David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is an NORP national who was born in DATE . She was represented before the ORG by Mr Atli Gíslason and PERSON , lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by PERSON as their Agent .

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

On DATE the applicant attended a birthday party with some friends and had dinner with her father in PERSON . After dinner she and her father went to a bar in PERSON , where they stayed for some time . Her father bought her a beer , which she left on a table and lost sight of when she was dancing . The applicant submitted that the next thing she could remember was having woken up covered in blood , lying next to an unknown man ( “ J. ” ) in an unknown house . She did not know how she had ended up injured in his bed . She had panicked and had left as soon as she could .

On TIME , CARDINAL DATE , the applicant went to ORG at ORG , which took blood and urine samples and carried out an examination . The examining medical doctor , PERSON , completed a “ Forensic examination report ” ( file no . CARDINAL ) , dated DATE . This was a detailed form specifically tailored to instances of “ Sexual incident / Sexual assault ” , with boxes to be completed under a number of headings and sub - headings .

Under the heading “ Description of the Offence ” , it appeared that the “ Scene ” was “ unclear ” , that the “ Attacker ” was “ unknown ” , that the occurrence of “ Threats ” was “ Not known ” , that it was “ Not known ” whether she had been “ Forced to take drugs / alcohol ” and whether “ Violence ” had occurred .

Thereafter , the following information was rendered under the heading “ ORG ’s account ” :

“ [ ... ] She remembers little of what happened after going inside [ the bar ] , but remembers being out on the dance floor . She does not remember having met anyone she knows , or anyone else apart from her father . She had drunk CARDINAL bottle of white wine and CARDINAL beers since TIME . Then she remembers nothing until TIME when she woke up in a strange house on [ R ] . She was wearing only a short skirt and a bra . CARDINAL men lived in the house who she said had been very decent towards her . They had wrapped her in a duvet and blanket . They said they had found her lying in her own blood down in town . They had taken her home and attended to her , and were going to contact a doctor . [ ... ] ”

The report further gave details on “ Evidence taken on examination ” , “ Pelvic examination , Gynaecological examination ” , “ Injuries and other evidence ” ( which described injuries to her vulva , knee and legs , supported by drawings and photographs ) , “ Conditions of clothing ” and Physical examination ” .

Then , under the title “ Conditions of examination ” , PERSON observed :

“ A young woman whose face is swollen from crying . She is evidently undergoing great suffering . She remembers very little of TIME , but has given a clear and coherent description of what she does remember . She makes a good impression and is cooperative . She is very credible . She complains of tenderness and pain in her lower body and has difficulty urinating . ”

Under the heading “ ORG ’s account of events ” was listed a series of questions regarding notably the “ Attacker ’s sexual conduct ” , in respect of which “ Do n’t know ” was marked for each question , “ Yes ” or “ No ” being the other options .

Under the heading “ Physician ’s conclusion ” , the form set out detailed requirements as to the contents of the assessment .

The examining doctor concluded :

“ A girl of DATE who has come to FAC and thinks she was raped TIME . She has blood stains on the inside of her thighs and her lower body is tender . She woke up TIME in a strange house wearing only a bra and a short skirt . She had drunk alcohol of her own free will during TIME . She remembers virtually nothing of what happened during TIME .

Examination has shown that she has injuries to her genitals . She has haematoma [ QUANTITY ] on the r. labia majora and a long tear [ QUANTITY ] in the labial fold with a flap that has been torn up from the skin . Evidently caused by very rough sexual intercourse . Photographs and drawings are enclosed . Samples were taken from the vulva and vagina for semen tests and a Chlamydia sample was taken , but due to tenderness it was not possible to take more samples .

She also has grazes on her knees and legs , and scratches ; it is not clear how these were caused . [ ... ] ”

Under the heading “ Release of physician ’s report to the police ” , it is stated that ORG had received the evidence and the physician ’s report on DATE .

On DATE the applicant was again examined by PERSON , who completed a report on DATE , entitled “ Follow - up Appointment I ” . It listed a number of questions concerning the “ Emotional state and shock reactions that have become more pronounced or appeared for the first time since the attack ” . It noted , inter alia , a fear of meeting the attacker by chance , concentration problems due to obsession about the incident and sleeplessness .

The report further noted that she had admitted to having given false information when she first came to the FAC ; she knew the identity of the man in question and said he had been lying beside her , naked , when she woke up on DATE .

Apparently , this follow - up report of DATE was received together with the initial report of CARDINAL DATE by ORG S.K.R. on DATE .

In the meantime , on DATE at TIME the applicant lodged a complaint against J. with the police . Interviewed by Detective Inspector PERSON , she stated that at TIME she had gone to the bar and continued :

“ Dad bought himself a beer and I had a few sips of it . Then he bought me a beer in a glass . I had n’t felt much alcoholic effect before I drank from the beer that PERSON bought me . After that I was dancing on the dance - floor of [ the bar ] . I remember putting my beer down a few times when I went to urinate ; on CARDINAL occasion I put it down by a small bar counter next to the dance - floor . I lost sight of my beer glass a few times . The last thing I remember from TIME is that I was dancing on the dance - floor . I remember PERSON was watching me , and I remember that suddenly it was as if lots of people were on the dance floor , but there had not been many people there while I was dancing at the beginning of the evening . The next thing I remember was that I woke up in a house I did n’t recognise , in a bed I did n’t recognise and beside a man I did n’t recognise . I was wearing only a skirt and a bra . I felt immediately something was wrong . I wrapped the duvet [ ... ] around me and went out of the room ; I saw that the man was naked . I looked at a clock on the bedside table and saw that it was about CARDINAL o’clock . ”

The applicant further recounted that on her way to the bathroom , she had noticed “ a telephone table with a phone on it ” . When she had found the bathroom she had gone in and discovered that she had blood on her thighs . She had been unable to urinate . She had examined her lower body and seen the injuries to her genitals . Her knees had also been bruised and she had had scratches on and below her knees .

The applicant stated : “ Then I went into the hallway again and phoned my mother . ” The applicant had started crying and J. had come out of the bedroom . “ He asked me who I was phoning , and I told him and I asked him where I was ; then he asked me if I was leaving and I told him I had to go home to my daughter . ” The applicant had asked her mother to pick her up and she had then gone looking for her clothes . She had asked J. : “ Was n’t I wearing any clothes when I came here ? ” to which J. had replied : “ No . ” The applicant had said : “ Surely I did n’t come here like this ? ” and PERSON had replied “ Yes you did , ” and grinned . The applicant had put on a t - shirt belonging to J. , her jacket and her boots and gone out . She stated : “ I could n’t find my mobile phone , and he offered to phone it . I gave him my phone number , and he phoned [ ... ] ” . At the same time J. had been putting on his outdoor clothes , getting ready to leave along with an older man . They had seemed to be leaving together and J. had told the applicant where he worked .

The applicant ’s stepfather had picked her up . When she had got home her mother had noticed that something had happened and asked the applicant , who had shown her the injuries . Her mother had telephoned the emergency service and then taken the applicant to ORG .

The applicant stated that she had not told the doctor during her consultation that she had woken up next to this man . She had been in denial that he could have done this to her . She further stated that she had been in deep shock and afraid of pressing charges . She had been very cold , shivered , cried a lot and had much pain from her physical injuries . The applicant had then pointed out :

“ [ The applicant ] says she wishes to state that she is absolutely certain that she did not go home with this man of her own free will . She wishes to state that she has only had close relationships with CARDINAL men in her life , CARDINAL of them being the father of her child . She says she has never experienced a ‘ blackout’ when drinking alcohol . She says she has never abused alcohol . She says she considers it likely that something was put in the beer she drank last at [ the bar ] . She says she can tolerate drinking a considerable amount of alcohol before feeling the effects . Also , she does not think it normal that she would not have woken up when suffering her injuries . ”

The applicant continued by affirming that when she had woken up she had felt as if a heavy weight was pressing down on her and that she was paralysed . She had also had a headache . She intended to press charges and to demand that the perpetrator be punished and she reserved the right to demand compensation at a later stage . Her interview ended at TIME

The applicant was assisted by an officially appointed lawyer throughout the criminal investigation .

On DATE at TIME the police questioned PERSON was informed of the charges against him and invited to comment on them . He stated :

“ I went out alone to enjoy myself DATE TIME . I had drunk CARDINAL cans of beer and felt the strong affect of the alcohol . CARDINAL I went to the bar [ ... ] . There I got talking with a man , an GPE , who was sitting at a table . I sat with him and we started talking about this and that . After I had been sitting there with him for some time a girl came to the table and it turned out that she was this man ’s daughter . I started looking into her eyes and I thought I felt some sort of current between us . The next thing I knew we were inside the women ’s toilet in [ the bar ] and had started kissing . Then we went out onto the dance - floor and danced for a bit . I thought this girl was about as drunk as I was . But I do n’t remember having seen her drink anything alcoholic while we were there . Then we went back together to the women ’s toilet and started kissing again . While we were kissing , a doorman came into the toilet and threw me out of it , and out of [ the bar ] . ”

J. stated that he had waited outside for a short while and then the applicant had come out and they had taken a taxi to J. ’s house . TIME she had given J. her phone number so he could phone her again . He had tried to phone her the next day when he had found her underpants and her top but no one had answered .

At this point , at TIME , the questioning stopped for a moment while the police took J. to the technical division where he was photographed and his fingerprints taken . DNA samples were also taken .

The questioning continued at TIME During this part of the questioning PERSON was asked direct questions and was presented with the applicant ’s testimony .

J. was asked why he had asked the applicant to go home with him . He replied that he had wanted to have sex with her but that had not happened as he had thought she was menstruating . J. stated that it was not true that she had woken up dressed in a skirt and a bra and he had been naked . She had been naked and he had been wearing his underpants .

About the applicant ’s statement that she had had “ blood all over her thighs ” , PERSON stated that it could have been so ; he had seen blood on the front of her thighs before going to sleep . When presented with the applicant ’s detailed account of her injuries , bruises and scratches PERSON replied that he knew nothing about it .

When invited to comment on the applicant ’s rendering of her observations about her clothing and his statements in reply , PERSON stated that he did not remember having said what she indicated .

J. was told that the applicant had said that she had given him “ her mobile phone number so that [ he ] could phone it there and then and [ sic ] she could hear it ring so that she could find it . ” PERSON stated that she had given him his phone number so that he could phone her later , that he did not remember her phone number but that he had it saved in his phone .

J. was further asked to comment on the applicant ’s statement that “ she remember[ed ] nothing from CARDINAL past CARDINAL ” in TIME until she had woken up beside him at TIME PERSON stated that he knew nothing about that .

J. was then asked whether he had given the applicant “ any sort of drug ” , to which he replied : “ Certainly not . ” He was asked whether he had taken drugs recently and he stated that he had not . When asked whether he had “ assault[ed the applicant ] sexually , ” he stated that he had not . When asked whether he had contacted her after TIME of CARDINAL November , he stated that he had tried to phone her the day before the questioning [ DATE ] because he had found her clothes but no one had answered .

J. further stated that he did not understand the case and that he had no further statements .

His defence lawyer requested that he be asked whether he had seen the applicant having any contact with other men at the bar , apart from J. and her father . PERSON stated that he had seen her talking to some other men while they had been dancing . He further stated that he had been quite drunk at the time .

On DATE , at TIME , the police carried out a search of J. ’s home . J. gave them underwear and a T - shirt belonging to the applicant . The police found no further evidence during the search but stated in the search report that the room had appeared to have been recently cleaned . J. ’s grandmother had told the police that she had cleaned the room DATE before and changed the bedclothes . She could recall that there had been bloodstains on the bedclothes that she had taken off from the bed .

On DATE the police interviewed the applicant ’s father . He stated that he and the applicant had gone to the bar at around TIME He had bought beers for them and they had sat down at a table and talked . The applicant had gone to the dance floor to dance with some people she appeared to know . He had seen a young man putting his arms around the applicant while she had been talking on the phone and he had embraced her . It had appeared as if she had not approved of this and that she had not known the man at all . The applicant ’s father had told the man [ J. ] that he was her father and that this was not “ gentlemanly behaviour ” . The man had taken it well and sat down at the table with him . J. had repeatedly expressed his feelings towards the applicant . J. had invited the applicant to dance and she had gone with him to the dance floor . They had danced for a short time and then J. had come to take his jacket , which he had left by the table . At TIME the applicant ’s father had noticed that she was gone . He had waited for TIME and then he had gone , taking her phone , which she had left on the table , with him .

On DATE the police interviewed PERSON , the doorman at the bar on the night in question , who had stated :

“ I was working at [ the bar in question ] on TIME in question ; I work there sometimes as a doorman . I remember that [ x ] , the son of the owner of [ the bar ] , came to me and said that there was a man and a woman in the men ’s toilet having intercourse . This happens quite often , and when it does we doormen put a stop to it . I went into the men ’s toilet and saw straight away that there were CARDINAL people in CARDINAL of the toilet cubicles . I knocked a few times because I could hear that there was CARDINAL person in the toilet cubicle . After a little while I asked if there was CARDINAL person in there . A man then answered me and said ‘ Wait a moment , there ’s been a slight accident.’ Then I knocked again and asked the man to open the door , and I tried to open it myself but I could n’t . Then I told the man again to open it , and after TIME the man opened the door . Then I saw that there was a woman and a man inside ; the woman was DATE , blonde , QUANTITY tall and wearing glasses ; her hair was in a pony - tail and reached down just below her shoulders ; the man was small and stocky . I saw straight away that there was a lot of blood in there , both on the walls and on the toilet itself , that is , on the seat and the cistern . I also saw blood on the floor . I saw that the woman had quite a lot of blood on her hands , but I did n’t see any blood on him .

I offered to call an ambulance or the police for them , but the man himself turned this down . The woman did not say anything . I then showed her into the women ’s toilet so she could wash herself , and I ordered him out into the hall to begin with . I think it was TIME at this stage . I thought it must have been menstrual blood . Then I went out front and told the doorman , [ Sn ] , about the blood and that something had been going on inside . [ S ] then told the owners of [ the bar ] about it .

After a short time I then went into the women ’s toilet to see about this girl , but when I went in there she was n’t anywhere near the washbasins . Some girls who were in there indicated to me that there was someone inside one of the toilet cubicles . I went over to the cubicle and knocked , and then I heard that there was CARDINAL person inside the cubicle . This was the largest cubicle in the women ’s toilet . They opened the door to me , and I saw that the man had come to her and she was sitting on the toilet . She still had blood on her hands . I did n’t think the man was very drunk ; I even thought he was completely sober . On the other hand I thought she was very drunk . I had seen her earlier in the evening and noticed that she was rather drunk . I took the man outside and asked the doormen not to let him in again . The man did n’t show any resistance to this . Then I went back into the women ’s toilet , and the woman had come out of the cubicle and was washing her hands . I asked her if she would like to call an ambulance or the police , but she just shook her head .

I saw that she was in a really bad state , so I went with her out to the door to the street and told her to take a taxi and go home . I did n’t see her again that night . I think this all happened between CARDINAL:CARDINAL and CARDINAL.CARDINAL .

I remember she went outside several times during TIME to get fresh air . I recognise this woman , as she comes regularly to [ the bar ] . ”

On different dates DATE the police photographed and analysed the applicant ’s skirt , T - shirt and underwear , in order to identify stains of blood and other organic substances , notably by DNA tests , as well as the bruises on her arms and legs . This information was compiled in a report dated DATE .

The police requested that tests be carried out on the samples for alcohol and drugs , with specific tests for drugs that could impair judgment . These were samples that had been taken from the applicant when she came to ORG on DATE as described above . ORG issued the results in a report dated DATE :

“ Ethanol was found to be present in a concentration of CARDINAL in the blood and in a concentration of CARDINAL.CARDINAL‰ in the urine . Amphetamines , benzodiazepine compounds , cannabinoids , cocain and morphine drugs were not present in measurable quantities in the urine . Gamma - hydroxybutyric acid was not present in measurable quantities in the urine . A standard drug scan of the urine did not detect any drugs that can be found using that method .

The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol TIME before the blood sample was taken . ”

The samples taken from the applicant at FAC were sent to a forensic laboratory for analysis . The assessment from ORG , dated DATE , includes the following statement :

“ According to the foregoing , no sperm cells were detected , [ ... ] nor was there any indication of the presence of semen in the samples taken from the plaintiff or on her clothing ( underpants and skirt ) . ”

On different dates DATE and DATE the police interviewed several people , mostly friends of the applicant who had met her on the night in question , and also her mother and J. ’s grandmother , the grandfather having availed himself of his right not to testify . The grandmother stated , inter alia , that when she had removed the bed clothes she had noticed a bloodstain on the duvet cover and that she had not given this any further thought . She asked PERSON whether he had hurt himself and he had replied that he had hurt his finger .

The police photographed J. ’s home and the bar . The photographs were compiled in reports dated DATE and DATE , respectively .

On DATE the police again interviewed the applicant . She was asked whether she wished to change or add anything to her previous statement . She stated that she did not .

She was then confronted with the statement of her father regarding her interactions with J. on the night in question . She stated that she did not remember a man embracing her but she did remember her father standing up while she had been talking on the phone . She had been talking to her friend , PERSON She further stated that she did remember dancing after talking on the phone but that she did not remember dancing with J.

The applicant was then confronted with the statement of the doorman PERSON regarding , among other things , his dealings with her and J. in the toilet . She stated that she had nothing to say about the statement , she did “ not remember this happening ” and referred to her earlier statement .

The applicant was further confronted with parts of ORG testimony regarding their contact in the bar . She replied that since she did not remember having seen J. at the bar she could not comment on this , and that she remembered only that the first time she had seen him was when she had woken up beside him in TIME .

Lastly , she was confronted with the results of the tests of alcohol and drugs in her blood : “ The only thing I have to say about this assessment is that it does not fit with the amount of alcohol I remember drinking . ”

On DATE Officer ORG , accompanied by Officer PERSON , went to PERSON in GPE , where suspect PERSON lived as a student , in order to question him further .

Officer ORG informed ORG that the investigation had revealed that he had gone into the toilet in the bar twice with the applicant , first in the men ’s toilet , then in the women ’s toilet . Officer ORG asked him when it was decided that they would go into the toilet , what had happened between them there and confronted him with specific parts of the testimony of doorman PERSON , the applicant ’s mother , and the applicant herself .

J. said that they had gone into the men ’s toilet together , where they had closed the door and begun kissing . They had had oral sex . J. gave a detailed account of the event from the moment they entered the toilets until they were ordered to leave by the doorman . He said that the applicant had taken her underpants off , possibly before her injuries , but had not put them on again before leaving the toilet ; he had therefore collected them and put them in his pocket . She had already started to bleed between her legs . He said he had then followed the applicant into the women ’s toilet , but nothing had happened between them because the doorman had been so quick to follow them in there and had thrown him out of the bar . He said he had waited outside and that the plaintiff had come out shortly afterwards and had sat down on the steps . He had called a taxi and asked the plaintiff if she was going to come home with him which she had done . In his house they had begun undressing each other , and she had been completely naked . He had seen that there was blood coming from her genitals , and he had thought she was starting her period . He denied having had intercourse with her or having moved his body as if he had been .

Suspect J. was questioned about how it was possible that there was no blood on the applicant ’s underwear even though she had sustained serious injuries to her genitals . J. said that before he had left the men ’s toilet he had taken her underpants and put them in his pocket .

When confronted with doorman PERSON ’s statement , J. commented that he could not remember having told the doorman that there had been a slight accident , but he could remember that the applicant was bleeding between her legs , the causes for which he had ignored .

Officer ORG then asked J. what he had meant when he had said that there had been a slight accident , to which J. responded that he could not remember having said these words when the doorman had told him to open the door .

Nor could J. remember that the doorman had offered to call an ambulance or the police .

Officer ORG then informed J. of the applicant ’s injuries and of the assessment made by ORG , where the applicant had been examined immediately after leaving his home , that she had received these injuries from very rough sexual intercourse . In response to this , PERSON denied having had sexual intercourse with the applicant either at the bar or after they had gone to his home . He could not offer an explanation regarding the injuries described to him . He said that he had lain on top of the applicant while kissing her and it was perhaps not impossible that the buttons or the zip on his trousers fly had caused the injuries . He did not remember whether the jeans he was wearing TIME had buttons or a zip .

On DATE ORG informed the applicant and J. that in view of the state of the evidence , which was insufficient for securing a conviction for rape , the case was closed .

On DATE , after the applicant ’s lawyer had requested under LAW a written explanation of the reasons , the prosecution services replied :

“ The plaintiff claims that she has no memory of the events in the case , and considers that this was a consequence of ‘ something having been put in the beer from which she had her last drink in [ the bar],’ and not from her own consumption of alcohol . In the investigation of the case , blood and urine samples were taken from the plaintiff , and it was requested that these be tested for alcohol and for drugs which can affect judgment . No common drugs of this type were found , but the assessment by ORG includes the following statement : ‘ The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol TIME before the blood sample was taken.’

From the description given by the doorman at [ the bar ] , who on CARDINAL occasions had to deal with the plaintiff and the accused , first in the women ’s toilet and then in the men ’s toilet of the bar , the only conclusion to be drawn is that the plaintiff had by then already suffered the injuries to her genitals which you mention in your letter . The plaintiff made no complaints regarding her dealings with the accused when the doorman spoke to her ; this happened on CARDINAL occasions , and amongst other things he offered to call an ambulance or the police , but his offer was rejected . No signs of sperm were found in the samples taken from the plaintiff , which can corroborate the statement by the accused that he did not have sexual intercourse with the plaintiff . On the other hand , he admitted that other sexual acts had taken place between them at the bar , but did not admit to further sexual acts with the plaintiff after they arrived at his home . ”

The applicant underwent aesthetic surgery in DATE on the injuries sustained to the outside of her genitals . In this connection the surgeon stated that the damage could not be repaired perfectly . He could not ascertain the causes but referred the applicant to the doctor who had examined her immediately after the incident . According to a psychologist ’s statement of DATE , the applicant had many of the symptoms of stress and trauma that were common in victims of sexual violence .

On DATE , DATE after ORG announced his decision not to prosecute , the applicant ’s new representative requested that the case be reopened . In his request he stated that the investigation had been substantially flawed and that the case had not received priority attention from the police . The request was accompanied by documents testifying to the psychological treatment the applicant had undergone since the incident and certificates regarding the mental and physical consequences of the alleged rape . On DATE the Director of Public Prosecutions rejected the applicant ’s request . In his letter the Director explained the legal conditions for a case to be reopened , namely , that a case could not be reopened unless significant new evidence had come to light or was likely to come to light . He further described the evidence and the facts of the case . After describing the materials accompanying the request , he stated :

“ The materials accompanying the request for reopening of the case contain , first and foremost , further descriptions of [ H. ’s ] emotional and mental state following the incidents to which the investigation materials of the case refer , as is discussed above .

[ H. ’s ] emotional and mental suffering , to which the new materials bear witness , are doubtless the consequences of what happened to her in TIME of DATE . On the other hand , these materials are not considered as further illuminating what really happened in the dealings between her and the defendant on the night in question . From this it follows that the conditions for the reopening of the case under the third paragraph of LAW [ in force at the relevant time ] have not been met . ”

On DATE the applicant ’s representative wrote a letter to the Minister of Justice marked “ Confidential ” in which he criticised the way the authorities had handled the case . He stated that PERSON had entrusted him with lodging an application with ORG the case , but before doing so , he considered it right to give the Minister of Justice the opportunity to examine her case and redress her position .

On DATE the ORG replied . After describing the events of the case , the letter stated :

“ The scope available to the Minister of ORG to review decisions by ORG regarding the discontinuance of a case is restricted to the condition that the decision is considered as being at variance with the law , or extraordinary in some other respect ( compare with the second paragraph of LAW [ in force at the relevant time ] ) . This case is not considered to be of such a type as to make it appropriate to apply this provision . ”

On DATE the applicant ’s representative wrote another letter to ORG in which he explained that the purpose of the previous letter had been twofold : to have the decision of ORG revised and to request ORG to compensate the applicant for the damage she had suffered .

On DATE the Ministry informed the applicant ’s representative that it had forwarded the claim for compensation to the Attorney - General in Civil Matters who was the competent authority to deal with such claims against the ORG . On DATE the Attorney - General rejected the applicant ’s claim with the following arguments :

“ In the view of the Attorney - General , no legal grounds exist for granting the aforementioned claims by your client . In this connection , reference may be made to the judgment of ORG in case no . PERSON . The following is taken verbatim from Section II of the judgment :

‘ Under the second paragraph of LAW no . CARDINAL/CARDINAL [ LAW in force at the relevant time ] , with subsequent amendments , ORG is the supreme authority for exercising the power of prosecution . In exercising it , he is independent of the will of the government authorities and of other parties ; under the first sentence of the first paragraph of LAW , the Minister of Justice monitors the exercise of the power of prosecution .

The prosecution has an obligation to take measures to ensure that cases are investigated and that they are then brought to a conclusion as quickly as possible and in a manner that can be regarded as normal . Failures to meet this obligation may result in liability on the part of the civil servant involved , in accordance with the legislation and rules applying to civil servants . Actions taken by the prosecution involving specified coercive measures may also entail compensatory liability towards those against whom they are applied in accordance with the provisions of section XXI of Act no . CARDINAL/CARDINAL or the general principles of LAW . This basis for action does not apply to those who suffer injury or damage caused by a criminal offender . The injured party is to have an opportunity to lodge a claim for compensation against the offender in the case , but in other respects no legal relationship exists between the injured party and the prosecution . Neither the injured party nor other parties are expected to influence individual decisions taken by ORG in connection with the exercise of the power of prosecution ; regarding such decisions , ORG is independent in his work , as has been stated above . This applies equally to his assessment of whether any necessity exists that justifies a demand that a suspect or an accused person be subjected to coercive measures . From the foregoing it follows that an injured party can not lodge a compensatory claim against the defendant at DATE based on the assertion that measures , or measures in addition to those that were taken by the authority for exercising the power of prosecution , were needed against the alleged offender . [ ... ] .’

The Attorney - General considers it beyond doubt that the above case - law of the ORG applies to your client ’s claim for compensation . With reference to this , your client ’s compensation claim is rejected on the grounds that no basis can be found , either in NORP legislation or in case - law , for any right to compensation on the part of your client against ORG . ”

No judicial appeal was lodged against the Attorney - General ’s above decision .

At the material time Articles CARDINAL and CARDINAL of the Penal Code provided :

Article CARDINAL

“ Any person who has sexual intercourse or other sexual relations with a person by means of using violence or the threat of violence shall be imprisoned for DATE and a maximum of DATE . ‘ ORG here refers to the deprivation of autonomy by means of confinement , drugs or other comparable means . ”

Article CARDINAL

“ Any person who exploits a person ’s psychiatric disorder or other mental handicap , or the fact that , for other reasons , he or she is not in a condition to be able to resist the action or to understand its significance , in order to have sexual intercourse or other sexual relations with that person , shall be imprisoned for DATE . ”

The Code of Criminal Procedure contained the following provisions of relevance :

Article CARDINAL

“ After receiving the materials in a case and establishing that the investigation is complete , the prosecutor shall consider whether or not any person is to be prosecuted . If he considers that what has been revealed is not sufficient , or likely , to result in a conviction , he shall take no action ; otherwise , he shall put the case before a court as provided for under LAW . ”

LAW

“ If a case is dropped under LAW , or prosecution is discontinued under LAW , the prosecutor who took that decision shall inform the accused person of it and also the victim , where the victim ’s identity is known . Reasons for the decision shall be given if requested . ”

Article CARDINAL § CARDINAL

“ If an investigation against an accused person has been discontinued because the case materials are not considered to constitute sufficient evidence for an indictment , the investigation should not then be reopened against that person unless new case materials have come to light or are likely to come to light . ”

Article CARDINAL § CARDINAL

“ If the Minister of ORG considers the dropping of a case by ORG to be at variance with the law , or out of the question on other grounds , he may recommend to the President of GPE that the decision by ORG be quashed . In such cases , the Minister of ORG shall appoint a special prosecutor to handle the case . ”


Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicant was born in DATE and lives in PERSON .

Upon criminal information laid by the applicant 's wife , ORG , on DATE , issued an arrest warrant against the applicant and a search warrant of his house . The applicant was suspected of having bodily assaulted and raped his wife , of having threatened her with a firearm , of having sexually assaulted his minor stepdaughter and of being in possession of child pornographic videos . The arrest warrant pointed out that there were reasons to assume that the applicant would react with “ massive resistance ” upon his arrest and would “ try to escape prosecution ” .

On DATE at TIME six police officers of the special task force ( PERSON ) of the ORG gendarmerie entered the applicant 's house . The officers were equipped with bullet - proof vests and shields . Further , they wore masks .

The applicant submits that before the police entered his house , he had observed CARDINAL suspicious persons , namely CARDINAL of the officers , lingering around his parking . He had , therefore , armed himself with a kitchen knife However , when the police entered his house he immediately dropped the knife and held his hands up .

The police officers forced the applicant to the ground and handcuffed him .

The applicant submits that he had recognised the police officers on their emblems and had declared at once that he would not do anything and collaborate with the police . An officer allegedly replied to him that he would better do so otherwise he would be “ picked off ” .

NORP The applicant was subsequently laid on a table where he was stripped naked , searched for arms and dressed again . According to the applicant he was blindfolded during this time . Upon the shock of his arrest the applicant had urinated in his clothes . The police officers , despite the applicant 's repeated requests , refused to let him change his clothes .

The applicant submits that he was then again forced to the ground where he remained for TIME while some of the police officers searched his house . According to the applicant he was lying face down while a police officer pressed his knee on the back of his neck . This police officer allegedly told the applicant : “ Do n't move , otherwise you are dead . ” He further submits that it was only when he was lifted up that , without giving any further reasons , he was told that he was arrested .

The applicant was subsequently taken to the LOC police station where he was questioned until about PERSON when he was released and taken back to his house .

During all of the time of his arrest and detention the applicant remained handcuffed . Upon his request , however , the handcuffs were covered with a garment when leaving the house and were later attached in his front instead behind his back .

On DATE the applicant was again heard by the gendarmerie . On DATE he prepared a note for the file in which he described the events at issue . He made , however , no reference to the fact that he had been blindfolded while stripped .

The criminal proceedings against the applicant were discontinued on DATE .

Meanwhile , on DATE , the applicant complained to ORG ( Unabhängiger Verwaltungs - senat ) that the treatment he had suffered during his arrest and at the police station amounted to inhuman and degrading treatment contrary to LAW . He referred to his stripping by the police officers , the forcing to the ground while an officer pressed his knee against the back of his neck , the threats by the officers and the refusal to let him change his wet clothes . He finally complained that his handcuffing had not been necessary as he had been cooperative and had not shown any sign of resistance during all of the time .

ORG held CARDINAL hearings on CARDINAL and DATE . It questioned the applicant , the director of ORG ) , the police officer who had headed the mission , another police officer who had assisted the applicant 's arrest and the police officer who had questioned the applicant at the LOC police station . The police officers submitted that the applicant 's wife had informed them that the applicant was violent , regularly consumed alcohol , was in possession of a fire - arm and had attended training for hand - to - hand combat for DATE . He had allegedly received his wife several times with a weapon in his hand when she was entering the house . The applicant 's wife had warned the police that the applicant “ was up to do anything ” .

The CARDINAL officers who had participated in the applicant 's arrest confirmed that the applicant had been strip - searched . CARDINAL officer explained that this had been done for their and the applicant 's safety and in order to find the weapon . The applicant had been informed about the arrest and search warrant before being undressed . After the strip search the applicant had been seated on a sofa . The other officer stated that after the strip search the applicant had been laid and held on the floor . He denied , however , that somebody had approached the applicant 's neck with his knee . Both officers confirmed that the applicant had not shown any sign of resistance and denied that the applicant had been threatened to “ be picked off ” . The officer who had heard the applicant at the police station submitted that he had not lessened the applicant 's handcuffs because during some of the time he had been alone with the applicant at the police station .

On DATE ORG rejected the applicant 's complaints . It found that the police officers had acted on the basis of an arrest warrant and had not exceeded the instructions of the investigating judge . The handcuffing of the applicant had been a necessary accompanying measure to the applicant 's arrest because of the applicant 's assumed resistance and escape . Against this background also the stripping of the applicant could not be regarded as excessive , especially as the applicant was suspected to be in the possession of weapons . The applicant 's further complaints about the threatening , the holding down by pressing a knee against the back of his neck and the refusal to let him change his wet clothes were , even assuming that the applicant 's allegations were true , of no relevance for the proceedings at issue as they concerned merely the way of proceeding during an authorised arrest and were attributable to the court . A review of lawfulness did not fall within ORG competence .

On DATE ORG declined to deal with the applicant 's complaint .

The applicant filed a complaint with ORG in which he repeated his submissions made before ORG . He further complained about the fact that the intervening officers had been masked .

On DATE ORG partly granted the applicant 's complaint . It quashed ORG decision insofar as the refusal of the police officers to let the applicant change his clothes was concerned and remitted the case back to the Panel for further examination .

ORG dismissed the remainder of the applicant 's complaint . It noted that the police officers had been confronted with a person suspected of severe crimes who was allegedly in possession of a firearm and was trained in hand - to - hand combat and who , furthermore , was holding a knife when meeting them . The handcuffing and complete stripping of the applicant and the alleged fixation and threatening by the police officers did not , therefore , exceed the instructions of the investigating judge . The court did not consider the applicant 's detention for TIME and his handcuffing during this period of time as excessive either . It noted in the latter regard that , despite the applicant 's calm and cooperative behaviour , there was reason to believe that the applicant once liberated from his handcuffs would try to escape or use force . ORG finally noted that the applicant had not raised the complaint that the officers had been masked before ORG . This complaint was , however , inadmissible in any way as it did not concern an act of direct administrative authority and coercion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) .

On DATE ORG found that the police officers ' refusal to let the applicant change his wet clothes had not been covered by the instructions of the investigating judge who had ordered the applicant 's arrest and constituted inhuman or degrading treatment in breach of LAW . The applicant subsequently received compensation in the amount of MONEY .

Sections CARDINAL to CARDINAL of the Code of Criminal Procedure ( Strafprozeß - ordnung ) concern the search of LOC and persons and the seizure of objects .

Section CARDINAL § CARDINAL stipulates that a search of a person and his clothes is inter alia admissible when this person is suspected of a crime .

According to section QUANTITY , a search should in general only be carried out after the person concerned has been heard , and only if the person or objects searched are not voluntarily rendered and if the reasons leading to the search have not been eliminated . It is not required to hear persons of bad reputation , or to have such a hearing where there is danger in delay .

Section CARDINAL § CARDINAL states , as a rule , that a search may only be carried out on the basis of a reasoned search warrant issued by a judge .

Section CARDINAL § CARDINAL stipulates that when searches of LOC and persons are carried out any disturbance and harassment of the person concerned which is not strictly necessary has to be avoided . Searches have to be carried out in respect of the rules of decency .

By virtue of section DATE LAW verfahrensgesetz ) , ORG have jurisdiction , inter alia , to examine complaints from persons alleging a violation of their rights resulting from act of direct administrative compulsion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) . According to relevant jurisprudence and doctrine acts of administrative organs which are based on a court order are not attributable to the administrative authorities , but to the courts . Such an act is , however , attributable to the administrative authorities when the judicial order has been manifestly exceeded .