Violations of Art. 5-3;Violation of Art. 6-1 (length of criminal proceedings);Violation of Art. 3;Violation of Art. 13 (lack of effective remedies against conditions in detention);Not necessary to examine remainder under Arts. 6 and 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

On DATE ORG , acting pursuant to a report from the state financial control authorities , which had audited a company whose chairperson the applicant had been , and reports by the economic police and by the company ’s trustee in bankruptcy , decided to open criminal proceedings against the applicant . At that time the applicant was living in GPE , where he had arrived on DATE .

On DATE the applicant was charged in his absence with misappropriation of funds in large amounts , contrary to Article CARDINAL § CARDINAL in conjunction with Article CARDINAL of LAW ( “ the CC”)(see paragraph CARDINAL below ) . It was alleged that in DATE , when he had been the chairperson of the board of directors of the abovementioned company , he had misappropriated MONEY . Reasoning that the applicant was accused of a “ serious ” offence ( see paragraph CARDINAL below ) and that he had gone into hiding , the investigator in charge of the case decided that , once apprehended , the applicant should be placed in pretrial detention . This decision was approved by the prosecutor in charge of the case .

The applicant averred that , after having been notified by relatives that the NORP media were circulating information that criminal proceedings had been opened against him and that he was wanted by the authorities , and after reading copies of newspapers brought by his wife in DATE , he decided to return to GPE .

NORP The applicant arrived at GPE airport on DATE and was immediately arrested , questioned and brought to the detention centre at ORG .

The following day , DATE , the applicant was apprised of the charges against him by an investigator and was questioned . The investigator confirmed the order for his detention pending trial .

On an unspecified date the applicant ’s lawyer requested ORG to release the applicant , arguing that there was not enough evidence to prove that the applicant had committed an offence .

ORG denied the request in a decision of DATE . It reasoned that , since the applicant had been charged with a serious intentional offence , he had to remain in custody , as mandated by LAW ( “ the CCrP”)(see paragraphs DATE below ) . The exception provided for by paragraph CARDINAL of that Article was not applicable , because the applicant could jeopardise the investigation in view of the number of impending investigative steps . The issues whether there was enough evidence to sustain the charges against the applicant and whether the applicant had committed other offences would arise after the conclusion of the investigation .

The applicant ’s lawyer appealed to ORG , contending that there was no risk of the applicant absconding , committing an offence , or jeopardising the investigation . In particular , the applicant had returned from abroad of his own accord , despite the fact that he had known that a criminal investigation had been pending against him .

The Chief Prosecutor ’s Office dismissed the appeal in a decision of DATE . It reasoned that in view of the rule of LAW of the CCrP the applicant had to remain in custody . There was nothing to indicate that the applicant came within the exception provided for in paragraph CARDINAL of that Article . In particular , no medical reports indicating bad health of the applicant had been submitted .

On DATE the applicant ’s lawyer filed with ORG a request for his release .

On DATE the applicant was also charged with abuse of office , contrary to LAW see paragraph CARDINAL below ) , in the context of a new investigation against him , and his pretrial detention was confirmed .

On DATE ORG decided to release the applicant on bail . It reasoned that the full elucidation of the facts of the case necessitated the questioning of a witness who had absconded and was impossible to find . Hence the proceedings against the applicant had to be stayed pending the apprehending and the questioning of the witness . The applicant ’s continued detention was therefore unwarranted and he was to be released against giving an undertaking to not leave town . Concerning the measure to secure appearance in the second proceedings against the applicant , the offence with which he had been charged DATE abuse of office – was not “ serious ” within the meaning of LAW ( see paragraph CARDINAL below ) and detention was therefore not mandatory under LAW CCrP. The applicant could thus be released on bail .

NORP The applicant paid the bail on DATE and was released DATE .

It seems that almost no investigative actions were performed DATE .

On DATE the criminal proceedings against the applicant were stayed by decision of ORG . It reasoned that it was necessary to question CARDINAL witnesses whose whereabouts were unknown . The proceedings were to be resumed immediately after the CARDINAL witnesses were tracked down .

On DATE ORG dropped the charges under LAW ORG , reasoning that , as certain witnesses could not be found and questioned , these charges could not be proven . It seems that the proceedings relating to the charges under LAW ORG continued , and , as of the date of the latest information from the parties ( DATE ) , were still pending .

From DATE of his arrest on DATE until he was released on CARDINAL DATE the applicant was kept in the detention facility of ORG .

There the applicant was held in a cell measuring QUANTITY , which he had to share with CARDINAL other persons during most of the time . There were no beds and the detainees had to sleep on the cement floor , which they covered with dirty blankets . During DATE and DATE that the applicant spent in the cell the blankets were allegedly not changed or washed . The cell was illuminated by a single electric bulb . There was no window or access to sunlight . The airing of the cell was apparently very poor . During the DATE the temperature in the cell was QUANTITY .

Food , the quantity and quality of which were , according to the applicant , very insufficient , was served without cutlery , in plastic mugs which were apparently not washed between meals . It seems , however , that the applicant was able to have food brought from the outside .

The applicant , as the other detainees , was allowed to go out of the cell for TIME twice a day – in the morning and in TIME – to go to the toilet . During the remaining time the detainees had to relieve themselves in a plastic bucket kept in the cell . They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities .

No possibility for spending time in the open or for physical exercise was provided . The detainees could only leave the cell when they received visits , were taken for questioning , or were taken to court .

The applicant submits that there were periods of CARDINAL or forty days during which he was not allowed to bathe . According to the Government , detainees were allowed to bathe once a week .

In an action brought by a person detained in the same detention facility at the same time as the applicant , ORG stated that the conditions in the facility were “ a manifestation of cruel , inhuman and humiliating treatment , contrary to the absolute prohibition of ... LAW ” .

Shortly after his release , on DATE , the applicant filed an action against ORG under ORG ( see paragraphs CARDINAL below ) . He alleged that the conditions of his detention had constituted inhuman and degrading treatment , imputable to the defendant which was in charge of the administration of pretrial detention facilities , and claimed CARDINAL old NORP levs ( ORG ) as compensation for nonpecuniary damage : pain , suffering and loss of self - respect . He described in detail the conditions of his detention and submitted that they had not been the result of a bias of the authorities against him , but an objective fact which had negatively affected all detainees for lengthy periods of time . These conditions had been violative of , inter alia , LAW .

ORG held its first hearing in the case on DATE . It declared the action admissible , instructed the applicant that he bore the burden of proof and invited him to produce evidence in support of his claim . It also invited the defendant and a prosecutor , who participated as a “ special party ” to the proceedings , to present their observations .

The next hearing took place on DATE . The applicant requested that the director of ORG be summoned as a witness and that an onthespot inspection be carried out in the detention facility and asked for leave to CARDINAL witnesses to prove the nonpecuniary damage the applicant had sustained as a result of the conditions of his detention . Counsel for ORG requested that the applicant appear in person to testify about the facts laid out in his statement of claim . She also requested that ORG be added as a defendant . The applicant insisted that the proper defendant was solely ORG . The court ordered the applicant to appear for questioning . It denied the request to summon the director of ORG , holding that the facts could properly be established through other evidence . It also denied the request for an onthespot inspection , holding that DATE had elapsed since the applicant had been released and that the current state of the detention facility could not be used as a basis for establishing its state at the time when the applicant was kept there . The court gave the applicant leave to call CARDINAL witnesses . It denied the request to add ORG as a defendant , holding that the entity against which the action had been brought was ORG .

By an order made in private on DATE the court held that the complaint had been improperly characterised by the applicant as CARDINAL under ORG . It held that the proper legal characterisation was under general tort law . Accordingly , in order for the proceedings to continue the applicant had to pay the requisite court fee ( MONEY of the amount claimed , i.e. BGL CARDINAL ) within DATE .

The applicant did not pay the fee and the court discontinued the proceedings by an order of CARDINAL DATE .

On DATE the applicant appealed against the order to ORG .

On DATE ORG quashed the order and remitted the case to ORG for continuation of the proceedings , holding that the proper legal characterisation of the facts alleged by the applicant was under LAW .

The next hearing before ORG was listed for DATE , but was adjourned because of the improper summoning of the defendant .

On DATE the applicant requested that ORG be replaced as a defendant by ORG and that ORG be added as a second defendant in view of legislative changes whereby ORG was liquidated and the administration of the pretrial detention facilities was transferred from ORG to ORG .

On DATE the applicant requested an expert opinion on the hygienic and sanitary conditions in the detention facility .

The next hearing took place on DATE . The court granted the applicant ’s request to replace the defendant and add a new defendant and adjourned the proceedings for CARDINAL DATE in order to allow the new defendant to prepare .

The next hearing was held on DATE . The prosecutor did not appear . Noting that there was no indication that the prosecutor had been duly summoned , the court decided to adjourn the case . On the motion of the applicant the court struck out ORG as a defendant .

On DATE the applicant requested that ORG be added as a defendant , arguing that this was necessary in view of the unclear regulation of the succession between ORG and ORG as regards the administration of the pretrial detention facilities .

The next hearing was held on DATE . The court questioned CARDINAL witness called by the applicant who testified about the conditions in the detention facility . The applicant reiterated his request for an expert report and asked leave to call CARDINAL more witnesses . The court stated that it would rule on all motions in private .

By an order made in private on CARDINAL DATE the court denied the request for adding ORG as a defendant , holding that the facts alleged in the statement of claim did not point to a cause of action against it . It allowed the request for an expert opinion and invited the GPE Hygienic and ORG to designate an expert who could draw up a report on the conditions in the detention facility .

The next hearing , scheduled for DATE , failed to take place because of the improper summoning of ORG .

On DATE the applicant requested the court to revoke its order of CARDINAL DATE as regards the refusal to add ORG as a defendant .

The next hearing took place on DATE . The court denied the applicant ’s request to revoke its order , holding that ORG had nothing to do with the subjectmatter of the case before it . The court invited the applicant to call the allowed witnesses . Pursuant to the motion of the defendant , the court also ordered the applicant to indicate specifically which government bodies and officials had , through their actions or omissions , caused the alleged damage .

The court , sitting in private on DATE , appointed an expert to draw up a report on the hygienic and epidemiological conditions in the detention facility .

A hearing listed for DATE was adjourned because the judge in charge of the case was on sick leave .

The next hearing was held on DATE . The expert informed the court that she could not draw up the requested report . The court gave leave to ORG to call one witness and replaced the expert . The court also instructed the applicant to rectify his statement of claim within DATE , holding that he had not specified which illegal actions or omissions of which officials had occasioned the damage he alleged to have sustained .

On DATE the applicant indicated that the officials allegedly responsible for these conditions were “ the administration of ORG ” . Expressing his surprise that the court had not found this alleged omission in the statement of claim until the eighth hearing , the applicant requested that the judge withdraw from the case , averring that her conduct denoted bias against him .

By an order of CARDINAL DATE the court denied the request for withdrawal , holding that it had power to instruct the plaintiff to rectify its statement of claim during the entire duration of the proceedings before it and its having done so was not indicative of bias , but fully compliant with the rules of procedure . The court also discontinued the proceedings , holding that the applicant had not complied with its instructions to indicate the officials responsible for the conditions in the pretrial detention facility and their exact allegedly illegal actions or omissions .

On DATE the applicant appealed against the order for the discontinuation of the proceedings .

On DATE the ORG quashed the order and remitted the case , holding that the proper defendant in proceedings under ORG were the government bodies and not the specific officials alleged to have caused the damage . The instructions of ORG had therefore been without purpose .

On DATE the ORG listed a hearing for DATE .

On DATE the applicant filed a “ complaint for delays ” under Article CARDINALa of the Code of Civil Procedure ( “ the CCP”)(see paragraph CARDINAL above ) with the chairperson of ORG , alleging that ORG had not proceeded with due diligence in examining his action . The chairperson of ORG dismissed the complaint on CARDINAL DATE , holding that the case had been adjourned many times because of changes in the legislation , the adding of new defendants and the making of evidentiary motions by the parties . The intervals between the hearings had been justified by the busy schedule of the panel examining the case .

As CARDINAL and DATE the case file was being transferred from ORG to ORG in connection with the examination of the above complaint , the hearing listed for DATE did not take place .

The next hearing took place on DATE . The court questioned CARDINAL witnesses called by ORG , who testified about the conditions in the detention facility . The applicant reiterated his request for an onthespot inspection of the facility . The court invited the applicant to specify the facts which he wanted to have proven through the inspection . It also repeated its invitation to the applicant to call the witnesses for whom leave had previously been given .

The last hearing took place on DATE . The court noted that out of CARDINAL witnesses whom the applicant had been allowed to call , CARDINAL had actually been called . It further noted that the applicant had not complied with its instructions to concretise the facts which he intended to establish through the requested inspection of the detention facility . The court thus denied the request to carry out an inspection . It also excluded the requested expert report from the evidence .

ORG dismissed the applicant ’s action in a judgment of DATE . It held , inter alia , as follows :

“ ... [ The applicant ] bears the burden of establishing the facts which are favourable to him . He was many times invited to do so by the court , but has not presented evidence about the conditions in the detention facility as a result of which he has allegedly suffered nonpecuniary damage . Neither has he adduced evidence in support of the proposition that the damage which is the subjectmatter of the claim is in a causal connection with illegal actions or omissions of officials of ORG , which participated in the administration of the pretrial detention facilities at the time when the applicant was in custody . Therefore the court considers that these facts have remained unproven . The court could not hold otherwise even if account is taken of the testimony of the witness [ ORG ] , because the witness and the [ applicant ] were not in the same cell ... It is true that that the witness testified about the conditions in the detention facility and the cell in which he had been , but ... his testimony does not establish the nonpecuniary damage suffered by the [ applicant ] , as averred in the statement of claim . Nor does it establish that the nonpecuniary damage suffered by the applicant is a result of the conditions in the detention facility .

The court could not hold otherwise even if it takes into account the testimony of the witnesses [ P. ] and [ I. ] , because in their testimony they describe the conditions in the detention facility and in the cell in which the [ applicant ] was kept , but do not establish the non - pecuniary damage claimed by the [ applicant ] and the fact that this damage is in a causal connection with the hygienic and material conditions in the detention facility . ”

On DATE the applicant appealed against the judgment to ORG . He reiterated his request for an onthespot inspection of the detention facility .

On DATE ORG , sitting in private , gave the applicant leave to call one witness and denied his request for an inspection of the detention facility . It held that , since DATE had elapsed after the applicant ’s release , an inspection could not establish the conditions in the facility as at the time he was kept there .

A hearing was held on DATE . The applicant did not show up and did not bring the witness for whom leave had been given .

ORG dismissed the appeal in a judgment of DATE . It held , inter alia , as follows :

“ On the basis of the evidence adduced before this court and the court below , the [ court ] considers that the claim has remained unsubstantiated . The claim was for compensation for nonpecuniary damage suffered by the [ applicant ] . However , apart from proof about the general state of the hygiene in the detention facility at the time of the [ applicant ’s ] stay there , there is no proof about the specific damage suffered by him . The finding that the detention facility was in a poor hygienic condition does not per se lead to the conclusion that [ the applicant ] has suffered real moral , nonpecuniary damage , because the objective fact of the hygiene and the regime in the detention facility has a subjective and very individual impact on persons with different mentalities and social status . Due to the lack of evidence about the specific effects which the conditions in the detention facility had on the [ applicant ] , as averred in the statement of claim , the claim remains unsubstantiated . The nongathering of evidence about this is the result of the inactivity of the [ applicant ] alone . The witness called by him and questioned by the firstinstance court did not testify about the applicant ’s condition during his stay in custody , and the other CARDINAL witnesses for whom leave was given by the firstinstance court and the third witness for whom leave was given by this court were not actually called by the [ applicant ] without him specifying good reasons for this omission . In view of this the [ court ] considers that the [ applicant ’s ] lack of procedural activity is tendentious and seeks to surmount the admissibility criteria for lodging an application with ORG Rights ... ”

On DATE the applicant lodged an appeal on points of law with ORG .

DATE . The court listed a hearing for DATE . However , in DATE the ORG was amended , providing that appeals on points of law to ORG were possible only in respect of actions where the amount in controversy was above ORG CARDINAL . Since the amount claimed by the applicant was ORG CARDINAL , ORG discontinued the proceedings by an order of DATE , and ORG judgment became final .

Article CARDINAL § CARDINAL of the ORG , read in conjunction with LAW , provides that the misappropriation of funds in large amounts by officials or managers is punishable by DATE imprisonment .

Article CARDINAL § CARDINAL of the ORG makes it an offence for a manager or an official to , inter alia , abuse his power or rights in order to provide a financial benefit to himself or another person , provided that this leads to nonnegligible harmful consequences . The offence is punishable by MONEY or by compulsory labour .

At the relevant time and until the reform of the CCrP of DATE an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody . The investigator ’s decision was subject to approval by a prosecutor . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , ECHR DATE ) .

The legal grounds for detention pending trial are set out in Article CARDINAL of the CCrP , the relevant part of which , as worded at the material time , provided as follows :

“ CARDINAL . Pretrial detention shall be imposed [ in cases where the charges concern ] a serious intentional offence .

NORP In the cases falling under paragraph CARDINAL [ detention ] may be dispensed with if there is no risk of the accused evading justice , obstructing the investigation , or committing further offences . ... ”

A “ serious ” offence is defined by LAW as one punishable by PERCENT DATE imprisonment .

ORG has held that it was not open to the courts , when examining an appeal against pretrial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . The courts had to examine only the formal validity of the detention order ( опред. № CARDINAL от DATE г. по ORG № DATE г. на ВС NORP н.о. ) .

According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments in force since DATE ) , LAW required that a person charged with a serious intentional offence be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .

DATE . Section CARDINAL(CARDINAL ) of the LAW provides :

“ The ORG shall be liable for damage caused to private persons by the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties . ”

Compensation awarded under the LAW comprises all pecuniary and nonpecuniary damages which are the direct and proximate result of the illegal act of omission ( section CARDINAL of the LAW ) .

The person aggrieved has to file an “ action ... against the bodies ... whose illegal orders , actions , or omissions have caused the alleged damage ” ( section CARDINAL of the Act ) .

Proceedings commenced under the Act are exempt from the initial payment of court fees ( section ORG ) of the Act ) .

Persons seeking redress for damage acts or omissions falling within the scope of the LAW have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № CARDINAL г. на ВС GPE г.о. ) .

New Article CARDINALa of the ORG , adopted in DATE , provides :

“ CARDINAL . Each party may lodge a complaint about delays at every stage of the case , including after oral argument , when the examination of the case , the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed .

NORP The complaint about delays shall be lodged directly with the higher court , no copies shall be served on the other party , and no ORG fee shall be due . The lodging of a complaint about delays shall not be limited by time .

NORP The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private . His instructions as to the acts to be performed by the court shall be mandatory . His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been lodged .

NORP In case he determines that there has been [ undue delay ] , the chairperson of the higher court may make a proposal to the disciplinary panel of ORG for the taking of disciplinary action . ”

The ORG visited GPE in DATE and again in DATE and DATE . ORG detention facility was visited in DATE and DATE . All reports included general observations about problems in all ORG detention facilities .

In this report ( ORG ( CARDINAL ) CARDINAL ) the ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were better , the conditions were as follows : detainees slept on mattresses on sleeping platforms on the floor ; hygiene was poor and blankets and pillows were dirty ; cells did not have access to natural light , the artificial lighting was too weak to read by and was left on permanently ; ventilation systems were in poor condition ; detainees could use a WC and washbasin twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in the cell bucket ; although according to the establishments’ internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to fiveten TIME or not allowed at all ; no other form of outofcell activity was provided to persons detained .

The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE ’s “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or khalva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery - not even a spoon was provided .

The ORG also noted that family visits were only possible with permission and that as a result detainees’ contact with the outside world was very limited . There was no radio or television .

The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading . ” In reaction , the NORP authorities had agreed that the [ ORG ] delegation ’s assessment had been “ objective and correctly presented ” but had indicated that the options for improvement were limited by the country ’s difficult financial circumstances .

In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for QUANTITY exercise per day be fully respected in practice , that cell lighting and ventilation be improved , and that pre - trial detainees should be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency .

In this report ( ORG ( DATE ) CARDINAL ) the ORG noted that new rules , providing for better conditions , had been enacted , but had not yet resulted in significant improvements .

In most places visited in DATE ( with the exception of a newly opened detention facility in GPE ) , the conditions of detention on ORG premises had remained generally the same as those observed during the ORG ’s DATE visit , including as regards hygiene , overcrowding and outofcell activities . In some places the situation had even deteriorated .

With regard to the ORG detention facility , the ORG found that it was “ overcrowded , poorly equipped and dirty , detainees’ access to toilet / shower facilities was problematic , there was insufficient food and drinking water and a total absence of outdoor exercise and outofcell activities ” . The ORG further found that detainees in that detention facility “ still had to eat with their fingers , not having been provided with appropriate cutlery ” .

In this report ( ORG ( DATE ) CARDINAL ) the ORG noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done . The cells remained generally overcrowded .

In GPE , CARDINAL of the cells had benefited from a refurbishment which involved making windows in the cell doors , improving the artificial lighting and installing wash basins in the cells . However , the majority of the cells remained in the same inadequate condition as in DATE . The sanitary facilities were not in a satisfactory state of repair .

Despite the ORG ’s recommendations in the report on their DATE visit , no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities . Those facilities did not have areas for outdoor exercise . At some of the establishments ( e.g. Botevgrad ) , attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day . The ORG stated that “ in this respect , the situation remain[ed ] of serious concern ” .


The applicant , PERSON , is an NORP citizen who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON , a solicitor lawyer practising in GPE .

The applicant ’s son PERSON died on DATE . He was shot dead by CARDINAL serving soldiers with ORG ( Guardsmen PERSON and PERSON ) . On DATE Mr PERSON and PERSON Fisher were convicted of his murder and sentenced to life imprisonment .

At trial both guardsmen had raised a number of defences including self - defence / defence of others and the reasonable use of force to effect an arrest .

In his judgment ( which ran to CARDINAL pages ) the trial judge ( PERSON ) rejected all of their defences and convicted the CARDINAL guardsmen of murder . He said :

“ The whole image of the case most strongly depicted nothing more than that of a cheeky young man after an impudent and improper confrontation with ORG running away as hard as he possibly could , running to escape being caught by pursuing soldiers , because of this impropriety and nothing more . That picture did not suggest a young man wandering around the district with a bomb in a bag and then when stopped and checked out for TIME running off with it , intending to throw it if need be . Nor did it suggest a plan , even a TIME plan to lead a patrol into a trap or ambush from behind a car . All the evidence underlined the fact that the deceased was running away from his pursuers increasing the distance between them , intent on shaking them off and incidentally increasing the range of any throwing distance of a coffee jar bomb .

As a witness Fisher was far from impressive . He became evasive and then untruthful as soon as he grasped the adverse significance of a point in cross - examination . I have already referred to some of these . His general demeanour when giving evidence did nothing , I am afraid , to lodge with me the possibility that he really believed at any time that he or his comrades were under threat from the deceased or anyone else . In addition his case raised very many improbabilities , the sum of which pointed to the same conclusion .

On the issue as to whether ORG case is a false CARDINAL or not , I gain very much assistance from the acts and omissions at the scene itself that immediately followed the shooting by the participants . They are done and said or not done or said by those who participated in the events and when they are said or done they contain a spontaneity and lack of calculation that gives them credibility . And when they are not said or done I attach great significance to that . Accordingly I put the following omissions in this category , the absence of any attempt to recover a coffee jar bomb , the failure by PERSON to mention or warn of its suspected existence to others and the failure by him when asked by the police constable what happened to say something like ‘ he ’s got a bomb’ . These point strongly to the absence of any belief by PERSON that the deceased was or might have been armed .

The events the accused PERSON had to deal with took place in daylight , on TIME in DATE , with the suspect on foot retreating from him at all times and increasing the distance between them and over a distance of parts of CARDINAL streets . It was not a panic situation which required split second decision or split second action , if any action at all . These circumstances must be contrasted with a soldier who is suddenly confronted on TIME with a danger that advances to him or is directed at him , from the cover of a moving vehicle or a place of concealment . That may be a quite different situation .

As in the case of PERSON , the events of DATE September TIME did not , or could not , in my opinion have put PERSON in any panic situation or in any situation which called for split second reaction . The chase after the deceased was merely to catch and detain . PERSON had him under observation for a considerable period and over a comparatively long distance in these circumstances . During all the time PERSON had him in his vision , he was running away from PERSON and increasing the distance between them . For the greater part of this time , he posed no threat to PERSON as PERSON admitted . Realising he could not catch him , as he must have done , he could have broken off the chase for he believed PERSON had taken his name and address . The first shot which PERSON believed came from the deceased , did not strike PERSON , and after it had been fired , the deceased kept on running . PERSON had then time to stop and reflect and take cover in a doorway and allow the deceased , for the time being at least , to get away .

On the totality of the evidence , including my assessment of his credibility , my consequent disbelief of crucial parts of his case of self - defence and the prevention of crime , the numerous improbabilities of the truth of that case that the evidence indicates , I am satisfied beyond reasonable doubt that there was no reasonable possibility that Guardsman PERSON held or may have held an honest belief or indeed any belief that the deceased carried or may have carried a coffee jar bomb or that he was about to be attacked or his life was in danger . Therefore I find the ORG case proved beyond reasonable doubt that his case of the use of necessary force in self - defence or in the prevention of crime was false and made up .

On all the evidence I was satisfied beyond reasonable doubt that there was no reasonable possibility that PERSON held or may have held an honest belief or indeed any belief that the deceased fired a gun at him or that his life was or those of his comrades were in danger or had been put in danger by the deceased and that this was the situation when PERSON fired his shots .

Each of the accused clearly fired their aimed shots at the deceased with intent to kill or cause him grievous bodily harm . PERSON admitted he intended to kill , but PERSON was reluctant to go that far and admitted he intended to cause really serious bodily harm . If it could be said that PERSON and PERSON in shooting at the deceased with that intent were each carrying out the command of their sergeant to “ Grab him ” , that is , to effect his arrest , then I would have no difficulty in concluding that to fire aimed shots at an unarmed man , carrying neither bomb nor gun , was beyond reasonable doubt , unreasonable force . I would hold the same position when there was no reasonable possibility that either PERSON or PERSON honestly held the belief that he was armed .

There was no possible justification for either of the accused to shoot at the deceased . ”

The guardsmen appealed against their conviction to ORG . That appeal was dismissed by way of judgment delivered on DATE . The ORG said :

“ We consider that the evidence clearly established that when they fired the appellants were acting in concert and shared a common intention to stop the deceased by shooting him . ”

Their application for leave to appeal to ORG was refused on DATE .

In DATE , the matter of the discharge of Guardsmen PERSON and PERSON from the army was referred to an ORG under ORG CARDINAL.CARDINAL(d ) which provided that where a soldier had been sentenced to imprisonment by a civil court he should be dismissed unless there were exceptional reasons to retain him . ORG considered that , while it accepted the decisions of the trial and appeal courts , the guardsmen had shown contrition for their action which they admitted was an error of judgment which they very much regretted and having regard , inter alia , to the ORG ’s responsibility for their training , their loyalty to the ORG and previously unblemished records , found that there were exceptional circumstances justifying their retention in the army .

The guardsmen spent DATE in custody and after their release from prison , continued to serve as soldiers . In addition , the time spent in custody by them did not , in fact , have any adverse impact on their military careers as it has been included in the computation of various benefits based on time served in the ORG .

The applicant brought judicial review proceedings challenging the ORG decision ( ORG [ DATE ] NI CARDINAL ) . On DATE , Mr Justice PERSON found that the reasons given by ORG for its decision conflicted with the findings of the trial judge , in particular as it was clear from the trial judge ’s judgment that the killing was not the result of an “ error of judgment ” by the CARDINAL soldiers . He indicated that the matter should be considered afresh .

On DATE , after receiving written representations from the applicant ’s solicitors , ORG , ORG and ORG and an oral hearing attended by the guardsmen and their lawyers , a differently constituted ORG decided on DATE that the soldiers should not be discharged from the ORG . It considered exceptional reasons existed in that :

( a ) the guardsmen were relatively young and inexperienced when the incident took place , it was their first tour of duty in GPE and they had only been there for DATE ;

( b ) the general security situation was tense in the area where the unit had recently suffered casualties including a fatality and they had been advised the situation was high risk ;

( c ) the army had been responsible for training the soldiers but could not prepare them for every eventuality ;

( d ) Guardsman PERSON had expressed genuine concern for the victim ’s family and Guardsman PERSON had expressed genuine regret ;

( e ) neither had a previous criminal record and their conduct in custody after conviction had been exemplary ;

( f ) the ORG were convinced that there would be no repetition , both men having learned a bitter and lasting lesson

( g ) both had been utterly loyal to the army during the procedure , clearly wished to serve their country and their commanding officer had spoken highly of them , in particular with reference to their service in operations in GPE and GPE , in which their personal conduct had been of the highest standard .

This decision was also challenged by the applicant . In the second proceedings ( ORG No . CARDINAL ) , Mr Justice PERSON found on DATE that ORG had been entitled to reach the findings above and that while considerations of the seriousness of their offence and past army practice of discharging offenders militated strongly against retention they did not remove the decision to allow the CARDINAL soldiers to resume their careers from the range of available options . As regarded the applicant ’s submissions on LAW , while doubting that the applicant could claim to be a victim in this regard , he found nothing in GPE jurisprudence to require additional punishment beyond that imposed by due process of law and considered that the CARDINAL men had been held duly accountable as required by LAW . The ORG decision could not be construed as condonation as the ORG made it abundantly clear that it accepted without qualification the trial judge ’s findings . Nor did he find that the applicant could claim to have been discriminated against under LAW .

The applicant appealed . On DATE , ORG gave its decision . The Lord Chief Justice found that reasons ( a ) to ( c ) and ( g ) could arguably be regarded as exceptional reasons , Lord Justice PERSON considered that only ( g ) could be regarded as an exceptional reason making it desirable to retain the men in the army , while Lord Justice PERSON considered all the factors relied on would be likely to have existed in the cases of soldiers previously discharged for offences and neither individually or cumulatively amounted to exceptional reasons . In his judgment he stated :

“ [ CARDINAL ] ... the use of excessive force resulting in death , is by no means a unique event arising from the activities of security forces . Where death is caused by the use of excessive force by servants of the ORG , it should be a cause of great public concern . Such events diminish confidence in the maintenance of law and order and endanger the peace of the community if not treated with proper regard by the organs of the ORG .

[ CARDINAL ] The vast majority of soldiers who have served in GPE have acted with discipline and restraint often under considerable and deliberate provocation and under constant threat from persons difficult to identify and distinguish from law - abiding citizens . It is no compliment to them if those who have not acted with the same degree of self - control are not treated as lawbreakers , however understanding and sympathetic one might be to the dangers and difficulties of service in GPE as being capable in itself of amounting to ‘ exceptional reasons’ . ”

[ CARDINAL ] If we consider the circumstances of the offence to discover whether it may be said that there were any exceptional circumstances which might provide a reason for retention of the soldiers , it appears that as against other cases of excessive force resulting in death , there is no exceptional feature which would reflect to the credit of the CARDINAL soldiers involved in this case .

[ CARDINAL ] The shooting took place in daylight , there was no confrontation and no confusion at the scene , there was no menacing crowd or mob . The lives of the solders were not under any risk and the trial judge rejected the proposition that they believed that there was any immediate risk to them . Nothing had occurred to justify the use of a lethal weapon . ”

He went on to say :

“ [ CARDINAL ] However , quite apart from the issue of what may constitute exceptional reasons , I find it difficult to comprehend the view of ORG that it is desirable to retain PERSON and PERSON in army service .

[ DATE ] Since a sentence of imprisonment almost invariably results in discharge it is not easy to discern any feature in this case which explains the obvious sympathy and concern which all superior officers concerned have displayed for the situation of PERSON and PERSON .

[ CARDINAL ] The murder of an innocent fellow - citizen should rank as a crime of the greatest magnitude , and one would expect that soldiers who have misused the lethal weaponry with which they are equipped in order to take away a life without justification should be regarded as quite unfitted for further army service .

[ CARDINAL ] There may be considerations of morale and discipline which make discharge of the soldiers undesirable but if so one would have expected them to have been aired at the hearing of ORG or openly expressed in the ruling . ”

However , he noted that the soldiers had a substantial argument that the army ’s tardiness in determining the question of their discharge had materially altered their situation and created exceptional reasons for their retention . As the interests represented by the applicant would not be materially affected by the remedy , it should be sufficient to satisfy her and the public concerned that a declaration be made vindicating the objection to the army ’s decision . He concluded that decisions on what was best for the army and its soldiers were best left to the ORG and that it would be an unwise usurpation of power to intervene by mandamus to impose a course of action on ORG authorities .

All CARDINAL judges agreed with ORG judge ’s conclusions under LAW and CARDINAL of the Convention .

ORG ordered the following declaration :

“ Taken together , the reasons expressed by ORG for the retention in ORG service of ORG and PERSON in its determination of DATE do not amount to exceptional reasons . ”

The ORG did not take any action consequent on ORG ruling . In correspondence to the applicant ’s solicitors the relevant Minister stated that

“ ... ORG has no plans to revisit the question of the employment of the guardsmen . ”

On DATE , ORG rejected the applicant ’s application for judicial review of the ORG ’s failure to act in light of the ruling of ORG and to dismiss the soldiers . Mr ORG noted that ORG had expressly declined to grant coercive relief and held that the ORG were under no legal compulsion to take any further action . There was no indication that the ORG had failed to take the entirety of the judgments into account or had failed to understand them and the decision to retain the soldiers in the army remained effective . He refused relief , considering that the application was an impermissible attempt to circumvent the order of ORG .

ORG state ( at para . CARDINAL ) :

“ A soldier is to be discharged if he has been sentenced :

by a civil court or by court - martial to imprisonment ( including a suspended sentence , but not a suspended committal ) or to detention or to any other form of custodial sentence ;

By a court - martial to a period of detention which on confirmation is for DATE or more .

If in the opinion of the commanding officer there are exceptional reasons that make retention of the soldier desirable then the case is to be submitted with valid and explicit reasons to the Director of ORG for a decision . The case is to be forwarded through the immediate superior headquarters with copies going to the next higher headquarters when this has been so directed . Where a case to an immediate headquarters is not supported it should be sent to the next higher headquarters for further comment before being sent to the Director of ORG ) . ORG ) ) should be informed in advance by the commanding officer of any such cases that are controversial or high profile so that , if necessary , direction can be given for the case to be staffed through the full chain of command . ”

In the period from DATE , DATE officers and men were discharged under PERSON while only a total of CARDINAL were retained ( i.e. under PERCENT or CARDINAL case in DATE ) . Information furnished to ORG by those acting for ORG made it clear that no soldier who had been sentenced to an immediate custodial sentence of DATE imprisonment was retained in the army and no soldier who had been convicted of an offence related to drugs had been retained .


Violation of P1-1;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings

The applicant was born in DATE in GPE . She currently lives in GPE , GPE .

The applicant is the owner of a flat in ORG where she lived until DATE , when she left for GPE to join her son . Later on both of them went to GPE .

On DATE the Temporary Takeover and Managing of LAW ( “ LAW ” ) entered into force . It provided that property belonging to persons who had left GPE after DATE was to be taken into the care of , and controlled , by the ORG . It also authorised local authorities ( takeover commissions ) to temporarily accommodate other persons in such property .

After realising that her flat had been occupied by third persons , on DATE the applicant brought a civil action against a certain family U. in ORG ( PERSON ) seeking their eviction .

On DATE the Commission for Temporary Takeover and Use of Property of GPE ( PERSON za privremeno preuzimanje i korištenje imovine PERSON – “ the Takeover Commission ” ) issued a decision authorising a certain PERSON to use the applicant 's flat temporarily .

On DATE ORG invited the applicant to designate the proper respondent . On DATE the applicant did so by designating PERSON as the respondent .

On DATE the respondent submitted to ORG the decision of ORG .

NORP In DATE ORG adopted the Programme for ORG ( “ the Programme for Return ” ) , regulating the principles for their return and repossession of their property .

In DATE LAW of LAW ( “ LAW ” ) entered into force . It incorporated and gave legal force to the provisions of ORG providing that those persons , whose property had during their absence from GPE been given for accommodation of others , had to apply for repossession of their property with the competent local authorities – the housing commissions .

At the hearing held on DATE the court enquired with ORG GPE ( PERSON – “ the ORG ” ) whether it had set aside ORG decision of CARDINAL DATE . On DATE ORG replied to the court in the negative .

On DATE ORG declared the applicant 's action inadmissible for lack of jurisdiction . The court found that LAW was lex specialis in relation to LAW and Other Rights In PERSON ( “ the Property Act ” ) . Accordingly , instead of bringing a civil action the applicant should have applied for repossession of her property to the competent housing commission , as provided by LAW .

As neither party appealed against the decision , it became final on DATE . On DATE the applicant applied for repossession of her property to ORG .

On DATE ORG decided to set aside ORG decision by which ORG had obtained the right to use the applicant 's property . It also ordered PERSON to vacate the flat within DATE . PERSON unsuccessfully appealed against that decision to ORG .

On DATE ORG issued a warrant ordering PERSON to vacate the flat within DATE following the receipt of the warrant and indicated that otherwise it would bring a civil action against him in the competent municipal court .

M.V. failed to comply with that warrant . However , ORG brought no action against him .

On DATE the LAW to LAW ( “ the DATE Amendments ” ) entered into force . They transferred the jurisdiction in the matter from the housing commissions ( which were abolished ) to ORG , Reconstruction and Construction ( ORG radove , obnovu i graditeljstvo – “ the Ministry ” ) .

On DATE the Ministry invited the applicant to contact its competent regional office in order to repossess her flat and/or receive compensation for the prolonged inability to use it , in accordance with DATE Amendments .

DATE the Ministry issued a decision by which it established that ORG had a right to housing which was to be satisfied by providing him with construction material , in line with LAW . Pursuant to that decision PERSON was obliged to vacate the flat within DATE of the final shipment of the construction material . The date on which ORG received the final shipment is unknown .

On DATE the applicant contacted the ORG and requested compensation . She also reiterated her request for repossession .

On DATE the ORG made an offer for a settlement according to which the ORG was to pay compensation to the applicant . However , the applicant declined the offer as unsatisfactory . She submitted that the amount of compensation offered had covered only the period from DATE . Moreover , the compensation had amounted to CARDINAL NORP kunas ( HRK ) per month while the amount of the rent for the flat of that size ( CARDINAL m² ) should have been assessed at HRK CARDINAL .

NORP In DATE PERSON delivered the flat to ORG and the applicant repossessed it on DATE . She submitted that the flat had been looted and rendered uninhabitable .

LAW ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom , ORG nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) in its relevant part provided as follows :

Section CARDINAL(CARDINAL ) provided that property belonging to persons who had left GPE after DATE , was to be taken into the care of , and controlled , by the ORG .

Section CARDINAL , inter alia , authorised the takeover commissions to entrust the property under LAW for temporary use by refugees , displaced persons or persons whose property had been destroyed in the war .

Section CARDINAL obliged temporary occupants to use the property with the care of a prudent administrator ( bonus paterfamilias ) and prohibited them from selling it or from creating any charges on such property .

LAW ( Zakon o vlasništvu i drugim stvarnim pravima , ORG nos . CARDINAL/CARDINAL , CARDINAL and PERSON ) in its relevant part provides as follows :

Section CARDINAL(CARDINAL ) entitles the owner of property to recover it from anyone who possesses it .

Section CARDINAL(CARDINAL ) provides that the possessor may refuse to deliver the property to its owner if he is entitled to retain possession of it ( i.e. if he has a right of possession ) .

Section CARDINAL ) provides that a bona fide possessor , who is not actually entitled to possess the property , must deliver it to its owner but is not obliged to compensate the owner for its use , the benefit derived from it , or the damage resulting from its loss or deterioration .

Section CARDINAL of the Programme for Return ( Program povratka i zbrinjavanja prognanika , izbjeglica i raseljenih osoba , Official Gazette no . GPE ) provided as follows :

“ Persons with NORP [ citizenship ] documents who are owners of property in GPE in which other persons are temporarily accommodated may apply to the municipal housing commission and seek repossession of their property . The commission shall inform the owner within DATE about the status of his property . Relying on proof of ownership , the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupant to vacate the LOC . The commission shall serve a written decision on the owner and on the temporary occupant within DATE . The decision shall contain a time - limit for eviction and an offer of alternative accommodation for the temporary occupant in a house or flat under state ownership .

If a temporary occupant fails to vacate the LOC within the fixed time - limit , the commission shall institute eviction proceedings in the competent municipal court within DATE . The court shall apply the provisions concerning summary procedure in civil matters . The court 's decision shall be immediately enforceable . An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner . ”

Section CARDINAL(CARDINAL ) and CARDINAL ) of LAW ( Zakon o prestanku važenja PERSON o privremenom preuzimanju i upravljanu određenom imovinom , Official PERSON no . DATE ) provided that the Programme for Return applied to proceedings concerning the temporary use , management and control of the property of persons who had left GPE and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance . They were required to apply LAW .

Sections CARDINAL , DATE and QUANTITY on Areas of Special State Concern ( Zakon o područjima od posebne državne skrbi , ORG nos . CARDINAL , ORG ( errata ) , DATE , CARDINAL , QUANTITY ( errata ) , PERSON , PERSON , CARDINAL , CARDINAL ( consolidated text ) , DATE ) , as amended by LAW , provide that a temporary occupant has a right to housing .

Section CARDINAL ) provides that a temporary occupant whose right to housing is to be satisfied by providing him with construction material , must vacate the house or flat entrusted for his temporary use within DATE of the final shipment of such material .

Section CARDINAL(CARDINAL ) provides that if a temporary occupant fails to observe the above time - limit , the ORG Attorney will , within DATE following the expiry of the time - limit , institute civil proceedings for his eviction .

Section PERSON ) provides that , regardless of whether the ORG Attorney has brought a civil action for eviction , the owner has an independent right to bring such an action for the protection of his ownership .

Section CARDINAL provides that the Ministry shall pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to DATE but to whom the property was not returned by DATE .

The Decision on the Level of Compensation Due to Owners for Damage Sustained ( ORG o visini naknade vlasnicima za pretrpljenu štetu , ORG no . CARDINAL/CARDINAL ) establishes the amount of that compensation at CARDINAL NORP kunas ( HRK ) per square metre .

In a series of decisions ( for example , in cases nos . LAW of DATE , CARDINAL of DATE and CARDINAL of DATE ) , starting with decision no . RevCARDINAL/CARDINAL - CARDINAL of DATE ORG interpreted the relationship between LAW and LAW as follows :

“ The jurisdiction to decide on an owner 's application for repossession conferred on the administrative authorities LAW does not exclude ordinary court jurisdiction in such matters under LAW . Therefore , a civil action for repossession , based on section CARDINAL(CARDINAL ) of LAW and brought in a court against a temporary occupant by an owner whose property had been taken over under LAW , should be decided on its merits rather than declared inadmissible for lack of jurisdiction . ”

In its decisions ORG . LAW and RevCARDINAL/CARDINAL - CARDINAL of DATE ORG gave further interpretation of the relationship between LAW and LAW as well as of ORG :

“ The temporary occupant 's right to use the owner 's property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so . This is because the duty to return the property to its owner is conditional upon the duty of the ORG to provide alternative accommodation for the temporary occupant .

It follows that the temporary occupant is not obliged to compensate the owner for the use of his or her property since , before being provided with alternative accommodation , he or she remains a bona fide possessor . ”


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was detained on DATE and was charged with aiding and abetting another individual to commit murder and attempted murder on DATE , DATE the applicant had been in the car of the victim when the latter and his wife had been shot and was a close relative of the alleged murderer . The applicant was placed in pre - trial detention on DATE .

The applicant was released on CARDINAL DATE and a restriction was placed on him not to leave his place of residence without the authorisation of the public prosecutor ’s office .

On DATE the NORP regional public prosecutor ’s office terminated the criminal proceedings against the applicant as unproven and lifted the restriction on his movement .

DATE and DATE the applicant was detained at ORG detention facility .

The applicant contended that at this detention facility there had been ( a ) overcrowding , as he had been accommodated in a cell with another CARDINAL detainees , ( b ) insufficient oxygen in the cell , ( c ) inadequate hygiene , as he had had no access to a toilet and all QUANTITY detainees had had to drink from the same water container , ( d ) insufficient food , ( e ) no possibility for visits by friends or relatives , and ( f ) no access to newspapers or other media . He also claimed that as a result of having been detained in such conditions his selfesteem had declined and he had endured physical and psychological suffering .

On an unspecified date in DATE the applicant initiated a civil action for damages against ORG under LAW DATE ( the “ ORG ” : renamed in DATE ) . He claimed that he had been charged with an offence which he had not committed , that on DATE he had been detained for DATE and that a restriction had then been placed on his movement for DATE . The applicant also argued that he had had to endure physical and mental pain and suffering as a result of the unlawful criminal proceedings against him and the inadequate conditions of detention at ORG detention facility . In addition , because of the prolonged restriction on his movement he claimed to have suffered loss of income as he had been unable to accept a job in GPE . The applicant sought MONEY ( ORG : MONEY ( ORG ) ) in compensation of which ORG CARDINAL ( EUR CARDINAL ) represented compensation for pecuniary damage and ORG CARDINAL ( ORG CARDINAL,CARDINAL ) represented compensation for nonpecuniary damage .

NORP In a judgment of DATE ORG found in favour of the applicant and ordered ORG to pay him BGN CARDINAL,CARDINAL ( ORG CARDINAL ) . This represented compensation for the non - pecuniary damage suffered by the applicant as a result of the unlawful acts and actions of the public prosecutor ’s office during the period from DATE to DATE in charging him with aiding and abetting another individual to commit murder , holding him in pre - trial detention and then replacing it with a restriction not to leave his place of residence without the authorisation of the public prosecutor ’s office . In reaching its decision , ORG took into account the fact that the criminal proceedings and the associated restrictions imposed on the liberty and movement of the applicant had lasted for DATE , which it found had caused him suffering and had brought about the break - up of his relationship with his fiancée . The court further found that he had been detained in “ extremely harsh conditions ” at ORG detention facility , which it considered to have caused him physical and mental pain and suffering and to have had a negative effect on his dignity as he had been held in an overcrowded cell with another CARDINAL individuals , without access to a toilet , bathing or any other facilities in order to maintain even basic hygiene , had been given food only once a day , had not been allowed visits by friends or relatives and had had no access to newspapers or any other media . ORG also took note of a report by the paramedic at the said detention facility that the applicant had been healthy at the time of his arrival there , but had then developed an inflammation of the sciatic nerve accompanied by pain in the pelvis area and down the left leg . Lastly , the court found that the applicant ’s reputation had been damaged as a result of having been unlawfully held in pre - trial detention and having had criminal proceedings initiated against him . ORG dismissed as unsubstantiated the remainder of the claims in respect of pecuniary and non - pecuniary damage and , by applying section CARDINAL ( CARDINAL ) of the ORG , ordered the applicant to pay court fees of PERCENT on the dismissed part of his claim , which amounted to ORG CARDINAL ( EUR CARDINAL ) .

Both the applicant and the NORP regional public prosecutor ’s office appealed against the judgment .

In a judgment of DATE ORG reached similar conclusions on the facts of the case . It also found that the applicant had had a good reputation and no criminal record and that the criminal proceedings against him , his arrest and detention in inadequate conditions and the restriction on his movement had damaged his reputation and had caused him pain and suffering . Nevertheless , ORG considered the amount awarded to be excessive and lowered the compensation for non - pecuniary damage to ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) . It upheld the remainder of the judgment of ORG and ordered the applicant to pay MONEY ( ORG CARDINAL ) in court fees , proportionate to the additionally dismissed part of his claim .

NORP The parties’ ensuing cassation appeals were both dismissed by ORG on DATE .

Criminal proceedings were initiated against the applicant on an unspecified date in DATE for having committed perjury in the proceedings regarding the murder of CARDINAL DATE .

On an unspecified date the applicant concluded a plea bargain agreement with the NORP district public prosecutor ’s office whereby he pleaded guilty to perjury and was sentenced to CARDINAL months’ imprisonment , which was suspended for DATE . The plea bargain agreement was approved by ORG on DATE .

The relevant provisions of the ORG and the NORP courts’ practice before DATE are summarised in the ORG ’s judgments in several similar cases ( see , among others , ORG v. GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) .

The ORG provided at the relevant time that the ORG was liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for , inter alia , unlawful pretrial detention , if the detention order had been set aside for lack of lawful grounds , or for being charged with an offence if the criminal investigation had been terminated because the suspect was the perpetrator ( sections CARDINAL - CARDINAL ) .

In respect of the regime of detention and conditions of detention , the relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The system of court fees , which existed at the relevant time , in proceedings under the ORG and the practice of the domestic courts has been summarised in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG DATE ... ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Following the judgment in the case of PERSON ( cited above ) the system of court fees was changed as of DATE . At present , a flat rate court fee is due for filing a claim under the ORG , which varies depending on the type of the claimant and is either ORG CARDINAL or BGN CARDINAL ( EUR PERSON or EUR CARDINAL.CARDINAL ) . The court fee due for each subsequent appeal or request for reopening is CARDINAL the aforestated amounts – BGN CARDINAL or ORG CARDINAL ( ORG CARDINAL.CARDINAL or EUR CARDINAL : section CARDINAL of the ORG and sections CARDINAL and CARDINAL ( CARDINAL ) of LAW of state fees collected by the courts under LAW ) .

The ORG visited GPE in DATE , DATE , DATE , DATE and DATE .

ORG detention facility was visited in DATE .

A summary of the relevant findings and observations of the ORG , prior to its DATE visit report , is contained in the ORG ’s judgments in the cases of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

In several of its reports the ORG has recommended that GPE apply a minimum standard of QUANTITY per detainee in multiple - occupancy cells ( see , for example , the ORG reports on DATE visit to GPE , ORG ( DATE ) CARDINAL , paragraphs CARDINAL and DATE , on the DATE visit to GPE , ORG ( DATE ) CARDINAL , paragraphs CARDINAL and CARDINAL , and the DATE visit to GPE , ORG ( DATE ) CARDINAL , paragraphs CARDINAL , CARDINAL and DATE ) .

The ORG found that cells were often overcrowded DATE CARDINAL persons in cells measuring QUANTITY The cramped conditions were aggravated by the lack of direct access to natural light , poor artificial lighting and the absence of a differentiated day / night system , and inadequate ventilation . Further , the cells were in a poor state of hygiene and repair : the beds were dilapidated and in a bad state of repair , giving a very uneven base for the thin , tattered mattresses , and the blankets which were filthy . Similar to the reports cited above ( see paragraph CARDINAL above ) , the ORG recommended that cell occupancy rates be reduced to an acceptable level by applying a minimum standard of QUANTITY per detainee in multiple - occupancy cells .

The ORG further found that detainees were usually taken to the toilet CARDINAL times during DATE and kept plastic bottles or buckets in the cells for other occasions . They could take a shower once DATE ( sometimes , twice a week in DATE ) . As regards personal hygiene items , only soap was occasionally provided .

Bed linen was usually provided by detainees’ families . There were no laundry facilities and detainees washed their clothes and bed linen themselves when they were taken to have a shower . Further , no cleaning materials were made available .

Food was provided CARDINAL times a day , but the DATE food allowance was MONEY ( FAC ) per person and detainees complained about the quantity and/or quality of the food .

There was no outdoor exercise yard due to the fact that the detention facility was located on CARDINAL of the top floors in the building of the police station . Thus , the ORG found that detainees continued to spend DATE on end locked up in their cells TIME a day . Inside the cells , in addition to books and newspapers , detainees were in principle allowed to have battery - operated radio and TV sets .

As to the arrangements for the provision of health care to detainees , the ORG found that there could be gaps of DATE ( DATE ) between admission and the initial medical examination by a doctor . Further , the general medical screening was cursory and did not identify detained persons’ health needs . Access to outside hospital facilities was in principle not a problem , but authorisation was needed from a prosecutor for such a transfer , and medical recommendations could be slowed down or overridden by legal considerations .


DENIMARK LIMITED AND 11 OTHERS v. THE UNITED KINGDOM

A.

The facts of the case , as submitted by the parties , may be summarised as follows . The applicants are all connected with the firearms industry . A list of the applicants is annexed to the present decision . They are represented before the ORG by PERSON , ORG , GPE .

The first applicant , ORG , traded as FAC . It operated an indoor shooting complex with CARDINAL shooting ranges , a clubroom and a retail shop . Its primary business activity was providing facilities for handgun shooting , although the shooting ranges are suitable for small bore rifles as well as handguns . The ORG ’s announcement that it intended to introduce legislation prohibiting the possession of handguns badly affected the first applicant ’s business and reduced its profitability . It has redundant stock in respect of which it is not entitled to compensation under the DATE LAW legislation : LAW DATE and LAW No . CARDINAL ) Act DATE ( “ LAW ; see below ) . It estimates the reduction in value of its goodwill to be in the region of £ MONEY , and its loss of future profit to be MONEY per annum ( gross ) . In addition , capital assets worth MONEY were rendered redundant by LAW .

The second applicant , GPE of ORG , operated a shop selling handguns , rifles , clay and game shot guns , air rifles , air pistols and accessories . It also operated an indoor CARDINAL-metre handgun range which it ran as a commercial club , and a country clothing shop . After the Government ’s announcement that it intended to introduce legislation prohibiting the possession of handguns , the second applicant ’s business started to decline and sales and profits in the gun shop fell considerably . The shooting range is suitable only for handguns , as rifles need a longer distance ( QUANTITY ) , muzzle loading pistols need an outdoor range due to the smoke and fire hazard , and shotguns can not be used indoors . By DATE , pistol club membership had declined from CARDINAL , the number of employees had been reduced from CARDINAL to CARDINAL , and business hours had been reduced from DATE . The second applicant envisaged closing the range by DATE . It estimates its loss of future profits at £ MONEY per annum ( gross ) , with a substantial reduction in the value of its goodwill . In addition , capital assets worth MONEY were rendered redundant by LAW .

The third applicant , PERSON , is a sole trader dealing in the sale of handguns , specialist accessories and equipment under the name Greenland Firearms . He also provides specialist firearms training in handgun techniques , and specialist gunsmithing and repair works . By DATE , the level of business had been reduced by PERCENT , with consequent reductions in the value of the goodwill and the future income and profit of the business . The third applicant had invested considerable sums in setting up the business , building secure storage areas , installing alarm systems and providing a test range . He estimates the value of his redundant capital investment at £ MONEY , and his loss of future profit at £ MONEY per annum ( gross ) .

The fourth applicant , PERSON , was engaged in the manufacture , sale ( both retail and wholesale ) , import and export of handguns and accessories . Trade in handguns and accessories represented PERCENT of his turnover . The fourth applicant also manufactured ammunition and sold rifles , reloading equipment components , and various accessories including books . By DATE , sales had been reduced significantly and the number of employees was reduced from CARDINAL . The fourth applicant estimates his redundant investment in plant and machinery ( primarily equipment for making handguns and ammunition ) at £ MONEY , and the reduction in value of the goodwill of the business at £ MONEY .

The fifth applicant is PERSON , trading as ORG . The sixth applicant is PERSON , a partnership between Mr PERSON and his wife , PERSON . The fifth and sixth applicants trade from the same LOC . The fifth applicant ’s club is for handgun shooting . The sixth applicant operates a gun shop with PERCENT of its business selling handguns , ammunition and accessories . As a consequence of the reduction in club membership following the ORG ’s decision to prohibit the possession of handguns , the fifth and sixth applicants have reduced their business hours and membership of the shooting range has dropped from CARDINAL to CARDINAL . The fifth applicant ’s business is no longer viable . He estimates the reduction in value of goodwill at £ MONEY , redundant capital investment at £ MONEY , and the loss of future profit at £ MONEY per annum ( gross ) . The sixth applicant estimates the reduction in the value of its goodwill at £ MONEY , its redundant capital investment at £ MONEY , and its loss of future profit at £ MONEY per annum ( gross ) . It is unable to diversify into the shotgun or rifle markets as there are already well - established gun shops in the locality which specialise in these markets .

The seventh applicant , ORG , specialises in the manufacture of ammunition for handguns . PERCENT of the seventh applicant ’s business depended upon the trade in handguns . Between the entry into force of LAW and DATE , the number of people employed by the seventh applicant halved and the level of sales was reduced significantly . The seventh applicant estimates its loss of future profit at £ MONEY per annum ( gross ) and the reduction in the value of its goodwill at £ MONEY , in addition to significant redundant capital expenditure .

The eighth applicant , ORG , operated a shop selling handguns , accessories and reloading equipment , from the premises of a commercial gun club and shooting range . It also operated a mail order business . PERCENT of the eighth applicant ’s business involved the sale of handguns . The eighth applicant ceased trading in DATE , when it became clear that the business would no longer be viable after the entry into force of LAW . It estimates its loss of future profit at £ MONEY per annum ( gross ) . It suffered a substantial reduction in the value of its goodwill , and significant capital investment was rendered redundant .

The ninth applicant , FAC , is a partnership between a married couple , PERSON and PERSON . The ninth applicant runs a shooting centre , gun shop , rifle and handgun club , and an indoor handgun shooting range . The range is suitable only for handguns . By DATE , DATE sales at the shop had fallen from £ CARDINAL,CARDINAL to £ CARDINAL , and the ninth applicant anticipated that it would have to cease trading in the near future . It estimates the reduction in the value of its goodwill at £ MONEY , its redundant capital investment at £ MONEY , and its loss of future profit at £ MONEY per annum ( gross ) .

CARDINAL applicant is PERSON , trading as FAC . He is a handgun dealer , runs a shooting club , and repairs handguns . The business was worth £ MONEY as a going concern before the prohibition on handguns . By DATE , the goodwill of the business had been rendered valueless . ORG membership was reduced to PERCENT by DATE , the membership renewal date . By DATE , range attendance had been reduced by PERCENT , and turnover had fallen by PERCENT . Significant capital investment was rendered redundant , and the tenth applicant faced an extensive and costly programme of modifications to adapt facilities for the use of black powder muzzle loading guns , which were not affected by the DATE Acts . He estimates his loss of future profits at £ MONEY per annum ( gross ) .

The eleventh applicant , ORG , is a supplier and distributor of handguns , ammunition and accessories , specialising in revolvers . It was the sole wholesale distributor for some of the world ’s largest manufacturers of handguns and their accessories , such as holsters . The eleventh applicant ’s premises were built specifically for secure storage of firearms and ammunition and have been rendered virtually unusable . The business was rendered virtually worthless by DATE Acts . The eleventh applicant estimates the reduction in the value of its goodwill at £ MONEY , its redundant capital investment at £ MONEY , and its loss of future profit at £ MONEY per annum ( gross ) .

The twelfth applicant is PERSON , trading as PERSON . He was a specialist manufacturer of custom - made competition pistols , revolvers and accessories , having spent DATE training to manufacture handguns . The twelfth applicant started trading in DATE , and made a gross profit of £ MONEY in DATE . He estimates the reduction in the value of his goodwill at £ MONEY , his redundant capital investment at £ MONEY and his loss of future profit at £ MONEY per annum ( gross ) .

By DATE , MONEY had been paid to CARDINAL dealers under the compensation schemes , of a total of MONEY which had been paid to individuals , dealers and others . The ORG estimated the total costs which would be involved in paying compensation under the schemes to be MONEY . The applicants have received no compensation for the reduction in value of their businesses .

B. Domestic law and practice

The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of the control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in LAW .

Section CARDINAL of the Act of DATE , as amended by LAW , provided :

“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -

( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”

The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .

LAW provides as follows , so far as material :

“ CARDINAL Surrender of prohibited small firearms and munitions

( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .

CARDINAL Payments in respect of prohibited small firearms and ammunition

( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -

( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or

( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,

and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .

CARDINAL Payments in respect of ancillary equipment

( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-

( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and

( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-

( a ) which they had in their possession on DATE ; or

( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .

CARDINAL Parliamentary control of compensation schemes

( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .

( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .

( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .

( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”

The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items , Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .

Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .

By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) LAW Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns .