CASE OF STOCKHOLMS FORSAKRINGS- OCH SKADESTANDSJURIDIK AB v. SWEDEN

Preliminary objection rejected (non-exhaustion);Violation of P1-1;No violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - financial award;Costs and expenses partial award

NORP In DATE the applicant instituted proceedings in ORG ( tingsrätten ) of GPE against a forwarding agent , claiming that goods belonging to the applicant had been damaged or lost while in the care of the agent . The agent was later declared bankrupt but the bankruptcy estate of the agent declined to enter as a party to the proceedings . On DATE the ORG gave judgment in default ( tredskodom ) according to which the agent – the bankruptcy debtor DATE was to pay the applicant MONEY ( SEK ) in damages and SEK CARDINAL,CARDINAL in litigation costs . No appeal was made and the judgment acquired legal force .

In DATE the applicant and the bankruptcy estate of the agent signed an agreement according to which the estate assigned to the applicant the estate ’s right to compensation from an insurance company under a third party insurance which had been taken out by the agent to cover possible liabilities incurred in connection with its forwarding business . Subsequently , the applicant instituted proceedings against the insurance company in ORG , claiming that the insurance company should pay the applicant SEK CARDINAL,CARDINAL in compensation for damaged or lost goods and SEK CARDINAL,CARDINAL for the above - mentioned litigation costs .

On DATE ORG rejected the applicant ’s claims against the insurance company and ordered the applicant to pay the insurer ’s litigation costs in the amount of SEK CARDINAL,CARDINAL . The court found that the bankruptcy estate of the forwarding agent had not been a party to the proceedings concluded by the judgment of DATE which had only determined the agent ’s liability vis - à - vis the applicant – and that , thus , the estate had not acquired any rights or obligations on account of that judgment . Accordingly , the estate of the agent had not been in a position to assign to the applicant any rights emanating from the third party insurance .

NORP The applicant appealed to ORG ( PERSON hovrätt ) and requested that the enforcement of ORG judgment be suspended as it had not acquired legal force . On DATE the appellate court found that there was no legal possibility to suspend the enforcement and thus rejected the applicant ’s request .

In order to recover its litigation costs , the insurance company requested ORG ( kronofogdemyndigheten ) to levy execution on the applicant ’s assets . ORG found , however , that the applicant had no seizeable assets . The insurance company then filed a bankruptcy petition against the applicant . In a decision of DATE ORG considered that the applicant ’s appeal against the judgment of DATE had no prospects of success and that , consequently , its liability to pay the litigation costs in question would remain unchanged . Noting further that the applicant was insolvent as it had no assets to pay the litigation costs , the court declared the applicant bankrupt and ordered it to pay the insurer ’s litigation costs in the bankruptcy proceedings .

The declaration of bankruptcy was upheld by ORG on DATE . However , the applicant made a further appeal to ORG ( ORG domstolen ) , and on DATE that court quashed the appellate court ’s decision , rejected the bankruptcy petition filed against the applicant and ordered the insurance company to pay the applicant ’s litigation costs in the bankruptcy proceedings . ORG found that , by declining to enter as a party to the original damage proceedings , the bankruptcy estate of the forwarding agent had not renounced any rights it might have had vis - à - vis the insurance company under the third party insurance . Consequently , the transfer of its rights under that insurance to the applicant was in fact valid . In view of this and the complexity of other issues raised by the parties in the compensation proceedings adjudicated by ORG on DATE , there was no basis for concluding that the applicant ’s appeal against that judgment lacked prospects of success . As the inventory of the applicant company did not reveal any other important debts , the declaration of bankruptcy was entirely dependent on the applicant ’s possible liability to pay the insurance company ’s litigation costs in the compensation proceedings . Having found that the outcome of those proceedings was uncertain , ORG concluded that the insurer had failed to show that the applicant was insolvent .

Following ORG decision , ORG , on DATE , fixed the fee to be paid to the official receiver who had been in charge of the applicant ’s bankruptcy at SEK CARDINAL,CARDINAL . ORG further recalled that the fee was to be paid by the bankruptcy estate . In so doing , it referred to LAW , LAW of LAW ( PERSON , CARDINAL ) which provides that , following the decision by a superior court to quash a declaration of bankruptcy , the assets of the estate shall be returned to the bankruptcy debtor to the extent they are not required for the defrayal of the bankruptcy costs . The receiver ’s fee is considered as a bankruptcy cost , according to LAW , LAW .

The applicant appealed to ORG . It did not challenge the fee as such but claimed that liability to bear the bankruptcy costs would violate the property rights of the estate and DATE consequently – the applicant . The applicant invoked LAW No . CARDINAL to the Convention .

In a decision of DATE , ORG stated that ORG had only recalled that , under the relevant law , the receiver ’s fee was to be paid by the bankruptcy estate . It had not ruled on the question whether the receiver ’s claim for remuneration had priority over the applicant ’s right to the assets . As a consequence , this question could not be examined by ORG which , accordingly , dismissed the appeal .

The applicant made a further appeal to ORG . It claimed that , in referring to the above - mentioned provision of LAW , ORG had in fact determined that the bankruptcy estate DATE and not the State – was to defray the receiver ’s fee . The use of the word “ recall ” rather than “ decide ” was , in these circumstances , irrelevant . The applicant stated further that there was no other legal remedy available for the determination of the liability to pay the fee in question . Referring to LAW , the applicant therefore claimed that ORG was obliged to determine that liability .

On DATE ORG refused the applicant leave to appeal against ORG decision .

NORP The assets of the bankruptcy estate MONEY according to the inventory deed DATE were appropriated to cover part of the receiver ’s fee . The remainder of the fee was paid by the insurance company .

By a decision of CARDINAL DATE ORG quashed ORG judgment of DATE and referred the compensation case back to the latter court for PERSON . The appellate court found that ORG had not examined the applicant ’s claim that the rights under the third party insurance had been transferred from the forwarding agent to its bankruptcy estate at the time when the agent was declared bankrupt , rather than as a consequence of the default judgment of DATE . ORG had also failed to consider the insurance company ’s counter - claim that , under the relevant provision of ORG NORP om försäkringsavtal , CARDINAL ) , it was not liable to pay any compensation as , at the time of the declaration of bankruptcy , the policy - holder , i.e. the forwarding agent , had had no claim for compensation . Thus , ORG had made a procedural error which presumably had affected the outcome of the case and which could not be remedied by ORG .

After the case had been referred back to ORG , the insurance company conceded the applicant ’s compensation claims . Consequently , on DATE , ORG gave judgment in the applicant ’s favour , ordering the insurance company to pay the compensation claimed and the applicant ’s litigation costs .

References in this section are made to LAW , unless otherwise indicated .

NORP By means of bankruptcy , all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims . During bankruptcy , the bankruptcy estate takes care of the debtor ’s assets on behalf of the creditors ( chapter CARDINAL , section CARDINAL ) .

An insolvent debtor is declared bankrupt by ORG following his own or a creditor ’s petition . As a rule , it is for the petitioner to show that the debtor is insolvent . However , if certain requirements are fulfilled , a debtor is considered insolvent unless otherwise shown ( chapter CARDINAL , sections CARDINAL and CARDINAL ) . In such cases , the burden of proof is placed on the debtor . Thus , unless otherwise shown , a debtor is deemed to be insolvent when , in the event of enforcement within DATE before the bankruptcy petition , inter alia , it appeared that he or she did not have assets for full payment of the claim . If a creditor ’s claim has been confirmed by a court , the creditor may request that the debtor be declared bankrupt even if the court ’s decision has not acquired legal force . This does not apply , however , if the court has ordered that the judgment must not be enforced before it has acquired legal force ( chapter CARDINAL , section CARDINAL ) .

The administration of a bankruptcy estate is managed by CARDINAL or more official receivers appointed by ORG and supervised by a section of ORG , ORG in Bankruptcy ( tillsynsmyndigheten i konkurs ) ( chapter CARDINAL , section CARDINAL , and chapter CARDINAL , sections CARDINAL and DATE ) . The receiver must have regard to the common rights and best interests of the creditors and shall take all necessary measures to promote an advantageous and expeditious winding - up of the estate . The receiver is obliged to notify the public prosecutor if he considers that the debtor may be suspected of certain economic crimes ( chapter DATE , section CARDINAL ) .

The bankruptcy costs include , inter alia , the official receiver ’s fee for work performed and the reimbursement of any special costs borne by him during the performance of his assignment ( chapter DATE , section CARDINAL ) .

If ORG considers , after hearing the receiver , that the assets of the bankruptcy estate do not suffice to pay the bankruptcy costs and other debts that the estate has incurred , the court shall decide to terminate the bankruptcy proceedings ( chapter CARDINAL , section CARDINAL ) .

ORG determines the receiver ’s fee after having consulted ORG . The fee should constitute reasonable remuneration for the assignment ( chapter CARDINAL , sections CARDINAL , DATE and DATE ) .

