András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born on DATE and CARDINAL DATE respectively , and live in GPE . They were represented before the Court by Ms L. PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , ORG and ORG .

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

The applicants are of GPE origin . Following their qualification in DATE by the Borsod - Abaúj - Zemplén County Expert and ORG ( which consisted of a paediatrician , a psychologist and a specialist in therapeutic pedagogy ) as having mild intellectual disabilities ( enyhe fokban értelmi fogyatékos ) , they were placed in a special class of ORG , as from DATE . This remedial class was taught physically segregated . The teacher , who was in charge of this class from DATE until DATE , did not have a degree in special pedagogy .

The applicants ' intellectual ability was reviewed in DATE . This examination corroborated the findings of DATE .

On DATE the applicants ' lawyer filed a criminal complaint against unknown perpetrators on charges of forging public documents and endangering minors . She alleged in essence that the school certificates issued in respect of the applicants and other pupils did not reflect their real situation in the special class , that the allegedly reduced curriculum jeopardised their intellectual progress , in particular because the teacher in charge did not have the appropriate qualification , and that the assignment of the applicants to the special class served the purpose of their physical segregation .

In the course of the ensuing investigation conducted by ORG , a public education expert was appointed . Furthermore , a forensic psychologist examined the applicants in DATE . The findings of this expert were identical to those established in DATE . He found that Mr PERSON was mentally challenged ( értelmi sérült ) while Mr PERSON represented a borderline case of mental retardation ( mentálisan retardált határeset ) . He concluded that their placement in the special class could not jeopardise their mental development in view of their original disabilities .

On DATE ORG discontinued the investigation . It observed that the legal hypothesis of the offence of endangerment of minors was only met if a grave breach of duty had been committed by the school officials , into which category lesser educational irregularities did not fall .

On DATE the FAC finally dismissed a complaint lodged by the applicant 's lawyer . It observed that a scrutiny of the documentation of the school had revealed only minor irregularities , rather than a forgery of documents . It also held that the testimonies given by the applicants and other pupils of the school contradicted the documents and the findings of the education expert and , given their subjective nature , were unsuitable for the establishment of a grave breach of duty on the part of the school 's officials . It moreover drew the applicants ' attention to the possibility of pursuing a civil action in respect of their allegations .

Subsequently , the applicants ' lawyer retained a private expert in clinical psychology and public education . In that expert 's opinion , established in DATE , the applicants ' placement in the special class had endangered their mental and psychological development , because they had not suffered from the kind of serious mental disability which would justify their separate education .

Relying on that opinion , on DATE the applicants ' lawyer preferred a private bill of indictment , on the charge of endangering minors , against both the director of the school and the pedagogical expert responsible for the review of the applicants ' intellectual ability in DATE . In the indictment it was alleged that their placement in the special class endangered the applicants ' mental , psychological and educational development . No mention of their ethnic origin or assertion of discrimination was made in the motion .

On DATE ORG dismissed the motion without an examination on the merits . It observed that the charge in respect of the expert was incompatible ratione personae with section DATE ) of LAW and as such could not be retained , since she had never been under any obligation to educate , survey or take care of the applicants . Moreover , the charge in respect of the director was time - barred , since DATE had elapsed between her last relevant act in the case in DATE namely , when she had assigned an unqualified teacher to the special class – and the introduction of the motion by the applicants on DATE .

Section CARDINAL(CARDINAL ) of LAW provides as relevant :

“ The ... school is fully liable , irrespective of its culpability , for any damage caused to ... a pupil in respect of ... [ his / her ] education ... ( tanulói jogviszonnyal ... összefüggésben okozott ) . The provisions of the ... Civil Code shall be applicable to compensation [ for such damage ] , with the proviso that the institution ... can only be exempted from its liability if it proves that the damage was caused by force majeure ... ”

Since DATE , compensation on this ground has been awarded by civil courts in several cases concerning allegations similar to those in the present application .

Section CARDINAL(CARDINAL ) of LAW provides that any person under the obligation to educate , survey or take care of a minor , who commits a grave breach of duty flowing from this task , which results in the endangerment of the minor 's bodily , mental or moral development , shall be punishable with imprisonment of from DATE .

According to the Commentary to LAW , a breach of duty is considered ' grave ' if the offender neglected his or her duty to such an extent that not even the minimum requirements of society were met .

“ CARDINAL . In its third report , ORG urged the NORP authorities urgently to take further steps to end the over - representation of GPE children in special schools [ and ] recommended that measures be taken to facilitate the integration of GPE children then in special schools into the mainstream school system .

DATE . ... According to information provided by the authorities , CARDINAL children who had been classified as having mental disabilities were reassessed by independent medical experts .

ORG notes that the efforts made to date to combat the disproportionate representation of NORP children in special schools for children with mental disabilities , though they have had some positive effects , can not be said to have had a major impact in practice so far . It stresses that , in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system , putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools . ”


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON .

On DATE the applicant , then aged DATE , was placed in pre - trial detention for TIME , following a criminal complaint made DATE by ORG , a girl aged DATE . She had complained that QUANTITY girls , also minors , had brought her to an apartment where they had hit her and forced her to have oral sex or sexual intercourse with the applicant and QUANTITY other boys , who were minors too .

By an interlocutory judgment of DATE the PERSON ORG ( “ the ORG ” ) placed the applicant and the CARDINAL other boys in pre - trial detention for DATE . ORG considered that this measure was necessary , given the aggravated circumstances of the alleged offence and the serious risk it posed to society , the dangerous character of all the defendants , and their attitude during the investigation . By a decision of DATE ORG ( “ the ORG ” ) dismissed an appeal by the applicant against that judgment .

Subsequently , the applicant ’s pre - trial detention was regularly extended , by ORG interlocutory judgments on DATE , CARDINAL May , DATE , DATE , DATE , DATE , DATE , DATE and DATE , and DATE . ORG dismissed appeals by the applicant against these judgments on DATE , CARDINAL May , CARDINAL and CARDINAL DATE , DATE and DATE , DATE , DATE , DATE and DATE , and DATE . The reasons given for continuing his detention remained the same throughout the proceedings , namely the seriousness of the offence , the sentence provided by the law , and the lack of any new circumstances justifying release pending trial .

Several incidents occurred during the proceedings related to the pretrial detention .

On the one hand , the appeal against the judgment of DATE was reviewed twice by mistake , on DATE and CARDINAL DATE . By an interlocutory judgment of CARDINAL DATE ORG rectified this mistake .

On the other hand , on DATE and CARDINAL and DATE , when the appeals on points of law were reviewed by ORG , the applicant was not brought before the judges . On each occasion the registrar of ORG had telephoned ORG , where the applicant was held at the time . According to the registrar ’s transcript , prison staff replied that it was not possible for them to bring the applicant to court because no such service for detainees was available on the dates in question ( “ nu există planificare pentru data de ... ” ) . At the hearings on DATE and CARDINAL DATE the applicant was represented by a lawyer appointed by ORG . The applicant had himself appointed a lawyer for the whole duration of the proceedings , but he maintained that the authorities had failed to notify his lawyer of the hearings held on DATE and CARDINAL DATE . His lawyer was only present at the hearing on DATE .

According to documents adduced to the file by the Government , on DATE , DATE and DATE as well as on DATE and DATE the applicant was absent from the hearings at which ORG reviewed his appeals on points of law against the interlocutory judgments extending his pre - trial detention . According to the registrar ’s transcript drafted on each occasion the reason for his absence was also given as the lack of such a service for detainees on the dates in question .

On DATE the police heard D.A. in connection with her criminal complaint . The applicant ’s lawyer was not present during that questioning .

On DATE and DATE the police also heard the applicant and his CARDINAL co - defendants . The applicant declared that he knew both the victim and his co - defendants , whom he had met before . With regard to the victim ’s allegations , he declared that he had gone to the apartment with the sole purpose of giving her and CARDINAL of the other girls a lift home , and denied abusing the victim . He also declared that he had taken the victim home and had not noticed any signs of abuse on her .

The applicant ’s co - defendants made different statements : CARDINAL of the CARDINAL girls denied all the accusations and claimed that she had not seen the victim being abused ; the other admitted that she had seen the victim being abused by the other girl and some of the boys , but denied being responsible herself . She declared that after the incident “ she had heard ” that the applicant had had oral sex with the victim . The boys either denied the accusations or claimed that they had had protected sexual intercourse or oral sex with the victim , who had acted willingly . CARDINAL of the boys declared that the applicant had been in the same room as the victim and that on coming out of the room he had said that he had had oral sex with her and that she was not looking good ( “ arăta rău ” ) .

In addition , CARDINAL witnesses were heard . They confirmed that the applicant had been present at the apartment but claimed that they did not see or hear the victim being abused .

On DATE the applicant applied to the prosecutor attached to ORG and requested a confrontation with D.A. He claimed that during the investigations the victim had made inconsistent statements and implied that such inconsistencies made it necessary for her to be confronted with the defendants .

On DATE the prosecutor attached to ORG dismissed the applicant ’s request with the reasoning that the factual situation had been clearly established and a confrontation would not have been useful to the investigation .

On DATE the prosecutor attached to ORG issued a bill of indictment against the applicant on a charge of rape . The prosecution held that the applicant had forced ORG to have oral sex with him while being aware that she was a minor , and that she had been abused by the others before he had arrived at the apartment where the events took place .

The case was registered with ORG . The applicant , through his lawyer , repeated several times his request for a confrontation with the victim for the contradictory aspects of her statements to be clarified .

On DATE D.A. was present before ORG , with her mother and her lawyer . She was not heard by the court with regard to her criminal complaint . She only declared that she had civil claims to make .

On DATE the ORG heard all the defendants and the CARDINAL witnesses . The applicant again denied the charges against him . The girl who had previously declared that she heard that he had abused the victim changed her statement , and declared that she had not seen the applicant abuse D.A. ( see paragraph CARDINAL above ) . At the same hearing ORG agreed to the GPE request to cross - examine the victim . On DATE and DATE ORG ordered D.A. to attend the trial by virtue of a warrant to appear .

On DATE D.A. was present at the hearing of ORG . However , in application of the rules of procedure , she was not heard by the court because CARDINAL of the defendants , a minor , was in hospital and therefore absent ( see paragraph CARDINAL below ) .

By a judgment of DATE , ORG sentenced the applicant to DATE and CARDINAL months’ imprisonment . The court relied on the statements made by the victim before the prosecutor and those made by the applicant ’s co - defendants and the CARDINAL witnesses . It dismissed the applicant ’s statements , judging that they did not corroborate the other evidence or that they were inconsistent .

All the parties lodged appeals . The applicant relied mainly on the fact that he had not had a confrontation with ORG , who had purposely refused to appear before the courts . He claimed that her statements had not been supported by any other evidence , and that he should not be sentenced solely on the basis of the victim ’s complaint .

On DATE ORG dismissed the applicant ’s appeal but allowed the prosecutor ’s and victim ’s appeals . The applicant was sentenced to a heavier sentence , of CARDINAL years’ imprisonment . The court did not address the applicant ’s arguments related to the absence of a confrontation with the victim .

Following appeals on points of law lodged by all the parties , on DATE ORG allowed the prosecutor ’s and the victim ’s appeals . ORG found that the lower courts had correctly assessed the evidence but that the clemency of the sentences did not match the gravity of the GPE acts . It therefore increased the applicant ’s sentence to CARDINAL years’ imprisonment .

By a judgment of DATE ORG dismissed an extraordinary appeal by the applicant ( “ revizuire ” ) on the ground that the legal requirements for a reopening of the proceedings had not been met .

Article CARDINAL of LAW ( ORG ) provides the following :

“ ( CARDINAL ) When a victim ’s life , physical integrity and freedom ... are at risk ... the court can allow for him or her to be heard without being present ... on the site where the hearing takes place , by means of technical devices provided for in the following paragraphs ...

( CARDINAL ) The victim ... can be heard by video or audio link . ”

Article CARDINAL § § CARDINAL of the ORG provides the following :

“ ( CARDINAL ) An accused or defendant or a prosecutor may lodge an appeal with the higher court against an interlocutory judgment ... ordering ... the extension of pretrial detention ... The time - limit is TIME from delivery of the decision for those present , and TIME from its communication for those who are absent .

( CARDINAL ) An accused or defendant held in pre - trial detention shall be brought before the court and heard in the presence of his or her counsel . If the defendant is in hospital or his or her state of health does not allow him or her to appear in court , or if there are other circumstances in which he or she can not appear , the complaint shall be examined in his or her absence , but only in the presence of his or her counsel , who shall be allowed to make submissions . ”

Article CARDINAL of the ORG provides the following :

“ ( CARDINAL ) Proceedings related to a crime perpetrated by a person who is a minor must take place in his or her presence , unless the minor has eluded trial . ”

The ORG also provides for hearings to be held in private when the dignity of a person may be damaged or their private life exposed ( Article CARDINAL ) . Only the parties , their representatives and counsel and persons who have an interest in the case are allowed to attend such hearings .


No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

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

On CARDINAL DATE an inheritance - related case ( ostavinski postupak ) was instituted before ORG in GPE . The applicant was CARDINAL of the parties formally involved .

On DATE ORG suspended the proceedings since one of the heirs had contested the validity of a life - long support contract ( ugovor o doživotnom izdržavanju ) concerning the deceased ’s flat . The inheritance proceedings were to be resumed once this issue had been resolved in a separate civil suit .

The deceased ’s wife subsequently brought a number of cases against the applicant , the deceased ’s son , who had concluded the said life - long support contract with his father ( see paragraphs CARDINAL below ) .

On DATE and in view of the judgment adopted on DATE ( see paragraphs CARDINAL - CARDINAL below ) , the applicant requested that the inheritance proceedings be terminated given that there remained no estate to be divided between the heirs .

On DATE and in view of the decisions adopted on CARDINAL DATE and DATE ( see paragraphs DATE , DATE and DATE below ) , the deceased ’s wife requested that the inheritance proceedings be continued .

NORP The applicant apparently opposed this motion , stating that the relevant parallel proceedings were still pending ( see paragraphs CARDINAL below ) .

On DATE the inheritance proceedings resumed , but the hearing of the same date was adjourned due to the failure of the deceased ’s wife to appear before the court .

The next hearing was scheduled for DATE . This hearing , however , was also adjourned , this time in order for the court to obtain additional information about the estate . The applicant , it seems , did not appear at this hearing .

On DATE the deceased ’s wife filed a claim against the applicant with ORG . She sought that the life - long support contract be declared fictitious ( fiktivan ) .

On DATE ORG ruled against the plaintiff , partly based on the “ inadequately ” specified cause of action .

Having been upheld on appeal , by DATE this judgment became final .

On DATE the deceased ’s wife brought another claim against the applicant before ORG . She outlined the relevant facts and sought that the life - long support contract be partly annulled ( poništen ) and partly cancelled ( raskinut ) .

On DATE ORG adopted a partial judgement against the applicant ( doneo delimičnu presudu ) . In so doing , it stated that CARDINAL of a disputed flat belonged to the plaintiff as the deceased ’s spouse , and that the corresponding part of the life - long support contract was therefore to be deemed null and void . The presiding judge in the case was judge B.

On DATE ORG in GPE confirmed this judgment on appeal and it thereby became final . The appeal bench included judge D.

On DATE ORG cancelled the remainder of the above contract , noting that the applicant had not been fulfilling his contractual obligations properly .

On DATE ORG in GPE quashed this judgment in view of the incoherence between its operative provisions and its reasoning . It did not , however , offer any guidance in terms of the desired outcome of the plaintiff ’s remaining claim on its merits . The appeal bench included judges D and B.

On DATE ORG again cancelled the remainder of the contract in question .

On DATE ORG in GPE confirmed this decision on appeal , and it thereby became final .

On DATE ORG rejected the applicant ’s appeal on points of law ( revizija ) , reasoning that the applicant had not been complying with his contractual obligations . ORG bench included judge NORP

On DATE the applicant filed a request for the reopening of the above proceedings ( predlog za ponavljanje postupka ) , which request , inter alia , referred to the unlawful composition of the courts on DATE and DATE .

On DATE ORG rejected the applicant ’s request as inadmissible ( odbacio predlog ) , applying LAW ( see LAW at paragraph CARDINAL below ) .

On DATE the applicant filed a request for the protection of legality ( zahtev za zaštitu zakonitosti ) with ORG .

On DATE ORG informed the applicant that his request for the protection of legality would not be considered until a final decision had been adopted in respect of his request for reopening .

On DATE ORG in GPE quashed ORG decision of DATE on appeal , noting that the applicable legislation was LAW DATE ( see Articles CARDINAL.CARDINAL and CARDINAL at CARDINAL below , in that order ) .

On DATE ORG again rejected the applicant ’s request for reopening as inadmissible . In particular , it applied LAW and noted , inter alia , that the said legislation , unlike LAW DATE , did not provide for reopening in cases where the composition of the courts was not in accordance with the law .

On an unspecified date thereafter the applicant appealed against this decision .

On DATE ORG in GPE , now acting as the court of second instance in the former ORG stead , quashed the impugned decision and ordered the court of first instance to re - examine the applicant ’s request . ORG described the impugned decision ’s reasoning as incoherent , and reaffirmed that the applicable legislation was LAW DATE .

On DATE ORG rejected as inadmissible the applicant ’s appeal ( ustavna žalba ) lodged against ORG , ORG and ORG decisions of DATE , DATE and DATE , respectively . In so doing , it explained that all were rendered prior to the adoption of the new NORP LAW in DATE .

On an unspecified date the applicant apparently lodged a further constitutional appeal concerning the fairness and length of the proceedings initiated on the basis of his request for reopening .

Article CARDINAL provides , inter alia , that a judge may not sit in a case where he or she has already taken part in its adjudication before a lower court .

Article CARDINAL § CARDINAL provides that as soon as a judge discovers this ground for recusal , he or she must cease dealing with the case and request the president of the court to appoint another judge in his or her stead .

Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL , inter alia , list a breach of LAW as a ground for appeal which , even if not specifically relied on by the appellant , shall be taken into account by the appeals court ex officio .

Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL § CARDINAL provide that parties to a case may file an appeal on points of law ( revizija ) with ORG . They may , however , only do so against a final judgment or decision resulting in the termination of a lawsuit at second instance . Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL further specify that an appeal on points of law may be lodged if the composition of the lower courts was not in accordance with LAW , but do not specify that this ground shall be taken into account by ORG ex officio .

Article CARDINAL , read in conjunction with Articles CARDINAL and CARDINAL , provides that a case concluded by means of a final court decision shall be reopened , at the request of CARDINAL of the parties , if Article CARDINAL has not been complied with .

In DATE and DATE , respectively , ORG clarified that under LAW a judge could only be excluded from deciding on a remedy lodged against the very decision in whose adoption he or she had already participated . This provision , however , does not preclude a judge from sitting in a case in any other situation , including where he or she had otherwise taken part in its adjudication before a lower court ( PERSON . CARDINAL and PERSON . CARDINAL ) .

The substance of Articles CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL § CARDINAL of LAW essentially corresponds to the substance of the aforementioned Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL § CARDINAL of LAW DATE .

Articles CARDINAL and CARDINAL provide , inter alia , that second and third instance courts may remit a case either to the same judge / panel which had already taken part in the adoption of the impugned decision or to another judge / panel of the same court .

Article CARDINAL § CARDINAL provides that an appeal on points of law may also be filed where a request for the reopening of proceedings has already been decided upon at second instance .

Article CARDINAL of LAW does not provide that a case concluded by means of a final court decision may be reopened if the composition of the courts was not in accordance with LAW ( CARDINAL ) , which provision , as noted above , essentially corresponds to LAW DATE .

LAW entered into force on DATE , thereby repealing LAW DATE .

Article CARDINAL § CARDINAL of LAW , however , provides that LAW DATE shall be applied to all cases where first instance proceedings have been concluded prior to DATE . LAW further provides that in all cases which were brought before the said date the applicable legislation , as regards an appeal on points of law , shall be the legislation which was in force at the relevant time .

Articles DATE and CARDINAL provide , inter alia , that should a legal heir of the deceased raise an issue in respect of what comprises the latter ’s estate , the inheritance court shall instruct him or her to initiate a separate civil suit and suspend the inheritance proceedings pending its final outcome ( do pravosnažnosti ) .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a law professor at ORG . The respondent Government are represented by their Agent , Mr PERSON , Director in ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

On DATE lawyer PERSON submitted to ORG ( käräjäoikeus , tingsrätten ) of GPE an application for a summons against QUANTITY persons , including the applicant ( also a lawyer ) , requesting their punishment for alleged false denunciation “ despite better knowledge ” ( vastoin parempaa tietoa tehty perätön ilmianto , osann angivelse emot bättre vetande ) and defamation “ despite better knowledge ” ( vastoin parempaa tietoa tehty herjaus , smädelse emot bättre vetande ) on several counts , and demanding damages . PERSON alleged that the applicant had participated in a campaign of false accusations against him , allegedly caused by the fact that PERSON had tried to recover unpaid fees from his former clients .

In an appended indictment ( including charge no . CARDINAL ) PERSON demanded the punishment of the applicant on CARDINAL counts of alleged false denunciation and CARDINAL counts of alleged defamation committed “ despite better knowledge ” . PERSON alleged that , on DATE , while representing PERSON the applicant had reported an offence against ORG alleging aggravated fraud , aggravated extortion ( kiristys , utpressning ) , misuse of a position of trust ( luottamusaseman väärinkäyttö , missbruk av förtroendeställning ) and forgery . According to PERSON , the applicant , in his report of offences , had claimed that PERSON had overcharged CARDINAL of his clients , intentionally lost his GPE cases and caused them damage , and forged the signatures of his clients to several powers of attorney . A public prosecutor had on DATE waived charges against PERSON

In another appended indictment ( including charge no . CARDINAL ) PERSON demanded the punishment of the applicant on CARDINAL counts of alleged false denunciation and CARDINAL counts of alleged defamation “ despite better knowledge ” . PERSON alleged that , on DATE , while representing several of his clients the applicant had reported an offence against PERSON and accused PERSON of several offences , namely forgery , misuse of a position of trust , breach of consumer credit regulations ( kulutusluottorikos , konsumentkreditbrott ) , slander and profanation of the memory of a deceased person ( kuolleen miehen muiston häpäiseminen , skymfande av död mans minne ) . PERSON also accused the applicant of having given false information and putting forward false allegations against PERSON in the pre - trial investigations following the applicant ’s report to the police . A public prosecutor had on DATE waived part of the charges against ORG Based on the remaining issues in the reports of offences submitted by the applicant , a public prosecutor had lodged charges of embezzlement and attempted fraud against PERSON

On DATE ORG served a writ of summons on the applicant . It noted that it had transferred the examination of the indictments against CARDINAL co - defendants to separate criminal proceedings which were pending at the same time . The applicant received the summons on DATE .

On DATE ORG held the first hearing , in which PERSON ’s indictment was considered . A public prosecutor , present at the hearing , did not support the charges . The applicant was not present due to a holiday trip abroad , of which he had informed ORG in advance . The case was adjourned at PERSON ’s request . The court imposed a conditional fine on the applicant in order to obtain his attendance . The second hearing took place on DATE . The case was adjourned as CARDINAL of the CARDINAL presiding judges had become disqualified .

On DATE the third hearing was held . The applicant contested the charges disputing the alleged facts and requested that these proceedings should follow the pending criminal proceedings against PERSON concerning the embezzlement and fraud in order for the facts to be better established . The applicant maintained that he had reported the offences against PERSON on his GPE , i.e. ORG , instructions , after verifying the facts with his clients and becoming convinced of the probable existence of reasons to suspect the offences . PERSON requested an adjournment , to which the applicant did not object .

The fourth hearing took place on DATE . The case was adjourned at PERSON ’s request .

The fifth hearing was held on DATE , when the case was adjourned with the agreement of all parties in anticipation of the outcome of the criminal proceedings against PERSON , which were now pending before the same ORG .

On DATE ORG dismissed the charges of alleged embezzlement and fraud against K .. Upon appeal , ORG ( hovioikeus , hovrätten ) of ORG upheld the judgment on DATE , and finally , on DATE , ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

On DATE the applicant submitted his observations to ORG in reply to PERSON ’s written statements of CARDINAL and DATE . According to the applicant , in his letter of CARDINAL DATE PERSON “ renewed his requests and the description of the alleged offences in broad outline . ”

According to the applicant , on DATE ORG sent a memorandum to the parties , which included PERSON ’s indictment , corresponding to his application for a summons on DATE .

A preparatory hearing was held on DATE , in which the applicant was not present . At that hearing ORG prepared the examination of the criminal proceedings instigated by PERSON , as well as another set of criminal proceedings instigated at some point by CARDINAL of the applicant ’s co - defendants against K .. PERSON repeated his indictment as regards the allegedly unlawful reports of offences submitted by the applicant on DATE and DATE . The applicant ’s written observations , contesting these charges ( see above ) , were included in the minutes of the preparatory hearing .

On page TIME of the preparatory hearing it was stated :

“ PERSON specified that his indictment was based on those acts that the defendants had committed prior to the public prosecutor ’s decision not to lodge charges . ”

ORG main hearing was held on DATE on DATE and DATE . The applicant was present on DATE , partially present on DATE ( with the court ’s consent ) , and again present during the entire hearing of DATE .

According to TIME of the main hearing ( on pp . CARDINAL and CARDINAL ) , PERSON presented alternative charges of defamation “ without better knowledge ” ( ei vastoin parempaa tietoa tehty herjaus , smädelse dock icke emot bättre vetande ) i.e. negligent defamation , to be distinguished from defamation “ despite better knowledge ” , that is to say , intentionally imputing an offence to PERSON whilst knowing that he had not committed it ( rather than voicing a mere suspicion that he had ) .

On DATE the main hearing the charge no . CARDINAL was particularised , insofar as relevant , as follows :

“ [ A co - defendant H. ] represented / advised / urged by [ the applicant ] and [ the applicant ] , have in a report of an offence drawn up by [ the applicant ] on DATE , which report was received by ORG on DATE , and in the subsequent pre - trial investigations , despite without better knowledge ... . ”

On page TIME of the main hearing , it was further noted in connection with charge no . CARDINAL that :

“ PERSON has based his indictment on all those acts that the defendants have committed in connection with the reports of offences prior to the public prosecutor ’s decision not to lodge charges . ”

On DATE the ORG delivered its judgment . It dismissed all charges concerning false denunciation . According to ORG , the applicant had not deliberately given false information to the police . It convicted the applicant of defamation committed “ without better knowledge ” . As to the first set charges ( charge CARDINAL ) the court found that the applicant ’s allegations presented in his final statement of DATE to the police had been harmful to PERSON and not been proven to be correct . ORG further ruled that the applicant had in the final statement demanded that PERSON be charged with those offences reported by his clients , and that at that point he had at his disposal the entire pre - trial investigation report , and could therefore not rely entirely on his clients’ assertions . As regards the second set of charges of defamation ( charge no . CARDINAL ) ORG found , inter alia , that the applicant had submitted to the police final statements of CARDINAL DATE and CARDINAL DATE in which he had alleged that PERSON was guilty of the offences reported on DATE . ORG noted that at that point the applicant had at his disposal the entire pre - trial investigation report . It also took into account a report of an offence drawn up by the applicant on CARDINAL DATE on his GPE behalf . It found that the applicant , as a lawyer , should have been aware of the groundlessness of the allegations of forgery and misuse of a position of trust , and had , thus , committed defamation “ without better knowledge ” .

ORG sentenced the applicant to DATE - fines , amounting to MONEY ( ORG ; corresponding to MONEY ( ORG ) ) and ordered him to pay , separately and jointly with a co - defendant , damages of LAW ( EUR CARDINAL,CARDINAL ) and legal expenses of LAW ( ORG CARDINAL,CARDINAL ) plus interest , and , separately , damages of ORG plus interest .

On DATE the applicant appealed against the entire judgment to ORG of ORG , complaining under LAW ( a ) of the LAW that ORG had convicted him of offences with which he had not been charged and requesting , inter alia , an oral hearing . According to the applicant , PERSON ’s indictment was insufficiently specified and had demanded punishment for defamation “ despite better knowledge ” whereas ORG had convicted him of defamation “ without better knowledge ” , thus depriving him of a chance to defend himself . The applicant maintained that , despite ORG minutes , PERSON had not presented alternative charges of “ without better knowledge ” during the principal hearing , and that had this occurred while he was absent on DATE , it was in any case prohibited .

Further , the applicant complained that the final statements submitted by him to the police on DATE ( charge no . CARDINAL ) and on DATE ( charge no . CARDINAL ) were not mentioned in the indictments and that he had , thus , not been charged with defamation in those regards . According to the applicant , ORG conviction was entirely based on these final statements , which deprived him of a chance to defend himself . The applicant emphasised that PERSON ’s indictment relied only on his reports of offences of CARDINAL DATE , CARDINAL DATE and DATE .

The applicant put forward that he had submitted the final statements to the police following the normal proceedings pursuant to section CARDINAL of the Act on ORG ( esitutkintalaki , förundersökninglag ; DATE ) and not with the intent of offending PERSON maintained , inter alia , that he had not alleged PERSON ’s guilt beyond what PERSON had himself admitted in the pre - trial investigations , and that he was entitled to rely on his clients’ instructions and assertions . He had in fact in both cases requested the police to continue their investigations . He maintained that as the police had conducted CARDINAL further witness interrogations and other investigative measures after his final statements , he did not have at his disposal the entire pre - trial investigation reports as ORG had , according to the applicant , wrongly held . He also complained that punishing legal counsel for pursuing their GPE cases would impede the ORG actions .

The applicant further maintained that the presiding judge had allowed PERSON to insult him during the trial several times which disclosed bias and rendered the trial unfair .

On DATE ORG , without having held an oral hearing , upheld ORG judgment , accepting its reasons and upholding the applicant ’s conviction and sentence . It however reduced his overall damage liabilities to ORG ( EUR CARDINAL,CARDINAL ) and ordered him to reimburse ORG legal expenses in ORG jointly and separately with a co - defendant by ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) . It ordered the parties to bear their own legal expenses in ORG .

On DATE ORG PERSON asianajajaliitto , PERSON ) informed the applicant that it had commenced disciplinary proceedings against him .

On DATE the applicant sought leave to appeal and appealed to ORG expressing his dissatisfaction with the outcome and reasoning of the appellate court ’s judgment .

On DATE ORG refused the applicant leave to appeal .

Section CARDINAL of LAW ( perustuslaki , grundagen ; GPE ) provides that everyone has the freedom of expression . Freedom of expression entails the right to express , disseminate and receive information , opinions and other communications without prior prevention by anyone . More detailed provisions on the exercise of the freedom of expression are laid down by an LAW .

LAW , section CARDINAL of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalk ; CARDINAL ) , as in force at the relevant time , provided that a public prosecutor was to present his / her requests and their grounds at the beginning of the trial . Unless there were pressing reasons , the same applied to the victim .

LAW , section CARDINAL of the Code on Criminal Procedure ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; CARDINAL ) , as subsequently in force , provides that a served indictment may not be changed . A public prosecutor may , however , expand the indictment to include another alleged offence , provided that the court finds it appropriate . Subsection CARDINAL of the section provides that to restrict the charges or to rely on another legal provision or a new fact is not regarded as expanding the charge .

Section CARDINAL of the Act on ORG ( esitutkintalaki , förundersökningslagen ; DATE ) provides that the police must give the parties an opportunity to submit their final statements concerning the material gathered in the pre - trial investigations , if such a statement is liable to expedite or facilitate the examination of the case in a court . The final statement must be attached to TIME of the pre - trial investigations .

LAW , section CARDINAL of LAW ( rikoslaki , strafflagen ) as in force at the relevant time , provided that a person alleging , albeit contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation .

According to LAW , as in force at the relevant time , a person alleging , albeit not contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation .


CASE OF BOYLE AND RICE v. THE UNITED KINGDOM

Violation of Art. 8;No violation of Art. 13;Costs and expenses award - Convention proceedings

The applicants , PERSON and PERSON , are NORP citizens born in DATE and DATE respectively . In DATE , the first applicant was sentenced in GPE to life imprisonment for murder . He received a number of subsequent prison sentences in DATE and DATE for prison breaking , attempted murder of a prison officer and assault on prison staff . The second applicant is the first applicant ’s wife and a doctor by profession .

In DATE , Mr. PERSON was removed from ORG to a ORG in FAC . ORG had been set up on an experimental basis to treat selected long - term prisoners and prisoners with violent propensities ( see paragraph CARDINAL below ) . The ORG had a maximum of CARDINAL prisoners and was characterised by a more liberal regime . Mr. PERSON played a prominent role in facilitating the success of ORG . In particular , he discovered that he had special abilities in working with people and in sculpture , writing and other areas of artistic activity .

While in ORG , Mr. PERSON was allowed , amongst other things , to write and receive uncensored mail , to have DATE access to visitors and to use a telephone . He was thereby able to meet his wife , talk to her on the telephone and correspond with her without being subject to the normal restrictions . He also had the opportunity to go out of the prison without escort .

In DATE , Mr. PERSON was advised by ORG that he was to be released on licence in DATE and that he was to be transferred to PERSON , GPE , to undergo a pre - release programme . He was informed that he would serve his time there on the same terms and conditions as other prisoners . It was considered that , although the regime there was on traditional lines , ORG would be more beneficial to Mr. PERSON during the period leading to his eventual release than other alternatives , for example PERSON Open Prison ( see paragraph CARDINAL below ) . The factors governing the choice included the desirability of his occupying a single cell rather than being in a dormitory ; the availability of suitable day - time work for him and of facilities for continuing his studies and his artistic work ; and access to suitable educational and vocational opportunities for his pre - release training . Mr. PERSON himself had in fact stated in written submissions in DATE that , if he could not remain at PERSON for his pre - release programme , he would prefer training from GPE rather than PERSON .

In DATE , he was transferred to a Training for Freedom Hostel within the prison ( see paragraph CARDINAL below ) . He was released on DATE .

As from DATE until his release , he was in the lowest security category ( Category D ) .

The applicants’ complaints to ORG in so far as relevant to the present proceedings all related to the period DATE and DATE when Mr. PERSON was subject to the ordinary prison regime at ORG . The facts surrounding those grievances are briefly set out in the following paragraphs .

During the relevant period the normal rules regarding the sending and payment of correspondence were applied to Mr. PERSON ( see paragraphs CARDINAL and CARDINAL below ) . The postage of CARDINAL - page letter per week was paid for out of public funds . He was able to pay for other letters out of his prison earnings of £ MONEY per week but not out of his general financial resources . In a letter of DATE from his solicitors to the Secretary of ORG for GPE , a complaint was made that because he found it necessary to spend MONEY per week out of his earnings to supplement his ( mainly ) vegetarian diet by buying oatmeal cakes as the prison service provided only white bread , the number of letters he was able to send was restricted . A full vegetarian diet was available at FAC and no complaint was made by Mr. PERSON to the Governor or to the Secretary of ORG as to its adequacy .

Mr. PERSON ’s incoming and outgoing mail was controlled by the prison authorities in accordance with the normal practice followed at the prison ( see paragraph CARDINAL below ) . The applicants also asserted before the Commission that on occasions the prison censorship officer read out aloud in front of other inmates letters from Mrs. PERSON , laughing or making comments about their contents . However , Mr. PERSON did not make any complaint to ORG or the Secretary of ORG regarding the manner in which his mail was read , in particular about its being read aloud , although the fact of his mail being screened was the subject of complaint in his solicitors’ letter of DATE .

In DATE , a letter to a friend of his , Mr. PERSON , was stopped by the Prison Governor on the ground that Mr. PERSON was a " media personality " . Mr. PERSON petitioned the Secretary of ORG regarding this matter , but his petition was rejected on the basis that there was a general prohibition of the passing on by a prisoner of material intended for publication or for use on wireless or television ( see paragraph CARDINAL below ) . The Government have subsequently acknowledged that in fact this rule was applied in error , since , although the letter in question was addressed to a person connected with the public media , it was a personal one which Mr. PERSON should have been allowed to send .

Mr. PERSON was entitled to receive visits in accordance with the normal rules applied in LOC ( see paragraph CARDINAL below ) . Consequently , as pointed out in his solicitors’ letter of DATE , he was permitted TIME visiting time DATE under close supervision in a crowded visiting hall . He used this time to meet his wife , with the result that he was not able to see the other members of his family .

He was able to benefit from the special escorted leave scheme and visited his home on CARDINAL occasions , albeit under the constant supervision of an officer in accordance with the scheme ( see paragraph CARDINAL below ) .

As from DATE , he was given a special licence to do unescorted community work outside the prison , initially for DATE and subsequently for DATE .

The solicitors for Mr. and Mrs. PERSON also raised with the Secretary of ORG a general objection that Mr. PERSON ’s treatment at FAC was markedly less favourable than his treatment at ORG and also in comparison with other Category D prisoners elsewhere under the penal system .

By reply dated DATE , the Secretary of ORG rejected this and the other complaints made in the solicitors’ letter of DATE .

Mr. PERSON also complained through his Member of ORG to the Parliamentary Commissioner for ORG ( the ORG - see paragraph DATE below ) about various aspects of his treatment at FAC . In a letter of CARDINAL DATE , the ORG stated that he could not uphold Mr. PERSON ’s complaints . He stated , inter alia :

" From the details that Mr. PERSON has given , his correspondence , special escorted leave , and visits appear to have been dealt with correctly in accordance with current rules , however dissatisfied he may be with those rules . I think it is fair to say that much of Mr. PERSON ’s complaint reflects his disagreement with those rules and with their application to him at this stage of his sentence . The rules are of course a matter for ORG and in the absence of evidence of maladministration I am precluded by LAW from questioning the ORG ’s discretion in applying them . "

The applicants , PERSON and PERSON , are NORP citizens born in DATE and DATE respectively .

PERSON was sentenced to life imprisonment for murder in DATE . He served his sentence in GPE and GPE Prisons until DATE . From DATE , he was detained as a Category D prisoner ( that is , the lowest security category ) at FAC . He was moved to ORG within the prison ( see paragraph CARDINAL below ) on DATE and was released on licence on DATE . He had requested to serve the latter part of his sentence in GPE rather than , for example , in FAC ( see paragraph CARDINAL below ) because he wanted , prior to his release , to have the benefit of further education courses which were not available from PERSON .

PERSON is the first - named applicant ’s father and lives at GPE , QUANTITY from GPE . At the relevant time he was seriously ill - having been in bad health for some DATE - and unable to walk or travel .

During his period in LOC , PERSON enjoyed the normal entitlement to visits applicable at the prison .

He petitioned the Secretary of ORG for GPE on CARDINAL DATE requesting a home visit to his father . The petition indicated that his father had been " ill for a considerable period " , but not that he was dangerously ill , which would have made him eligible for compassionate leave ( see paragraph CARDINAL below ) . His request was therefore refused on CARDINAL DATE . The decision recommended him to make the effort to get a member of staff to take him out of prison under the special escorted leave scheme ( see paragraph CARDINAL below ) . It appears , however , that he experienced difficulty in finding a prison officer to accompany him on special escorted leave . Although PERSON was not able to visit his father during the relevant period , he was permitted to attend , without an escort , a college to follow an educational course DATE a week and also a centre where he was doing community work . He had previously been granted a home visit in DATE and prior to the commencement of the Training for Freedom programme he spent DATE on home leave in DATE .

In a letter dated DATE in reply to a letter of DATE from Mr. PERSON ’s Member of ORG , the Under Secretary of ORG at ORG explained the reasons for the refusal of compassionate leave :

" ... Each application is considered on its merits and on the basis of medical and social work reports . Mr. PERSON ’s application for a special visit was considered in the usual way but it was decided that it did not meet the required conditions . Mr. PERSON was advised that if his father ’s condition deteriorated he should make a further request . It is necessary , to prevent abuse of the arrangements , to maintain a strict and entirely consistent approach to applications for compassionate visits from all prisoners and the fact that a prisoner is being released for educational or other purposes does not affect consideration of the merits of his application or remove the need for the normal criteria to be met . ... Mr. PERSON is expected to transfer to the formal Training for Freedom ( TFF ) in DATE . Prior to that he will have a DATE home leave and while on ORG he will have DATE which he may spend at home . I feel that it would be quite wrong , before that stage is reached , to make a special exception in Mr. PERSON ’s case and circumvent the rules in relation to either a compassionate visit or a special escorted leave . "

On DATE , the solicitors acting for PERSON wrote to the Secretary of ORG complaining about

- the alleged stopping by the prison authorities of a number of letters addressed to themselves , his Member of ORG , his former counsel and his family ;

- his limited prison visiting entitlement , which , as regards maintenance of family contacts , was said to discriminate against him in comparison with other prisoners who were in Category D but detained in open conditions ; and

- the refusal to grant compassionate leave .

The reply of DATE sent on behalf of the Secretary of ORG rejected all the various complaints raised . In particular , it was pointed out that all his mail had been posted .

The prison system in GPE is governed by ORG " LAW " ) . Under sections CARDINAL and CARDINAL of LAW , general control and superintendance over prisons in GPE are vested in the Secretary of ORG for GPE .

Section CARDINAL(CARDINAL ) of the DATE Act empowers the Secretary of ORG to " make rules for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein " . This power is exercisable by statutory instrument . A draft of any statutory instrument made under LAW has to be laid before ORG ( section CARDINAL ) . Statutory instruments are categorised by domestic law as subordinate legislation ( LAW ) . Subordinate legislation is recognised at common law to have the full force and effect of legislation made by ORG ( see GPE ’s ORG , CARDINALth ed . , vol . CARDINAL , para . CARDINAL ) . Statutory instruments such as ORG are made public .

In exercise of his powers under LAW of LAW , the Secretary of ORG has made the Prison ( GPE ) Rules DATE ( Statutory Instrument CARDINAL/CARDINAL ) ( " the Prison Rules " ) , which have been amended periodically .

In supplement of ORG , the Secretary of ORG , in the exercise of his general jurisdiction over prisons and of various powers conferred in the Prison Rules themselves , issues instructions to the Governors of prisons by way of administrative orders referred to as " Standing Orders " . At the relevant time , the text of the Standing Orders themselves was not made public . However , an Abstract of Rules and Regulations for Convicted Prisoners ( " the Abstract " ) containing information about the content of ORG and Standing Orders was made available to convicted prisoners .

Rule CARDINAL of ORG provides , inter alia :

" ( CARDINAL ) Every prisoner shall be allowed to write and to receive a letter on his admission , and shall thereafter be allowed to write and to receive letters and to receive visits at intervals laid down by the Secretary of ORG . The intervals so prescribed may be extended as a punishment for misconduct , but shall not be extended so as to preclude a prisoner from writing and receiving a letter , and receiving a visit , DATE .

( CARDINAL ) Subject to the provisions of Rule CARDINAL(CARDINAL ) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable . "

At the relevant time , these provisions were supplemented by Standing Orders Ic.CARDINAL to CARDINAL .

Thus , Standing Order Ic.CARDINAL(CARDINAL ) specified :

" Prisoners will be granted the privilege of writing letters on the following scale :

( a ) All convicted prisoners ... are allowed to write CARDINAL letter DATE to their relatives and friends , the postage of which will be paid out of public funds . ...

( d ) Postage of additional letters may be met from earnings ; the use of private cash from sources other than earnings should not be allowed for this purpose . Before an inmate is allowed to write extra letters he should submit for the Governor ’s approval a list of persons with whom he intends to correspond . Additions to or deletions from the list will be at the Governor ’s discretion .

No limit was placed on the number of additional letters that might be sent . The content of the relevant provisions of the Standing Orders was made known to prisoners in paragraph CARDINAL of the Abstract .

Standing Order Ic.CARDINAL(CARDINAL)(a ) dealt with the reading of correspondence under Prison Rule CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) :

" In the case of the great majority of letters , where neither the prisoner nor his offence is of notoriety , and the correspondent is a wife or near relative , it is not necessary that every letter should be read through . It will usually suffice to glance at the contents and see they are of usual domestic and personal nature . There will , however , always be certain prisoners whose correspondence requires to be thoroughly examined , and it will be for the Governor to settle who these are and to instruct the officer who deals with the letters accordingly . "

Standing Order Ic.CARDINAL(CARDINAL ) further provided ( as regards incoming mail ) :

" In no circumstances should the contents of a letter to a prisoner or inmate be referred to in the hearing of another inmate . "

Standing Order Ic.CARDINAL(CARDINAL ) dealt with the exercise of the Governor ’s discretion under LAW ) to stop " objectionable " letters . It stated :

" All ordinary matter , including news of public events , should be passed . Comment by a prisoner on his own conviction and sentence is not objectionable if expressed in proper terms . Objectionable matter falls within narrow limits , viz .

( c ) Matter intended for insertion in the ORG , for publication or for use on wireless or television ( with the exception of the magazine ‘ GPE ) .

Since the relevant time , new Standing Orders on ORG correspondence have been introduced in GPE in light of ORG Rights’ judgment of DATE in the case of Silver and Others ( Series A no . CARDINAL ) . The restrictions on correspondence formerly applicable have been considerably relaxed , including in particular the prohibition on letters intended for publication . These new provisions relating to correspondence ( Standing Order M , which also concerns visits ) are available to prisoners .

Under the terms of Rule CARDINAL(CARDINAL ) of ORG ( see paragraph CARDINAL above ) , every prisoner is allowed to receive visits at intervals laid down by the Secretary of ORG . At the relevant time , Standing Order Ic.CARDINAL provided , inter alia :

" ( CARDINAL ) Every prisoner shall be allowed to receive a visit at least once in DATE and no prisoner shall be deprived of this privilege by a disciplinary award .

( CARDINAL ) Prisoners will be granted the privilege of receiving visits as follows : -

( b ) In the first period of DATE following admission under sentence every prisoner will be eligible to receive CARDINAL visits from relatives or friends . In each subsequent period of DATE he will be eligible to receive CARDINAL visits . "

Paragraph CARDINAL of the Abstract informed prisoners of these provisions regarding the frequency of visits .

The normal duration of a visit was specified under LAW as being TIME , or TIME during DATE of imprisonment ( Standing Order Ic.CARDINAL(CARDINAL ) ) .

Governors were given discretion to vary the duration and frequency of visits laid down in the Standing Orders provided the total visiting TIME were not less than specified in the Standing Orders . The arrangement at FAC differed from that laid down in the Standing Orders in that CARDINAL visit of TIME duration per month was permitted in place of the allowance in the Standing Orders of three visits of TIME .

In addition to the ordinary entitlement , ORG was empowered to allow an extra or longer visit in exceptional circumstances ( Rule CARDINAL of the Prison Rules - see paragraph CARDINAL below ) .

By virtue of Rule CARDINAL ) of ORG , " the Secretary of ORG may authorise the temporary release of prisoners undergoing imprisonment ... for a stated length of time and under conditions and for reasons approved by him " .

Standing Order Jc.CARDINAL sets out the circumstances in which permission may be granted for temporary release on compassionate grounds . Compassionate leave will only be given to visit a near relative who is dangerously ill or to attend the funeral of a near relative . An escort is not normally required for such leave where the prisoner is in Security Category D but is required for other higher security categories .

A special escorted leave scheme has been operated at ORG for DATE . It is not dealt with in the Standing Orders but a Notice , dated DATE , was issued by the Governor of the Prison explaining the purposes , qualifying conditions and means of operation of the scheme .

The objectives of the scheme are to relieve tension associated with long sentences , to help maintain contact with the home setting , to encourage good relationships between prisoners and staff and to prepare prisoners for eventual release . Only prisoners serving sentences of over DATE are eligible . CARDINAL of the net sentence must have been completed ( or DATE served in the case of a life prisoner ) and the prisoner must have been of satisfactory conduct for a reasonable period . When granted , leave may be taken only if the prisoner is able to obtain the voluntary assistance of a member of staff or an allocated prison visitor ( a voluntary helper ) to act as escorting supervisor . For the first CARDINAL leaves the escort must be a member of staff . Leave is granted on the understanding " that the prisoner places himself under direct supervision throughout the entire period of his absence from prison " . Before going on leave , the prisoner must sign a parole licence acknowledging that he understands the conditions applicable to his period of leave .

Under LAW scheme at ORG , prior to release prisoners are eligible for the leave entitlement described at paragraph CARDINAL below .

Under Rule CARDINAL of ORG ,

" ( CARDINAL ) The Secretary of ORG may set aside particular prisons or parts of prisons for particular classes of prisoners or particular purposes , including :

( i ) the special observation of either unconvicted or convicted prisoners for the purpose of classification , making reports to courts , or otherwise ;

( ii ) the training of such classes of prisoners sentenced to imprisonment ... as the Secretary of ORG may from time to time determine .

( CARDINAL ) The Secretary of ORG may establish or set aside prisons for the treatment in open conditions of selected prisoners or classes of prisoners who have been sentenced to imprisonment or corrective training . "

An open prison has been established at PERSON , which houses CARDINAL prisoners . These prisoners have been individually selected as suitable to serve their sentence in an open prison . Only Category D prisoners can be considered for transfer to PERSON , but the great majority of Category D prisoners are housed , like Mr. PERSON and Mr. PERSON , in closed prisons . The regime at FAC is more liberal than the ordinary regime in closed prisons . In particular :

( i ) prisoners’ mail is not generally read , although the Governor retains discretion to do so ;

( ii ) visits by friends and relatives , though only allowed once DATE , can last for TIME and can be taken in the grounds at the Governor ’s discretion ;

( iii ) prisoners may be granted occasional leave for the purpose of making visits to local residents at their homes .

In other respects , visits and correspondence are subject to the same rules as in other prisons .

A " special unit " was set up in ORG in DATE to treat prisoners who were known to be violent , prisoners considered potentially violent and selected long - term prisoners . It was sought to modify the traditional officer / inmate relationship by sharing responsibility between prisoners and staff and encouraging them to regard themselves as a single community . The regime in ORG is substantially different from that in other prisons . In particular , mail is not normally censored , although prisoners are expected to observe the normal rules regarding the content of mail and the Governor retains a discretion to read mail . Visiting is not subject to the normal restrictions as regards time , number or duration of visits . There are opportunities for prisoners to go out of the prison . Those in Security Category D may be allowed to do so without escort . ORG has a maximum of CARDINAL prisoners and a CARDINAL - to - CARDINAL ratio of staff to prisoners , as opposed to the ratio of CARDINAL member of staff to CARDINAL prisoners which is more normal elsewhere .

Both Mr. PERSON and Mr. PERSON were subject to a " Training for Freedom " scheme during the latter stage of their pre - release programme at ORG . Prisoners undergoing such training live in a special hostel within the prison and are given regular temporary release for the purpose of working , community service or attending courses in the GPE area . They are also eligible for QUANTITY unescorted local leave per week and receive CARDINAL full DATE ’s unescorted leave DATE during which they may visit their home .

The principal remedies available to prisoners in GPE in respect of complaints concerning their treatment in prison are

- a complaint to the Governor of the prison ;

- a complaint to ORG ;

- a petition to the Secretary of ORG ;

- a complaint to the Parliamentary Commissioner for ORG ;

- an application to the courts for judicial review .

By virtue of Rule CARDINAL(CARDINAL ) of ORG , any request by a prisoner to see , inter alia , the Governor or a member of ORG must be recorded by the officer to whom it is made and conveyed without delay to the Governor . Under Rule CARDINAL ) , the Governor is obliged at a fixed time DATE other than DATE and DATE to see all prisoners who have requested to see him .

Section CARDINAL of LAW lays down that the Prison Rules shall provide for the constitution of Visiting Committees . The relevant provision is made in LAW . Members of ORG for each prison are appointed by the regional , district and island councils - which are composed of elected representatives - in the area served by the prison ( section CARDINAL(CARDINAL ) of LAW CARDINAL(CARDINAL ) ) . Visiting Committees and their members are independent of the prison administration . Section CARDINAL ) of the LAW specifies that the Prison Rules shall prescribe the functions of Visiting Committees and furthermore that

" [ the Rules ] shall among other things require the members to pay frequent visits to the prison and hear any complaints which may be made by the prisoners and report to the Secretary of ORG any matter which they consider it expedient to report ; and any member of ORG may at any time enter the prison and shall have free access to every part thereof and to every prisoner " .

Rules CARDINAL to CARDINAL of the Prison Rules deal with the procedures and functions of ORG . In particular , Rule CARDINAL reads :

" ( CARDINAL ) ORG shall hear and investigate any application or complaint which any prisoner may desire to make to them ; and , if necessary , report the same , with their opinion , to the Secretary of ORG . They shall have free access to all parts of the prison and to all prisoners , and may see any such prisoners as they desire , either in their cells or in a room out of sight and hearing of prison officers .

( CARDINAL ) ORG shall record in TIME their findings on all such applications or complaints investigated by them , and the result of all visits to , and inspections of , the prison . "

Rule CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) entitles prisoners to write in confidence to ORG . Rule CARDINAL lays down the general requirement that ORG " shall immediately bring to the notice of the Secretary of ORG any circumstances connected with the administration of the prison which appear to them to require his consideration " .

Rule CARDINAL empowers ORG " in any case of special importance or urgency " to " allow a prisoner an additional visit or letter or prolong the period of a visit " . By virtue of Rule CARDINAL , ORG must , before granting any permission ( such as leave for an additional visit ) , consult the prison Governor in order to satisfy themselves that it can be granted without interfering with the security , good order , and government of the prison .

Inmates have the right to submit petitions to the Secretary of ORG about any matter , for example to seek a permission which the local prison management is not empowered to grant or has refused , or to complain of prison treatment . There is no restriction on the number or frequency of petitions which a prisoner may make to the Secretary of ORG on the same or different matters . On a petition being made by a prisoner , complaining of a decision of the prison authorities , the Secretary of ORG would , if he concluded that the relevant Rules or Standing Orders had not been properly interpreted or applied by the prison authorities , issue directions to them to secure compliance . Although it is possible for him to depart from the Standing Orders in particular cases , this is likely to occur only rarely , if at all , since their very purpose is to ensure uniformity of practice .

Rule CARDINAL(CARDINAL ) of the Prison Rules provides :

" Every prisoner intimating to an officer his desire to write a letter of request or complaint to the Secretary of ORG or ORG shall be supplied with paper for the purpose , and the Governor shall see that every such letter is posted without delay . If the prisoner has elected to close the envelope it shall not be opened by the Governor . "

Standing Order Jb.CARDINAL stipulates that " a prisoner wishing to submit a petition to the Secretary of ORG shall apply to the Governor . No such application shall be refused " .

The Parliamentary Commissioner for ORG ( commonly known as the ORG ) has jurisdiction under LAW DATE to investigate complaints of " maladministration " in Government Departments . Such complaints may be raised with him by any Member of ORG and , since DATE , the Commissioner has been prepared to refer to a Member of ORG and consider complaints raised directly with him by members of the public , including prisoners . He must report on investigations he makes both to the Member of ORG concerned and also to the head of the relevant ORG and may make appropriate recommendations . He also reports periodically to ORG on his activities . Any departure from the statutory or administrative rules governing the regulation of prisons may amount to maladministration . However , his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the ORG or the Secretary of ORG ’s directives . The Parliamentary Commissioner may , where he considers that his investigation shows that injustice has been caused by maladministration and that it has not been or will not be remedied , lay before each ORG of ORG a special report on the case . In practice , the ORG concerned will normally seek to remedy any injustice found .

The exercise by public authorities of statutory powers and duties is subject to review by the courts . The grounds on which judicial review may be open are in substance the same in GPE as in GPE and GPE ( see PERSON v. ORG , DATE ORG , CARDINAL , per Lord PERSON at p. CARDINAL ) . In particular , an exercise of discretionary power may be challenged on the grounds that the authority concerned has acted arbitrarily , in bad faith , unreasonably , for an improper purpose or otherwise outside its statutory powers ( see , for example , the speech of Lord PERSON in ORG Unions v. Minister for ORG [ DATE ] Appeal Cases CARDINAL at CARDINAL and [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL - CARDINAL , as quoted in the DATE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .

The Government cited CARDINAL cases , both subsequent to the facts complained of in the present proceedings , as examples of the courts adjudicating on the lawfulness of ORG treatment in the light of the statutory powers and duties of the prison authorities . In the case of PERSON v. PERSON ( [ DATE ] Appeal Cases CARDINAL and [ DATE ] CARDINAL All England Law Reports CARDINAL ) , ORG held that FAC and the relevant Standing Orders would be ultra vires and invalid in so far as they purported to restrict a prisoner ’s right to unimpeded access to the courts since that right could only be taken away by express enactment . In NORP v. Deputy Governor of PERSON , ex parte King ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , ORG decided that a prison Governor ’s decision on disciplinary matters was not open to judicial review . ORG explained that if a prisoner has a well - founded complaint that a Governor has misconstrued a Prison Rule the appropriate method to seek redress is to petition the Secretary of ORG inviting attention to the misconstruction , and then if the Secretary of ORG rejects the petition he may apply for judicial review of the Secretary of ORG ’s decision in the form of a declaration as to the correct construction ( ibid . , pp . CARDINAL , FAC and CARDINAL ) .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is an NORP national who lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the applicant had applied for a permit under LAW ( Landschaftsschutzgesetz ) to put a culvert through a drain on agricultural land owned by him . On DATE ORG Bezirkshauptmannschaft ) conducted an oral hearing at the applicant 's request and inspected his land . On DATE ORG refused the requested permission . The applicant appealed .

On DATE ORG ( PERSON ) dismissed the applicant 's appeal .

On DATE the applicant filed a complaint with ORG ( Verwaltungsgerichtshof ) against ORG decision . On DATE ORG quashed ORG decision on the ground of procedural deficiencies and remitted the case to them for reconsideration .

On DATE the applicant lodged a complaint with ORG against the administrative authorities ' failure to decide ( PERSON ) .

On DATE ORG ordered ORG to issue a decision within DATE . Subsequently , ORG appointed an expert on agriculture and forestry issues , who , after inspecting the applicant 's land on DATE , delivered his opinion on DATE .

On DATE ORG requested ORG to order another expert , PERSON , to submit an additional expert opinion on nature conservation issues , which ORG delivered on DATE .

Subsequently , on DATE , ORG invited the applicant to submit comments on the experts ' opinions on nature conservation and agricultural and forestry issues . On DATE the applicant submitted comments on these opinions and requested a public hearing .

On DATE ORG dismissed the applicant 's appeal against ORG decision of CARDINAL DATE concerning the request for permission under LAW . It found that competence to decide on the merits had passed over to it since ORG had failed to make a decision within the DATE time - limit set .

ORG held that it could dispense with an oral hearing and an inspection of the applicant 's land since the proceedings had been carried out correctly and the facts , in so far as relevant in view of the applicable law , were undisputed . This decision was served on the applicant 's counsel on CARDINAL DATE .

On DATE the applicant lodged a complaint before the ORG , arguing , inter alia , that the proceedings had been unreasonably long and that they had been unfair as no oral hearing had taken place before ORG . The application was registered under number CARDINAL . The ORG issued a partial decision on admissibility on DATE , in which it declared the complaint about the duration of the proceedings inadmissible as being manifestly ill - founded . In a final decision on admissibility issued on DATE the ORG declared the complaint about the lack of an oral hearing before ORG admissible .

By a judgment of DATE the ORG found a violation of LAW , since ORG had not held an oral hearing . In particular , the ORG held in the judgment :

“ CARDINAL . The ORG notes that the applicant 's case was considered , in a first round , by ORG , and ORG , i.e. purely administrative authorities , and then by ORG , which quashed the latter authority 's decision . In a second round , ORG failed to decide within the statutory time - limit and jurisdiction passed on to ORG . The applicant did not contest that ORG qualifies as a tribunal , and there is no indication in the file that the Administrative Court'Fischer v. GPE , judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , § § CARDINAL with further references ) . Thus , ORG was the first and only tribunal which examined the applicant 's case .

As the NORP reservation in respect of LAW concerning the requirement that hearings be public , has been found to be invalid ( see , PERSON v. GPE , no . CARDINAL , § CARDINAL , ECHR CARDINAL-X ) , the applicant was in principle entitled to a public oral hearing before the first and only tribunal examining his case , unless there were exceptional circumstances which justified dispensing with such a hearing . The ORG has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions ( see ORG v. GPE , judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE DATE . ) no . CARDINAL , DATE ) . In particular , the ORG had regard to the rather technical nature of disputes over benefits under social - security schemes and has repeatedly held that in this sphere the national authorities , having regard to the demands of efficiency and economy , could abstain from holding a hearing if the case could be adequately resolved on the basis of the case - file and the parties ' written observations ( see , amongst others , PERSON v. GPE , cited above ) .

Turning to the circumstances of the present case , the ORG notes that the applicant commented on the expert opinions submitted in the previous proceedings and requested , in particular , that the experts be summoned to an oral hearing and that the concerned land be inspected by the court . He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law . He also challenged the expert A. for bias as he had already delivered an opinion upon a request by ORG and that his independence was doubtful as he was a civil servant bound by instructions .

The ORG can not find that in the present case the subject matter of the proceedings before ORG was of such a nature , namely a highly technical issue or of mere legal nature , as to dispense its obligation to hold a hearing .

There has accordingly been a violation of LAW . ”

In view of this finding of a violation the ORG did not consider it necessary to examine the complaints about the alleged unfairness of the proceedings . ORG did not award the applicant compensation for pecuniary damage , holding that it could not speculate as to the outcome of the proceedings . ORG also dismissed the claims for non - pecuniary damage , holding that the finding of a violation constituted sufficient just satisfaction . The judgment became final on DATE .

On DATE the applicant applied to ORG to reopen proceedings . He relied on the ORG 's judgment of DATE and , since the ORG had not awarded him damages , argued that the ORG had assumed that restitution was possible at the national level . The applicant further contended that the opinion of the expert on nature conservation on which the decision had been based was in contradiction to other findings in the file . As this would constitute a violation of the principle of equality of arms , the applicant asked for another expert to be summoned to a hearing .

By a decision of CARDINAL DATE ORG refused to reopen proceedings . Relying on LAW ( PERSON ) , it held that reopening was only provided for by law if the provisions on the right to be heard had not been complied with in the previous proceedings , and if it could be assumed that the outcome of the proceedings would have been different if the right to be heard had been observed . ORG considered that the applicant had failed to argue which submissions he could have made at a hearing which would have led to a different outcome of the proceedings . It therefore refused to grant a reopening of the proceedings . It also held that the law did not provide that a judgment of the ORG finding a violation of LAW should automatically lead to the reopening of proceedings .

The decision was served on the applicant 's counsel on DATE .

ORG , which supervises the execution of judgments of the ORG in accordance with LAW , has not yet adopted a Final Resolution .

Section CARDINAL of the Administrative Court Act reads as follows :

“ § CARDINAL . NORP ( CARDINAL ) The reopening of proceedings which have been concluded by a judgment or decision shall be granted , on an application by a party , if ...

in the proceedings before the court the rules on the right to be heard have not been complied with and it can be assumed that the judgment or decision would otherwise have been different ... ”


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

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

On DATE the applicant was detained on suspicion of murder .

On DATE he was taken to ORG , which held that it was necessary to make further enquiries about him and decided to extend the term of his detention to DATE .

On DATE ORG remanded the applicant in custody pending trial .

The applicant ’s pre - trial detention was extended by judicial decisions on CARDINAL occasions , until DATE .

On DATE the investigator applied to ORG ( “ the ORG ” ) for another extension of the applicant ’s detention , this time until DATE . According to the investigator , the applicant and his lawyer had received access to the case file only on DATE and needed more time for studying it .

On DATE ORG refused to accept the investigator ’s application as submitted with a delay . It held that the delayed provision of access for the applicant to the case file was not a valid reason for extending his detention and that he was to be released immediately after the expiry of the authorised detention term .

The investigator referred the case for trial instead . However , he immediately requested the court to return it back for additional investigation on the grounds that the applicant and his lawyer had not had sufficient time to study the case file . According to the applicant , by doing so the investigator circumvented the legally established time - limits for his pre - trial detention .

On DATE ORG remitted the case for additional investigation in allowing the investigator ’s application . It noted that the term of the applicant ’s pre - trial detention had expired and that it had not been extended . At the same time , it held that , given the seriousness of the crime the applicant was charged with , he was to remain in detention .

The applicant unsuccessfully challenged the above ruling to ORG , which held on DATE that the issue of the preventive measure in his case was to be decided by the investigating authorities .

On DATE the investigator once again referred the case to the court for trial .

However , on CARDINAL DATE ORG remitted it for additional investigation once again . It held that the applicant had not been provided with the possibility to study the case file . Furthermore , the term of his pre - trial detention had been breached . Nonetheless , the court decided to keep the applicant in detention with reference to the seriousness of the criminal offence he was charged with . It therefore rejected his request for release .

On DATE ORG rejected the applicant ’s cassation appeal against the above ruling .

At some point thereafter the case was reassigned to another investigator .

On DATE the investigator terminated the criminal proceedings against the applicant for the absence of sufficient evidence that he had committed the crime in question . The applicant was released immediately .

In DATE the applicant lodged a civil claim with ORG of Donetsk ( “ the Voroshylivskyy Court ” ) against ORG and ORG seeking compensation for damages in respect of his allegedly unlawful criminal prosecution and detention . Namely , he claimed CARDINAL NORP hryvnias ( ORG ) in respect of pecuniary damage and ORG CARDINAL in respect of non - pecuniary damage .

The applicant submitted , in particular , that because of the inherent stress he had become ill with psoriasis during his detention . He referred in this connection to a medical certificate of DATE , according to which he had been assigned to the second category ( medium ) of disability on account of this disease , which was incurable and which had apparently been triggered by his stress related to his criminal prosecution and detention .

On DATE ORG allowed the applicant ’s claim in part and awarded him ORG CARDINAL,CARDINAL.CARDINAL in compensation for non - pecuniary damage , ORG CARDINAL in respect of lost income and UAH CARDINAL,CARDINAL.CARDINAL in respect of medical treatment costs .

The court held that the applicant had been a victim of unlawful criminal prosecution and detention from DATE to DATE ( for DATE ) . It relied on the PERSON “ On the Procedure for the Compensation of Damage caused to ORG by ORG in charge of ORG , ORG , Prosecutors or Courts ” , according to which the termination of criminal proceedings for the lack of corpus delicti , like in the applicant ’s case , provided grounds for compensation of damages .

ORG also referred to the medical certificate concerning the applicant ’s disease of psoriasis and its link with his criminal prosecution and detention .

On DATE ORG upheld the above judgment in the part regarding the compensation for the non - pecuniary damage . As to the compensation for the lost income and the medical treatment costs , it held that , according to the legally envisaged procedure , the applicant had to address first the respective investigation authorities which had been dealing with his case .

On DATE ORG upheld that ruling .

The relevant provisions of the LAW “ On the Procedure for the Compensation of Damage caused to ORG by ORG in charge of ORG , ORG , Prosecutors or Courts ” can be found in judgment on the case of ORG v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .