of his choice .

Except where their names appear in one of the lists provided for in LAW , persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience .

The public prosecutor may also call for an inquest to determine the causes of death . ”

LAW ORG , which was added to LAW no . DATE of DATE ( ORG of DATE ) , is worded as follows :

The members of the family or the close relatives of the deceased or missing person may apply to join the criminal proceedings as a civil party seeking damages . However , if the missing person is found , the latter ’s address and other matters that would lead to the direct or indirect disclosure of this address may not be revealed to the civil party without the consent of the party concerned if he is an adult or with the consent of the investigating judge in the case of minors or of adults under a guardianship order . ”

Article CARDINAL of the ORG provides :

“ Anyone who claims to have suffered damage as a result of a serious crime or serious offence may , by lodging a criminal complaint , join the criminal proceedings as a civil party on application to the relevant investigating judge . ”

Part of the report is devoted to “ administrative detention centres for foreign nationals ” . Paragraph CARDINAL is worded as follows :

( Unofficial translation )

“ ... , the holding conditions at ORG left a lot to be desired . The material conditions were mediocre and the foreign nationals were given no opportunity to take any walks outside throughout the entire duration of their stay . Furthermore , there was no provision for any specific medical attention or nursing cover . In addition to the difficulties in seeing a doctor , the situation inevitably gave rise to unacceptable consequences from a medical - ethics standpoint . Lastly , the delegation found that the detainees were insufficiently informed about their rights and obligations and that the procedure for placing detainees in isolation needed to be clarified .

The delegation expressed its serious concerns about ORG at the end - of - visit interview . Subsequently , the NORP authorities informed the ORG of a series of measures designed to improve health and safety at ORG and the medical care of detainees ; measures were also taken with regard to informing detainees about their rights and the applicable procedure in the event of placing a detainee in isolation . That being said , the NORP authorities indicated that it was undeniable that the building was ill - adapted to the needs of the centre .

The ORG expressed its satisfaction with the speed at which the authorities reacted to the delegation ’s observations . The ORG pointed out , however , that it was unacceptable for detainees to be deprived of any opportunity to take exercise outside during prolonged periods and that a day nurse should be present inside the centre . It accordingly recommended that the NORP authorities take appropriate measures immediately in those CARDINAL respects . More generally , the ORG asked the NORP authorities to reconsider setting up a new detention centre in GPE ” .

The relevant paragraphs of this report are the following :

( Unofficial translation )

“ CARDINAL . With the exception of ORG , access to a doctor and medical care in the places visited in DATE could be deemed satisfactory . In particular , in all these establishments access to a doctor and medicines was free of charge for the foreign nationals concerned .

As in DATE , the situation at ORG was still unacceptable , however , from the medical - ethics and – it has to be added – human standpoint . In DATE the organisation ORG terminated ORG for ORG . The organisation ORG , for its part , agreed to visit the ORG only in exceptional circumstances . The delegation heard widespread complaints from detainees who , on asking to see a doctor , were told by police officers that they had to be able to pay . Some also complained that their medicine supplies ( for example , maintenance or medicine for asthma sufferers ) were about to run out .

In addition , since the ad hoc agreement has still not been signed , no nurse was present . Nor did the centre have a single first - aid kit ( not even dressings ) and medicines , kept in a cardboard box , were distributed by surveillance staff in accordance with the needs expressed by the detainees .

In response to the delegation ’s immediate observation , the NORP authorities have informed the ORG that an agreement on the provision of health services was signed on DATE between the FAC and the GPE public hospitals authority . From DATE there will be nursing cover at the centre DATE a week and a doctor in attendance CARDINAL time . The ORG wishes to express its satisfaction with the measures taken . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

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

In DATE the applicant instituted proceedings in the Poltava ORG against his former employer – the Poltava Regional Fire Safety Department – claiming payment arrears of a DATE subsistence allowance for DATE .

On DATE the court found in part for the applicant and awarded him CARDINAL NORP hryvnias ( ORG ) .

On DATE the same court rectified its judgment of DATE and increased the amount awarded to ORG .

On DATE the ORG of Appeal quashed the decisions of DATE and DATE and rejected the applicant 's claims . The appellate court based its findings on the fact that LAW had not foreseen expenditure for the payments under LAW , and therefore held that the applicant had no entitlement to such payments during the impugned period under LAW .

On DATE ORG of GPE rejected a cassation appeal lodged by the applicant against the decision of DATE .

The relevant provision of the LAW reads as follows :

Article CARDINAL

“ The budgetary system of GPE is built on the principles of just and impartial distribution of social wealth among citizens and territorial communities .

All expenditure by the ORG for social purposes , and the amount and aims thereof , shall be determined by LAW of GPE .

The ORG aspires to achieve a balanced budget for GPE .

Regular reports on revenue and expenditure of ORG shall be made public . ”

Section CARDINAL of the LAW provides , in so far as relevant , as follows :

“ ... LAW of GPE shall not make ... changes to existing legislation . If necessary , changes or additions are made initially to the relevant laws ...

... If the draft LAW of GPE does not provide full funding within available resources of the costs set forth in NORP legislation , PERSON of GPE shall enact LAW of GPE without amending current legislation . Such legislation is valid during DATE only to the extent that it does not contradict LAW of GPE .

If PERSON has not approved the full costs of salaries and additional payments , the corresponding number of staff of the institutions financed from the budget shall be made redundant . ”

The relevant part of the Decree reads as follows :

“ In order to regulate the financial subsistence of soldiers and officers of the ORG , I decide :

To pay :

material assistance in the amount of a DATE salary [ payable ] once DATE to soldiers and officers of the Interior ... ”

The Decree was abolished by Presidential Decree no . DATE of DATE .


The applicant was born in DATE and lives in GPE .

In DATE the applicant instituted civil proceedings in ORG ( NORP міський суд ORG області ) against his former employer , the ORG PERSON “ PERSON ” ( “ the Company ” ; ДВАТ « GPE гірничо-монтажне управління GPE ) for various payments .

On DATE and DATE the court awarded the applicant a total of CARDINAL NORP hryvnyas ( ORG ) .

On DATE ORG ( ORG виконавчої служби Червоноградського міського управління юстиції GPE області ) initiated the enforcement proceedings for collecting the above amount .

On DATE the applicant received ORG DATE .

