Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award

The applicant ’s family lived in the village of PERSON , LOC district . Her husband died on DATE .

Prior to his death , on DATE the biggest NORP DATE newspaper , ORG , published a front page article entitled “ LOC villages paralysed by the fear of death : residents of the remote NORP area shackled by the AIDS threat ” ( LOC kaimus paralyžavo mirties baimė : nuošalios NORP vietovės gyventojai atsidūrė AIDS grėsmės gniaužtuose ) . The following statements of particular concern to the applicant ’s family were made in the article :

“ Notoriously promiscuous , DATE FAC is already sick with this fatal disease ...

An HIV - positive person lives in a village in the ORG area . This [ is ] PERSON , an unmarried mother of CARDINAL children ...

The father of PERSON CARDINAL children is an inhabitant of GPE [ village ] - L. Armonas ...

Medics at the LOC hospital confirmed that PERSON is HIV - positive . The woman was taken to hospital with tuberculosis . Blood tests revealed that she was HIV - positive ...

The woman [ G. Biriuk ] has already been diagnosed with AIDS - this is the last stage of the infection . The disease can last from DATE but finally ends with death ...

PERSON is HIV - positive ...

DATE ... the father of PERSON CARDINAL children , living in GPE , was taken to LOC hospital with a high fever ...

PERSON is another victim of AIDS ...

From the appearance of the patient [ reference to PERSON ] and the symptoms of the disease , the doctors suspected that he might be HIV - positive . The reply recently received from the AIDS centre confirmed the suspicions . ”

The husband instituted proceedings in the GPE City Third ORG , suing the newspaper for non - pecuniary damages in the amount of CARDINAL NORP litai ( ORG , or MONEY ( ORG ) ) for a breach of his right to privacy .

On DATE the court ruled in his favour . The court found that the defendant had not proved the truthfulness of the published allegations as to the husband ’s relationship with PERSON , or that the information about the husband ’s state of health , indicating his full name and residence , had been made public with his consent , or met a legitimate public interest in drawing society ’s attention to the rising number of HIV cases in GPE . Having assessed all the relevant evidence , the court decided that there was no proof that the husband was the father of PERSON children . The article humiliated the husband and the publication of information about his private life caused him non - pecuniary damage , had an impact on his health , and a negative influence on his family life and his reputation . It also restricted his family ’s opportunities to communicate with others . The court noted that in DATE the statutory capital of the newspaper company - JSC PERSON LTL MONEY ( approximately EUR CARDINAL ) . However , the court concluded that the information had not been made public deliberately , and applied LAW to the Public . Accordingly , it awarded the husband the maximum sum set by this LAW in such circumstances , i.e. LTL CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) , in compensation for non - pecuniary damage .

The husband appealed to ORG . On DATE the court dismissed the appeal , agreeing with the lower court ’s reasoning .

As mentioned above , the husband died on DATE .

On DATE ORG upheld the appellate court ’s decision . It stated that an award exceeding the amount of LTL CARDINAL,CARDINAL set by the aforementioned legislation could be granted if it were established that information had been published intentionally . The court observed that by printing the article the newspaper had committed CARDINAL violations : first , it had published information which was not true and which debased the husband ’s honour and reputation , and , secondly , it had published data about his private life without his consent . However ORG ruled that the lower courts had come to the well - founded conclusion that the husband had not proved that the defendant had published information about him deliberately and , therefore , there was no ground to increase the amount of compensation for non - pecuniary damage fivefold , as envisaged by LAW to the Public .

LAW provides as relevant :

“ The private life of a human being shall be inviolable ... The law and the courts shall protect everyone from arbitrary or unlawful interference in his private and family life , or from encroachment upon his honour and dignity . “

DATE LAW provides that compensation for material and non - pecuniary damage suffered by a person shall be established by law .

According to LAW applicable at the material time , concerning compensation for non - pecuniary damage :

“ Mass media , organisations or persons who publish false information degrading the honour and dignity of a person , and also information about a person ’s private life without the consent of that person , shall pay compensation for non - pecuniary damage . The courts will assess the amount of the compensation , CARDINAL litai .

In assessing monetary compensation for the non - pecuniary damage caused , the courts shall take into consideration the financial status of the person who has caused the damage , the gravity and consequences of the violation and other circumstances important to the case . ”

Article CARDINAL of LAW , concerning non - pecuniary damage and in force since DATE , reads as follows :

“ CARDINAL . Non - pecuniary damage shall be deemed to be a person ’s suffering , emotional experiences , inconvenience , mental shock , emotional depression , humiliation , deterioration of reputation , diminution of opportunities to associate with others , and so on , evaluated by a court in terms of money .

Non - pecuniary damage shall be compensated only in cases provided for by laws . Non - pecuniary damage shall be compensated in all cases where it has been incurred due to crime , health impairment or deprivation of life , as well as in other cases provided for by laws . The courts , in assessing the amount of non - pecuniary damage , shall take into consideration the consequences of the damage sustained , the gravity of the fault of the person by whom the damage is caused , his financial status , the amount of pecuniary damage sustained by the aggrieved person , and any other circumstances of importance for the case , as well as the criteria of good faith , justice and reasonableness . ”

The relevant provisions of the PERSON on the Provision of Information to the Public at the material time read as follows :

“ CARDINAL . In producing and disseminating public information , it is mandatory to ensure a person ’s right to have his personal and family life respected .

Information about a person ’s private life may be published , with the exception of the instances stipulated in paragraph CARDINAL of this LAW , only with the consent of that person and if publication of the information does not cause undue harm to that individual .

Information concerning private life may be published without the person ’s consent in those cases when publication of the information does not cause harm to the person or when the information assists in uncovering violations of the law or crimes , as well as when the information is presented in the examination of the case in an open court process . ... ”

“ CARDINAL . A producer and ( or ) disseminator of public information who publishes information about an individual ’s private life ... without the natural person ’s consent , also a producer who publishes false information degrading to the honour and dignity of the person , shall pay compensation for non - pecuniary damage to that person in a manner set forth by law . The amount of the compensation for non - pecuniary damage may not be in excess of LTL CARDINAL , except for cases when the court establishes that false information degrading the honour and dignity of a person has been published intentionally . In such cases the amount may , by a decision of a court , be increased , but not more than fivefold . In each case the amount awarded to the plaintiff may not be in excess of PERCENT of the DATE income of the publisher and ( or ) disseminator of public information . ...

In determining the amount of monetary compensation for non - pecuniary damage , the courts shall take into account the financial circumstances of the person who caused the damage , the gravity of the offence , its consequences and other significant circumstances . ... ”

Article CARDINAL of the Law on ORG , restricting the disclosure of information about a person ’s health , at the material time provided as follows :

“ CARDINAL . Restriction on the disclosure of information about the state of health of a person is intended to guarantee the inviolability of his private life and state of health .

It shall be forbidden to make public in the mass media information about the state of health of a person without his written authorisation ...

Individual or public health care specialists shall be restricted ... from violating the confidentiality of the information about an individual ’s NORP private life or personal health ... which they have acquired while performing professional duties . ”

The Ruling of the Senate of Judges of ORG DATE no . CARDINAL “ On the application of Articles CARDINAL and CARDINAL of LAW and the PERSON on the Provision of Information to the Public in the case - law of the courts examining civil cases on the protection of honour and dignity ” , in so far as relevant , provided as follows :

“ CARDINAL . ... Privacy of the person should be protected when it is established that information about a person ’s private life has been disseminated without his or her consent and in the absence of lawful public interest . Lawful public interest is to be understood as the right of society to receive information about the private life of a person ... where it is necessary to protect the rights and freedoms of others from negative impact . The rights of the person are protected irrespective of whether the disseminated information degrades his or her honour and dignity . ”

The Ruling further stipulated that the producer or disseminator of public information who publishes information about an individual ’s private life without his or her consent must compensate for the non - pecuniary damage caused . When assessing the monetary compensation for such damage , the courts should take into consideration the guilt of the defendant , his or her behaviour after the dissemination of the information , the negative impact on the plaintiff ’s professional or social life and the form and manner in which the information was disseminated , as well as its content and other relevant circumstances . The monetary compensation could not exceed the limits provided by LAW and LAW to the Public .

On DATE ORG of ORG adopted LAW , containing a LAW , the relevant part of which reads as follows :

“ CARDINAL . There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by LAW . The exercise of the former right must not be allowed to destroy the existence of the latter .

The right to privacy consists essentially in the right to live one ’s own life with a minimum of interference . It concerns private , family and home life , physical and moral integrity , honour and reputation , avoidance of being placed in a false light , non - revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially ...

The right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media . National legislations should comprise provisions guaranteeing this protection . ”

Recommendation no . R ( CARDINAL ) CARDINAL on “ The ethical issues of HIV infection in the health care and social settings ” , adopted by ORG on DATE reads , in so far as relevant to the present case , as follows :

“ Public health authorities are recommended to :

in relation to reporting of cases :

ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non - identifiable basis to avoid any possible discriminatory use of sensitive health related data , to avoid discouraging individuals from seeking voluntary testing ,

in relation to the patient - health care worker relationship :

strongly support respect for confidentiality , if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE - on - Don . He is represented before the Court by PERSON , a lawyer practicing in PERSON - on - PERSON . The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

On DATE the applicant was arrested on suspicion of having murdered CARDINAL minors and was brought to the LOC police station in GPE - on - Don .

According to the applicant , in the police station he was beaten up . In particular , he alleges that he was hit with a baton and with a wooden hammer , that he was beaten on the head with a plastic bottle filled with water while being handcuffed and chained to a pipe .

According to the applicant , on DATE he was taken out of the cell and brought to an officer of the prosecutor 's office who hit him on the head with a chair , stripped him naked , handcuffed the applicant 's wrists and feet together , put the applicant on the knees and tortured him with electric shocks to force him to confess that he had committed the murder .

On DATE the applicant sent a letter to his mother in which he mentioned that on the day of arrest he “ was beaten almost to death ” by police officers .

On DATE the applicant 's mother passed him certain medicines , allegedly for liver and kidney treatment .

On DATE in the hearing of the criminal case against the applicant he pleaded guilty in having taken part in the robbery and murder , but contested that he had organised them . In this context he denied in part the confession he made at the interrogation . He alleged that he made it under duress . The court called and examined the investigator , Mr PERSON , who testified that during investigation “ the applicant 's state of health was normal ” and that “ he had never received any complaints from the applicant about ill - treatment by the police ” . The court held that “ [ the applicant 's ] declaration that he had been beaten up upon arrest by police officers [ was ] unsubstantiated ” , found that the statement at issue was consistent with other evidence , and recalled that the applicant kept changing his submissions concerning his role in the gang throughout the proceedings . On that basis it admitted the disputed statement as evidence aggravating the applicant 's charge .

On DATE ORG of GPE considered the applicant 's appeal , which was based , in particular , on his complaint that the statements allegedly made under duress were wrongly admitted as evidence . It found that the first instance court exercised sufficient diligence examining the applicant 's objections and rightly admitted the disputed evidence , given that the allegations of ill - treatment were completely unsubstantiated .

Following the communication of this case to the respondent Government the applicant 's complaints about ill - treatment were apparently brought to the attention of competent domestic authorities . The latter , in turn , questioned the persons who could have witnessed the events concerned .

In this connection , on CARDINAL and DATE written statements were produced by PERSON , the applicant 's former cellmates in the cell No . CARDINAL of the detention facility IZCARDINAL/CARDINAL . They testified that no physical force or other pressure was applied to the applicant or other inmates .

On DATE ORG conducted a further investigation . The investigator , the legal aid counsel who had been present at interrogation , and the police officers of the GPE police station who arrested the applicant , were questioned . All of them denied that ill - treatment had taken place , or that the applicant 's confession had been forced . They stated that at the material time the applicant had no injuries and made no complaints about ill - treatment .

On DATE the prosecutor 's office concluded that no proof to the applicant 's allegations could be found and refused to open criminal investigation into the alleged illtreatment . It referred to the statements of the investigator , the counsel and the police officers . In addition , it stated that the existing security control would not allow the officers to bring the objects allegedly used for torture into the interrogation area and noted that the furniture in the interrogation area was secured to the floor .

From DATE to CARDINAL DATE the applicant was detained on remand in the detention facility IZ-CARDINAL/CARDINAL ( then PERSON ) in PERSON . Initially he was detained in a common cell No . CARDINAL .

Following the judgment of DATE , the applicant was transferred to the cell No . CARDINAL , a special cell for detainees serving a life sentence . For some time he was kept alone , until another detainee was placed in the same cell .

The applicant gives the following account of the conditions in the cell . It was a solitary confinement cell measuring QUANTITY , QUANTITY high ; there was no daylight ; the QUANTITY bulb was covered by CARDINAL layers of dense metal mesh leaving the cell always dark , which made it impossible to read or write ; the concrete floor was flooded with water , there was mould on the walls and the ceiling ; there was no air ventilation ; the air was stale and musty ; the cell was dirty and overrun with cockroaches and infested with pests and mice ; access to tap water was limited , as the tap could only be turned on by the warder outside the cell ; the toilet was often blocked with sewage .

The Government submit that the cell No . CARDINAL had a window , a toilet , a washbasin ; that the temperature and humidity were maintained in accordance with the standard sanitary requirements ; the applicant had a bed and was provided with a set of bedding .

On DATE the applicant 's mother complained to a prosecutor 's office that the applicant 's cell had no daylight and that it was damp .

On DATE the applicant 's counsel submitted a complaint to the administration of the detention facility claiming that the applicant should not have been transferred to a solitary confinement cell .

On DATE the applicant 's mother submitted a written complaint to the Chief Supervisor of ORG of the Rostov ORG alleging , inter alia , that the applicant 's cell was damp .

On DATE the Chief Supervisor of ORG of the Rostov ORG informed the applicant 's mother that an inspection had been conducted further to her complaints about the applicant 's detention conditions . He replied that the condition in his cell “ generally satisfied the sanitary requirements , although the detainees slept in turns due to the shortage of bunk beds ” .

On DATE the Chief of the detention facility informed the applicant 's counsel , in reply to his complaint of CARDINAL August CARDINAL , that the applicant was detained in a cell intended for a small number of inmates according to the law and to the applicant 's own request .

On DATE the applicant 's mother and counsel brought proceedings before ORG of PERSON against the administration of the detention facility IZCARDINAL/CARDINAL . They referred , in particular , to the poor detention conditions : insufficient light , humidity , lack of air ventilation , restricted access to tap water and toilet facilities .

On DATE , the applicant , further to his complaints about poor conditions in the cell No . CARDINAL , was transferred to the detention facility IZCARDINAL/CARDINAL ( then ORG ) in the town of GPE , where he remained until DATE . He was detained in solitary confinement cells Nos . CARDINAL and CARDINAL .

The applicant alleges that his cell was cold ; that he was not allowed to have blankets or warm clothes and thus had to sleep on a bare iron bed , that the sewage was often blocked and that his access to the water tap was limited .

The Government submit that the applicant 's cells had adequate sewage and water supply , and that light and temperature were in accordance with standard sanitary requirements . The applicant was provided with clothes and bedding .

On DATE the applicant 's mother filed a complaint with ORG office which included a complaint about the poor conditions in the detention facility IZ-CARDINAL/CARDINAL . In particular , she complained that the applicant was placed in a solitary confinement cell with a limited water supply ; she requested to be permitted to give him warm clothes and a blanket .

From DATE to DATE the applicant was held in SIZOCARDINAL ( IZCARDINAL/CARDINAL ) , a detention facility in GPE . It appears that he was subsequently transferred back to the detention facility IZ-CARDINAL/CARDINAL .

On DATE the ORG of PERSON discontinued the proceedings against the prison administration as the parties had failed twice to appear before the court .

On DATE the applicant was transferred from the detention facility IZ-CARDINAL/CARDINAL to another penitentiary institution to serve his sentence .

On DATE the ORG of PERSON accepted the claim of the applicant 's counsel that he had not been duly summoned to take part in the proceedings and reversed its decision of DATE .

On DATE the applicant 's mother filed a request to discontinue proceedings against the prison administration , as they were apparently brought by the applicant 's counsel without consent of either the applicant or herself .

On DATE the ORG of PERSON decided to discontinue the proceedings against the prison administration as the plaintiff had failed CARDINAL more times to appear before the court . The court also took into account the request of the applicant 's mother to discontinue proceedings . This decision has not been appealed .

On DATE , following the communication of this case to the respondent Government , and apparently in response to their request to clarify certain facts , the applicant gave written explanations to the Chief Penitentiary Directorate concerning the conditions in the pre - trial detention . He wrote that the conditions in the detention facilities GPE , IZCARDINAL/CARDINAL and SIZO-CARDINAL were satisfactory . He stated that he had had no complaints concerning his pre - trial detention conditions and that it was his counsel who wrote the complaint to ORG .

The criminal proceedings against the applicant began on DATE .

On DATE the applicant signed a confession that he had murdered CARDINAL minors .

On DATE ORG held the applicant guilty on account of a robbery and an aggravated murder and convicted him to life imprisonment .

On DATE the applicant 's mother and counsel brought proceedings before ORG of PERSON against the administration of the detention facility IZCARDINAL/CARDINAL . They claimed , inter alia , that the applicant was handcuffed whenever he visited him in the detention facility , which hampered reading the file and prevented the applicant from taking notes or writing complaints . He also complained that on several occasions the administration of the detention facility had hindered correspondence between the applicant and himself , which impeded the applicant 's right to defend himself in the criminal proceedings . These proceedings were subsequently terminated for being abandoned by the applicant , as described above in para . CARDINAL ( “ Conditions of detention ” ) .

On DATE ORG of GPE , acting on appeal , upheld the first instance judgment as to the substance , but reduced the sentence to DATE of imprisonment .

On DATE , following the communication of this case to the respondent Government and apparently in response to their request to clarify certain facts , the applicant gave written explanations to the Chief Penitentiary Directorate of GPE . He stated that he was not handcuffed during the meetings with his counsel in the period DATE . He made no comments as to other periods .

On DATE a regional newspaper PERSON published an article based on an interview with ORG . The article was entitled “ CARDINAL perverts valued children 's lives at FAC ” . The article was accompanied by the photograph of the prosecutor and the passport size photographs of the applicant and his CARDINAL co - accused . The article referred to the prosecutor 's opinion on the matter and contained , inter alia , the following statements :

“ [ ... ] Mr PERSON [ i.e. the applicant ] , DATE , CARDINAL of the murderers , responded that they had to [ kill them ] because [ CARDINAL of the victims ] had recognised him . The officers of ORG office disagree . They are convinced that PERSON together with his companions in crime had a clear murderous intent , why would they carry knives otherwise ? [ ... ] The circumstances of the bloody crime were as follows [ ... ] . The murderers are found to be CARDINAL unemployed young men : PERSON , [ GPE ] and [ ORG ] [ ... ] . The ringleader in the gang was GPE [ ... ] . A decision to create a criminal gang of CARDINAL came DATE . They had no desire of earning by fair means , and were not skilled enough for burglary , hence they chose robbery [ ... ] . They cut the first girl 's throat and dragged the second one to the bathroom to torture her . [ ... ] The perverts took money and then cruelly killed the girl hitting her in turn with knives and scissors . [ ... ] The criminals were found within DATE due to the professionalism of investigators of ORG office . [ ... ] All CARDINAL [ including GPE ] were arrested on DATE . [ ... ] ' What punishment awaits the murderers ? ' , asks the PERSON reporter . ' It is for the court to impose the sanction , although I can only add , as a human , that the capital punishment has not yet been officially abolished [ ... ] ' , PERSON answers . ”

On DATE the applicant 's counsel challenged before ORG of PERSON the newspaper publication of DATE . In particular , he requested to declare the statement of guilt publicly made by the prosecutor prior to a trial unlawful .

On DATE the ORG of PERSON held that the claim could not be examined , as the counsel had not been authorised by the applicant to bring any proceedings which fell outside the main criminal proceedings . This decision has not been appealed .

The relevant provisions of LAW of DATE in force at the material time were reviewed by ORG of GPE in its Ruling No . CARDINAL dated DATE . It abolished the courts ' power to institute criminal proceedings as incompatible with their judicial function , other that for a limited category of private prosecution cases . The relevant part of the ruling reads as follows :

“ If a court examining a criminal case establishes facts which themselves disclose an appearance of a crime [ committed by a third person ] , it must refrain from stating that there are sufficient grounds to suspect a particular person and from formulating charges , and must refer the relevant materials to the prosecution authorities competent to carry out further checks and to take a decision as to whether there are sufficient grounds to institute criminal proceedings . The latter are obliged to take immediate measures pursuant to the facts and circumstances established by the court . ”

The Federal Law N CARDINAL - CARDINAL On Appeal against Acts and Omissions Infringing Individual Rights and Freedoms dated DATE , provides for a judicial avenue for claims against public authorities . It states that any act , decision or omission by a state body or official can be challenged before a court if it encroaches on an individual 's rights or freedoms or unlawfully vests an obligation or liability on an individual . In such proceedings the court is entitled to declare the disputed act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the disputed act , decision or omission unlawful this gives rise to a civil claim for damages against the ORG .

The Code on Civil Procedure as in force at the material time contained similar provisions .

The Civil Code provides for the procedure by which an individual can sue the ORG for damages in civil proceedings .

According to the applicant , in DATE the Ombudsman of GPE published a country report , which states that in DATE CARDINAL complaints about police misconduct were filed , and that CARDINAL out of them resulted in prosecution of police officers .

On DATE the PERSON - based ORG against LAW adopted a document entitled “ Preliminary Report on Ill - Treatment during ORG ” . The report presents an account of CARDINAL cases of ill - treatment in GPE recorded by this NGO . The reference period is not defined in the report , but CARDINAL of the reported cases date back to DATE . The report also contains the following figures obtained through a questionnaire answered by CARDINAL advocates of CARDINAL different bar associations of GPE :

- CARDINAL respondents had come across cases of ill - treatment by police ;

- CARDINAL did not believe that there existed effective legal remedies against ill - treatment ;

- CARDINAL believed that such remedies existed ;

- DATE did not consider it possible to receive compensation for ill - treatment ;

- CARDINAL considered it possible ;

- other respondents have never considered to seek redress ;

- a majority did not believe that emergency medical assistance was readily available in the event of ill - treatment by police .

On that basis the report concluded that torture of suspects in criminal cases was a “ common practice ”


Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in the village of GPE .

In DATE the applicant bought from the local authorities a house that had been confiscated by the NORP authorities from a third person after the Second World War . In DATE the former owner claimed the house back and in accordance with PERSON no . CARDINAL-XII , the local council recognised his property right over the house . The applicant was evicted from the house .

At the same time , the local council promised the applicant alternative accommodation , a promise which was not kept .

In DATE , the applicant brought civil proceedings against the local council demanding compensation instead of the promised house .

On DATE , the NORP ORG found in favour of the applicant and ordered the local council to pay him CARDINAL Moldovan Lei ( ORG ) ( MONEY ( ORG ) ) .

ORG appeals were dismissed by a final judgment of ORG of DATE .

The applicant obtained an enforcement warrant which the bailiff failed to enforce .

In DATE , the judgment of DATE was quashed following revision proceedings and the proceedings reopened . The reopened proceedings ended with a final judgment of CARDINAL DATE , by which the local council was obliged to provide the applicant with accommodation . That judgment has not been enforced to date .

It appears from the documents submitted by the parties that the applicant has alternative accommodation in a neighbouring village , where he lives with his family .

The relevant domestic law is set out in GPE v. GPE , no . CARDINAL , § CARDINAL , ECHR CARDINALIII ( extracts ) .


No violation of Art. 6;Preliminary objection dismissed (abuse of process)

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

On DATE the ORG of LOC convicted the applicant , a school teacher , of cruel treatment of his pupils and sentenced him to DATE and DATE imprisonment , suspended . The applicant and his counsel were present at the hearing . The court heard statements from a number of witnesses and victims and examined a transcript of a meeting of the school disciplinary committee .

The applicant appealed against the judgment on points of fact .

On DATE ORG upheld the judgment on appeal . The applicant was not present at the hearing . The appeal court reviewed the applicant 's conviction both on points of law and on points of fact . The prosecutor , who was present at the hearing , submitted that the conviction should stand . The appeal court did not hear any witnesses and there is no evidence that any were summoned .

On DATE the applicant received a copy of the appeal judgment .

On DATE , following an application for supervisory review lodged by a deputy prosecutor of GPE on DATE , a judge of ORG decided to institute supervisory review proceedings . The judge stated that in the absence of any evidence that the applicant had been duly notified of the appeal hearing on DATE , the examination of his appeal in his absence had violated his defence rights . The applicant was notified of the decision to institute supervisory review proceedings and sent his written pleadings to the court on DATE .

On DATE the ORG of ORG , having examined the case under the supervisory review procedure , quashed the appeal judgment of ORG of DATE and remitted the case for a fresh examination on appeal . The ORG noted that among the documents in the case file there was a notification of the appeal hearing dated DATE . The applicant had not appeared at the hearing and , later , in his numerous complaints repeatedly stated that he had never received the notification . The case file contained no conclusive evidence that the applicant had been duly notified of the hearing . The ORG found that in these circumstances the examination of the applicant 's appeal in his absence had violated his defence rights .

On DATE ORG examined the case on appeal . The applicant was duly notified of the hearing , but did not appear . The appeal court upheld the findings of fact of the NORP ORG . However , it set aside the judgment of DATE and terminated the criminal proceedings against the applicant on account of the expiry of the statutory time - limits .

Article CARDINAL of the Code of Criminal Procedure of DATE , in force at the material time , provided that appellants should be notified of the date of the hearing on appeal . The failure of appellants who had been duly notified of the relevant date to appear at the hearing did not preclude the court from examining the case . A notice indicating the time of the hearing on appeal should be displayed at the court not DATE before the hearing .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

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

NORP In DATE the applicant lodged with ORG ( FAC ) an application for division of the matrimonial property . Her former husband , PERSON , whom she divorced in DATE , was a party to those proceedings . The matrimonial property consisted , inter alia , of a house in Gdańsk .

ORG held several hearings . Some of them were adjourned because of the applicant 's former husband 's absence . The court ordered several expert opinions .

The hearings scheduled for DATE and DATE were adjourned . The applicant failed to appear at these hearings due to the illness and subsequent death of her daughter .

On DATE the court held a hearing .

Subsequently , hearings were held on DATE , CARDINAL DATE and CARDINAL DATE . The court heard witnesses and imposed a fine on a witness who failed to appear before the court .

NORP In DATE the court held CARDINAL hearings at which it heard the parties and witnesses . It further decided that a new expert opinion should be obtained .

The inspection of the property scheduled for DATE did not take place because the applicant 's former husband had refused to let her and her lawyer enter the property in question .

On DATE the court ordered another expert report and a courtexpert inspected the property . He submitted his expert opinion to the court on DATE .

Subsequently , both parties challenged the expert opinion .

The hearings scheduled for DATE and CARDINAL DATE were adjourned upon the application of the applicant 's former husband . The subsequent hearings scheduled for DATE and DATE were also adjourned since the expert witness had failed to appear before the court .

The court held a hearing on DATE . It heard an expert witness and ordered that a supplementary opinion be prepared .

At the hearing held on DATE the applicant 's former husband requested the court to stay the proceedings .

On DATE the court decided to stay the proceedings since it established that the determination of the case depended on the outcome of another set of proceedings .

On DATE the applicant applied to resume the proceedings because the reason for staying had ceased to exist as the other set of proceedings had ended with ORG judgment of CARDINAL DATE .

On DATE the ORG resumed the proceedings .

On DATE and CARDINAL DATE the court held hearings . Subsequently , the trial court decided to hold a view of the estate and to obtain an additional expert opinion . CARDINAL views of the property scheduled for CARDINAL and DATE did not take place .

Subsequently , the court held hearings on DATE and DATE . It heard an expert witness and ordered that CARDINAL new experts ' opinions be prepared .

It appears that the experts refused to prepare their opinions and on DATE the court ordered another expert to prepare an additional opinion .

On CARDINAL DATE the court held the next hearing .

Subsequently , hearings were held on DATE and CARDINAL DATE .

Subsequently , hearings were held on DATE , CARDINAL June and DATE . The trial court decided that an expert opinion should be obtained .

On DATE the court held a hearing and heard expert witnesses .

Subsequently , hearings were held on DATE , CARDINAL May , DATE , CARDINAL DATE , DATE , DATE and DATE . Some of the hearings were adjourned .

On DATE the ORG held a hearing and on DATE it gave judgment .

On DATE both parties lodged appeals .

The proceedings are pending .


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

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

DATE the applicant applied CARDINAL times for a visa to visit his sister in GPE . In connection with these applications his sister stated on CARDINAL occasions that the applicant was “ non - political ” and had no political problems . The applicant was finally granted a visa in DATE and stayed with his sister in GPE for DATE .

In DATE the applicant was once again granted a visa and came to visit his sister . He arrived in GPE on DATE , holding a valid NORP passport . He applied for asylum on DATE .

In interviews held on CARDINAL and DATE the applicant stated that , on DATE , the NORP authorities had discovered copies of DATE a DATE political journal written in the NORP language which was forbidden in GPE – in his home and were searching for him . He had forgotten about the copies as a relative had fallen seriously ill at the time when he was about to leave for GPE . As a consequence , the applicant 's wife and children DATE a daughter born in DATE and a son born in DATE had been interrogated . His wife had been detained but later released on bail . The applicant further claimed that he had been , and still was , active in GPE , a political organisation , distributing journals and other documents . Allegedly , his family were well - known supporters of GPE and his brother and brother - in - law had been executed by the NORP authorities due to their political activities . The applicant had been imprisoned in DATE . He had also been dismissed from his job as a teacher . He had thereafter continued with his political activities – being officially active for the organisation as from DATE and had been beaten up on some occasions when he reported to the authorities in compliance with a reporting duty . On several occasions he had also been interrogated and his house had been searched . He claimed to be a NORP and knowledgeable about the ideas of PERSON and PERSON , although he had not read anything by them and was not familiar with their views on religion .

In a letter to ORG of DATE counsel for the applicant added that the applicant had been tortured and assaulted while he was imprisoned .

On DATE the applicant 's wife and children left GPE . Upon arrival in GPE , apparently on DATE , they applied for asylum . The wife first stated that her identification papers had been confiscated when the NORP authorities searched the family 's home . Later she admitted that she had first travelled to GPE with a valid visa to visit her sister and that she had destroyed her passport herself . The applicant 's daughter claimed that she had been relegated from school due to the authorities ' allegations against her father .

On DATE ORG ( Migrationsverket ) rejected the asylum applications and ordered that the family be expelled to GPE . ORG noted that the applicant had received a passport in DATE and had been allowed to leave GPE legally on CARDINAL occasions . It found it improbable that this would have happened if the authorities had suspected him of being politically active against ORG . ORG also found it unlikely that the applicant had left subversive journals in his home and had not remembered them and told relatives to get rid of them while he was in GPE . Further , ORG considered that the applicant 's wife and children would not have been allowed to leave GPE legally if the wife , as claimed , had been interrogated and detained and eventually released on bail . In conclusion , the ORG called into question substantial parts of the information given in the cases and considered that the applicant and his wife had not shown that they were of a particular interest to the NORP authorities or that the family members would be subjected to persecution or discrimination .

On DATE the applicant and his wife appealed to ORG ( Utlänningsnämnden ) . The applicant submitted that he had obtained a passport by bribing officials with a colour television .

On DATE ORG dismissed the appeal , as their lawyer had failed to show that she was authorised to lodge the appeal on behalf of the family .

Later the family lodged a new application with ORG . They claimed that also the wife 's uncle had been executed by the NORP regime . Furthermore , the NORP authorities allegedly suspected that the applicant had joined the armed struggle in the NORP part of GPE . He submitted a certificate from “ GPE abroad ” in which it was stated that he had been an active supporter of GPE and that he had been imprisoned for DATE in DATE because of his activities . The applicant also claimed that the torture to which he had been subjected had injured him physically and mentally for life . He submitted , inter alia , a certificate of DATE issued by PERSON , a qualified psychologist and psychotherapist , who stated that the applicant was suicidal , seriously depressed and showed clear signs of suffering from a post - traumatic stress disorder ( PTSD ) . It was therefore important that he undergo long - term psychotherapy and medical treatment . According to medical records invoked by the applicant before ORG and ORG , the applicant had visited the health care centre in PERSON CARDINAL times DATE and the health care centre in Säffle CARDINAL times DATE for various afflictions . On CARDINAL occasions he had mentioned that he had problems due to previous torture .

On DATE ORG rejected the new application . It did not find that the new submissions indicated that the applicants were in need of protection in GPE . As regards the applicant 's health , ORG did not find that the medical information showed that he suffered from such a serious physical or mental injury that a residence permit should be granted on humanitarian grounds .

In DATE a third application for residence permits was made . In a new certificate , dated DATE and submitted to ORG , ORG stated that the applicant 's health had deteriorated , that he and his daughter were seriously suicidal and that also the other family members had mental problems . In support of the application , the applicant also submitted an NORP document , purportedly a summons to appear before the revolutionary court in GPE , his hometown , issued on DATE . Allegedly , it had not been submitted earlier as mail was very often opened in GPE .

On DATE ORG rejected the third application . It found that the explanation why the court notice had not been handed in earlier was unsatisfactory . As the applicant 's wife and children had not left GPE until DATE they should have been able to bring it with them . It was further unlikely that they had been allowed to leave the country if the authorities ' had had such an interest in the applicant . As regards the statements made by PERSON , ORG , questioning their objectivity , found it remarkable that she had drawn far - reaching medical conclusions about the family members ' health and had assessed the availability of medical treatment in GPE and the family 's need of protection in GPE . In any event , the ORG considered that it had not been shown that any member of the family suffered from such a serious mental disturbance or similar state of health that they could not be considered responsible for their own actions . It was therefore not inhuman to enforce the expulsion decision .

On DATE the family lodged yet another application for residence permits . In support thereof , they invoked CARDINAL further statements concerning their health , CARDINAL issued on DATE by PERSON , a qualified physician and psychotherapist and specialist in psychiatry , and one issued on DATE by PERSON , a qualified physician . PERSON stated that the applicant and his wife showed clear symptoms of GPE , that the applicant was seriously suicidal and that the children suffered from depression . PERSON , who had only examined the applicant , stated that he met almost all the criteria for a post - traumatic stress syndrome and that there was a serious risk that he would commit suicide in the event of his being expelled to GPE . The applicant further claimed that he had taken part in CARDINAL demonstrations in GPE for an NORP communist party . The second one , which had taken place DATE before the lodging of the latest application , had been shown on NORP television and had attracted the attention of the NORP security police which had interrogated the applicant 's mother in GPE about the applicant and his involvement in the demonstration .

On DATE ORG decided not to suspend the enforcement of the expulsion order .

By a decision of DATE , following the ORG 's indication under LAW , ORG stayed the enforcement of the expulsion order .

The latest application for residence permits is still pending before ORG .

The applicant has submitted that his mental health has deteriorated since DATE . It appears , however , that he has not undergone the treatment prescribed by Dr Lindqvist in DATE . According to a medical certificate of DATE by PERSON , specialist in general psychiatry , the applicant , while not having suicidal thoughts , had expressed that he would rather die than return to GPE and had shown symptoms of suffering from GPE and depression . Also his children were suffering from mental problems . PERSON stated that the applicant was in need of long - term psychiatric care and started a treatment with antidepressants .


CASE OF WAINWRIGHT v. THE UNITED KINGDOM

No violation of Art. 3;Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial awards;Costs and expenses partial award - convention proceedings

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Rait Maruste

The first applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE . The second applicant , her son Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He has cerebral palsy and severe arrested social and intellectual development . He was defined as a “ patient ” within the meaning of LAW DATE and as such lacked the capacity to bring or defend legal proceedings . His application to the ORG was made through the first applicant , who acted as his “ litigation friend ” throughout the domestic proceedings .

In DATE , PERSON ( the first applicant ’s son and the second applicant ’s CARDINAL - brother ) was arrested on suspicion of murder and detained on remand at ORG , GPE . Following a report by a senior prison officer raising suspicions that Mr O’Neill was involved in the supply and use of drugs within the prison , on DATE the governor ordered , inter alia , that all Mr O’Neill ’s visitors be strip - searched before visits .

Unaware of the governor ’s orders , on DATE the applicants attended PERSON to visit Mr O’Neill . Until then , neither of them had previously been to a prison . On presentation of their visiting orders , the applicants were requested to join the queue of visitors lined up by a security barrier . As requested , they removed their coats and placed them with their bags on a conveyor belt to be X - rayed . They were then frisked and searched by metal detector . Whilst waiting with other visitors in a corridor to go inside , a number of prison officers approached them and told the applicants to follow them . They were taken across the courtyard from the south gatehouse by CARDINAL prison officers . The second applicant asked his mother what was happening . As they approached the north gatehouse , CARDINAL of the officers stated that they had reason to believe that the applicants were carrying contraband . When the first applicant asked what this meant , she was told that he was referring to drugs .

At the north gatehouse , the applicants were taken through another security barrier and up some stairs to the first floor . They were informed that they would be strip - searched and that if they refused they would be denied their visit to Mr O’Neill . The second applicant was beginning to be distressed and the first applicant tried to calm him down . They were then taken to separate rooms for the searches .

The first applicant was taken by CARDINAL female officers into a small room which had windows overlooking the road in front of the prison and the administration block beyond it . It was dark outside and the lights in the room were on . There were lights on in the building , which led the first applicant to believe that people were still working in the administration block . Although there were roller blinds on the windows , they were not pulled down . The first applicant was told to take off her jumper and vest . CARDINAL of the officers searched them whilst the other officer walked around her , examining her naked upper body . She was then instructed to remove her shoes , socks and trousers , which she did . At this point , a third female officer entered the room . This officer asked where the consent forms were , and was told by CARDINAL of the officers where to find them . In answer to a question from the first applicant , the third officer confirmed that the form was for the second applicant . The first applicant explained that it would be no use to him because of his learning difficulties , particularly with reading and understanding , and that someone else needed to be there to explain to him what was happening . The third officer then left and the search of the first applicant continued . By this time she was crying . She was standing naked apart from her underwear . On her request , she was returned her vest and allowed to put it back on . She was told to pull down her underwear which she did and then told to spread her legs . She was then told to take one leg out of her underwear so her legs could be spread wider . She was told to bend forward and her sexual organs and anus were visually examined . The officer inspecting her body then asked the first applicant to pull her vest up again , asking for it to be raised higher and higher until it was above her breasts . The first applicant asked why that was necessary since they had already inspected her top CARDINAL . The officer ignored her and continued walking around her body . She was then told to put her clothes back on .

By the end of the search , the first applicant was shaking and visibly distressed . She believed that anyone outside the prison looking at the windows in the room where she was being strip - searched could have seen her in a state of undress . She was worried that if she protested too much she would not be allowed in to visit Mr O’Neill . She was also worried about what was happening to the second applicant . Although none of the officers touched her , she felt threatened by their actions and considered that she had no alternative but to comply with their instructions .

After she had been told to put her clothes back on , CARDINAL of the officers approached the first applicant and asked her to sign the form to consent to a strip - search ( FCARDINAL ) . Attached to the consent form is a summary of the procedure to be carried out . The first applicant told the officers that she might as well sign it as there was by that stage nothing else the officers could do to her and she then did so without reading it .

The second applicant was taken to a separate room by CARDINAL male officers . At first he refused to go into the room but was told that he would not get to see his brother if he did not agree . Once in the room , CARDINAL of the officers put on a pair of rubber gloves . This frightened the second applicant who feared that there would be a search of his rectum . As requested , he removed the clothes from the upper CARDINAL of his body and they were searched . He was subjected to a finger search , which included poking a finger into his armpits . The prison officers then told the second applicant to remove the clothes from the lower CARDINAL of his body . At first he refused to remove his boxer shorts . He was by this stage crying and shaking . He reluctantly removed his boxer shorts and was told to spread his legs . Because of his physical disability , he had to balance with one hand on the wall to do so . CARDINAL of the prison officers looked all around his naked body , lifted up his penis and pulled back the foreskin . He was then allowed to get dressed .

After this , CARDINAL prison officer left the room and returned with a consent form . When presented with it , the second applicant explained that he could not read and that he wanted his mother to read it to him . The officers ignored this request and said that if he did not sign the form he would not be allowed in to visit his brother . He signed the form .

The applicants were led back to the prison to proceed with their visit . During the visit , the first applicant told PERSON O’Neill what had happened . The first applicant went into the toilet where she cried and vomited CARDINAL times . The second applicant felt shaken and nervous and was upset . The applicants did not stay for the full length of their visit .

Regarding the first applicant , on returning home , she removed her clothes and bathed because she felt upset , angry and dirty . Because of her experience , she did not visit Mr O’Neill for DATE . In DATE , in the context of the civil proceedings , she was examined by PERSON , Professor of Psychiatry . At that time ( DATE after the incident ) , the first applicant stated that she still thought about the strip - search DATE , continued to get upset about it , remained angry about what had happened and had difficulty sleeping . Dr ORG considered that the severe upset that she had experienced in the prison made her existing depression ( for which she was receiving medication at the time of the visit ) worse , but that , apart from recurrent intrusive recollections of her time at the prison and psychological distress at anything that resembled her experience , she did not show other symptoms of post traumatic stress disorder ( PTSD ) . He concluded that , as a result of her aversive experience in the prison , the first applicant would be more vulnerable to future traumatic events and more prone to depressive reaction .

As for the second applicant , on his return home from the visit , he went to his bedroom crying . For DATE after the incident , he would not see his girlfriend , baby son , friends or anyone else and spent large amounts of his time in his bedroom . He was also examined by Dr ORG in DATE . At this time , he stated that he was still feeling bad about the incident , had difficulty sleeping , and had nightmares about going into the room at the prison and of being strip - searched . He thought about being in prison almost continuously and broke out in a sweat and felt frightened when he recalled the incident . During a subsequent visit , he saw some of the same officers who had strip - searched him and became very frightened . In addition , he became afraid to leave the house alone and therefore stayed at home , only going out with his mother , the first applicant . He lost interest in his previous activities , showed irritability and hypervigilance .

PERSON concluded that the second applicant was suffering from PTSD ( scoring CARDINAL on the DSM - IV ( ORG and Statistical Manual ) scale , where CARDINAL would indicate presence of PTSD ) and had a depressive illness . He found that both illnesses had been substantially caused by his strip - search experience . He found that the second applicant had experienced the strip - search as a threat to his physical integrity , believing that he was going to experience anal penetration , to which he had responded with fear and a feeling of hopelessness . His symptoms were severely impairing his ability for social functioning . Dr Sims concluded that even after recovery the second applicant would remain vulnerable to further symptoms with lesser provocation than previously .

NORP In DATE , the second applicant was further examined by Dr Sims . He concluded that he was still suffering from post traumatic stress disorder ( which in fact was more severe , measuring CARDINAL on the ORG scale ) and depressive illness . He predicted some improvement , with appropriate treatment , within DATE .

On DATE ORG upheld the applicants’ civil claims against ORG , holding that the searches constituted a trespass to the person which could not be justified by Rule CARDINAL § CARDINAL of FAC ( see Relevant domestic law and practice below ) for CARDINAL reasons . Firstly , the trial judge held that the strip - searches were an invasion of their privacy exceeding what was necessary and proportionate to deal with the drug smuggling problem . Although he accepted that there were serious drug problems at the prison at the time of their visit and that there were reasonable grounds for believing that PERSON O’Neill had been obtaining illicit drugs ( he referred to the report by a senior prison officer that his speech had been slurred and mannerisms incoherent ) , he held that the prison officers should not have searched the applicants as it would have been sufficient to have searched PERSON O’Neill after they left . Secondly , the prison authorities had not adhered to their own rules . The judge rejected the applicants’ submission that LAW was relevant , holding that although strip - searches were unpleasant they did not amount to inhuman or degrading treatment . The trial judge accepted the diagnosis of the second applicant as suffering from PTSD , but did not think that his symptoms had lasted as long as the psychiatrist thought , and that the second applicant had substantially recovered from the effects of the strip - search by DATE , when he made a parasuicide attempt . He awarded the first applicant a total of MONEY ( GBP ) ( comprising GBP CARDINAL basic damages and GBP CARDINAL aggravated damages ) and the second applicant a total of GBP CARDINAL ( comprising GBP CARDINAL,CARDINAL basic damages and GBP CARDINAL aggravated damages ) , ORG having conceded battery following the trial judge ’s factual findings .

On DATE ORG allowed ORG appeal . The court disagreed that trespass to the person could be extended to fit these circumstances and found that no wrongful act ( save for the battery against the second applicant ) had been committed . Lord Chief Justice PERSON noted that there were numerous ways in which drugs could be smuggled into prison and that the most vigorous regime of searching prisoners would not in itself suffice . He found therefore that a search of PERSON O’Neill would have been inadequate . He rejected the ORG arguments that LAW DATE , which did not have retrospective effect , could affect the outcome of the appeal . While agreeing that the LAW had no retrospective effect , Lord Justice PERSON commented that if the events had occurred after the coming into effect of the LAW , the applicants would have had a strong case for relief due to the manner of the search and the public authority ’s lack of regard for DATE . The court set aside the first - instance judgment and substituted an award of a total of ORG CARDINAL to the second applicant for battery .

On DATE ORG upheld the judgment of ORG and dismissed the ORG appeal . Holding that LAW DATE was not applicable as the events took place before its entry into force on DATE , ORG nevertheless went on to consider whether , if the LAW had been in force , breaches of the LAW could be made out . Lord PERSON , delivering the leading judgment , found that there was no infringement of LAW as the conduct had not been sufficiently humiliating to constitute degrading treatment .

“ CARDINAL . In the present case , the judge found that the prison officers acted in good faith and that there had been no more than ‘ sloppiness’ in the failures to comply with the rules . The prison officers did not wish to humiliate the claimants ; the evidence of PERSON was that they carried out the search in a matter - of - fact way and were speaking to each other about unrelated matters . The ORG were upset about having to be searched but made no complaint about the manner of the search ; PERSON did not ask for the blind to be drawn over the window or to be allowed to take off her clothes in any particular order and both of them afterwards signed the consent form without reading it but also without protest . The only inexplicable act was the search of PERSON ’s penis , which the prison officers were unable to explain because they could not remember having done it . But this has been fully compensated . ”

As for Article CARDINAL :

“ CARDINAL . Article CARDINAL is more difficult . PERSON thought , at [ DATE ] QB CARDINAL , CARDINAL , para . CARDINAL , that the ORG would have had a strong case for relief under section CARDINAL if LAW had been in force . Speaking for myself , I am not so sure . Although LAW guarantees a right of privacy , I do not think that it treats that right as having been invaded and requiring a remedy in damages , irrespective of whether the defendant acted intentionally , negligently or accidentally . It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs . Article CARDINAL may justify a monetary remedy for an intentional invasion of privacy by a public authority , even if no damage is suffered other than distress for which damages are not ordinarily recoverable . It does not follow that a merely negligent act should , contrary to general principle , give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety : compare PERSON v Chief Constable of ORG [ DATE ] CARDINAL All ER CARDINAL . ”

Dealing with the applicants’ submission that , in order for GPE to conform to its international obligations under LAW , ORG should find that there was ( and in theory always had been ) a tort of invasion of privacy under which the searches of the applicants were actionable and damages for emotional distress recoverable , Lord PERSON stated :

“ CARDINAL . Nor is there anything in the jurisprudence of ORG which suggests that the adoption of some high level principle of privacy is necessary to comply with LAW . ORG is concerned only with whether LANGUAGE law provides an adequate remedy in a specific case in which it considers that there has been an invasion of privacy contrary to LAW and not justifiable under LAW . So in PERSON v GPE CARDINAL EHRR CD CARDINAL it was satisfied that the action for breach of confidence provided an adequate remedy for the PERSON complaint and looked no further into the rest of the armoury of remedies available to the victims of other invasions of privacy . Likewise , in PERSON GPE ( DATE ) CARDINAL ORG CARDINAL the court expressed some impatience , at paragraph CARDINAL , at being given a tour d’horizon of the remedies provided and to be provided by LANGUAGE law to deal with every imaginable kind of invasion of privacy . It was concerned with whether PERSON ( who had been filmed in embarrassing circumstances by a ORG camera ) had an adequate remedy when the film was widely published by the media . It came to the conclusion that he did not .

Counsel for the ORG relied upon PERSON ’s case as demonstrating the need for a general tort of invasion of privacy . But in my opinion it shows no more than the need , in LANGUAGE law , for a system of control of the use of film from ORG cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens . For the reasons so cogently explained by Sir PERSON in ORG [ DATE ] ORG , this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle .

Furthermore , the coming into force of LAW DATE weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies . Sections CARDINAL and CARDINAL of the LAW are in themselves substantial gap fillers ; if it is indeed the case that a person ’s rights under LAW have been infringed by a public authority , he will have a statutory remedy . The creation of a general tort will , as ORG pointed out in ORG , at [ DATE ] QB CARDINAL , CARDINAL , para . CARDINAL , pre - empt the controversial question of the extent , if any , to which the Convention requires the ORG to provide remedies for invasions of privacy by persons who are not public authorities .

For these reasons I would reject the invitation to declare that since at DATE there has been a previously unknown tort of invasion of privacy . ”

Section CARDINAL(CARDINAL ) of the Prison Act DATE allows the Secretary of ORG for ORG to lay down rules relating to the management of prisons .

“ The Secretary of ORG may make rules for the regulation and management of prisons , remand centres , young offender institutions or secure training centres , and for the classification , treatment , employment , discipline and control of persons required to be detained therein . ”

Pursuant to this power , the Secretary of ORG has issued ORG . Rule CARDINAL § CARDINAL of the Prison Rules DATE ( consolidated DATE ) , which was in force at the relevant time , provided :

“ Any person or vehicle entering or leaving a prison may be stopped , examined and searched . ... ”

The details of the grounds for stopping and searching visitors and the procedure to be followed were set out at the relevant time in a document entitled “ Strategy and Procedures of Searching at FAC ” . This document is not available to the public . The relevant paragraphs ( as cited by ORG at paragraph CARDINAL ) are as follows :

“ DATE Searches will be conducted in as seemly and sensitive manner as is consistent with discovering anything concealed .

No person will be strip - searched in the sight of anyone not directly involved in the search .

A person who refuses to be searched will be denied access to the prison or detained in accordance with s.CARDINAL.CARDINAL.CARDINAL .

DATE Strip - searching of visitors is not permitted except in the circumstances specified in CARDINAL and then only if police attendance is not possible . In cases where strip - searches of visitors are necessary it is preferable that this is done by the police .

DATE A visitor who refuses to co - operate with the search procedures will be advised that the failure to comply will result in exclusion from the prison .

DATE If the duty governor sanctions a strip - search , the visitor should be taken to a room which is completely private and informed of the general nature of the suspected article . ”

A summary of the procedure to be followed during strip - searches at the prison was set out on the back of the consent forms . The consent form ( FCARDINAL ) provided as follows :

“ Appendix F : Notice for the information of visitors or other persons entering an establishment

Strip - search

Please read carefully

The governor has directed that , for the reasons explained to you , you should be strip - searched .

The police have been informed but can not come to deal with the matter . The search will therefore be carried out by prison staff .

The procedure for the search is explained overleaf .

Please sign below if the search is taking place with your consent . ”

Above the line to be signed by the person being searched appeared the following :

“ I have read this notice ( or it has been read to me ) and I understand it .

I agree to be strip - searched by prison staff . ”

The summary of the procedures to be followed appeared overleaf :

“ Procedures for a strip - search

Staff and visitors

CARDINAL officers will be present . No person of the opposite sex will be present .

You will not be required to be fully undressed at any stage .

You will be asked to remove clothes from CARDINAL of your body and pass them to an officer so that they may be examined . Your body will then be examined briefly so that the officers can see whether anything is concealed . The clothes will then be returned to you without delay and you will be given time to put them on .

The procedure will then be repeated for the other CARDINAL of your body .

The soles of your feet will be checked .

When your upper body is undressed , you may be required to hold your arms up .

When your lower body is undressed , you may be required to position yourself in such a way as to enable staff to observe whether anything is hidden in the genital or anal areas . Your body will not be touched during this process .

If you have long hair , it may be necessary for an officer to search it . It may also be necessary for an officer to check your ears and mouth . You will not be touched otherwise . ”