CASE OF MAMATKULOV AND ASKAROV v. TURKEY

No violation of Art. 3;Not necessary to examine Art. 2;Inadmissible under Art. 6 concerning the exradition proceedings;No violation of Art. 6-1;Failure to comply with obligations under Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants were born in DATE and DATE respectively and are currently in custody in GPE . They are members of ORG ) , an opposition party in GPE .

On DATE the first applicant arrived in GPE from LOC ) , on a tourist visa . He was arrested by the NORP police at FAC ( GPE ) under an international arrest warrant and taken into police custody on suspicion of homicide , causing injuries through the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .

GPE requested his extradition under a bilateral treaty with GPE .

On DATE the ORG public prosecutor made an application to the investigating judge for the first applicant to be remanded in custody . The first applicant , who was assisted by his lawyer , was brought before the judge on DATE and remanded in custody for DATE , in accordance with LAW .

On DATE the first applicant was interviewed by the judge of ORG . In an order made on DATE under the expedited applications procedure , the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but ordinary criminal offences . The judge also made an order remanding him in custody pending his extradition . The first applicant , who was assisted by his lawyer and an interpreter , denied the charges and protested his innocence .

NORP In written pleadings that were lodged at a hearing on DATE , the first applicant 's representative argued that his client was working for the democratisation of his country and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the first applicant had been in GPE at the material time and had asked the NORP authorities for political asylum as his life was at risk . He argued that his client was being prosecuted for an offence of a political nature and , relying on LAW , asked ORG to refuse GPE 's request for extradition .

On DATE the first applicant appealed to ORG against the order made under the expedited applications procedure on DATE . Having examined the case file , ORG dismissed the first applicant 's appeal on DATE .

The second applicant entered GPE on DATE on a false passport . On DATE , acting on a request for his extradition by GPE , the NORP police arrested him and took him into police custody . He was suspected of homicide , causing injuries to others through the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .

On DATE the ORG public prosecutor made an application to the investigating judge for the second applicant to be remanded in custody . On DATE the second applicant was brought before the judge , who remanded him in custody .

At a hearing on DATE , the second applicant 's representative submitted that the offence with which his client had been charged was political in nature and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the second applicant had been in GPE at the material time on a false passport .

NORP In a letter of CARDINAL DATE the PERSON public prosecutor applied to ORG for a determination of the second applicant 's nationality and of the nature of the alleged offence .

In a decision of DATE , after hearing the applicant , ORG determined his nationality and the nature of the offence pursuant to LAW . It held that the offences with which he had been charged were not political or military in nature but ordinary criminal offences . It also made an order remanding the applicant in custody pending his extradition .

On DATE the second applicant appealed to ORG against the judgment of DATE . Having examined the case file , ORG dismissed the appeal on DATE .

On DATE the President of the relevant Chamber of the ORG decided to indicate to the ORG , on the basis of Rule CARDINAL of ORG , that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the ORG not to extradite the applicants to GPE prior to the meeting of the competent ORG , which was to take place on DATE .

On DATE the NORP government issued a decree ordering the applicants ' extradition .

On DATE the ORG decided to extend the interim measure indicated pursuant to Rule CARDINAL until further notice .

On DATE the applicants were handed over to the NORP authorities .

In a letter of DATE , the Government informed the ORG that it had received the following assurances regarding the CARDINAL applicants from the NORP authorities : on DATE and DATE the NORP embassy in GPE had transmitted CARDINAL notes from ORG to which were appended CARDINAL letters from ORG , stating :

“ The applicants ' property will not be liable to general confiscation , and the applicants will not be subjected to acts of torture or sentenced to capital punishment .

GPE is a party to ORG and accepts and reaffirms its obligation to comply with the requirements of the provisions of that Convention as regards both GPE and the international community as a whole . ”

On DATE the Government transmitted to the ORG a diplomatic note dated DATE from ORG setting out the following points :

“ It appears from investigations conducted by the NORP judicial authorities that PERSON PERSON and PERSON have played an active role in planning and organising terrorist acts against the leaders of GPE and its people since DATE , as members of a criminal organisation led by GPE and GPE , who are notorious religious extremists .

It appears from information obtained through cooperation with the intelligence services of foreign countries that PERSON and PERSON have committed offences in GPE and GPE .

Their indictment , which was drawn up on the basis of previously obtained evidence , includes a number of charges : setting up a criminal organisation , terrorism , a terrorist attack on the President , seizing power through the use of force or by overthrowing the constitutional order , arson , uttering forged documents and voluntary homicide .

All the investigations have been conducted with the participation of their lawyers . The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it . That information has been corroborated by the other evidence that has been obtained .

The assurances given by ORG concerning PERSON and PERSON comply with GPE 's obligations under ORG Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE .

The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to ORG has been served on them .

Arrangements for the accused 's security during the investigation and trial have been made through the use of secure LOC ( with cells specially equipped for that purpose ) and appropriate measures have been taken to prevent them being attacked .

The defendants ' trial in ORG has recently begun with hearings in public . The hearings are attended by members of the local and foreign press . Members of diplomatic missions and representatives of human rights organisations also attend the hearings .

Officials from the embassy of GPE may also attend . ”

In a letter of DATE , the Government informed the ORG that by a judgment of CARDINAL DATE ORG had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment .

In a letter to the ORG dated DATE , the applicants ' representatives said that they had not been able to contact their clients , that conditions in NORP prisons were bad and prisoners subjected to torture . They noted , inter alia :

The applicants did not have a fair trial in GPE . The rule requiring trials to be held in public was not complied with . Our only information about the applicants ' trial comes from the NORP authorities .

We wrote to the NORP embassy in GPE on DATE requesting permission to attend the trial as observers in our capacity as lawyers , but have received no reply .

As to the assertion that the applicants ' trial was followed by ' members of the local and foreign press and representatives of human rights organisations ' , the only non - governmental organisation present in GPE that was able to follow the trial was ORG . Although we have made express requests to that organisation , we have not been able to obtain any detailed information about the hearings and events at the trial .

Since the applicants ' extradition , we have been unable to contact them by either letter or telephone . We still have no means of contacting them . This state of affairs serves to confirm our suspicions that the applicants are not being held in proper prison conditions .

According to the letter sent by ORG on DATE and information published in the press , PERSON has been sentenced to DATE imprisonment . That is the heaviest sentence that can be handed down under LAW . Furthermore , if account is taken of the conditions of detention in NORP prisons , and in particular of the use of torture , it is very difficult for prisoners to serve their sentences in the prisons in proper conditions . Moreover , it is generally believed that certain prisoners , in particular those convicted of offences pertaining to freedom of expression , are given additional sentences . ”

On DATE the NORP ORG sent the following information to the NORP embassy in GPE :

“ On DATE ORG found PERSON and PERSON guilty of the offences listed below and sentenced them to DATE and DATE imprisonment respectively :

PERSON

( a ) DATE imprisonment pursuant to LAW and CARDINAL of LAW ( homicide with aggravating circumstances , namely :

( i ) murder of CARDINAL or more people ;

( ii ) NORP murder of a person on official duty or of a close relative of such a person ;

( iii ) use of means endangering the lives of others ;

( iv ) use of cruel means ;

( v ) offence committed in the defendant 's own interests ;

( vi ) offence committed on the basis of religious beliefs ;

( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ;

( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ;

( ix ) repeat offence ) ;

( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence ) ;

( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;

( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;

( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;

( f ) DATE imprisonment pursuant to LAW ( attempt to destroy property or to damage health , massacres committed with the intention of harming the activities of ORG bodies and undermining social , political and economic stability ) ;

( g ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( fraud , obtaining the property of others by fraud or deception by or in the interests of a group of individuals ) ;

( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;

( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;

( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .

Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in strict - regime penal institutions .

PERSON is currently serving his sentence in PERSON , which is under the authority of ORG of the province of PERSON . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under LAW of DATE .

PERSON

( a ) DATE imprisonment pursuant to LAW and CARDINAL of LAW ( homicide with aggravating circumstances , namely :

( i ) murder of CARDINAL or more people ;

( ii ) NORP murder of a person on official duty or of a close relative of such a person ;

( iii ) use of means endangering the lives of others ;

( iv ) use of cruel means ;

( v ) offence committed in the defendant 's own interests ;

( vi ) offence committed on the basis of religious beliefs ;

( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ;

( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ;

( ix ) repeat offence ) ;

( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence , causing another 's death ) ;

( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;

( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;

( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;

( f ) DATE imprisonment pursuant to LAW ( attempt to destroy property or to damage peoples ' health , massacres committed with the intention of harming the activities of ORG bodies and undermining social , political and economic stability ) ;

( g ) DATE imprisonment pursuant to LAW ( b ) ( destruction of , or intentional damage to , property belonging to others by or in the interests of a group of individuals ) ;

( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;

( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;

( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .

Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in strict - regime penal institutions .

PERSON is currently serving his sentence in ORG , which is under the authority of ORG of the province of GPE . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under LAW of DATE . ”

At the hearing on DATE , the Government informed the ORG that on DATE CARDINAL officials from the NORP embassy in GPE had visited the applicants in FAC and FAC , which are respectively CARDINAL and QUANTITY from GPE . According to the embassy officials , the applicants were in good health and had not complained about their prison conditions .

On DATE the NORP authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held . The doctors made the following findings :

“ ... PERSON was imprisoned on DATE . He did not present any health problems on arrival . Examinations on DATE and DATE did not reveal any pathological symptoms .

On DATE the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing . ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ... ”

“ ... PERSON was imprisoned on DATE . He did not complain of any health problems on arrival . Examinations conducted on DATE , CARDINAL DATE and DATE did not reveal any pathological symptoms ... ”

On the basis of lists that had been communicated by the NORP authorities , the Government informed the ORG on DATE that the applicants had received a number of visits from close relatives DATE .

To date , the applicants ' representatives have been unable to contact the applicants .

Article CARDINAL of the Criminal Code provides :

“ The NORP State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto .

When called upon to deal with a request by a foreign ORG for the extradition of an alien , the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person 's nationality and the nature of the offence .

No request for extradition may be granted if the criminal court finds that the person concerned is a NORP national or that the offence is political or military in nature or related to such an offence .

If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence , the request for extradition may be granted by the Government . ... ”

Extradition between GPE and GPE is governed by ORG between GPE and GPE , which came into force on DATE . Under the relevant provision of that agreement , “ ORG undertakes to extradite to the other , in the circumstances and subject to the conditions set out in this agreement , anyone found in its territory who has been charged with or found guilty of an offence committed within the jurisdiction of the other ORG ” .

DATE of LAW of DATE , which is headed “ General rule of interpretation ” , provides :

“ CARDINAL . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose .

NORP The context for the purpose of the interpretation of a treaty shall comprise , in addition to the text , including its preamble and annexes :

( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ;

( b ) any instrument which was made by CARDINAL or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty .

There shall be taken into account , together with the context :

( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions ;

( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ;

( c ) any relevant rules of international law applicable in the relations between the parties .

A special meaning shall be given to a term if it is established that the parties so intended . ”

Rule CARDINAL of the Rules of Procedure of ORG provides :

“ The ORG may , prior to forwarding its views on the communication to ORG concerned , inform that ORG of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation . In doing so , the ORG shall inform ORG concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication . ”

In its decision of CARDINAL DATE ( in PERSON v. GPE and GPE ) , ORG dealt with the first case of a refusal by a ORG to comply with interim measures in the form of a request that it stay execution of the death penalty . It pointed out that by ratifying LAW , ORG had undertaken to cooperate with the ORG in proceedings under the LAW , and that it had not discharged its obligations under LAW and LAW , volume I ) .

In its decision of DATE ( in PERSON , PERSON and PERSON v. the GPE ) , the ORG stated :

“ By adhering to LAW , a ORG to the LAW recognises the competence of ORG to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in LAW ( Preamble and LAW . Implicit in a ORG 's adherence to the LAW is an undertaking to cooperate with the ORG in good faith so as to permit and enable it to consider such communications , and after examination to forward its views to ORG and to the individual ( LAW ) . It is incompatible with these obligations for ORG to take any action that would prevent or frustrate ORG in its consideration and examination of the communication , and in the expression of its Views .

Quite apart , then , from any violation of the LAW charged to a ORG in a communication , a ORG commits grave breaches of its obligations under LAW if it acts to prevent or frustrate consideration by ORG alleging a violation of the LAW , or to render examination by the ORG moot and the expression of its Views nugatory and futile . ...

Interim measures pursuant to Rule CARDINAL of the ORG 's rules adopted in conformity with LAW , are essential to the ORG 's role under LAW . Flouting of the Rule , especially by irreversible measures such as the execution of the alleged victim or his / her deportation from the country , undermines the protection of LAW rights through LAW . ”

The ORG reiterated this principle in its decision of CARDINAL DATE ( in PERSON v. GPE ) .

Rule CARDINAL § CARDINAL of LAW enables provisional measures to be adopted in proceedings brought by individuals alleging a violation of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment . It reads as follows :

“ In the course of the consideration of the question of the admissibility of a communication , the ORG or the working group or a special rapporteur designated under Rule CARDINAL , paragraph CARDINAL , may request ORG to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s ) of the alleged violation . Such a request addressed to ORG does not imply that any decision has been reached on the question of the admissibility of the communication . ”

In the case of a NORP citizen resident in GPE who was extradited to GPE despite the fact that a stay of her extradition had been called for as a provisional measure ( see PERSON v. GPE , decision of DATE ) , ORG expressed the view that the ORG had failed to “ comply with the spirit of the Convention ” . It noted the following :

“ ... ORG , in ratifying the LAW and voluntarily accepting the ORG 's competence under LAW , undertook to cooperate with it in good faith in applying the procedure . Compliance with the provisional measures called for by the ORG in cases it considers reasonable is essential in order to protect the person in question from irreparable harm , which could , moreover , nullify the end result of the proceedings before the ORG . ”

In another decision that concerned the extradition to GPE of an NORP national resident in GPE ( see ORG v. GPE , decision of CARDINAL DATE ) despite the fact that GPE had been requested to stay the extradition as a provisional measure , ORG reiterated that failure to comply with the requested provisional measures “ ... could ... nullify the end result of the proceedings before the ORG ” .

Article CARDINAL of the Statute of the ICJ provides :

“ CARDINAL . The ORG shall have the power to indicate , if it considers that circumstances so require , any provisional measures which ought to be taken to preserve the respective rights of either party .

Pending the final decision , notice of the measures suggested shall forthwith be given to the parties and to ORG . ”

The ICJ has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute ( see , among other authorities , the judgment of DATE in GPE v. GPE ) . In an order of DATE in LAW ( GPE v. GPE ) , the ICJ stated that the power of the court to indicate provisional measures

“ ... has as its object to preserve the respective rights of the parties pending the decision of the ORG , and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings ; and ... the ORG must be concerned to preserve by such measures the rights which may subsequently be adjudged by the ORG to belong either to the PERSON or to the Respondent ” .

In its judgment of DATE in GPE ( GPE v. GPE ) , it noted :

“ CARDINAL . ... The context in which Article CARDINAL has to be seen within the Statute is to prevent the ORG from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the ORG are not preserved . It follows from the object and purpose of the LAW , as well as from the terms of LAW when read in their context , that the power to indicate provisional measures entails that such measures should be binding , inasmuch as the power in question is based on the necessity , when the circumstances call for it , to safeguard , and to avoid prejudice to , the rights of the parties as determined by the final judgment of the ORG . The contention that provisional measures indicated under LAW might not be binding would be contrary to the object and purpose of that Article .

A related reason which points to the binding character of orders made under Article CARDINAL and to which the ORG attaches importance , is the existence of a principle which has already been recognised by ORG when it spoke of ' the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given , and , in general , not allow any step of any kind to be taken which might aggravate or extend the dispute ' ( Electricity Company of GPE and GPE , Order of DATE ... ) . ”

This approach was subsequently confirmed in the court 's judgment of DATE in ORG and other NORP nationals ( GPE v. GPE ) .

Rule CARDINAL of the Rules of Procedure of ORG Human Rights provides :

“ CARDINAL . In serious and urgent cases , and whenever necessary according to the information available , the ORG may , on its own initiative or at the request of a party , request that the ORG concerned adopt precautionary measures to prevent irreparable harm to persons .

NORP If the Commission is not in session , the President , or , in his or her absence , one of the Vice - Presidents , shall consult with the other members , through ORG , on the application of the provision in the previous paragraph . If it is not possible to consult within a reasonable period of time under the circumstances , the President or , where appropriate , one of the Vice - Presidents shall take the decision on behalf of the Commission and shall so inform its members .

The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures .

The granting of such measures and their adoption by the ORG shall not constitute a prejudgment on the merits of a case . ”

The scope of the precautionary measures is determined by reference to the scope of the recommendations made by ORG in respect of the individual petition . In its judgment of DATE in GPE v. GPE , ORG ruled that the ORG “ has the obligation to make every effort to apply the recommendations of a protection organ such as ORG , which is , indeed , one of the principal organs of ORG , whose function is ' to promote the observance and defence of human rights ' ... ” .

Article CARDINAL § CARDINAL of LAW states :

“ In cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG shall adopt such provisional measures as it deems pertinent in matters it has under consideration . With respect to a case not yet submitted to the ORG , it may act at the request of the Commission . ”

Rule CARDINAL of the Rules of Procedure of ORG provides :

“ CARDINAL . At any stage of the proceedings involving cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG may , at the request of a party or on its own motion , order such provisional measures as it deems pertinent , pursuant to LAW .

With respect to matters not yet submitted to it , the ORG may act at the request of the Commission .

The request may be made to the President , to any judge of the ORG , or to the ORG , by any means of communication . In every case , the recipient of the request shall immediately bring it to the President 's attention .

NORP If the Court is not sitting , the President , in consultation with ORG and , if possible , with the other judges , shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by ORG at its next session .

The ORG , or its President if the ORG is not sitting , may convoke the parties to a public hearing on provisional measures .

In its DATE Report to ORG , the ORG shall include a statement concerning the provisional measures ordered during the period covered by the report . If those measures have not been duly implemented , the ORG shall make such recommendations as it deems appropriate . ”

ORG has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits ( see , among other authorities , the following orders : CARDINAL DATE , GPE v. GPE ; DATE and CARDINAL DATE , DATE and DATE , PERSON v. GPE ; CARDINAL May and DATE , DATE and DATE , and DATE , PERSON . v. GPE and GPE ; CARDINAL and DATE , and CARDINAL DATE , NORP and NORP nationals of NORP origin in GPE v. GPE ; DATE and DATE , and DATE , PERSON v. GPE ; see also the judgment of DATE , PERSON , PERSON , PERSON . v. GPE and GPE ) .

In CARDINAL orders requiring provisional measures , ORG ruled that GPE Parties to ORG must fully comply in good faith ( pacta sunt servanda ) with all of the provisions of the LAW , including those relative to the operation of the CARDINAL supervisory organs of ORG [ the Court and the Commission ] ; and that , in view of the ORG 's fundamental objective of guaranteeing the effective protection of human rights ( Articles CARDINAL § CARDINAL , CARDINAL , DATE and CARDINAL § CARDINAL ) , GPE Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims ” ( see the orders of CARDINAL May and DATE in PERSON . v. GPE and GPE ) .

As regards the situation in GPE at the material time , ORG stated in a briefing for ORG that was made public in DATE :

“ ... ORG remains concerned that GPE has failed to implement its treaty obligations fully despite numerous , wide - ranging and officially endorsed national initiatives in the fields of human rights education and democratisation and judicial and legislative reforms aimed at bringing national legislation into line with international standards .

Since DATE , when several murders of law enforcement officials in the GPE region sparked a wave of mass detentions and arrests , the organisation has received a growing number of reports of ill - treatment and torture by law enforcement officials of people perceived to be members of independent NORP congregations or followers of independent imams ( NORP leaders ) . CARDINAL of these so - called ' Wahhabists ' were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards . The organisation 's concern was heightened in DATE when CARDINAL of people , men and women , were detained following a reported CARDINAL bomb explosions in the capital GPE . This time the list of those reported to have been arrested , ill - treated and tortured included suspected supporters of the banned political opposition parties and movements PERSON [ Freedom ] and ORG ] , including family members and independent human rights monitors , as well as alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE [ ORG ] . In the majority of these cases , if not all , that have come to the attention of ORG , those detained were denied prompt access to a lawyer of their choice , to their families and to medical assistance . The responsible authorities , from procurators to courts at all levels and the parliamentary ombudsman , persistently failed to launch timely , full and independent investigations into widespread allegations of torture and ill - treatment . According to independent and credible sources , self - incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by ORG as the basis for a guilty verdict . ORG was disturbed by public statements by NORP officials , including the President of GPE , in the wake of both the ORG murders and the GPE bombings , which , if not directly sanctioning the use of violence by ORG agents against certain sections of the population , could be perceived at the very least to condone the use of unlawful methods such as torture and ill - treatment . In DATE , for example , President PERSON , portrayed as the guarantor of democracy and human rights , stated publicly that he was prepared to tear off the heads of CARDINAL people in order to protect GPE 's freedom and stability ... ORG is concerned that such statements together with the authorities ' persistent failure to initiate impartial and thorough investigations into allegations of torture and ill - treatment , may create an impression that torture and ill - treatment by law enforcement officials is acceptable , and even necessary conduct , and that they can engage in such conduct with impunity .

This briefing does not attempt to be a comprehensive study of torture and ill - treatment in GPE . Instead it concentrates on those ORG of the LAW which are most relevant to ORG current and most pressing concerns .

Failure to ensure that all acts of torture are offences under the criminal law ( Article CARDINAL )

GPE fails to fully meet the requirements under LAW [ against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment ] to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature .

Neither the LAW nor LAW , although respectively prohibiting and punishing acts of torture , contain a definition of torture as set out in LAW . ...

Article CARDINAL of the [ NORP ] Criminal Code criminalises obtaining a confession by coercion . Although explicit in its description of prohibited methods of coercion ( beatings , inflicting grievous or less grievous bodily harm , torture ) and specific in naming the perpetrators ( investigating and interrogating officers , procurators ) the LAW is still far more narrow in its definition of torture than LAW . The maximum penalty prescribed under this LAW is DATE imprisonment .

Other ORG , including LAW , punish various assaults but do not relate specifically to agents of the State ... The NORP press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects . However , to ORG knowledge , in the period under review , none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organisation has taken up has been charged under the above ORG of LAW ...

ORG and again ORG has received credible reports that suspects were denied access to a lawyer of their choice . Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for DATE , which is when the risk of torture or ill - treatment is the greatest . In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession . Meetings between lawyers and clients , when they are granted , are generally infrequent , because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain . Defence lawyers are rarely allowed to be present at all stages of the investigation ...

LAW explicitly prohibits the use of torture and obliges judges , procurators , investigators and interrogators to respect a person 's honour and dignity at every stage of legal proceedings . Nevertheless , ORG has received countless reports from different sources – former prisoners , relatives of prisoners , defence lawyers , human rights monitors , international human rights organisations , diplomats , copies of court documents DATE that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel , inhuman or degrading treatment .

Prison conditions

Conditions under which detainees are held pre - trial are reportedly so poor as to amount to cruel , inhuman and degrading treatment . In DATE the NORP authorities admitted that conditions of detention fall far short of the ORG basic minimum standards for the treatment of prisoners . Overcrowding is the norm , with CARDINAL inmates to a bunk bed , sleeping in turns . Inadequate sanitation , shortages of food and basic medication exacerbate the risk of disease , such as tuberculosis . Former prisoners have described punishment cells as underground ' holes ' , QUANTITY with standing room only near the door . The rest of the cell is said to be QUANTITY in height , allowing the prisoner only to crouch or sit . Cells are also said to be overrun with vermin . As with the conditions on death row , these allegations are difficult to verify independently given the NORP authorities ' refusal to allow access to independent monitors . ”

In its DATE report of CARDINAL DATE , ORG noted with respect to GPE :

“ Reports of ill - treatment and torture by law enforcement officials of alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE , continued unabated . CARDINAL of devout NORP and CARDINAL of members or supporters of the banned secular political opposition parties and movements PERSON and LOC were serving long prison sentences , convicted after unfair trials of membership of an illegal party , distribution of illegal religious literature and anti - State activities . Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , particularly prison camps . Several prisoners , among them a prominent human rights defender , died in custody , allegedly as a result of torture . There were CARDINAL death sentences , reportedly imposed after unfair trials , and CARDINAL executions were carried out .

In DATE PERSON , the exiled leader of the banned opposition democratic party PERSON , was detained by NORP police at FAC , GPE . He was remanded in custody while an extradition request from GPE was being examined . In DATE he was released and returned to GPE , where he had received refugee status in DATE , after ORG ruled against extradition to GPE .

In DATE President PERSON publicly stated that CARDINAL people were executed DATE . In DATE the number of offences punishable by death was reduced to CARDINAL .

Allegations of torture and ill - treatment

Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , especially in strict regime prison camps ...