The bankruptcy costs are paid out of the bankruptcy estate before other debts ( chapter DATE , section CARDINAL ) . Thus , no distribution to the creditors can take place until , first , the bankruptcy costs and , then , any other debts that the bankruptcy estate may have incurred have been paid . The ORG and the creditor who filed the bankruptcy petition can also be made liable for the bankruptcy costs but their liability is of a secondary nature ( chapter DATE , sections CARDINAL and CARDINAL ) . Accordingly , if the bankruptcy proceedings are terminated in accordance with chapter DATE , section CARDINAL , the creditor who filed the petition for bankruptcy is to pay the costs to the extent that they can not be paid out of the estate . However , this liability is limited to CARDINAL of a basic amount geared to the price index ( basbelopp ; this basic amount is regulated in LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ) ) . At the time of the declaration of bankruptcy in the present case , CARDINAL of the basic amount corresponded to SEK CARDINAL,CARDINAL . If the amount to be paid out of the estate or by the creditor does not suffice to cover the bankruptcy costs , the remainder of the costs is to be borne by the ORG .

Bankruptcy decisions are immediately enforceable ( chapter DATE , section CARDINAL ) . Thus , following the declaration of bankruptcy of a debtor , ORG must promptly appoint a receiver who shall start his or her work immediately , regardless of whether an appeal has been lodged against the declaration of bankruptcy . In the event of a higher court quashing the bankruptcy decision , all administrative measures are to be interrupted forthwith and the case referred back to ORG for concluding measures .

In such a situation , the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred ( chapter CARDINAL , section CARDINAL ) . Thus , there is no exception to the estate ’s liability to pay the bankruptcy costs ( chapter CARDINAL , section DATE , and chapter CARDINAL , sections CARDINAL and CARDINAL ) . According to the preparatory works to LAW ( see Government PERSON , pp . CARDINAL - CARDINAL ) , the creditor who filed the petition for bankruptcy should not be liable for the bankruptcy costs , as it may be difficult for the creditor to make an assessment as to the debtor ’s insolvency . Instead , even if a declaration of bankruptcy is later quashed for being factually erroneous , the bankruptcy costs are paid out of the estate . The main reason for this unconditional liability is that the debtor , being aware of the liability , is expected to do the utmost in ORG in order to avoid being declared bankrupt and , thus , not to wait until the bankruptcy case is pending before a higher court .

However , as shown by a decision of ORG of DATE ( see FAC DATE , p. CARDINAL et seq . ) , the ORG may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error . In that case , ORG had summoned the debtor to its hearing in an erroneous manner . Following the hearing , at which the debtor did not appear , the debtor was declared bankrupt . After ORG had quashed the declaration of bankruptcy , ORG , in determining the receiver ’s fee , recalled that the bankruptcy costs were to be paid out of the estate . ORG upheld the decision . ORG , however , found that the ORG should pay the bankruptcy costs . It considered that the rationale behind the provisions concerning the estate ’s liability for bankruptcy costs had no convincing force in that case , as the debtor , on account of the erroneous service of the summons , had been deprived of his right to take part in the proceedings .

It follows from chapter CARDINAL , section CARDINAL of LAW ( ORG , CARDINAL:CARDINAL ) that the ORG is liable to pay compensation for , inter alia , financial loss caused by a wrongful act or omission in connection with the exercise of public authority .

Anyone who wishes to claim compensation from the ORG for financial loss , which he considers to have been caused by a wrongful decision taken by a court or an administrative ORG authority , can proceed in CARDINAL different ways : He or she may either petition the Chancellor of Justice ( NORP ) in accordance with LAW on ORG against the State ( Förordningen om handläggning av skadeståndsanspråk mot staten , CARDINAL:CARDINAL , or bring a civil action against the ORG in the ordinary courts . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings in the courts .

In a judgment of CARDINAL DATE ( see PERSON DATE , p. CARDINAL et seq . ) , ORG examined whether the ORG was liable to pay damages on account of an appellate court ’s allegedly incorrect assessment of legal and evidentiary issues in connection with its examination of an application for provisional attachment ( kvarstad ) . ORG made the following general observation :

“ When , as in the present case , legal and evidentiary issues are concerned , it is not sufficient for a liability to damages that a court has made an assessment that may be called into question . Considerations on such issues may vary to such an extent that it is rather rare that one can speak about culpa or , in other words , a wrongful act or omission within the meaning of chapter CARDINAL , section CARDINAL of LAW . Only manifestly erroneous assessments can be considered as culpable . ”


CASE OF SALMANOĞLU AND POLATTAŞ v. TURKEY

Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants , who were born in DATE and DATE , live in GPE and GPE respectively . They were DATE at the time of the events giving rise to the present application .

On DATE at TIME was taken into custody by police officers from ORG of the ORG police headquarters on suspicion of membership of the NORP ( ORG of Kurdistan , an illegal organisation ) .

On DATE at TIME she was taken to ORG , along with CARDINAL other persons . In a document of the police headquarters in which the names of the detainees were put , the doctor , PERSON , noted that there were no signs of physical violence on the applicant ’s body .

On DATE , the head of ORG of the NORP police headquarters requested ORG to establish ORG virginity status and determine whether she had had recent sexual relations ( bakire olup olmadığı ve yakın zamanda cinsel ilişkide bulunup bulunmadığını gösterir kati doktor raporunun verilmesi ) . The medical expert , ORG , who conducted the examination , noted , on a document of the police , that ORG was still a virgin and had not had recent sexual relations .

On DATE at TIME PERSON was arrested by police officers from ORG of the ORG police headquarters , pursuant to an arrest warrant issued against her within the context of a police operation conducted against the ORG .

On DATE , the head of ORG of the NORP police headquarters requested ORG to establish PERSON virginity status and determine whether she had had recent sexual relations . She was examined by S.S. who subsequently informed the police that the applicant was a virgin and had not had recent sexual relations .

The applicants allege that they were subjected to ill - treatment while in police custody . In particular , ORG was blindfolded , forced to stand for a long time , and deprived of food , water and sleep . She was also insulted and threatened with death and the torture of other members of her family . She was sexually harassed and beaten . PERSON PERSON was blindfolded , insulted and beaten . The police officers also inserted a truncheon into her anus , which caused bleeding . A female police officer asked her family to provide clean underwear , which the applicant changed into . The applicants were both stripped naked by this female police officer , GPE

On DATE at TIME the applicants and CARDINAL other detainees were examined by a medical expert , PERSON , at ORG who noted , in a letter sent to the hospital by the ORG police headquarters containing the GPE names , that PERSON had been sensitive upon palpation of the scalp and in the lumbar region . The doctor observed no sign of physical violence on the applicants’ persons .

On DATE at TIME the applicants were once again referred to ORG for virginity testing . The applicants were not examined as they refused to undergo a gynaecological examination .

On DATE , the applicants and CARDINAL other persons were also examined by a general practitioner , PERSON , in a health clinic , who noted that there was no sign of physical violence on the GPE bodies in the letter which had actually been sent to him by the police .

On DATE the applicants were brought before a judge , who remanded them in custody . They were then placed in GPE prison . Subsequently , criminal proceedings were brought against them before ORG .

On DATE PERSON submitted a request to the ORG public prosecutor ’s office , in which she contended that she had been subjected to mental and physical torture while in police custody and requested a gynaecological examination .

On an unspecified date the ORG public prosecutor started an investigation into the allegations of PERSON .

On DATE PERSON was examined by a doctor , PERSON , at ORG . Following a digital rectal examination , the doctor noted that there was no sign of intercourse in the anal region .

On DATE the ORG public prosecutor issued a decision based on lack of jurisdiction ( görevsizlik kararı ) and passed the investigation to ORG for further proceedings under the PERSON on the prosecution of civil servants ( Memurin Muhakematı GPE ) .

On DATE ORG decided not to grant authorisation to prosecute CARDINAL police officers from ORG of the ORG police headquarters . The district council based its decision on the medical reports of CARDINAL March and DATE .

In the meantime , on DATE ORG made a statement to ORG in which she alleged that she had been subjected to various forms of ill - treatment while in police custody , including sexual abuse and psychological pressure .

On DATE ORG issued an opinion on the applicants’ previous medical examinations , without examining the applicants . PERSON submitted to ORG that she had been subjected to various types of ill - treatment while in police custody , including sexual abuse , rape ( the insertion of a truncheon into her anus ) and beatings , as a result of which one of her teeth was broken . The applicant further stated that she had pain , bleeding and difficulty in defecating . The medical report referred to the medical report of DATE , according to which the applicant had been sensitive upon palpation of the scalp and in the lumbar region . It further referred to the report dated CARDINAL DATE which stated that there was no sign of physical violence on the applicant ’s body . The doctors of the ORG considered that the applicant ’s complaints about her anal region were consistent with the allegation of rape . They also considered that her other complaints , such as pain in the lumbar region and in the legs , as well as difficulty in respiration , matched her allegations of ill - treatment .

Nazime PERSON submitted that she had been subjected to various types of ill - treatment while in police custody , including threats , sexual abuse and beatings to numerous parts of her body , in particular to her head , legs , genitals and anal region . She complained of pain in her teeth , heart , head , neck , back , shoulders , arms and hands , and difficulty in respiration . She also stated that she had sleep and memory problems . The medical report referred to the reports of CARDINAL and CARDINAL DATE , according to which the applicant did not bear any sign of physical violence . The doctors considered that GPE GPE ORG ’s complaints matched the applicant ’s allegations of ill - treatment .

The doctors from ORG further considered that the applicants should undergo several medical examinations . They noted in respect of both applicants that the medical examinations which they had undergone following their release from police custody were not capable of establishing whether the applicants had actually been subjected to ill - treatment as alleged . The experts considered that these examinations were not “ medically valid ” as they did not comply with the standards established by ORG and ORG . In that connection , they noted that a record of the ORG statements and their complaints of physical and psychological symptoms had not been noted . They further considered that there had not been a detailed record of the findings of a thorough clinical examination . The doctors from ORG also observed that the reports did not give details regarding the psychological complaints of the subjects and the ORG findings in this respect . They particularly criticised the virginity tests , stating that the doctors who had conducted these tests should have obtained the subjects’ consent and listened to their statements . They considered that , in the circumstances of the applicants’ case , the virginity tests appeared to have been carried out in order to humiliate the applicants .

On DATE the applicants’ lawyers made a statement to the ORG public prosecutor ’s office , alleging that the applicants had been subjected to ill - treatment while in police custody . They requested an investigation into the actions of the medical experts who had examined the applicants during and after their detention in police custody , and those of the police officers from ORG of ORG . They also requested that the applicants be examined by medical experts from ORG at ORG .

On DATE the applicants were examined by a doctor from ORG . The report concerning PERSON referred to the latter ’s complaints of pain in the anal region while sitting and on defecation . The doctor observed that one of her teeth was broken and concluded that she was unfit for work for DATE . As regards PERSON , the doctor observed a bruise of QUANTITY . on her back and considered that she was unfit for work for DATE .

On DATE the ORG public prosecutor issued a decision not to prosecute anyone in relation to the ORG allegations , holding that there was insufficient evidence to bring criminal proceedings .

On an unspecified date , the applicants submitted an objection to the decision of DATE .

On DATE the President of ORG quashed the decision of the ORG public prosecutor . It decided that criminal proceedings should be brought under LAW against the police officers who had questioned the applicants while they were in custody . In its decision , the President noted that the ORG allegations had not been adequately examined by the public prosecutor . In particular , ORG allegations that her dental braces had been broken as a result of the beatings in police custody and had therefore been removed were not examined . Likewise , the public prosecutor had not determined the date on which PERSON Polattaş’ tooth had been broken . The medical examinations indicated in the report of ORG had not been carried out . Moreover , the public prosecutor had not looked into the question whether the applicants had actually submitted complaints against the prison doctor . Nor had he taken statements from the police officers who had taken the ORG statements or the doctors who had examined them .

On DATE the ORG public prosecutor filed a bill of indictment with ORG , charging CARDINAL police officers from ORG of the ORG police headquarters - GPE , GPE , GPE and GPE , under LAW , with torturing the applicants .

On DATE ORG held the first hearing on the merits of the case . The court heard the accused police officers , the applicants , ORG father and the doctors who had examined the applicants after their release from police custody .

The applicants alleged that they had been subjected to various forms of ill - treatment ( see paragraph CARDINAL above ) . They further submitted that they had not stated on DATE before the public prosecutor and the judge that they had been subjected to ill - treatment as they were scared . ORG submitted that during the medical examination conducted at the end of her detention in police custody there were police officers in the examination room . She also submitted that one of the accused officers , GPE , had been in the public prosecutor ’s office when the prosecutor had taken their statements . PERSON PERSON contended that an object had been inserted into her anus and there had been bleeding . Therefore , GPE asked her parents to bring clean underwear . She further submitted that she had told the doctor who had examined her during her custody period that she had been ill - treated . However , the police officers had arrived to the room where she was medically examined and the doctor , who was a woman , had not noted her complaints in the report . She also stated that CARDINAL of her teeth had been broken as she had been punched in the face in police custody .

The police officers denied the allegations of ill - treatment and the allegations that they had been in the office of the prosecutor or the medical examination room . As regards the virginity testing , PERSON submitted that they had requested this examination in order to prevent any false allegations of sexual abuse in police custody .

The doctors , GPE , PERSON , PERSON and PERSON maintained that they had not observed any signs of physical or psychological violence when they had examined the applicants . They denied the applicant ’s allegations that the medical examinations had taken place in the presence of police officers . As regards the sensitivity on PERSON scalp and lumbar region upon palpation noted in the report of DATE , ORG , who had examined her , maintained that the applicant had been disturbed as she had not wished to have physical contact . The doctor stated that the sensitivity noted in the report was not an indication of an injury .

One of the accused officers , GPE , and the doctor who had examined ORG on DATE stated that this applicant had consented to the virginity test .

Nazime Ceren Salmanoğlu ’s father contended before the court that he and his wife had seen their daughter on different occasions when she had been in police custody . He observed that ORG had an injury to her lips . He further maintained that his wife had told him that she had seen a bruise on their daughter ’s cheek .

At the end of the hearing , the court ordered , inter alia , that the applicants be examined at FAC at ORG . The court requested information from ORG as to whether the applicants were suffering from any psychological problem and , if so , whether the cause of their psychological suffering could be established . The assize court further ordered a medical examination of ORG , in particular a bone scintigraphy , in order to determine whether she had been subjected to violence and if so when .

During a hearing held on DATE the first - instance court heard the doctor who had examined the applicants on DATE , PERSON maintained that the police officers had waited outside the examination room , QUANTITY from the door , where they could hear the conversation with the patients and even see inside the room if they wanted . He contended that he had asked the applicants to show him their abdomen , backs and CARDINAL of their legs . He submitted that he had not conducted an examination concerning their psychological state . The examination he conducted could only have revealed traces of physical violence on their bodies . PERSON finally stated that both applicants were present in the room during their examination and that they had witnessed each other ’s examinations .

On DATE FAC , the doctor who conducted the virginity testing on the applicants on DATE , was also heard by the court . He submitted that the applicants had given consent to the examination . They did not have any allegation of rape or sexual abuse . The sole purpose of the examination was to establish their virginity status . ORG also submitted that police officers had not been present in the room where this examination had taken place .

On DATE , ORG mother stated before the first - instance court that she had seen her daughter DATE after her arrest and that there had been a bruise on her daughter ’s lips then . She further contended that DATE after the arrest she had seen the applicant again and observed another injury on her lips . She finally stated that her daughter had not told her that she had been subjected to ill - treatment in custody . The first - instance court also heard PERSON uncle , who was a retired police officer , and who submitted that he had taken clean underwear to the police headquarters as GPE had asked him to do so . He also noted that the applicant had appeared to be exhausted when he had seen her in GPE prison .

On DATE F.A. , a woman who was detained in GPE prison , made statements before the court . She said that the applicants had appeared to be exhausted when they were brought to the prison . She further contended that there had been a swelling on the lips of ORG and that PERSON had had difficulty in sitting . She submitted that PERSON had told her that a truncheon had been inserted into her anus while in police custody . During the same hearing , the applicants and ORG father joined the proceedings as civil parties ( müdahil ) .

On DATE the ORG heard the nurse who had assisted PERSON during the rectal examination of PERSON carried out on DATE . The nurse , GPE , stated that there had been a female prison guard in the examination room when the examination had taken place . She submitted that the guard had not wished to leave the room and had therefore turned her back and stayed . She maintained that the presence of the prison guard had not had any impact on the examination .

On DATE , CARDINAL inmates detained in the same prison as the applicants made statements before the court and contended that they had not noticed any sign of physical violence on the applicants’ persons when they had arrived at the prison .

On DATE the medical reports regarding the applicants’ examinations at FAC at ORG were submitted to ORG .

On DATE the NORP public prosecutor requested the assize court to order ORG to draw up a further report , as the medical reports drafted during the preliminary investigation and the reports by ORG were contradictory . On DATE , ORG decided to send the case file to ORG and requested the latter to submit a report containing information as to whether the applicants had been subjected to ill - treatment while in police custody and whether the findings of the doctors from ORG could be considered to be the result of the alleged illtreatment .

On DATE PERSON refused to consent to an examination by the experts from ORG . On DATE the ORG lawyer informed ORG that she had not consented to the examination as the medical experts wished to conduct a digital rectal examination , although this applicant had not alleged that she had been raped while in police custody . On DATE the first - instance court once again requested ORG to submit a report .

DATE and DATE the assize court postponed the hearings as ORG did not submit the requested report .

On DATE ORG submitted CARDINAL reports drawn up by its CARDINALth and CARDINALth ORG ( İhtisas Kurulu ) on DATE and CARDINAL DATE respectively , concerning PERSON , to the first - instance court .

On DATE the ORG requested ORG to conduct a medical examination on PERSON and submit a report about her .

DATE and DATE , the first - instance court postponed the hearings as it was waiting for the report by ORG concerning PERSON .

On DATE ORG submitted CARDINAL reports drawn up by DATE and CARDINALth ORG on DATE , DATE and DATE respectively , concerning PERSON , to the firstinstance court .

On DATE , the assize court requested ORG of ORG ( ORG PERSON ) to submit a final medical opinion as to whether the applicants had been subjected to illtreatment while in police custody .

On DATE ORG submitted CARDINAL reports dated DATE drawn up by its ORG to ORG .

On DATE the first - instance court requested the parties to submit final observations on the merits of the case .

On DATE ORG acquitted the accused police officers , finding that there was insufficient evidence to convict them . In its judgment , the first - instance court noted that there was no evidence demonstrating that the applicants had been subjected to physical or psychological violence while in police custody . The assize court considered that the distress which the applicants might have suffered could have stemmed from their detention and conviction at a very young age . ORG further noted that it had taken into consideration the opinion of the majority of ORG of ORG that the applicants had not suffered from post - traumatic stress disorder . It considered that ORG , although a ORG institution , was an independent body . It noted the minority dissenting opinions as an indication of the independence of the members of ORG . The first - instance court finally noted that there had been a disciplinary investigation into the doctors who had examined the applicants during and after their detention in police custody and no sanctions had been imposed on them as a result .

On DATE the applicants appealed . In their petition , they maintained , inter alia , that the virginity tests had constituted a sexual assault .

On DATE ORG quashed the judgment of CARDINAL DATE . It decided to terminate the criminal proceedings against the police officers on the ground that the prosecution was timebarred ( zamanaşımı ) .

DATE and DATE , ORG and PERSON PERSON were examined CARDINAL and CARDINAL times respectively by CARDINAL experts from ORG at ORG . After referring to the psychological findings in CARDINAL reports dated DATE , the experts diagnosed the applicants as suffering from post - traumatic stress disorder . PERSON was further diagnosed with major depressive disorder . The experts concluded that ORG had suffered a traumatic experience and PERSON NORP had suffered an aggravated traumatic experience . The doctors reached these conclusions having regard to the ORG submissions about traumatic experiences which had allegedly involved physical , psychological and sexual assault that they had endured DATE prior to their examination . Subsequently , ORG underwent psychotherapy at ORG at ORG . PERSON underwent psychotherapy and drug therapy .

On DATE the applicants were further subjected to bone scintigraphy tests . According to the relevant report , all values were normal in respect of both applicants .

The report submitted to the assize court on DATE ( see paragraph CARDINAL above ) , drawn up by DATE ( İhtisas Kurulu ) on DATE stated that there was no evidence demonstrating that the applicant had been subjected to physical violence . The CARDINALth Section took into consideration the reports issued in respect of the first applicant during and after her police custody when rendering this decision . It further noted that the bruise recorded in the report of DATE ( see paragraph CARDINAL above ) was DATE . The CARDINALth Section considered that ORG should be subjected to an examination by ORG in relation to the diagnosis of post - traumatic stress disorder .

The second report submitted to the first - instance court , dated DATE , was drawn up by the CARDINALth Section of Expertise . According to this report , the first applicant did not show any sign of post - traumatic stress disorder on DATE of her examination on DATE . However , the Section considered that the applicant had suffered from this disorder due to the trauma which she had experienced when she was detained in police custody , and that she had recovered as a result of the psychiatric treatment which she had received at ORG at ORG .

In its report of DATE the CARDINALnd Section considered that there was no evidence demonstrating that PERSON had been subjected to physical violence . The CARDINALnd Section took into consideration the reports issued in respect of the applicant during and after her police custody when rendering this decision . It also opined that the date on which the applicant ’s tooth had been broken could not be determined .

NORP The report of the CARDINALth Section dated DATE stated that the veracity of the second applicant ’s allegations of anal rape could not be assessed , since the rectal examination had been conducted long after the alleged sexual assault .

In its report of CARDINAL DATE , the CARDINALth Section of Expertise considered that PERSON had suffered , like PERSON , from post - traumatic stress disorder and also from major depressive disorder , but had recovered as a result of the treatment which she had undergone . The ORG noted that PERSON had experienced a traumatising event prior to her medical examinations DATE and DATE .

According to the reports dated DATE and submitted to the assize court on DATE ( see paragraph CARDINAL above ) , the majority of ORG ( CARDINAL members ) considered that the applicants were not suffering from posttraumatic stress disorder . The ORG considered that there were no physical findings in support of the diagnosis of the doctors from FAC at ORG . Noting that the only basis for this diagnosis had been the ORG statements , the ORG considered that the reports issued by the doctors from ORG had not been objective .

Attached to the opinion of the majority of ORG , ORG also submitted dissenting opinions . CARDINAL member of ORG considered that , on the basis of the file , it could not be determined whether or not the applicants were suffering from any psychological disorder . CARDINAL of the members considered that the applicants were suffering from post - traumatic stress disorder . However , the date on which the traumatic experience had occurred could not be determined . Another member opined that no decision could be made , since there were contradictions in the file . Finally , CARDINAL members of ORG opined that the reports of CARDINALth Section of Expertise stating that the applicants were suffering from post - traumatic stress disorder were accurate .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicants and CARDINAL other people . The applicants were charged under LAW and CARDINAL § CARDINAL of LAW and LAW no . ORG with membership of an illegal organisation and for throwing Molotov cocktails .

On DATE the ORG convicted the applicants of membership of an illegal organisation and sentenced ORG and PERSON to DATE and CARDINAL months’ and DATE and CARDINAL months’ imprisonment , respectively . The applicants were also convicted of throwing Molotov cocktails , for which they were sentenced to DATE , DATE and DATE , and DATE , DATE and CARDINAL days’ imprisonment , respectively . In its judgment , ORG took into consideration the ORG statements to the police . The court noted that , although the applicants had alleged that they had been subjected to ill - treatment while in police custody , the medical experts who had examined them following their release from custody had not observed any signs of ill - treatment on their bodies . ORG considered that the ORG allegations were therefore unsubstantiated .

DATE . The relevant law and practice in force at the material time are outlined in the judgment of ORG and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ECHR CARDINAL ... ( extracts ) ) ; PERSON to ORG of ORG in response to the Report of ORG for the Prevention of Torture ( the “ CPT ” ) on its visit to GPE from DATE , ORG ( CARDINAL ) CARDINAL ; ORG to ORG on the visit to GPE carried out by the ORG from CARDINAL to DATE , ORG ( CARDINAL ) CARDINAL , § DATE .

The ORG expressed its views on the provisions of NORP law concerning medical examination of persons in police custody in the following reports : ORG ( DATE ) CARDINAL § DATE ; ORG ( DATE ) CARDINAL § § CARDINAL ; ORG ( DATE ) CARDINAL § DATE ; ORG ( DATE ) CARDINAL § CARDINAL ; ORG ( DATE ) CARDINAL , § CARDINAL .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant first met his long - term partner , PERSON , in DATE and they began living together shortly afterwards . They took the decision that all income and assets would be jointly owned . In DATE they purchased a property which they owned as joint tenants and shared the mortgage payments . In DATE they celebrated DATE together .

On DATE Mr PERSON died suddenly .

On DATE the applicant wrote a letter to ORG ( later renamed ORG ) asking for an extra - statutory tax concession equivalent to the exemption from inheritance tax which a spouse would have received under LAW of LAW DATE ( “ ITA ” ) .

By letter dated DATE the Inland Revenue informed the applicant that the exemption under section CARDINAL was not available and referred him to the case of GPE v. IRC ( [ DATE ] STC ( SCD ) CARDINAL ) in which the section CARDINAL exemption was refused to an unmarried heterosexual co - habiting couple .

By letter dated DATE , the applicant distinguished the GPE case by pointing out that he and his partner , unlike heterosexual co - habitees , had been unable to marry and had been denied access to any right to exemption . He submitted that the refusal to extend the exemption to a same - sex cohabiting couple that had been prohibited from marrying was contrary to LAW in conjunction with LAW No . CARDINAL .

On DATE the ORG sent the applicant a Notice of Determination indicating that the Commissioners had determined that section CARDINAL did not apply to his estate .

On DATE the applicant gave notice that he intended to appeal to ORG , invoking inter alia LAW in conjunction with LAW No . CARDINAL .

On DATE the applicant was advised by leading counsel , Lord PERSON , that his appeal had no reasonable prospect of success under LAW DATE since it was not possible , in the light of the decision of ORG in R ( PERSON v IRC ) ( [ DATE ] CARDINAL WLR CARDINAL ) for section CARDINAL to be construed so as to comply with the Convention or for ORG to grant to him an extra - statutory concession equivalent to the statutory exemption .

The applicant stated that he had been assessed as liable to pay a sum in excess of GBP CARDINAL in respect of Mr PERSON ’s share of their jointly - owned assets , including their home .

See LAW , as set out in Burden v. the GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL- ... ) .


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

The applicant was born in DATE and lives in GPE .

On DATE ORG granted , in part , claims brought by a certain PERSON against the applicant and , inter alia , recognised his title to a share in a flat owned by the applicant .

On DATE ORG quashed the judgment of DATE on the applicant 's appeal and dismissed PERSON 's claims . This appeal judgment became final and binding .

On DATE the applicant sold the flat to a third person , S.

On DATE Z. lodged an application for supervisory review of the case .

On DATE a judge of ORG sent the case to its ORG for consideration by way of supervisory review .

On DATE the ORG of ORG reassessed the evidence , quashed the appeal judgment of CARDINAL DATE and upheld the judgment of DATE , granting ORG 's claims in part .

According to the applicant , neither she nor her lawyer attended the hearing due to the authorities ' failure to notify them of its date and time .

NORP The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG 's judgment in the case of Sobelin and Others ( see Sobelin and Others v. GPE , nos . CARDINAL/CARDINAL , et seq . , § § DATE , CARDINAL DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by their agent , Mr PERSON , of ORG , GPE .

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

In DATE , the applicant and his wife entered into a form of agricultural tenancy agreement with ORG which involved the applicant and his wife setting up and running a demonstration farm . Clause CARDINAL provided that

“ Any question difference or dispute which may arise between the landlord and the tenants ... not being a matter compulsorily referred to arbitration under ORG Acts shall if the parties can not settle it by agreement be referred to a single arbitrator to be appointed by the parties hereto or in default of agreement ... by the President for the time being of ORG on the application of the landlord or the tenants . ”

After a series of disputes with the council , the applicant asked for an arbitrator to be appointed . According to the applicant , in DATE the President of ORG appointed an arbitrator . In an opinion of DATE , ORG , in stating that the case fell outside the parameters of the Pro Bono scheme , made a number of comments on the case . In particular , it noted that clause CARDINAL of the tenancy agreement did not stipulate the LAW under which the arbitration should be carried out , did not stipulate the procedure or law to be applied , and did not expressly remove the jurisdiction of the courts .

On CARDINAL or DATE the applicant brought proceedings against ORG in the Guildford County Court ( PERSON DATE ) for , amongst other things , misrepresentation , negligence and breach of contract . In his claim , he asked the court whether an arbitrator could consider all the points in the claim , or whether the applicant could proceed in the courts on the ground that he had entered into the contract as a result of misrepresentation or , alternatively , whether an arbitrator could deal with some claims whilst the courts dealt with the others . He also included a series of allegations of misrepresentation , breach of contract and deception and misinformation .

The court stayed the proceedings on DATE : the Government suggested that by the stay the court was declining jurisdiction over the applicant ’s claims on the basis that he had agreed that those claims would be dealt with by an arbitrator . A further application by the applicant , of DATE , was dismissed on DATE , and the applicant ’s appeal was adjourned on DATE pending an application for legal aid . Leave to withdraw the appeal was granted on DATE , and on DATE the council ’s costs ( which the applicant was to pay ) were fixed at £ MONEY .

On DATE the applicant and his wife and the council signed an agreement by which a series of disputes were referred to an arbitrator in accordance with LAW . The disputes were defined by reference to CARDINAL bundles . ORG included the matters which formed part of the applicant ’s action before the county court .

Since then , it appears that the arbitrator has made CARDINAL interim awards in the applicant ’s favour , in DATE and DATE , but that most of the matters referred to arbitration are still outstanding .

On DATE the applicant wrote to the GPE court , referring to section CARDINAL of LAW and asking for the arbitrator to be removed . On DATE District Judge GPE declined to dismiss the arbitrator even though he accepted that the delays in the case were inexcusable . The ORG has not been supplied with the judge ’s reasons for that decision , although it appears from a letter from the council to the arbitrator that the judge stated that he might have been prepared to change his decision if matters did not proceed at a faster pace .


FEDERATION OF OFFSHORE WORKERS' TRADE UNIONS AND OTHERS v. NORWAY

The first applicant , ORG ( PERSON the OFS ” ) , was established in DATE and is a federation of trade unions for workers of all categories in LOC oil and gas industry . It is represented before the ORG by PERSON , a lawyer practising in GPE , GPE . The second applicant , Mr FAC was born in DATE and lives in Figgjo ; the third applicant , Mr PERSON , was born in DATE and lives in GPE . They are both NORP citizens . At the time of the events complained of they worked as roustabouts on oil rigs on the NORP ORG and were members of the OFS .

DATE , when the ORG became a nation wide federation , and DATE , when the events giving rise to their application under the Convention occurred , claims being negotiated by the organisation , including every collective wage agreement except for CARDINAL in DATE , were referred to compulsory arbitration on CARDINAL occasions .

In DATE the Confederation of Norwegian Business and Industry ( PERSON ) and ORG ( PERSON - “ the ORG ” ) negotiated with the ORG and ORG , Technicians and other Managers ( PERSON -“the ORG ” ) on a new wage agreement to take effect on DATE . The negotiations were conducted with CARDINAL major employee federations , namely the ORG , ORG ( Norsk Olje og PERSON the ORG ” ) and ORG ( PERSON the NALF ” ) , on CARDINAL , DATE and DATE . The main demand made by the ORG was a reduction in the retirement age from DATE , with a possibility of flexible retirement DATE ; this demand entailed a PERCENT increase in costs . In addition a pay rise was requested . The ORG and the ORG agreed to a PERCENT pay rise . The same offer was also made to the ORG , but the negotiations were broken off without any agreement being reached .

On DATE the ORG issued a collective strike warning with respect to CARDINAL of its members at the GPE platform ( oil rig ) . On DATE the ORG issued a collective strike warning for all members , initially confined to CARDINAL members at the Gullfaks B and ORG platforms . On DATE the ORG issued a warning of a lockout of CARDINAL ORG members at all fixed installations on the NORP continental shelf . On DATE the ORG warned that there would be a lockout of CARDINAL ORG members included in the collective notice but not part of the initial strike group .

In accordance with the procedures laid down in GPE DATE ( lov om arbeidstvister - Law no . CARDINAL of CARDINAL DATE ) for disputes involving a strike or lockout , ORG ( PERSON ) made an order prohibiting any work stoppage prior to compulsory mediation and summoned the parties to mediation . TIME on DATE , DATE was then fixed as the time - limit for resolving the dispute by mediation . As the mediator was unable to broker an agreement between the parties , the mediation was terminated on DATE at TIME and work stopped after TIME .

The Minister of ORG thereafter summoned the parties to a joint meeting that TIME at TIME The parties briefed the Minister on the situation . The Minister referred to the serious consequences of a complete work stoppage on all fixed installations on the NORP section of LOC , and stated that at a cabinet meeting the following day he would recommend that the ORG should issue a provisional ordinance imposing compulsory arbitration of the disputes .

In support of his recommendation for the Government to adopt a provisional ordinance , the Minister stated that the industrial action announced would lead to the complete suspension of all NORP oil and gas production , leading to a fall in production of an estimated value of ORG MONEY per week ( close to MONEY ) . This would worsen GPE ’s foreign trade balance by a corresponding amount . The ORG ’s tax revenues would be reduced by an estimated ORG MONEY per week and its direct oil revenues by ORG MONEY per week . The industrial action would have direct consequences for the ORG ’s financial commitment for DATE and would affect the ORG ’s financial needs both DATE and DATE . The estimated impact on the balance of trade and the reduction of ORG revenues would be extremely harmful to the NORP economy . An industrial dispute of any length was likely to have very damaging consequences . Oil and gas not produced at that time would nevertheless be exploited at a later stage and that would result in an increase of production after the different oil fields had passed the maximum production level . This production increase would be spread over DATE , until such time as production ceased . Thus the overall societal consequences of the industrial action would also depend inter alia on the evolution in price levels until the possibilities of exploitation of these resources had been exhausted . Since NORP natural gas was being delivered under long - term contracts , a work stoppage over a lengthy period would seriously reduce GPE ’s credibility as a reliable supplier of gas . If the technical installations were to be closed down for longer periods , it could entail damage to the installations and negative consequences for safety would follow . The equipment was designed with a view to regular use over long periods . A work stoppage of any length would moreover require the lay off of other categories of employees . At the close of the negotiations the situation was deadlocked with both parties unwilling to compromise . It therefore seemed likely that the conflict would continue for some time . The recommendation concluded :

“ Considering the matter as a whole , the Ministry ... has reached the conclusion that the conflict ... should be resolved without industrial action . In this assessment , great emphasis has been placed on the fact that the complete cessation of production of oil and gas would lead to a considerable loss of income for the country . The industrial conflict will therefore have great consequences for the financing of the ORG and ORG budgets . The ORG has further emphasised the importance of not undermining GPE ’s position as a dependable and reliable gas supplier .

GPE has ratified LAW ILO ) which protect freedom of association ( LAW . CARDINAL , CARDINAL and CARDINAL ) . As interpreted by competent organs , the ORG only allow intervention in the right to strike where the strike jeopardises the life , health or personal security of the entire population or parts of it . LAW , under ORG , contains in DATE , QUANTITY cf . , DATE , corresponding provisions which protect the right to take industrial action .

In the light of the fact that the NORP authorities have on several occasions imposed compulsory arbitration and prohibited strike action in labour disputes in LOC , the ORG has on CARDINAL occasions lodged complaints against GPE with the ORG , alleging breaches of the LAW on freedom of association . The ORG agencies have in this connection levelled criticism against the NORP authorities’ practice , stating that the legislative interventions in labour disputes in the oil sector are not compatible with the principles of freedom of association .

ORG has appraised the problems in relation to the ORG and the criticism expressed by the ORG bodies and balanced this against the harmful effects of the strike , and after careful consideration has concluded that it is correct and necessary to intervene in the dispute . In this context great weight has been given to the fact that the situation between the parties upon the expiry of the deadline for mediation was absolute deadlock and that there is therefore reason to believe that the dispute may be long - lasting . "

Under LAW , the Government adopted with immediate effect on DATE a provisional ordinance , according to which disputes relating to the revision of the wage - agreement in question were to be settled by ORG ( PERSON ) , the provisions of LAW CARDINAL ( lov om lønnsnemnd i LAW no . CARDINAL of DATE ) should apply , and work stoppage and picketing were prohibited . Work was duly resumed DATE at TIME

ORG is a permanent arbitration body composed of CARDINAL members , CARDINAL of whom are appointed by the Government for DATE and the other CARDINAL are appointed by the respective parties to the dispute . The group of CARDINAL includes CARDINAL members who are independent of the Government , the ORG or employees’ organisations and CARDINAL experts representing respectively ORG and employees’ interests , who , unlike the other members , have no voting rights .

On DATE the ORG brought an action in ORG ( byrett ) demanding that the compulsory arbitration be held invalid . By judgment of DATE ORG found for the ORG , represented by ORG , and ordered the ORG to pay the ORG ’s legal costs .

The ORG appealed to ORG ( lagmannsrett ) , invoking an error of law . Concurrently the applicant organisation sought to appeal directly to ORG ( PERSON ) . ORG ( kjæremålsutvalg ) of ORG subsequently granted leave .

The ORG claimed firstly that the provisional ordinance was unlawful ( ugyldig ) as the ban on strikes ran counter to general principles of constitutional law . Alternatively , the ORG argued that the ban violated GPE ’s international legal obligations which , in the event of a dispute , override NORP domestic law . The ORG , represented by ORG , disputed these contentions .

In its judgment of DATE , ORG unanimously rejected the ORG ’s appeal and ordered it to pay the ORG ’s legal costs in the proceedings . Mr Justice ORG opinion , to which the other ORG justices subscribed , included the following reasons :

As regards the position under domestic law , it was noted that DATE , CARDINAL Acts of ORG and CARDINAL provisional ordinances had been adopted on compulsory arbitration in labour disputes , including CARDINAL disputes in the oil sector , and CARDINAL royal decrees had been adopted under the legislation on compulsory arbitration . The longstanding practice of using compulsory arbitration to settle labour disputes in pursuance of major societal interests did not contravene general legal principles of constitutional law . Setting aside a statute or a provisional ordinance on the grounds that it conflicted with general principles of constitutional law could only be envisaged in the most extreme cases . Although freedom of association and the right to take strike action were generally accepted in GPE , it was also generally recognised that the right to strike was not unlimited . Since DATE the legislation had contained provisions stating when and on what conditions strike action could be taken in labour disputes . In order to safeguard substantial societal interests , bans on strikes and compulsory arbitration had been imposed by special legislation or provisional ordinances .

On the question whether the restriction on strikes conflicted with GPE ’s international law obligations , it was recalled that work stoppages were not mentioned in the FAC nos . CARDINAL and DATE , nor had they been a theme for negotiation during the ORG labour conferences in DATE . Since those conferences , the stance taken by the ORG bodies had evolved . ORG had already expressed the view in DATE that from LAW , the ORG conference in GPE in DATE and Convention no . DATE , it was implicit that the right to strike and to impose a lockout were fundamental aspects of the right to freedom of association , which view was later accepted by the expert ORG . This evolution in the interpretation advocated by the ORG bodies led to their criticism of the use of compulsory arbitration in GPE . ORG of the ILO Governing Body and , subsequently , ORG had in many instances , including in NORP cases , affirmed that the right to strike must be regarded as a part of trade union freedom of association and the right to bargain , and that it was therefore protected against interference by the authorities .

However , according to the practice of the ORG bodies , strike action could be forbidden in respect of public servants engaged in the administration of the ORG , if it would affect essential services thereby jeopardising the life , health or personal security of the entire population or parts of it , and the harm was clear and imminent . Harmful economic effects to society , even if deemed substantial , had not been considered a sufficient reason for intervention . ORG work , oil production , education and transport were examples of services that had been regarded as nonessential . Since DATE the use of compulsory arbitration in GPE had been the subject of CARDINAL complaints to ORG agencies . ORG , with the support of the ORG ’s ORG , had endorsed the petitioner ’s contention that the use of compulsory arbitration did not comply with the principle of freedom of association . CARDINAL of the successful petitions had concerned compulsory arbitration in respect of the OFS . However , the court emphasised that , under the DATE LAW , ORG , ORG and ORG had no competence to determine with binding effect disputes on the interpretation of the ILO Conventions , for which competence was vested in ORG . The court observed that GPE had never accepted that the use of compulsory arbitration required by a substantial societal interest was contrary to the ILO Convention nos . CARDINAL and CARDINAL . In its view , the opinions held by the institutions of the ORG on the limits to ORG intervention in labour disputes did not have a basis in the LAW texts as negotiated and adopted .

As regards the more recent provision in LAW ( d ) of LAW , the court observed that GPE had found it necessary to make a reservation in the light of the use of compulsory arbitration , with possible further exceptions being made to the right to strike .

Moreover , the court noted that the NORP practice of compulsory arbitration had been criticised by ORG DATE European Social Charter for going further than authorised by Articles DATE and QUANTITY of the LAW . In DATE the ORG had proposed in a draft recommendation that a provisional ordinance on compulsory arbitration of disputes in the oil sector dated DATE be deemed incompatible with the LAW . ORG later rejected the proposal . In these circumstances there was , in the court ’s view , no clear practice establishing that the provisional ordinance in issue in the present case was contrary to LAW .

The court also had regard to ORG PERSON and GPE v. GPE judgment of DATE ( Series A no . CARDINAL ) , and noted that neither the ORG nor the ORG had found an infringement of LAW by virtue of the award of increments to members of non - striking unions , but not to members of striking unions , which included the applicants although they had not actually been on strike themselves .

In addition , it was noted that in interpreting LAW in PERSON GPE ( case CARDINAL/CARDINAL ) , ORG had had regard to the fact that , while the right to strike was expressly included in LAW ( d ) of LAW , it was not mentioned in DATE , indicating that this right fell outside its scope .

In the light of the above , the court did not find that GPE was required by international law to limit the use of compulsory arbitration in a labour dispute where such intervention was necessary in order to safeguard substantial societal interests . In any event , neither the LAW nor LAW contained any detailed standards limiting State restrictions on the right to strike , such as those derived by the ORG bodies from the FAC nos . CARDINAL and DATE and LAW . Accordingly , it concluded that the provisional ordinance of DATE was not at variance with GPE ’s obligations under international law . Thus , it was not necessary to examine the question of any conflict between GPE ’s obligations under international law and its domestic law .

ORG , formerly ORG , in its CARDINALth report ( with reference to DATE ) , observed with respect to the provisional ordinance in issue in the present case that it accepted that the implications of the industrial action would have been serious in terms of the loss of revenue . However , ORG was not satisfied that the situation was so serious that it fell within LAW , that is to say that it was necessary for the protection of the public interest . It noted that the loss of revenue would not necessarily have been of a permanent nature . Accordingly , it concluded that in this case the imposition of compulsory arbitration and the termination of the industrial action did not fall within the terms of LAW ( Conclusions XIV-CARDINAL , GPE . CARDINAL , GPE , LAW , p. CARDINAL ) .

When the matter was subsequently considered by ORG , which observed :

“ Several delegates thought that they were not in a position to assess the NORP situation since the case law of ORG on the interpretation of LAW is sparse , and it is difficult for them to assess whether , in the case at hand , the action of the Government went beyond what is authorised by LAW . ”

ORG decided to draw the attention of the NORP authorities to the fact that action by ORG or the ORG in the event of compulsory arbitration should not go beyond the limits laid down by LAW ( ORG XIV-CARDINAL , paragraph CARDINAL ) . No warning was issued by ORG with respect to the events in DATE .

During the proceedings before ORG , the Government supplied information according to which if the strike had lasted DATE it would have reduced the value of petroleum extraction by approximately ORG MONEY ( PERCENT of GPE ’s Gross Domestic Product ) and central government revenues by ORG MONEY ( PERCENT ) . The calculations did not take into account shutdown and start - up costs , the fact that it would be some time before the production level reached the pre - shutdown level and that a shutdown of any length could result in damage to installations and equipment that was designed to be in continuous operation over a longer period . Since production would normally be maintained at maximum level , recovery of lost production would only take place after peak production levels at the relevant fields had been reached . Notwithstanding the possibility of recovering lost revenues at a later stage , a halt in extraction would inevitably be accompanied by a loss in extraction value , export earnings and central government revenues for DATE in which the halt occurred . The real loss in revenues would thus depend on the prices prevailing at the time of recovery . The net present value of the loss would have amounted to PERCENT . The central government budget deficit was sizeable and had grown from DATE ; as at DATE , it was expected to amount to ORG MONEY ( before loan transactions ) for DATE . A strike would have caused an increase in that deficit .

The Government further submitted that GPE , together with GPE and GPE , was the main gas exporting country to ORG ( “ the ORG ” ) . In DATE natural gas covered PERCENT of the primary energy consumption in the ORG countries . NORP gas supply counted for PERCENT of gas imports and PERCENT of gas consumption in the ORG area . The rigidity and inflexibility associated with pipeline delivery of natural gas implied that sources of gas supply were impossible or difficult to replace . Substantial volumes of hydrocarbons passing through FAC and PERSON ( GPE ) landing points were largely irreplaceable in the short and medium term . Industries and households in this region in particular would depend on the NORP gas supply . A storage facility had been built in GPE but would only cover PERCENT of GPE ’s obligations for DATE . In the event that the NORP gas supply were to be cut off , the consequences would be substantial for the NORP and NORP industries , which did not have any alternative possibilities and would be faced with complex shutting down and restarting procedures . GPE had therefore undertaken to be a reliable gas supplier , notably under LAW , which took effect in DATE , and involved an investment of over ORG MONEY for platforms , terminals and pipelines and ORG MONEY for a storage facility . Under these agreements suppliers and buyers were bound under unique physical and commercial arrangements forming a complex web of mutually dependent relations , with stability in gas supply being a key element . Any suspension in delivery would be likely to lead to a dramatic fall in both current and future gas prices .

In response to the above - mentioned information adduced by the Government , the applicants submitted information to the effect that the real price per barrel of crude oil was ORG CARDINAL in DATE , ORG CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE , ORG in DATE , ORG FAC in DATE and ORG CARDINAL in DATE . In DATE it was assumed that the average lifetime of oil fields was , in fact , longer than the DATE estimate of DATE , on which the Government apparently relied . A deferment of production from DATE because of a strike could thus have led to far higher real prices than would have been achieved without a delay , and a present value loss that was PERCENT suggested by the Government .

The applicant further stated that in DATE GPE had an export surplus of ORG MONEY and the public administration had been in the unique position of having significant net receivables ( ORG MONEY in DATE , CARDINAL in DATE , MONEY in DATE and CARDINAL in DATE ) .


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

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

On DATE the applicant , who was DATE at the time , and CARDINAL other persons were arrested by officers from the ORG police station in GPE on suspicion of having been involved in a theft . According to the arrest report , during their arrest the arrestees cut themselves with pieces of glass which they had on them in protest at their arrest . The arrest report was not signed by the applicant or the other arrestees .

On DATE the applicant was examined by a doctor , who noted a graze of MONEY on his left shoulder blade . The doctor also noted that the applicant was not fully conscious .

On DATE the applicant was once again examined by a doctor , who noted that there were incisions on the applicant ’s abdomen and CARDINAL superficial grazes of QUANTITY on his left shoulder blade and left shoulder . According to the medical report , the applicant stated to the doctor that the incisions had occurred when he had cut himself . He further stated he had been hit on the head . Noting that the applicant was not fully conscious , the doctor referred the applicant to a hospital for a neurological consultation .

On DATE the applicant underwent a neurological examination , following which the director of the GPE branch of ORG informed the police that no objective neuropathological finding had been observed on the applicant and that there had not been any trace of trauma on the applicant ’s head . The director further informed that there was a graze of QUANTITY on the applicant ’s left shoulder . The applicant was subsequently detained within the context of the criminal proceedings brought against him , which resulted in his acquittal on CARDINAL DATE .

Meanwhile , on DATE the applicant submitted to the GPE public prosecutor ’s office that he had been beaten while in police custody . He claimed that the police officers had thrown him on to the floor and kicked him . He had also been hit on the head . In support of his allegations , the applicants referred to the grazes found on his left shoulder blade and left shoulder . The applicant noted that CARDINAL police officer , GPE , had rescued him from another officer who had been beating him . On an unspecified date one of the other arrestees , ORG , also made a formal allegation of ill - treatment .

On DATE the GPE public prosecutor filed a bill of indictment with ORG , charging CARDINAL police officers with inflicting ill - treatment upon the applicant and GPE

During the trial , ORG heard the complainants , the accused and certain witnesses , including ORG brother , who noted that ORG had been under the influence of drugs and had not been ill - treated when he had seen him in the police station . A certain GPE submitted that he was a friend of the applicant and that he had not observed that any illtreatment had been inflicted on the applicant when he had gone to the police station . Finally , GPE stated before the court that he had not been in the police station on DATE . The court also took the medical reports of CARDINAL and DATE into consideration .

On DATE ORG acquitted the police officers , holding that there was insufficient evidence against them . The court noted that the ORG statements had been contradictory and that the witness statements did not correspond to the ORG allegations .

The applicant appealed . On DATE ORG upheld the judgment of the first - instance court .


The applicants , whose names appear in the appendix , are NORP nationals , and they all live in PERSON . They are represented before the ORG by Mr PERSON , a lawyer practising in ORG .

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

Until DATE the applicants lived in GPE in the district of GPE , in GPE , where they owned houses , livestock and land .

In DATE their village was forcibly evacuated and destroyed by security forces . The applicants and their families moved to ORG where they are currently living .

On DATE one of the applicants , PERSON lodged a petition with the LOC Governor ’s office in GPE complaining about the burning of his house and belongings on TIME CARDINAL DATE , requesting the assessment of and compensation for this damage .

On DATE ORG issued a decision of non - jurisdiction in accordance with the PERSON on the Prosecution of Civil Servants ( Memurin Muhakemati Kanunu ) and decided to send the case file to the executive committee of ORG .

In his petition dated DATE , the applicant PERSON complained to the NORP Governor and to ORG that , although he lived in a building constructed for earthquake victims , he had been unable to receive government aid .

On DATE , in reply to the petition of DATE , the NORP Governor of GPE stated that the villages in the area had not been burned by members of the security forces as alleged by the villagers , but by terrorists wearing military uniform .

In DATE the applicant PERSON filed a final complaint with ORG and ORG offices in GPE .

On DATE they received the following letter from the GPE District Governor , ORG :

“ It is established that your village was burned down by terrorists . Therefore , there is no basis to start an investigation against state officers .

Furthermore , I would like to add that the petition which you have filed with us will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

The case file does not contain any document submitted by the second applicant , PERSON .

Until DATE the applicants all lived in GPE , in the district of GPE , in GPE , where they owned houses , livestock and land .

On DATE CARDINAL of the applicants , Mr PERSON , who is the village mayor ( muhtar ) , filed a petition with the GPE office in GPE , on behalf of the villagers , complaining about the eviction .

On DATE he requested a loan from ORG in GPE to allow the villagers to cultivate their land .

On DATE some mayors , including PERSON , lodged a petition with ORG , where they complained of a reimbursement order asking the villagers to pay back government aid previously granted as compensation for their losses in the DATE earthquake . They demanded the annulment of the reimbursement order on the ground that the villagers had lost all their property during the destruction of their villages .

On DATE the mayors petitioned the Governor ’s office in GPE , ORG , the Governor ’s office in the state of emergency region , ORG Presidency , the Prime Minister ’s office and the Presidency of the ORG . They requested compensation for their losses .

On DATE Mr PERSON lodged further petitions with various government offices , namely the Governor ’s office in GPE , the Presidency of the ORG , the Prime Minister ’s office and the office of the President of the Republic , requesting permission on behalf of the villagers to return to their villages .

In DATE the applicants filed a final complaint with ORG offices in GPE .

Until DATE the applicants lived in the above villages , in the district of GPE , in GPE , where they owned houses , livestock and land .

In DATE the villages were forcibly evacuated and destroyed by security forces . The applicants and their families moved to ORG where they are currently living .

On DATE the mayors of the above mentioned villages filed a petition with ORG in the province , demanding government aid .

On DATE they also petitioned ORG , demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of DATE , on the ground that they had lost all their property during the destruction of their villages .

On DATE they petitioned various authorities , namely the Governor ’s office in GPE , ORG , the Governor ’s office in the state of emergency region , ORG Presidency , the Prime Minister ’s office and the Presidency of the ORG . They requested compensation for their losses .

On DATE the village mayors lodged further petitions with various government offices , namely the Governor ’s office in GPE , the Presidency of the ORG , the Prime Minister ’s office and the office of the President of the Republic , requesting permission for villagers to return to their villages .

On DATE the mayor of ORG village issued a press release along with some other villagers and representatives of some associations , denouncing the incidents that had taken place in the villages in their area .

In DATE the applicants filed a final complaint with the Governor ’s and Public Prosecutor ’s offices in GPE .

Until DATE the applicants lived in the above villages in the district of GPE , in GPE , where they owned houses , livestock and land .

On DATE the mayors of the above villages lodged a petition with ORG , demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of DATE , on the ground that they had lost all their property during the destruction of their villages .

In CARDINAL DATE the mayors , villagers and some associations issued a press release , denouncing the burning of their villages .

On DATE the mayor of the NORP village lodged further petitions with various government offices , namely the Governor ’s office in GPE , the Presidency of the ORG , the Prime Minister ’s office and the office of the President of the Republic , requesting permission for the villagers to return to their villages .

In DATE the applicants filed a final complaint with the Governor ’s and Public Prosecutor ’s office in GPE .

Until DATE the applicant lived in GPE in the district of GPE , in GPE , where he owned a house , livestock and land .

In DATE his village was forcibly evacuated and destroyed by security forces . The applicant and his family moved to ORG where they are currently living .

On DATE the applicant petitioned the ORG office complaining about the forced eviction by security forces and asked for compensation .

On DATE the mayor of the applicant ’s village sent letters to the Governor ’s office in GPE , to ORG , to the Governor ’s office in the state of emergency region and to the Prime Minister ’s office complaining about the impugned incident .

On DATE the applicant sent another letter to the District Governor ’s office asking for help .

On DATE and DATE the applicant sent petitions to the GPE office and to ORG , respectively .

In his third letter dated DATE addressed to the District Governor , the applicant complained about the authorities’ refusal to grant him aid .

The applicant filed CARDINAL more petitions with the GPE office , CARDINAL dated DATE and the other undated .

In his petition of DATE , the applicant requested permission to return to his village invoking his rights under LAW No . CARDINAL to the LAW . The District Governor , in a reply dated CARDINAL DATE , informed the applicant that the authorities were working on a project that would enable the villagers to return to their homes .

On DATE the applicant received another letter from the District Governor , drawing attention to the lack of evidence which would allow the authorities to initiate an investigation into the allegation that his house in the LOC village had been burned down by security forces .

Until DATE the applicants lived in GPE , in the district of GPE , in GPE , where they owned houses , livestock and land .

In DATE the village was forcibly evacuated and destroyed by security forces . The applicants and their families moved to ORG where they are currently living .

Following their eviction , the applicants , a father and his son , complained to the District Governor and to ORG in GPE .

The public prosecutor verbally rejected the ORG allegations that the security officers had evacuated their village however he continued with taking their statements .

In DATE the applicants petitioned various administrative authorities , namely the Governor ’s office in GPE , ORG , the Governor ’s office in the state of emergency region and the Prime Minister ’s office , complaining about the evacuation of their village and the refusal of the authorities to allow them to return to their homes . The applicants did not receive any reply from these authorities .

In DATE the applicants filed a petition with the District Governor in GPE . They requested permission to return to their village and compensation for their losses .

On DATE the applicants received a letter from the District Governor in reply to their petition . The District Governor informed the applicants that their request would be considered within the context of the “ Return to Villages and Rehabilitation Project ” .

The investigation carried out by the authorities indicated that the applicants had left their villages on their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE CARDINAL . She was represented before the ORG by Mr O. Choděra , a lawyer practising in GPE CARDINAL . The respondent Government were represented by their Agent , PERSON .

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

On DATE the applicant lodged an action with the Prague ORG ( obvodní soud ) against a private entrepreneur , seeking the payment of CZK CARDINAL ( EUR CARDINAL ) . The action reached the court on DATE .

On DATE ORG invited the applicant to pay the court fees , which he did . The proof of this payment was notified to ORG on DATE .

On DATE the court requested an excerpt from ORG ( živnostenský rejstřík ) concerning the defendant 's business activities , which was submitted on DATE .

On DATE the applicant 's claim was sent to the defendant .

On DATE the Prague ORG found that the defendant had his permanent address within the GPE CARDINAL district and , on CARDINAL DATE , it transferred the action , for territorial reasons , to the GPE CARDINAL ORG .

By a payment order ( platební rozkaz ) of DATE , ORG ordered the defendant to pay the sum claimed by the applicant , including the default interest . According to the Government , the payment order was issued on DATE .

The defendant did not appeal and the order became effective on DATE .

On DATE the applicant requested the execution of the payment order by means of the sale of the defendant 's movable property . The applicant 's request was notified to ORG on DATE .

By letter of DATE , notified , according to the applicant , on DATE , ORG invited the applicant 's lawyer to submit his power of attorney and to pay the court fees . The power of attorney and proof of payment of the fees reached the court on CARDINAL and CARDINAL DATE respectively .

On DATE ORG ordered the execution of the payment order . On DATE the order was notified to the applicant 's lawyer who , on DATE , and upon ORG request , returned it for rectification of the date from which the default interest had to be paid to the applicant .

On DATE the applicant 's lawyer urged the court to continue with his client 's proceedings .

On DATE the court rectified the payment order which , on DATE , was served on the applicant .

On DATE , CARDINAL May and DATE a bailiff unsuccessfully attempted to serve the execution order on the defendant , and to draft a list of movable property belonging to him .

In the meantime , on DATE and DATE , the applicant 's lawyer had requested the court to enforce the execution order .

During the period from DATE to DATE , the defendant repeatedly attended ORG and paid the amount due in several instalments . On DATE ORG remitted the whole sum of CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) to the applicant . In the meantime , on DATE , the bailiff had again unsuccessfully tried to contact the defendant at his permanent address .

On DATE ORG remitted the defendant 's outstanding payment of MONEY ( EUR CARDINAL ) to the applicant .

In his letter of CARDINAL DATE addressed to ORG , the applicant 's lawyer stated , without providing further details , that his client had received the totality of the amount due in DATE .


The applicant , PERSON , is a NORP national , who was born in DATE and resides in the town of GPE , GPE .

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

DATE the applicant worked as a miner at the “ ORG ” mining factory No . CARDINAL - the State Open Stock Company . On DATE , following a medical examination , the applicant was recognised as an invalid due to an occupational disease . By an order of CARDINAL DATE by his employer , the applicant was awarded a lump sum of CARDINAL NORP hryvnyas ( ORG ) and DATE payments of MONEY . By another order of CARDINAL DATE , the DATE payments were increased to MONEY .

The awarded lump sum of CARDINAL ORG was never paid to the applicant and the DATE payments were recovered only in part .

In DATE the applicant instituted proceedings in ORG of L’viv Region against his former employer to recover all the payments due to him .

On DATE , the court found in favour of the applicant ( ORG мiського суду ) . The mining company was ordered to pay the applicant CARDINAL ORG . The decision became effective and , on DATE , was sent for execution to the mining company and later transferred for enforcement to ORG ( вiддiл PERSON виконавчоï служби Червоноградського мiського управлiння юстицiï ) .

The part of the judgment on the DATE payment of arrears was fully executed in DATE and the related enforcement proceedings were closed on DATE .

The part of the judgment on the lump sum for the applicant ’s disability was fully executed in DATE , and the enforcement proceedings were closed on DATE .

Civil Code of GPE

Under LAW , in case of delay in the fulfilment of its financial obligations , the debtor must , upon a claim of the creditor , pay the amount of the debt , plus any interest payable at an established inflation rate during the default period .

PERSON of GPE of DATE “ on Enforcement Proceedings ”

Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW of the PERSON the creditor may file a complaint against actions or omissions of ORG with the head of the competent department of that ORG or with a local court . Article CARDINAL of the PERSON entitles the creditor to institute court proceedings against ORG for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .

PERSON of GPE of DATE “ on ORG ”

LAW provides for the liability of bailiffs for any inadequate performance of their duties , and compensation for damages caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .