No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Kristina Pardalos;Nona Tsotsoria

The first applicant , PERSON PERSON , was born in GPE in DATE . His wife , the second applicant , PERSON , was born in then GPE in DATE . Their son , the third applicant , PERSON PERSON , was born in then the NORP GPE ( NORP SSR ) in DATE . They are now citizens of GPE and live in GPE .

The first applicant was an officer of the NORP army . In DATE he and his wife , the second applicant , entered the territory of NORP SSR where the first applicant , together with other military personnel , was responsible for the supervision of the NORP radar station in GPE .

In DATE GPE regained its independence from GPE and in DATE the latter ceased to exist . In DATE GPE assumed jurisdiction over the former GPE armed forces , including those stationed in the territory of GPE . Afterwards the applicants acquired the citizenship of GPE .

On DATE GPE and GPE signed the treaty concerning the conditions , deadlines and procedure for the complete withdrawal of the armed forces of GPE from GPE , as well as their status during the withdrawal . On DATE both GPE entered into an agreement concerning the legal status and dismantling of the radar station in GPE , and the status of the military personnel deployed there . It provided that the radar station was to cease its operations by CARDINAL DATE and that it was to be dismantled by CARDINAL DATE .

By an order of CARDINAL DATE the first applicant was demobilised from the army with effect from DATE . The applicants’ service visas were due to expire on DATE .

NORP In DATE the second applicant , acting on behalf of the other applicants , asked ORG ( GPE un migrācijas lietu pārvalde ) to issue them with a residence permit . In support of her request she relied on the fact that her elderly parents and her daughter lived in GPE , and that the third applicant was a pupil at a ORG school .

On DATE ORG dismissed the ORG request , stating that they had entered the territory of GPE because of the first applicant ’s military service . They were informed that in accordance with the Law on Aliens ( ORG ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos GPE ) , there was no legal basis for them to obtain permanent residence permits in GPE , and that by virtue of the agreement concluded between GPE and GPE , the applicants had to leave the territory of GPE .

The applicants appealed against that decision before LOC , which dismissed their appeal . No further appeal was brought .

On DATE the first and second applicants asked ORG to issue them with temporary residence permits .

On DATE the Head of ORG issued an order for the applicants ( the third applicant was mentioned in the order concerning the first applicant ) to leave NORP territory by DATE and also imposed a DATE ban on their re - entering GPE .

Appeals by the applicants against the orders were dismissed by the national courts at CARDINAL levels of jurisdiction . The final decision was adopted by the ORG of ORG on DATE .

In a letter dated CARDINAL DATE ORG reminded the first and second applicants of their obligation to leave the country or otherwise they would be deported in pursuance of section CARDINAL of the Law on Aliens .

It appears from the material in the case file that on DATE , during an interview with the Head of ORG , the applicants were informed that the period within which they had to leave the territory of GPE had been extended until DATE to allow the third applicant to finish DATE .

On DATE , in the course of the execution of the aforementioned orders , the applicants were arrested by officers of ORG . The records of their arrest referred to the orders to leave of DATE ( see paragraph CARDINAL above ) and relied on section CARDINAL ) , of LAW GPE likums ) ( see “ Relevant domestic law ” below ) . The applicants refused to sign the records of their arrest because they were drawn up in NORP , a language which they allegedly did not understand .

On DATE the applicants were placed in ORG detention unit for illegal immigrants in Rīga ( “ ORG detention unit ” ) .

On DATE ORG , relying on section CARDINAL(CARDINAL)(CARDINAL ) of LAW adopted a decision to deport the applicants . Pursuant to section CARDINAL ) of the above law the decision was not subject to appeal . The applicants refused to take cognisance of the decision .

On DATE , by a decision of GPE , the applicants’ detention was extended until DATE . The court established that at the time of their arrest the applicants had not presented any identity documents and that according to their ORG passports , which they had presented only during the hearing , the applicants did not have a lawful basis to reside in GPE .

On DATE the applicants were transferred to the accommodation centre for foreign detainees ( ORG ārzemnieku izmitināšanas centrs ) in ORG ( “ the ORG accommodation centre ” ) , where they stayed until DATE , when they were brought back to ORG detention unit . On DATE the applicants were deported to GPE .

On DATE the applicants were taken to a cell . They first described the conditions in the cell in their initial separate complaints to the ORG and later on in their joint application form . The facts as set out in the ORG initial separate complaints are referred to below in so far as they supplement the factual information presented in their later submissions .

The applicants stated that on DATE , after they had been searched without witnesses in ORG detention unit , they had each received a dirty and thin flannel blanket and a bed sheet , and had been placed together in a cell which was small ( QUANTITY ) and dirty , with a small window . The cell contained CARDINAL steel bunk beds which were so hard that the second applicant ’s back was constantly aching . There were steel chairs and a table screwed to the floor . The air was foul from the lavatory pan and washbasin in the cell , and as a result the applicants suffered from headaches and their eyes were watering . There was an iron door with a small window used for handing the applicants food and supervising them . The light in the cell was on for TIME a day and during their DATE in the cell the applicants were only twice taken out for a walk , lasting TIME .

According to the initial submissions of the first applicant , the sanitary facilities were separated from the rest of the cell by a low partition . This assertion was maintained in the applicants’ later joint observations .

The applicants contended that the food at ORG detention unit was of bad quality , tasteless , insufficiently salty and not always fresh . Owing to the short periods between the meals ( breakfast was at TIME , lunch at TIME and dinner at TIME ) , the applicants were hungry in the evenings . Once they were given mouldy potatoes for dinner .

The third applicant added that they had been given metal tableware and that the cell was infested with ants , which were creeping everywhere . This allegation was repeated in the applicants’ joint observations , which stated that in the cells there were large numbers of ants creeping into the food and spoiling it .

During the ORG stay in ORG detention unit they were only twice authorised to meet their relatives . They were also not authorised to return to their former place of residence to collect their belongings before their deportation . In their later joint observations the applicants added that an officer of ORG had told them that they would have TIME to go home on condition that they signed the records of their arrest and deportation .

On DATE one of the detainees in the neighbouring cell behaved aggressively and the officers of the detention unit released a certain gas to calm him down . The applicants had to leave their cells and when they returned another woman was put into the applicants’ cell for TIME . In her initial separate complaint the second applicant noted that the incident took place in TIME and that another person stayed in their cell for DATE . In their joint observations the applicants stated that the woman stayed in their cell for DATE .

In their joint observations the applicants furnished a plan of the cells in ORG detention unit , according to which cells FAC . CARDINAL and CARDINAL ( the applicants were held in the latter cell ) were designed for CARDINAL persons , cell no . CARDINAL for QUANTITY persons and cell no . CARDINAL , which was a isolation cell , for CARDINAL person , although the latter cell was not used because the window pane was broken . On DATE , when CARDINAL of the CARDINAL detainees in cell no . CARDINAL started to behave aggressively , the other CARDINAL men were transferred to cell no . CARDINAL , and a woman from cell no . CARDINAL was transferred to the applicants’ cell ( no . CARDINAL ) . Their protests against the woman ’s transfer were ignored .

On DATE , a day before their deportation to GPE , a man was placed in their cell ( cell no . CARDINAL ) . The applicants protested but the guards ignored them . In the evening they were moved to cell no . CARDINAL , which was meant for QUANTITY persons . The first applicant therefore had to sleep on the floor .

In ORG detention unit the applicants were only twice allowed to have walks of TIME in the inner courtyard , which was cemented over and surrounded by high concrete walls protected by barbed wire . On the second occasion , they were taken out of their cell after the incident referred to above ( see paragraph CARDINAL above ) in order to air the cell after gas had penetrated into it .

The applicants contended that the conditions in the ORG accommodation centre were no better than in Rīga . They were held in a separate cell with CARDINAL beds , QUANTITY tables and chairs , and they were given bed clothes . The cell was very dirty with dilapidated walls covered in graffiti . There were grilles on the windows . Outside there was a very high fence with barbed wire , and behind it was a watchtower . The applicants were given a bucket and a draining rack to wash the cell . They were given old dishes and food to DATE , which included QUANTITY of potatoes , CARDINAL g of pasta , QUANTITY of rice , CARDINAL small chicken legs , CARDINAL small fish , QUANTITY of vegetable oil , bread and other vegetables . They had to do their own cooking in a kitchen which had a CARDINAL - ring stove for CARDINAL people .

In their joint observations the applicants alleged that on DATE of their stay at the centre a man had been put in their cell . It appears from the first applicant ’s separate complaint and the later observations that the aforementioned incident took place at ORG detention unit rather than in ORG ( see paragraph CARDINAL above ) .

According to the applicants , on TIME of CARDINAL DATE , when they were informed of their deportation to the NORP border , the second applicant had a heart attack . For DATE she had complained of heart pain and headaches but did not receive any treatment . In support of their allegation that the first and second applicants had already raised health - related complaints at the time of their detention , the applicants furnished copies of records of CARDINAL DATE concerning all CARDINAL applicants and records of DATE concerning the second applicant , which stated that , on returning to ORG detention unit , she had complained of heart pain , intercostal neuralgia , low blood pressure and headaches .

Immediately after her heart attack on DATE , the second applicant received some injections and pills from the doctor of ORG detention unit . The applicants were put in a vehicle which was supposed to drive them to the border . It was stuffy , noisy and jolty in the car and the second applicant had another heart attack during the journey . When they stopped at the ORG accommodation centre the second applicant was examined in the medical unit and received an injection and medication . Without having been given permission , the first applicant called for an ambulance , whose crew examined the second applicant .

In her separate complaint the second applicant noted that the ambulance crew had examined her and concluded that she had not had a heart attack .

After the medical check the applicants had to continue the TIME - long trip to PERSON , where they were kept detained until TIME , and then took a train to GPE in an ordinary carriage . They were hungry because DATE they had received food in the morning only , and they did not have any money or belongings because the authorities had prevented them from taking anything with them or saying goodbye to their relatives .

The Government to a large extent contested the applicants’ account of the facts . They relied on a report of DATE addressed by the head of ORG of ORG to ORG ( for the relevant parts of the report see the admissibility decision in the present case : Vikulov and Others v. GPE ( dec . ) , no . CARDINAL , DATE , section CARDINAL ( a)(ii ) of the “ Facts ” part ) .

In their additional observations the Government furnished technical inventory documents and photos of the cell where the applicants were held . According to the inventory documentation held by ORG detention facilities , there were CARDINAL cells measuring CARDINAL sq . m , CARDINAL sq . m and CARDINAL sq . m , and an isolation cell measuring CARDINAL sq . m. The windows were not narrower than QUANTITY According to the inventory documents and photos , the sanitary facilities were separated from the rest of the cell by a brick partition . According to LAW on ORG short - term detention facilities , the partition was not higher than QUANTITY

As to pest control , the ORG submitted a copy of a report according to which inspections for rats and other parasites were carried out once a month . During the inspection on CARDINAL DATE no parasites had been detected .

Concerning the adequacy of the food , the ORG submitted copies of various internal regulations in force at the material time , which set out the type and quantity of dry products distributed to detainees during DATE ( for the relevant parts of these regulations see LOC and Others ( DATE . ) , cited above ) . The instruction concerning the DATE regime of detainees in ORG detention unit provided as follows : TIME routine , followed by an inspection of the cells from DATE ; breakfast from QUANTITY a.m. ; meetings with officials of ORG from TIME , with a lunch break from CARDINAL noon to TIME was provided from TIME , followed by free time from TIME , which included cleaning and inspection of cells . TIME began at TIME

With regard to outside walks , the ORG relied on a report of an official of ORG who confirmed that walks were not regulated and that any time except TIME could be used for walks in the inner courtyard , on condition that women , men and families were to have walks separately , and that outdoor exercise did not exceed TIME at a time .

As to the right to meet relatives , the Government furnished certified copies of the applicants’ requests of CARDINAL , DATE , DATE , DATE and DATE for authorisation to meet their relatives and to make phone calls to them . It appears from the copies that all the requests are marked as having been authorised . They also furnished copies of extracts from the register of visitors and parcels in ORG detention unit , according to which on CARDINAL , DATE and DATE the applicants were visited by family members ; on CARDINAL , DATE , DATE and DATE they received parcels ; and on DATE a representative of ORG visited them .

The Government submitted a report of CARDINAL DATE drawn up by an officer of ORG , who reported to a superior officer that on DATE he had visited the applicants in ORG detention unit in order to serve them with the deportation order , but that they had refused to sign it . The report also stated that the officer had offered to drive the applicants to collect their identity documents but they had not responded to this offer .

The Government further submitted a report of DATE by the same officer , who informed that on DATE the applicants had dismissed his offer to drive them to their former place of residence . The documents also contained a copy of a universal power of attorney dated DATE and certified by a notary public in her LOC in Rīga , in which the first applicant vested his daughter with broad powers in relation to , inter alia , his and the third applicant ’s property .

In addition to the factual information provided in their earlier observations ( see Vikulov and Others DATE . ) , cited above , section CARDINAL(b)(ii ) of the “ Facts ” part ) the Government furnished photocopies of a plan and pictures of the ORG accommodation centre .

The Government furnished copies of the records drawn up during the applicants’ detention as well as medical reports . According to the records of CARDINAL DATE concerning the examination of detained aliens , the second applicant complained of a headache , psoriasis and rheumatic heart disease , and the third applicant complained of psoriasis . According to the same records , on DATE at TIME the first and second applicants confirmed in writing that they had received their belongings , such as keys , money and mobile phones which , at the time of their arrest , had been deposited with ORG detention unit .

According to the medical records of CARDINAL DATE , on arrival at the ORG accommodation centre none of the applicants complained of any health problems .

According to the copies of the applicants’ medical records , it was on DATE , at TIME , that the second applicant complained of a headache . After having her blood pressure checked , the second applicant received CARDINAL unit of spasmalgon , CARDINAL unit of tempalgin and CARDINAL units of panangin . On DATE at TIME the second applicant repeatedly complained of a headache and intercostal neuralgia . She received an injection of diclofenac , CARDINAL unit of tempalgin , corvalol and CARDINAL units of panangin .

Lastly , at TIME on DATE , DATE of the applicants’ deportation , the second applicant complained of a headache . According to the medical report , she also showed signs of tachycardia and psycho - emotional reaction . Her blood pressure was measured twice , with a TIME interval . She received an injection of spasmalgon , CARDINAL unit of nitrong , panangin and valocordin drops . She also received CARDINAL units of CARDINAL types of medication to take with her “ to the border ” .

Following a request by ORG for information as to the existing remedies at the material time in respect of complaints concerning conditions of detention in centres for illegal immigrants , ORG stated that pursuant to section CARDINAL of LAW , it could receive complaints regarding any issue . It also noted that the domestic law did not explicitly provide for a right to complain about conditions of detention ; nevertheless , applicants could avail themselves of the right to submit a complaint by virtue of ORG ( “ ORG iesniegumu , sūdzību un priekšlikumu izskatīšanas kārtību valsts un pašvaldību institūcijās ” ) . In response to a similar request ORG replied that questions concerning the arrest and detention of persons did not fall within its sphere of competence .

Section CARDINAL(CARDINAL ) of the law provides that an official of ORG has the right to detain an alien :

( CARDINAL ) if he or she has illegally crossed the State border of GPE or otherwise violated the procedures prescribed by regulatory enactments for the entry into and residence of aliens in GPE ;

( CARDINAL ) if the alien poses a threat to ORG security and public order ;

( CARDINAL ) in order to implement an order regarding removal of an alien from GPE .

As a result of the amendments of DATE , which became effective as from DATE , section DATE was subjected to merely textual changes .

By section CARDINAL ) , an official of ORG has the right to detain an alien for a period not exceeding DATE in the cases referred to in section CARDINAL of the law .

Section CARDINAL provides that in defence of their legitimate interests , foreign detainees have the right to appeal to ORG , to contact a consular institution of their own country and to receive legal assistance . Aliens must be informed of these rights at the time of their detention .

Other provisions of domestic law that are relevant to the issues raised in the present case , such as LAW , can be found in PERSON v. GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINALX , and Vikulov and Others ( dec . ) , cited above , part B.

The relevant parts of the report of CARDINAL DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( “ the ORG ” ) from DATE to CARDINAL October CARDINAL can be found in LOC and Others DATE . ) , cited above , part C.


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE and lives in LOC ) .

On DATE the applicant was charged in GPE with blackmail within the meaning of Article CARDINAL of LAW ( Law no . QUANTITY . , as applicable at the relevant time ) .

The charge was based on the suspicion that the applicant had sent a number of text messages from a NORP mobile telephone number to NORP in GPE which contained serious threats that he would harm and kill her and their child .

On DATE the applicant was handed over to the NORP authorities to be prosecuted in GPE . He was subsequently detained in GPE pending trial there ( see below ) .

On DATE ORG súd ) found the applicant guilty as charged and sentenced him to DATE imprisonment , suspended for DATE . The applicant waived his right of appeal and , on DATE , the judgment became final and binding and the applicant was released .

In so far as can be established from the applicant 's submissions and the content of the documents in the case file , on DATE a single judge of ORG gave an order ( uznesenie ) for the applicant to be detained pending trial . The order was upheld following an interlocutory appeal ( sťažnosť ) by the applicant examined by ORG ( PERSON súd ) on DATE . The decision on the appeal was served on the applicant 's lawyer on DATE .

On DATE the applicant lodged a complaint with ORG ( Ústavný súd ) under LAW .

The applicant relied on LAW and contended that his detention was unlawful and arbitrary since there was neither any “ reasonable suspicion ” with a basis in admissible evidence against him nor sufficient reasons to detain him . The applicant also argued that the impugned decisions lacked adequate reasoning and that the proceedings on his interlocutory appeal had not been speedy . He sought , inter alia , that the decision of CARDINAL DATE be quashed , that he be released and that ORG be ordered to determine his interlocutory appeal anew .

On DATE ORG declared the complaint admissible .

In a written submission of CARDINAL DATE the applicant , inter alia , requested for comment a copy of any observations that ORG and ORG , as the defendants in the proceedings before ORG , might have submitted in reply to his complaint .

On DATE the Constitutional Court gave a judgment ( nález ) in which it found that ORG had violated the applicant 's rights under LAW in that it had failed to provide adequate reasoning for its decision of DATE and in that the proceedings on the applicant 's interlocutory appeal had not been speedy .

The Constitutional Court quashed the decision of CARDINAL DATE . It observed that the applicant had meanwhile been released . The part of his constitutional complaint , which was aimed at his release and at a fresh examination of his interlocutory appeal , had therefore become moot . Nevertheless , while accepting that the applicant had sustained non - pecuniary damage , ORG did not award him any just satisfaction on the ground that the finding of a violation of the applicant 's rights was sufficient redress for him . However , ORG allowed a part of the applicant 's claim for legal costs

ORG took into account observations made in reply to the applicant 's complaint by ORG and ORG but made no mention of the part of the applicant 's complaint which concerned the substantive aspects of his detention .

The judgment of ORG was served on the applicant through the intermediary of his lawyer on DATE . No appeal lay against it .

In so far as can be established from the applicant 's submissions and the content of the documents in the case file , on CARDINAL May CARDINAL the applicant requested release , offered a pledge , under LAW ( b ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as applicable at the relevant time ) ( “ the ORG ” ) , that he would live in accordance with the law and , as an alternative , applied for bail under LAW ORG .

By law the request fell to be determined first by the regional prosecutor , who dismissed it and on DATE forwarded it ex officio to ORG for judicial determination .

The request for release was then dismissed in turn by a CARDINAL - judge bench of ORG on DATE and , on an interlocutory appeal by the applicant , by ORG on DATE . The decision on the appeal was served on the applicant on DATE .

NORP The applicant challenged the decisions and various aspects of the procedure by way of CARDINAL complaints under LAW .

On DATE ORG declared inadmissible the complaint by which the applicant had mainly challenged the length of the proceedings in respect of his request for release , in so far as these proceedings had taken place before the public prosecution service and ORG .

ORG found that any possible delays on the part of the public prosecution service had been insignificant and that , in so far as ORG was concerned , the complaint was manifestly ill - founded on the ground that , at the time of its introduction with ORG , the request for release was no longer pending before ORG , which was why the applicant was no longer in need of protection by ORG .

The decision of ORG was served on the applicant on DATE .

On DATE ORG declared inadmissible as manifestly ill - founded a part of the applicant 's outstanding constitutional complaint , which concerned the fact that the decision of DATE had wrongfully been made by a bench whereas the body authorised to make it was a single judge . ORG declared admissible the remainder of the complaint , as specified below . The decision was served on the applicant on DATE .

NORP In a judgment of DATE ORG found that there had been a violation of the applicant 's rights under LAW , DATE of the ORG , in that ORG had failed to provide the applicant with a copy of the observations made by the prosecution service in reply to the applicant 's request for release , combined with the fact that it had also failed to hear the applicant in person , rule on all claims in the appeal and provide adequate reasoning for its decision . Moreover , the proceedings before both ORG and ORG had not been “ speedy ” . In reaching this last conclusion ORG observed that , prior to the ordinary court 's involvement in deciding on the applicant 's request for release , his request had been examined by the public prosecution service . ORG found no issue in the length of the proceedings before the public prosecution service .

ORG held that there was no point in quashing the decision of ORG in view of the fact that the applicant had meanwhile been released .

The applicant was awarded CARDINAL NORP korunas ( SKK ) in just satisfaction for non - pecuniary damage and the reimbursement of legal costs .

The judgment was served on the applicant 's lawyer on CARDINAL DATE .

Until DATE State liability for damage caused by decisions concerning pre - trial detention was governed by LAW hlava ) CARDINAL of Part ( časť ) CARDINAL of the Act on State Liability for Damage Caused by ORG Decisions or ORG ( PERSON o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “ LAW DATE ” ) .

Persons deprived of their liberty had a claim against the ORG for damages when the criminal proceedings against them were dropped or they were acquitted ( section CARDINAL(CARDINAL ) ) .

However , such compensation was excluded when the persons concerned were responsible for their own detention , in particular when they had tried to abscond or had otherwise given rise to the facts on which the decision concerning their detention was based .

Section CARDINAL ) rendered the ORG liable for damage caused in the context of carrying out functions vested in public authorities resulting from wrongful official action of persons entrusted with the exercise of those functions . An award of compensation could be made when the plaintiff showed that he or she had suffered damage as a result of the wrongful official action of a public authority , quantified its amount , and showed that there was a causal link between the damage and the wrongful action in question .

LAW DATE was traditionally interpreted and applied as not allowing for compensation to be awarded for non - pecuniary damage unless it was related to the deterioration of a person 's health ( see , for example , GPE v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE , and GPE v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .

By its judgment of CARDINAL DATE in an appeal on points of law ( no . DATE ) concerning an action for damages under LAW DATE , ORG upheld the view that neither that LAW nor an action for protection of personal integrity provided a legal basis for awarding compensation in respect of non - pecuniary damage caused by unlawful detention .

LAW DATE was , however , to be interpreted in line with LAW which presupposed compensation for non - pecuniary damage and , pursuant to LAW , prevailed over the statutory text .

This line of reasoning was followed in judgments of ORG of DATE and ORG of DATE when deciding on appeals nos . CARDINALCo DATE and ORG .

In DATE the Minister of ORG submitted to the Government a draft bill providing for a new legislative framework for official liability .

The bill was accompanied by an introductory report ( predkladacia správa ) in which the Minister observed , inter alia , that the old State Liability Act had been on the statute book since DATE and that , owing to subsequent changes to the social system and the adoption of the Convention , there was a new understanding of the concept of ORG liability for damage , which called for the introduction of new legislation .

The bill was later submitted to ORG with an explanatory report , the relevant part of which stated that it was necessary to extend the current concept of the right to damages to incorporate just satisfaction in respect of non - pecuniary damage as well as pecuniary damage . The purpose of the proposed LAW was , inter alia , to render the mechanism of compensation for damage caused by public authorities more effective and thereby reduce the number of cases in which claimants were obliged to seek redress before ORG .

The bill was adopted with effect from DATE ( PERSON o zodpovednosti za škodu spôsobenú pri výkone verejnej moci ) and replaced LAW DATE .

The right to compensation for damage caused by a decision concerning detention on remand ( väzba ) is vested in the person who was detained on remand provided that the criminal proceedings against him or her have been dropped ( section CARDINAL(CARDINAL)(a ) ) or he or she has been acquitted ( section CARDINAL(CARDINAL)(b ) ) or the matter has been referred to another authority ( section CARDINAL ) ) .

However , no such right arises when the person concerned himself or herself gave cause to the detention on remand ( section CARDINAL(CARDINAL)(a ) ) .

The ORG is also liable for damage caused by wrongful official action which comprises , inter alia , a public authority 's failure to take action within the time - limit set , inactivity or any other unlawful interference with rights and legally recognised interests of individuals and legal entities ( section CARDINAL(CARDINAL ) ) .

The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage ( section CARDINAL(CARDINAL ) ) .

Under LAW the compensation is to cover pecuniary damage , including loss of profit , and , where appropriate and necessary , nonpecuniary damage .

The Act applies only to damage caused by decisions and wrongful official action occurring after it entered into force ( section ORG ) ) .

In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL/CARDINAL ) ORG granted an action for damages by CARDINAL individuals against the ORG under LAW DATE and ordered the defendant to pay the costs of their defence in a criminal trial on charges of DATE that had ended with their acquittal with final and binding effect in DATE .

On DATE the Banská Bystrica Regional Court upheld the judgment following the defendant 's appeal .

On DATE ORG granted an appeal ( case no . MONEY ) in an action brought by an individual against the ORG under LAW DATE for damages and awarded him an amount of money in compensation for non - pecuniary damage caused by detention on remand in DATE in the context of a criminal trial on charges of DATE that had ended with his acquittal with final and binding effect in DATE .

In a judgment of CARDINAL DATE ( in case no . CARDINALC CARDINAL/CARDINAL ) ORG granted an action for damages by an individual against the ORG under LAW DATE and awarded the claimant an amount of money in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial .

The impugned wrongful official action concerned the extension by a decision of DATE until DATE of the claimant 's detention pending trial .

The action was preceded by a judgment of ORG of DATE ( in case no . I. ÚS CARDINAL/CARDINAL ) in which ORG had found a violation of the claimant 's rights under LAW and CARDINAL in connection with the same facts .

However , ORG had been unable to award the claimant damages as he had made no claim to that effect .


CASE OF KESKINEN AND VELJEKSET KESKINEN OY v. FINLAND

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing)

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

The first applicant was born in DATE and lives in PERSON . The applicant company has its seat also in PERSON .

The applicants organised in DATE an ice fishing competition for which the entrance fee was QUANTITY . This was the seventh time that the competition had been organised by the applicants . They had rented in DATE a lake , into which they had put CARDINAL marked salmon . CARDINAL of them weighed QUANTITY , QUANTITY , QUANTITY and QUANTITY . The winners of the competition were those CARDINAL men and QUANTITY women who caught the most fish . In addition , anybody who caught a marked salmon would win a prize according to its weight . The fisher of the QUANTITY salmon would win MONEY , the fisher of a QUANTITY salmon would receive a gift certificate worth MONEY , the fisher of a QUANTITY salmon a gift certificate for QUANTITY and the fisher of a QUANTITY salmon a gift certificate of CARDINAL . Each participant could buy only one entrance ticket and was allowed to use CARDINAL rod and hook .

The ice fishing competition was a mass event in which CARDINAL persons participated . Of the CARDINAL marked salmon , CARDINAL were caught . The following gift certificates were given away : CARDINAL gift certificates , CARDINAL CARDINAL,CARDINAL-euro gift certificates and CARDINAL CARDINAL-euro gift certificates .

When the previous fishing competition had been organised in DATE , ORG had asked the applicant company to clarify the nature of the competition . It had concluded in DATE that the competition was to be considered partly as a lottery , within the meaning of LAW ( arpajaislaki , lotterilagen ) , in that the fishers of marked salmon would be given separate prizes . This interpretation was sent for information to the county administrative board ( lääninhallitus , länsstyrelsen ) and the local police department . The fishing competition in DATE did not have any legal consequences for the applicants .

The preparations for the DATE event started in DATE and they involved a large number of local persons , including the police . ORG Interior again asked the applicant company to clarify the nature of the competition . On DATE the Ministry concluded that the event might constitute a lottery within the meaning of LAW . This view was communicated to the local police and the leading county police officials . The applicants duly informed the police about the event well in advance . The police never prohibited the event even though they had the right to do so if organising an event was illegal .

Criminal proceedings were brought against the applicants in DATE . The public prosecutor brought charges against the first applicant , inter alia , for having organised , in connection with an ice fishing competition , a lottery without a proper permit because the outcome of the fishing competition was partly based on luck . Moreover , the public prosecutor asked that the profit gained from the offence committed by the applicant company be forfeited to the ORG .

On DATE ORG ( käräjäoikeus , tingsrätten ) , after having held an oral hearing , dismissed all charges against the first applicant as well the forfeiture request against the applicant company . The court found that the lottery had been illegal , but the fact that the provisions in question had not been clear , that similar events had been organised before and that the authorities had not prevented the event from taking place , led the court to conclude that the first applicant ’s misinterpretation of the law was excusable .

NORP The public prosecutor appealed to ORG ( hovioikeus , hovrätten ) , reiterating his charges and requesting that an oral hearing be held . He requested that CARDINAL civil servants from ORG be heard about the role of ORG in general as well as in the present case , including the question of intent and the applicants’ reactions to the ORG ’s queries and guidelines . As to the forfeiture , an oral hearing was needed in order to assess evidence and the amount of profit gained .

On DATE the applicants also lodged an appeal in respect of the costs and expenses and requested that an oral hearing be held . They wanted CARDINAL witnesses to be heard about the nature , content and organisation of the ice fishing competition . As to the forfeiture , they proposed to hear the applicant company ’s financial manager about the financial outcome of the competition . If no oral hearing was held , the applicants were to be given a possibility to submit further comments .

Both parties were given an opportunity to comment on the other party ’s letter of appeal .

On DATE ORG , inter alia , rejected the request for an oral hearing and sentenced the first applicant to DATE - fines ( CARDINAL ) in respect of the breach of lottery provisions . As to the oral hearing , the court found that the facts and their background were undisputed , the written correspondence between ORG and the applicants had already been included in ORG judgment and the role of ORG as the supervisory and expert organ in lottery legislation matters had become apparent from LAW . It was thus clearly not necessary to hold an oral hearing . Nor did the forfeiture require an oral hearing to be held . It was not necessary to provide the public prosecutor or the applicants with an opportunity to submit further comments . As to the merits , the court found that catching a marked fish was more due to luck than to the participants’ skills . Even a beginner could have caught a winning fish . The ice fishing competition thus fulfilled the criteria of a lottery within the meaning of LAW . The provisions of LAW were not especially difficult to understand and the first applicant had been well aware of the manner in which they were interpreted by ORG . As it could not be deemed that the first applicant had misinterpreted the law in an excusable manner , he was found guilty of a lottery offence . According to the court , the proper sanction , bearing in mind the first applicant ’s guilt and the damaging effect of the offence , was thus DATE - fines . The court estimated that the profit gained from the offence was QUANTITY and ordered its forfeiture .

NORP By letter dated DATE the applicants appealed to ORG ( korkein oikeus , högsta domstolen ) , requesting that an oral hearing be held or that the case be referred back to ORG for an oral hearing . They claimed , inter alia , that it had come as a complete surprise to them that ORG had not organised an oral hearing nor provided them with an opportunity to submit further observations .

On DATE ORG granted the first applicant leave to appeal . The question of granting leave to appeal to the applicant company was postponed to be dealt with together with the merits of the first applicant ’s appeal .

On DATE ORG found that the case could have been decided by ORG without holding an oral hearing and for the same reason there was no need to hold an oral hearing in ORG . As to the merits , the court confirmed that the ice fishing competition was to be regarded as a lottery within the meaning of LAW and that it had taken place without a permit . Bearing in mind the ORG ’s interpretation , the provisions of LAW were not especially difficult to understand . The first applicant could thus not be deemed to have misinterpreted the law in an excusable manner . The court upheld DATE - fines imposed but reduced the amount of each day - fine so that the DATE - fines imposed amounted in total to MONEY . As to the applicant company , the court refused leave to appeal .

Chapter CARDINAL , LAW , of LAW ( oikeudenkäymiskaari , rättegångsbalken ; as amended by the Act no . PERSON ) provided at the relevant time :

“ A main hearing shall be held in the appeal court , if a party to a civil case or the injured party or the defendant in a criminal case so requests .

However , a main hearing need not be held for the reason referred to in subsection CARDINAL , if

( CARDINAL ) in a civil case amenable to settlement , the opposing party has admitted the appellant ’s request for a change ;

( CARDINAL ) in a criminal case only the appellant has requested a main hearing and the case is decided in accordance with the appeal ;

( CARDINAL ) the person requesting a main hearing has been satisfied with the decision of ORG and the decision is not changed to his or her detriment ;

( CARDINAL ) the appeal is manifestly ill - founded ;

( CARDINAL ) only a procedural matter is to be decided in the case ; or

( CARDINAL ) the holding of a main hearing is for another reason manifestly unnecessary .

The provisions in subsection CARDINAL and in subsection CARDINAL ) and CARDINAL ) - ( CARDINAL ) apply , in so far as appropriate , also when hearing an appeal lodged in a non - contentious civil case . ”

According to LAW , LAW , of the same Code :

“ An appeal court shall hold a main hearing regardless of whether one has been requested , if a decision on the matter turns on the credibility of the testimony admitted in the district court or the findings of the district court in an inspection , or on new testimony to be admitted in the appeal court . In this event , the evidence admitted in the district court shall be readmitted and the inspection carried out again in the main hearing , unless there is an impediment to the same .

If the evidence referred to in paragraph ( CARDINAL ) can not be readmitted in the main hearing , the decision of the district court shall not be changed for that part , unless the evidence for a special reason is to be assessed differently . However , a decision on a charge may be changed in favour of the defendant of a criminal case . ”

LAW , subsection CARDINAL , of the same LAW provides :

“ Where necessary , ORG shall hold an oral hearing where the parties , witnesses and experts may be heard and other information admitted . The oral hearing may be restricted to a part of the case on appeal . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

Since DATE the applicant was the head of ORG bakteriologisch - serologische GPE ) in PERSON . According to the activity profile submitted by the Government the tasks of the Institute involved

carrying out of various examinations , namely examinations upon official request under the relevant Health Acts and bacteriological examinations of water quality ;

research , collection and transfer of data ; assistance to the installation and maintenance of a notification system concerning certain infectious diseases ; maintenance of a specific network on epidemiological diseases integrating ORG and other international networks ;

participation in international scientific projects and studies ;

provision of general information and advice , such as advice concerning prevention and transfer of infectious diseases and use of antibiotics ;

assistance by giving of expert advice in the elaboration of quality standards for microbiological laboratories , of national recommendations in the field of hygiene , medical microbiology and preventive medicine and of epidemic legislation ;

representation of the competent ORG department in national and international expert groups .

The applicant , as head of ORG , was responsible for all tasks entrusted to it . Under section CARDINAL of LAW ( Beamten - Dienstrechtsgesetz ) he was further responsible for certain matters concerning the regulation of its service , namely the arrangement of vacation and grant of special leave , and had the authority to issue decisions ( PERSON ) in this regard .

On DATE ORG at ORG ( ORG für ORG ) found the applicant guilty of having violated his professional duties under LAW ( ORG ) and sentenced him to a fine of MONEY ( ORG ) . It found that the applicant inter alia had made statements about some of his employees amounting to sexual harassment . On DATE ORG at ORG ( ORG beim Bundesministerium für öffentliche ORG ) partly dismissed the applicant 's appeal . It reduced the fine to approximately ORG CARDINAL,CARDINAL . On DATE ORG dismissed the applicant 's complaint .

NORP In the meantime , on DATE , the Federal Minister for Work , ORG recalled the applicant from his post with immediate effect ( GPE sofortiger PERSON ) and transferred him to a post with a lower grade , namely a referee post at ORG in GPE .

Referring to the applicant 's behaviour which was the subject of the pending disciplinary proceedings , the Federal Minister found that the applicant had violated his professional duties , and could no longer be trusted to perform the managerial duties as head of ORG . She referred to section CARDINAL of the Civil Servants Act according to which a transfer can be ordered ex officio in case of important official interest . At the same time she informed the applicant that the payment of the extra duty allowance ( Verwendungszulage ) granted to him as head of the ORG was to be discontinued from DATE .

On DATE the applicant filed an appeal and submitted that the disciplinary proceedings were still pending .

On DATE the applicant , assisted by his counsel , filed further submissions . He submitted that the Federal Minister had not made sufficient findings as to the background in which his statements had been made and had placed them in the wrong context . He further contested that he had made CARDINAL of the statements and requested to hear a witness in the context of a hearing . He finally argued that ORG had partly granted his appeal and that the disciplinary proceedings were still pending . There were , therefore , no reasons for his transfer .

On DATE ORG ( Berufungs - kommission ) at ORG dismissed the applicant 's appeal without holding a hearing . It noted that the authority deciding on the transfer did not necessarily need to wait for the outcome of pending disciplinary proceedings but could assess itself whether a civil servant had violated his professional duties and whether such a violation requested a transfer . The applicant 's arguments concerned mainly the question of his guilt , which was the subject of the disciplinary proceedings . Its task was to ascertain whether the applicant 's transfer was objectively necessary . It nevertheless examined and dismissed the applicant 's arguments as to the alleged justifying context in which the statements had been made . It further acknowledged that it was in fact not clear whether the applicant had made CARDINAL of the statements at issue . However , having regard to all other statements it confirmed the Federal Minister 's finding that the applicant could no longer be trusted to perform the tasks of a head of ORG . In particular that the applicant 's unqualified behaviour had deepened the already existent conflicts and tensions at work and there was , therefore , an important official interest which made his transfer to another post necessary .

On DATE the applicant filed a complaint with ORG ) . He complained that the fact that ORG had taken its decision after a private meeting was in violation of his right to court proceedings under LAW . Furthermore he alleged that ORG had decided arbitrarily as it had not duly taken account of his arguments made in the disciplinary proceedings according to which the proceedings against him had to be seen in the context of the ORG 's restructuring programme and were aimed at obliging him to take early retirement .

On DATE ORG dismissed the applicant 's complaint . Referring to its case - law it found that rights and obligations which resulted from an employment as a civil servant could not be considered as “ civil rights ” within the meaning of LAW . It followed that LAW was not applicable to the applicant 's case . It further found that there was no indication of arbitrariness in the proceedings at issue .

NORP This decision was served on the applicant 's counsel on CARDINAL DATE .

The relevant rules are contained in LAW . In the version in force at the material time it provided as follows .

Section CARDINAL § CARDINAL of LAW ( Beamten - Dienstrechtsgesetz ) defines the transfer ( PERSON ) of a civil servant as permanent assignment to another department .

Under section CARDINAL LAW the recall ( ORG ) of a civil servant is equivalent to a transfer inter alia when the new assignment has not at least the same grade as the former post .

According to section CARDINAL § CARDINAL a transfer can be ordered ex officio in case of important official interest .

NORP Under section CARDINAL § CARDINALa the transfer is to be ordered by decision . The concerned civil servant can appeal against this decision . His appeal does not have suspensive effect on the decision .

Section CARDINAL of LAW ( Gehaltsgesetz ) provides that a civil servant is entitled to an extra duties allowances ( Verwendungszulage ) if he permanently has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade .

Pursuant to section GPE § CARDINAL an appeal will be decided upon by ORG ( ORG ) established at ORG Bundesministerium für öffentliche ORG ) .

Section GPE regulates the composition of ORG . Its paragraph CARDINAL provides that its chair and his / her substitute are judges , the other members legally trained civil servants whereof CARDINAL are representatives of the employer and CARDINAL are representatives of the employee . The members are appointed by ORG on a proposal of ORG ( Bundesregierung ) or by the President of ORG ) . Representatives of the employees are in principle nominated by ORG ( ORG ) and , in case the ORG makes no nomination within DATE , by the Minister for ORG .

The term of office is DATE .

Section PERSON provides that ORG decides in formations ( ORG ) consisting of CARDINAL members , the chair or his / her substitute , CARDINAL civil servant representing the employer and CARDINAL civil servant representing the employee . The civil servant representing the employer has to be employed at ORG of the respective complainant .

The chair of ORG has to fix , for DATE in advance , the number of the formations , their members and the sequence in which members have to step in if a member is incapacitated . The chair further allocates business .

Section CARDINALd § CARDINAL provides that ORG decides by a majority of votes . Its paragraph CARDINAL provides that the members of ORG are not bound by any instructions in the exercise of their functions .

ORG decisions are not subject to an appeal to ORG . They are , however , subject to a complaint to ORG .

Hearings before ORG are governed by LAW Allgemeines Verwaltungsverfahrens - gesetz ) . LAW CARDINAL of this LAW provides as follows :

“ Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts ...

It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise , as it is commonly understood that the principle of publicity does not extend to administrative proceedings .


Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award

By an order of CARDINAL DATE the guardianship judge of ORG of the CARDINALth Administrative District of GPE granted the applicant 's son a special power of attorney to deal with the applicant 's affairs . The order stipulated that the special power of attorney would remain effective until the judge had decided whether or not to make a guardianship order ( tutelle ) or a supervision order ( curatelle ) . The order conferred power on the attorney , inter alia , to :

“ ... receive all correspondence , including registered letters , addressed to the protected person regarding his administrative or financial affairs . The special attorney shall give the protected person his personal correspondence within TIME ... ”

On DATE a complaint was lodged against the applicant for several alleged offences of indecent assault on minors .

The applicant was questioned by the gendarmerie on DATE and admitted some of the allegations . The investigating officers noted in their report that the applicant 's son had a special power of attorney to deal with his affairs and that the applicant lived in GPE ; they also made reference to the order made on DATE by the guardianship judge of ORG of the CARDINALth Administrative District of GPE .

On DATE , in view of the pending criminal investigation , the guardianship judge adjourned the decision whether or not to make an order for the applicant 's supervision and heard the applicant 's son in chambers in order to elicit further information .

By a judgment of CARDINAL DATE the guardianship judge at ORG of the CARDINALth Administrative District of GPE made a supervision order in respect of the applicant . The applicant 's son was appointed as the supervisor . The judge referred to a written opinion dated DATE of ORG , which concluded that the applicant should be placed under supervision . The judge said , inter alia :

“ The ORG has had regard to

( i ) the expert report dated DATE of Dr L. , a specialist medical practitioner on the list of experts compiled by ORG ;

( ii ) the medical certificate issued by PERSON , the patient 's doctor , on DATE ;

( iii ) the record of evidence taken from the person requiring protection on CARDINAL DATE ;

( iv ) the record of evidence taken from PERSON and PERSON on DATE ;

( v ) the written opinion dated DATE of the representative of ORG , concluding that Mr PERSON should be placed under supervision .

The ORG notes that the expert medical practitioner 's report and the information before it show that , owing to the impairment of his faculties , Mr PERSON requires representation and assistance in the conduct of his civil affairs . Consequently , he must be placed under supervision ...

The ORG reminds those concerned that the protected adult may not , without the assistance of his supervisor , perform any act for which permission from the guardianship council would be required under the regime applicable to the guardianship of minors [ sic ] , in particular he may not without his supervisor 's assistance divide up any part of his estate , receive or use any capital , let or rent property , take part in court proceedings , make gifts ... ”

State Counsel 's Office in GPE was notified of the supervision order .

On DATE the public prosecutor 's office at the GPE tribunal de grande instance made an order for the applicant 's examination by a psychiatrist . The applicant was given CARDINAL appointments by the psychiatrist DATE on DATE and CARDINAL DATE but did not attend either .

On DATE , after a hearing DATE , ORG found the applicant guilty of sexual assault by violence , coercion , threats and taking the victim unawares on minors aged DATE , holding :

“ ... the case alleged against the accused has been substantiated both by the evidence in the case file and the evidence heard at the hearing .

The ORG must find the accused guilty and apply the criminal law to him .

The offences are particularly serious as they concern repeated acts of indecent assault on minors aged DATE . In these circumstances , a partly immediate custodial sentence is called for ... ”

ORG sentenced the applicant to DATE imprisonment , of which DATE were suspended for DATE , the applicant being on probation during the latter period . It also ordered him to pay damages .

It found that the applicant had been duly summoned to attend the hearing and that the form of acknowledgment of receipt of the registered letter sent by bailiff ( which the applicant had signed on DATE ) showed that the applicant had received the summons and had therefore been aware that he was required to appear before it . However , he had not appeared in person , been represented or shown due cause for failing to appear . His case was therefore decided by a judgment delivered in proceedings that were deemed to have been adversarial .

On DATE the guardianship judge took further evidence from the applicant 's son , in his capacity as supervisor , regarding the applicants ' change of address and the criminal proceedings . At the hearing , the judge directed the applicant 's son to forward the applicant his correspondence . The applicant 's son said that he had received no news from his father about the criminal proceedings since DATE .

On DATE , after the applicant had changed address , the guardianship judge at ORG of the CARDINALth Administrative District of GPE made an order relinquishing jurisdiction in favour of the PERSON guardianship judge .

The judgment of DATE was served on the applicant on CARDINAL DATE . He served his prison sentence from DATE to DATE .

The applicant affirms that his son , in his capacity as supervisor , was not informed of his arrest or of his conviction on DATE until DATE , as all the summonses and notices of appointment in the criminal proceedings were sent to him directly . His son had subsequently contacted the guardianship judge , informing him of his father 's arrest and explaining that he knew nothing about the criminal proceedings against him . On DATE his son had also complained to the public prosecutor at the GPE tribunal de grande instance about not being informed of the proceedings against the applicant . According to the son , on becoming aware of the complaint against his father , he had made enquiries at the gendarmerie in order to obtain additional information , but had been advised that no proceedings had been brought and that there had merely been a request for a psychiatric report .

The Government said that the judgment of the guardianship judge of ORG of the CARDINALth Administrative District of GPE dated DATE showed that the judge had decided to adjourn hearing the application for a supervision order because of the criminal proceedings pending against the applicant and had required the applicant 's son to attend court to give information about those proceedings .

In a letter of DATE the guardianship judge of ORG informed the applicant 's son that there was no recourse against the judgment of DATE , since , in the absence of an appeal , it had become final . The judge explained that the applicant 's supervisory regime entitled him only to assistance : it did not entail an obligation for the supervisor to be informed that criminal proceedings had been brought against the person supervised .

In a letter of DATE the public prosecutor at the GPE tribunal de grande instance observed in reply to a letter from the applicant 's son dated DATE that the applicant had failed to attend the court hearing even though he had received the summons by registered letter and had signed an acknowledgment of receipt of it on DATE . He had not seen fit to attend the court 's hearing just as he had not seen fit to attend his appointments on DATE and CARDINAL DATE with the psychiatrist who had been instructed by the public prosecutor 's office to examine him . The public prosecutor also pointed out that the applicant had given no indication that he was subject to a supervision order . Lastly , he repeated that the applicant had received notification of the judgment .

On DATE the lawyer acting for the applicant 's son wrote to the judge responsible for the execution of sentences to enquire what measures were to be taken in favour of the applicant in view of the fact that it was “ unusual ” for a person in respect of whom a supervision order had been made to be convicted without being afforded an opportunity to receive assistance at the hearing from his supervisor . He explained in his letter :

“ ... PERSON personally received the summonses which were sent to him both by the registries and the gendarmerie , but his son , PERSON , was never informed of the existence of any of that correspondence although he had informed the gendarmerie concerned that his father was subject to a supervision order ... ”

On DATE the applicant 's supervisor lodged an appeal against the judgment of DATE on the ground that the applicant “ [ had been ] ill at the time of the hearing and unable to comply with the court 's summons or to appeal ” . On DATE he received a reply informing him that he did not have standing to appeal and that , in any event , the applicant 's conviction had become final owing to his failure to appeal . On CARDINAL DATE the supervisor wrote a further letter to the public prosecutor contesting the judgment of DATE .

The applicant was examined by a psychiatrist following a direction issued by the PERSON guardianship judge on DATE . The expert concluded that the consultation : “ [ did ] not reveal any intellectual deficit . There [ was ] no major impairment of the memory , the powers of concentration or the ability to reason logically ” .

On DATE the guardianship judge heard the applicant , who complained that his supervisor had been taking his money without accounting to him for it and requested a change of supervisor . On CARDINAL DATE the applicant 's son was heard by the guardianship judge . He accepted that relations with his father were perturbed and requested that his father be made subject to a guardianship order .

By an order of DATE ORG discharged the applicant from his role as supervisor . That decision was upheld by a judgment of DATE .

The relevant provisions of LAW are the following :

“ When the mental faculties are impaired by illness , infirmity or decline due to age , the interests of the person concerned shall be provided for by CARDINAL of the protective regimes laid down in the following chapters .

The same protective regimes shall be applicable in the event of impairment of the physical faculties if the person concerned is thereby prevented from expressing his or her will .

Impairment of the mental or physical faculties must be established by medical evidence . ”

“ A guardianship order shall be made if , for CARDINAL of the reasons set out in LAW , an adult requires continual representation in the conduct of his or her civil affairs . ”

“ When , for any of the reasons set out in LAW , an adult , though not incapable of acting , requires advice or supervision in the conduct of his or her civil affairs , he or she shall be placed under a supervisory regime . ”

“ An adult subject to supervision may not , without the assistance of his or her supervisor , perform any act for which permission from the guardianship council would be required under the guardianship of adults regime . Nor may he or she receive or use capital sums without such assistance . ”

“ Any service of judicial process on an adult subject to a supervision order must also be made on his or her supervisor , on pain of nullity . ”

“ When making a supervision order or in a subsequent judgment the judge may , on the advice of the patient 's doctor , enumerate certain acts which the person subject to the order shall have capacity to perform alone as an exception to LAW , conversely , add other acts to the list of those for which assistance from the supervisor is required under that Article . ”

Extracts from the relevant case - law :

ORG overturned a judgment of a court of appeal in a case in which there was no indication from the written annotations , the procedural documents or any other item of evidence that the supervisor had been notified of a notice of appeal against a divorce decree lodged by the person subject to the supervision order ( Court of Cassation , ORG , CARDINAL DATE , ORG , p. CARDINAL ) . Conversely , ORG declared admissible an appeal on points of law that had been served on the supervisor after being served on the person subject to the supervision order ( Court of Cassation , ORG , DATE , ORG . civ . [ Civil Bulletin ] I , no . CARDINAL ) .


Violation of Art. 5-3;Violation of Art. 5-5;Not necessary to examine Art. 13;Not necessary to examine Art. 14+5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

NORP In DATE the applicant , who was born in DATE , was convicted of manslaughter by ORG , GPE . His record sheet read “ manslaughter – heavy drinking session with female . In bed , during which he sexually interferes with her . Struggle ensues during which she dies ” . The naked body of the victim , a neighbour of the applicant , was discovered outside the door of her flat wrapped in a bedspread . The applicant was sentenced to CARDINAL years’ imprisonment . He was released in DATE .

On DATE the applicant was arrested by the police on suspicion of attempted rape of his next - door neighbour . He maintained that he had had sexual intercourse with the woman with her consent and the woman claimed that the incident had taken place after she had blacked out from drinking . He was brought before ORG on DATE . While the applicant instructed his solicitor to apply for bail on his behalf , no bail application was or could have been made in view of LAW of ORG and LAW DATE . The record of the hearing of CARDINAL DATE refers to LAW as the reason for the refusal of bail . The applicant was remanded in custody by the Magistrate on DATE and DATE , the second appearance being necessary in view of the possibility ( later abandoned ) of the prosecution amending the charge against the applicant .

The applicant was convicted of attempted rape and of assault occasioning actual bodily harm in DATE . On DATE he was sentenced to CARDINAL years’ imprisonment for the assault conviction and to life imprisonment for the attempted rape conviction . The trial court deducted the period of his pre - trial detention from the sentence imposed pursuant to section CARDINAL of LAW DATE . On DATE ORG rejected his appeal against sentence .

Section CARDINAL of LAW DATE as amended ( “ the DATE LAW ) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule CARDINAL to the Act . Paragraph CARDINAL of Schedule CARDINAL provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant , if released on bail , would fail to surrender to custody , commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person .

Under paragraph CARDINAL of Schedule CARDINAL to the CARDINAL Act , in taking the above decision , the court was to have regard to such of the following considerations , as well as to any other considerations , as appeared to that court to be relevant :

– the nature and seriousness of the offence or default ( and the probable method of dealing with the defendant for it ) ;

– the character , antecedents , associations and community ties of the defendant ;

– the defendant ’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings ; and

– except in the case of a defendant whose case was adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted .

According to paragraph CARDINALA of Schedule CARDINAL to LAW , if a defendant ( who had been charged with murder , manslaughter , rape , attempted murder or attempted rape ) was granted bail and representations had been made as regards the matters mentioned in paragraph CARDINAL of Schedule CARDINAL , the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings .

Section CARDINAL of the Criminal Justice and LAW DATE ( “ the DATE LAW ) came into force on DATE and provided as follows :

“ ( CARDINAL ) A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings .

( CARDINAL ) This section applies , subject to subsection ( CARDINAL ) below , to the following offences , ... –

( a ) NORP murder ;

( b ) NORP attempted murder ;

( c ) manslaughter ;

( d ) NORP rape ; or

( e ) NORP attempted rape .

( CARDINAL ) This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of GPE of any such offence or of culpable homicide and , in the case of a previous conviction of manslaughter or culpable homicide , if he was then sentenced to imprisonment or , if he was then a child or young person , to long - term detention under any of the relevant enactments .

Section CARDINAL of the CARDINAL Act has been amended by section QUANTITY of LAW DATE , which entered into force on DATE . LAW reads as follows :

“ In subsection ( CARDINAL ) of LAW ( no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences ) , for the words ‘ shall not be granted bail in those proceedings’ there shall be substituted the words ‘ shall be granted bail in those proceedings only if the court or , as the case may be , the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’ . ”