The remaining judgments debt is outstanding on account of the ORG 's lack of funds and the holding of its assets in tax lien .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


András Sajó;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

“ ... the patient was in pain and unresponsive , had severe lung and circulatory insufficiency , severe and widespread decubitus ulcers and was in sepsis ... that TIME , at TIME , the nurse on duty , PERSON , came to my office and informed me that the patient had probably died . I immediately went to the patient ’s room . When I entered the room I saw that the patient ’s pupils were bilaterally fixed and dilated . [ Her ] respiration had ceased and her heart monitor showed a flat line . As you know there is no indication to attempt resuscitation on a patient who has suffered multiple organ failure , brain death and cardiac asystole . Therefore there was no attempt to resuscitate the patient . The patient ’s relative ’s allegations ... are not true . It is against universal ethical considerations to reprimand a near - death patient ’s relative . I do not accept the accusations against me . ”

“ ... after PERSON performed the first medical interventions I took over responsibility for the patient . I changed the dressings twice a day . Later on I performed , after consulting with PERSON , a debridement on the region which was infected . Since the procedure is done on dead tissue it is impossible for the patient to shout out in pain ... I took a sample from the infected wound . ... PERSON told me that the micro - organisms on the wound were susceptible to [ the drug ] imipenem and asked if it would be acceptable to me if they administered it . I told them that if the patient ’s clinical condition permitted , they could use it . Contrary to the allegations , I did not give either direct or indirect orders for the administration of imipenem since I was not the doctor primarily responsible for the deceased ... ”

“ The patient was admitted to the intensive care unit on DATE .... The patient ’s general condition was extremely bad . She was unconscious , dehydrated ... She was fitted with a urine catheter to relieve her bladder ... We consulted with the cardiology department ... The patient had decubitus ulcers covered with necrotic material . We consulted with the plastic - surgery department . Dr GPE examined the patient . A debridement was performed on the ulcers and a sample was taken for examination . The patient was treated with cephalosporin - type antibiotics . In DATE , according to the results of the samples , the wound was susceptible to imipenem . Accordingly , on the recommendation of PERSON , the treatment with cephalosporin - type antibiotics was stopped and the patient was treated with TienamCARDINAL ... Nothing was said between the patient ’s daughter and me concerning the patient ’s allergy to penicillin and beta - lactamase inhibitors . I believe that the patient died because her general health was terrible and she was at the terminal stage , rather than from an allergy . ”

In her testimony nurse GPE stated , inter alia , the following :

“ ... I periodically monitored the patient until her death on DATE . During this time there was no significant improvement in her health . I was on duty the night she died . Dr PERSON was the doctor on duty . At TIME ordered the infusion of Tienam-CARDINAL to the patient . I complied with this order at TIME I did not see any negative changes in the patient ’s general state when I entered the room later on to check on the patient ’s blood pressure . At TIME , I saw [ the applicant ] leaving the patient ’s room and entering Dr PERSON ’s room . They both entered the patient ’s room . When I tried to enter the room [ the applicant ] shouted that I had killed the patient with the injection . Dr PERSON tried to calm [ the applicant ] down . Despite our efforts she did not let us take the deceased out of the room until TIME ... I did not see any negative reaction towards [ the applicant ] and the patient on the part of Dr M.K. ... I did not see or receive any order from PERSON ... ”

“ I called the gastroenterology clinic and they recommended Dr PERSON I called him , told him that the doctor who treated my mother at home had recommended nasogastric intubation and asked him what reference number I needed to buy . He told me that if I brought in my mother they would insert the tube and treat her ... I believe that the patient was administered medicines that she was allergic to during her treatment . My mother was allergic to beta - lactamase and penicillin - type antibiotics . I did not say this before because I was not asked . I was not in the patient ’s room during the treatment . A plastic surgeon outside ( whose name I can not remember at the moment – his first name was probably PERSON ) told me that the decubitus ulcers on her back were not infected and that they would heal with bandages . I think that they became infected after the debridement . If they had not given [ the ] patient antibiotics for the infection , she would not have died within TIME after the injection . The night my mother died , I told PERSON that my mother was not well . However , he refused to intervene and told me off . Dr PERSON is a witness to this action . When PERSON PERSON returned from my mother ’s room he told me that my mother had died . The wound had been bandaged by PERSON ”

“ I do not want a lawyer . The deceased ’s daughter called me and said that her mother was very ill and asked me to help her . ... I told her to urgently bring her mother to the hospital . When the patient arrived on a stretcher , she was unconscious , extremely dehydrated and weak . Her stomach was swollen and she had widespread decubitus ulcers . She was taken into intensive care . The patient was treated with all the necessary treatments available in modern science by our team ( gastroenterology , cardiology , neurology and plastic surgery ) . When the patient arrived , she was near death . Despite our swift and continuous treatment her general condition did not change . Unfortunately , the predestined end prevailed . ”

“ Prof . PERSON asked me to see the patient and I saw the patient DATE . The patient ’s general heath was very bad . She had infected wounds in the lower back . The wounds were in a bad condition . I ordered a debridement , which was performed by PERSON Afterwards I examined the patient CARDINAL times . It was the plastic - surgery department which monitored the state of the wounds . It was recommended that the gastroenterology department should administer antibiotics to the patient . We made every effort to cure the patient . We are also sad at the outcome ; however , there is no cure for death . The patient had not been taken good care of for DATE ( thin , malnutrition , barely conscious ) . ”

In his testimony the applicant ’s witness , Mr DATE , stated the following :

“ The deceased and her daughter are relatives of my wife . I have not seen the deceased for DATE . In any event , I only saw her twice in my life . I learned of her death when her daughter came to visit us in GPE , a long time after her death . I did not see the deceased during her illness . I do not know what kind of treatment was given to her in the hospital . I have no other knowledge apart from what her daughter told me . She told me that her mother had not been treated well in the hospital and that she had died as a result of the injections administered to her despite her allergy to antibiotics . I did n’t believe the things she said . I have nothing else to say . ”

The relevant domestic law applicable at the time of the events is as follows .

LAW provides that everyone has the right to life .

The relevant provision of LAW read as follows :

“ Anyone who , through carelessness , negligence or inexperience in his profession or craft , or through non - compliance with laws , orders or instructions , causes the death of another shall be liable to a term of imprisonment of DATE and to a fine of CARDINAL . ”


The applicants are NORP citizens . The first applicant was born in DATE . He died of cancer on DATE . The second applicant , born in DATE , was the first applicant 's former wife who subsequently returned to live with him . The third applicant is the daughter of the first and second applicants . The applicants are represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

A.

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

On DATE the second applicant , who is a teacher , requested the PERSON educational authorities to issue her a licence to run an adoption agency ( " agencja adopcyjna " ) . In reply , she was informed by an undated letter that centres dealing with adoption and custody matters could only be run by associations governed by LAW , whose statutory purposes so provided .

On DATE ORG charged the first applicant with trading in children , an offence provided for by LAW of DATE , applicable at the material time . On DATE the first applicant was arrested . On DATE the applicant was examined by a psychiatrist from ORG of ORG , since at the time of his arrest he had submitted that he had been suffering from depression for DATE . The medical opinion stated that , having regard to the first applicant ’s state of mental health , he should be detained in the psychiatric ward of FAC .

On DATE ORG remanded him in custody for DATE on suspicion of trading in children . On DATE the prosecutor asked FAC to place the applicant in the psychiatric ward .

On DATE the applicant was examined by a physician from the detention centre hospital . The medical examination did not show any pathological changes in the applicant ’s thorax , skeleton , nervous system , urinary system or abdominal cavity . The physician recommended that the applicant should be seen by a psychiatrist and a specialist in internal medicine and should have an X - ray . An X - ray taken afterwards showed a shadow at the top of his right lung . On DATE therefore the X - ray was repeated . It showed a shadow of QUANTITY in his lung .

On DATE written grounds of a decision of DATE were served on the first applicant . The prosecutor considered that there was a strong suspicion that in DATE he had contacted PERSON and PERSON and , taking advantage of their difficult financial situation , convinced them to give for adoption their child which was soon to be born . At DATE , upon discharge of the mother from the hospital where the child had been born , he had placed it with third parties . The biological parents had not had any further contact with the child . DATE before a court hearing in the adoption proceedings , the first applicant had organised a meeting at the law firm of ORG attended by PERSON and PERSON and an NORP couple , the GPE . On DATE of the hearing and after a favourable decision as to adoption by PERSON and PERSON had been rendered by the court , the first applicant had given MONEY ( PLZ ) to the ORG . and had retained PLZ CARDINAL for himself , apparently as reimbursement of costs which he had borne for the maintenance of the child . It had further been established that in DATE the first applicant had had contacts with ORG , who had been pregnant at that time . After her child had been born , he had taken it from ORG upon her discharge from hospital and had placed the child with third parties . The mother had not had any further contact with the child . From DATE to DATE the first applicant had paid to ORG CARDINAL,CARDINAL,CARDINAL in DATE instalments of PLZ CARDINAL,CARDINAL,CARDINAL . The child had apparently later been adopted by another NORP family .

On DATE and DATE , the prosecutor consulted doctors from the detention centre hospital in order to establish whether the applicant could take part in the criminal proceedings conducted against him . They informed him that the applicant ’s health did not prevent him from participating in the proceedings .

On DATE the Office of ORG registered the first applicant 's company . In accordance with the terms of the registration certificate he was allowed to run a legal advice company , providing , inter alia , legal counselling concerning adoption proceedings and " cooperation with agencies dealing with adoption matters " ( " współpraca z agencjami adopcyjnymi " ) .

On DATE the first applicant was examined by a lung specialist who ordered that he should undergo a new X - ray or tomographical examination , and bronchoscopy . On DATE the detention centre established that the applicant could have a bronchoscopy at the Jan Paweł II Hospital in GPE on DATE .

On DATE ORG had a phone conversation with doctors from the detention centre in order to establish whether the applicant could participate in the criminal proceedings . He was informed that the applicant was undergoing diagnostic tests since suspect shadows had been found in his right lung . By a letter of the same date the prosecutor requested the prison hospital to provide information in writing about the applicant ’s health as soon as possible .

The tomography of the applicant ’s lungs was carried out on DATE . Its interpretation , given on DATE , confirmed the presence of suspect changes in his lungs .

On DATE the applicant ’s defence counsel filed with ORG a request for release based on LAW , submitting that the applicant should be released as there was a suspicion that he was suffering from lung cancer .

On DATE ORG refused to release the applicant , having regard to the fact that information obtained from the detention centre hospital regarding the applicant ’s health was insufficient to establish whether he was suffering from cancer .

On DATE the applicant underwent a bronchoscopy .

On DATE a panel of physicians of the PERSON detention centre hospital stated that the applicant should be released as he was suffering from lung cancer . The prosecutor requested that a further medical report be prepared concerning the compatibility of the applicant ’s health with his continued detention . On DATE CARDINAL specialists from ORG of ORG confirmed that there was a strong likelihood that the applicant was suffering from lung cancer .

On DATE the applicant was released . A medical certificate issued on DATE of his discharge from the prison hospital stated that cytological tests had shown the presence of suspect cells in his lungs . There was a strong likelihood that he was suffering from lung cancer . An examination by a lung specialist was urgently necessary . The applicant 's condition also necessitated a tomographical examination of his lungs as well as a bronchoscopy . The applicant was also suffering from depression . While hospitalised , he had been receiving various drugs .

On DATE the applicant was admitted to a hospital in GPE . He subsequently underwent a course of radiation therapy .

On DATE ORG refused the public prosecutor 's request for prolongation of detention on remand of another suspect detained in the same case , PERSON , who was an advocate . The court stated that the acts with which ORG had been charged could not reasonably be qualified as trading in children within the meaning of Article PERSON of LAW . This was so because , in the assessment of what could constitute the offence of " trading in children " , regard had necessarily to be had to the fact that adoption was in a child 's best interest , whereas the notion of trading in human beings inherently involved acts to the detriment of the victims of such trade . Whereas it was true , the court continued , that adoption did , to a certain extent , limit the liberty of a person to be adopted , its purpose was to improve a child 's conditions of life and to enhance its prospects of well - being . Therefore , adoption in itself had to be perceived as being beneficial for a child . In the case under examination , it had not been established by the investigating authorities that the acts with which ORG had been charged had caused any harm to any children , or to other persons . The court attached importance to the fact that Section IX of the Transitional Provisions of the Criminal Code which penalised trading in human beings was to be replaced , following a proposal by a committee charged with drafting a new LAW , by a separate offence of organising adoptions for commercial purposes . It indicated , the court emphasised , that it was impossible to charge ORG with the offence defined in Section IX of the Transitional Provisions , as the offence of trading in human beings was considered by an unanimous opinion of eminent legal scholars , members of the drafting committee , to constitute an offence separate from the CARDINAL of organising adoptions for commercial purposes . The court concluded that the mere fact that ORG had acted as a lawyer and as an intermediary in numerous adoption proceedings and had received fees for it , was not sufficient for a reasonable suspicion that an offence punishable under Section ORG had been committed .

On DATE the first applicant underwent an operation . A part of his lungs was removed . During the operation the presence of metastases in his lymph nodes was established .

He was discharged from hospital on DATE .

On DATE the applicant died of lung cancer .

On DATE the second applicant requested that criminal proceedings be instituted concerning the causes of the first applicant 's death . She submitted that , after his admission to the prison hospital , an X - ray had showed possible symptoms of cancer . At DATE the prison medical services had accordingly notified the prosecutor and had pointed out the possibility of a quick and violent progress of the cancer . They had emphasised the necessity of the applicant 's further examination by specialists and , possibly , of an operation . The second applicant further submitted that , throughout the first applicant 's stay in the prison hospital , the prosecutor PERSON had been informed on an ongoing basis by the applicant 's lawyers of the fact that his continued detention entailed an immediate danger to his life . She had entirely disregarded this information . Likewise , she had disregarded the results of the first applicant 's medical examinations . She had also ignored the medical opinions of the prison hospital and of ORG indicating that the applicant 's condition had been incompatible with his continued detention . She had kept refusing to release him , considering that the applicant had been prevaricating . The second applicant further stated that the first applicant 's treatment after his release had been ineffective , mainly owing to the fact that the illness had already been in an advanced stage . The first applicant had received a course of radiation therapy and had subsequently undergone the operation . The second applicant stated that the evidence to prove the accuracy of her assertions was to be found in the first applicant 's medical records at the prison hospital and FAC , and in the applicant 's medical records kept by ORG .

The second applicant asserted that the first applicant 's death had been caused by his detention from DATE and by the lack of any adequate treatment against cancer throughout that time . She submitted in particular that had the first applicant been released earlier to receive adequate treatment , he would have had a chance to be saved . The fact that during his detention he had been deprived of treatment , amounted , in the second applicant 's opinion , to manslaughter within the meaning of the relevant provisions of LAW .

On DATE ORG ordered that the investigation of the second applicant 's allegations should be conducted by a prosecutor from a prosecutor 's office outside of GPE .

On DATE ORG , in view of the first applicant 's death , discontinued the criminal proceedings against him .

On DATE ORG refused to institute criminal proceedings concerning the first applicant 's death .

On DATE ORG in GPE quashed this decision and ordered that the investigations be resumed .

On DATE the investigations were discontinued as ORG found that no criminal offence had been committed . CARDINAL copies of this decision were sent to the second applicant ’s addresses in PERSON and in PERSON . It is not contested that the first one was served on the applicant on DATE , and the second CARDINAL on CARDINAL DATE .

The applicant lodged an appeal against this decision on DATE . On DATE ORG refused to accept her appeal , considering that the DATE time - limit should have been calculated from DATE of the effective service of the decision on the second applicant , i.e. from DATE and that , therefore , the applicant had submitted her appeal out of the statutory time - limit .

B. Relevant domestic law

Detention on remand

Under LAW of LAW , as applicable at the material time , the lawfulness of ORG detention order could be challenged before a court . The authorities competent to decide in relation to detention on remand were specified in ORG CARDINAL and CARDINAL of LAW Code of Criminal Procedure , which at the material time read as follows :

Article CARDINAL :

" CARDINAL . Preventive measures [ including detention on remand ] are imposed by the court ; before a bill of indictment is sent to the court , they are imposed by the prosecutor ( ... ) . "

Article CARDINAL :

" CARDINAL . The decision concerning preventive measures may be appealed [ to the higher court ] ( ... ) .

The prosecutor 's order on detention on remand may be appealed to the court competent to consider the criminal proceedings at issue . ( ... ) "

Proceedings for compensation for unjustified detention

LAW , as applicable at the material time , provided for compensation regarding damages arising out of imprisonment resulting from conviction which has subsequently been quashed and the convicted person acquitted , for obviously unjustified detention on remand and for arrest and detention TIME . ORG in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation had been met . The decision of ORG could be appealed to ORG .

According to LAW , a request for compensation for manifestly unjustified detention on remand had to be lodged within DATE from the date on which the final decision terminating the criminal proceedings in question had become final . Therefore , in practice , a request for compensation for unjustified detention under LAW could not be lodged until the criminal proceedings against the person concerned were terminated ( see also the decision of ORG no . WRN CARDINAL , CARDINAL , published in ORG . ialia , the decision of ORG no . PERSON CARDINAL/CARDINAL , CARDINAL , published in ORG CARDINAL/CARDINAL - CARDINAL/CARDINAL ) .

The proceedings relating to a request under LAW were to be regarded as independent of the original criminal proceedings in which the detention was imposed . They were not designed to secure release from detention but financial reparation for damage arising from unjustified detention on remand . The person concerned , by instituting such proceedings , could retrospectively seek a ruling as to whether his or her detention was justified . He or she could , however , challenge the lawfulness of continuing detention on remand and obtain his or her release .

Civil liability in tort of ORG

Under LAW , ORG is liable for damage caused by an agent of the ORG in the exercise of his or her duties .


The applicant is an NORP national , who was born in DATE . He was represented before the ORG by PERSON , a lawyer practising in ORG . The respondent Government were represented by Ms I. GPE , ORG .

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

The applicant arrived in GPE at DATE . Allegedly , he intended to apply for asylum immediately and , as he only speaks his mother tongue , he went to his brother in GPE to seek his assistance . The brother was ill and unable to help him , however , so he left for ORG where , apparently , some friends of his live . He arrived in ORG on DATE and allegedly intended to file his asylum application on DATE , after the PERSON DATE . However , during DATE , on DATE , he assaulted a NORP national and was arrested and detained by the police . Initially , he presented a false NORP passport but , eventually , he disclosed his true identity and requested asylum .

On DATE ORG ( tingsrätten ) of ORG decided to detain the applicant on suspicion of assault .

By a judgment of DATE ORG convicted the applicant for assault and use of a false document ( brukande av falsk urkund ) and sentenced him to DATE imprisonment .

Following his release from prison on DATE the applicant was taken into custody in accordance with a decision of ORG ( Migrationsverket ) of DATE , as there was a risk that he would otherwise disappear . The applicant was moved to the ORG 's custody LOC at LOC .

In his asylum application , the applicant stated that , following the completion of his military service in DATE , he had returned to his home town . After DATE he had been approached by members of the organisation ORG ) who had threatened his life and told him that he had to work for the organisation . DATE he had regularly transported ORG members in his minibus and also delivered oil and gas to the ORG . On several occasions , ORG members had visited him in his home and threatened to kill him and his family should he not cooperate . Towards DATE the NORP police had also been looking for him at his home . He had never sought the help of the police for fear of reprisals from the PERSON and the police who , allegedly , would not have believed that he had been forced to help the ORG . Following the visit by the police , the applicant had got scared and left for GPE where his sister lived . Someone had helped him out of the country ; he had travelled to GPE , GPE by plane and from there to GPE by truck . He had stayed in GPE for DATE and eventually travelled to GPE by boat . Allegedly , he had not left GPE earlier , as he had been unable to make up his mind and had not known where to go . Moreover , had it not been for the threats from the PERSON , he would not have left the country . According to his parents in GPE , the PERSON and the police had come to look for him several times after his escape . However , he had never been politically active and had not had any difficulties with the NORP police or other authorities .

On DATE ORG rejected the asylum application and ordered the applicant 's expulsion from GPE . It also decided that the applicant should remain in custody . ORG noted that the general situation in GPE was no longer such as to constitute a reason for granting asylum . As regards the applicant 's personal situation , ORG did not find the applicant 's allegations credible . It noted that he had not applied for asylum until he was arrested by the police , DATE after his arrival in GPE , although the alleged reason for his travelling to GPE was to seek asylum . Even when arrested he first lied about his true identity . The ORG therefore considered that the applicant could not have thought that his need for protection was particularly great . ORG also found it peculiar that he had worked for the ORG under threats to his life for as long a period as DATE without having tried to escape . Allegedly , as he had a valid NORP passport and had completed his military service he should have been able to leave GPE without any difficulties at an earlier date . As an alternative , he could have left for GPE to live with his sister . For these reasons , ORG concluded that it was not plausible that , upon return to GPE , the applicant would be subjected to treatment contrary to LAW .

On DATE ORG ( Utlänningsnämnden ) , agreeing with the reasons given by ORG , upheld the above decision . It decided also that the applicant should remain in custody . ORG had at its disposal an “ incident report ” , dated DATE , from the LOC custody , according to which the applicant had tried to hurt himself in custody . He was given medication and put under constant surveillance .

According to another “ incident report ” of DATE the applicant , on that date , after having been informed of ORG decision , had collapsed in violent spasms and had again tried to hurt himself by banging his head against the floor . The responsible physician , PERSON , a specialist in general medicine , concluded that the applicant was panic - stricken . As there was a great risk that the applicant would suffer from another similar attack and as the LAW custody did not have the necessary resources , PERSON considered that further custody at ORG was inappropriate . As the applicant could not be considered mentally ill , he could not be admitted to a psychiatric ward . Instead , Dr PERSON recommended that the applicant be moved to the detention centre at GPE which had sufficient personnel and medical resources to take care of him . Accordingly , the applicant was moved to that detention centre in TIME of DATE .

At GPE the applicant was examined , at the request of his lawyer , by PERSON , a specialist in psychiatry from ORG för tortyr- och traumaskadade ; “ ORG ” ) in GPE . According to the opinion of PERSON , issued on DATE , the applicant feared that the ORG would kill him if he were returned to GPE . His fear was based on previous threats to him and his family . On account of that fear , he was unable to communicate properly with other people and had reduced bodily functions . PERSON concluded that the applicant was , most likely , seriously ill due to a lengthy state of fear , that he had reacted like a person facing execution and that the risk of a suicide attempt was very serious . Thus , he should be taken to a psychiatric ward for further examination .

On DATE a new application for asylum , based on the new medical information , was lodged with ORG . DATE the ORG decided not to suspend the enforcement of the expulsion order .

By a judgment of DATE ORG ( länsrätten ) in GPE rejected the applicant 's appeal against ORG decision not to release him from custody .

On DATE , following the ORG 's indication under LAW , ORG stayed the execution of the expulsion order and released the applicant from custody .

On DATE the applicant was taken to hospital and was then transferred to a psychiatric ward .

On DATE Dr PERSON from the ORG again examined the applicant . According to his medical certificate , issued DATE , the applicant was feeling fairly well and safe and was able to give a detailed account of his situation . The applicant showed no signs of depression and did not meet all the criteria for a post - traumatic stress syndrome . According to PERSON , the applicant 's status at the time of the earlier examination , at GPE , could only be seen as an expression of great fear reasonably based on his previous experiences . The detention at GPE and the threat of expulsion from GPE had involved a serious risk of a lasting impairment of the applicant 's health and also a risk of a suicide attempt .

The new application for asylum is still pending before ORG .


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova

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

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

Administrative proceedings concerning compensation in respect of the livestock , fixtures and fittings

On DATE the applicant filed with ORG a petition seeking the determination of the person liable for compensation in respect of the livestock , fixtures and fittings . On DATE the ORG ’s competent regional department in GPE commenced administrative proceedings .

On DATE the regional department issued a decision holding that the municipality of PERSON was the person liable for compensation .

On DATE the municipality made an agreement with the applicant and a certain GPE on the provision of compensation . The compensation was to be allocated to the entitled persons by granting CARDINAL to the applicant and CARDINAL to GPE

On DATE ORG ( pozemkový fond ) and the applicant made an agreement on financial compensation in respect of the livestock , fixtures and fittings .

ORG proceedings concerning compensation in respect of the livestock , fixtures and fittings

On DATE the applicant brought an action against ORG claiming that the compensation in respect of the livestock , fixtures and fittings was insufficient .

On DATE the ORG ( okresní soud ) dismissed the applicant ’s action . On DATE ORG partly quashed and partly upheld the first instance decision , and sent the relevant part of the case back to ORG . In the reasoning of its decision the ORG noted that the applicant had supplemented her action through her appeal in respect of the compensation for the property not surrendered , but not in respect of the compensation for the livestock , fixtures and fittings . ORG decision became final on DATE .

On DATE ORG stayed the proceedings . On DATE ORG ( krajský soud ) quashed this decision .

On DATE ORG decided that it was not territorially competent to deal with the applicant ’s action , which should be transferred to ORG ( obvodní soud ) . The latter , however , did not agree with the referral of the case to it and , on DATE , submitted the case to ORG ( městský soud ) . On DATE the latter held that the disagreement of ORG , that the case be transferred to it , was well - founded .

In a judgment of DATE ORG , to which the case had been remitted , dismissed the applicant ’s claims . The applicant appealed .

It appears that the proceedings are pending before ORG .

Proceedings concerning the passage of the title to real estates

On DATE the applicant brought before ORG an action against ORG seeking to decide on the passage of the title to certain real estates to her and CARDINAL other persons .

On DATE ORG discontinued the proceedings .

On DATE ORG quashed this decision and remitted the case to ORG which , in a judgment of DATE , rejected the applicant ’s action . On DATE ORG quashed this judgment and sent the case back to ORG which , on DATE , again dismissed the applicant ’s action .

On DATE ORG , upon the parties’ appeals , quashed the rulings on the merits and on the costs of the proceedings , and remanded the case to ORG which , on DATE , upon the applicant ’s withdrawal of her action , stayed the proceedings . This decision became final on DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


CASE OF GORGIEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in FAC .

He worked as a sanitary inspector at a border post near the city of ORG . His tasks included sending samples of imported products to laboratories for further examination . The examination fees were paid directly to the laboratories by the importers .

On DATE a company from PERSON ( “ the company ” ) , which imported goods on a regular basis , presented a shipment for inspection at the border post . PERSON , the owner and manager of the company , allegedly agreed with the applicant to meet on DATE .

According to PERSON , they met on DATE , when the applicant told him that he could pay the examination fees directly to the applicant , who would then send fewer samples for inspection . As he suspected that the applicant was actually demanding a bribe , PERSON reported the matter to the police . The police then suggested that he should offer the applicant a sum of money in banknotes which they had marked in order to keep track of them .

On DATE PERSON and his business partner and relative , PERSON , who was aware of the alleged conversation , came to the border post to look for the applicant . The applicant and PERSON met in a restaurant near the applicant ’s office . PERSON gave MONEY ( ORG ) to the applicant and left . The applicant was subsequently arrested in front of his car .

On DATE the investigating judge of ORG ( “ the trial court ” ) started an investigation on the grounds of reasonable suspicion that the applicant had accepted a bribe of DEM CARDINAL . The applicant was remanded in custody for DATE as it was feared that he might obstruct the investigation by interfering with witnesses if released . A warrant to search his home was also obtained and the search was conducted on DATE .

According to the depositions taken in the course of these proceedings , the applicant stated , inter alia :

“ ... PERSON objected to the fact that I had taken too many samples for examination . I told him that I could not avoid sending samples for examination and that I had taken as many samples as necessary . Then he promised me that he would reward me if I showed restraint and avoided sending samples for examination . It was just a general proposition , without any exact figures as to the amount . I refused . DATE , he came to the border post and asked me to meet him . We went to the restaurant and he repeated his offer . I refused again . He then put something in my pocket and left the restaurant . I was surprised at first and saw that it was DEM CARDINAL . I put it in my trouser pocket and went out to look for him . As he had gone , I was afraid and did not know whether I should go to the police . That ’s why I went to my car . There I was approached by several policemen who searched me and asked where the money had come from . As I was afraid , I told them that I had obtained it in PERSON ... I would just like to add that there was nobody but the waiter in the restaurant during my meeting with PERSON A ... ”

On DATE the investigating judge examined PERSON and PERSON The former stated , inter alia :

“ ... On DATE [ date not specified ] , I arrived at the applicant ’s office and we both went to the restaurant . Then , he told me that ‘ he had examined [ samples for ] me for DATE ... he therefore told me that we should agree not to send any samples of imported products for examination ... He also said that I should not pay [ the examination fees ] directly to [ the name of the examination institutions ] , but should give the money to him . He said that the tariff per vehicle was DEM CARDINAL or DEM CARDINAL and that I should decide how much I would give ... After I had left for PERSON , I considered the consequences of giving the money to the inspector [ referring to the applicant ] ... and decided to inform the chief inspector of ORG about the case again ... The chief inspector took [ the CARDINAL banknotes of DEM CARDINAL ] from me and returned them on DATE , DATE . At TIME DATE , PERSON and I arrived at the border post . I entered [ the applicant ’s ] office , but he was not there . Then he saw me ... Then we went to the restaurant . We sat at a table , and PERSON sat at a nearby table . There was nobody else in the restaurant ... Since he knew that I would give him money , he asked me ‘ Do you have the money?’ . I did n’t reply , but took CARDINAL ( CARDINAL DEM CARDINAL ) out of my shirt pocket , [ the applicant ] took it with his right hand and put it in his shirt pocket . I told him that it was DEM CARDINAL and asked if it was enough . He took the money out of his shirt pocket , looked at it and put in his trouser pocket . We stayed in the restaurant for TIME . The money changed hands at the beginning ... I wish to add that on DATE I noticed QUANTITY persons in plain clothes , a man and woman , sitting in the restaurant ... I assume they were policemen ... ”

PERSON stated , inter alia :

“ ... I consider that the applicant treated us badly as he did not take the usual quantities of samples for examination ... We complained of his behaviour to ORG , but they told us that nothing could be done ... DATE before DATE in question , PERSON told me that the applicant had arranged a meeting with him , as the latter was no longer satisfied with the quantities of samples he had taken , but that he had asked for money to let our trucks through without difficulty . We informed the police , who told us that we must provide proof . On DATE I went with PERSON to the border post and I was in the restaurant when the money was given to the applicant . I was sitting at a nearby table when I heard the applicant saying that he would n’t work for the ORG anymore , but for himself . Then I heard the applicant asking about the amount of money ... I would like to add that when the applicant asked for the money , PERSON put banknotes into his hand . He counted the money , saying that it was not enough . At that time , there were CARDINAL people , a man and woman , in the restaurant , but I do n’t know who they were ... ”

On DATE the investigating judge took a statement from Mr NORP , a market inspector who shared the office with the applicant , who stated , inter alia :

“ ... On DATE ... PERSON came into my office asking where my colleague [ the applicant ] was . I told him that he had left . We talked for TIME about various business issues . On his way out , he asked me to join him at the restaurant for a drink . I did n’t answer . After TIME , [ the applicant ] arrived ... I told him that Mr A. was looking for him and had invited us for a drink at the restaurant . [ The applicant ] then left , but I do n’t know where he went . After TIME , [ the applicant ] returned to the office looking distressed . He asked what I was doing and left the office without saying anything . After TIME , I had to leave the office and saw the applicant surrounded by CARDINAL men and a woman . CARDINAL of them asked me where I was from and called me to act as a witness while the applicant was searched . They informed me that they were policemen . The applicant took CARDINAL out of his pocket ... and we all went to the police station , where I made my statement ... ”

On DATE the applicant was released from detention .

On DATE the public prosecutor lodged an indictment charging the applicant that he had accepted a bribe in order not to take and send samples of imported products to laboratories for examination . The indictment was based on the events as described by PERSON ( see paragraphs CARDINAL above ) .

On DATE the trial court held a public hearing . It heard oral evidence from the applicant , PERSON and PERSON and admitted some documentary evidence . The applicant stated , inter alia , that he had been “ set up ” by PERSON and intended to report him to the police , but that he had been prevented from doing so by the police officers who had arrested him before he got into his car . He also said that he might have wrongly stated in the pre - trial proceedings that he had not obtained the money from PERSON , as he had been under stress .

PERSON stated , inter alia :

“ ... I informed the police officers and after being told that I would not face any charges , I decided to offer him the money . I did n’t arrange anything with them [ the police ] before I went to Delčevo on DATE ... [ After the money had changed hands ] I left and I do n’t know what happened afterwards . At that time , besides us , there was a man and woman sitting at another table and CARDINAL other persons . I ca n’t recall whether PERSON was present when I gave the money to [ the applicant ] ... ”

PERSON stated , inter alia :

“ ... It was I who insisted that PERSON report [ the applicant ] to the police ... I do n’t know whether the police had any plan ... During the meeting on DATE there were other people in the restaurant who I did n’t know . It was me who left the restaurant first ... ”

The court also heard evidence from CARDINAL witnesses called by the applicant concerning the events in the restaurant .

Mr T. , a waiter at the restaurant , stated :

“ As far as I can recall , PERSON and the accused were sitting in the restaurant and stayed for TIME . ”

PERSON , a cook at the restaurant , stated :

“ As far as I can recall on the date in question , PERSON and the accused were sitting in the restaurant ... There was nobody else besides Mr T ... I can not say what they discussed or how they behaved . I think that they stayed for TIME . ”

On DATE , the trial court gave its judgment . It found the applicant guilty of accepting a bribe and sentenced him to CARDINAL months’ imprisonment . It established that after the discussion of DATE between the applicant and PERSON , the latter had notified the police and they had instructed him to give the applicant money and to inform them if he accepted it . It further established that after PERSON had put the money in the applicant ’s shirt pocket , the applicant had left the restaurant and gone into his office . After he left his office , the police , who had been informed about the event in advance , searched him and found the money .

The court rejected the applicant ’s arguments and noted that his conduct immediately after he accepted the bribe did not suggest an intention to report the matter to the police . Referring to the statements made by the witnesses at the trial , the court concluded that the applicant had not taken any steps to return the money to PERSON or to inform anyone . In support of its findings , it referred to the statement made by Mr. NORP , to whom the applicant had also failed to report the bribe . The court also found that the police had waited to see whether the applicant would report the bribe and had acted when there had been no reaction on his part . The penalty was determined on the basis of , inter alia , the applicant ’s behaviour at the trial , the fact that he had previously performed his duties in accordance with the regulations and his lack of a criminal record .

The applicant appealed , arguing that the whole incident had been planned in advance and that he had been incited to commit the offence by the police and PERSON , and , accordingly , had been the victim of entrapment . He complained that the trial court had not taken into consideration the statements of the QUANTITY witnesses who worked at the restaurant , who denied that anyone other than the applicant and PERSON had been present when the money had changed hands . The testimony of PERSON , who in addition to being PERSON business partner was also a relative , was therefore false . He also submitted a written statement made by PERSON on DATE , which read , inter alia :

“ ... I saw PERSON reach towards the pocket of [ the applicant ’s ] shirt . I can not say whether he put something in or took something out , but I remember that PERSON left the restaurant immediately afterwards . At that moment , they did not speak to each other . After TIME [ the applicant ] quickly left the restaurant ... ”

The applicant further argued that the trial court had misinterpreted Mr D. ’s statement concerning his behaviour after he left the restaurant . In that connection , he requested that another person , Mr O. , be heard as a witness on the issue whether he had gone directly to his car or to his office after leaving the restaurant . He submitted a written statement of DATE by Mr O. saying that he had seen the applicant go to his car after leaving the restaurant . He requested ORG to hold a hearing .

At a hearing on DATE , ORG dismissed the applicant ’s appeal and upheld the trial court ’s verdict . It found that the trial court had correctly established the facts and applied the law . It had given sufficient reasons for its findings and these had been substantiated by the relevant evidence it had taken into consideration . ORG rejected the applicant ’s allegations that he had been entrapped by an agent provocateur ( PERSON ) and that he had not intended to keep the money , but to report the matter to the police . It noted that the applicant had told PERSON A. that he was changing his working methods and that instead of paying the examination fees to the laboratory , he could pay them directly to the applicant . It also held :

“ ... if the applicant had had no intention of taking and keeping the money , he should have reacted immediately . On the contrary , in PERSON presence , he put the money in his pocket and said that it ‘ ORG only the current shipment and that they would agree upon further shipments . After PERSON had left the restaurant , the applicant did not report the matter to the police or to anyone else . Indeed , he returned to his office and failed to inform Mr D. , his colleague , about the gift received from PERSON After TIME , he left the office and was arrested by the police . If his intention was not to keep the money , he could have made that clear by reacting in the restaurant , especially as there were restaurant employees present . Instead , he went to his office and failed to inform Mr NORP about the money ... ”

With regard to the alleged presence of PERSON in the restaurant when the money was given to the applicant , ORG held :

“ ... Whether Mr P. was in the restaurant during the conversation between the applicant and PERSON is irrelevant , as he had known about the earlier discussion between them and about the applicant ’s statement that they would find a new way of dealing with matters concerning the imports and samples . PERSON presence in the restaurant at the material time is irrelevant ... ”

With regard to the written statements of the witnesses and the applicant ’s request for a further witness , Mr O. , to be examined , ORG held that the written statements had been examined by the trial court and were irrelevant to the final conclusion .

The applicant and his lawyer submitted separate requests for an extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда – “ the extraordinary request ” ) before ORG . These requests were sent by registered mail and according to the delivery receipt , they were received by the trial court on DATE and DATE , respectively . In the requests , the applicant complained , inter alia , that the lower courts had based their decisions on evidence which should not have been taken into consideration , as it had been obtained as a result of the police incitement to commit the offence and PERSON role as an agent provocateur .

In a letter which was also sent by registered mail and received by the trial court on DATE , the applicant supplemented his extraordinary request , arguing that the facts as established by ORG contradicted the findings of the trial court , and that its finding that Mr O. had already been examined by the trial court was erroneous . He also alleged that ORG had not examined his appeal in full , in particular concerning the role of PERSON as an agent provocateur and the role of the police .

On DATE the public prosecutor rejected the applicant ’s application to lodge a request for the protection of legality ( барање за заштита на законитоста ) with ORG .

On DATE ORG dismissed the extraordinary request lodged by the applicant ’s lawyer , which it found had been submitted within the statutory time - limit , and upheld the lower courts’ decisions . It held , inter alia , that the applicant ’s conviction had not been based on inadmissible evidence , but on a range of written and oral evidence adduced during the proceedings . It did not comment on the applicant ’s extraordinary request and supplementary submission .

On DATE the ORG President replaced the applicant ’s sentence with a suspended term of CARDINAL years’ imprisonment .

Section CARDINAL of the DATE Act provided that , where there was a suspicion that an offence had been committed , ORG ( “ the Ministry ” ) was authorised to take measures in order , inter alia , to find the perpetrator or to prevent him or her from fleeing or going into hiding . In order to execute its tasks , the ORG could , in addition to the measures and actions listed in the second paragraph of that section , take such other measures and actions as might be necessary .

Section CARDINAL-b of the new LAW provides that , with a view to securing information and evidence which can not be otherwise secured , or the gathering of which would entail difficulties , special investigating techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by , inter alia , an organised group . A simulated offer and acceptance of a bribe is among the permitted special investigating techniques ( section CARDINAL-b § CARDINAL ( CARDINAL ) ) . Special investigating techniques must not be used to incite the commission of an offence . Persons using the special investigating techniques in order to secure information and evidence necessary for a successful investigation are not liable to prosecution .

Section CARDINAL-c provides that information , documents and objects obtained through a special investigating measure may be used as evidence in criminal proceedings .

Section CARDINAL-d § § CARDINAL , CARDINAL and CARDINAL provide that , at the pre - trial stage , special investigating techniques may be ordered by the public prosecutor or an investigating judge . After an investigation has been commenced , the use of such techniques may be ordered only by an investigating judge . At the pre - trial stage , the use of special investigating techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor , or by the public prosecutor in a reasoned written decision , but only in respect of a person whose identity is unknown .

Under section CARDINAL § § CARDINAL and CARDINAL , special investigating techniques may be used for DATE at most . Evidence obtained through special investigating techniques can not be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or were contrary to the Act .

LAW ( CARDINAL ) provides that an importer pays the examination fees concerning the sanitary validity of food and products for general use .

LAW of these ORG provides that the importer pays in the ORG budget the fees for taking and sending samples to laboratories . The importer pays to laboratories the fees for examination of samples , according to an invoice that the laboratory would deliver to him or her .


CASE OF BURDEN AND BURDEN v. THE UNITED KINGDOM

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

The applicants are unmarried sisters , born on CARDINAL DATE and DATE respectively . They have lived together all their lives ; for DATE in a house built on land inherited from their parents in GPE .

The house is owned by the applicants in their joint names . According to an expert valuation dated DATE , the property was worth GBP CARDINAL , or GBP CARDINAL if sold together with the adjoining land . The sisters also jointly own CARDINAL other properties , worth GBP CARDINAL in total . In addition , each sister owns in her sole name shares and other investments worth MONEY . Each has made a will leaving all her property to the other .

The applicants submitted that the value of their jointly - owned property had increased to the point that each sister 's CARDINAL share was worth more than the current exemption threshold for inheritance tax ( see paragraph CARDINAL below ) , and that the survivor might have to sell the house in order to pay the tax .

NORP By sections CARDINAL , CARDINAL and CARDINAL of LAW DATE ( “ the DATE LAW ) , inheritance tax is charged at PERCENT on the value of a person 's property , including his or her share of anything owned jointly , passing on his or her death , and on lifetime transfers made within DATE of death . The charge is subject to a nil rate threshold of GBP CARDINAL for transfers DATE and DATE ; GBP CARDINAL for transfers during DATE ; and GBP CARDINAL for DATE ( section CARDINAL of LAW DATE ) .

Interest is charged , currently at PERCENT , on any tax not paid within DATE after DATE in which the death occurred , no matter what caused the delay in payment . Any inheritance tax payable by a person to whom land is transferred on death may be paid , at the tax - payer 's election , in CARDINAL equal DATE instalments , unless the property is sold , in which case outstanding tax and interest must be paid immediately ( DATE Act , section CARDINAL(CARDINAL)-(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that property passing from the deceased to his or her spouse is exempt from charge . With effect from DATE , this exemption was extended to a deceased 's “ civil partner ” ( see paragraphs QUANTITY below ) .

The purpose of LAW was to provide same - sex couples with a formal mechanism for recognising and giving legal effect to their relationships , and to confer on them , as far as possible , the same rights and obligations as entailed by marriage .

A couple is eligible to form a civil partnership if they are ( i ) of the same sex ; ( ii ) not already married or in a civil partnership ; ( iii ) over DATE ; ( iv ) not within the prohibited degrees of relationship .

A civil partnership is , like marriage , indeterminate in nature and can end only on death , dissolution or annulment . LAW created a comprehensive range of amendments to existing legislation , covering inter alia pensions , tax , social security , inheritance and immigration . The courts have similar powers to control the ownership and use of the civil partners ' property upon dissolution of a civil partnership as upon dissolution of a marriage .

When the Civil Partnership Bill was passing through ORG , an amendment to it was passed in ORG by CARDINAL votes to CARDINAL , which would have had the effect of extending the availability of civil partnership , and the associated inheritance tax concession , to family members within the “ prohibited degrees of relationship ” , if ( i ) they were DATE ; ( ii ) they had co - habited for DATE ; and ( iii ) they were not already married or in a civil partnership with some other person . The amendment was reversed when the PERSON returned to ORG .

During the course of the debate in ORG , Lord PERSON , a ORG , stated :

“ I have great sympathy with the noble ORG , PERSON [ ORG who proposed the amendment ] , when she talks about siblings who share a home or a carer who looks after a disabled relative . Indeed , she will readily acknowledge that I have put the case several times — at Second Reading and in ORG DATE and I have pushed the Government very hard to look at this issue . There is an injustice here and it needs to be dealt with , but this is not the PERSON in which to do it . This PERSON is about same - sex couples whose relationships are completely different from those of siblings . ”

During the same debate , Lord PERSON , ORG , stated :

“ There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties . But that is a different argument and this is not the place or the time for that argument . This PERSON is inappropriate for dealing with that issue . ”

During the course of the debate in ORG , PERSON MP , Deputy Minister for Women and ORG , stated :

“ As I suggested on Second Reading , we received a clear endorsement of the purpose of the Bill — granting legal recognition to same - sex couples , ensuring that CARDINAL of couples living together in long - term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law , with all the difficulties that that invisibility brings .

We heard a widespread agreement from Members across almost all parties that LAW is not the place to deal with the concerns of relatives , not because those concerns are not important , but because the PERSON is not the appropriate legislative base on which to deal with them . ”

The CARDINAL Act entered into force on DATE . Section CARDINAL ) provides :

“ So far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights . ”

Section CARDINAL of the CARDINAL Act provides ( so far as relevant ) :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility . ...

( CARDINAL ) A declaration under this section ... -

( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it was given ; and

( b ) is not binding on the parties to the proceedings in which it is made . ”

Section CARDINAL of the DATE Act provides :

“ ( CARDINAL ) It is unlawful for a public authority to act in a way which is incompatible with a Convention right .

( CARDINAL ) Subsection ( CARDINAL ) does not apply to an act if -

( a ) as a result of CARDINAL or more provisions of primary legislation , the authority could not have acted any differently ; or

( b ) in the case of CARDINAL or more provisions of ... primary legislation which can not be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions . ... ”

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) This section applies if –

( a ) a provision of legislation has been declared under LAW to be incompatible with a LAW right and , if an appeal lies –

( i ) all persons who may appeal have stated in writing that they do not intend to do so ; or

( ii ) the time for bringing an appeal has expired and no appeal has been brought within that time ; or

( iii ) an appeal brought within that time has been determined or abandoned ; or

( b ) it appears to a Minister of the ORG or Her Majesty in ORG that , having regard to a finding of ORG made after the coming into force of this section in proceedings against GPE , a provision of legislation is incompatible with an obligation of GPE arising from the Convention .

( CARDINAL ) If a Minister of the ORG considers that there are compelling reasons for proceeding under this section , he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility . ”

The Government submitted that the objective of giving the national courts the power under section CARDINAL had been to provide a formal means for notifying the ORG and ORG about a situation in which legislation was found not to comply with the ORG , and to provide a mechanism for speedily correcting the defect . Once a declaration had been made ( or once ORG had found a violation based on a provision of domestic law ) , there were CARDINAL alternative avenues for putting right the problem : either primary legislation could be introduced in ORG , or the Minister concerned could exercise his summary power of amendment under LAW .

When LAW passed through ORG on DATE , the Lord Chancellor explained that :

“ we expect that the government and ORG will in all cases almost certainly be prompted to change the law following a declaration of incompatibility . ”

CARDINAL of the Ministers with responsibility for LAW explained to ORG on DATE that :

“ Our proposals [ for remedial orders ] safeguard parliamentary procedures and sovereignty , ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture . They also ensure that we can do it in the context of not having to worry that if something is decided by the GPE court or by our courts that creates an incompatibility , we do not have a mechanism to deal with it in the quick and efficient way that may be necessary . ”

The most recent report of ORG , published on DATE , showed that declarations of incompatibility had been made in CARDINAL cases DATE . In CARDINAL of these cases the declaration had been overturned on appeal , or the judgment on appeal was pending . In CARDINAL cases the offending legislation had been amended or repealed ( in CARDINAL case by a remedial order ) , and in the remaining CARDINAL cases , amendments to the offending legislation were pending or under consideration .