Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lived , prior to his arrest , in GPE , GPE .

At TIME on DATE the applicant was arrested on suspicion of manslaughter . According to the applicant , a certain investigator , PERSON , and officers from the police department of LOC of GPE beat him severely in order to obtain a confession . PERSON hit the applicant in the jaw whereupon he fell down onto the floor . A police officer then hit him on the head with an object which appeared to be a mobile phone . Other officers kicked him many times . A plastic bag was placed over his head and the applicant then lost consciousness . After an ambulance had been summoned by the police officers and medical help had arrived , the beatings ceased .

On DATE the applicant ’s lawyer submitted a request for the applicant to be examined by a forensic medical expert . The examination took place on DATE . According to the Government , it was conducted some time after TIME The expert established that the applicant had a bruise on his left jaw , caused by the impact of a hard blunt object DATE beforehand . The expert also noted that the applicant complained of pain in the parietal region of his head as well as sickness and dizziness . In the expert ’s opinion , the applicant did not sustain any serious physical damage .

On DATE the applicant was transferred to remand prison no . ORG CARDINAL in GPE . Upon arrival , he was examined by a doctor , who recorded in the registration log that the applicant had no visible injuries .

On DATE the applicant filed a complaint about ill - treatment with the district prosecutor ’s office .

On DATE the deputy district prosecutor PERSON . dismissed the applicant ’s complaint . In his decision , he stated as follows :

“ In response to the complaint , [ the prosecutor ’s office ] ... studied the materials from the criminal case file [ against the applicant ] .

It has been established that ... the investigation in respect of [ the applicant ] has been in compliance with the rules of criminal procedure and that the [ applicant ’s ] allegations of ill - treatment have not been confirmed . This finding is based , inter alia , on the results of the forensic medical examination undergone by [ the applicant ] . ”

On DATE the applicant filed another complaint with the district prosecutor ’s office about the beatings he had allegedly received in police custody . On DATE the investigator K.- who was also in charge of the criminal investigation against the applicant - dismissed his allegations as unsubstantiated based on the statements made by CARDINAL policemen . On DATE the deputy district prosecutor dismissed the applicant ’s complaint once again .

On DATE the deputy district prosecutor upheld the decision of CARDINAL DATE on appeal .

On DATE the acting district prosecutor set aside the decision of CARDINAL DATE noting that the inquiry into the applicant ’s allegations of ill - treatment had been incomplete . In particular , the investigator had failed to question the applicant and the alleged perpetrators of the ill - treatment and to identify and question other possible witnesses .

At DATE the Oktyabrskiy district prosecutor questioned the applicant , who gave a description of the police officer who had allegedly hit him with “ an object looking like a mobile phone ” . The prosecutor then questioned police officer PERSON who denied beating the applicant and further claimed that none of the police officers of the LOC police station matched the description given by the applicant . He did not remember whether the applicant had sustained any visible injuries immediately after the arrest . The prosecutor also questioned the head of the temporary detention centre where the applicant had been held on CARDINAL and DATE and the doctor who had admitted the applicant to the remand prison on DATE . They both stated that the applicant had not had any visible injuries and that there were no complaints of illtreatment by him recorded in the registration logs of their respective detention facilities .

On DATE investigator PERSON refused to open criminal proceedings , finding that there was no evidence of ill - treatment . On DATE the district prosecutor set that decision aside and ordered an additional inquiry .

On DATE the investigator T. again refused to open a criminal investigation into the applicant ’s allegations . In order to obtain further evidence , the investigator questioned the applicant ’s neighbours who had seen him prior to the arrest on DATE . S. confirmed that the applicant had had no visible injuries on DATE . D. did not remember if the applicant had evidence of any injuries prior to the arrest . PERSON . submitted that the applicant ’s girlfriend had asked her specifically to say , if questioned , that the applicant had no injuries .

On DATE ORG found the decision of DATE to be unlawful . The court considered that the prosecutor ’s office had not established when , where and under what circumstances the applicant had received the injury noted by the forensic expert on DATE . On DATE the district prosecutor quashed the decision of CARDINAL DATE and ordered a further inquiry .

On DATE the investigator PERSON issued a fourth decision refusing to initiate criminal proceedings . He reiterated the findings of the previous inquiries , concluding , in particular , as follows :

“ ... the evidence collected disproves the [ applicant ’s ] allegations that the investigator PERSON and [ the police officers ] put any physical or psychological pressure on [ him ] . It follows that [ the investigator and the police officers ] acted in compliance with the law , they did not abuse their authority and did not infringe the [ applicant ’s ] rights and interests . These conclusions are confirmed by the evidence collected and numerous witness statements . There is no sufficient ground to believe that the injuries [ the applicant ] had when examined on CARDINAL DATE were sustained by him after he was taken into custody . Furthermore , there is sufficient information ... showing that no physical or psychological pressure was put on [ the applicant ] by the investigator PERSON and [ the police officers ] . ”

On DATE the deputy district prosecutor set the decision of DATE aside finding that the investigator had failed to comply with the decision of DATE . In particular , he had not established when , where and under what circumstances the applicant had sustained the injuries .

On DATE the investigator PERSON issued a fifth decision refusing to initiate criminal proceedings , finding that the existing evidence refuted the applicant ’s allegations of ill - treatment .

On DATE ORG partly upheld a complaint by the applicant and found the decision of DATE unlawful and unsubstantiated . The court noted that the investigator had failed to conduct a further inquiry and to clarify the circumstances of the matter . On DATE the head of the town ( GPE ) investigating committee quashed the decision of DATE and ordered a further inquiry .

On DATE the investigator ORG issued a sixth decision refusing to open criminal proceedings . As regards the applicant ’s injuries , the investigator stated as follows :

“ The fact that the applicant had certain injuries detected in the course of the examination conducted on DATE does not signify that they were inflicted by [ the policemen or the investigator ] . There is no causal link and it is not required to establish when , where and how the applicant had sustained them . ”

On DATE ORG found the investigator ’s decision of CARDINAL DATE not to open criminal proceedings unlawful as he had failed to discover the reasons for the applicant ’s injuries . On DATE the deputy head of the investigating committee attached to the regional prosecutor ’s office quashed the decision of CARDINAL DATE and referred the matter back for a further inquiry .

On DATE a senior investigator , PERSON , issued a seventh decision refusing to open criminal proceedings . The investigator reiterated practically verbatim the reasoning set out in the previous decision .

On DATE ORG found the decision of DATE unlawful on the grounds that the investigator had not provided a plausible and convincing explanation of how the applicant ’s injury had been caused . On CARDINAL DATE ORG upheld the decision of DATE on appeal .

On DATE the deputy head of the investigating committee attached to the regional prosecutor ’s office quashed the decision of DATE and ordered a further inquiry .

Subsequently , the investigators attached to the regional prosecutor ’s office refused to open a criminal investigation into the applicant ’s allegations on CARDINAL further occasions . The relevant decisions , providing identical reasoning to that underlying the earlier decisions , were taken on DATE , CARDINAL June , DATE and DATE and DATE . All these decisions were subsequently quashed by the ORG superiors on CARDINAL and DATE , DATE and DATE on account of their failure to clarify

On DATE the investigator PERSON issued the thirteenth decision refusing to open a criminal investigation . Although he found no evidence supporting the applicant ’s allegations of ill - treatment in police custody he allowed that the applicant ’s injuries could have been caused by his having been beaten and that a criminal investigation should be opened on charges of battery but this was not within the jurisdiction of his office . The materials were transmitted to a district police unit . The applicant ’s complaint against the decision of DATE was subsequently dismissed by LOC on DATE and DATE respectively .

On DATE the police investigator refused again to open a criminal investigation because the statutory time - limit for criminal liability on the charge of battery had expired . On DATE ORG dismissed a complaint by the applicant against that decision .

On an unspecified date the applicant was committed for trial on a charge of manslaughter before ORG of GPE .

The applicant complained to the trial court about his ill - treatment . On DATE ORG ordered an inquiry . On DATE the Oktyabrskiy district prosecutor found that there was no evidence of ill - treatment and refused to open criminal proceedings .

On DATE ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . On DATE ORG upheld the judgment on appeal .

On DATE the applicant sued the GPE Town police department , the GPE regional prosecutor ’s office and ORG of GPE for compensation . He claimed MONEY ( RUB ) in respect of non - pecuniary damage sustained as a result of his ill - treatment , unlawful arrest and conviction .

On DATE ORG of PERSON dismissed his claim . It referred , in particular , to the results of the prosecutor ’s inquiry into the applicant ’s allegations of ill - treatment ; the investigator PERSON ’s decision of CARDINAL DATE refusing to open criminal proceedings against the police officers ; and the applicant ’s conviction . It also observed that the applicant ’s complaint that the police officers had beaten him to obtain a confession was unconvincing , given that he had never confessed to the crime . There was no evidence that the bruise on the applicant ’s face had been the result of illtreatment by the police officers .

On DATE the ORG quashed the decision and remitted the matter to ORG for fresh consideration .

On DATE ORG granted the applicant ’s claims in part . The court dismissed the applicant ’s allegations of torture as unsupported by any evidence . At the same time , the court noted that the applicant had been taken into custody in good health and that he had received an injury while in detention . The respondent parties failed to provide any explanation as to how that injury had been caused . The court found that the applicant had been subjected to degrading treatment in police custody on DATE and awarded him RUB CARDINAL .

On DATE ORG upheld the judgment of CARDINAL DATE on appeal .


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE and lives in PERSON ( GPE ) .

On DATE a police investigator in PERSON ( GPE ) apprehended the applicant on the ground that he had been accused , together with another person , of trafficking in women . Subsequently the following relevant facts occurred and decisions were taken .

On DATE the Banská Bystrica District Court remanded the applicant in custody with effect from DATE . The decision stated that the applicant had brought CARDINAL women from GPE to GPE and that he had forced CARDINAL of them to carry out prostitution under the threat of shooting her . The judge considered the detention necessary with a view to preventing the accused from absconding and from committing further offences within the meaning of Article CARDINAL ) and ( c ) of LAW . On DATE the applicant challenged this decision through his lawyer .

On DATE the Banská Bystrica Regional Court quashed ORG decision of DATE on the ground that the reasons for it were not sufficient . ORG noted that the applicant was a foreign national without a permanent address in GPE . It therefore considered his detention necessary , within the meaning of Article CARDINAL(CARDINAL)(a ) of LAW , and remanded him in custody as from DATE .

On DATE a judge of ORG extended the applicant ’s detention on remand until DATE on the ground that the public prosecutor had decided to re - examine a witness who was staying abroad . The court considered that there was a risk of the applicant ’s absconding in case of his release .

On DATE the Banská Bystrica District Court extended , at the public prosecutor ’s request , the applicant ’s detention on remand until DATE . The decision stated that a witness staying abroad could not be re - examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons . The court considered the applicant ’s detention necessary within the meaning of Article CARDINAL ) of LAW . Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in GPE .

On DATE the Banská Bystrica District Court extended the applicant ’s detention on remand until DATE . The decision stated that the lawyer appointed to represent the applicant on DATE needed more time to study the case file . Furthermore , the lawyer was ill and because of her absence the applicant had refused , on DATE , to acquaint himself with the outcome of the investigation .

On DATE the applicant lodged a constitutional petition . He alleged , inter alia , that he was discriminated against as ORG had refused to release him , referring to his nationality and to the fact that he had no permanent residence in GPE .

On DATE ORG refused to grant a further extension of the applicant ’s detention on remand . It found that the requirements laid down in Article PERSON ) of LAW were not met . In particular , ORG noted that the case was not complex and that the period of DATE during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken . Furthermore , the first instance court had scheduled the main hearing for DATE , that is DATE after the case had been submitted to it on DATE . ORG found no relevant reasons for such delays . The decision stated that the applicant ’s CARDINAL stays in hospital had not been of long duration and that they had not prevented the main hearing from being held . ORG decision was transmitted to ORG on DATE .

On DATE ORG ordered the prison administration to release the applicant . The applicant was released on DATE .

On DATE ORG declared manifestly illfounded the applicant ’s petition of DATE . The decision stated , with reference to the criminal file , that the applicant ’s detention had been necessary within the meaning of Article CARDINAL ) of LAW as there had existed a risk that he would abscond in case of his release .

On DATE the applicant lodged an application for release . It was dismissed by ORG on DATE on the ground that his detention was still necessary within the meaning of LAW ) of LAW . The applicant filed a complaint . He argued that the fact that he was a foreign national did not justify the fear that he might abscond .

The Banská Bystrica Regional Court dismissed the complaint on CARDINAL DATE . The decision stated that the fear that the applicant might abscond in case of his release was justified . TIME , a copy of which the applicant received from ORG in PERSON on DATE , indicate that ORG examined the applicant ’s complaint in camera in the presence of GPE , a public prosecutor . According to those minutes , the public prosecutor “ proposed to dismiss the applicant ’s complaint ” . At a later stage of the proceedings PERSON presided over ORG chamber which delivered the judgment of DATE ( see below ) .

The applicant submitted to the ORG another copy of TIME , included in the criminal file , in which the name of another person is handwritten as the public prosecutor who had attended the deliberations .

On DATE the applicant lodged another application for release . He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated . The applicant further complained that he was discriminated against on the ground of his nationality .

The Banská Bystrica District Court dismissed the request on DATE . The applicant filed a complaint which was dismissed by ORG on DATE . The courts considered it probable that the applicant , a foreign national , would leave GPE in case of his release .

On DATE the applicant requested the public prosecutor to release him . In a letter of DATE the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to ORG together with the indictment . ORG did not decide on the applicant ’s request .

On DATE the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women . On CARDINAL DATE ORG dismissed the applicant ’s complaint against the investigator ’s decision .

On DATE the police investigator dismissed the applicant ’s request for further witnesses to be heard with a view to establishing , in particular , the relevant facts relating to the stay of the CARDINAL NORP women in GPE . On DATE the Banská Bystrica Regional Prosecutor dismissed the applicant ’s complaint against this decision . Both authorities considered that the taking of further evidence was superfluous .

On DATE the applicant withdrew the authority of the lawyer who had represented him until then . At the same time he requested the court to appoint a lawyer ex officio . On DATE the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio .

On DATE and on DATE the applicant learned of the outcome of the investigation . On DATE he requested that further evidence be included in the case file . The police investigator dismissed the request on DATE .

On DATE the applicant requested that the authority of the lawyer appointed on DATE be withdrawn . He further asked for a time - limit to be set during which he could appoint a lawyer of his own choice . The applicant received no reply .

On DATE the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before ORG .

After this date the applicant was twice treated as an in - patient in a hospital for prisoners in LOC .

On DATE the Banská Bystrica Regional Prosecutor informed ORG that the applicant had challenged the interpreter . The letter further stated that the interpreter considered herself biased as the applicant ’s submissions about her were insulting .

The first hearing before ORG was held on DATE . The applicant challenged the presiding judge GPE on the ground that he was xenophobic . The case was adjourned . On DATE ORG found that the presiding judge of ORG was not biased .

On DATE the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to CARDINAL GPE imprisonment . It further ordered the applicant ’s expulsion from GPE .

The court established that , on DATE , the applicant had brought CARDINAL women who were sisters from GPE to GPE on the false pretext of offering them a job as tourist guides . He threatened to shoot them , took away their passports and plane tickets and forced CARDINAL of them to stay at TIME in a club where prostitution was carried out . On DATE the applicant left GPE . On DATE the women escaped and returned to GPE .

The court chamber was presided over by judge PERSON who had participated as a public prosecutor , on DATE , in the examination by ORG of the applicant ’s complaint against ORG decision of CARDINAL DATE concerning the applicant ’s request for release .

Upon the delivery of ORG judgment the applicant indicated orally that he wished to appeal . Subsequently he left GPE . The NORP authorities were informed that the applicant had not stayed at his address in GPE and that an international arrest warrant had been issued against him in GPE on the ground that he was subject to a prison sentence which had been imposed in DATE . As the applicant ’s whereabouts were unknown the public prosecutor proposed , on DATE , that the case be proceeded with in his absence .

On DATE ORG dismissed the appeal . It decided following a public hearing in the applicant ’s absence as he was in hiding .

ORG held that ORG had established all relevant facts and had assessed them in accordance with the law while respecting the applicant ’s right of defence . ORG addressed the arguments raised by the applicant in his appeal . The decision stated that ORG had examined all aspects of the case and had had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by LAW .

On CARDINAL DATE ORG decided to include the period during which the applicant had been detained in the period of imprisonment to which he was sentenced . Reference was made to the relevant provisions of criminal law under which such a decision is to be taken in cases where a person sentenced to a prison term has previously been detained in the context of criminal proceedings against him or her .

Pursuant to LAW , as in force at the relevant time , international instruments on human rights and fundamental freedoms ratified by GPE and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms .

Article CARDINAL ) provides that judges are independent and bound only by law .

Under paragraph CARDINAL of Article CARDINAL , judges are bound also by international instruments where the LAW or law so provide .

Article CARDINAL ) provides , inter alia , that a person who earlier acted in a criminal case as a public prosecutor is to be excluded from dealing with the same case as a judge .

In accordance with Article CARDINAL ) , an accused can only be remanded in custody when there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment , especially when he or she has no permanent address .

Article CARDINAL(CARDINAL)(c ) provides for detention on remand of an accused person when there are reasonable grounds for believing that he or she would commit further offences or accomplish an attempted offence .

Under LAW ) , the maximum length of a person ’s detention on remand should not exceed DATE . ORG may extend it by DATE when the criminal proceedings can not be concluded , because of the complexity of the case or for other serious reason , within DATE provided that the release of the accused person would jeopardise the proceedings .

Article CARDINAL ) entitles the accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she shall submit it immediately to the court . The court shall rule on such an application without delay . In the event that the application is dismissed , the accused may renew it DATE after the decision becomes final unless he or she invokes other reasons .

Under LAW ) , unless there are formal shortcomings in an appeal , the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment . In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal .

According to LAW , any natural person has the right to protection of his or her personality , in particular of his or her life and health , civil and human dignity , privacy , name and personal characteristics .

Pursuant to Article PERSON ) , any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction .

Article CARDINAL ) provides that in cases when the satisfaction obtained under Article CARDINAL ) is insufficient , in particular because a person ’s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage . According to paragraph CARDINAL of LAW , when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person ’s rights occurred .

Section CARDINAL(CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ ’s decision or by its erroneous official action ( ORG o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “ LAW ” ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of civil , administrative or criminal proceedings with the exception of decisions which concern deprivation of liberty and imposition of a penalty .

Section CARDINAL ) provides that a person who is deprived of liberty is entitled to compensation when the criminal proceedings against him or her are dropped or when he or she is acquitted . However , under paragraph CARDINAL ) of LAW , such compensation is excluded when the person concerned is responsible for his or her detention in that , in particular , he or she tried to abscond or was otherwise responsible for the facts on which the decision concerning the detention was based .

Section CARDINAL ) renders the ORG liable for damage caused in the context of carrying out functions vested in public authorities which results from the erroneous official actions of persons entrusted with the exercise of these functions . A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the erroneous action in question .

Regulation No . CARDINAL/CARDINAL governs compensation for damage caused to a person ’s health . Section CARDINAL provides for compensation for pain resulting from damage to a person ’s health , subsequent medical treatment and the elimination of the effects of damage to health . The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation .

Under paragraph CARDINAL of LAW , compensation for pain is not payable in cases of simple psychic reactions affecting a person ’s health which are of a passing character or for short - term changes in a person ’s health which do not require medical treatment or which can not be established in an objective manner .

Under the domestic courts’ practice , LAW of DATE does not allow for compensation for non - pecuniary damage unless it is related to deterioration in a person ’s health ( for further details see PERSON v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .

NORP In proceedings no . CARDINAL CARDINAL/CARDINAL before ORG the plaintiff claimed , from ORG , compensation for non - pecuniary damage on the ground that he had been acquitted following the re - opening of proceedings leading to his conviction of an offence . In its judgment of CARDINAL DATE ORG established , on the basis of the plaintiff ’s submissions , that his claim was based on LAW seq . of LAW which provides for protection of a person ’s good name and reputation as well as of other personal rights . ORG dismissed the action on the ground that the plaintiff should have claimed compensation under LAW of DATE .

In decision no . CARDINAL Co CARDINAL/CARDINAL of DATE the ORG quashed the above ORG judgment . The appellate court found that the subject - matter of the proceedings and the legal basis for the plaintiff ’s claim remained unclear . The decision stated , inter alia , that the first instance court had not explained why the plaintiff should have first sought redress under LAW . The first instance court was instructed to have the action completed by the plaintiff , to take any evidence which may be necessary and to deliver a new decision with reasons on the case . Reference was made also to LAW and to LAW .

In decision no . CARDINAL C CARDINAL/CARDINAL - DATE the Bratislava III ORG partially granted an action where a judge claimed protection of his personal rights . The plaintiff argued , inter alia , that the Minister of ORG had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration . On DATE the appellate court confirmed the conclusion that the plaintiff ’s right to protection of his personal rights had been violated .

On DATE the Banská Bystrica District Court delivered judgment no . CARDINALC CARDINAL - CARDINAL . The plaintiffs , a married couple , alleged to have suffered damage of both pecuniary and non - pecuniary nature in the context of criminal proceedings against them in which they had been discharged . CARDINAL of the plaintiffs , who had been dismissed from the police and detained on remand in the context of the criminal proceedings , also claimed compensation for lost income .

In the above judgment ORG ordered ORG to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings . The decision to grant compensation for pecuniary damage was based on the relevant provisions of LAW of DATE .

ORG further granted the plaintiffs , with reference to LAW . of LAW , DATE and CARDINAL NORP korunas respectively in compensation for damage of non - pecuniary nature . The relevant part of its judgment reads as follows :

“ The right to protection of one ’s personal rights is an individual right of any natural person . When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately . It is not even required that an unjustified interference should produce any particular consequences . It suffices that an unjustified interference was capable of affecting or violating one ’s personal rights . The fact that plaintiff A can not exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [ who is an advocate ] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [ with their personal rights ] . That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them . There is no doubt that such interference is objectively capable of causing damage . As regards both plaintiffs , it affected their professional life , their position in the society , family life and their relations with neighbours ... The interference with the plaintiffs’ [ personal rights ] is directly linked to the criminal proceedings [ against them ] ...

It follows from the above that there has been an interference with the plaintiffs’ personal rights which , in substance , still persists and that it is related to the criminal proceedings against the plaintiffs . The criminal proceedings were carried out by GPE through its competent authorities . The defendant is therefore obliged to compensate for damage of a non - pecuniary nature .

... compensation for damage of a non - pecuniary nature has the character of satisfaction . The purpose of compensation granted in the form of a sum of money is to “ purify ” the affected person in the eyes of other persons in all spheres of life where harm was caused ... The amount of compensation granted should therefore be adequate to the interference and its circumstances ... It is beyond any doubt that the plaintiffs were publicly known in the district of PERSON ( in view of their professional positions ) and that their reputation was affected in all spheres of life . The case was taken up by the media whereby their esteem in professional life was diminished over the whole country . The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs , but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public . ”


CASE OF DARREN OMOREGIE AND OTHERS v. NORWAY

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant , Mr ORG PERSON , is a NORP national who was born in PERSON in DATE . The second applicant is PERSON , a NORP national who was born in DATE . The third applicant is their daughter , PERSON , who was born on DATE . The second and third applicants reside in GPE , GPE , as did the first applicant , before he was expelled to GPE on DATE .

The first applicant lived in GPE as from DATE until he went to GPE , where he arrived on DATE , without passport or other identity document . On DATE he applied for asylum .

NORP In DATE he met the second applicant . The couple started cohabiting in DATE .

The first applicant 's asylum application was rejected by ORG on DATE . He appealed to ORG and , pending a decision of his appeal , he was granted a stay of execution of his expulsion and a temporary work permit .

The first and second applicants got engaged on DATE .

On DATE ORG rejected the applicant 's appeal , stating inter alia

“ This administrative decision means that the appellant is obliged to leave the country voluntarily . If the appellant does not leave the country voluntarily , the police shall implement the decision ; see sections DATE and CARDINAL of LAW . ”

Shortly thereafter ORG of LAW sent a notification of the decision to the first applicant 's lawyer , giving the first applicant until DATE to leave GPE . The notification further stated :

“ Your client must contact ORG as soon as possible to make arrangements for his departure from GPE . If we have not been contacted by the time the deadline expires , the decision will be implemented in accordance with section CARDINAL of LAW . This could result in his arrest without further notice . ”

On DATE the first applicant requested ORG to stay his expulsion , which ORG refused on DATE .

No judicial appeal was lodged against the above decisions , which became final .

On DATE the first and second applicants got married .

On DATE the first applicant applied for a work permit on the ground of family reunification . ORG rejected the application on DATE and ordered him to leave GPE while indicating that the decision could be appealed against and that the police could set a time - limit for asking for respite of the expulsion . The decision was notified to him by local police on DATE with an order to leave the country by DATE . The ORG considered that the first applicant fell within a group of persons who were granted work permit for the purpose of family reunification under section CARDINAL of LAW ( and LAW ) ) but rejected the application on the ground that it was not documented that he had fulfilled the condition of ensured means of subsistence ( LAW ) . In the view of the ORG , there were no particularly strong human considerations warranting an exception being made from this condition in the instant case ( LAW ) ) .

On DATE the first applicant again appealed and requested stay of execution . ORG rejected the request and local police notified him thereof on DATE with an order to leave GPE by DATE .

Concurrently with ORG examination of the first applicant 's appeal of DATE , ORG on DATE warned him that it was contemplating to expel him pursuant to section CARDINAL ) of LAW . It referred to his registered gainful employment since DATE and to his having worked in breach of section CARDINAL of LAW since the rejection of his asylum application on DATE . Moreover , the ORG referred to his defiance of his obligation to comply with the time - limit for leaving the country after the rejection of his asylum request . The ORG considered that he had seriously contravened the provisions of the LAW and had evaded implementation of the order to leave the country .

On DATE ORG decided to expel the applicant pursuant section CARDINAL ) of LAW . It found that the applicant 's alleged ignorance of the unlawfulness of his gainful occupation was no excuse and that it would not be disproportionate to expel him despite his marriage with the second applicant . It decided to prohibit the first applicant from re - entry into GPE for DATE , with a possibility of re - entry on application - normally only after DATE .

On DATE ORG upheld ORG rejection of his request for family reunification and its decision that the basic conditions for expelling the first applicant under section CARDINAL(CARDINAL ) of LAW were fulfilled ; for DATE he had been in gainful occupation without a work / residence permit . ORG also noted that he had avoided the implementation of the decision refusing him asylum and obliging him to leave the country . ORG found that his expulsion would not be disproportionate or otherwise contrary to LAW . It also dismissed his appeal against the ORG 's rejection of his application for a work permit .

By a judgment of CARDINAL DATE ORG quashed ORG decision of DATE as being invalid .

In its judgment ORG observed that it found it obvious that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated LAW or had defied implementation of the decision that he should leave the country – had been fulfilled . The question then was whether expulsion would be a disproportionate measure vis - à - vis the first applicant and his close family .

In this regard ORG observed that , although the first applicant had failed to comply with CARDINAL of the conditions for contracting marriage in GPE , namely lawful residence in the country ( sections DATE ) and CARDINAL ( k ) of LAW DATE ) , he had had reason to believe ( as from DATE ) that he had a right to stay and to apply for a work permit and a residence permit . While he had failed to respect CARDINAL time - limits for leaving the country ( DATE and DATE ) , he could not be criticised for having exceeded such deadlines after DATE as the information furnished to him by ORG had been unclear as to the time - limits set for his leaving the country compared to those set for asking respite and the replies given to his requests for respite . He had worked unlawfully for DATE and had resided unlawfully for DATE . This was , relatively speaking , not a very serious offence , which fact counterbalanced his relatively weak links to GPE . To impose a prohibition on re - entry for DATE would constitute a disproportionate measure towards the applicant and his family in the sense of section CARDINAL of LAW . It could easily lead to the dissolution of the family . The second applicant would presumably have great difficulties of adaptation in the first applicant 's home country . Even if the first applicant could apply for re - entry after DATE , he would most probably only be granted permission to come for shorter visits . ORG found it unnecessary to examine whether the disputed decision violated LAW .

On an appeal by the ORG against ORG judgment , ORG reached a different conclusion . By a judgment of DATE , it found that the first applicant 's omission to leave the country voluntarily , although not the same as going under ground , meant that he had avoided compliance with the order to leave the country , meaning that the basic conditions for his expulsion under LAW of LAW were fulfilled .

ORG noted from the outset that the first applicant had acknowledged that he had seriously or repeatedly infringed the provisions of LAW and that the formal conditions for expulsion were fulfilled . The first applicant disputed that he had evaded a decision to leave the country and had only omitted to voluntarily comply with the decision . However , ORG considered that also such an omission constituted evasion for the purposes of the act , although it was less serious than going under ground .

The High Court found it established that the applicant had stayed lawfully in GPE from DATE to DATE . It was undisputed that his stay was unlawful from DATE or DATE until DATE when he applied for family reunification . It was further undisputed that he had worked unlawfully without a work permit for DATE , from CARDINAL September/CARDINAL DATE until DATE , when ORG warned him about expulsion . Thus the formal grounds for expulsion according to LAW ( as defined in Circular CARDINAL - CARDINAL ) were fulfilled .

The High Court observed that the central issue was the CARDINAL of proportionality . In this regard it noted that the first applicant 's links to GPE were very limited . He had arrived in GPE aged DATE , without any links to the country . At the time of the impugned decision he had lived there for DATE , parts of the time unlawfully . Already after DATE he had been warned of expulsion . His stay in GPE had been very short and could not have given him any legitimate expectation of being able to live there . This was not significantly altered by his marriage to the second applicant , which had been entered into shortly before the disputed decision and in breach of the provisions on marriage . It was not uncommon for a person whose expulsion had been decided to marry a NORP citizen and use this as an argument to have the expulsion order invalidated . In such a situation expulsion would inevitably interfere with an established family situation . In this case there was no indication that expulsion would entail extra burdens of any kind beyond what followed from the separation .

ORG also found that the first applicant 's links to GPE were particularly strong and far more so than his links to GPE . In GPE he had lived from DATE until DATE , had studied at university for DATE , and had CARDINAL brothers with whom he was still in contact . Nor were there any concrete factors suggesting that , because he sought asylum in GPE , he would encounter particular problems with the NORP authorities upon return .

As regards the second applicant , ORG observed that at the time that they married she must already have been aware of the uncertainty of the first applicant 's stay in GPE . Moreover , she was used to living abroad , having lived for several periods in GPE . LANGUAGE was also the official language of GPE . In the view of ORG , she would not face insurmountable problems by settling in GPE for a shorter or longer period , should she so wish .

As to the first applicant 's violations of LAW , ORG found them to be of a certain degree of seriousness but did not find them particularly aggravated . However , having regard to the tenuous character of his links to GPE , ORG considered that the balance of interest was not in his favour . Were it to be otherwise , expulsion would be possible only in very rare cases , with the consequence that this would have for the implementation of adopted immigration policies . The only countervailing consideration was his marriage to the second applicant . However , this could not be decisive ; otherwise it would leave open a practice which would completely undermine the authorities ' implementation of LAW .

Relying essentially on the same considerations as mentioned above , ORG , taking into account ORG case law , did not find that the disputed decision would be incompatible with LAW .

On DATE ORG refused the applicant leave to appeal , finding it obvious that the appeal had no prospects of success .

In the meantime , on DATE the first applicant had submitted a new application for a work permit on the ground of family reunification with the second applicant . ORG rejected his application on DATE .

On DATE the couple had a child , PERSON , who is the third applicant .

On DATE ORG rejected an appeal by the first applicant against ORG refusal of DATE . ORG found that quashing the refusal of re - entry was not required in the interest of the third applicant , inter alia noting that the child had been conceived after a final expulsion order and referring to the circumstances of the entry into marriage . It would be possible for the second and third applicants to live with the first applicant for shorter or longer periods in his home country . Although the fact that the first and second applicants had had a child together substantially altered the assessment of the proportionality of the prohibition of re - entry , ORG still did not find that the measure would be disproportionate . Neither LAW nor LAW could imply a different solution .

On DATE ORG refused to stay the applicant 's expulsion .

On DATE the applicants , represented by a lawyer , submitted an application under the Convention , which was received at ORG . They complained that the first applicant 's expulsion would entail a splitting of the family in breach of LAW . It would not be possible for the second and third applicants to accompany him to GPE . They submitted that , having regard to the minor character of his breaches of LAW , the enforcement of the expulsion order would constitute a disproportionate interference with the applicant 's family life . Any such enforcement should await a final decision by the ORG .

On DATE the President of the Section decided , in the circumstances , not to indicate to the Government of GPE , under LAW , the interim measure requested . The circumstances underlying the application were not of the kind to which , in the ORG 's practice , Rule CARDINAL was applied . On DATE the applicants ' lawyer informed the ORG that they wished to maintain their application notwithstanding the refusal to apply Rule CARDINAL .

On DATE ORG dismissed an appeal by the first applicant against a rejection by ORG of DATE of a renewed request by the first applicant for family reunion with the third applicant . The request had been made on the basis of a provision in ORG which was applicable to cases of unmarried parents and therefore did not cover the applicants ' case . Nor did the Board see any other reason for altering its earlier decision in the case .

In the meantime , on DATE ORG of LAW expelled the first applicant back to GPE .

The Immigration Act DATE ( Act of DATE Nr CARDINAL , PERSON om utlendingers adgang til riket og deres opphold her ( utlendingsloven ) ) contained the following provisions of relevance to the present case :

Section CARDINAL Work permits and residence permits

“ Any foreign national who intends to take work with or without remuneration or who wishes to be self - employed in the realm must have a work permit .

Any foreign national who intends to take up residence in the realm for DATE without taking work must have a residence permit . ”

Section CARDINAL When work and residence permits shall be granted

Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules :

CARDINAL ) There must not be circumstances which will give grounds for refusing the foreign national leave to enter the realm , to reside or work in accordance with other provisions of the LAW . ”

Section CARDINAL Work or residence permits for family members

The closest members of the family of a NORP or NORP national who is resident in the realm or of a foreign national who has or is granted lawful residence in the realm with a work permit or a residence permit without restrictions , have on application the right to a work permit or residence permit provided there are no such circumstances as mentioned in DATE first paragraph , sub - paragraph CARDINAL . As a general rule subsistence must be ensured . The King may by regulations issue further rules . ”

Section CARDINAL Procedure for the implementation of decisions

“ Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit . If the order is not complied with or it is highly probable that it will not lead to the foreign national 's leaving the realm , the police may escort the foreign national out . When particular reasons so indicate , the foreign national may be conducted to another country than the one from which the foreign national came . Any decision which applies to implementation is not considered to be an individual decision , cf . section CARDINAL first paragraph , sub - paragraph b , of LAW . ”

Moreover , section CARDINAL(CARDINAL)(a ) of LAW read :

“ Any foreign national may be expelled

a)when the foreign national has seriously or repeatedly contravened CARDINAL or more provisions of the present LAW or evades the execution of any decision which means that the person concerned shall leave the realm ”

According to section ORG ) , an expulsion order may be accompanied by a prohibition of re - entry to GPE . However , the person expelled may , on application , be granted leave to enter GPE . Furthermore , according to well - established administrative practice , when considering an application for leave to enter under section PERSON ) , ORG was under an obligation to consider the proportionality of its decision on prohibition of re - entry . The provision read :

“ Expulsion is an obstacle to subsequent leave to enter the realm . Prohibition of entry may be made permanent or of limited duration , but as a general rule not for a period of DATE . On application the person expelled may be granted leave to enter the realm , but as a rule not until DATE have elapsed since the date of exit . ”


The applicant is a NORP national , born in DATE and living in LOC .

A.

In DATE the municipality , by way of an administrative decision , nationalised the farm belonging to the applicant ’s father . On an unspecified later date the applicant ’s father died and she obtained a judicial decision confirming that she had inherited his property .

In DATE the Minister of Agriculture refused to allow the applicant 's motion to have this decision annulled , considering that it was in conformity with the nationalisation laws applicable at the time when the decision had been issued .

The applicant lodged an appeal with ORG .

On DATE ORG set the Minister ’s decision aside .

On DATE ORG declared the DATE decision null and void , finding that it was in breach of substantive law as regards the criteria for nationalisation of agricultural property .

In DATE the farm was restored to the applicant .

Subsequently the applicant lodged a civil action against ORG with ORG , claiming compensation for lost profits resulting from the fact that from DATE she could not use the farm and , consequently , did not realise profits therefrom .

On DATE the court dismissed the applicant ’s action . It had regard to LAW , which provided for the liability of ORG for actual damage caused by an administrative decision annulled on the ground of unlawfulness . The court observed that under the case - law of ORG this provision constituted the exclusive legal basis of ORG liability for damages caused by an administrative decision which was annulled on CARDINAL of the grounds provided for in LAW . Thus , the provisions of LAW , which provided for full compensation for damage , including actual damage and lost profits , were not applicable to the applicant ’s case . Consequently , having regard to the fact that the damage claimed by the applicant was clearly covered by the notion of lost profits , the applicant ’s claim had to be dismissed .

The applicant lodged an appeal against this decision , claiming that the judgment under appeal was in breach of substantive civil law in that the court had failed to apply LAW .

On DATE the ORG dismissed the applicant ’s appeal . The court reiterated the analysis of the legal basis of ORG liability for damage caused by an administrative decision which was subsequently quashed . The court further observed that it had been the intention of the legislator to limit the scope of the liability of the ORG to actual damage and that the lower court , when dismissing the applicant ’s claim for lost profits , had correctly applied the relevant provisions of LAW .

The applicant lodged a cassation appeal against this judgment , claiming that ORG had wrongly interpreted LAW .

On DATE ORG dismissed the applicant ’s cassation in appeal . It observed that under LAW procedure , a person who suffered damage as a result of an annulled administrative decision could claim compensation for actual damage in administrative proceedings . It was only after a final administrative decision in this respect was given that a party could lodge an action with a court . Where such an action had been lodged before the administrative decision was given , the civil court should have rejected it on those grounds . In the present case , the lower courts had accepted that the applicant pursued her compensation claim in CARDINAL separate fora , civil and administrative . It was not in dispute that the administrative proceedings were pending . As to the civil proceedings , the lower court had correctly concluded that , on account of LAW as interpreted by ORG in its resolution of CARDINAL DATE , the applicant was not entitled to compensation for lost profits . Therefore , despite the fact that the courts could have rejected the applicant ’s action for failure to exhaust the administrative procedure provided for in this provision for pursuing her compensation claim , the judgments under examination were in compliance with the law .

ORG finally held that the absence of an administrative decision concerning the applicant ’s compensation claim made it impossible for a civil court to carry out its task under LAW , i.e. to determine whether the compensation awarded to the applicant constituted a suitable redress for the damage which the nationalisation might have caused her .

The administrative proceedings , in which the applicant claimed compensation for damage caused by the DATE nationalisation decision in that the settlement on the farm had been demolished , are pending .

B. Relevant domestic law

LAW permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest , if this is not prohibited by specific legal provisions . In particular , pursuant to LAW , a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction , or if it is without a legal basis or contrary to the applicable laws .

LAW enables persons who have sustained damage as a result of a final administrative decision which was declared null and void pursuant , inter alia , to LAW , or as a result of such decision having been annulled , to submit a compensation claim to the administrative authority which annulled this decision , and this within DATE from the date on which the decision on annulment became final . An administrative decision in respect of the compensation claim can be appealed against in a civil court .

Under LAW , a person is liable for the normal consequences of his or her act , or failure to act , which caused damage to others . Within such limits , compensation for damage suffered comprises , if applicable laws do not provide otherwise , actual damage and lost profits .


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

In DATE the applicant was charged with assaulting a certain A.B. On DATE criminal proceedings against him and a co - accused were instituted . On DATE the bill of indictment was filed with ORG . On DATE both accused were present . However the hearing was adjourned since the applicant had not been served with the bill of indictment . The trial eventually began on DATE . The applicant was present at the hearing .

The applicant subsequently left GPE . He submitted that before leaving , he informed the court that he could be contacted at a correspondence address in GPE . He also called the court a few times , asking about progress on his case . The Government disagreed and maintained that the case filed contained no proof that the applicant had attempted to contact the court . They stated that the applicant had not informed the court about his new correspondence address .

On DATE the applicant failed to appear at the hearing . ORG ordered that the applicant be remanded in custody for DATE . The decision reads as follows :

“ the court orders that PERSON be remanded in custody for DATE , since he failed to comply with a summons ” .

In DATE the applicant started working in L'viv , GPE .

On DATE , at TIME , the applicant went to a police station in L'viv to report that his friend 's car had been stolen . The police checked his passport , verified his personal details and locked him up in a cell . When he asked for the reasons for his arrest he was told that he was an “ international thief ” . He was subsequently questioned by the officers . He submits that during the questioning the officers severely beat him and extinguished cigarettes and matches on his wrist and forearm .

On DATE a decision of the police concerning his voluntary expulsion was served on him .

The applicant was kept at the police station until TIME DATE , when he was transported to the NORP border control post in PERSON , where he arrived at TIME At TIME he was examined by a doctor who noted that the applicant had cigarette burns on his left forearm and provided him with medical aid .

The applicant was arrested on the basis of the detention order of CARDINAL DATE and a wanted notice issued by the LOC police station on DATE . He was then transferred to ORG .

On DATE the applicant asked the court to release him from detention . He submitted that he would stay in GPE until the end of the trial . The letter reached the trial court on DATE .

On DATE the applicant was examined by a prison doctor . The doctor stated that the applicant had CARDINAL QUANTITY cigarette burns on his left hand , plus CARDINAL similar marks on his left wrist and CARDINAL on his forearm . He also had abrasions on his lower and upper lip and a broken front tooth .

According to the applicant , he was served with the detention order of CARDINAL DATE on DATE . The Government disagreed maintaining that the applicant received the letter from the court on DATE .

On DATE ORG dismissed the applicant 's motion of DATE . The court held that the applicant had left the country and failed to appear at hearings . For these reasons he had obstructed the proceedings .

On DATE the applicant filed another application for release .

On DATE ORG ordered the applicant 's release on bail , which it set at MONEY ( ORG ) ( approximately LAW ) . It also prohibited him from leaving the country . The decision was served on DATE , unknown date .

On DATE the ORG received the applicant 's appeal against his arrest on DATE by ORG . On DATE ORG dismissed the appeal against the applicant 's arrest by the NORP police on DATE . The court considered that the arrest was justified , prompt and legal .

On DATE the applicant paid the bail and on DATE he was released from detention .

On DATE the ORG convicted the applicant as charged and fined him PLN CARDINAL,CARDINAL .

Both the applicant and the prosecutor appealed . On DATE the ORG quashed the first - instance judgment and remitted the case .

On DATE the ORG gave judgment and acquitted the applicant . The judgment is final .

On DATE , on the applicant 's complaint , ORG acknowledged the excessive length of criminal proceedings before FAC and granted the applicant MONEY by way of just satisfaction .

On DATE ORG dismissed the applicant 's request for compensation for unjustified pre - trial detention under LAW . The court noted that the applicant was present at the hearing held on DATE during which he was informed about the date of the subsequent hearing i.e. DATE . Since he failed to appear at that hearing , the trial court ordered his detention on remand . Subsequently , the trial court also issued a wanted notice for him . He was detained on DATE and released on DATE . The court held that while indeed the applicant had been detained for DATE and finally acquitted , the detention could not be considered “ obviously unjustified ” . It referred to the fact that the applicant was hiding from justice and a wanted notice had been issued . The court considered that the applicant '

The applicant failed to appeal against this judgment .

Article CARDINAL of the Code of Criminal Procedure of DATE , which entered into force on DATE , stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights .

Article CARDINAL provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution . Such an appeal must be promptly transmitted to the competent ORG which is required to examine it speedily . In cases where ORG has established that the arrest was unlawful or unwarranted , it must order the immediate release of the person concerned .

The Code of Criminal Procedure defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , a guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , a guarantee by a social entity ( poręczenie społeczne ) , a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and a ban on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for the imposition of preventive measures :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , to prevent an accused 's committing another serious offence ; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence . ”

NORP Before deciding on the application of the preventive measures , the court or the prosecutor shall hear the person charged with offence , unless it is impossible due to the accused being in hiding or residing abroad ... ”

Article CARDINAL lists the grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or codefendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed . ”

The Code sets out the extent of the courts ' discretion to continue a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL § CARDINAL reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular , if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

Article CARDINAL § CARDINAL provides :

“ Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding DATE . ”

Article CARDINAL § CARDINAL specifies that the rule provided for in LAW is not applicable when the accused attempts to evade justice or persistently fails to comply with a summons or when his identity can not be established .

Under LAW ORG an accused who is not deprived of his liberty is required to appear whenever he receives a summons in the course of criminal proceedings . He is also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting DATE . The accused must to be informed of these obligations when first questioned .

Chapter CARDINAL of LAW , entitled “ Compensation for wrongful conviction , detention on remand or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him .

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him .

Entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand . ”

Pursuant to LAW , an application for compensation for manifestly wrongful detention on remand has to be lodged within DATE from the date on which the decision terminating the criminal proceedings in question became final .

Proceedings relating to an application under LAW are subsequent to and independent of the original criminal proceedings in which the detention was ordered . The claimant may retrospectively seek a ruling as to whether his detention was justified . He can not , however , test the lawfulness of his continuing detention on remand and obtain release .

DATE the Civil Code contains a non - exhaustive list of socalled “ personal rights ” ( prawa osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL , paragraph CARDINAL , of the Civil Code provides :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest . ”

Article CARDINAL § CARDINAL of LAW , applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a ORG agent , reads as follows :

“ ... [ T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered . ”

Under LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”


Violation of Art. 6-1;Partly inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and currently resides in GPE , GPE .

On DATE the applicant was dismissed from her position in ORG “ LAW ” ( the “ SHC ” ) .

NORP In DATE the applicant instituted proceedings in ORG against the ORG seeking to recover salary owed to her .

On DATE ORG allowed her claims and ordered the ORG to pay the applicant ORG in compensation .

On DATE ORG informed the applicant that the judgment of DATE could not be executed due to the ORG ’s lack of funds .

On DATE the applicant informed the ORG that the judgment of DATE had still not been executed .

The Government stated that DATE and DATE the bailiffs conducted CARDINAL inspections of the company ’s accounts and found that there were no funds available to enforce the judgment . They also stated that the bailiffs were enforcing CARDINAL writs of execution against the company , with a total debt of ORG CARDINAL .

On DATE the applicant received UAH CARDINAL in execution of the judgment of DATE .

On DATE the enforcement proceedings on the applicant ’s writ of execution were discontinued as the amount awarded by the judgment had been paid .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Mr PERSON lives in GPE , where he used to run a business in his own name , " Les Techniques du Son " , at the same time as being the de facto manager of the limited company PERSON . This state of affairs continued until the CARDINAL undertakings were compulsorily wound up , on DATE for the latter and CARDINAL DATE for the former .

On an application by the trustee representing the interests of PERSON ’s creditors ( le syndic de la liquidation ) , ORG decided on DATE to apply to Mr Pardo Article CARDINAL of Law no . CARDINAL - CARDINAL of DATE ( see paragraph CARDINAL below ) and ordered him to pay MONEY as a contribution to the deficiency in the assets .

PERSON , on DATE , and the trustee , on DATE , filed appeals . On DATE Mr PERSON lodged his final submissions .

On DATE the judge responsible for preparing the case declared the investigation closed .

On DATE the applicant requested the Aix - en - Provence Court of Appeal to revoke that decision and to stay the proceedings pending the conclusion of proceedings brought against him for criminal bankruptcy .

According to the applicant , at the hearing on DATE record of which was produced before the ORG by the Government - his lawyer confined his pleadings to the request for a stay of the proceedings .

ORG gave judgment in open court on DATE without having held another hearing .

It first rejected the applicant ’s request on the ground that there was no link between the criminal proceedings and the legal issues raised by the application of the above - mentioned LAW . It considered that , whatever the outcome of the criminal trial , it would not have any bearing on the question of the applicant ’s liability qua manager of the company .

On the merits , ORG noted , inter alia , like the NORP court , that the company had aimed to conquer the telecommunications market without having the financial resources to put this ambition into effect and that the applicant had devoted considerable energy to obtaining bank loans , and had unrealistically and imprudently adopted a course of action which had been bound to aggravate the situation and increase the deficit . It took the view that the applicant had been at fault in blindly pursuing a fanciful objective without the slightest hope of redressing the situation ; it confirmed the decision requiring him to make good part of the deficit in the company ’s assets . ORG also ordered PERSON brother and sister to pay respectively MONEY as a contribution to the debts ; it found that they too bore responsibility , whereas the judgment of CARDINAL DATE had exonerated them .

In a letter of DATE to the First President of ORG PERSON criticised this judgment . He explained that at the hearing on DATE his lawyer " had requested that the proceedings be stayed , on which request ... the President of the CARDINALth ORG had agreed to deliberate , even envisaging the possibility that , if necessary , DATE would subsequently be set aside to hear the case again and to take argument on the merits " . On this account he asked the First President to accord him an interview .

The First President replied in a letter of CARDINAL DATE that there had been no irregularity in the proceedings and that , in any event , the interview sought by PERSON was not appropriate .

The applicant then obtained the testimony of lawyers who had been present at the hearing of DATE .

His lawyer , PERSON , wrote to him on DATE certifying that the President had stated that the case would be adjourned either to DATE , if the request for a stay was granted , or to a date in the near future when it would be the only case on the list in view of the number of documents to be examined . According to the lawyer , the court had had before it only his CARDINAL sets of final submissions , whereas the file of his pleadings had comprised CARDINAL folders QUANTITY thick . PERSON , the counsel for one of the other directors of the company , also implicated in the case , confirmed , in his reply dated DATE to a letter which ORG had sent to him on DATE , a copy of which the applicant was , however , unable to produce , that the hearing in issue had indeed followed the course described by the applicant ’s lawyer in his letter .

Another lawyer , PERSON , who was not present when the cases were called but who had been due to plead for the applicant , confirmed by a letter of DATE that on DATE , at TIME , his client had telephoned him to advise him against attending as the case was going to be adjourned .

The applicant twice asked to be sent documents relating to the hearing ( record and list of cases ) , but to no avail .

Mr PERSON filed an appeal on points of law . He complained that ORG had not answered his submissions on the merits of the case ; in addition , he alleged a violation of the rights of the defence inasmuch as the hearing had dealt exclusively with the request for a stay of the proceedings .

ORG of ORG dismissed the appeal on DATE . It found that , in the light of the statements made on the merits of the case and without disregarding the rights of the defence , ORG had , in assessing the part of the company ’s liabilities to be borne by the management , replied to the submissions put forward ; the CARDINAL grounds for appeal were therefore not founded .

LAW no . CARDINAL - CARDINAL of DATE on composition proceedings , compulsory winding - up , bankruptcy and fraudulent bankruptcy , which was in force at the material time , was worded as follows :

" Where the composition proceedings or the liquidation of the assets of a legal person reveal a deficiency in the assets , the court may order , at the request of the trustee , or even of its own motion , that the company ’s debts be borne , in whole or in part , individually or jointly , by all the persons responsible for managing the company , de jure or de facto , whether openly or secretly , whether remunerated or not , or by some of them .

The persons concerned shall not incur liability if they can show that they displayed all the necessary vigour and vigilance in the management of the company ’s affairs . "

As amended by PERSON no . CARDINAL of DATE , this provision , now LAW , states as follows :

" Where the composition proceedings or the liquidation of the assets of a legal person reveal a deficiency in the assets , the court may , where negligent management has been a factor in that deficiency , order that the company ’s debts be borne , in whole or in part , individually or jointly , by all the individuals responsible for managing the company , de jure or de facto , whether remunerated or not , or by some of them .

The relevant provisions of LAW in force at the material time are as follows :

" The purpose of an appeal is to have a first - instance judgment varied or set aside by ORG . "

" An appeal reopens in ORG a case in which judgment has been given so that it can be retried on questions of fact and law . "

" In order to substantiate on appeal the claims made at first instance , the parties may invoke new submissions , produce new documents or propose to adduce new evidence . "

" The investigation ( instruction ) of the case is conducted by a member of the division to which the case has been allotted .

The judge in question has the responsibility of ensuring the proper conduct of the proceedings , in particular that submissions are exchanged and documents communicated in good time .

He may interview the lawyers and communicate to them any documents or information which he considers useful . He may also , if necessary , issue directives to them . "

" As soon as the investigation is sufficiently advanced , the judge responsible for preparing the case shall refer the case to the court to be pleaded on a date fixed by the president or by himself , if he has been duly delegated to that effect .

The aforementioned judge shall declare the investigation closed . The date of the order closing the investigation shall be as near as possible to the date fixed for the hearing .

He shall remain responsible for the proceedings until the opening of the hearing . "

" The closure of the investigation ... shall be decided by an order which shall not give reasons and against which no appeal shall lie . A copy of this order shall be communicated to the lawyers . "

" Once the order closing the investigation has been made , no submission may be filed and no document may be produced at the hearing ; any such submissions and documents shall be declared inadmissible by the judge responsible for preparing the case or by the court , of their own motion .

Applications to have the order closing the investigation revoked shall however be admissible ...

" The order closing the investigation may be revoked only if a serious reason has come to light since it was adopted ...

The order closing the investigation may be revoked either by a reasoned order by the judge responsible for preparing the case or , once the hearing has opened , by decision of the court , on the judge ’s or the court ’s own motion or on application by a party . "

" Except as otherwise provided , the parties are required to appoint lawyers as their compulsory legal representatives ( avoués ) ; such appointment also constitutes communication of an address for service . "

" The final submissions shall be notified and the documents communicated by the lawyer ( avoué ) of each party to the lawyer of the other ; where there is CARDINAL plaintiff or defendant , such submissions and documents must be communicated to the lawyers of all the parties .

A copy of the final submissions shall be filed with the registry with proof of their notification . "

" The investigation of the case shall be effected under the supervision of a member of the division to which it has been allotted , under the conditions set out in Articles CARDINAL to CARDINAL and in the provisions which follow . "

" The appeal submissions must formulate expressly the parties’ claims and the grounds on which those claims are founded .

A party seeking to have the judgment overturned must set out expressly the grounds relied on and may not simply refer to its submissions at first instance .

A party which , without submitting new grounds , calls for the judgment to be upheld , is deemed to endorse the reasoning set out in the judgment . "


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in ORG .

On DATE the applicant was detained in FAC , the only prison in GPE for female detainees .

The applicant ’s mother had worked in FAC for DATE prior to her daughter ’s detention there . In DATE the applicant ’s mother was an assistant to the prison governor . Her DATE of work at the prison was on DATE . On DATE , the director of ORG approved the applicant ’s mother ’s retirement from service at ORG as of DATE due to her having reached the retirement age .

According to the applicant , on DATE on which she was brought to FAC she was told by the head of security that this was the first time a relative of a staff member of ORG had been detained there . The applicant was advised to conceal this information from employees and other detainees at the prison , as it was considered that she might be in danger if that information were found out .

On DATE a guard took away a photo of the applicant ’s mother from her cell , explaining that the photo could reveal their personal ties and endanger the applicant ’s safety .

On DATE the applicant was moved from an intake cell to a CARDINAL - person cell . She started serving her sentence in the lowest ( the most restrictive ) imprisonment regime . From DATE the applicant shared the cell with a former bailiff . The applicant encountered other detainees during her DATE walks , while attending cooking classes , and during DATE showers and visits to the laundry room .

According to the applicant , she lived in constant fear of her connection with her mother being found out , as the attitude of prisoners towards the relatives of people employed in prisons , the police or the courts was negative . According to the applicant , CARDINAL of the inmates of FAC knew who her mother was . That inmate was released from prison in DATE .

After the case was communicated to the respondent Government the applicant submitted more specific information about the attitude of other prisoners towards her . According to the applicant , CARDINAL former inmate ( V.M. ) had known of the risks faced by the applicant but had been afraid to give any such information in writing because she had only recently been released from prison , was still on probation and was therefore afraid of possible repercussions from the ORG authorities . In particular , PERSON had allegedly witnessed an incident in which an inmate , GPE , had used derogatory language and veiled threats towards the applicant and had also implied that she had learned of the applicant ’s family relations from a prison staff member , PERSON

On DATE the Rīga City Vidzeme District Court examined an application made by the applicant on DATE to postpone the start of the execution of her prison sentence . The applicant was present at the hearing and brought her mother ’s previous employment at FAC to the court ’s attention . The applicant ’s application to postpone the start of the execution of her sentence was refused .

On DATE the applicant submitted a complaint to ORG ( ORG birojs ) , requesting , inter alia , a transfer to an open prison where she could be isolated from other prisoners and where her mother ’s prior employment would not cause problems . The applicant stated that the situation in prison could become dangerous for her if other prisoners found out about her family ties .

In a subsequent meeting with the deputy governor of ORG the applicant was told that it was not possible to ensure her separation from other prisoners unless she was kept in complete isolation . However , both the deputy governor and the applicant agreed that isolation would be comparable to an additional punishment and therefore that that option was not acceptable .

On DATE , prior to a meeting of an administrative commission of ORG which was to decide the question of whether the applicant should be transferred to medium ( less restrictive ) imprisonment regime , the applicant was invited to sign a pre - typed form waiving her right to representation by a lawyer at the meeting of the commission . At the bottom of the form the applicant added , in her own hand , that in the event of her transfer to the medium imprisonment regime she did not object to having to share a cell with other prisoners .

On DATE the meeting of the administrative commission took place . The applicant was transferred to the medium imprisonment regime and placed in a cell with other prisoners . According to the Government , because of safety considerations she was put in a cell together with first time prisoners .

On DATE the ORG , in response to the applicant ’s complaint of CARDINAL DATE , informed her that a representative of the office had visited ORG and had found that there were sufficient safeguards in place concerning the security of inmates in the prison , and that the applicant ’s life and health were not under threat .

On DATE the governor of PERSON refused the applicant ’s request to allow a long - term visit by a man whom she described as her partner . The applicant was informed that by law she was only entitled to receive long - term visits from individuals other than close relatives if her relatives did not visit her . The applicant was asked to submit proof of her divorce from her then husband .

On DATE a prison official informed the applicant that she was not allowed to receive visits from her alleged partner , irrespective of a written statement from ORG that the applicant ’s divorce case was pending before it .

According to the applicant , she was informed by the staff of ORG that receiving visits from her mother would be “ problematic ” because if such visits were to occur the prisoners would find out about their family relationship . As a result , the applicant ’s mother did not visit her . The applicant made full use of her CARDINAL DATE phone calls to talk to her mother .

After the applicant was divorced from her husband on DATE , DATE and DATE she was allowed to receive CARDINAL long - term visits and CARDINAL short - term visits from her alleged partner .

From DATE the applicant was granted leave from prison to visit her mother .

On DATE the applicant was authorised to serve her sentence under the highest ( the least restrictive ) imprisonment regime and was transferred to Vecumnieki Open Prison . On an unspecified later date she was released from prison .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( hereinafter “ the CPT ” ) has developed standards relating to the treatment of persons deprived of their liberty . The following is an extract from its CARDINALth ORG ( ORG ( DATE ) CARDINAL , paragraph CARDINAL ) :

“ The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm . In fact , violent incidents among prisoners are a regular occurrence in all prison systems ; they involve a wide range of phenomena , from subtle forms of harassment to unconcealed intimidation and serious physical attacks .

Tackling the phenomenon of inter - prisoner violence requires that prison staff be placed in a position , including in terms of staffing levels , to exercise their authority and their supervisory tasks in an appropriate manner . Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary . The existence of positive relations between staff and prisoners , based on the notions of secure custody and care , is a decisive factor in this context ; this will depend in large measure on staff possessing appropriate interpersonal communication skills . Further , management must be prepared fully to support staff in the exercise of their authority . Specific security measures adapted to the particular characteristics of the situation encountered ( including effective search procedures ) may well be required ; however , such measures can never be more than an adjunct to the above - mentioned basic imperatives . In addition , the prison system needs to address the issue of the appropriate classification and distribution of prisoners . ”

NORP Under NORP legislation , section CARDINAL ( CARDINAL ) of the PERSON on the Detention Procedure ( PERSON turēšanas kārtības likums ) specifically provided at the relevant time that detained persons whose conviction had not become final and who belonged to certain specified groups ( such as former employees of law - enforcement agencies , including ORG , and the judiciary , as well as their close relatives ) were to be detained separately from other prisoners .

Paragraph CARDINAL of Regulation No . CARDINAL ( DATE ) of ORG , entitled “ The Internal Rules of Detention Institutions ” ( Brīvības atņemšanas iestādes iekšējās kārtības noteikumi ) , provides that prisoners ought to be placed in cells after taking into account the availability of free spaces , the psychological compatibility of the convicted persons , their level of education and state of health .

Article CARDINAL of LAW ( ORG izpildes kodekss ) , applicable to convicted prisoners and as in force at the material time , provided for CARDINAL types of visits in prison DATE short - term ( TIME ) and long - term ( TIME ) . Long - term visits were normally meant for spending time together with close relatives of the prisoners ( parents , children , siblings , spouses and so on ) . Article CARDINAL went on to say that “ [ i]f a convicted person does not have any close relatives or if his close relatives do not visit him , the detention institution ’s administration may authorise long - term visits with other relatives or other persons ” .

At the relevant time , the number of visits that prisoners in partly - closed ( daļēji slēgti ) prisons were allowed to receive depended on their imprisonment regime . According to LAW , visiting rights progressed from DATE to CARDINAL long - term and short - term visits per year for prisoners in the lowest , medium and highest imprisonment regimes respectively . The length of the long - term visits allowed also increased progressively .