Violation of Art. 2 (killing and wounding);Violation of Art. 2 (failure to investigate);Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

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

At the time of the events at issue , the applicants resided in PERSON , a village attached to the district of ORG in the LOC province of south - east GPE .

On DATE , at TIME , a group of villagers set out from the village of ORG of ORG , by a minibus and a truck . On the way to ORG , an armed group of people stopped the villagers QUANTITY away from GPE of PERSON . They forced the villagers to get out of the vehicles and ordered them to line up near the road . They fired at the villagers and fled . According to the applicants , the armed group consisted of village guards .

NORP The gendarmes drew a sketch map of the crime scene and drafted an incident report addressed to the ORG public prosecutor . It was stated in the report that a group of terrorists wearing military uniforms stopped a minibus and a truck near the hamlet of GPE attached to the village of PERSON . They killed CARDINAL villagers , namely PERSON , PERSON , PERSON , PERSON , PERSON and PERSON . CARDINAL villagers , namely PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , were wounded . Furthermore , the gendarmes found CARDINAL empty cartridges of CARDINAL PERSON which had been discharged from PERSON rifles . The report concluded that the incident was an ideologically motivated killing by members of the ORG .

On DATE ORG and a forensic doctor conducted an autopsy at the scene of the incident . They concluded that the persons killed in the incident had died of bullet wounds . The autopsy report recorded the following injuries :

PERSON : CARDINAL bullet entry on the right ear , CARDINAL bullet exit on the upper part of the head , CARDINAL bullet entry on the right armpit , CARDINAL bullet exit on the right shoulder , CARDINAL bullet wound on the abdomen , CARDINAL bullet entry on the upper abdomen , CARDINAL bullet exit on the waist , CARDINAL bullet entry on the right upper abdomen , CARDINAL bullet exit on the right upper hip , CARDINAL bullet entry on the right thigh and CARDINAL bullet exit on the front hip .

PERSON : CARDINAL bullet entry on the forehead , CARDINAL bullet exit on the right part of the head , CARDINAL bullet entry DATE ribs , CARDINAL bullet exit on the right front ribs , CARDINAL bullet entry on the inner right elbow , CARDINAL bullet exit on the outer right elbow , CARDINAL bullet entry on the left upper CARDINALth rib , CARDINAL bullet exit on the left part of the chest , CARDINAL bullet wound on the left shoulder , CARDINAL bullet entry on the inner left leg and CARDINAL bullet exit on the outer left leg .

PERSON : CARDINAL bullet entry on the left shoulder blade , CARDINAL bullet exit on the right shoulder blade , CARDINAL bullet entry on the inner right elbow , CARDINAL bullet exit on the outer left elbow and CARDINAL bullet wound on the right calf .

PERSON : CARDINAL bullet wound on the left temple , CARDINAL bullet entry on the left shoulder , CARDINAL bullet exit on the left shoulder blade , CARDINAL bullet entry on the right part of the right wrist , CARDINAL bullet exit on the left part of the right wrist and CARDINAL bullet entry on the left calf .

PERSON : CARDINAL bullet entry on the left hip , CARDINAL bullet exit on the upper left hip , CARDINAL bullet entry on the waist , CARDINAL bullet exit on the scrotum , CARDINAL bullet entry between the CARDINALth and CARDINALth ribs , CARDINAL bullet exit on the upper right hip and CARDINAL bullet exit between the CARDINALth and CARDINALth ribs .

PERSON : CARDINAL bullet entry on the forehead , CARDINAL bullet exit on the left temple , CARDINAL bullet entry between DATE ribs , CARDINAL bullet exit DATE ribs , CARDINAL bullet entry on the right hip , CARDINAL bullet exit on the abdomen , CARDINAL bullet entry on the right upper hip , CARDINAL bullet exit on the pubis , CARDINAL bullet entry on DATE and CARDINAL bullet exit on the chest .

The estimated time of death was given in the autopsy report as CARDINAL or TIME before the autopsy had been carried out . The doctor concluded that it was unnecessary to conduct further autopsies of the bodies .

On DATE the witnesses PERSON , PERSON and PERSON were questioned by the police officer PERSON . Moreover the ORG took the statements of the applicants PERSON , GPE and CARDINAL other witnesses .

PERSON stated as follows :

“ TIME at TIME we set out for ORG . There were CARDINAL or CARDINAL of us in PERSON truck . When we were QUANTITY away from the village , a group of CARDINAL men appeared from both the left and the right side of the road . They came out from a cave near the road . They stopped us . They were wearing military uniforms . We thought that they were soldiers . There was a minibus that was following us . They also stopped the minibus . They told us to get out of the vehicles and hold our arms up . We did as we were told . Then , they took ORG [ GPE ] , PERSON , PERSON [ Akan ] , PERSON , PERSON and PERSON to the other side of the road and started shooting at them with PERSON rifles . The others ran away . I ran away as well . They also shot at us . Some of us died and some of us were wounded . Then , they ran rapidly towards the village of GPE . Those people were village guards from the village of ORG . Their faces were CARDINAL covered but I identified PERSON and ORG . I do not know their surnames . I could recognise their voices because I knew them before . They are from the neighbouring village . ”

PERSON stated as follows :

“ ... When we were passing by the PERSON cave , CARDINAL people came out of it . They were armed and were speaking in NORP . They told us to line up . We did as we were told . They also stopped the minibus that was following us . I knew QUANTITY people among the group . CARDINAL of them is called ORG and the other is called PERSON . They opened fire at us . I was wounded . They took me to ORG . ”

PERSON stated as follows :

“ ... They had already taken the people out from the truck . They told us to get out of the minibus . They took CARDINAL of us and killed them . When we started to run , they opened fire on us . I was wounded . It was ORG and PERSON who made us line up . ”

On DATE PERSON and PERSON , who had been wounded in the incident , died in ORG . A bullet was removed from the decased PERSON body . Moreover , on DATE the applicant PERSON was operated on and a bullet was removed from his body .

On CARDINAL DATE the applicant PERSON gave the following statement to ORG :

“ ... A group of CARDINAL or thirty armed people stopped our truck . They also stopped the minibus that was following us . I recognised PERSON ( his mother is called Güle ) , PERSON and ORG . I do not know their surnames . I know them very well because they are our neighbours . PERSON and Ethem had not covered their faces . Sorry , I made a mistake . It was PERSON ’s face which was uncovered . PERSON and PERSON had covered their mouths but not their eyes . They were wearing conical hats like soldiers . They were also wearing commando uniforms . They were holding PERSON rifles . PERSON was also holding a gun . They shouted at us in NORP and ordered us to get out of the vehicles one by one . When we gathered near the vehicles they told us in NORP to line up . I told them that they could search us and check our identity cards . Then I asked them to let us go . I told them that we had a long way to travel . When they heard this they opened fire . We ran away . CARDINAL people died . I was wounded in the back . These people ran away towards the village of GPE . I know them very well . I can identify them . PERSON is not far away from our village . There is no vendetta between the villages . The only reason for this incident could be that they have village guards but we do not . According to the rumours , the members of the organisation [ ORG ] had killed a village guard from the village of ORG . The ORG villagers had thought that it was us who had killed him . We celebrated Nevruz but they did not . For that reason we were their enemies . ”

On DATE PERSON and PERSON also gave statements to ORG . They reiterated that the village guards ORG and PERSON from the village of ORG were among the group of people who had attacked them . PERSON further stated that although the attackers had covered their faces he had been able to identify PERSON and ORG .

