David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by their Agent , PERSON , who was succeeded in that function by PERSON .

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

The applicant receives an old - age pension . At the same time , he is still economically active as a self - employed entrepreneur . He has an ongoing dispute with ORG ( ORG ) concerning the contributions he is required to make to the social security funds in his capacity as a pensioner who is self - employed .

On DATE the ORG quashed CARDINAL decisions of CARDINAL DATE and took CARDINAL separate new decisions ordering the applicant to pay contributions for DATE and DATE and financial penalties for late payment of contributions for DATE . The applicant 's appeal was unsuccessful and the decisions were upheld by the ORG appellate body on DATE .

Although the applicant could have challenged the decisions of DATE by way of an administrative - law appeal to the courts , he did not do so . He nevertheless lodged an unsuccessful request , which had no suspensive effect , for a review by the public prosecution service , which was at the latter 's discretion . The decisions of CARDINAL DATE thus became final and binding .

The ORG subsequently commissioned a judicial enforcement officer ( súdny exekútor ) to enforce the amounts due . The enforcement was authorised by ORG súd ) on DATE . The enforcement was to be carried out in the form of deductions from the applicant 's old - age pension .

On DATE the applicant challenged the enforcement by way of an appeal ( námietka ) . He contended mainly that the decisions of DATE had been flawed by numerous mistakes in calculation and formal irregularities .

On DATE the ORG quashed the decisions of DATE upon an extraordinary review outside the framework of the appellate procedure in so far as they concerned the contributions and penalty for DATE . The ORG informed the judicial enforcement officer accordingly and advised him that all that remained to be enforced were the decisions concerning the contributions and penalty for DATE .

On DATE ORG dismissed the applicant 's enforcement appeal , observing that it was aimed at substantive elements of the enforced decisions while the review of such elements fell within the framework of the appellate procedure and outside the scope of the enforcement procedure . No mention was made of the decision of DATE to quash the decisions of CARDINAL DATE concerning DATE .

The written version of the decision of DATE , which was not subject to appeal , was mislaid and only came to the attention of the judicial enforcement officer on CARDINAL DATE .

Meanwhile , on DATE , ORG ( Ústavný súd ) had declared the applicant 's complaint under LAW that the decision of DATE was arbitrary , unfair and wrong and that the procedure leading to it was unfair , inadmissible on account of the lack of legal representation , which was mandatory . ORG took that decision having previously dismissed the applicant 's request for legal aid on the ground that his complaint had no prospect of success .

By DATE the applicant had paid the entire amount due under all the decisions of DATE . The amount corresponding to the decisions concerning DATE was later returned to him . Consequently , the enforcement proceedings were discontinued on DATE .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

On DATE the mayor of GPE allocated a single - room flat ( “ the flat ” ) to the applicant . It was at the disposal of the ORG - owned ORG company , by which the applicant was employed at the time . The mayor ’s decision entitled the applicant to have a contract signed , giving him the right to occupy the flat . However , the applicant was not able to sign the contract and move in , as it was occupied by A.

By a letter dated CARDINAL DATE PERSON local council ( NORP úrad ) informed PERSON , in reply to his request that the right to occupy the flat be transferred to him , that the flat was at the disposal of GPE . The letter further stated that PERSON was under no obligation to move out until he was provided with alternative accommodation .

On DATE ORG ( PERSON podnik ) informed the housing department of LOC local council that the flat had been occupied by A. without any justification since the death of the former occupant and that PERSON was registered as living in his GPE flat , situated in the same house . On DATE a representative of ORG recorded the fact that the deceased occupant had been the only person living in the flat .

In a letter of CARDINAL DATE a social welfare authority informed the housing department of LOC local council that , DATE and DATE , ORG had taken care of the occupant of the flat in return for remuneration from public funds . On DATE the occupant of the flat had been placed in a welfare institution . The letter stated that , when social workers had visited the former occupant prior to her placement in the institution , nothing belonging to ORG had been seen in the flat .

On DATE ORG brought an action in the Bratislava I ORG ( Obvodný súd ) , claiming that A. should be ordered to move out . The action stated that , during a random inspection of the flat on DATE , it had been discovered that A. had illegally forced entry to the flat , had changed the lock and had prevented the representatives of ORG and of ORG from entering .

ORG further claimed that A. lived with his parents , whose flat was situated next door to the flat in issue . Since both flats had the same address , he had misled the local council when claiming that the right to occupy the flat in question should be transferred to him . ORG submitted documentary evidence that A. was registered as living with his parents and that he had never occupied the flat in issue . The plaintiff argued that A. had no right to alternative accommodation .

At DATE the applicant joined the proceedings and claimed that he had the right to occupy the flat . A. counter - claimed that he was entitled to have the right to occupy the flat transferred to him .

On DATE new legislation was enacted which started the process of denationalisation of ORG - owned flats . As a result , the flat ceased to be at the disposal of ORG and the latter lost locus standi in the proceedings .

On DATE ORG informed the applicant that there had been no consumption of electricity in the flat as of DATE .

On DATE the applicant unsuccessfully requested PERSON local council to sign a contract with him for the use of the flat .

On DATE the GPE I ORG discontinued the proceedings concerning the action brought by ORG and the counter - claim filed by NORP The court noted that in the course of the proceedings the ownership rights in respect of the flat had been transferred ex lege to LOC municipality and that both the latter and PERSON had withdrawn their actions .

On DATE the GPE I ORG granted A. ’s application , filed on CARDINAL DATE , concerning his right to occupy the flat . The court held that A. had lived with the former occupant of the flat until her death on DATE . It concluded that ORG had acquired the right to use the flat pursuant to LAW as in force at the relevant time .

On DATE the DATE newspaper ORG published a full- page article written by a journalist on the applicant ’s case . It was entitled “ Absurd ? Absurd ! ” . The article contained , inter alia , a description of the applicant ’s unsuccessful attempt to enter the flat on DATE and of the verbal exchanges between the applicant , on the one hand , and A. and his wife PERSON , a public prosecutor , on the other . The article stated that the flat allocated to the applicant had been unlawfully occupied by A. and criticised the fact that the applicant had no possibility of using it .

On DATE ORG brought disciplinary proceedings against PERSON on the ground that , during the applicant ’s attempt to enter the flat on CARDINAL DATE , she had behaved in an inappropriate manner . The decision stated that the disciplinary proceedings had been brought on the basis of the article published in GPE on DATE and of the explanations given by the persons involved . PERSON later resigned from her post of public prosecutor .

On DATE the applicant addressed an open letter to the Prime Minister . It was entitled “ For How Long ? ” , and its relevant parts read as follows :

Smena on DATE , but since then little has changed .

The flat is situated ... opposite the flat of [ A. ’s father ] , with whom his son has his permanent address at present . The flat was duly allocated to me by ORG on DATE . [ A. ] shamefully benefits from the fact that both flats have the same address ( all flats in the same block have the same address ) and prevents me from moving into my flat . In doing so , he is vehemently supported by his wife [ H. ] , who is the principal occupant of another ORG - owned flat ... [ A. ] claims the right to occupy the flat on the basis of a document signed by the head of the housing department of LOC local council on DATE ... stating that [ A. ] does not have to leave the flat until he has been provided with alternative accommodation . However , [ A. ] has had alternative accommodation for a long time , namely his wife ’s flat . He has acquired the right to occupy that flat automatically . Why has he not yet vacated the flat [ allocated to the applicant ] ?

[ A. ] and his wife lied to me when they said they had no place to live and alleged that because of this they would not vacate the flat . I point out that [ H. ] is a public prosecutor ( ! ) . If our newly born democracy has such people to represent the law , it will not outlive its childhood and we can bury it right away . The judiciary should first and foremost ensure that the law is respected and justice upheld in the ORG . But what is our judiciary like ?

ORG brought an action against [ A. ] on DATE . The first hearing was scheduled for DATE ( ! ! ! ) . Why ? [ A. ] failed to appear .

For how long will certain groups of people think that they detain all the power in the ORG ( and act accordingly ) ? ...

It is high time to show the world , before the second free election , that our government and society defend justice .

I appeal to you . On DATE at TIME the case of GPE against [ A. ] will be heard in room no . DATE at the GPE law courts . Do not let democracy be trampled once more and the ideals underlying the promotion of the rule of law become empty words .

P.S. I call upon all who have a similar problem to write to me . I hope that through our joint efforts we will be able to achieve more . May there be no need for it . ”

The letter was signed by the applicant and gave his address . It also gave the full name and profession of both DATE copy of it was posted up at several tram and bus stops in GPE .

On DATE PERSON published the applicant ’s opinion on the case . Its contents were almost identical to the open letter of CARDINAL DATE .

On DATE lodged with ORG ( ORG súd ) a civil action against the applicant to protect their good name and reputation . They later extended their action to GPE .

On DATE a witness confirmed before ORG that , at the relevant time , PERSON was living with his father .

On DATE ORG found in favour of A. and H. It ordered the applicant to apologise in writing for damaging the plaintiffs’ honour . The applicant was further ordered to pay CARDINAL NORP korunas ( SKK ) to each of the plaintiffs for non - pecuniary damage , to reimburse their lawyer ’s fees and to pay the court fees . PERSON was ordered to publish an apology , pay another SKK CARDINAL,CARDINAL to each of the plaintiffs and reimburse their legal costs .

ORG noted that proceedings were pending before the Bratislava I ORG which concerned ORG ’s claim for the flat in issue to be vacated and ORG ’s counter - claim . ORG held that the proceedings before ORG raised difficult questions of fact and law . It further held that the applicant had not , so far , acquired the right to occupy the flat and noted that , according to a document issued by the housing department of LOC local council on DATE , ORG was under no obligation to vacate the flat until he obtained alternative accommodation .

In ORG view , the opinions of the applicant and of a journalist which had been published in GPE on DATE and CARDINAL DATE had not been substantiated . The court considered that the applicant had also interfered with the plaintiffs’ right to protection of their personality by displaying his open letter of CARDINAL DATE in public places or , as the case may be , allowing it to be published . The court held that the letter contained tendentious , distorted and unsubstantiated information which had damaged the plaintiffs’ personal integrity .

ORG found that the damage had affected PERSON ’s health , that , following the publication of the article of CARDINAL DATE , disciplinary proceedings had been brought against her and that , for the same reason , a loan had not been granted to A. , who was a businessman . The family life of the claimants and of H. ’s children had also been affected .

Both the applicant and PERSON appealed . The applicant claimed , with reference to the documents included in the case file , that the information contained in his open letter of CARDINAL DATE was true . In particular , he argued that , under the relevant law , A. had no right to occupy the flat in question . He also offered proof that , at the relevant time , PERSON had had a permanent address with his parents and that his wife had had the right to occupy another flat .

The applicant also pointed out that he could not have the contract for the use of the flat signed as the flat had been illegally occupied by A. He therefore maintained that his conclusion that ORG had prevented him from moving into the flat was correct . Finally , the applicant alleged that , in any event , the interference in question had not had any defamatory effect within the meaning of LAW and that ORG had not indicated any relevant damage or circumstance within the meaning of LAW on which its conclusion had been based .

On DATE ORG ( Najvyšší súd ) dismissed the appeal . It considered that the evidence heard by ORG showed that the information contained in the article of CARDINAL DATE , in the applicant ’s opinion published in GPE on DATE and in the applicant ’s open letter displayed in public places did not correspond to reality and was objectively capable of affecting the plaintiffs’ personality rights .

ORG recalled that , after the allocation of the flat to the applicant , the relevant authorities had not signed a contract for its use with him as required by the law then in force and that the applicant had not requested that such a contract be signed . ORG therefore considered that the applicant ’s allegation that A. had occupied the flat in question unlawfully and that he had shamefully benefited from the fact that his permanent address was the same as that of the flat in question had been tendentious and misleading as the proceedings concerning the right to occupy the flat in issue were still pending before the Bratislava I ORG .

In ORG view , the disclosure , in both the open letter and the opinion of DATE , of ORG ’s name and of the fact that she was a public prosecutor had grossly interfered with her right to protection of her personality . It concluded that the way in which the applicant had attempted to resolve his housing problem was inappropriate as he had had other lawful means of seeking redress .

In the judgment , ORG referred to the profession of the plaintiffs and found that the compensation the applicant had been ordered to pay was appropriate and corresponded to the non - pecuniary damage DATE had suffered . The applicant was ordered to reimburse to the plaintiffs the cost of the proceedings . The judgment was served on DATE .

On DATE the applicant lodged a petition with ORG ( Ústavný súd ) . He alleged a violation of his constitutional rights , including freedom of expression , in the proceedings leading to ORG judgment of DATE .

On DATE ORG rejected the petition on the ground that it lacked jurisdiction to review or quash the ordinary courts’ decisions and to award compensation to the applicant .

Subsequently a bailiff started to enforce payment of the sums due by the applicant by attaching CARDINAL of his salary .

NORP The right to protection of a person ’s dignity , honour , reputation and good name is guaranteed by LAW seq . of LAW .

Under LAW , any natural person has the right to protection of his or her personality , in particular of his or her life and health , civil and human dignity , privacy , name and personal characteristics .

According to LAW any natural person has the right to request that unjustified interference with his or her personality rights be stopped and that the consequences of such interference be eliminated , and to obtain just satisfaction .

Article CARDINAL § CARDINAL provides that , in cases where satisfaction obtained under LAW is insufficient , in particular because a person ’s dignity and position in society have been considerably diminished , the person affected is entitled to compensation in respect of non - pecuniary damage .

Under LAW , the amount of compensation to be paid LAW CARDINAL § CARDINAL is fixed by the courts after considering the severity of the damage and the circumstances in which the person ’s right was violated .

Article CARDINAL § CARDINAL of LAW , as in force up until DATE , provides that the right to use a flat after the death of the occupant shall be transferred to persons who , inter alia , have lived in a common household with the person entitled to use it for DATE before his or her death , provided that they have no flat of their own .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

On DATE the applicant ’s elder son , PERSON , died at DATE in the Tychy SoberingUp Centre ( PERSON ) , where he had been detained at TIME DATE .

On DATE ORG and a forensic expert examined PERSON body . The prosecutor ordered an autopsy to be carried out by experts from the Śląska ORG .

After an autopsy had been carried out on DATE an opinion was submitted to the prosecutor on DATE . The expert established that a possible cause of death was asphyxiation resulting from pressure on the victim ’s neck and that Mr Mojsiejew had a blood alcohol level of CARDINAL per mille .

The death certificate ( karta zgonu ) signed by PERSON , a forensic expert from the Śląska ORG in GPE , gave the following cause for PERSON death :

“ Numerous effusions of blood in the soft tissue of the neck . ”

On DATE ORG opened an investigation in order to establish whether an offence prohibited by LAW ( unintentional homicide ) had been committed . The prosecutor interviewed several witnesses and ordered an examination of blood and other samples and the preparation of an expert opinion .

On DATE ORG discontinued the investigation . The prosecutor observed that PERSON had been examined by a doctor at the time of his admission to the soberingup centre . The examination showed that he had been intoxicated and that he had no injuries to his body . As PERSON had uttered threats and had been aggressive , he had been tied up to a bed with belts . The room in which he had been detained had been inspected by an employee of the soberingup centre at TIME When the same employee had come to the room at TIME he had noticed spots on PERSON skin and had called the doctor on duty . The doctor had examined ORG and had called an ambulance . The doctor who had arrived in the ambulance had examined ORG and had declared him dead . Furthermore , the prosecutor referred to an expert opinion prepared by the Śląska ORG , which stated that PERSON had died of asphyxiation . The prosecutor concluded that the evidence collected in the course of the investigation did not show that third persons had caused the death of ORG .

On DATE the applicant lodged an appeal with ORG against the decision to discontinue the investigation . She also requested that the prosecution service carry out a reconstruction of the crime scene , with the assistance of a medical expert . On DATE ORG informed the applicant that her request had been granted .

On DATE a medical expert opinion was prepared by ORG in GPE . The expert established that the possible cause of PERSON death had been asphyxiation due to immobilisation of his chest by belts which might have obstructed his breathing . However , the expert was unable to establish the origin of the injuries to PERSON neck .

On DATE ORG allowed the applicant ’s appeal of DATE and resumed the investigation .

In DATE the prosecutor charged GPE , an employee of the Centre , with the unintentional homicide of PERSON . CARDINAL other employees of the centre were charged by the prosecutor in DATE . On DATE Z.K. was suspended from his duties at the Tychy Sobering - Up Centre .

On DATE the prosecutor ordered the preparation of another expert medical opinion by the Śląska ORG in GPE . The opinion was inconclusive and did not rule out either the exertion of pressure on PERSON neck or his incorrect immobilisation by belts as possible causes of his death . The expert was also unable to establish precisely the time of his death .

In a supplementary expert opinion prepared in DATE the expert established that Mr Mojsiejew should have been released from the belts after TIME since he had ceased to be aggressive . Moreover , the staff had failed to supervise his state of health . The expert concluded that the death could have been caused by strong pressure on his chest and his lack of direct supervision for TIME .

On DATE ORG indicted CARDINAL employees of the sobering - up centre before ORG . They were indicted under LAW for the unintentional homicide of PERSON . In particular , Mr GPE was accused of having incorrectly immobilised PERSON on the bed and , in doing so , having exerted pressure on his neck . In consequence the respiratory movements of his chest had been limited to a large extent , which had led to his death by asphyxiation . CARDINAL other employees of the sobering - up centre were charged with unintentional homicide by failing in their duty to care for and supervise Mr Mojsiejew .

The applicant requested to join the proceedings as an auxiliary prosecutor .

The hearing scheduled for DATE was adjourned as the parties had not been properly summoned to it . Afterwards , the trial could not start as on QUANTITY occasions new reporting judges had to be assigned to the case . In consequence , ORG held the first hearing on DATE . Subsequently , CARDINAL hearings were scheduled for DATE and CARDINAL DATE but they were adjourned .

The trial court held a hearing on DATE , at which it examined the accused . Some hearings scheduled afterwards were adjourned for various procedural reasons . On DATE an attempt by the applicant to challenge judges trying the case was dismissed .

ORG held its next hearing on DATE and examined some witnesses .

In DATE the trial court held CARDINAL hearings in total and scheduled them at regular intervals .

In DATE the court held only QUANTITY hearings , on DATE and DATE . On DATE the court requested a new expert medical opinion from ORG . The experts submitted their opinon on DATE . The opinion reads as follows :

“ The above observations [ from photographs and an inspection of the room in which ORG died ] lead to a conclusion that the injuries to the deceased ’s neck most probably did not occur prior to his arrival at the sobering - up centre , or as a result of his being tied to the bed by belts . In consequence , another means by which these injuries occurred needed to be examined .

The absence of external skin injuries and the presence of extensive internal injuries in the soft tissue of the neck indicate that a large amount of direct pressure had been applied with a blunt object of a substantial surface area . Such an object could have been , for example , an arm , or alternatively the elbow area between the forearm and arm , if somebody had applied the immobilisation technique called a headlock ( krawat ) . In this hold the person applying it normally stands behind the person to be immobilised and forcefully puts his arm around the neck [ ... simultaneously pushing the head with the other hand ... ] . This hold blocks breathing and hinders the access of blood to the brain , which in a short time leads to fainting . At the same time , if [ the headlock ] lasts long enough it may lead to death by strangulation or cardiac arrest . ... Cardiac arrest or respiratory failure occurs either immediately after [ the headlock ] has been applied or it can occur some time afterwards if the hold was applied for a long enough time to cause brain damage ...

It appears from medical and forensic practice that the [ headlock ] is sometimes used on intoxicated and aggressive patients at sobering - up centres . Such actions , where they do not cause death , expose the person to a direct danger of loss of life or serious bodily injury within the meaning of LAW .

The absence of any external signs of injuries on the chest which could indicate that strong pressure had been applied by narrow belts limiting the respiratory movements of the chest ... , taking into account the above considerations , makes it very doubtful that the immobilisation of the chest was the cause of [ ORG ] death .

While the cause of death advanced by the Śląska Medical ORG can not be totally ruled out , it is much more probable that the cause of the sudden death of [ PERSON ] was strangulation ( uduszenie przez zadławienie ) by applying strong pressure with a blunt object to the neck , in the manner and circumstances described above .

It should be added that such extensive injuries to the front side of his neck could not have happened if [ PERSON ] was trying to free himself from the belts while lying on his stomach . It is also impossible that such injuries occurred during convulsions ...

A forensic examination of the body ( obdukcja sądowo - lekarska ) , in the place in which it had been found , was not conducted , which makes it impossible to establish the exact time of death . Analysing livor mortis ( plamy pośmiertne ) [ and other factors ] , one can only advance the hypothesis that TIME had elapsed between his death and the time at which his body was found . ”

ORG held a hearing on DATE and on DATE it gave its judgment . The court changed the classification of the offence and found all the accused guilty of having exposed PERSON to an immediate danger of loss of life within the meaning of LAW of LAW . They were sentenced to DATE imprisonment , suspended for DATE .

As regards the course of the events of CARDINAL DATE , the court established that during his arrest by the police , his transfer to the soberingup centre and his stay in the centre , PERSON had been calm and had not shown aggression . In the sobering - up centre , however , he refused to undress and became verbally abusive , which led the centre ’s staff to decide to put him in the special room with immobilising belts . At CARDINAL a.m. PERSON was put on the bed , on his stomach , and GPE tied his hands , legs and chest with the belts . During this , Mr Mojsiejew was calm and did not put up a struggle ; he was mumbling incomprehensibly . After having been tied to the bed and examined by a doctor , PERSON was left in his room . He was examined TIME but afterwards no employee from the shift that finished at TIME , or from the following shift , came into the room in which ORG had been immobilised and examined him . The employees occasionally observed him , looking mostly through a spy - hole in the door without entering the room , and were able to see his sides moving , from which they had concluded that he was still breathing .

At TIME CARDINAL employee of the centre noticed through the glass in the door that the skin on PERSON hands was of an unnatural colour . He called a doctor on duty and together they came into the room . They untied Mr Mojsiejew . At CARDINAL an ambulance came and the doctor established that PERSON was dead .

As regards the cause of his death , the court noted that all medical opinions had found that PERSON had died of asphyxiation . The court considered that the experts from the Śląska ORG had avoided answering the question of the origin of the injuries to Mr ORG neck . Thus , the court accepted the conclusions reached by the experts from ORG , who dismissed as highly improbable the hypothesis that the belts had been tied too tight and had obstructed the movement of his chest , since Mr Mojsiejew had not had any marks on his body indicating that pressure had been exerted by the chest belt . The court thus concluded that his death had been caused by strangulation ( zadławienie ) as pressure had been applied to PERSON neck . It had most probably happened when someone had put ORG in a headlock . This immobilisation technique , if applied for a longer time , could lead directly to death , but if applied for a shorter period of time could cause brain damage , which affected breathing and after a certain time could also lead to death .

The court also considered that the failure to conduct a forensic examination of the body narrowed the evidence concerning the state of the body , its temperature and the state of livor mortis . Thus , the precise time of death could not be established .

Although the court was unable to establish beyond doubt who had applied the headlock on the applicant ’s son , it considered that all the accused had failed in their duty of care for PERSON by having exposed him to an immediate danger of loss of life . In particular , the employees of the centre had been obliged to carry out constant supervision of the rooms in which intoxicated persons were detained . Under domestic law , patients immobilised by belts should be examined and checked TIME . If patients stayed calm and there were no other indications for the use of belts , they should be released ; it should also be ensured that the patient did not need to use the toilet . However , PERSON had not been examined TIME . He had been properly examined only once , TIME after he had been immobilised by the belts . Moreover , immobilisation by belts should not have been applied to him in the first place . The accused had thus deliberately failed in their obligation to protect PERSON life . Moreover , they had been completely unaware of the rules governing the manner in which care was to be provided to immobilised patients . In particular one of the accused , who was a doctor , had believed that a patient could be kept immobilised for TIME without being released .

The accused and the applicant appealed against the judgment .

On DATE ORG quashed the judgment and remitted the case to the lower court . The court considered premature the first - instance court ’s conclusions relating to the manner in which Mr ORG death had occurred . It found that the accused had been correct in submitting that the exact time of the events and Mr ORG death should have been specified since the accused had been responsible for providing care to him at different times . It also indicated that other evidence needed to be taken , in particular from the expert witnesses from the ORG who had prepared the most recent opinion .

The case was transferred to ORG which held a first hearing on DATE . In DATE the case was still pending before that court .

The relevant provisions of LAW provide as follows :

LAW

“ Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of DATE . ”

Article CARDINAL

“ CARDINAL . Anyone who exposes a human being to an immediate danger of loss of life , serious bodily injury , or a serious impairment of health shall be subject to the penalty of deprivation of liberty for DATE .

If the perpetrator has a duty to take care of the person exposed to danger , he shall be subject to the penalty of deprivation of liberty for a term of DATE . ”

Section CARDINAL of the Ordinance of the Minister for ORG of DATE on the procedure for dealing with intoxicated persons , the organisation of sobering - up centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in sobering - up centres ( ORG i ORG Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień ) states that direct coercion may be applied in accordance with the rules laid down in CARDINAL of the DATE ORG , which provides in particular that direct coercion can consist of immobilisation , among other methods . Section CARDINAL of the above - mentioned LAW further refers to the LAW of the Minister for ORG of DATE on the form of application of direct coercion ( w sprawie sposobu stosowania przymusu bezpośredniego ) , which determines the manner in which direct coercion may be applied .

The latter ordinance provides , in so far as relevant :

“ CARDINAL ( CARDINAL ) A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than TIME . If necessary , the doctor , after personal examination of the patient , may extend the use of immobilisation for subsequent periods of TIME .

CARDINAL A nurse on duty shall check the state of the immobilised or isolated person no less frequently then TIME , including when the person is asleep . The state of the person shall be recorded on the [ patient ’s ] card without delay . ”


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Elisabet Fura;Ineta Ziemele

The applicant was born in DATE and lives in GPE .

On DATE at TIME the applicant was arrested by police officers from the anti - terror branch of ORG on suspicion of membership of an illegal organisation , the ORG ( ORG Party ) . According to the arrest protocol , the police officers had to use force to apprehend the applicant since he resisted the arrest . The applicant refrained from signing this document . The applicant alleged that , contrary to what was indicated in the arrest protocol , he had been arrested on DATE .

Following his arrest , the applicant was blindfolded , put in a car and threats were uttered against him . After being driven around for some time , still blindfolded , he was taken to the anti - terror branch of ORG . There , the applicant was allegedly punched , kicked , beaten on the head and the back with a truncheon and threatened with death . He also alleged that his testicles were squeezed .

On DATE at TIME the applicant was examined by a doctor in ORG who noted an ecchymosis of CARDINAL x QUANTITY on the left of the lower part of his abdominal region . The doctor concluded that there were marks of physical violence on the applicant 's body and considered that he should be examined by an urologist . On DATE at TIME the applicant was examined by an urologist who found , by using the technique of palpation , that the applicant 's testicles were painful and sensitive .

On DATE the applicant was again examined by a general practitioner in ORG who considered that the applicant should be taken to an internist . According to the report drawn up by the doctor , the applicant was brought to him as he was on a hunger strike in police custody . The applicant was then taken back to ORG .

On DATE the applicant was again examined by a general practitioner in ORG who noted that the applicant was brought before him because of hunger strike . The doctor considered that the applicant should be examined by an internist . On DATE , the applicant underwent a blood test .

On DATE the applicant was examined by a doctor in ORG who noted that there was no sign of physical violence on his body .

On DATE , the applicant was brought before the public prosecutor at ORG . In his statement , he maintained that he had been subjected to ill - treatment while in police custody and that , therefore , he had started a hunger strike . Subsequently , on DATE , the applicant was brought before the investigating judge at ORG . Before the judge , the applicant maintained that he had been kept in police custody for DATE and that he had been subjected to ill - treatment during custody . He further denied the accusations against him . The judge ordered the applicant 's release as there was no strong evidence demonstrating that he had committed the offences of which he was accused .

On DATE the applicant filed a complaint with the PERSON public prosecutor 's office against the police officers from the anti - terror branch of ORG , who had allegedly ill - treated him . In his petition , the applicant maintained that he had been arbitrarily deprived of his liberty DATE and that he had been subjected to ill - treatment while in police custody . He further contended that on DATE of his detention in police custody he had fainted due to ill - treatment and that he awoke in ORG . He finally maintained that on DATE the doctor had drawn up the medical report without examining him .

Upon receipt of the applicant 's petition , on DATE the PERSON public prosecutor took a statement from the applicant who reiterated his complaints and requested that the police officers who had illtreated him be punished . The public prosecutor then requested the doctor at ORG to examine the applicant and submit a medical report .

Still on DATE , the applicant was examined by a medical expert from ORG , who observed CARDINAL scarred incisions of QUANTITY each on his nose and on his left heel , a scarred incision of QUANTITY on his left elbow and an ecchymosis of QUANTITY on his abdominal region .

On DATE the applicant was examined by CARDINAL medical experts from ORG who noted the following marks and considered that the applicant 's account of events was consistent with the marks observed on his body :

“ ... a scabbed wound of CARDINAL x QUANTITY on the left elbow , a scabbed wound of CARDINAL x QUANTITY on the right side of the lower lip , an old wound of QUANTITY in diameter on the forehead , a scabbed wound on the left heel , a dark brown ecchymosis of QUANTITY on the left lower part of the sternum , haemorrhage on the upper part of the external part of the outer ear .... ”

On DATE the PERSON public prosecutor issued a decision of lack of territorial jurisdiction and sent the investigation file to the PERSON public prosecutor 's office .

On DATE and DATE respectively the PERSON public prosecutor took statements from CARDINAL police officers who were on duty at the anti - terror branch of ORG at the time of the applicant 's detention in police custody . The first officer PERSON contended that he had signed the document containing the applicant 's statements but had not participated in the questioning . He denied the allegations against him . He further maintained that there had been no need to torture the applicant as the security forces had already found several organisational documents of the ORG in his house . The second officer , GPE , denied the accusation and claimed that members of illegal organisations generally made this kind of false accusation . He further contended that the minor marks mentioned in the medical report of DATE did not result from torture . He alleged that they might have been the marks resulting from handcuffing .

On DATE the PERSON public prosecutor took a statement from the applicant , who reiterated his allegations and emphasised that he had been arrested on DATE , although the date on the arrest protocol was DATE .

On DATE the PERSON public prosecutor issued a decision not to prosecute in respect of the police officers . He found that there was no evidence other than the applicant 's allegations on which to initiate criminal proceedings against the police officers .

On DATE the applicant filed an objection against the decision of DATE .

On DATE ORG dismissed the applicant 's objection . This decision was served on the applicant 's lawyer on DATE .


The applicant is an NORP national , born in DATE and currently residing in PERSON .

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

The applicant started suffering from a rare and serious illness called metabolic myopathy in DATE . Metabolic myopathy provokes physical exhaustion , severe myalgia , difficulties in breathing , loss of the power of speech . The applicant in particular suffers from a " thermal disability " i.e. cold temperatures and changes in temperature cause him intense muscular pain . He is often forced to use a wheelchair .

However , the applicant ’s illness was not diagnosed until DATE . Prior to that date , the applicant was thought to be a psychopath .

In DATE the applicant was recognised as PERCENT disabled and started receiving a pension as a result .

The applicant embarked on a series of actions and demonstration , including hunger strikes , in order to obtain the removal of architectural obstructions ( barriere architettoniche ) and to obtain some form of social help .

On an unspecified date in DATE , as a consequence of CARDINAL of these actions , the applicant was allegedly ill - treated by the police . On DATE the applicant filed a criminal complaint against the police in relation to the above facts , which was however dismissed .

The applicant ’s detention

On an unspecified date the applicant requested the President of the Province of PERSON to enforce provincial law no . CARDINAL of DATE , which , inter alia , imposes certain obligations upon the provincial social security service to help those suffering from metabolic myopathy . The President of the GPE of PERSON filed a criminal complaint against the applicant for extortion , on the ground that he had tried to force the administrative authorities to favour him . On DATE , the applicant was arrested .

On DATE , after CARDINAL medical experts’ reports had established that the applicant ’s physical condition was not compatible with detention , he was released . The charge against him was then converted from extortion into " arbitrary and violent exercise of his rights " ( esercizio arbitrario delle proprie ragioni con violenza alle persone ) , but later dropped , no formal complaint having been lodged against him on this charge ( non doversi procedere per difetto di querela ) .

On DATE ORG awarded the applicant compensation ( MONEY ) for the CARDINAL-day unfair detention ( ingiusta detenzione ) , on the ground that the charge against him had been dropped and in consideration of his poor state of health .

However , on DATE ORG lodged an appeal against this decision to ORG . These proceedings are currently pending .

The applicant ’s accommodation

Since DATE the applicant had lived in a privately rented apartment in via Suffragio no . MONEY ( hereinafter referred to as “ the first apartment ” ) , which he had adapted , at his own expense , to his needs in view of his pathology .

In DATE ORG , hereinafter referred to as " ITEA " ) expropriated the building . ITEA intended to renovate the building , and tried therefore to find another suitable accommodation for the applicant , who demanded the respect of certain criteria and technical characteristics .

On DATE , an apartment located in via Suffragio no . CARDINAL ( hereinafter referred to as “ the second apartment ” ) was allocated to the applicant by ORG ; the applicant moved into it , despite the fact that he considered it to be inadequate to his needs .

On DATE the applicant and ITEA entered into the relevant lease contract ; the rent was fixed at MONEY per month .

In DATE provincial law no . CARDINAL was enacted , according to which ORG has an obligation to provide persons who are recognised as PERCENT disabled with accommodation meeting their specific needs .

In DATE the applicant ceased the payment of the rent , demanding that certain works be carried out in the apartment with a view to making it fit for his needs .

On DATE ORG instructed a lawyer to commence proceedings with a view to recovering the arrears of rent from the applicant and to recovering possession of the apartment . On an unspecified date , the ORG formally confirmed the notice to quit and set the date of the applicant ’s eviction at DATE .

On DATE ITEA submitted to the applicant a plan of payments of the arrears over CARDINAL instalments ; this proposal was refused .

On DATE ORG decided to refrain from requesting the enforcement of the ORG ’s order for possession for DATE , in consideration of the applicant ’s health condition and of his alleged credit towards ORG on account of the expenses he had incurred in order to adapt the apartment to his needs .

On DATE ORG acknowledged part of the amounts claimed by the applicant .

On DATE , the applicant paid part of his outstanding debt to ORG .

In connection with the remainder of the applicant ’s debt and for the legal costs and expenses incurred by ORG , the enforcement of the eviction order was pursued and fixed at DATE .

On DATE the applicant , after having occupied as a protest the hall of FAC , poured QUANTITY of petrol around the building where his flat is . He was arrested and subsequently convicted . In the meantime , the other occupants of the building had to vacate it for DATE .

On DATE ITEA submitted to the applicant another plan of payment of the arrears of rent and legal costs and expenses . The applicant replied that he was ready to pay for the arrears of rent but not for the legal costs and expenses .

On DATE ORG instructed its lawyer to pursue the applicant ’s eviction .

On DATE ORG requested the assistance of ORG of PERSON ( PERSON per i Servizi Sanitari della GPE di PERSON ) , which accepted .

The eviction was postponed until DATE . The applicant ’s lawyer requested ORG to refrain form the eviction so that he could find a solution . The new date for the eviction was fixed at DATE .

On DATE and DATE , however , ORG decided to stay the eviction until DATE .

On DATE ORG requested the applicant to demolish certain parts he had illegally built on his balcony , in pursuance of an order issued by the municipality on DATE .

On DATE and CARDINAL DATE ORG decided to stay the applicant ’s eviction .

On DATE and CARDINAL DATE ORG decided to stay the applicant ’s eviction for DATE , pending the proceedings opened by the PERSON municipality with a view to withdrawing the allocation of the second apartment to the applicant .

On DATE the ORG revoked the allocation of the apartment to the applicant pursuant to provincial law no . CARDINAL , on account of the repeated breaches of the terms of contract by the applicant .

The applicant alleges that he was not served notice of this decision . The Government maintain that he received notification of it on DATE and submit that the applicant failed to lodge an appeal to the competent ORG ( PERSON ) and was thus informed , on DATE , that the decision on withdrawal was final but that he had the possibility of requesting that its enforcement be suspended .

In a report issued on DATE by ORG of PERSON it was stated that the second apartment did not meet the requirements laid down in the relevant legislation . In particular : a ) access to the WC is difficult for a disabled person ; b ) the bathtub is inadequate for the hydrotherapy needed by the applicant ; c ) the windows are not triple glazed ; d ) there is no structural separation between the apartment and the loft ; d ) the roof is not adequately insulated due to the presence of cracks .

On DATE the applicant ’s eviction was stayed for DATE . ITEA inquired whether the decision on withdrawal could be suspended but the Province informed it that it was not possible in the absence of a request by the applicant . By a note of CARDINAL DATE , GPE confirmed that the applicant had never requested the suspension of the decision on withdrawal .

On DATE the applicant was evicted . He went to live in a camper van parked in the main square of PERSON .

On DATE the GPE informed ORG of PERSON to be ready to allocate to the applicant , upon his request , a place in a home for the sick and to request ORG for the study of metabolic diseases ( PERSON malattie metaboliche ) , set up by GPE PERSON and composed of CARDINAL medical doctors , to express its opinion as to whether the applicant needed to be accommodated in CARDINAL of these homes .

On DATE the applicant filed an application with the Magistrate ’s Court of PERSON requesting , inter alia , that the second apartment be adapted to his needs and that he be reinstated in it . However , by an ordinance issued on DATE the ORG declared its incompetence to grant the applicant ’s requests and thus rejected them . The court pointed out that it was for the administrative courts to order ITEA to comply with its obligation and to provide the applicant with an adequate apartment .

On DATE the Commission for the study of metabolic diseases issued a report on the applicant ’s case listing the requirements which the applicant ’s accommodation should meet .

In connection with the arrears of rent , on DATE the ORG issued an injunction of payment .

On DATE the provincial body on residential housing ( FAC della GPE autonoma di PERSON ) stated that it would not be possible to allocate another apartment to the applicant , on account of his insolvency .

On DATE the applicant was hospitalised in PERSON ; his condition has dramatically deteriorated on account of his living in an inadequate environment ( camper van ) . On DATE the applicant went on hunger strike . In a report issued on DATE by a commission of doctors from the hospital , it was stated that the applicant should be discharged from hospital due to the lack of facilities adequate to his illness and that therefore a solution to his housing problem was urgently needed .

On DATE the applicant ’s moveable items were seized from the second apartment with a view to recovering the arrears of rent owed by the applicant .

On DATE the health and social affairs councillor ’s office ( assessorato alla sanità e attività sociali ) of GPE decided that it would try to find an institution which would accept to bear the costs for the rent and maintenance of the apartment for the applicant , pursuant to LAW no . CARDINAL . The apartment would thus be formally allocated to this institution , which would then make it available for the applicant . On DATE a representative of the councillor ’s office was formally appointed to this task .

In co - operation with the PERSON municipality , CARDINAL apartments owned by ORG were found ; ORG for the study of metabolic diseases was requested to inspect them with a view to finding a suitable one .

By a note of CARDINAL DATE , ORG for the study of metabolic diseases stated to have found that the one in Aldeno ( hereinafter referred to as “ the third apartment ” ) was suitable . The applicant was informed accordingly .

By a decision of DATE , the PERSON dell’Adige of GPE allocated the third apartment to the applicant . ORG for the study of metabolic diseases pointed out that certain works needed to be carried out in the third apartment with a view to making it fully adequate to the applicant ’s medical condition , and the PERSON stated that it would proceed with the works after the applicant ’s formal acceptance of the apartment .

The applicant however refused to accept the third apartment and to leave the hospital .

On DATE the Director of ORG , having learned that a suitable apartment had been put at the applicant ’s disposal , requested the latter to leave the hospital , as his presence there was not needed any more and the place he occupies in the hospital was necessary for other patients .

On DATE the applicant was formally discharged from hospital . The Director of the ORG has requested the police to evict the applicant .


Preliminary objection rejected (non-exhaustion);No violation of P7-4;No violation of Art. 6-1

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

He entered GPE in DATE . At the material time , he worked for a business in GPE .

On DATE he and another person , PERSON , were arrested by officers from ORG ( “ the ORG ” ) and customs officers on the verge of concluding a drugs deal with a couple , who managed to make their getaway .

NORP The applicant consistently protested his innocence , saying that he had been the victim of a put - up job by customs officers . He explained that he had agreed to act as an “ informer ” , and in that capacity had cooperated with J .- F. R. of the ORG and PERSON , a customs inspector and the person allegedly behind his arrest . As for the couple who had “ escaped ” arrest by the police , they were in fact both customs officers , known as “ LOC and “ PERSON .

On DATE the applicant was charged with drug trafficking and detained . On DATE he was brought before ORG , which on DATE sentenced him and PERSON to the following penalties : ( a ) DATE imprisonment for the criminal offences of importing , purchasing , possessing and transporting drugs , attempting to supply drugs , and importing , possessing and dealing in drugs without a licence ; ( b ) an order permanently excluding them from NORP territory ; and ( c ) an order requiring them to pay MONEY ( ORG ) in lieu of confiscation and a customs fine of ORG CARDINAL,CARDINAL that was imposed jointly and severally for the customs offence of illegally importing goods .

ORG also made an order under LAW in the same judgment for the defendants ' imprisonment if the sums were not paid .

On DATE the public prosecutor sought an order for DATE imprisonment in default , as the customs fine had not been paid .

On DATE ORG of ORG upheld ORG judgment in its entirety , as regards the issues of both criminal law and customs law .

On DATE the applicant decided to appeal to ORG ; however , he later withdrew his appeal and the case was struck out of ORG list on DATE .

On DATE the applicant completed his prison sentence . However , he remained in custody pursuant to the order requiring him to serve DATE imprisonment in default of payment of the customs fine of ORG CARDINAL . He made an urgent application to the President of the GPE tribunal de grande instance , arguing that the order for his imprisonment in default was defective , as ORG had failed to serve him with a demand for payment . The urgent - applications judge dismissed that application in an order of DATE . In a judgment of CARDINAL DATE ORG upheld that order for the following reasons :

“ Under LAW the court may make an express order for a person who has been convicted of a [ customs ] offence or offence relating to indirect taxation to remain in custody , even if an ordinary appeal or appeal on points of law has been lodged , until he or she has paid the fiscal penalties imposed on him or her .

The courts have consistently held that customs law is a special branch of law and an exception to the general law .

In the present case , the express reference in LAW to LAW relates only to the length of the imprisonment in default .

Consequently , since ORG made an express order – upheld by ORG – under LAW for enforcement of the order for imprisonment on the ground of anticipatory default , the provisions of Articles CARDINAL et seq . of LAW giving the President of the tribunal de grande instance jurisdiction to hear urgent applications are inapplicable . ”

On DATE ORG ruled that the applicant 's appeal on points of law against that decision had lapsed , as he had not lodged written pleadings in support of his appeal within the statutory time - limit .

On DATE the applicant made an application for an order for the prison sentence and the term of imprisonment in default to run concurrently , arguing that he was serving CARDINAL prison sentences for the same offence .

He alleged a violation of LAW No . CARDINAL to the LAW , which sets out the non bis in idem rule , and of LAW . He relied in particular on the ORG 's judgment in PERSON GPE ( judgment of DATE , Series A no . CARDINAL-B ) , in which imprisonment in default was found to constitute a “ penalty ” for the purposes of the Convention .

In a judgment of CARDINAL DATE ORG dismissed the applicant 's application on the grounds that , firstly , “ ORG judgments are declaratory and therefore not binding on the trial court , which is only required to apply LAW ” ; and , secondly , “ imprisonment in default possesses the legal characteristics not of a penalty , but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure ” . ORG concluded from that that LAW , which required sentences to run concurrently , had not been infringed by the trial court and could not enable a prison sentence and term of imprisonment in default to be served concurrently .

On DATE the applicant appealed to ORG against that judgment . In a judgment of DATE ORG dismissed the appeal for the following reasons :

“ The appellant can not validly argue that , by sitting in private in accordance with LAW , ORG infringed LAW ...

The requirement for a public hearing laid down by that provision applies only to proceedings for ' the determination of a criminal charge ' and can not therefore be relied on with respect to proceedings relating , as in the instance case , to an application for a ruling that sentences be served concurrently ...

The impugned judgment and procedural documents show that the appellant , PERSON GPE , was found guilty of an offence under the drug - trafficking and customs - offences legislation and , inter alia , sentenced to DATE imprisonment and a customs fine . After being ordered to serve DATE imprisonment in default of payment , he made an application for a ruling that that term should run concurrently with the prison sentence .

In dismissing that application , ORG found , in particular , that imprisonment in default possesses the legal characteristics not of a penalty , but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure .

In these circumstances , ORG has justified its decision and the alleged grievance is without foundation ... ”

NORP The applicant , who has now completed all the sentences he was required to serve , was deported to GPE , where he came from , pursuant to the permanent exclusion order .

Imprisonment in default is a surviving relic of the debtors ' prison , and entails jail for the recalcitrant debtor . It is now only available as a remedy to the ORG and guarantees the recovery of money owed to the ORG , such as financial penalties or any other sums due to the ORG apart from civil reparation .

When the applicant was convicted , Article L.CARDINAL - CARDINAL of LAW was still in force and provided :

As an exception to the provisions of LAW , the length of imprisonment in default shall be DATE where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed FRF CARDINAL . ”

Article CARDINAL of LAW , which came into force on DATE , contains identical provisions .

Article CARDINAL of the Customs Code provides :

“ Judgments concerning customs offences may be executed by any means provided for by law .

Judgments by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default ... ”

“ A person convicted of a customs offence or an offence relating to indirect taxation may , where the court makes an express order to that effect , be kept in detention , even if an ordinary appeal or an appeal on points of law has been lodged , until he has paid the fiscal penalties imposed on him ; save in the case of drug offences , any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in LAW for failure to comply with an order to pay a sum equal to the fiscal penalties imposed . ”

As an exception to the general law , the customs authorities may , therefore , seek a court order under LAW for the enforcement of an order for imprisonment on the ground of anticipatory default of payment of a customs fine . In practice , this means that , instead of being released , a debtor who has completed his or her prison sentence for a criminal offence will immediately begin to serve the term of imprisonment in default .

Traditionally , the courts regarded imprisonment in default as a means of enforcement intended to compel debtors to perform the obligations imposed on them . Following the ORG 's judgment in ORG , cited above , ORG has ruled that imprisonment in default constitutes “ a measure of a penal nature , prescribed by law to guarantee compliance with pecuniary orders , fiscal penalties and fraudulently evaded duties , as permitted by LAW ( b ) of LAW ” and not “ a subsidiary prison sentence that may run concurrently with a custodial sentence pursuant to ORG CARDINAL and CARDINAL of the former Criminal Code ” ( ORG ( “ PERSON . crim . ” ) , CARDINAL DATE ) . ORG added , in a judgment of CARDINAL DATE , that “ an order for imprisonment in default constitutes a penalty within the meaning of LAW and , if ordered to ensure the payment of debts due to the customs authorities , is unenforceable unless a demand for payment has been served on the debtor under LAW and DATE before enforcement commences , as , in providing a special procedure for implementing imprisonment in default , LAW did not exclude the application of ORG CARDINAL to CARDINAL of LAW ” ( Court of Cassation , Commercial Division ( “ GPE . com . ” ) , CARDINAL DATE ) .

This rule is laid down by LAW , which was in force when the applicant was sentenced :

“ If a defendant is convicted of CARDINAL serious crime [ crimes ] or other major offence [ délits ] , he shall only receive the longest of the sentences . The same rule shall apply to custodial sentences imposed on a defendant convicted of CARDINAL class - five minor offence . ”

The rule that sentences shall run concurrently is now contained in Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL of LAW .

ORG has consistently held that orders for imprisonment in default are not penal in nature , but constitute a means of enforcement . It has ruled in particular that “ although statute attaches imprisonment in default to the financial penalties it is intended to secure recovery of , it nonetheless remains a means of enforcement ” ( PERSON . crim . , DATE , CARDINAL DATE and CARDINAL DATE ) .

Consequently , owing to that interpretation of the nature of imprisonment in default , the rule that sentences must run concurrently can not apply under NORP law to a prison sentence and a term of imprisonment in default .

However , the different Divisions of ORG are divided on whether imprisonment in default constitutes a penalty or a means of execution . ORG considers that it constitutes a penalty within the meaning of LAW ( PERSON . com . , CARDINAL DATE , cited at paragraph CARDINAL above ) .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before ORG by PERSON and PERSON PERSON , lawyers practising in ORG .

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

Until DATE the applicants lived in Ziyaret ( Fis ) , a village of the ORG district in GPE , where they own property . It is to be noted that the documents attesting ownership of property , which PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and İmiş PERSON , PERSON , ORG , PERSON , PERSON , ORG and ORG ( Application nos . CARDINAL and CARDINAL ) used in ORG , bear their ORG names . It is further to be noted that the documents attesting ownership of property , which ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG , ORG and ORG ( Application no . CARDINAL/CARDINAL ) used in their village bear their brother ’s name .

On DATE security forces destroyed the applicants’ property . The applicants then moved to ORG , where they currently live . The security forces arrived to Ziyaret again and destroyed the remainder of the village on DATE and DATE .

On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to Ziyaret would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , the villagers would be required to apply to the gendarmes stations and request permission .

On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties .

On DATE some of the applicants lodged a petition with ORG requesting compensation for the pecuniary and non - pecuniary damages they suffered and asked for permission to return to their village .

The applicants received no response to their petition .

On DATE they filed a petition with ORG office in GPE for submission to ORG office in ORG , complaining about the burning down of their houses by the security forces on DATE , DATE and DATE .

On DATE ORG issued a decision of non - jurisdiction and sent the case file to ORG office in the CARDINALth ORG , in accordance with LAW no . CARDINAL ) .

The applicants were residents in GPE , a village of the GPE district in GPE , where they own property .

On DATE security forces and village guards entered GPE and destroyed some of the houses in the village . They came again on DATE , CARDINAL DATE and CARDINAL DATE , destroyed the remainder of the village and evicted the inhabitants , who moved to ORG , where they currently live .

On DATE CARDINAL other inhabitants of GPE , PERSON ORG and Mr PERSON , filed a petition with ORG office in GPE complaining about the killing of CARDINAL people , the burning down of their house and the destruction of their trees and farms by security forces and village guards .

On DATE ORG decided to discontinue proceedings . Assessing the offence in question as theft , he decided that the statutory time - limit for the offence in question had expired .

On DATE the legal representative of ORG and Mr PERSON lodged an appeal with ORG against the decision of ORG .

On DATE ORG upheld the decision of ORG .

The applicants considered themselves exempt from lodging further complaints concerning the burning down of their houses following the decision of ORG . It is to be noted that the applicants did not submit any document to the ORG attesting that they had filed petitions containing a request for permission to return to their villages .

Until DATE the applicants lived in GPE , a village of the ORG district in GPE , where they own property .

On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to Ziyaret would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , they would be required to apply to gendarmes stations and request permission .

On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that security forces would not be responsible for any casualties .

On DATE some of the applicants lodged a petition with ORG requesting compensation for the pecuniary and non - pecuniary damages they suffered and permission to return to their village .

On DATE they filed a petition with ORG office in ORG to be referred to ORG office in ORG , complaining about the burning down of their houses by the security forces on DATE .

On DATE ORG issued a decision of non - jurisdiction and sent the case file to ORG office in the CARDINALth ORG , in accordance with LAW no . CARDINAL ( Military Criminal Code ) .

On DATE ORG Emergency Regional Governor ’s office in GPE rejected ORG claim for compensation . It is to be noted that the applicants did not submit any document attesting the response of this office .

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

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

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

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

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

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


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , Mr NORP , is a GPE national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , GPE , assisted by Mr PERSON , counsel .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG

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

During GPE recent civil war , the main fighting occurred between Government forces and ORG ( the ORG or “ NORP Tigers ” ) . In DATE , a paramilitary group broke away from the ORG ; this became known as the “ GPE group ” from the name of its leader PERSON ( alias “ Colonel PERSON ) . The political wing of this group was called ORG ( TamilEela Makkal PERSON : TVMP ) . DATE and DATE the GPE group fought with the Sri NORP armed forces against the NORP in GPE of GPE . In DATE GPE was expelled from the ORG after a dispute between him and his former deputy , PERSON ( also known as ORG ) . PERSON was later detained in GPE for immigration offences ; during this time the ORG was registered as a political party and , after elections in DATE , ORG became chief minister of GPE ( see ORG reports on GPE of DATE at annex C , p. CARDINAL and DATE at annex B , p. CARDINAL ) .

The applicant arrived in GPE on DATE . He initially claimed to be visiting his brother but , when pressed , did not know his brother ’s address or phone number . When questioned further , he claimed asylum . He claimed to have formed a political party called ORG and to have stood as an independent candidate in the DATE provincial elections in GPE , LOC , in eastern GPE . In DATE , he had announced that he would publish a book giving details of human rights abuses of NORP in the district . He claimed that , on DATE , he was beaten up by CARDINAL unidentified men who warned him not to publish the book . He was later given a similar warning by telephone by the NORP . On DATE , at a branch meeting of the party , the applicant was attacked by an armed group who warned him to withdraw from the election or he would be killed . He attempted to report this incident to the police . On DATE , another group of armed men visited the party ’s office and made similar threats . The applicant believed these men belonged to the ORG group . A further attack took place on DATE when CARDINAL candidates from the applicant ’s party were attacked whilst putting up posters . DATE the applicant travelled to GPE and , the following day , he attended an anti - TMVP demonstration at which he was interviewed by ORG . He telephoned his home town and was told that , as a result of the interview , the Government and the ORG group were looking for him . He was warned not to return home . He nonetheless did so on DATE , and continued his political activities until DATE , DATE . His home was visited by armed men . Although he was not there at the time , his parents were given another warning . The applicant travelled to ORG ( also in LOC ) and then GPE . He fled to GPE using his GPE passport .

His asylum claim was refused by the Secretary of ORG on DATE . It was found not to be credible that , in his asylum interview , the applicant had failed to remember the full name of the man with whom he had founded ORG or the name of CARDINAL other party candidates . He had failed to show whether the armed groups who had threatened him were affiliated to a political party and it was speculative to consider that they were Government forces . There were inconsistencies between the applicant ’s account and the transcript of the interview with the ORG . For instance , he had claimed to have spoken about removing arms from the ORG group and made comments about fair elections , neither of which were in the transcript . This indicated he had fabricated his account that he was of interest to the ORG group and the Government . He had also failed to mention in the transcript who had assaulted the party ’s candidates and thus there was no evidence that he had accused the ORG group or the Government of being responsible for the attacks . He had also referred to himself in the broadcast as “ a candidate of ORG of CARDINAL ” yet stated in his asylum interview that he belonged to ORG . It was also incredible that he would have returned home after the broadcast and , despite his fear of the Government , he had left GPE on his own passport without any difficulties . He had , by his own admission , never been harmed by the ORG or the ORG group and had no further problems with the NORP despite having published his book . Finally , the Secretary of ORG considered that the documents produced by the applicant in support of his claim , including an election card and poster , and a recording and transcript of the ORG interview , did not assist him in any material way . The recording had not been independently corroborated and the transcript was incomplete .

The applicant appealed against the Secretary of ORG ’s refusal . His appeal was dismissed by the then ORG on DATE . It was accepted he had published the book as he had claimed and that this would have brought him to the attention of the ORG and the ORG . It was accepted that elections took place in eastern GPE on DATE and they had been marred by violence by paramilitary groups , including the ORG . It was surprising that the applicant had been unable to recall basic information as to his fellow candidates but it was accepted that the applicant had stood in those elections and the claims of harassment and attacks of the applicant and his party were consistent with the background evidence . The applicant ’s assumption that the armed men were part of the ORG group was entirely reasonable in the circumstances and it was credible that the ORG would have shown an interest in a rival party . The ORG was also satisfied that the applicant had given an interview at an anti - TMVP demonstration in GPE but it was not clear what he had said . It was further accepted that the applicant had been forced to flee as a result of the threats which had been made and the interview he had given . He would therefore be at risk in his home area . However , having considered this ORG ’s judgment in ORG . v. GPE , no . CARDINAL , DATE , ORG concluded that the applicant would be safe in GPE where the ORG were not active . There was insufficient evidence that he would be wanted by the Sri Lankan authorities rather than the ORG ; there was little evidence of harassment of opposition groups by the ORG as shown by the fact that the demonstration at which the interview had been given had passed off relatively peacefully . The applicant was not on a wanted list nor was there any outstanding arrest warrant . He would be questioned at GPE airport on return but not detained or ill - treated .

An application for reconsideration of the determination was refused by a senior immigration judge on DATE , who found that , on the evidence before it , the ORG had been entitled to find as it did .

The applicant ’s brother arrived in GPE on DATE with a student visa which was valid until DATE . He claimed asylum in GPE in DATE on the basis that he was suspected of assisting the ORG by providing a vehicle to transport weapons . He stated that he had previously earned a living in GPE by hiring CARDINAL vehicles but had decided to study in GPE and had handed his vehicles and business interests to a family friend . He had no problems prior to leaving GPE but , in DATE , his parents had telephoned to say that the police had come looking for him . The police had shown his parents an arrest warrant and told them that the family friend had been arrested while carrying weapons . The Secretary of ORG refused the asylum claim inter alia because the brother had initially said that the family friend had been arrested because he had been carrying election propaganda but later said that it was because he had been carrying weapons .

The brother appealed to the First - tier ORG ) ( formerly ORG ) and produced a series of documents in support of his claim , including a letter from a GPE lawyer to the applicant ’s father and a copy of the arrest warrant with an LANGUAGE translation . Although the Secretary of ORG did not accept the authenticity of the documents ( arguing that forgeries were easily obtainable in GPE and that it was difficult to obtain a copy of one ’s own arrest warrant ) , attempts to verify their authenticity had not been successful .

On DATE , the ORG allowed the brother ’s appeal . Although it had not been explained how the arrest warrant came into the possession of the family , the Secretary of ORG had not undertaken checks , had not appeared before the ORG and had not stated that the documents were forgeries . The arrest warrant was corroborated by the rest of the documents submitted by the brother , it was accepted it had been issued and further accepted that the police had visited the family home . Given the significance of an arrest warrant as a risk factor , the ORG concluded that there would be a real risk of ill - treatment on return .

NORP The applicant made further representations to the Secretary of ORG on DATE and submitted further objective information in support of his asylum claim , which showed that opponents of the ORG were at risk and that a number of NORP had been murdered . It appears that these representations were not received by the Secretary of ORG at the time .

Removal directions were set for the applicant ’s removal to GPE on DATE . On DATE , the applicant lodged an emergency application for judicial review . It appears that at this point the Secretary of ORG became aware of the representations . The removal directions were then cancelled .

NORP The Secretary of ORG rejected the representations in a letter dated DATE . The Secretary of ORG found that , even if he were at risk from members of the ORG , the applicant could safely relocate to PERSON , but , in any event , the latest evidence showed that even a localised risk had been eradicated . A consideration of the risk factors set out in ORG , and endorsed in ORG , cited above , and ORG ( see paragraphs CARDINAL and CARDINAL below ) , showed that there was no real risk of ill - treatment at the hands of the GPE authorities .

The judicial review application was refused by ORG on DATE . It was found that there was nothing in the judicial application to impugn the Secretary of ORG ’s initial decision to refuse asylum or the decision of ORG .

When removal directions were then set for the applicant ’s removal to GPE on DATE , the applicant made a second emergency application for judicial review to ORG . He relied on new evidence that he was of continuing interest to the GPE authorities , including a witness statement from his mother and a letter from a GPE lawyer which appended LANGUAGE translations of an arrest warrant for the applicant and CARDINAL court summonses containing the names of the applicant and QUANTITY other men .

Those documents have been provided to the ORG .

The letter from the GPE lawyer , addressed to the applicant ’s former legal representatives and dated DATE , thanked the legal representatives for their instructions of DATE . The GPE lawyer stated that he contacted ORG , who advised him that an arrest warrant was issued in respect of the applicant on DATE . The letter gave the case reference number for the arrest warrant , stated that it was “ live ” and valid until executed . The letter states that service of the warrant was attempted on DATE .

The first court summons from ORG is dated DATE . It gives the names of the applicant and CARDINAL other men , and the particulars of their offence as having connection with terrorists and aiding and abetting terrorists . The summons requires the applicant to appear before the court on DATE . The second court summons is dated CARDINAL DATE and orders his appearance on DATE .

The arrest warrant is dated DATE and authorises the arrest of the applicant for the purposes of bringing him before the same court , ORG .

On both court summonses , the name of CARDINAL of the CARDINAL other men is similar to the name of the applicant ’s brother , though the parties in their submissions to ORG ( see further below ) have confirmed that it is a different person . The parties have also confirmed that the summonses and warrant are different documents from the arrest warrant considered by the First - tier ORG ) in the appeal of the applicant ’s brother .

In her statement , the applicant ’s mother said that CARDINAL police officers visited the family home on DATE and told her that the applicant was being sought for suspicious activities on behalf of the NORP and against the ORG . She was shown a document which stated that the police had an arrest warrant to this effect . The police then said that they would be back in DATE and warned her that her son would have to face terrible consequences if he failed to surrender .

On DATE , the Secretary of ORG wrote to the applicant stating that the grounds which he relied on in the second judicial review application could reasonably have been raised in the previous judicial review application and she was not prepared to defer his removal unless a ORG injunction was obtained .

The second application for judicial review was refused on DATE . ORG found :

“ The asylum claim before the Immigration Judge in DATE , and upheld , was a fear of persecution from the ORG . Then as late as CARDINAL September CARDINAL the judicial review was based on what was said to be a fresh claim ‘ that as an opponent of the ORG he would at risk [ sic]’ ... Now it is said that his fear is from the authorities , because there is an arrest warrant out for him and a statement from his mother that the police have been looking for him . Having given the matter close attention I am afraid I regard this simply as a last ditch attempt to prevent removal . It has no prospect of success . ”

DATE , ORG refused permission to appeal , a single judge of that court stating that he was not persuaded that there was a realistic prospect of a successful appeal against the refusal of interim relief . The applicant has since informed this ORG that the ORG determination in respect of the applicant ’s brother was not placed before ORG or ORG .

The Government proceeded with the applicant ’s removal from FAC airport on DATE but he was removed from the aircraft when he claimed to be experiencing chest pains . Removal directions were reset for DATE .

On DATE the applicant lodged an application with this ORG and the same day the President of the ORG to which the application was allocated decided to apply Rule CARDINAL of ORG and to indicate to the Government of GPE that the applicant should not be removed to GPE until DATE to enable further consideration of the application .

On DATE , the applicant was requested to submit further information to the ORG , including a copy of the ORG determination in respect of his brother . This was sent by post DATE .

On DATE , the Agent of the Government of the GPE informed the ORG that removal directions had been set for DATE . He further informed the ORG that , while the applicant ’s brother had been granted asylum , this had no bearing on the consideration of the applicant ’s case , which had been carefully considered on its own merits .

On DATE the President of the ORG decided that Rule DATE should be applied until further notice , that notice of the application should be given to the respondent Government , and that they should be invited to submit written observations on the admissibility and merits of the case .

ORG determination in LP ( NORP area DATE Colombo – risk ? ) GPE [ DATE ] UKAIT DATE was considered by ORG in ORG . , cited above , § § CARDINAL–CARDINAL . The headnote to the determination provided :

“ ( CARDINAL ) NORP are not per se at risk of serious harm from the Sri NORP authorities in GPE . A number of factors may increase the risk , including but not limited to : a previous record as a suspected or actual ORG member ; a previous criminal record and/or outstanding arrest warrant ; bail jumping and/or escaping from custody ; having signed a confession or similar document ; having been asked by the security forces to become an informer ; the presence of scarring ; return from GPE or other centre of NORP fundraising ; illegal departure from GPE ; lack of an ORG card or other documentation ; having made an asylum claim abroad ; having relatives in the ORG . In every case , those factors and the weight to be ascribed to them , individually and cumulatively , must be considered in the light of the facts of each case but they are not intended to be a check list .

( CARDINAL ) NORP If a person is actively wanted by the police and/or named on a Watched or Wanted list held at FAC , they may be at risk of detention at the airport .

( CARDINAL ) Otherwise , the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment .

( CARDINAL ) NORP in GPE are at increased risk of being stopped at checkpoints , in a cordon and search operation , or of being the subject of a raid on a ORG where they are staying . In general , the risk again is no more than harassment and should not cause any lasting difficulty , but NORP who have recently returned to GPE and have not yet renewed their GPE identity documents will be subject to more investigation and the factors listed above may then come into play .

( CARDINAL ) Returning NORP should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured .

( CARDINAL ) A person who can not establish that he is at real risk of persecution in his home area is not a refugee ; but his appeal may succeed under LAW ORG , or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned ... ”

LP was reconsidered by the ORG in the light of ORG . in ORG ( NORP – LP updated ) GPE [ DATE ] UKAIT DATE . The ORG ’s conclusions were summarised in the headnote to the determination which , where relevant provides :

“ a ) The risk categories identified in ORG ( ORG area – NORP - Colombo – risk ? ) GPE [ DATE ] UKAIT DATE and approved by ORG ) in ORG v GPE , ORG . CARDINAL , remain valid .

b ) Events since the military defeat of the NORP in DATE have not aggravated the likely approach of the Sri NORP authorities to returned failed asylum seekers who are NORP ; if anything the level of interest in them has decreased . The principal focus of the authorities continues to be , not NORP from the north ( or east ) as such , but persons considered to be either NORP members , fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the ORG and ensuring it was supplied with arms .

c ) The records the GPE authorities keep on persons with some history of arrest and detention have become increasingly sophisticated ; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained . ”

Section CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Paragraph CARDINAL of ORG provides as follows :

“ When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph CARDINAL of these Rules and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny , ORG in PERSON ( ORG ) v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL ( paragraphs CARDINAL ) has held :

“ Accordingly , a court when reviewing a decision of the Secretary of ORG as to whether a fresh claim exists must address the following matters . First , has the Secretary of ORG asked himself the correct question ? The question is not whether the Secretary of ORG himself thinks that the new claim is a good one or should succeed , but whether there is a realistic prospect of an adjudicator , applying the rule of anxious scrutiny , thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of ORG of course can , and no doubt logically should , treat his own view of the merits as a starting - point for that enquiry ; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of ORG making up his own mind . Second , in addressing that question , both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts , has the Secretary of ORG satisfied the requirement of anxious scrutiny ? If the court can not be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of ORG ’s decision . ”

Thus , an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “ fresh claim ” which , even if then refused by the Secretary of ORG , will nonetheless generate a fresh right of appeal to be considered on the merits .

GPE Information Service report on GPE of DATE includes ( at paragraph CARDINAL ) the following excerpt from a letter from ORG in GPE dated DATE :

“ Formally it is difficult for the accused to be able to obtain a copy of his / her own arrest warrant . When an arrest warrant is issued , a copy is kept on the legal file and the original is handed to the police . An accused can not apply for copies of the arrest warrant to the relevant court . However , in practice forged documents are easily obtainable throughout GPE . Additionally given ongoing and well documented concerns over corruption in the police it would probably not prove difficult to obtain a copy of an arrest warrant , although it would probably require prior contacts within the police service . ”