In DATE ] , CARDINAL ethnic NORP mountain villagers were found guilty of collaborating with the IMU during their incursion into GPE in DATE and sentenced to CARDINAL imprisonment in CARDINAL separate closed trials . This was despite earlier government assurances to ORG that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers . The group trials , which opened simultaneously and without prior notice at DATE in GPE , were held in separate court buildings cordoned off by armed police . Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city .

CARDINAL foreign observer , representing the non - governmental organisation ORG , obtained access to CARDINAL of the trials . All others , including foreign diplomats , local human rights monitors and the media , were barred .

According to ORG observer , the prosecution failed to provide any substantive evidence to prove the defendants ' guilt . All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice . In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges . They alleged that they had been forced to memorise and recite prepared confessions on film . Some of the men showed the court marks on their bodies allegedly caused by torture . The court , however , failed to take any of these allegations into consideration . ... ”


The applicant , PERSON , was a NORP national who was born in DATE , lived in GPE and died on DATE . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG .

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

In DATE the applicant inherited a plot of land located in GPE , GPE . In DATE the local community made many investments to turn the area into a district park . On DATE she applied to ORG ( PERSON ) for information concerning construction on her plot . In reply , she was informed that according to the local master plan of DATE ( plan zagospodarowania przestrzennego ) her plot was situated in an area designated for housing construction on forest grounds and had a forestry zone status . On DATE the applicant lodged an application for a construction permit . Her application was dismissed on CARDINAL DATE .

On DATE , upon the applicant ’s appeal , this decision was quashed . On the same date the Mayor of PERSON ( PERSON ) stayed the proceedings concerning construction on the applicant ’s plot pending the termination of proceedings relating to divesting the area of its forestry zone status . According to the new local master plan of DATE , the applicant ’s plot was situated in an area designated for housing construction and community green spaces . It was possible to construct a house on the plot ; however , only after the plot had been divested of its forestry zone status . In addition the surface area of the house could not exceed PERCENT of the total area of the plot .

In DATE the GPE began work on the plot with a view to preserving its district park function . On DATE the applicant requested the Municipality to discontinue the work on her property . On DATE she was informed that the Municipality was considering buying the plots situated in the park area .

On DATE the applicant lodged a complaint with the GPE Governor ( PERSON ) alleging inactivity on the part of the first - instance authority ( as regards the proceedings concerning the divesting of the forestry zone status ) . On DATE the applicant applied to ORG ( GPE PERSON ) and asked that her plot be divested of its forestry zone status . On DATE the applicant asked for the proceedings to be expedited .

On DATE the Municipality recommended granting the applicant ’s application : that the plot in question be divested of its forestry zone status . On CARDINAL DATE the applicant was informed that the Governor ’s office had not supported the GPE ’s recommendation .

Upon the applicant ’s further enquiries , on DATE the GPE Governor informed her that CARDINAL of the reasons for rejecting the recommendation was that a group of CARDINAL people had protested against any construction being carried out on the applicant ’s plot and the adjacent plots .

On DATE the GPE lodged a motion with the Minister of ORG ( Minister PERSON , PERSON i GPE ) concerning the alteration of the use of the applicant ’s plot .

On DATE an analysis of the legal and factual circumstances of the applicant ’s and other ORG cases was prepared .

On DATE the Mayor of PERSON ( PERSON ) informed the applicant that according to the provisions of the Act of DATE on environmental protection , the competent authority to buy the applicant ’s plot was ORG ( FAC ) . Consequently , on DATE the applicant ’s case was transferred to ORG .

On DATE the applicant ’s daughter asked ORG to be allowed to use the plot for construction purposes .

On DATE ORG considered that LAW did not apply and therefore it transferred the case back to ORG .

On DATE , DATE and DATE , CARDINAL May and DATE the applicant applied to the Mayor of GPE asking for a speedy conclusion to her case . She further requested the Mayor to buy the plot from her . During the whole period , the applicant ’s plot was used as a park .

On DATE the applicant ’s daughter notified GPE that she wished to put up temporary fencing around her plot . On DATE the applicant was informed that her application to alter the use of the plot had been rejected .

On DATE the applicant asked the Municipality to grant a planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) . On DATE the Mayor gave a decision authorising the applicant to construct a house and a sanitary tank on her plot . The Mayor further held that it was necessary to obtain permission from the Minister of ORG in order to alter the use of the applicant ’s plot as specified in the local master plan that is , from a forestry zone to a residential and construction zone .

On DATE the applicant applied to the Mayor of GPE requesting the commencement of the procedure for the alteration of the use of her plot in the local master plan .

On DATE the applicant was informed that a certain group “ ORG ” ( ORG ) ( “ the ORG ” ) had appealed against the grant of planning permission of DATE . On DATE ORG ( PERSON ) upheld the planning permission . On DATE the ORG lodged a complaint with ORG .

On DATE the applicant filed a complaint under LAW with ORG of Appeal alleging inactivity on the part of GPE as regards the proceedings to alter the use of her plot . On DATE the Municipality explained that on DATE the applicant ’s case had been transferred to the Minister of ORG and therefore the GPE was no longer competent to deal with the applicant ’s case .

On DATE the ORG transferred the applicant ’s case to the Municipality . ORG further held that the applicant ’s complaint could not be considered as a complaint under LAW , since the GPE was no longer competent to issue a decision in the applicant ’s case .

On DATE the applicant constructed a fence around her plot . The following day the fence was demolished by unknown persons . On CARDINAL DATE the GPE ORG discontinued the criminal proceedings , as it had been impossible to find the culprits .

Meanwhile , the GPE Wawer Mayor sent letters to ORG asking for examination of the ORG motions concerning construction on the forest plots in GPE . This was to no avail as the Minister sent the motions back to the GPE .

On DATE the applicant sent a letter to the Mayor of GPE – PERSON asking for an explanation for the delay .

On DATE the applicant lodged a complaint with ORG alleging inactivity on the part of the GPE – PERSON . She claimed that despite the final planning permission of DATE and her application of DATE the Municipality had failed to apply to the Governor to alter the use of her plot as specified in the local master plan . On CARDINAL DATE ORG rejected the applicant ’s complaint . The court held that the law in force did not oblige the GPE to apply to the Governor , and therefore her complaint should be rejected .

On DATE ORG adopted a resolution and held that the so - called park in GPE should be designated as a district park in the future local master plan . ORG was ordered to institute proceedings in order to buy out the plots from their owners .

On DATE an expert GPE submitted an evaluation report on the value of the applicant ’s plot and the plots of CARDINAL other owners . Subsequently the GPE began negotiating the price with the applicant and other owners of the plots of land in question .

On DATE ORG dismissed the complaint of the ORG against the decision of the local self - government board of DATE .

On DATE the applicant was able to sell the plot in question for MONEY [ approx . QUANTITY ] . The seller and the buyer declared in the notarial deed that the price represented the market price .

Meanwhile , on DATE the applicant lodged a civil action with ORG against GPE asking for payment for the use of the plot without a contractual basis . On DATE she withdrew her action . Consequently , the proceedings were discontinued on DATE .

The provisions relating to the procedure for divesting the applicant ’s plot of its protective forest status were included in the law of CARDINAL DATE on protection of agricultural and forest grounds ( ustawa o ochronie gruntów rolnych i lesnych ) . This law was repealed by the new law of DATE which entered into force on DATE .


CASE OF PEPSZOLG KFT ("v.a.") v. HUNGARY

The applicant is a limited liability company , founded in DATE , with its seat in GPE . It is currently in the process of being wound up .

In DATE an action was brought against the applicant company by an entity called ORG which claimed to be the successor of ORG , CARDINAL of the applicant company ’s shareholders . The plaintiff sought inter alia the invalidation of the registration of the applicant company , claiming that ORG were against the law .

NORP In its final decision of CARDINAL DATE , ORG held that ORG had been in force until DATE of its decision , but were void thereafter . It ordered the winding - up of the applicant company .

Consequently , on DATE ORG ordered the representative of the applicant company to submit the name , address and authorisation of a liquidation manager ( végelszámoló ) . Despite the representative ’s failure to comply with this order , on DATE ORG declared the applicant company ’s dissolution as of CARDINAL DATE , and registered the fact that it was in the process of winding - up .

On appeal , on DATE ORG , sitting as a second - instance court , quashed this decision and remitted the case to ORG , holding that it had delivered its decision despite the representative ’s failure to provide the requisite information .

In the resumed proceedings , on DATE ORG appointed a liquidation manager and declared the retroactive dissolution of the applicant company , as of CARDINAL DATE . On DATE it ordered that corresponding entries be made in the companies register . On DATE ORG upheld the decision of DATE . A further appeal was dismissed on DATE .

On DATE , DATE and DATE , the respective liquidation managers were consecutively replaced .

Meanwhile , in reaction to various appeals and requests for supplementation or rectification , amendments were made to the order of CARDINAL DATE on DATE , and CARDINAL and CARDINAL September CARDINAL . On DATE the judges of ORG declared themselves biased . Subsequently , ORG was appointed to deal with the case . On DATE and CARDINAL DATE respectively , this court ordered that the decisions of CARDINAL DATE and DATE be amended . On DATE ORG , sitting as a second - instance court , dismissed the applicant company ’s appeal filed against a procedural order of CARDINAL DATE .

On CARDINAL DATE ORG of ORG initiated execution proceedings against the applicant company .

The winding - up proceedings are still pending .

NORP In DATE the applicant company instituted proceedings against several defendants , claiming damages in the amount of MONEY , plus accrued interest ( “ the DATE proceedings ” ) .

NORP Moreover , on DATE the applicant company brought an action in trespass and for restitutio in integrum of a real property against ORG ( “ the DATE proceedings ” ) . On DATE the GPE XX / XXI District Court transferred this case to the competent ORG . On DATE the plaintiff completed its action .

On DATE ORG suspended the proceedings pending the establishment of the validity of the applicant company ’s ORG ( see paragraphs CARDINAL and CARDINAL above ) . In DATE the applicant company requested the continuation of the proceedings .

On DATE ORG continued the proceedings and invited the applicant company to complete its action . It gave better particulars of its claims on DATE and DATE .

ORG held hearings on DATE , CARDINAL DATE , CARDINAL May , DATE and DATE . On DATE it requested a further supplementation of the applicant company ’s claims . The latter complied with the order on DATE . On DATE an expert engineer was appointed .

On DATE the court , upon the parties’ request , stayed the proceedings . On DATE the proceedings resumed . Further hearings took place on DATE , DATE and DATE , DATE and DATE .

On DATE the applicant company submitted a motion for bias against ORG . ORG rejected the motion on DATE . On DATE the winding - up manager submitted a motion for bias against the presiding judge which was rejected on DATE .

On DATE and the DATE proceedings were joined . On DATE ORG held a hearing and again invited the applicant company to complete its claim , which it did on DATE . On DATE and DATE , respectively , CARDINAL further motions of the applicant company for bias were rejected .

After a hearing on DATE , on DATE ORG delivered a partial decision . On DATE ORG confirmed this decision . The applicant company lodged a petition for review with ORG . On DATE ORG dismissed its petition .

Meanwhile , in DATE the applicant company instituted another set of proceedings against ORG . , the successor of the respondent in the DATE proceedings ( “ the DATE proceedings ” ) .

On DATE and CARDINAL DATE , the court held hearings . At the latter date , it invited the parties to submit preparatory documents . They complied with the order on DATE and DATE , respectively . On DATE , and DATE and DATE , the court held further hearings .

On DATE and DATE , the court appointed technical experts who submitted their opinions on DATE and DATE , respectively .

Meanwhile , on DATE another hearing took place and the proceedings were suspended . On DATE the applicant company requested the court to continue the proceedings . On DATE the court held a hearing and again suspended the proceedings .

On DATE the applicant company lodged a motion for bias against the court which was dismissed by ORG on DATE . In DATE these proceedings were joined to the DATE and DATE proceedings .

The proceedings concerning the remainder of the joined DATE cases are still pending at first instance .

NORP In DATE PERSON . filed a motion for the protection of possessions with GPE . On DATE the motion was rejected . Subsequently , on DATE the complainant brought an action in trespass against ORG , which claimed to be the successor of the applicant company , and other defendants , including the applicant company itself .

In its order of CARDINAL DATE , ORG stated that the applicant company had been dissolved and had therefore no capacity to conduct legal proceedings . It requested the plaintiff to provide the court with the name of the applicant company ’s liquidation manager .

On DATE ORG informed ORG that ORG was not a registered company .

The case was then transferred to ORG and , on DATE , to ORG . On DATE ORG held that the GPE XX / XXI / XXIII ORG was competent to hear the case .

On DATE ORG requested the plaintiff to specify its claims . On DATE the plaintiff requested the extension of the time - limit and on DATE it complied with ORG order . On DATE the respondents submitted their counter - claims .

On DATE ORG ordered the defendants to clarify the relation between the applicant company and ORG In reply , the court was informed that the applicant company “ had changed its name to ORG ” on CARDINAL DATE ; however , the changes had not been registered by ORG .

On DATE ORG discontinued the proceedings against ORG , but not against the applicant company , whose winding - up was in progress . Subsequently , extensive correspondence developed between the parties and the court concerning the service of this decision and the capacity of the applicant company and ORG to conduct legal proceedings . In the course of these events , the applicant company repeatedly submitted to the court that the CARDINAL entities were CARDINAL and the same , but in vain .

Subsequently , ORG suspended the proceedings until the termination of the proceedings described in chapter “ A ” above . On DATE the defendants complained of this decision . On DATE ORG dismissed their complaint . On appeal , ORG , acting as a second - instance court , quashed the first - instance decision and ordered ORG to continue the proceedings .

Ultimately , the decision of CARDINAL DATE became final . On DATE ORG again suspended the proceedings until the termination of the case outlined in chapter “ A ” above . The defendants appealed . On DATE ORG dismissed the appeal . The proceedings have been pending ever since .

On either DATE or DATE , PERSON . brought another action in trespass against ORG , in the context of a challenge to a decision by the GPE given on DATE . Again , extensive correspondence developed between the court and the parties as to ORG locus standi .

On DATE ORG invited the plaintiff to submit documents . In its submissions of DATE , the plaintiff requested the suspension of the proceedings . On DATE ORG refused the request .

NORP On DATE the Budapest XX / XXI / XXIII ORG transferred the case to ORG . On DATE ORG held a hearing and , at the parties’ request , stayed the proceedings . On CARDINAL DATE the plaintiff requested the continuation of the proceedings .

On DATE the Pest Central District Court forwarded the case file to ORG for appropriate delegation . On DATE ORG appointed the GPE XX / XXI / XXIII ORG to hear the case .

On DATE ORG discontinued the proceedings , holding that ORG was not a registered legal entity . On DATE the court confirmed that this decision had become final on DATE .

On DATE the applicant company ’s liquidation manager requested the continuation of the proceedings . On DATE ORG dismissed the request . On DATE the applicant company complained of this decision . On DATE ORG dismissed the complaint . On DATE the applicant company appealed .

On DATE the court rejected ORG appeal , introduced after the actual service of the first instance decision , as being inadmissible ratione personae .

On appeal , on DATE ORG ordered the resumption of the proceedings .

On DATE the plaintiff eventually withdrew its action .

On DATE ORG , a shareholder of the applicant company ( see paragraph CARDINAL above ) , brought an action against the latter , challenging a ORG resolution . Subsequently , a manager employed by the plaintiff withdrew the action , and the proceedings were discontinued on CARDINAL DATE . This decision was not served on the applicant company .

On DATE the applicant company requested proper service of the decision . On DATE ORG observed that the manager in question had not been entitled to act on behalf of the plaintiff , which in any case had ceased to exist in DATE . Consequently , the proceedings had to be declared as having been interrupted ( félbeszakadt ) as of DATE .

DATE . On DATE the applicant company requested ORG to proceed with the case , in order to obtain a proper order to discontinue and finally terminate the interrupted proceedings . On DATE ORG dismissed the request . The applicant company ’s appeal was to no avail .

Subsequently , on DATE the ORG submitted a motion for bias against ORG , which was dismissed by ORG on DATE .

On DATE ORG finally discontinued the proceedings .


CASE OF MILATOVÁ AND OTHERS v. THE CZECH REPUBLIC

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

The applicants were born in DATE , DATE , DATE and DATE respectively and live in the GPE region .

On DATE the first applicant and her husband claimed restitution of their real property – a house with land DATE under LAW , alleging that in DATE they had been forced to sell it to the ORG , represented by the former ORG ( federální ministerstvo národní obrany ) , on terms that had been imposed on them . At the date of the entry into force of LAW , the property was managed by ORG ( “ the defendant ” ) , the authority that was obliged to return the property to them , pursuant to section CARDINAL ) and ( CARDINAL ) of the LAW .

The restitution claim was dealt with by ORG ( pozemkový úřad ) .

On DATE the ORG ( středisko geodézie ) issued a survey plan in respect of the land . The plan was , however , found to be incomplete by ORG .

On DATE the first applicant 's husband died , and their CARDINAL children joined the proceedings as his legal successors . In a medical report of DATE it was stated that the premature death of the first applicant 's husband was directly linked to an illness which had started after he had been forced to leave the house and to abandon his property .

NORP On DATE ORG ( katastrální úřad ) issued a new comparative plan of the land . CARDINAL other documents issued on DATE , DATE and DATE were also included in the file . CARDINAL survey plans , issued at the request of the defendant and ORG , were produced on DATE and DATE respectively .

On DATE ORG , having assessed the material in the file and having heard evidence from CARDINAL witnesses who had been involved in the negotiations for the sale of the applicants ' property , including PERSON , who was the defendant 's lawyer , declared that the applicants were the owners of a major part of the property . It found that the contract of sale had been concluded under duress on strikingly unfavourable terms , within the meaning of section CARDINAL(CARDINAL)(k ) of LAW .

ORG established , among other things , that , contrary to the law then in force , the first applicant and her husband had not been considered parties to administrative proceedings which had resulted in the adoption of a decision on DATE on the location of a construction

site . It also established that the purchase price had been determined by an expert , in accordance with Decree no . CARDINAL/CARDINAL .

On DATE the defendant , represented by PERSON , appealed against the administrative decision to ORG ( krajský soud ) , which on DATE carried out an inspection of the site .

In their observations on the defendant 's appeal , the applicants challenged , inter alia , the statement by PERSON , who had legally represented the defendant in the past and was acting again as its lawyer in the restitution proceedings .

On DATE a meeting took place at the site .

On DATE ORG quashed the decision and remitted the case to ORG for further consideration . It stated that the existence of grounds for restitution of the property under section CARDINAL(CARDINAL)(k ) of LAW had not been sufficiently established .

On DATE ORG again decided , having taken into account further documentary evidence submitted by the first applicant and having re - examined CARDINAL witnesses , that the applicants were the owners of the property . It examined in detail the circumstances of the sale of the property . It noted , inter alia , that the first applicant 's husband had headed the defendant 's personnel department and that the defendant had needed his property for the construction of a heating plant and , subsequently , a production unit . It further noted that the first applicant 's husband had not been threatened with dismissal or the loss of his job in the event of his refusal to conclude the contract of sale .

Nevertheless , ORG held that the lengthy negotiations for the sale of the applicants ' property or its expropriation , which had started in DATE , had seriously interfered with the lives of the first applicant and her husband , and that the circumstances in which these negotiations had been carried out had undoubtedly affected the health and mental state of the first applicant 's husband .

ORG noted lastly that , according to the record of the negotiations dated DATE , the first applicant and her husband had agreed to the sale on condition that , inter alia , they would be provided with CARDINAL - room flats with garages , and that a CARDINAL - room apartment in a day- care home would be placed at the disposal of the first applicant 's mother . However , in addition to the price to be paid for the applicants ' property – which could have been , but had not been , increased by PERCENT as allowed by Decree no . DATE the first applicant and her husband had been granted a CARDINAL - room flat in DATE . Furthermore , a CARDINAL - room apartment had been made available to their son . In addition , it was noted that the first applicant and her late husband had lived in the house for DATE and that the benefit they had derived from the adjacent land , which they had used for agricultural purposes , had considerably improved the family 's economic and social situation .

On DATE the defendant appealed against that decision . On DATE and DATE respectively the applicants and their legal representative submitted their observations on the defendant 's appeal .

On DATE a bench of ORG , after holding a hearing on DATE and receiving the applicants ' further comments concerning the case on DATE , quashed the administrative decision , finding that ORG had not proved to its satisfaction that the sale had been carried out under duress . The court considered that it was not necessary to examine whether the contract of sale had been concluded on terms unfavourable to the applicants . It held that , although ORG had reached its decision on the basis of the fully established and accurate facts of the case , it did not share its legal opinion .

NORP The court noted that from the witnesses ' statements and from the documentary evidence which it had supplemented by means of the report of CARDINAL DATE on the professional activities of the first applicant 's husband , the first proposal for the purchase of the applicants ' property had been made in DATE at a time when the defendant had needed part of the land for the construction of a heating plant . The court observed that on DATE the owners had provisionally agreed to the sale and had imposed certain conditions which had to be satisfied before the construction work could be started . Moreover , they had stipulated that the sale had to be completed before DATE . At that time , both the former owners were employed ; the first applicant 's husband was employed by the defendant in a senior post and was politically active . Their economic and social situation was such that it did not create a basis for a state of duress .

Moreover , the negotiations carried out with a view to concluding the contract of sale had lasted DATE as a result of the owners ' continuous disagreement as to the fulfilment of the conditions they had imposed and the purchase price , which had finally been increased by CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) .

The court also noted that the purchaser had proved that it had made efforts to meet the owners ' requirements when , for instance , it had urged that a telephone line be speedily installed in CARDINAL of the new flats , had paid the telephone connection fees and had assigned the flats to them even before the contract of sale had been signed . The purchaser had only come up with the suggestion of expropriating the applicants ' property after DATE of unsuccessful negotiations .

Finally , the court did not find any causal link between the contract concluded in DATE and the health problems of the first applicant 's husband , which had begun in DATE ( DATE after the contract had been signed ) , and his subsequent death in DATE .

The case was remitted to ORG , which issued a fresh decision on DATE . In accordance with the opinion of ORG , by which it was bound by virtue of LAW , ORG ruled that the applicants were not the owners of the property because the contract of sale had not been concluded under duress , within the meaning of section CARDINAL(CARDINAL)(k ) of LAW . ORG considered that it was therefore unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable terms within the meaning of the same provision .

On DATE that decision was upheld by ORG .

On DATE the applicants lodged a constitutional appeal ( ústavní stížnost ) against ORG judgments of DATE and DATE and ORG decision of DATE . The applicants alleged a violation of LAW ( protection of property rights ) and CARDINAL § CARDINAL ( right to judicial protection ) of GPE práv a svobod ) . They challenged the assessment of the evidence and ORG incorrect interpretation of the notion of “ duress ” . They also criticised the failure of ORG to assess properly the notion of “ strikingly unfavourable terms ” in section CARDINAL(CARDINAL)(k ) of LAW .

On DATE a judge rapporteur ( soudce zpravodaj ) invited ORG and the parties joined to the proceedings – ORG , ORG and ORG ( Pozemkový fond ) DATE to submit written observations on the applicants ' constitutional appeal .

NORP In letters of CARDINAL and DATE respectively , ORG and ORG waived their status as joined parties .

On DATE ORG submitted its written observations , expressing the view that the applicants ' constitutional appeal should be dismissed .

In its written observations of DATE , ORG recapitulated the case - law to the effect that ORG was not superior to the general courts and that it was not entitled to interfere with their decisions unless and in so far as they might have infringed rights and freedoms protected by LAW . It further referred to the reasoning in its judgment of DATE , and noted that the constitutional appeal had been lodged outside the DATE time - limit in so far as it was directed against ORG judgment of DATE .

On DATE the judge rapporteur asked ORG and ORG to forward their case files , which they did .

On DATE ORG ( PERSON ) , without holding a public hearing , declared that the constitutional appeal had been lodged outside the DATE time - limit in so far as it was directed against ORG judgment of DATE and was unsubstantiated in so far as it concerned the same court 's judgment of DATE . ORG included the written observations of the defendant and ORG on the applicants ' constitutional appeal in its summary of the facts . It stated , inter alianection that it could not examine issues falling within the jurisdiction of the ordinary courts . The court , recapitulating briefly the reasoning of the national authorities involved in the case , did not find unconstitutional ORG conclusion that the hypothesis that the applicants had been under duress during the contractual negotiations was excluded by the fact that they had imposed certain conditions on which they were willing to conclude the contract with the ORG , and that someone acting under duress would have concluded the contract on any terms .

According to the Government , it appears from ORG case file that on DATE the first applicant inspected the documents included in the file and was provided with copies of the written observations submitted by ORG and ORG .

Section CARDINAL of LAW provides for the restitution of real property to individuals from whom it was transferred to ORG ownership DATE and DATE by means specified in section CARDINAL . Where such persons are no longer alive , their successors are entitled to restitution under the conditions specified in subsection ( CARDINAL ) of section CARDINAL .

Section CARDINAL(CARDINAL)(k ) provides for the restitution of immovable property which was transferred to the ORG or another legal person on the basis of a contract concluded under duress , on strikingly unfavourable terms .

Under section CARDINAL ) and ( CARDINAL ) of LAW , the parties to proceedings are the appellant and those specified by LAW Persons to whom the LAW grants the status of joined parties may waive that status . They have the same rights and duties as other parties to the proceedings .

Section CARDINAL provides that parties and joined parties are entitled to give their views on the constitutional appeal , make submissions to ORG , examine the case file ( with the exception of voting records ) , take excerpts from and copies of it , take part in any oral hearing in the matter , put forward evidence , and be present during any taking of evidence .

Under section ORG ) , if the request concerns a matter within the jurisdiction of a division , it is assigned to a judge rapporteur who is a permanent member of that division .

Under section CARDINAL(CARDINAL ) , the judge rapporteur must , without delay , send the constitutional appeal to the other parties and , where appropriate , to the joined parties as well , with a request to submit their written observations on the appeal within time - limits fixed by him or her , or as provided by the Act .

Section CARDINAL(CARDINAL)(a ) provides that , without holding an oral hearing and without the parties being present , the division may dismiss the appeal if it is manifestly ill - founded .

Section CARDINAL(CARDINAL ) provides that any means which may serve to establish the facts of the case may be used in evidence , in particular the testimony of witnesses , expert opinions , reports and statements of ORG authorities and legal persons , documents , results of inquiries and the testimony of parties .


CASE OF STUBBINGS AND OTHERS v. THE UNITED KINGDOM

No violation of Art. 6-1;No violation of Art. 8;No violation of Art. 14+6-1;No violation of Art. 14+8

Ms PERSON was born on DATE . She was placed by a local authority in the care of PERSON and PERSON when she was DATE and adopted by them when she was CARDINAL . The ORG had CARDINAL children , of whom the elder , PERSON , was born on DATE .

PERSON alleges that she was sexually assaulted by PERSON and committed acts of indecency at his instigation on a number of occasions DATE ( before her adoption ) and DATE ( when she was DATE ) . These were of a serious nature , although they did not involve full sexual intercourse .

In addition , she alleges that PERSON forced her to have sexual intercourse with him on CARDINAL occasions in DATE when she was CARDINAL and he was DATE .

ORG Since DATE PERSON has experienced severe psychological problems , which have led to her admission to hospital on QUANTITY occasions . She has been variously diagnosed as suffering from schizophrenia , emotional instability , paranoia , depression and agoraphobia , and she has once attempted suicide .

ORG In DATE , following treatment by a consultant child and family psychiatrist , she allegedly realised for the first time that there might be a connection between the childhood abuse and her mental health problems .

ORG On DATE she commenced proceedings against her adoptive parents and brother , seeking damages for the alleged assaults . The defendants applied to have the claim dismissed as time - barred under LAW ( " LAW " : see paragraph CARDINAL below ) .

ORG Both ORG and ORG which considered the case were bound by earlier authority ( ORG v. PERSON : see paragraph CARDINAL below ) to hold that PERSON claim was based on a " breach of duty " within the meaning of LAW of LAW ( see paragraph CARDINAL below ) .

The limitation period for such actions was DATE , either from the date on which the cause accrued or from the date on which the plaintiff first knew the injury in question was both significant and attributable to the defendants . Section CARDINAL of the DATE Act provided that the court could allow such an action to proceed even if commenced after the expiry of DATE period where it would be equitable to do so ( see paragraph CARDINAL below ) .

ORG found in favour of the defendants , ruling that PERSON " date of knowledge " was DATE before the commencement of proceedings .

ORG , however , accepted PERSON argument that although she had always remembered that she had been abused by PERSON and PERSON , she did not realise that she had suffered sufficiently serious injury as to justify bringing a claim until DATE , when she came to understand the causal link between the assaults and her mental health problems .

ORG The defendants appealed to ORG ( PERSON v. PERSON [ DATE ] Appeal Cases , p. CARDINAL ) . Lord PERSON , with whom the other CARDINAL law lords agreed , doubted that the " date of knowledge " was DATE , since " I have the greatest difficulty in accepting that a woman who has been raped does not know that she has suffered a significant injury " .

Furthermore , after considering the report of ORG ( see paragraph CARDINAL below ) , he held that the words " breach of duty " in section CARDINAL ( CARDINAL ) of LAW did not embrace actions based on intentionally inflicted injuries , such as rape and indecent assault . Instead , these types of claim were subject to the DATE limitation period provided for in LAW . This limit , which could not be disapplied by the court , started to run from the plaintiff ’s eighteenth birthday ( section CARDINAL : see paragraph CARDINAL below ) . The claim was therefore out of time .

PERSON was born in DATE .

She alleges that DATE she was frequently abused by her father , who took pornographic photographs of her and subjected her to serious assaults of a sexual nature .

ORG DATE , she suffered from bouts of depression and found it difficult to form relationships . In DATE she began to have nightmares about her childhood abuse .

Finally , in DATE , she asked her doctor for help and he referred her to a psychologist . At this time , she allegedly gained insight into the connection between the abuse and her mental health problems for the first time . Initially this worsened her condition , causing her to attempt suicide in DATE .

ORG In DATE she consulted solicitors with a view to commencing proceedings for damages against her father . Legal aid was granted and a writ was issued on DATE .

A medical report prepared in DATE for the purposes of the litigation described her as suffering from severe psychological damage , which manifested itself in an inability to trust others , constant mood swings , insomnia and anxiety . According to the report , she was likely to remain damaged for the rest of her life and would have an increased risk of developing a mental illness .

PERSON also reported the alleged abuse to the police . They interviewed her and her father , but in DATE decided not to bring charges . When she was informed of this decision she made another attempt at suicide .

ORG Following the decision of ORG in PERSON v. PERSON ( see paragraph CARDINAL above ) , her civil claim against her father was discontinued on the advice of counsel that it had become time - barred in DATE , DATE after her eighteenth birthday .

PERSON was born in DATE .

DATE she attended a state primary school in GPE , GPE , but her parents withdrew her in DATE because she had become depressed and withdrawn and was suffering from nightmares . It appeared that the Deputy Headmaster , PERSON , had been removing her from lessons , purportedly to look after his DATE daughter .

ORG From that time onwards , PERSON had difficulty in sustaining relationships and felt " different " and lonely . Following her father ’s death in DATE she suffered extreme feelings of bereavement , which eventually drove her to seek psychiatric help .

She underwent a course of therapy which , in DATE , prompted her to experience a violent recall of being subjected to sexual abuse by Mr P. She subsequently recovered memories of other assaults by him , including incidents of rape .

ORG In DATE she instructed solicitors to commence proceedings for damages against PERSON and a writ was issued on DATE .

However , legal aid was withdrawn and the action was discontinued following the decision of ORG in PERSON v. PERSON ( see paragraph CARDINAL above ) , because her claim had become time - barred in DATE .

PERSON was born in DATE .

DATE she was allegedly subjected to repeated sexual assaults by her father , including acts of rape .

She asserted that , as a result of the abuse , she suffered from feelings of despair , depression , fear and guilt and found it difficult to sustain relationships .

ORG On DATE ORG ’s father pleaded guilty to a charge of indecent assault based on his abuse of her . He was sentenced to DATE probation .

ORG The applicant considered that this was insufficient punishment and she therefore instituted civil proceedings against her father on DATE . A report from a psychologist stated that it would have been impossible for her to have taken this step earlier , because she had largely blocked out memories of the abuse as a means of survival .

ORG Her action was discontinued on DATE following the ORG of Lords’ judgment in PERSON v. PERSON ( see paragraph CARDINAL above ) , since her claim had been brought outside the DATE time - limit held in that case to apply .

ORG DATE CARDINAL official bodies reviewed the LANGUAGE law of limitation and reported their findings to ORG .

ORG The first of these , ORG , recommended in DATE that there should be a fixed DATE period for all actions founded in tort , except in cases where the defendant was a public authority , where the period should be DATE only . In both cases time should start to run from the date on which the cause of action accrued .

These recommendations were implemented in LAW .

ORG The first suggestion that there should be a shorter limitation period in personal injury cases was made in DATE in the Final Report of the Departmental Committee on Alternative Remedies ( " ORG " ) , which was asked to review the right to damages for personal injury in the light of recently - created social security legislation . The ORG considered that the DATE period was too long for personal injury claims , and recommended that it should be reduced to DATE .

ORG In DATE ORG ( " ORG " ) recommended that the same limitation period should apply irrespective of whether the defendant was a public authority or a private person , and that a DATE time bar , extendible to DATE in exceptional cases , should be imposed in personal injury actions . The limitation period for other actions founded on tort , including inter alia trespass against the person and false imprisonment , should continue to be DATE .

The ORG ’s proposals were followed in LAW ( LAW DATE , except that , instead of the suggested extendible DATE bar , a fixed DATE period was applied to all " actions for damages for negligence , nuisance or breach of duty ... where the damages claimed ... consist of or include damages in respect of personal injury to any person " . In cases where the plaintiff was under a legal disability , time would only start to run from the date the disability ceased : thus , in the case of a child , from the date he attained his majority ( twentyone at the time the LAW was passed , and DATE after DATE ) .

ORG The words " actions for damages for negligence , nuisance or breach of duty " which appeared in LAW ( and which were also used in LAW ( CARDINAL ) of the DATE Act : see paragraph CARDINAL below ) were considered by ORG in GPE v. PERSON [ DATE ] CARDINAL Queen ’s Bench Reports , p. CARDINAL . The plaintiff had been sunbathing in the car park of a hotel when the defendant drove his car over her legs . She did not commence proceedings until DATE after the accident . ORG held that the appropriate cause of action lay in negligence and that the claim was therefore time - barred . The CARDINAL judges expressed the opinion that the words " breach of duty " in the DATE Act should be construed as applying to any cause of action giving rise to a claim for damages for personal injury .

ORG In DATE it became apparent that the fixed DATE bar to personal injury actions was causing injustice to some plaintiffs , notably workers who were caused to contract slow - working industrial diseases which it was not possible to detect until after the expiry of the limitation period .

LAW DATE was therefore passed , to enable the court to extend the time - limit in cases where the plaintiff could not reasonably have been expected to discover earlier the existence or cause of his injury . However , the provisions enacted proved to be over - complicated and difficult to operate .

ORG In DATE ORG of ORG on Limitation of Actions in Personal Injury Claims was published . It considered the purpose of having a limitation period , and observed :

" In the first place , it is intended to protect defendants from being vexed by stale claims relating to long - past incidents about which their records may no longer be in existence and as to which their witnesses , even if they are still available , may well have no accurate recollection . Secondly , we apprehend that the law of limitation is designed to encourage plaintiffs not to go to sleep on their rights , but to institute proceedings as soon as it is reasonably possible for ORG them to do so ... Thirdly , the law is intended to ensure that a person may with confidence feel that after a given time he may treat as being finally closed an incident which may have led to a claim against him ... But if the law of limitation is principally designed for the benefit of defendants , it would nevertheless be a mistake to lose sight of the interests of injured persons . A plaintiff who has lost the right to claim damages before he can know of the existence of that right must , in our view , inevitably feel that he has suffered injustice . "

In an attempt to balance these interests , the ORG recommended the retention of the DATE period for personal injury actions , but proposed that time should only start to run when the injured person knew , or could reasonably have ascertained , the nature of the injury and its attributability to an act or omission on the part of the defendant . Furthermore , the court should have the power to override the time bar at its discretion .

These proposals were enacted in LAW DATE , and were retained in LAW , which was a consolidating statute .

ORG The current law as to limitation of civil actions in GPE and GPE is set out in LAW ( " LAW " ) . The relevant sections are as follows :

" Actions founded on tort

An action founded on tort shall not be brought after the expiration of DATE from the date on which the cause of action accrued .

Actions in respect of wrongs causing personal injuries or death

( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ( whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision ) where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person .

( CARDINAL ) None of the time - limits given in the preceding provisions of this LAW shall apply to an action to which this section applies .

( CARDINAL ) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( CARDINAL ) or ( CARDINAL ) below .

( CARDINAL ) Except where subsection ( CARDINAL ) below applies , the period applicable is DATE from :

( a ) the date on which the cause of action accrued ; or

( b ) the date of knowledge ( if later ) of the person injured .

( CARDINAL ) In DATE of this LAW references to a person ’s date of knowledge are references to the date on which he first had knowledge of the following facts :

( a ) that the injury in question was significant ; and

( b ) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence , nuisance or breach of duty ; and

( c ) the identity of the defendant ; and

( d ) if it is alleged that the act or omission was that of a person other than the defendant , the identity of that person and the additional facts supporting the bringing of an action against the defendant ; and knowledge that any acts or omissions did or did not , as a matter of law , involve negligence , nuisance or breach of duty is irrelevant .

( CARDINAL ) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment .

( CARDINAL ) For the purposes of this section a person ’s knowledge includes knowledge which he might reasonably have been expected to acquire :

( a ) from facts observable or ascertainable by him ; or

( b ) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek ; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain ( and , where appropriate , to act on ) that advice .

Extension or exclusion of ordinary time - limit : disability

( CARDINAL ) Subject to the following provisions of this section , if on the date when any right of action accrued for which a period of limitation is prescribed by this LAW , the person to whom it accrued was under a disability , the action may be brought at any time before the expiration of DATE from the date when he ceased to be under a disability or died ( whichever first occurred ) notwithstanding that the period of limitation has expired .

Discretionary exclusion of time - limit for actions in respect of personal injuries or death

( CARDINAL ) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which :

( a ) the provisions of LAW or QUANTITY prejudice the plaintiff or any person whom he represents ; and

( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ; the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .

( CARDINAL ) In acting under this section the court shall have regard

( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;

( b ) the extent to which , having regard to the delay , the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section CARDINAL or ( as the case may be ) by LAW ;

( c ) the conduct of the defendant after the cause of action accrued ...

( d ) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action ;

( e ) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant , to which the injury was attributable , might be capable at that time of giving rise to an action for damages ;

( f ) the steps , if any , taken by the plaintiff to obtain medical , legal or other expert advice and the nature of any such advice which he may have received ...

( CARDINAL ) For the purposes of this LAW a person shall be treated as under a disability while he is an infant , or of unsound mind . "

ORG In PERSON v. PERSON [ DATE ] Appeal Cases , p. CARDINAL , ORG held that actions for damages for deliberately inflicted personal injury fell within CARDINAL of LAW , in contrast to actions for negligently inflicted injury to which LAW ( CARDINAL ) of the same LAW applied ( see paragraph CARDINAL above for a more detailed account of this case ) .

ORG In DATE , ORG , the statutory law reform body for GPE and GPE , announced that it intended to undertake a comprehensive review of the law of limitation ( Sixth ORG , ORG no . CARDINAL , item CARDINAL ) .

ORG It is an offence punishable by life imprisonment to have sexual intercourse with a woman or girl without her consent or attempt to do so , or to have sexual intercourse with a girl under the age of DATE or attempt to do so . Indecent assault on a woman or girl is also an offence , with a maximum penalty of CARDINAL years’ imprisonment ( see sections CARDINAL , CARDINAL , DATE and PERSON , Part I of LAW DATE and section CARDINAL of LAW DATE ) .

ORG Prosecutions for serious offences are not subject to any time bar under LANGUAGE law . The principal prosecuting authority in GPE and GPE is ORG ( " the ORG " ) , headed by ORG ( " the ORG " ) . The ORG will only institute criminal proceedings if there is sufficient evidence and if it is in the public interest to do so ( see LAW DATE and the Code for ORG ) .

Private individuals may also institute criminal proceedings ( section CARDINAL of the Prosecution of Offenders Act DATE ) . However , the ORG may take over the conduct of these proceedings and then discontinue them if the evidence is insufficient , if the proceedings would be contrary to the public interest or for any other good reason ( NORP v. Bow Street Stipendiary Magistrate , ex parte ORG [ DATE ] ORG Bench Reports , p. CARDINAL - G ) .

ORG The standard of proof in GPE and GPE for a criminal conviction is beyond reasonable doubt , whereas to succeed in a civil claim the material facts must be shown to exist only on the balance of probabilities .

ORG A court may make a compensation order in respect of a person convicted of an offence , requiring him to pay compensation for any personal injury , loss or damage resulting from that offence ( Powers of Criminal Courts Act DATE , section CARDINAL , as amended by section ORG of LAW DATE ) . This procedure should only be used for dealing with claims in straightforward cases and courts should refrain from making compensation orders where these would involve the making of a DATE payment over DATE ( NORP v. PERSON [ DATE ] CARDINAL ORG , p. CARDINAL ) .

ORG In addition , a person who can show on the balance of probabilities that he or she has suffered personal injury caused by conduct constituting a criminal offence such as rape or assault may claim compensation from an administrative body , ORG ( Criminal Justice Act DATE , sections CARDINAL - CARDINAL ) . However , the ORG will not award compensation in respect of any injury inflicted before DATE by a family member living under the same roof as the alleged victim .