CASE OF MOSTACCIUOLO GIUSEPPE v. ITALY (No. 2)

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

NORP The applicant was born in DATE and lives in GPE .

On CARDINAL DATE Mr F. asked ORG to order the applicant to pay him MONEY ( MONEY ( ORG ) ) for professional services . On CARDINAL DATE the President of ORG granted the application . The order was served on the applicant on DATE .

On DATE the applicant challenged the order in ORG . Preparation of the case for trial began on DATE . Of the CARDINAL hearings listed between CARDINAL DATE and CARDINAL DATE seven were adjourned by the court of its own motion , CARDINAL were devoted to organising expert evidence and supplementary findings and CARDINAL were adjourned at the parties’ request .

On DATE the case was referred to the bench of judges dealing with the oldest cases ( sezioni stralcio ) . Of the CARDINAL hearings listed DATE and DATE CARDINAL was adjourned by the court of its own motion and one because the parties had not appeared . On DATE the case was struck out of the list of cases because the parties had not appeared .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the excessive length of the above - described proceedings . The applicant asked the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the pecuniary and non - pecuniary damage sustained . The applicant claimed LAW in pecuniary and non - pecuniary damages . He sought the reimbursement of his legal costs , including those incurred before ORG , but did not quantify or give particulars of them .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the length of the proceedings had been excessive . It held as follows :

“ ... The proceedings have lasted DATE without being disposed of .

Their length is clearly well over the reasonable time required by LAW .

On the basis of the time periods considered reasonable in a series of judgments of ORG , this type of proceedings should have ended within DATE at the most since they were normal proceedings on the merits to be prepared and dealt with in accordance with the ordinary procedure .

Accordingly , in respect of the surplus period of DATE the delay has to be regarded as unjustified .

That delay certainly can not be attributed to culpable conduct on the part of the applicant , who did not make any unsubstantiated requests for an adjournment or applications for investigative measures on false pretexts since he merely put up with the numerous adjournments ordered by the court of its own motion and the slowness in preparing the case without being able to intervene to expedite the proceedings , as was in his interests , and have set aside an order to pay a substantial sum which he considered unfair .

Nor is the delay attributable to the complexity of the case since , on the contrary , it was an ordinary dispute which could easily have been disposed of in less time by examining a number of documents and the expert report that was drawn up , as the technical investigation did not require a lot of work .

Nor have the courts been negligent , since the overlong parts of the proceedings have to be attributed to the excessive caseload and the structural flaws for which the ORG judicial departments are notorious .

Accordingly , responsibility for the delay can only be attributed to the NORP ORG , which , despite its obligation after signing and ratifying LAW to equip itself with a judicial system capable of dealing with its ORG legal claims , has failed to expedite proceedings because of persistent structural flaws and the growing increase in the caseload , despite a number of changes to the rules and a reinforcement of the court structures .

The applicant shall therefore be awarded just satisfaction .

No award shall be made for pecuniary damage because the applicant has failed to substantiate his claim .

He is , however , entitled to non - pecuniary damages since it can not be excluded that he has suffered as a result of the consequent long and frustrating wait for a judgment which has still not been delivered after DATE of preparation of the case and which should solve a matter of major economic importance for him .

Having regard to the length of the delay , the interests at stake and the uncertain outcome of the dispute , we consider it equitable to make an award of MONEY ... ”

ORG dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof , awarded him ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage , EUR CARDINAL for costs and expenses incurred in the proceedings before ORG for the costs and expenses incurred in the Pinto proceedings .

In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of his application .

The applicant has not indicated that he appealed to ORG .

ORG decision was served on the authorities on DATE and became final on DATE . The applicant served the authorities with notice to comply on DATE . On DATE the applicant lodged an application for a garnishee order with the GPE judge responsible for enforcement proceedings and a hearing was held on DATE . After obtaining a garnishee order on DATE , the sums were paid on an unspecified date after the order had been served .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW

CHAPTER II

Just satisfaction

Section CARDINAL

Entitlement to just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable - time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL

Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

Section CARDINAL

Time - limits and procedures for lodging applications

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

Section CARDINAL

Communications

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

Section CARDINAL

Transitional provisions

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

Section CARDINAL

Financial provisions

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on CARDINAL DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . ORG is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

– In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .

- the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...

- a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . MONEY ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle of LAW ... ”

In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the ORG deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


CASE OF FADİME AND TURAN KARABULUT v. TURKEY

Violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicants were born in DATE and DATE respectively and live in GPE . They had QUANTITY daughters , PERSON and PERSON .

According to the applicants , on DATE at TIME the QUANTITY girls were hitchhiking to PERSON when a military vehicle stopped and the soldiers who got out started shooting at them . PERSON , who was DATE , was shot and died later in DATE in a hospital . PERSON , who was DATE , was beaten by the soldiers before being taken to a gendarmerie station . She was released TIME .

DATE a scene of incident report was drawn up by the gendarmerie officers . According to that report , a person who wanted to remain anonymous telephoned the gendarmerie and stated that he had seen a female behaving suspiciously . A number of gendarme officers and soldiers arrived at the scene at TIME and saw the female in question . When the female saw the soldiers she began to run away . The soldiers unsuccessfully called out to her to stop and then fired CARDINAL to QUANTITY warning shots in the air . The female responded by throwing a hand grenade at the soldiers and the soldiers continued firing warning shots . When she attempted to throw another grenade , the soldiers shot her . When they searched her the soldiers found a stick , CARDINAL knives , a screwdriver , a QUANTITY - long electricity cable , a syringe with a yellow liquid inside and a hand grenade . None of the soldiers were injured in the incident . PERSON was then taken to a hospital in the city of GPE where she died DATE .

On DATE the second applicant and his surviving daughter PERSON made statements to a prosecutor . The second applicant maintained that his CARDINAL daughters had been trying to flag down a car in order to go to a hospital in GPE where they had had operations previously . When no cars stopped , the girls had decided to walk to their uncle 's house but then the soldiers arrived and told the QUANTITY girls to stop . PERSON raised her hands and stopped but PERSON started to run away from the soldiers because she was scared . The soldiers then shot her . The second applicant asked the prosecutor to find and prosecute those responsible for the killing of his daughter .

Serap Karabulut confirmed the version of the events described by her father and added that she would recognise the soldier who shot her sister . She also stated that the soldiers had beaten her up .

DATE PERSON was taken to ORG where she was examined by a doctor . The medical report indicated that there was an area of bruising measuring CARDINAL x QUANTITY , on her right shoulder and a scratch measuring QUANTITY on her left shoulder .

Also DATE an autopsy was conducted on PERSON body at ORG , with the attendance of a prosecutor . Just before the autopsy her mother formally identified her deceased daughter . She told those present at the hospital that her daughter PERSON had been carrying the knives and the screwdriver in order to defend herself from any possible attacks while she was herding animals . She added that the syringe was hers and contained a tranquilliser which had been prescribed to her by her doctor ; she did not know why her daughter had taken it from the house . She asked for those responsible for the killing of her daughter to be prosecuted and punished .

According to the autopsy report drawn up DATE , PERSON had died as a result of internal bleeding caused by a single bullet which had entered from the back at the level of DATE left rib and exited at the front at the level of the ninth rib . The prosecutor who was present during the autopsy observed that the hand grenade which was allegedly found on PERSON ( see paragraph CARDINAL above ) was not among the objects submitted to his office .

According to a report prepared DATE at ORG , the yellow liquid in the syringe was identified as heroin .

On DATE a scene of incident report was drawn up by the prosecutor who went to the area where PERSON was killed . The prosecutor was accompanied by ORG district gendarmerie commander PERSON , the applicants ' surviving daughter PERSON , the applicants ' representative , the village headman ( muhtar ) and an expert on explosives . A search was carried out in the area , during which a spent bullet case and a grenade fuse were found . A hole , QUANTITY wide and QUANTITY deep , was observed by those present . According to the expert , the hole could have been caused by a hand grenade as well as by numerous other things . No pieces of the hand grenade allegedly thrown by PERSON could be found in the area . The FAC district gendarmerie commander ORG told the prosecutor that the second hand grenade which was found on PERSON had been destroyed by the soldiers after the incident .

On various dates in DATE , the prosecutor took statements from CARDINAL gendarmerie officers who had been involved in the incident . The officers stated that they had acted under the belief that PERSON was a terrorist because she had thrown a hand grenade at them and also because they had thought that the wooden walking stick hidden under her jacket was a rifle . They had fired warning shots , and when she was about to throw the second hand grenade , they had fired shots at her , aiming below the waist and at the hand with which she had been holding the hand grenade . Their intention was not to kill but to injure her so that they could arrest her .

On DATE the applicants lodged a complaint with the NORP prosecutor and informed the prosecutor that the gendarmerie personnel responsible for the killing of their daughter had been issuing press releases in which claims such as “ the suicide bomber was on heroin ” were made .

On DATE ORG issued its report on the fuse and a sample of soil taken from the hole found at the scene . According to the report , the fuse belonged to a hand grenade of ORG standard , the origin of which could not be identified . It was also established that the soil sample contained traces of GPE ( ORG ) .

On DATE ORG issued its report on the results of tests carried out on a blood sample taken from PERSON body and on the yellow liquid in the syringe found with her . According to the report , there were no drugs in GPE blood . The liquid in the syringe was identified as chlorpromazine , a type of tranquilliser .

On DATE gendarmerie lieutenant - colonel PERSON was appointed as the investigator on the case and began questioning the gendarmerie personnel who had taken part in the incident . On DATE the lieutenant - colonel concluded his investigation and recommended that no permission be given for the prosecution of the CARDINAL gendarmerie personnel . The report contains a summary of the statements made by , inter alia , the CARDINAL gendarmerie officers , the applicants and PERSON . The lieutenant colonel considered that the gendarmerie officers had had reason to believe that PERSON , who had not stopped when warned and had thrown a hand grenade at the soldiers , was a terrorist . Referring to the applicable legislation according to which gendarmerie officers had the right to use firearms when confronted , the report concluded that there had been no intention to kill and therefore no prosecution should be brought against the CARDINAL gendarmerie officers involved in the incident .

On DATE the Commission on the Prosecution of Civil Servants ( “ the ORG ” ) held that the report prepared by the investigator concentrated solely on the issue of the killing and did not examine whether the soldiers had exceeded their powers . The ORG also considered that the report lacked information on a number of issues . For example , the identity of the gendarmerie officer who shot PERSON and the identity of the person who had informed the gendarmerie about “ the suspicious female ” had not been established . The soldiers ' failure to preserve the purported second - hand grenade instead of destroying it had also not been questioned . The villagers had not been questioned about PERSON character , whether she had previously been involved in terrorist activities and where she could have obtained hand grenades .

On DATE the investigator took additional statements from CARDINAL of the gendarmerie officers who maintained that they had all fired at GPE at the same time and did not know which bullet had hit her . They had aimed below the waist in order to avoid killing her . Nevertheless , as the terrain was rough , she had received a lethal shot . The grenade found by her side had already been partially detonated by her and therefore would have posed a threat if preserved as evidence .

On DATE the lieutenant - colonel took statements from CARDINAL villagers , who stated that PERSON often took long walks in the countryside , sometimes with her father who was a shepherd , and sometimes alone . They did not know whether she had been involved in any terrorist activities before and they did not know from where she could have obtained the hand grenades . A gendarmerie officer who worked as a telephone operator on the switchboard told the investigating lieutenant - colonel that the person who informed them about “ the suspicious female ” had not given his name .

On DATE the lieutenant - colonel prepared an additional report . The ORG decided on DATE to decline permission to prosecute the gendarmerie personnel who had killed PERSON . The ORG 's decision was quashed by ORG on DATE .

On DATE the NORP prosecutor filed a bill of indictment with ORG and charged CARDINAL gendarmerie personnel with unintentional homicide , contrary to LAW . On DATE the applicants intervened in the criminal proceedings .

On DATE ORG issued a decision of non - jurisdiction , on the ground that the defendants were military personnel and the act complained of had taken place in the course of their military duties . The case file was sent to ORG .

On DATE the Sivas ORG also issued a decision of non - jurisdiction . This decision was upheld by ORG on DATE and on DATE ORG ( PERSON ) held that the case fell within the jurisdiction of ORG since the offence by gendarmes had been committed in the course of their administrative and civil duties .

A new trial was conducted by ORG , during which the defendants were questioned by different criminal courts pursuant to rogatory letters issued by ORG .

On DATE ORG considered that the gendarmes had exceeded their powers on the use of firearms by firing at PERSON back rather than at non - vital parts of her body . ORG also considered that alternative and non - lethal methods could have been employed by the gendarmes to catch PERSON . It found the gendarmes guilty of manslaughter and sentenced them to DATE and DATE imprisonment . However , the sentences were then suspended pursuant to LAW , which gave criminal courts discretion to suspend prison sentences shorter than DATE .

The applicants and the defendants appealed . On DATE ORG upheld ORG judgment of DATE in so far as it concerned its conclusion concerning the finding of guilt . Nevertheless , it quashed the sentencing part of the judgment in so far as it concerned CARDINAL of the CARDINAL gendarmes , and remitted the case to ORG so that the provisions of a new law which had entered into force in the meantime ( PERSON no . DATE of DATE ) could be applied to them and the pronunciation of their sentences could thus be deferred . As the sixth gendarme already had a criminal record in respect of another offence , ORG held that he could not benefit from the favourable provisions of the new law , and upheld his suspended sentence handed down by ORG on DATE .

A new trial was conducted by ORG which reiterated on DATE the conclusion it had reached on DATE , and found the remaining CARDINAL gendarmes guilty of the offence of manslaughter . They were sentenced to DATE and DATE imprisonment but the execution of the sentences was suspended . ORG observed that the defendants had no previous convictions and considered that they would not commit any such offences in future . The applicants lodged an appeal against the judgment , the outcome of which is unknown to the ORG .


Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant , Mr PERSON was born in DATE and lives in GPE . In DATE he took part in the emergency operations at the site of the GPE nuclear plant accident . On DATE he was diagnosed with after - effects of radioactive emissions and granted DATE compensation for the damage to his health .

On DATE the applicant sued ORG of LOC ( Военный комиссариат Тамбовской области , hereinafter the “ Commission ” ) for an increase of the compensation to take account of the inflation .

On DATE and DATE ORG granted his claim and ordered the Commission to increase the future DATE payments to MONEY ( “ RUR ” ) and also to pay him ORG in respect of the previous period .

On DATE the ORG quashed those judgments on appeal , finding that the first - instance court had not taken account of the changes introduced into LAW by LAW CARDINAL of DATE . The claim was remitted for a fresh examination .

ORG pronounced a new judgment on DATE . It assessed future DATE payments at FAC and the lump sum in respect of the previous period at FAC .

On DATE the ORG quashed that judgment on appeal on the ground that the first - instance court had incorrectly applied the substantive law and remitted the case for a fresh examination .

By judgment of DATE , ORG awarded the applicant RUR CARDINAL,CARDINAL.CARDINAL in DATE payments as from DATE and RUR CARDINAL in respect of the previous period .

On DATE ORG upheld that judgment on appeal , and the judgment became enforceable .

On DATE the ORG filed an application for supervisory review . It claimed that the first - instance and appeal courts had erroneously applied civil - law provisions relating to calculation of the minimal wages for the purposes of adjusting the applicant 's compensation in line with inflation .

On DATE the President of ORG stayed the execution of the judgment of DATE .

On DATE the Presidium of ORG held a supervisory - review hearing . It determined that the lower courts had erred in applying the substantive law by not having taken into account the amendments introduced into LAW by LAW CARDINAL of DATE . On that ground it quashed the judgment of CARDINAL DATE , as upheld on DATE , and remitted the matter for a fresh examination .

On DATE ORG issued a new judgment , by which the applicant was awarded RUR CARDINAL,CARDINAL.CARDINAL in future DATE payments and RUR CARDINAL,CARDINAL.CARDINAL in respect of DATE . The judgment was not appealed against and became final on DATE .

The Code of Civil Procedure of GPE was enacted on DATE and replaced LAW from DATE . It provides as follows :

“ CARDINAL . The grounds for quashing or altering judicial decisions by appeal courts are :

( CARDINAL ) a violation or incorrect application of substantive or procedural law . ”

“ CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”

“ CARDINAL . Having examined the case by way of supervisory review , the court may ...

( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ...

( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if the substantive law has been erroneously applied or interpreted . ”

Interim Resolution ResDH ( DATE ) concerning the violations of the principle of legal certainty through the supervisory review procedure ( “ nadzor ” ) in civil proceedings in GPE , adopted by ORG on DATE , reads , in its relevant parts , as follows :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of the Convention ...

Welcoming the reforms of the supervisory review ( “ nadzor ” ) procedure introduced by LAW entered into force on DATE ;

Noting with satisfaction , in particular , that some of the problems at the basis of the violations found in these cases have thus been remedied ...

Expressing , however , particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “ nadzor ” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts ' judgments in a single set of proceedings so that subsequent recourse to “ nadzor ” becomes truly exceptional , if necessary at all ;

Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances , while under the current “ nadzor ” procedure such a judgment may be quashed for any material or procedural violation ;

Emphasising that in an efficient judicial system , errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable , thus avoiding the subsequent risk of frustrating parties ' right to rely on binding judicial decisions ;

Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand - in - hand with improvement of the court structure and of the quality of justice , so as to limit the need for correcting judicial errors currently achieved through the “ nadzor ” procedure ...

CALLS UPON the NORP authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the LAW , as interpreted by the ORG 's judgments ;

ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final ...

ENCOURAGES the authorities , pending the adoption of this comprehensive reform , to consider adoption of interim measures limiting as far as possible the risk of new violations of LAW same kind , and in particular :

- continue to restrict progressively the use of the “ nadzor ” procedure , in particular through stricter time - limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law ...

- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case ;

- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law ;

- to adopt measures inducing the parties adequately to use , as much as possible , the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable ... ”


Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land .

On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of QUANTITY ( ORG ) only to renege on the contract without returning the price .

On DATE the applicant was charged with fraud on the basis of ORG 's criminal complaint . The decision containing the charge was not served on the applicant until DATE , when she was questioned by a judge following her arrest ( see below ) .

On DATE and DATE , respectively , a national search for the applicant was launched and ORG ( NORP prokuratúra ) asked ORG ( Okresný súd ) for a warrant for the applicant 's arrest .

It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses , was not living at her registered address ( trvalé bydlisko ) and her whereabouts were unknown .

On DATE ORG issued the arrest warrant . It indicated as the underlying reason for the warrant that “ [ the applicant ] [ was ] not living at her registered address ; her whereabouts [ were ] unknown ” .

From DATE to DATE the applicant was held in pretrial detention ( see below ) .

On DATE the applicant challenged the charge by way of an interlocutory appeal ( sťažnosť ) .

On DATE and DATE , respectively , the investigator interviewed a notary who had drawn up the contract and , following her release from detention , also the applicant .

On DATE ORG granted the applicant 's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil - law nature and the applicant 's actions did not constitute a criminal offence .

At TIME on DATE , on the basis of the warrant of DATE , the applicant was arrested by the police and taken into police custody .

At TIME on DATE the applicant was brought before a single judge of ORG for questioning .

A record of the questioning was made on a pre - printed form . In so far as the pre - printed section of the record was filled out , it indicates that the applicant was questioned as a person charged ( obvinený ) / suspect ( podozrivý ) , that she was informed of the rights that pertain to a person in that procedural position and that she had been handed ( doručené ) / read out ( prečítané ) the decision containing the charge of fraud .

The verbatim section which follows the pre - printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence ( trvalé / prechodné bydlisko ) and that she mainly stayed in monasteries and pastors ' offices . She admitted having received and not returned the purchase price and expressed readiness to return it . She explained that she had health problems and that on DATE she had fainted in the street .

The verbatim section of the record also indicates that , thereafter , the applicant was handed the decision containing the charge of CARDINAL DATE .

According to the applicant , the decision containing the charges had been handed to her at TIME

The verbatim section of the record further indicates that ORG then immediately ordered the applicant to be detained under Article CARDINAL § CARDINAL ( a ) of LAW ( “ the ORG ” – Law no . CARDINAL/CARDINAL Coll . , as applicable at the relevant time ) .

That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well - founded concern that he or she would flee or go into hiding in order to avoid prosecution , in particular when the person 's identity can not be immediately established , when the person does not have a fixed abode ( stále bydlisko ) or if the person faces the risk of a heavy penalty .

NORP Immediately after she had been remanded in custody , the applicant orally lodged an interlocutory appeal ( sťažnosť ) and asked for her lawyer to be informed of her detention . The interview ended at TIME

In a CARDINAL - page written version of the detention order of DATE the ORG established , “ on the basis of the case file and the applicant 's interview ” , that there were reasons for detaining her under LAW ( a ) of the ORG because , “ if left at liberty , [ the applicant ] would seek to frustrate the prosecution by going into hiding ” . This was so because the applicant “ did not live at her registered permanent address , had no registered temporary address and it was not known where she was currently living ” .

On DATE the applicant submitted her written grounds of appeal .

On DATE ORG sent the case file to ORG ( PERSON súd ) for determination of the appeal . It arrived there on DATE .

Meanwhile , on DATE , the investigator attempted to interview the applicant who , however , exercised her right to remain silent .

On DATE the applicant appointed a new lawyer who inspected the case file on the following day .

On DATE the applicant 's new lawyer submitted in writing further grounds of appeal . He relied on LAW and advanced CARDINAL main arguments .

First , before the questioning on DATE , the applicant had not been informed of her rights as a person facing charges .

Second , the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of DATE .

Third , the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning .

Fourth , ORG had failed to examine whether there was any “ reasonable ” suspicion against the applicant which would justify her detention .

On DATE ORG , sitting in private ( neverejné zasadnutie ) , quashed the detention order and ordered the applicant 's immediate release .

It found that the matter was of a contractual nature and that the applicant 's actions could not be qualified as a criminal offence .

Moreover , the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge .

ORG concluded that there was no reason for detaining the applicant .

Following the decision of DATE , on DATE , the applicant was released .

A written version of the decision of ORG was sent to the applicant 's address but returned as she could not be found . It was then sent to her lawyer , who received it on DATE .

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

Relying on LAW ) , CARDINAL , DATE and DATE of the Convention and on their constitutional counterparts , the applicant made CARDINAL main complaints .

First , after her arrest , the applicant had not been informed promptly of the reasons for it and of the charge against her .

Second , in violation of the applicable procedural rules , the applicant had not been informed of her procedural rights as a person charged .

Third , the decision of ORG of DATE lacked adequate reasoning , in particular , because it only dealt with CARDINAL of the CARDINAL arguments that she had put forward .

Fourth , a decision regarding the lawfulness of the applicant 's detention had not been reached speedily , which was imputable mainly to ORG .

Invoking LAW and LAW , the applicant claimed the equivalent of some ORG CARDINAL,CARDINAL in just satisfaction for nonpecuniary damage and the reimbursement of her legal costs .

On DATE a CARDINAL - judge bench of ORG declared the complaint inadmissible .

It found that ORG had been prevented from examining the first CARDINAL arguments by the principle of subsidiarity .

As to the third argument , ORG acknowledged that ORG had limited its review to CARDINAL of the applicant 's arguments . However , this did not constitute an infringement of the applicant 's fundamental rights .

As to the remaining complaint , concerning the length of the proceedings to review the lawfulness of the applicant 's detention , the Constitutional Court established that it had in total taken DATE ( from the detention order of DATE ) for ORG to transmit the case file to ORG for determination of the applicant 's appeal .

However , it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on DATE . After that date , ORG had transmitted the case file to ORG within DATE ( on DATE ) . Although the conduct of ORG could not be described as “ expeditious ” ( urýchlené ) , it did not amount to a violation of the applicant 's rights under LAW . It was true that , after ORG decision of DATE , it was not until DATE that the written version of the decision was served on the applicant . Nevertheless , this was of no practical consequence because the applicant must have learned of the decision on DATE , when she was released , and the decision was subject to no further appeal . The bench concluded that , in those circumstances , the remaining complaint was manifestly ill - founded .

The presiding judge , however , did not share the majority view and gave a dissenting opinion . According to him , it was “ highly debatable ” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant 's appeal against her detention was manifestly illfounded . The presiding judge pointed out that it had taken DATE for ORG to transmit the case file to ORG . Referring to previous practice and , in particular , to a decision in case file number III . ÚS CARDINAL/CARDINAL , he concluded that the complaint should have been declared admissible .

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

Under LAW the State bears liability for damage caused by public authorities inter alia by unlawful arrest , detention ( zadržanie ) or other deprivation of personal liberty ( section CARDINAL(CARDINAL)(b ) ) , decisions concerning detention on remand ( väzba ) ( section CARDINAL(CARDINAL)(c ) ) and wrongful official actions ( section CARDINAL ) ) .

The right to compensation for damage caused by a decision on arrest , by detention ( zadržanie ) or by other deprivation of personal liberty is vested in the person who was subjected to it , provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it ( section CARDINAL ) .

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

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

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

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

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

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

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

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

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

The impugned wrongful official action concerned extension of the claimant 's detention pending trial .

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

However , ORG was unable to award the claimant damages as he had made no claim for damages .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . He was represented before the Court by Ms P. ORG , a lawyer practising in Steinhagen . The respondent Government were represented by their agent Mr H .- J. Behrens , GPE , of ORG .

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

NORP The applicant lives outside residential building zones in a rural area that is primarily designated for agriculture . In DATE , LOC ( Landkreis ) granted his neighbour a construction permit for an industrial poultry shed ( GPE ) QUANTITY from the applicant ’s home . All appeals of the applicant and related applications to suspend execution of the permit were dismissed . The permit became final on DATE when ORG refused the applicant ’s request to be granted leave to appeal .

On DATE the applicant lodged an action for reopening of the proceedings regarding the first shed with ORG .

ORG has not decided on this claim .

On DATE the GPE granted the applicant ’s neighbour a permit according to LAW ) concerning the erection of a second industrial poultry shed QUANTITY from the applicant ’s home .

The applicant objected on DATE .

On DATE the GPE allowed the applicant ’s neighbour to make use of the permit despite the pending proceedings of the applicant . All CARDINAL subsequent requests of the applicant to reinstate the suspensive effect of his objection with ORG were dismissed .

On DATE ORG held that the numerous submissions of the applicant showed that he had become unable to properly represent himself and decided that he had no longer locus standi in the proceedings . The applicant ’s related application for legal aid was rejected for lack of reasonable prospects .

On DATE the applicant , represented by counsel , lodged an action for failure to act ( Untätigkeitsklage ) with ORG .

After LOC dismissed on DATE the applicant ’s objection of DATE the applicant pursued his legal action and challenged the merits of this decision .

On DATE ORG held an oral hearing and later on DATE dismissed the applicant ’s claim as ill - founded . The court heard expert evidence on the environmental impact of the poultry farm , and also the applicant and the applicant ’s neighbour .

On DATE and DATE the applicant requested leave to appeal the judgment with ORG .

On DATE ORG refused the applicant ’s request to be granted leave to appeal .

On DATE the Government informed the ORG that in response to the pilot judgment PERSON GPE ( no . CARDINAL/CARDINAL , DATE ) a federal LAW against Protracted Court Proceedings and Criminal Investigations had entered into force on DATE .

NORP In DATE the ORG informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy . The ORG referred to the case PERSON GPE ( ( dec . ) , no . MONEY , ECHR CARDINALIX ) and invited him to inform the ORG whether he intended to make use of the new remedy within the time limit set by the transitional provision of that LAW .

By letter of CARDINAL DATE the applicant informed the ORG in response that he considered it unacceptable to pursue yet another national remedy . He pointed out that his case had been already pending for DATE with this ORG in distinction from the factual situation in PERSON GPE , cited above . It would lead to further delay to initiate a new set of proceedings to which no national case - law exists . Finally , he requested that his application before the ORG be maintained .

The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den GPE bei überlangen PERSON , henceforth : LAW ) was published in LAW I , DATE , page CARDINAL et seq . – on DATE and entered into force DATE .

The LAW introduces general provisions for civil and criminal cases in sections CARDINAL to CARDINAL of LAW ( Gerichtsverfassungsgesetz , henceforth : ORG ) . For specialised – such as at hand the administrative – jurisdictions CARDINAL provision was introduced in the respective codes of procedure , here LAW ) referring to the general rules with marginal adaptions regarding the competent court .

The new remedy combines an instrument to expedite the proceedings , an objection to delay ( PERSON ) , which has to be raised before the court whose proceedings are allegedly unduly delayed ( henceforth : trial court ) , with a subsequent compensation claim to be lodged at ORG ( henceforth : compensation court ) , see section CARDINAL paragraph CARDINAL and CARDINAL ORG .

According to section CARDINAL paragraph CARDINAL ORG a party to proceedings ( LOC ) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation . The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons . A compensation award is not dependent on the determination of fault .

The compensation is awarded in monetary form , if other forms of compensation for lengthy proceedings are not available . Another form of compensation may consist in the court pronouncing that there has been an unreasonable delay in proceedings , section CARDINAL paragraph CARDINAL ORG .

The compensation for DATE of protraction amounts to MONEY

A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim . The action for compensation may not be lodged with a compensation court until DATE after the objection had been raised , see section CARDINAL paragraph CARDINAL ORG . The compensation claim must at the latest be lodged within DATE of the final judicial decision of the trial court .

Proceedings for compensation are subject to court fees . However , the plaintiff will be reimbursed according to the quota of his success in court .

The judgment of the compensation court is subject to appeal on points of law ( Revision ) only .

According to its LAW applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with ORG .

In pending proceedings the objection to delay ( PERSON ) should be raised without delay when LAW entered into force . In these cases the objection preserves a subsequent compensation claim even for the past .

For terminated proceedings whose duration may still become or have already become the subject of a complaint with this ORG it is not necessary to raise the objection prior to filing a compensation claim . The claim based on LAW has to be lodged with the competent court on DATE at the latest .


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained at FAC .

NORP On DATE , the applicant was convicted after trial in the High Court of Justiciary at GPE of CARDINAL offences of a sexual nature .

The victims ( complainers ) were QUANTITY girls , N , C and J. The offences were alleged to been committed DATE when the QUANTITY girls had been in the foster care of the applicant and his wife . N and J were sisters who entered the applicant ’s care in DATE . C and her brother and sisters came into the care of the applicant in DATE .

Section CARDINAL of the Criminal Procedure ( GPE ) Act DATE ( “ the DATE LAW ) prohibits the admission of evidence or questioning as to the character or sexual history of a complainer in sexual offences unless the evidence or questioning falls within CARDINAL of the exceptions provided for in section CARDINAL . Those exceptions require : ( i ) that the evidence or questioning relate only to a specific occurrence or occurrences of sexual or other behaviour ( section CARDINAL(CARDINAL)(a ) ) ; are relevant to whether the accused is guilty ( section CARDINAL ) ) ; and the probative value of the evidence is significant and likely to outweigh any risk of prejudice to the proper administration of justice ( section CARDINAL(CARDINAL)(c ) ) ( see relevant domestic law and practice below ) .

On DATE , before the trial started , a preliminary hearing was held to consider inter alia an application by the defence under section CARDINAL to admit evidence at trial that :

( i ) in DATE ( around the same time she made her own allegations to the police ) the complainer C had a conversation with a defence witness , M , in which C indicated that she did not believe the allegations that had been made against the applicant by the other girls ( issue CARDINAL(b ) in the application ) ; and

( ii ) that the applicant had made CARDINAL allegations of theft against C , which had been investigated by the police and led to reports to ORG ( the prosecution authority ) ( issue CARDINAL in the application ) .

The preliminary hearing judge decided to exclude the evidence in issue CARDINAL(b ) on the grounds that , as a general rule , evidence of facts affecting the credibility of a witness , apart from the evidence of the witness herself , was inadmissible unless the facts were also relevant to the questions at issue ; a witness should not be asked to express an opinion as to the credibility of another witness . He excluded the evidence in issue CARDINAL on the grounds that the test of relevance in section CARDINAL(CARDINAL)(b ) had not been met .

NORP In their evidence at trial all CARDINAL complainers gave evidence as to the offences which they alleged had been committed against them . J also gave evidence that she had observed CARDINAL incident of abuse involving N. The jury also heard evidence that , in DATE , following a discussion between N and J , the applicant ’s conduct was reported to the authorities and all CARDINAL complainers were removed from his household . All CARDINAL complainers gave evidence that the reason they had delayed in reporting the abuse was that they feared that they would be separated from their respective siblings . Evidence was also led by the prosecution from a brother of N and J. The brother testified that he had seen a different instance of sexual activity between N and the applicant from that observed by J.

Each complainer was cross - examined to the effect that nothing of an inappropriate manner had ever occurred and that they had fabricated aspects of their evidence . N and J were examined as to differences between the statements they gave to the police and their testimony in court . C was examined as to why she had denied anything had happened to her at all , when first interviewed by the police in DATE . A suggestion was put to J that she had colluded with N as to what she said she had seen the applicant doing to N. It was also put to N and C that the applicant ’s alleged erectile dysfunction rendered him incapable of certain of the activities of which each of them had testified .

The applicant gave evidence denying any inappropriate conduct had ever occurred involving any of the complainers . He gave evidence as to his alleged erectile dysfunction , which , he said , meant the conduct described in particular by N and C could not have occurred . He gave evidence of a number of arguments between him and N just before they reported his conduct to the authorities in DATE . He suggested PERSON had misunderstood the incident she had observed between him and PERSON also suggested that the CARDINAL complainers had lied , possibly out of self - interest . CARDINAL character witnesses gave evidence in his defence . The applicant ’s general medical practitioner gave evidence that the applicant had sought help for erectile dysfunction . The applicant ’s wife gave evidence as to the general circumstances in the house , the applicant ’s character and her impression of the relationships he had with the complainers .

The applicant was convicted by a majority verdict of the jury as charged . As is the normal practice in NORP criminal law , when convicting the applicant , the jury did not give reasons for their verdict .

The applicant appealed against his conviction . He submitted that first , the preliminary hearing judge had erred in excluding the evidence set out in issues CARDINAL(b ) and CARDINAL of the defence application . Second , he submitted that the verdict of the jury was a miscarriage of justice because it had been taken in ignorance of evidence that C was motivated to tell lies about him because he had reported her to the police for theft . He argued that this evidence would have been of high probative value . It was particularly relevant because in his charge ( summing up ) to the jury the presiding judge had advised the jury that the evidence of C might be essential to the other charges .

NORP The appeal was dismissed by ORG of Justiciary sitting as a court of criminal appeal ( “ the Appeal Court ” ) on DATE . ORG accepted that the preliminary judge had erred in excluding the evidence regarding issue CARDINAL(b ) since the proposed line of questioning would not have been prohibited by CARDINAL of LAW . He had been in error in thinking that the proposed line of questioning would have been to invite the defence witness M to comment on the credibility of C. Instead , it had been to question C ’s credibility by proving that she had made CARDINAL contradictory statements : CARDINAL to M and another to the police . However , ORG concluded that the fact that this evidence was not before the jury did not amount to a miscarriage of justice . Whether evidence had been wrongly excluded was not the same question as whether the trial was fair ; the issue of miscarriage of justice depended on the materiality of that evidence . The question was whether , had the evidence been before the jury , there would have been any real possibility that the verdict of the jury would have been different . ORG observed :

“ In the present case , the jury had before them undisputed evidence that when C was interviewed by police officers in DATE she denied that she had been sexually abused . The jury had no basis for rejecting that evidence . Notwithstanding that evidence , the jury must have accepted C ’s evidence that she had in fact been abused by the [ applicant ] , in the manner outlined in the CARDINAL charges relating to her . It is a well - known phenomenon for individuals who have been victims of abuse when they were children to be unwilling or reluctant to disclose such abuse , or to delay in doing so . Evidence that C had also , during DATE , indicated to defence witness M that she did not believe allegations of abuse made by the other CARDINAL complainers would , at its highest , merely have provided another instance of the same phenomenon . In our opinion it would not have added anything significant to the jury ’s consideration of the case . On the contrary , the jury was liable to have regarded those CARDINAL chapters of evidence as consistent manifestations of reluctance on the part of C to disclose abuse which she herself had suffered , a reluctance which common sense and experience of life indicated was understandable and one she subsequently overcame .

The jury ’s verdicts were returned after they had heard evidence from all CARDINAL complainers and the [ applicant ] himself . That involved their accepting that the other CARDINAL complainers had been sexually abused by the [ applicant ] while they were in his care in similar circumstances to complainer C. It is also reasonable to assume that the jury must have accepted the evidence of the eye - witness to CARDINAL instance of abuse against complainer PERSON When all these factors are taken into account , there appears to be no real possibility that the exclusion of evidence about what complainer C may have said to defence witness M would have affected the jury ’s verdicts , whether in relation to the charges involving C or any of the other charges . ”

ORG also considered that the evidence in regard to issue CARDINAL ( the alleged thefts ) had been properly excluded . None of CARDINAL requirements contained in section CARDINAL(CARDINAL)(a)-(c ) had been met . In particular , the CARDINAL allegations of theft did not make it more or less likely that the applicant had been guilty of sexual abuse , nor did the making of those allegations by the applicant in DATE or DATE make it more or less probable that C had fabricated allegations of sexual abuse in DATE . The probative value of that evidence was insignificant and would have been calculated to blacken by innuendo the character of C by evidence relating to matters unconnected with the charges faced by the applicant .

NORP Scots criminal law distinguishes between summary and solemn procedure . In the former the trial takes place before a judge sitting alone . In the latter , which is reserved for more serious offences , the trial takes place before a judge and a jury of CARDINAL members on the basis of an indictment . LAW and ORG and DATE Act provide for the form and content of the indictment .

The admission of evidence is a matter either for the presiding judge or , as occurred in this case , if an application is made before the start of the trial , a preliminary hearing judge .

By section CARDINAL(CARDINAL ) of the Criminal Procedure ( GPE ) Act DATE , immediately after the close of the evidence for the prosecution , the accused may intimate to the court his desire to make a submission that he has no case to answer both : ( a ) on an offence charged in the indictment ; and ( b ) on any other offence of which he could be convicted under the indictment . Subsections CARDINAL(CARDINAL)-(CARDINAL ) provide :

“ ( CARDINAL ) If , after hearing both parties , the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned , in relation to that offence , in paragraph ( b ) of subsection ( CARDINAL ) above , he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment .

( CARDINAL ) If , after hearing both parties , the judge is not satisfied as is mentioned in subsection ( CARDINAL ) above , he shall reject the submission and the trial shall proceed , with the accused entitled to give evidence and call witnesses , as if such submission had not been made .

( CARDINAL ) A submission under subsection ( CARDINAL ) above shall be heard by the judge in the absence of the jury . ”

If the trial judge rejects a submission of no case to answer , the defence case is presented . The prosecution and defence then address the jury . By section CARDINAL of LAW , the defence has the right to speak last . The presiding judge then charges the jury . The role of the presiding judge in charging the jury was restated by the Lord Justice General in GPE v. ORG ( DATE ) JC CARDINAL :

“ The primary duty of the presiding judge is to direct the jury upon the law applicable to the case . In doing so it is usually necessary for him to refer to the facts on which questions of law depend . He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury , and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide . But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case . ”

The “ utmost care ” should be taken to avoid trespassing upon the jury ’s province as masters of the facts ( ORG v. HM Advocate ( DATE ) SLT CARDINAL ) and a presiding judge should always be slow to express his own views on questions of fact in case he thereby influences the jury whose task it is to determine all questions of fact ( PERSON v. ORG ( DATE ) JC MONEY ) . A conviction will be quashed if ORG finds that the presiding judge unduly impressed his own views on the evidence upon the jury . This may be the case even if the presiding judge attempts to cure this defect by later emphasising that the evidence is entirely a matter for the jury ( ORG v. ORG ( DATE ) SLT CARDINAL ) .

The jury may return CARDINAL of CARDINAL verdicts : CARDINAL of guilty and CARDINAL alternative acquittal verdicts of not guilty or not proven . No reasons for any of the CARDINAL verdicts are given by the jury . However , by section CARDINAL(CARDINAL)(b ) of LAW , there is a right of appeal in respect of any alleged miscarriage of justice , which includes a miscarriage based on the jury having returned a verdict which no reasonable jury , properly directed , could have returned . Thus a conviction may be quashed or varied when the jury ’s verdict is logically inconsistent or lacking in rationality , for example , when they can not logically acquit on certain counts in an indictment and convict on others ( see , for example , PERSON v. ORG ( DATE ) SLT CARDINAL ; PERSON v. ORG [ DATE ] HCJAC CARDINAL ) .

The compatibility of the jury system with LAW was considered in PERSON v. ORG [ CARDINAL ] HCJAC CARDINAL , judgment of DATE . ORG considered the Second Section ’s judgment in GPE v. GPE , no . CARDINAL/CARDINAL , DATE ( in which ORG has subsequently given judgment : PERSON GPE [ ORG ] , no . CARDINAL/CARDINAL , DATE ) . It also considered a judgment of ORG in A. v. ORG , CARDINAL/CARDINAL , DATE , in which Judge PERSON , giving the lead judgment of the court , considered that LAW in Taxquet had not intended to establish a principle that a jury had to give reasons for its decisions . ORG concluded ( at CARDINAL and CARDINAL ) :

“ We find Judge PERSON ’s full and careful analysis of the Taxquet judgment and the earlier GPE jurisprudence highly persuasive and we respectfully agree with her that the judgment is not to be read as imposing a requirement that a jury supply reasons for its verdict .

Just as in any other jury trial in GPE , the verdict returned by the jury in the present case is not returned in isolation . It is given within a framework which includes , in particular , the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge . It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the ORG case and the evidence which the ORG invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict . Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted . It is also not suggested that the trial Judge ’s charge to the jury did not adequately identify all the matters which the ORG had to establish , or fail to analyse or describe the necessary elements or ingredients in the offence . Accordingly , from that framework and also from the evidence in the case , the basis of the conviction is discernable . With a jury verdict thus placed in such a framework , we do not consider , having regard to the case law of the ECtHR to which we were referred , that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of LAW . ”

NORP The current versions of CARDINAL and CARDINAL of the DATE Act were introduced by ORG by ORG ( Procedure and Evidence ) ( GPE ) Act DATE . They provide as follows :

“ CARDINAL Restrictions on evidence relating to sexual offences

( CARDINAL ) In the trial of a person charged with an offence to which section CARDINAL of this Act applies , the court shall not admit , or allow questioning designed to elicit , evidence which shows or tends to show that the complainer—

( a ) is not of good character ( whether in relation to sexual matters or otherwise ) ;

( b ) has , at any time , engaged in sexual behaviour not forming part of the subject matter of the charge ;

( c ) has , at any time ( other than shortly before , at the same time as or shortly after the acts which form part of the subject matter of the charge ) , engaged in such behaviour , not being sexual behaviour , as might found the inference that the complainer—

( i ) is likely to have consented to those acts ; or

( ii ) is not a credible or reliable witness ; or

( d ) has , at any time , been subject to any such condition or predisposition as might found the inference referred to in sub - paragraph ( c ) above .

CARDINAL Exceptions to restrictions under section CARDINAL . S

( CARDINAL ) The court may , on application made to it , admit such evidence or allow such questioning as is referred to in subsection ( CARDINAL ) of CARDINAL of this LAW if satisfied that—

( a ) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating—

( i ) the complainer ’s character ; or

( ii ) any condition or predisposition to which the complainer is or has been subject ;

( b ) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged ; and

( c ) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited .

( CARDINAL ) In subsection ( CARDINAL ) above—

( a ) the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature ;

( b ) ‘ the proper administration of justice’ includes—

( i ) appropriate protection of a complainer ’s dignity and privacy ; and

( ii ) ensuring that the facts and circumstances of which a jury is made aware are , in cases of offences to which section CARDINALC of this Act applies , relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury ’s verdict ... ”

The DATE Act was preceded by a public consultation and a Policy Memorandum , which was published by ORG . The Policy Memorandum stated that evidence as to the sexual history and character of a complainer in sexual offences was rarely relevant and , even where it was , its probative value was frequently weak when compared with its prejudicial effect . It involved invasion of the complainer ’s privacy and dignity and diversion from the issues which required to be determined at trial .

Sections CARDINAL and CARDINAL were considered to be compatible with LAW by the High Court of Justiciary in PERSON ( PERSON ) v. HM Advocate ( also known as GPE v. ORG ) ( DATE ) MONEY CARDINAL , where the appellant faced trial on charges of rape and sexual assault . The Lord ORG , giving the opinion of the court , referred first to the “ twin myths ” that , in a rape case , a complainer ’s previous sexual experience or adverse sexual reputation made it more likely that she consented to intercourse and made it less likely that she was a credible witness . His Lordship continued :

“ The embarrassment and humiliation of a complainer in a rape trial is a genuine social problem . Counsel agree that the protection of the complainer from unfair and intrusive attacks on her sexual history or character and the exclusion of evidence tendered in pursuit of the twin myths to which I have referred are , in general , legitimate legislative aims that recognise the complainer ’s rights to privacy under LAW ( cf R v A ( No CARDINAL ) , [ DATE ] CARDINAL AC CARDINAL , PERSON of PERSON at paras . [ CARDINAL ] , [ CARDINAL]-[CARDINAL ] ; SN v GPE , No . CARDINAL , DATE , unrepd , at para CARDINAL ) .

[ CARDINAL ] But the protection of the complainer can not be seen apart from the basic principles of fairness in NORP criminal procedure which entitle everyone accused of a crime to defend himself , to confront his accusers and to have a fair opportunity to put his own case . These principles underpin a value that is fundamental to criminal jurisprudence in a free society , namely the protection of the citizen from being wrongly convicted .

[ CARDINAL ] The difficult problem of reform in this emotive branch of the law is to reconcile the legislative aims to which I have referred with the basic principles of fairness ( SN v GPE , supra , at para [ CARDINAL ] ) . Although article CARDINAL expresses the right to a fair trial in unqualified terms , what is required for fairness may vary according to context ( cf ORG Secretary , [ DATE ] CARDINAL ORG , ORG at para CARDINAL ) . Individual evidential or procedural rules may be devised to take account of rights and interests other than those of the accused . Such interests include respect for the complainer ’s rights under article CARDINAL ( cf PERSON v the GPE , supra , at para CARDINAL ) , and the public interest in the detection and prosecution of crime . The protection of such interests is a clear and proper public objective that justifies a legislature in qualifying to a limited extent the constituent rights comprised within article CARDINAL ( Brown v Stott , supra , Lord PERSON of PERSON at p CARDINALA ) ; but the legislature can not qualify them to such an extent that the overall fairness of the trial is compromised ( PERSON v Stott , supra ; PERSON and ORG , supra , at para CARDINAL ) .

[ CARDINAL ] In my opinion , the primary aim of the DATE legislation and the subordinate and specific aim set out in paragraph CARDINAL of ORG ( supra ) , are both legitimate legislative aims . The balancing exercise by which those aims are to be achieved without prejudice to the overall fairness of the trial lies in the first instance within the province of the legislature . The underlying aim of CARDINAL involves a sensitive social issue that is more appropriate for the consideration of the legislature than that of the courts . In my opinion , the enactment of sections CARDINAL and CARDINAL was within the legitimate area of discretion of ORG . The ORG had an evidential basis on which to exercise its judgment in the matter , namely the research evidence referred to in the Policy Memorandum , supported by the evidence of CARDINAL of its authors to ORG . The underlying policy was fully considered and tested during the legislative process . The policy justification was , in my view , coherent .

[ CARDINAL ] But although the legislation is directed to legitimate aims , there remains the question whether the restrictions that it imposes on the defence are greater than are strictly necessary for the achievement of those aims ( cf Rowe and ORG , ( DATE ) CARDINAL EHRR CARDINAL , at para CARDINAL ; PERSON v GPE , ( DATE ) CARDINAL EHRR CARDINAL ; PERSON , supra ) .

[ CARDINAL ] If CARDINAL had imposed an absolute prohibition on the questioning or evidence to which it refers , there would have been a violation of article CARDINAL ( cp R v Seaboyer , supra , McLachlin J at pp CARDINAL - CARDINAL ; GPE and PERSON v GPE ORG , DATE ORG CARDINAL , at paras [ CARDINAL ] , [ CARDINAL ] ) .

[ CARDINAL ] The decision of the court under LAW will in every case depend on the nature of the prosecution case and of the proposed questioning or evidence . The probative value of evidence that the complainer had a sexual experience with another man may be much less than that of evidence that she had a sexual relationship with the accused ; and there may be strong reasons for the court ’s allowing reference to a matter affecting the complainer ’s character that has no conceivable sexual connotations ; for example , a previous conviction of the complainer for perjury or for perverting the course of justice , or some mental condition of the complainer that predisposes her to fantasise or to exaggerate .

[ CARDINAL ] Section CARDINAL , in my view , is a reasonable and flexible response to the problem and a legitimate means of achieving the legislative objective ( R v A ( No CARDINAL ) , supra , Lord Hope of PERSON at paras CARDINAL , CARDINAL , CARDINAL - CARDINAL ) . It lies within the discretionary area of the judgment that is confided to the ORG ( R v ORG , ex p Kebilene , [ DATE ] CARDINAL ORG CARDINAL , at p CARDINAL ; ORG Secretary , supra , ORG at paras DATE ) and in my view meets the requirements of proportionality ( PERSON Minister of Agriculture , [ DATE ] CARDINAL AC CARDINAL , Lord PERSON at p DATE ) . ”

The accused in that case was subsequently convicted and appealed ( PERSON v. ORG Advocate DATE SLT CARDINAL ) . The conviction was quashed on different grounds . However , in respect of section CARDINAL , ORG confirmed that “ behaviour ” in that section should not be given a restrictive meaning ; it would also include acts or omissions of the complainer and statements made by him or her , provided that they were relevant to whether the complainer was likely to have consented to the sexual acts alleged or reflect upon his or her credibility or reliability .