In a ballistic report by ORG , dated DATE , it was recorded that CARDINAL cartridges of CARDINAL x CARDINAL PERSON calibre had been submitted for examination . In carrying out the ballistic examination , the laboratory fired the weapons belonging to the village guards from ORG and compared the empty cartridges with those found at the site of the incident . The report found that CARDINAL of the examined cartridges had been fired from ORG weapon , CARDINAL from ORG weapon , CARDINAL from GPE weapon , CARDINAL from PERSON weapon , CARDINAL from ORG weapon , CARDINAL from ORG weapon , CARDINAL from ORG weapon , CARDINAL from ORG weapon , CARDINAL from PERSON weapon and finally one from ORG weapon . The report further stated that CARDINAL cartridges bore no resemblance to the cartridges examined by the laboratory . Following the examination the weapons were deposited in safe storage at ORG .

On DATE the judge at ORG took statements from the CARDINAL village guards , whose names were mentioned in the ballistic report , and ordered their detention on remand .

On DATE the ORG public prosecutor filed a bill of indictment with ORG against the CARDINAL village guards of ORG . He accused them of the murder and attempted murder of CARDINAL person .

On DATE ORG ordered that the village guards PERSON and PERSON be detained on remand . After DATE PERSON was released pending trial .

On DATE , at the first hearing , ORG requested the ballistic examination of the bullet which had been removed from PERSON corpse by ORG , during the autopsy .

On DATE , the ORG public prosecutor requested ORG to determine whether or not the bullet removed from PERSON body had been fired from the weapons belonging to the village guards . On DATE the laboratory informed the public prosecutor that it was not possible to comply with these requests as they were only in possession of the empty cartridges found at the scene of the incident and not the weapons themselves .

On DATE the court requested ORG to hand over the accused village PERSON weapons so that a ballistic examination of the bullets removed from the corpses of deceased PERSON and PERSON could be carried out . Moreover it sent a notice to ORG to ascertain the address of the victim PERSON , who possibly still had a bullet in his body , and to have him medically examined .

At a hearing on DATE PERSON , PERSON and the applicant PERSON appeared before ORG . PERSON and PERSON identified the village guards ORG and PERSON , who were present in the courtroom , as the perpetrators of the incident . PERSON identified PERSON , PERSON as well as NORP who were present in the court room and accused them of having opened fire .

On DATE , the village guards PERSON , PERSON , GPE , PERSON , ORG , PERSON , PERSON , ORG , ORG , PERSON and PERSON appeared before ORG . They denied the allegations against them and stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime . They maintained that on CARDINAL previous occasions they had to use their weapons in the Ziyaret region . On DATE a group of CARDINAL and CARDINAL villagers , including the PERSON residents , demonstrated during the ORG celebrations by marching towards the village of GPE . When the villagers arrived in the vicinity of GPE , the gendarmes and the village guards from ORG intervened and fired warning shots in order to disperse the crowd . Moreover on DATE there had been an armed clash between the village guards and the members of the ORG in the Ziyaret region , near the village of ORG . According to an incident report drafted by the gendarmes on DATE , although the village guards fired CARDINAL bullets the gendarmes were only able to collect CARDINAL empty cartridges due to the rain and the crowd of villagers who gathered at the place of incident .

At the same hearing the court heard the non - commissioned officer PERSON . Mr GPE had been on duty at ORG in GPE on DATE of the incident . He stated as follows :

“ I have been serving at ORG for DATE . ORG is a big village . I know the accused village guards . They are from ORG and they support the ORG . We perform our duties together . I remember DATE [ of the incident ] . I was keeping guard at TIME because we were expecting an attack . ... I was with CARDINAL other soldiers and CARDINAL village guards . The names of the village guards were PERSON , PERSON and PERSON . ... The village guards PERSON , ORG and ORG were together with my colleague , PERSON . The village guards PERSON , PERSON and NORP were with PERSON . The rest of the village guards were keeping guard near the village . We were on duty until TIME No incident took place that TIME . Then , I went to the command . [ At the command ] they told me that the ORG commander had announced the occurrence of the incident on the radio . It took place at the border with the province of ORG . Our command and the village of ORG are in the province of PERSON . The district gendarmerie commander ordered the village guards to gather at the command . All the village guards had gathered at the command within TIME . I waited for the commander , but he did not come . In the meantime , I checked all the weapons of the village guards in order to see whether or not they had been used . The village guards had previously been ordered to leave their weapons after their shifts of duty . It was obligatory to clean the weapons with a ramrod . I checked all the weapons of the village guards CARDINAL by CARDINAL . Some of the weapons had been kept in good order . Some of them , however , were dusty . I checked these weapons just after the incident took place . I did not observe a mark or a smell of gunpowder .

We had been informed that the villagers would march towards the village of ORG during the ORG celebrations . In fact they had lit a fire in the neighbouring villages TIME before ORG . ORG is the only village in that region that has village guards . The other villages do not have village guards . ... [ During the ORG celebrations ] CARDINAL members of the ORG forced the villagers to march towards ORG . They alleged that they had their martyrs there . I tried to stop the group and told them that what they had been doing was illegal . I asked the village guards to repeat the same things in NORP . However , the militants continued to force the villagers to march . Then I shot warning shots . The helicopters arrived later . [ The helicopters ] should not have fired . [ When they opened fire ] the people ran away . ... On DATE the ORG militants attacked the NORP village . A village guard called ORG died . The village guards and our forces opened fire . The terrorists went away . In these kinds of attacks it is impossible to collect all the cartridges . Some of them can be collected but not all . The village guards have PERSON rifles . We have GCARDINALs or MG-CARDINALs . The bullets [ for these rifles ] are CARDINAL calibres . However , the structure of those bullets is different . You can tell which bullet matches which rifle . ”

On DATE several weapons were submitted to the court . However they were sent back as none of these were the village guards’ weapons which were previously submitted for ballistics examination .

On DATE ORG ordered the release of the village guard PERSON pending trial .

On DATE , upon the requests of ORG , the Governor and the director of the ORG prison , ORG decided to transfer the case to ORG in order to maintain public security in the area . It held that it was necessary to transfer the case due to the hostility that the parties had shown to each other , the difficulty that they had in travelling to the court house and the tension created in GPE on DATE of the hearings . It further held that the situation had served to encourage the ORG to increase its terrorist activities in the region .

On DATE , at the first hearing held before ORG , the court requested to have all the accused transferred to PERSON prison . It sent letters rogatory to ORG and ORG to take the statements of CARDINAL accused who had been released pending trial . It also sent a notice to various regional authorities requesting to be informed of the addresses of several witnesses . Furthermore it requested the removal of the bullet found in PERSON body . The court also repeated ORG request to have the village GPE weapons which were deposited in safe storage at ORG .

On DATE ORG requested ORG to take PERSON statement . On DATE ORG filed an additional bill of indictment against the CARDINAL guards for the attempted murder of PERSON .

On DATE PERSON appeared before ORG and stated as follows :

“ I was taken to ORG . I was operated on there . I do not know whether they removed a bullet from my body . I was unconscious . I was not told that a bullet had been removed from my body . I was wounded in the calf . There was a bullet exit wound on my knee . It is probable that the bullet had not remained in my leg . ”

On DATE the applicant PERSON gave the following statement before ORG :

“ On DATE of the incident , the minibus that I was in was stopped by a group of armed people . They made us get out of the vehicles and line up . The person called ORG gave his gun to PERSON . PERSON signalled with the gun to the others and they all fired at us . I have identified them because PERSON ’s face was only partially covered and ORG ’s face was completely uncovered . During the incident my brother PERSON and my father PERSON died . ”

On DATE Sergeants PERSON and PERSON appeared before ORG . PERSON stated as follows :

“ On DATE of the incident I was keeping guard with the village guards from CARDINAL a.m. to CARDINAL p.m. As far as I remember I was with PERSON , ORG and ORG . ... The place where we were keeping guard is QUANTITY FAC walking distance from where the incident took place . The other accused village guards were keeping guard with the other soldiers . ... I went back to the command with the village guards . All the accused village guards were with us . We stayed at the command for TIME in order to have breakfast . As a result it is impossible that the accused were involved in the incident . ... On the Nevruz day the villagers marched to the village of [ ORG ] . We fired warning shots DATE . It was raining , therefore we could not collect the cartridges . It is probable that someone else collected the cartridges . ... We always clean the weapons when we return to the command . On DATE the weapons were clean . There was no mark or smell of gunpowder . It is impossible that the village guards killed or wounded the villagers . The CARDINAL of them were with me and the others were with their commander . Some of them were keeping guard near the village . ”

Sergeant Kazım Demirbaş reiterated his colleague ’s statement and said that the village guards PERSON , PERSON and PERSON had accompanied him on DATE of the incident .

At the hearing held on DATE the court requested the removal of the bullets found the bodies of PERSON , PERSON and PERSON bodies , if this operation would not cause a threat to their health .

On CARDINAL DATE ORG ordered the release of the village guard PERSON pending trial .

On DATE the court requested to have an interpreter since some of the accused and the interveners did not know NORP . Furthermore it once again repeated its request concerning the submission of the weapons . It sent a notice to ORG and the LOC Governor in this regard , emphasising the decisive role of this evidence for the case .

On DATE ORG informed the court that it was too risky to remove the bullet from PERSON leg since it was too close to the nerves .

On DATE ORG made the following statement before ORG in PERSON at the request of ORG :

“ At the material time I was the public prosecutor in ORG . ... The gendarmes and soldiers were at the scene of the incident when I arrived . I saw CARDINAL or CARDINAL dead bodies lying on the right and the left side of the road . It seemed that they had been shot at close range . ... I told the soldiers to collect the empty cartridges . ... While I was carrying out the autopsies , I realised that the soldiers were not collecting the empty cartridges . I personally collected the empty cartridges that were near the dead bodies with the help of my assistant . I drafted a report . More empty cartridges could have been collected . I collected as many as I could . It seemed that the cartridges had been fired recently . There was a smell of gunpowder . It was obvious that they had been fired recently . The base of the cartridges ( mermi dip çukurları ) had not oxidised . There were no rifles around , only empty cartridges . ... In my opinion the empty cartridges had been fired from the weapons that killed the villagers . ... There were traces of newly extinguished fire and human excrement in a cave near the road . In my opinion this shows that the murderers laid an ambush before the attack . ”

On DATE CARDINAL eight PERSON rifles which belonged to the accused were deposited in safe storage at ORG . The following day the bullet removed from PERSON leg was also deposited in safe storage at the court .

In a report dated DATE , issued by ORG , the court was informed that there were fragments of bullet in PERSON body but that it was not possible to remove them .

On DATE ORG requested ORG in GPE to examine whether or not the CARDINAL empty cartridges found at the scene of the crime and the bullets removed from the applicant PERSON and from the body of PERSON had been fired from the weapons of the village guards . The court further requested that PERSON medical situation be reassessed and that the court be informed whether the fragments of bullet could be removed from his body .

In a ballistic report dated DATE , ORG confirmed the findings in ORG report . Additionally it stated that CARDINAL cartridges had been fired from a “ ORG - type ” rifle of CARDINAL.CARDINAL-mm calibre . As regards the CARDINAL bullets removed from the bodies of PERSON and PERSON , the report stated that the bullets in question had oxidised and , consequently , could no longer be used for comparative tests . It could not therefore be determined whether or not the CARDINAL bullets had been fired from the weapons belonging to the village guards .

In its report dated DATE ORG informed the court that it was possible from a medical perspective to remove the fragments of bullet found in PERSON body . At the following hearing the court decided not to carry out an operation on PERSON as a ballistic examination of these fragments would not yield any positive results . Furthermore it ordered the release of the village guards PERSON , GPE , PERSON , ORG , PERSON , PERSON , ORG , ORG and ORG pending trial .

In their statements given before the court on DATE all the accused denied the charges against them and requested to be acquitted .

DATE , during the CARDINAL hearings that were held before ORG , the court took the statements of witnesses by sending letters rogatory to the courts where they resided , since most of them had moved to different parts of GPE and in some cases their addresses were not known to the court .

DATE . On DATE a report describing PERSON medical history was submitted to the court . However as the report did not contain any remark concerning the bullet in his body , the court sent a letter rogatory to ORG re - formulating its request regarding the removal of the bullet .

In a petition dated DATE , the applicant PERSON informed ORG that he had already been told CARDINAL times at ORG that the bullet in his leg could not be removed . Mr Akan also stated that he did not have the financial means to travel to PERSON and have his leg operated on in a hospital there . On DATE the court sent a note to ORG requesting that an operation be carried out on PERSON in a hospital in GPE to remove the bullet in his leg , if this operation would not pose a threat to his health .

On DATE , after several attempts to track down PERSON who had moved without informing the authorities of his new address , he was found and was sent to ORG in GPE for examination . According to the medical report drafted on CARDINAL DATE , although there were some medical risks involved , it was possible to remove the bullet .

Following the ORG allegations concerning pressure and intimidation exerted by the security forces an investigation was initiated by the domestic authorities . On DATE PERSON gave the following statement to the public prosecutor :

“ PERSON and PERSON are my brothers . PERSON was killed in the incident that took place in DATE . PERSON has been living in GPE for DATE . He rarely comes to the village . The last time he came to the village was in DATE on the occasion of our mother ’s funereal . I have not seen him since then . Nobody has threatened me in connection with my brother ’s killing . On several occasions I have been taken into custody during the operations against the ORG because of my alleged involvement in the activities of the terrorist organisation . My relatives and I have not been threatened . The head of the NORP village guards , PERSON , has not threatened us . We are on perfectly reasonable terms . We stay at his house when we visit the village of GPE . ”

In a petition dated DATE , the applicant PERSON informed ORG that village guards , including PERSON , had threatened members of his family , in particular his brother PERSON and his wife PERSON .

On DATE the court sent an order to ORG to ask for PERSON permission to remove the bullet from his leg . On DATE , as ORG was unable to find PERSON , the court sent a letter to the ORG public prosecutor asking the whereabouts of PERSON . During the following CARDINAL hearings the court continued to try to ascertain the address of PERSON .

At the hearing of DATE the public prosecutor requested the conviction of the accused as charged . The lawyer of some of the accused requested additional time to submit his defence on the merits . In order not to delay the proceedings any longer , the court decided to annul the interim order to remove the bullet from PERSON leg . It decided to send letters rogatory to assize courts in different cities to obtain the final statements of the accused .

On DATE all the accused , except CARDINAL , presented their oral submissions on the indictment . They all alleged that the incident was a trap for the village guards which had been set by the ORG .

CARDINAL hearings were held before ORG . In these hearings the court sent several letters to public prosecutors in different regions to find out the addresses of the witnesses . All the applicants filed petitions with the court at different times requesting to intervene in the criminal proceedings . After the submission of all the birth registry records , the court established their relationship with the deceased and accepted their request to intervene . Furthermore the court examined the statements of various witnesses , accused and interveners which were given before different assize courts , on different dates .

On DATE the court decided to acquit the village guards . The court drew the following conclusions from the evidence :

“ The statements which the witnesses and the complainants made when interrogated by the public prosecutor were different from those they later made before the court . In particular , in his statement before the public prosecutor , PERSON stated that the accused had covered their faces when they stopped the convoy , whereas in his statement to the court he did not specify whether or not the attackers had covered their faces . PERSON did not mention in his statement to the public prosecutor that it had been PERSON and PERSON who had attacked them , whereas he stated before the court that it had been the village guards ORG and PERSON who had attacked them . PERSON also stated before the public prosecutor that he did not know who had attacked them because their faces had been covered . However , in his statement before the court he said that PERSON ’s face had been completely uncovered , but that ORG ’s face had been covered . The witnesses PERSON , PERSON and PERSON gave no description of the identity of the attackers in their previous statements . Furthermore , those witnesses did not state whether or not the faces of the attackers had been covered . However , in their statements before the court , they gave a detailed account of the events and identified ORG and PERSON as the village guards who had opened fire on them .

The village of PERSON was QUANTITY away from the village of ORG . It was highly probable that the inhabitants of the CARDINAL villages did not maintain close relations or contacts . It was therefore unlikely that the complainants could have identified the accused village guards as the attackers .

Even assuming that the accused village guards PERSON and ORG were among the group of people who had attacked the complainants , there was no reasonable explanation as to why some of the village guards had covered their faces and some had not .

In their statements the non - commissioned officers PERSON , PERSON and PERSON had said that they had kept guard together with the accused village guards from TIME on DATE to TIME on DATE . It appears from the non - commissioned ORG statements that the village guards returned to the gendarmerie command after they had completed their shift of duty . It further appears that the weapons belonging to the village guards had not been used during TIME when the incident had taken place . The non - commissioned officers confirmed that fact . Accordingly , it could not be concluded that the accused village guards had been involved in the killing of the villagers .

In the ballistic report by ORG dated DATE , it was stated that CARDINAL cartridges had been found at the scene of the crime , CARDINAL of which had been fired from weapons belonging to the accused village guards . However , that evidence in itself is not sufficient to convict the village guards . First , it is still not known from whose weapon the remaining cartridges were fired . Secondly , it could not be determined by the laboratory whether or not the bullets removed from the bodies of PERSON and PERSON were fired from weapons belonging to the village guards .

In their submissions the accused village guards stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime . In fact , on DATE the village guards and the security forces had opened fire in order to stop a march that was being carried out by members of the terrorist organisation . Furthermore , in a clash between the security forces and members of the illegal organisation on CARDINAL DATE the security forces , as well as the village guards , had opened fire on the ORG members . In a report dated CARDINAL DATE , it was stated that CARDINAL bullets had been fired and CARDINAL empty cartridges had been recovered from the scene of the crime . It therefore appears that CARDINAL empty cartridges were not found . It is highly probable that empty cartridges from the incident of DATE were placed at the scene of the crime before or after the villagers were killed by unknown persons . ”

On DATE the applicants lodged an appeal with ORG against the decision of ORG .

On DATE the public prosecutor at ORG submitted his opinion . He noted that the bullet in PERSON leg had not been removed . Moreover he noted that the court ’s decision to acquit the village guards was in contradiction with the findings in the ballistic report of DATE and the statements of CARDINAL witnesses who had recognized CARDINAL of the village guards and of ORG . The public prosecutor subsequently recommended the quashing of the decision of the first - instance court and the conviction of the CARDINAL accused village guards .

On DATE ORG upheld the decision of the first - instance court in respect of CARDINAL of the accused village guards . Moreover , in the light of the findings in the ballistics reports dated DATE and DATE and the statements of ORG , ORG quashed the decision of the first - instance court in respect of CARDINAL of the accused . In its detailed decision the court further held that to try to remove the bullet in PERSON leg would have been too risky for the patient as was pointed out in LOC medical report .

The criminal proceedings were reopened before ORG against CARDINAL of the accused village guards . At the hearing of DATE the court decided to send letters rogatory to assize courts in CARDINAL different cities to obtain the statements of the accused and the interveners .

On DATE ORG convicted the accused village guards as charged and sentenced them to life imprisonment . The summary of the court ’s decision is as follows :

“ In view of the autopsy reports , there is no question as to the cause of death of the CARDINAL villagers . Instead , the question to be resolved is whether those who fired on the villagers were the accused village guards .

It is not possible to rely solely on the witness statements as they are contradictory on several points . However the witness statements given during the preliminary investigation seem to be , in general , objective . Relying on these initial statements it is established that the persons who had fired had their faces covered in order not to be recognised . The court is not convinced by the statements in which certain witnesses claimed to have recognised ORG and PERSON . Even assuming that ORG and PERSON were among those who had fired , there is no reasonable explanation for the fact that they had not covered their faces when everybody else had done so .

Furthermore , in the court ’s opinion , what a commander would normally do when he had been notified of an incident would be to go to the scene of the incident as soon as possible . However in the present case , the fact that the non - commissioned officer PERSON checked all QUANTITY weapons CARDINAL by CARDINAL without taking any action is incomprehensible . Moreover the court notes that ORG maintained that the soldiers were not collecting the empty cartridges to help him and that he had personally to collect the empty cartridges which were near the dead bodies . In view of the above , the court concludes that PERSON , PERSON and PERSON were trying to defend the accused who were working with them to fight against terrorism and it does not therefore find their statements reliable .

The court notes that the bullets removed from the bodies of PERSON and PERSON , can no longer be used for comparative tests to determine from which of the weapons they had been fired as the bullets in question have oxidised . Furthermore it is not possible to remove the bullet from PERSON body due to medical complications .

Considering ORG statements where he said that there was a smell of gunpowder , the court comes to the conclusion that the allegation concerning the placing of empty cartridges at the scene of the incident , in order to implicate the village guards in the crime , is not corroborated in any persuasive manner by eyewitnesses or other evidence .

Moreover the fact that CARDINAL of the CARDINAL cartridges were not fired from the village guards’ weapons can not be taken as a proof of their innocence . It is possible that CARDINAL of the village guards had a weapon that had not been seized by the authorities after the incident .

In conclusion , relying on the findings of the ballistic report and the statements of ORG who had an impartial position in the present case , the court decides that CARDINAL of the accused village guards are responsible for the wounding and killing of the villagers whom they considered to be ORG supporters . ”

NORP This decision was appealed against ex officio pursuant to domestic law . However the village guards also filed an appeal against the decision of the first - instance court .

On DATE the public prosecutor at ORG submitted his opinion to the court , recommending that the decision of the first - instance court be quashed . He noted that despite the fact that the relevant domestic law required that the opinion of the accused on the decision of ORG should be sought , the court had failed to do so in the case of CARDINAL accused village guards .

On DATE ORG quashed the decision of the first instance court in respect of CARDINAL of the village guards and upheld it as regards CARDINAL of them .

The relevant domestic legislation and practice is outlined in the ORG ’s ORG v. GPE judgment ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALVII ( extracts ) ) .


The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in the town of GPE in LOC . ORG were represented by Mr P. Laptev , Representative of GPE at ORG .

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

The applicant lived in the town of GPE in GPE which had been affected by the GPE nuclear plant disaster . In DATE he decided to move to the village of ORG and sought a resettlement allowance . On DATE the Zlynkovskiy District Court of the Bryansk Region ordered the town council to pay the applicant MONEY ( RUR ) . On DATE ORG upheld the judgment . On an unspecified date the applicant submitted his writ of execution to ORG .

As the judgment of DATE remained without enforcement , the applicant brought a civil action for compensation for the depreciation of the award . On DATE the Zlynkovskiy ORG awarded the applicant ORG as compensation for the continued non - enforcement of the judgment in the period up to DATE . These monies were paid to the applicant on DATE .

In the meantime , on DATE the principal debt under the judgment of DATE was paid to the applicant .

On DATE the Zlynkovskiy ORG awarded a further compensation of ORG CARDINAL,CARDINAL . It appears that the applicant received it in DATE .


Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

ORG The applicant is a NORP citizen , who was born in DATE . In DATE he was involved in a traffic accident in which he suffered serious brain damage , and he subsequently showed a distinct tendency to become aggressive .

In DATE he was convicted of offences under Articles CARDINAL , CARDINAL and CARDINAL of GPE ( assault and inflicting bodily harm ) and sentenced to preventive detention ( sikring ) for a maximum period of DATE in accordance with LAW ) of LAW . In an expert psychiatric opinion obtained at that time , he was declared mentally ill ( sinnssyk ) and he spent the period from DATE to DATE in mental hospitals .

ORG From DATE to DATE the applicant was detained for a period of DATE at either ORG or ORG in accordance with the provisions of LAW ( lov om psykisk helsevern ) .

ORG In DATE the applicant was placed under " judicial observation " ( judisiell observasjon ) after having assaulted his father . The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity ( mangelfullt utviklede og varig svekkede sjelsevner ) and that there was a clear risk of his committing further criminal offences .

By a judgment of DATE ORG ( herredsrett ) of PERSON convicted the applicant of an offence under LAW . It sentenced him to DATE in prison and authorised the use of security measures under LAW ( a ) to ( f ) of LAW for a maximum period of DATE . The judgment pointed out that preventive detention in a prison under LAW ( f ) was likely to have an adverse influence on the applicant and should therefore only be imposed as an emergency measure . The court added that it expected that the competent authorities would take such measures as were necessary in order to avoid prolonged spells of imprisonment .

ORG Following that judgment , the police sought to have the applicant admitted to ORG , but this was refused by the hospital as it considered PERSON to be a brain - damaged psychopath for whom psychiatric treatment did not appear to hold out any prospects of improvement .

ORG On DATE the prosecuting authority decided to detain the applicant in accordance with LAW ) in a security ward at ORG Preventive Detention Institution ( " Ila " ) .

ORG On DATE the applicant requested to be released under protective supervision ( sikring i frihet ) . The Director of PERSON forwarded the application to ORG on DATE , expressing the opinion that although it would not be easy to find an appropriate solution to the applicant ’s problems , it did not seem proper to detain him in prison . On DATE ORG decided nevertheless that the applicant should remain at PERSON until further notice .

ORG On DATE the applicant ’s lawyer , referring to the court judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , applied to ORG for the applicant ’s release and his placement under protective supervision in accordance with LAW ( a ) to ( c ) . The application was supported by ORG and the applicant was released on DATE and put under preventive supervision . However , after DATE he was back at PERSON since he did not comply with the conditions imposed . A new leave - of - absence scheme was arranged . However , the applicant refused to return to PERSON when the leave had come to an end , and he was brought back to PERSON by the police on DATE .

ORG In a letter of CARDINAL DATE to ORG , the Director of PERSON recommended that the applicant should be released under protective supervision in accordance with LAW ( a ) to ( c ) . The Director pointed out that the applicant was obviously a psychiatric case and not suitable for detention in a prison and recommended that ORG should contact the health authorities in order to have the applicant placed in a suitable psychiatric institution .

ORG On DATE ORG decided , pursuant to LAW ( a ) to ( c ) , to release the applicant on the condition , inter alia , that he resided at his GPE home . Owing to a number of violent incidents , the applicant was however rearrested , and by a judgment of DATE the ORG of PERSON sentenced him to CARDINAL days’ imprisonment , which sentence was deemed to have been served in detention on remand .

ORG On DATE ORG decided to place the applicant in preventive detention once more at Ila in accordance with LAW ) . On DATE he was released to his GPE home under preventive supervision in accordance with LAW ( a ) to ( c ) .

ORG A number of unfortunate episodes led ORG to decide under LAW ( e ) to detain PERSON again . The applicant returned to PERSON on DATE .

ORG During his placement in the security ward at PERSON , PERSON prison staff on several occasions . The prison authorities sought to have him transferred to ORG . However , such a transfer was considered impossible as the applicant did not fulfil the conditions for admission under LAW .

By letter of DATE the Director of PERSON requested assistance from ORG to have the applicant placed in psychiatric health care . It appears that ORG concluded that no transfer to the psychiatric health system could be effected unless the situation developed and the applicant became psychotic within the meaning of LAW .

ORG On DATE ORG decided to apply LAW ( f ) of LAW , and on DATE the applicant was sent to FAC . On DATE he was transferred to ORG ( " GPE " ) .

ORG Whilst so detained , the applicant was convicted by ORG of Asker and PERSON on DATE and sentenced to CARDINAL months’ imprisonment for assaulting prison staff at PERSON and PERSON on CARDINAL occasions . The expert psychiatric opinion obtained for the trial concluded , as before , that PERSON was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity .

With regard to the question of security measures , the court pointed out that the information available showed that detention in a prison or similar institution was inappropriate and had a destructive influence on the applicant . The court found that he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment . It accordingly authorised the prosecuting authority to impose security measures under LAW except , however , detention in a security ward or in a prison under subsections ( e ) and ( f ) .

ORG Having served his sentence the applicant was released on CARDINAL DATE and placed in a flat at ORG under the surveillance of the local police . However , on DATE he was arrested and detained on remand , again charged with offences under ORG CARDINAL and CARDINAL of the Penal Code . A further expert psychiatric opinion was obtained but it reached the same conclusion as the CARDINAL earlier ones ( see paragraphs CARDINAL and CARDINAL above ) .

ORG By a judgment of CARDINAL DATE ORG of PERSON found the applicant guilty on most of the charges brought against him and sentenced him to CARDINAL days’ imprisonment . Furthermore , the court authorised the prosecuting authority to use any of the security measures mentioned in LAW for a maximum period of DATE . As to the conditions for having recourse to these measures , the court referred to the earlier decisions ( see paragraphs PERSON and CARDINAL above ) . However , it found that , having regard to the applicant ’s almost total lack of self - control in certain situations and to his physical strength , it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under LAW ( e ) and ( f ) , should this prove necessary . Apparently there was such a need , since the applicant remained at Ila .

ORG The applicant appealed to ORG ( PERSON ) against the decision as regards preventive detention . In a judgment of CARDINAL DATE Justice PERSON stated on behalf of the unanimous court :

I consider it beyond doubt that the scope of the security measures should be extended as set out in the judgment now appealed against . Like ORG I find that the requirements for imposing preventive detention are fulfilled . [ The applicant ] , who must be considered to have , as required by DATE [ of LAW ] , a deviant character , presents a serious danger regarding new offences , including threats - LAW . I may add that it can not be considered disproportionate to impose security measures on such a clearly dangerous offender . In my view , the protection of society requires that the authorities should be able to impose security measures considered necessary in order to prevent [ the applicant ] from committing further serious offences .

In view of the summing - up of counsel for the defence , I would point out that I find no basis for arguing that the decision of a NORP court concerning the authorisation to use security measures in a case like the present one would violate [ LAW . It is for the implementing authorities to ensure that the security measure takes a form which in practice not only protects the interests of society but also tries to promote those of [ the applicant ] , including his need for psychiatric treatment .

In the present case several persons have pointed out that [ the applicant ] mainly needs treatment and most of all psychiatric medical care . I agree with these views and I will add that I expect the prosecuting authorities , the prison authorities and the health authorities after consultations to continue to try to find an arrangement whereby preventive detention in a prison can be avoided . A proposal for treatment that was drawn up after a meeting held on DATE has been submitted to the ORG . It was not possible to implement this proposal as [ the applicant ] was opposed to it . The proposal entailed his returning to ORG , where a flat would be bought for [ him ] at ORG near a psychiatric hospital . The proposal also provided for treatment with drugs and for prompt transfer to preventive detention in the event of a breach of any important conditions , such as those attaching to his stays at PERSON , or failure to undergo the medical treatment .

The time factor and the serious consequences which continued placement in institutions run by the prison authorities may have for [ the applicant ] make it necessary that a suitable solution should be found as soon as possible which will take into account the legitimate interests of both [ the applicant ] and society . "

ORG On DATE Mr E. was transferred from PERSON to GPE pursuant to a decision of ORG under LAW ( f ) of LAW .

After this transfer , the applicant declared that he was prepared to accept the conditions laid down in the scheme mentioned in the above ORG judgment ( see paragraph CARDINAL ) . The authorities approached the hospital which they had in mind for supervising the scheme . The hospital replied however that it could not take over responsibility for the applicant until a department for difficult patients had been set up .

The authorities also sought to have the applicant admitted to ORG . However , under the general regulations applicable to that institution , only patients who were " seriously mentally ill " could be admitted . As the applicant was not considered to meet this requirement , the hospital asked ORG of ORG for a dispensation from these requirements . The ORG replied however on CARDINAL DATE that it was legally precluded from making such an exception . Nevertheless , the applicant spent DATE at the hospital in DATE . On DATE his case was examined by the hospital ’s ORG ( kontrollkommisjonen ) , which concluded that it had not been established that the applicant was psychotic or that the other requirements for his staying there were met , and he was accordingly sent back to GPE .

On DATE he was convicted by ORG of Asker and PERSON for having attacked a prison officer and was given a suspended sentence of CARDINAL days’ imprisonment . On DATE he was transferred from GPE to ORG near GPE in order to receive treatment from a psychologist for DATE . Certain examinations were carried out , but the applicant was sent back to PERSON after attacking CARDINAL of the nurses .

ORG On DATE Mr E. was sent to ORG , where it was established that he was now psychotic . As he thus met the requirements for compulsory placement , he was kept there until DATE on which date the hospital concluded that he was no longer psychotic .

ORG The applicant nevertheless stayed at the hospital on a voluntary basis , but after DATE he became aggressive towards other patients and staff . As he refused to be placed in the ward for difficult patients , he was sent back to GPE , still under the authorisation of ORG in accordance with LAW ( f ) of LAW .

ORG With effect from DATE the preventive measures were changed . Under LAW ) to ( c ) ORG decided that the applicant should be released from GPE , on condition that he lived in a house at GPE under the supervision of the Probation and After - care Service ( kriminalomsorg i frihet ) .

ORG On DATE the applicant assaulted the social workers supervising him and ORG decided on DATE to replace preventive supervision under LAW ( a ) to ( c ) by detention in a secure institution , at least for a short time , in accordance with LAW ( f ) . The applicant was transferred to LOC .

ORG On DATE the applicant instituted proceedings against ORG in ORG , claiming that the decision of DATE was invalid . While the case was pending , the ORG decided on CARDINAL DATE that the applicant should again be placed under preventive supervision pursuant to LAW ( a ) to ( c ) . He was consequently released on DATE from ORG and moved to the house at GPE . On DATE he dropped the proceedings he had brought , as he was no longer detained .

ORG Following several violent incidents ORG decided on DATE , in accordance with a recommendation from the Probation and After - care Service , that preventive supervision at ORG should cease and that the applicant was to be transferred to PERSON under LAW ( e ) .

PERSON , who at that time was detained on remand charged with several criminal offences , instituted proceedings against ORG in ORG on DATE - during the court vacation . In his application for judicial review he requested a speedy procedure . He alleged several violations of LAW on the part of ORG : it had not specified the facts on which its decision to detain him again was based ; it had refused him access to relevant documents in the case file ; and it had never taken a formal decision , thereby preventing appeal . He also contended that detaining him again was an unreasonably harsh response to his behaviour , especially as the measure was not subject to any time - limit . Finally , he also submitted that ORG had circumvented the safeguards in LAW by using preventive measures instead of having recourse to ordinary criminal procedure .

The case was initially assigned to CARDINAL judge but on DATE was transferred to another . After this judge had returned DATE on DATE , he started to arrange for hearings but apparently encountered difficulties in contacting the applicant ’s lawyer , and he did not succeed in this until DATE . On DATE the summons was served on the Ministry , whose observations in reply were received almost immediately afterwards . The hearing was fixed for DATE acceptable to all concerned , DATE . At the hearing the applicant and CARDINAL witnesses gave evidence .

In its judgment of DATE , dismissing the application , the court stated , inter alia :

" The case concerns the validity of ORG decision to change the security measures imposed on the applicant from preventive supervision to preventive detention in a security ward .

LAW

The court [ observes ] that security measures under LAW can not be imposed except by order of a court . Where a judgment , as in [ the applicant ’s ] case , authorises security measures under LAW ( a ) to ( f ) for a maximum period of DATE , this means that the court has decided that [ the applicant ] may be subjected to different security measures , including placement in a closed ward , for a period which can not , however , exceed the time - limit fixed . The court ’s decision defines the scope of the security measures which can be imposed on the [ person ] according to the rules set out in DATE .

The legal provision which empowers the ORG to change the security measures is to be found in LAW , sub - paragraph CARDINAL . See also LAW , whereby ‘ these measures shall be discontinued when they are no longer regarded as necessary , but may be resumed if there is reason to do so’ .

The ORG does not find that these provisions contravene LAW , whereby ‘ no one may be punished except by judgment of a ORG . The ORG ’s decision under LAW concerning renewed placement in a security ward was based on the decision in the judgment which authorised the use of security measures .

Procedural errors

[ The applicant ] was clearly informed in advance that the ORG was planning to consider and decide the question of a change of security measures when he was detained on remand in this connection . This appears from ORG transcripts of DATE . ...

The witness statements have confirmed that [ the applicant ] was informed of the change of security measures . The ORG finds that the matter has been dealt with properly , having regard to LAW [ forvaltningsloven , LAW DATE ; see paragraph CARDINAL below ] . Neither can it be established that the ORG has failed to consider the provisions of LAW ... . In any event , the ORG finds that even if [ the applicant ] had felt a need of further information , LAW applies . ...

Fairness of the decision

The decision includes no time - limit , but this does not mean that [ the applicant ] must expect a placement in the security ward to continue for the remainder of the security period . On the contrary , the ORG has been told that a new preventive supervision programme is being considered and that it is intended that a decision should be made to change the security measures to such supervision before DATE .

Article CARDINAL of LAW does not require a special time - limit to be included in the decision to change the security measures . The law requires only a time - limit for the maximum period . The question of time in connection with a change will depend on how long it takes to organise a new preventive supervision programme . ... The Court does not find that the lack of any time - limit in the decision is a ground for considering it unfair . Nor is it correct to consider the decision unfair because the accusations made against [ the applicant ] might lead to charges being filed against him . A punishable offence may justify a change to a more severe security measure , but this decision is then based on the aims of the security measures and is not considered as a punishment . If the instant case is pursued and [ the applicant ] convicted , the question whether it is fair to use both placement for a time in a security ward and punishment will have to be considered when sentence is passed . In such circumstances it will be of importance that [ the applicant ] has had to undergo the change of security measures . This can be compared with the opposite situation referred to in LAW . "

PERSON did not appeal against the judgment and remained in custody at PERSON .

ORG On DATE ORG decided that the applicant should be released and placed under preventive supervision pursuant to LAW ( a ) to ( c ) of LAW and he was brought back to the house at GPE . However , as on several occasions he violated the restrictions imposed on him the ORG decided , on DATE , to detain him at PERSON again in accordance with LAW ) . The applicant does not appear to have challenged this decision .

ORG On DATE the applicant was convicted by ORG of PERSON of offences under LAW in conjunction with LAW ( threats and assault ) . He was sentenced to CARDINAL days’ imprisonment , which sentence was deemed to have been served in detention on remand , and he continued to be detained at Ila under LAW ( e ) . On DATE the prosecuting authorities in ORG and Telemark applied to ORG for a DATE extension of ORG authorisation to implement security measures from DATE ( see paragraph CARDINAL above ) , as this was due to expire on DATE . On an application by the police , ORG decided on DATE that Mr E. should be detained until DATE , pursuant to LAW . The applicant appealed against this decision to ORG ( lagmannsret ) claiming that this detention was unlawful , inter alia , because there was no legal basis for renewing the authorisation to impose security measures as he was not accused of having committed any new offences of the kind described in DATE of LAW . As to this the Court of Appeal observed :

" There is no doubt that it has until now been accepted in NORP law that it is possible to prolong the period for which security measures can be imposed , even if the person concerned has not committed any new offence ... The provision of the law that the court shall set a time - limit on the duration of security measures is based , inter alia , on a concern for the convicted person , namely that after a certain time he should obtain a new judicial assessment of whether security measures are still necessary . If this possibility of having a further review by a court did not exist , the alternative would be to allow an authorisation period sufficiently long for the court to feel reasonably certain that there would be no further need to impose security measures after it expired . Under the present system the courts do not have to determine the period on the basis of such considerations and need only specify , initially , a period which in general will probably be shorter than would have been the case if there had been no possibility of having a further review . "

ORG A further appeal by PERSON to ORG was rejected on DATE . On DATE , however , the prosecuting authorities withdrew their application , and on the following day the applicant was set free .

ORG Article CARDINAL of the Penal Code provides :

" CARDINAL . If an otherwise punishable act is committed ... by someone with an underdeveloped or permanently impaired mental capacity and there is a danger that the offender , because of his condition , will repeat such an act , the court may authorise the prosecuting authority , as a security measure , to

( a ) assign or forbid him a particular place of residence ;

( b ) place him under supervision by the police or a specially appointed probation officer and order him to report to the police or the probation officer at specified intervals ;

( c ) forbid him to consume alcoholic beverages ;

( d ) place him in secure private care ;

( e ) place him , whenever this is possible , in a mental hospital , sanatorium , nursing home or security ward , in accordance with the general provisions promulgated by the King ;

( f ) keep him in detention in prison .

These measures shall be discontinued when they are no longer regarded as necessary , but may be resumed if there is reason to do so . The security measures listed under ( a ) to ( d ) may be employed concurrently .

The court shall determine the maximum period for which security measures may be imposed without its further consent .

If the court has not decided otherwise , the prosecution may choose between the above - mentioned security measures .

The decision to discontinue , resume or change a security measure shall be made by ORG .

Before a decision about security measures or their discontinuance is made , the opinion of a medical specialist shall normally be obtained . The same procedure shall be followed at regular intervals during the period for which security measures are in force .

If the act has led to the imposition of a punishment , the ORG may decide that the punishment shall be remitted , in whole or in part , if security measures are imposed under paragraph CARDINAL above .

ORG A decision by a court to impose security measures is subject to the general provisions of LAW ( straffeprosessloven ) and may be appealed against up to ORG .

ORG Rules concerning changes of security measures are found in LAW of DATE , which reads as follows :

" Not DATE after security measures have been initiated , and subsequently at intervals of not DATE , the security measures in question shall be submitted to ORG with a statement as to whether their form should remain unchanged or whether they should be replaced by other measures , or whether they should be discontinued . If special reasons so dictate , the matter may be submitted before the specified time - limit has been reached .

The matter shall be submitted by the prosecuting authority or , where the person sentenced to security measures is serving a prison sentence or is subject to security measures in an institution in the prison system , by the director of the institution concerned .

The report of the prosecuting authority shall contain information on the situation of the person sentenced to security measures , and a statement from the probation officer , the Probation and After - care Service , the custodian , or from the hospital or any other institution in which the person sentenced to security measures has been placed .

The report shall be prepared by the chief of police who has been in charge of investigating the case , and sent by him to the public prosecutor ( statsadvokaten ) , who will forward it to ORG . "

ORG The ORG will also consider the question of discontinuing or changing the measures upon application by the person concerned . In practice , the appropriateness of preventive detention in a particular case is often reviewed several times a year .

ORG The Ministry ’s ( and also , where relevant , the prosecuting authority ’s ) decisions are governed by LAW ; this means , inter alia , that the ORG has to give the grounds for any change of security measures and that its decision may be appealed to ORG . However , the person concerned may also , both before and after exhausting administrative remedies , bring the decision directly before the ordinary courts of justice , which will review its lawfulness exercising the jurisdiction they derive from the unwritten constitutional principle of judicial supremacy , which was established in DATE .

ORG LAW of LAW ( tvistemålsloven , PERSON no . CARDINAL of CARDINAL DATE ) contains special , detailed provisions on judicial review of administrative decisions concerning deprivation of liberty and other coercive measures . However , they only apply when the relevant statutes expressly so provide , for example in the case of detention under LAW . They do not apply when the person concerned is placed , as PERSON mostly was , elsewhere than in psychiatric hospitals , for instance in a security ward or a prison under LAW ( e ) or ( f ) of LAW .

ORG Proceedings for judicial review under LAW follow the provisions of LAW of LAW . In such proceedings the validity both of general regulations and of decisions in individual cases may be challenged .

ORG The courts ensure that the administrative authorities have acted within the legal framework by which they are bound .

They ascertain whether the impugned decision or regulation was made by the competent authority and in accordance with procedural requirements , including those contained in LAW .

They always have unlimited power to review the facts on which the decision is based . Thus , in cases where the mental capacity of the person concerned is relevant , psychiatric experts may assist the courts as expert witnesses under LAW of LAW .

Nor are there any restrictions on the courts’ competence to review the authorities’ application of the relevant legal provisions ( rettsanvendelsesskønn ) , even where these provisions seem to leave some discretion to the authorities , for instance by referring to such standards as " unreasonable " , " unacceptable " or " good business practice " . However , as regards purely discretionary administrative decisions , namely decisions or steps in a specific decision - making process which are left unregulated by the relevant law ( fritt skønn or hensiktsmessighetsskønn ) , the courts will usually limit their examination to determining whether or not there has been a misuse of power or whether the decision is manifestly unreasonable .

ORG When exercising their control over the public authorities , the NORP courts will also as far as possible interpret domestic law in such a way as to conform with treaties binding on GPE , such as the LAW , even if these have not been formally incorporated into the NORP legal system ( " the principle of presumption " ) .

ORG has thus on a number of occasions examined the conformity of its interpretation of domestic law with GPE ’s obligations under international human - rights instruments and in particular under the Convention as interpreted by ORG : judgment of DATE , PERSON ( " NRt " ) DATE , p. CARDINAL ; judgment of CARDINAL DATE , NRt DATE , p. CARDINAL , containing a reference to the ORG ’s decision declaring application no . CARDINAL , Iversen v. GPE , inadmissible ; judgment of DATE , NRt DATE , p. CARDINAL ; judgment of CARDINAL DATE , NRt DATE , p. CARDINAL ; judgment of DATE , NRt DATE , p. CARDINAL , containing references to ORG judgments in the PERSON case ( DATE , Series A no . CARDINAL ) and in the case of PERSON v. GPE ( DATE , Series A no . DATE ) ; judgment of CARDINAL DATE , NRt DATE , p. CARDINAL , with reference to the ORG ’s judgment in the case of PERSON and Others ( DATE , Series A no . CARDINAL ) ; the judgment of DATE previously cited ( see paragraph CARDINAL above ) ; judgment of DATE ( in case L.nr . CARDINAL ) , with reference to the ORG ’s judgment in the FAC case ( DATE , Series A no . CARDINAL ) .

However , there has been no case in which ORG has been confronted with a clear conflict between the LAW and domestic legislation .

The Convention ’s status as a relevant source of law was endorsed by the plenary court in the above - mentioned judgment of CARDINAL DATE , which concerned , inter alia , the consequences of water - regulation works on LOC . ORG stated on behalf of the unanimous court :

" What I said about the limits of judicial review needs to be qualified . In the present case it has been argued that the PERSON people are protected against such interferences with their interests as follow from the regulation of the LOC river by virtue of rules of international law which are binding upon GPE . The rules concerning the courts’ power to review the validity of administrative acts do not prevent the ORG from fully and comprehensively considering whether the expansion works violate rules of international law [ the ORG and LAW ] . "

The " principle of presumption " was given particularly clear expression in the above - mentioned judgment of DATE , which dealt with the question of what judicial review should be available where a person already sentenced to security measures is committed to a mental hospital pursuant to LAW ) . The court first observed that neither the wording of the relevant Act nor its drafting history gave any direct indication as to how the problem before the court should be resolved . The judgment went on :

" The decision to be taken must accordingly take into account all relevant circumstances , in particular the consideration that domestic law must be interpreted , as far as possible , in accordance with those treaties under international law which GPE has ratified , in this instance the [ Convention ] . "

After a comprehensive survey of the relevant case - law of ORG , ORG concluded that its interpretation of NORP law on the point at issue conformed with the requirements of LAW ( LAW ) .

The relevance of the principle when examining the scope of judicial review required in respect of detention decisions under LAW was also recently mentioned in a concurring opinion in ORG ( judgment of DATE , NRt DATE , p. CARDINAL ) . CARDINAL of its members , Justice PERSON , found it necessary to disapprove a statement made in a dissenting opinion in ORG to the effect that no judicial review would have been possible of the prosecuting authorities’ decisions regarding security measures under LAW :

" In reply ( ... ) it should be pointed out that ORG has decided [ in the above - mentioned case of DATE ] , amongst other things on the basis of LAW ( LAW ) of LAW ] , as interpreted by ORG , that a person subject to security measures and also detained in a mental hospital has the right to obtain a decision at reasonable intervals as to whether continued detention is lawful . I maintain that this right to judicial review which is enshrined in LAW ( LAW ) and which ORG has established for CARDINAL category of persons subject to security measures , must be applied by the courts also in relation to other persons subject to such measures who are deprived of their liberty in other institutions . "

ORG Where the impugned administrative decision has been concerned only with the application of clear legal provisions , the courts may order the authorities to act in the manner prescribed by the law . In cases concerned with purely discretionary decisions , however , the courts will consider themselves to have this power only if special circumstances obtain ; otherwise they will decide only whether the decision is valid or not .

ORG According to LAW of the PERSON relating to the enforcement of civil claims ( tvangsfullbyrdelsesloven , PERSON no . CARDINAL of CARDINAL DATE ) , the court carrying out judicial review , whether at first instance or on appeal , may order interim measures ( midlertidig forføyning ) , such as a stay of execution of a decision .

Furthermore , Article CARDINAL of LAW empowers the court to decide , on application , that its judgment shall be enforced before it becomes final " if special circumstances so require " .

ORG Applications for judicial review of administrative decisions are frequent . In DATE , CARDINAL such applications were made to the courts . For DATE and DATE , the figures were CARDINAL and CARDINAL , respectively . They account for CARDINAL of all the civil cases heard by ORG . However , there have been no cases in which NORP courts have overruled administrative decisions taken under section CARDINAL of LAW .


The applicant is an NORP national , born in DATE and living in GPE .

He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

A.

The applicant is the father of CARDINAL daughters , born in wedlock in DATE and DATE , respectively .

On DATE the Linz - Land District Court ( Bezirksgericht ) granted the petition of the applicant and his wife for divorce by consent . In the settlement regulating the legal consequences of the divorce , the applicant and his wife agreed that the latter would exercise sole custody over their daughters . They further agreed to settle the applicant 's right of access out of court . The settlement was subject to approval in separate custody proceedings .

In these subsequent custody proceedings the applicant requested that sole custody for both children be awarded to him .

On DATE the Linz - ORG refused to approve the above settlement as regards the question of custody . It awarded sole custody over the elder daughter , PERSON , to the applicant , while sole custody over the younger daughter , PERSON , was awarded to his divorced wife .

The ORG noted that DATE PERSON already lived with the applicant , while DATE PERSON continued to live with her mother . As there had not been compliance with the above settlement , the court was called upon to decide under section CARDINAL § CARDINAL of LAW ( ORG ) for each child which parent should have sole custody . In accordance with section CARDINAL § CARDINAL the solution depended exclusively on the well - being of the child . Referring to the written and oral submissions of the parties and to the expert opinion of a child psychiatrist , the court found that PERSON was well cared for by her father . There were no reasons not to respect her choice , all the more so as her mother had accepted the situation . However , there were no weighty reasons to transfer custody of DATE PERSON to the applicant . Finally , the expert had found that the separation of the children which followed from the above solution was not detrimental . Given their difference in age , the court did not see any objections either . The applicant did not appeal against this decision .

B. Relevant domestic law and practice

Award of custody over children upon divorce or separation

Section CARDINAL of the Civil Code provides as follows :

“ ( CARDINAL ) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void , or that the parents have lived separately for more than a limited period , they may submit an agreement to the court stating which CARDINAL of them will exercise sole custody over the child in the future . The court has to approve the agreement if it corresponds to the interests of the child 's well - being .

( CARDINAL ) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child 's well - being , the court has to decide which parent should have the right to sole custody in the future . In case the parents have lived separately for more than a limited period the court only decides upon the request of CARDINAL of them .

( CARDINAL ) Section CARDINAL applies accordingly . ”

Section CARDINAL of the Civil Code provides , for children born out of wedlock , that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child 's well - being .

In a judgment of DATE , ORG ruled on the constitutionality of section CARDINAL of LAW . It noted ORG constant case - law according to which section CARDINAL excluded an award of joint custody to both parents in case of divorce , except in the rare case when they continued to live together with the child in a common household . As to LAW , it found that the award of sole custody after divorce to CARDINAL parent was an interference with the other parent 's right to respect for his or her family life , which was justified under the second paragraph of this Article . Given the legislator 's margin of appreciation it was to be considered necessary for the protection of the rights of others . In particular , it was proportionate , as the parent not having custody retained a number of rights , such as the right of access and the right to be informed and heard as regards certain important matters . Moreover , the law did not prevent parents , who wished to share their parental rights after divorce , from doing so in practice . As to LAW , ORG found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only . It did not generally demand that joint custody be awarded to parents after divorce .

Rights of the parent not having custody

According to section CARDINAL of the Civil Code the parent not having custody has a right of access .

Moreover , according to section CARDINAL of LAW , the parent not having custody has the right to be informed by the other parent about certain measures listed in section QUANTITY and CARDINAL ( which in cases of joint custody require the agreement of both parents ) and has the right to be heard within a reasonable time . The submissions of the non - custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child 's well - being . The measures at issue include the change of the child 's first or family name , the entry into or secession from a church or other religious group , the child 's placement into care , the acquisition or renunciation of a particular nationality , the early termination of an apprenticeship or employment contract , the recognition of paternity of a child born out of wedlock , as well as certain important provisions concerning the child 's property .