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

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

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 sezioni stralcio . Of the CARDINAL hearings listed DATE and DATE CARDINAL was adjourned because the parties had not appeared and CARDINAL was adjourned by the court of its own motion .

On DATE the applicant lodged an appeal 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 , inter alia , LAW in pecuniary and non - pecuniary damages .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It 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 .

That decision was served on the authorities on DATE and became binding on DATE . The applicant served the authorities with notice to comply on DATE . On DATE the applicant lodged an application for seizure with the GPE judge responsible for enforcement proceedings and a hearing was to be held on DATE .

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 .

NORP The applicant did not indicate that he had appealed to ORG .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

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

On DATE the ORG of GPE upheld the applicant ’s action against ORG of GPE ( the Commissariat ) and awarded him MONEY ( RUB ) in compensation for damage and court expenses . ORG also held that the ORG should sign a contract with a commercial provider of communication services undertaking the obligation to pay PERCENT of DATE costs for phone services provided to the applicant . The judgment was upheld on appeal and became final on DATE .

In DATE the applicant complained to ORG about the ORG ’s failure to enforce the judgment .

On DATE the ORG found that the ORG ’s inactivity was unlawful . The judgment was not appealed against .

On DATE enforcement proceedings were closed as the ORG had paid RUB CARDINAL to the applicant . However , DATE the proceedings were re - opened because the payment only constituted a partial enforcement of the judgment and because the ORG had not yet signed a contract with the communication services provider .

According to the Government , on DATE the ORG paid to the applicant RUB CARDINAL as a PERCENT compensation of DATE costs for phone services provided to the applicant .

On DATE the ORG signed the contract with the communication services provider and thus fully enforced the judgment of DATE as upheld on DATE .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son , PERSON , was arrested on suspicion of murder and placed in a temporary remand centre . On DATE he was transferred to a remand prison .

On DATE PERSON was convicted of murder and perjury and sentenced to DATE and CARDINAL months’ imprisonment . The sentence was due to expire on DATE .

On DATE Mr PERSON was transferred from the remand prison to correctional facility ORG in GPE to serve his sentence .

On DATE he was transferred to correctional facility IK-CARDINAL in GPE so as to prevent a conflict with other detainees .

On DATE Mr PERSON requested to be transferred to a different correctional facility since he was in conflict with other detainees and had allegedly been threatened by them .

On DATE Mr PERSON was transferred from correctional facility IK-CARDINAL to correctional facility IK-CARDINAL in GPE , again to prevent a conflict with other detainees .

On DATE he was transferred to correctional facility IK-CARDINAL in GPE - GPE , once again to prevent a conflict with other detainees .

NORP In DATE PERSON was diagnosed with epilepsy . Later the diagnosis was changed to psychopathic personality disorder . DATE he regularly underwent medical examinations and in - patient treatment in prison hospitals :

- on DATE PERSON was admitted to prison hospital no . CARDINAL in GPE and was diagnosed with psychopathic personality disorder and epilepsy ;

- on DATE he was transferred to prison hospital no . CARDINAL in LOC with a diagnosis of epilepsy ; he was discharged on DATE following an improvement in his condition ;

- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE and was diagnosed with psychopathic personality disorder , with explosive - type accentuation ; he was discharged on DATE following an improvement in his condition ;

- on DATE he was again placed in prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive - hysteroid type , and demonstratively blackmailing behaviour with simulation of psychic equivalences and paraxial disorders ; he was discharged on DATE following an improvement in his condition ;

- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive - hysteroid type ; he was discharged on DATE following an improvement in his condition ;

- on DATE he was admitted to prison hospital no . CARDINAL in LOC with a diagnosis of psychopathy of explosive - hysteroid type with simulation of paraxial disorders ; he was discharged on DATE following an improvement in his condition ;

- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of hystero - excitable type and neurocirculatory dystonia ; he was discharged on DATE following an improvement in his condition ;

- on DATE PERSON was admitted to prison hospital no . CARDINAL in LOC with a diagnosis of psychopathy of explosive - hysteroid type with simulation of paraxial disorders ; he was discharged on DATE following an improvement in his condition ;

- on DATE he was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive type and a duodenal ulcer ; he was discharged on DATE following an improvement in his condition ;

- on DATE Mr PERSON was again admitted to prison hospital no . CARDINAL in GPE with a diagnosis of a duodenal ulcer and hypertension ; he was discharged on DATE following his recovery ;

- on CARDINAL DATE Mr PERSON was once again admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive type ; he was discharged on DATE following an improvement in his condition .

On DATE Mr PERSON was placed in a disciplinary cell , where on DATE he slashed his left wrist . After medical aid had been administered to him , he was ordered to return to the cell . When Mr PERSON refused to comply , officers PERSON and PERSON used rubber truncheons and physical force to return him to his cell .

On DATE at TIME Mr PERSON knocked at the door of his cell to attract the warder ’s attention , and when the warder PERSON . came over PERSON PERSON said that he needed pills for blood pressure . PERSON . reported accordingly to PERSON , an officer on duty , who promptly arrived at the disciplinary cell and , having opened the door , found that PERSON had slashed veins in his elbows . Mr PERSON said that he needed a bandage but refused to accept medical assistance from the warders and also said that he would not let anybody into the cell except for the prison doctor . At CARDINAL a.m. Major PERSON sent officer NORP to fetch the prison doctor , PERSON At CARDINAL a.m. PERSON arrived , dressed the wounds and administered injections of cardiamine and caffeine . Mr PERSON was then placed on a stretcher and transported to the medical unit ; however , he was dead upon arrival at the unit as a result of heavy blood loss . The time of death was entered in the register as CARDINAL a.m.

On DATE a post - mortem report was drawn up . According to the report , the cause of PERSON death was heavy blood loss as a result of injuries to the large blood vessels in the antecubital fossa and forearms .

On DATE the prison governor , PERSON , decided not to open a criminal investigation into the death of Mr PERSON for lack of corpus delicti .

On DATE the ORG quashed that decision and referred the case back for additional inquiries . He stated , in particular , that in the course of the inquiries conducted it had not been established whether the officers on duty had tried to provide Mr PERSON with medical aid and that neither the officers on duty nor the detainees held in adjacent cells had been questioned .

On DATE the prison doctor PERSON provided an explanation concerning the events of DATE to the ORG . He submitted :

“ At TIME on DATE a service car arrived to collect me from my home , and I was told that I had to go urgently to the [ correctional facility ] since a detainee [ had collapsed ] in a disciplinary cell . I immediately got into the car and at TIME we arrived at the [ correctional facility ] . Having entered the disciplinary wing , I asked to open the cell where [ Mr ] PERSON was being held . [ When ] the warder opened the door , I saw that [ Mr PERSON ] was lying motionless on the floor and blood was splashed around the whole cell . Having examined [ Mr PERSON ’s ] elbow joints , I found that a vein and an artery were cut open on the left elbow joint and similar injuries had been caused to the right elbow joint . I immediately dressed the wounds and administered injections of cardiamine , caffeine ... , glucose and gluconate and performed artificial ventilation . Since the treatment had no effect , [ Mr PERSON ] was transported to the medical unit and TIME after the beginning of the treatment I pronounced him dead as a result of heavy blood loss . Before my arrival at the disciplinary cell the warders did not provide [ Mr ] PERSON with medical aid since he requested to be seen by a doctor and refused to accept medical aid until the [ doctor ’s ] arrival . On DATE [ Mr ] PERSON had committed an act of self - mutilation , having slashed minor blood vessels on his left arm ... An antiseptic dressing was applied . If [ on DATE ] I had arrived TIME , it would still have been impossible ... to save [ Mr PERSON ’s ] life since he had arteries and veins slashed in both arms . ”

On DATE the prison governor PERSON again refused to open a criminal investigation as no crime had been committed . He stated that on CARDINAL August CARDINAL the prisoner had asked warders to call for a doctor because he had high blood pressure . The warders had discovered that the prisoner had cut veins in both elbows . Mr PERSON had then been placed in the medical unit , where he had died as a result of heavy blood loss .

On DATE the ORG refused to open a criminal investigation into the death of PERSON PERSON for lack of corpus delicti .

On DATE ORG set aside the decision of DATE and opened a criminal investigation . The prosecutor noted that the district prosecutor ’s office had failed to investigate the grounds for PERSON confinement in a disciplinary cell , the circumstances leading to his suicide and his mental state , in particular taking into account the medical records concerning his treatment from DATE . Nor had they identified the object with which Mr PERSON had slashed the veins in his elbows .

The case was forwarded to ORG . The applicant was informed of that decision by letters of CARDINAL and DATE .

On DATE another post - mortem report was drawn up on the basis of PERSON medical file . It confirmed the findings of the postmortem report of DATE .

On DATE the prison doctor PERSON was questioned . He stated that he had known Mr PERSON since DATE , when the latter had complained of headaches and high blood pressure . At TIME on DATE , following a call from the officer on duty , he had arrived at the disciplinary cell , where he had found that PERSON had slashed his veins . PERSON had dressed the wounds and administered an injection of caffeine ; however , by that time Mr PERSON was already in a semiconscious state . Mr PERSON had been then transported to the medical unit , where , according to doctor PERSON ’s statement , he had died at TIME

On DATE the Ust - Kuta District Prosecutor ’s Office refused to institute criminal proceedings against officers PERSON and PERSON concerning the events of DATE , and against warder PERSON . and Major P. concerning the events of CARDINAL DATE . The decision stated , inter alia , that after Mr PERSON had committed an act of self - mutilation on DATE , his cell had been searched on several occasions and no forbidden items had been found . On DATE warder PERSON . and Major P. had immediately provided Mr PERSON with first aid .

On an unspecified date the applicant complained about the length of the criminal investigation . On DATE the Ust - Kuta District Prosecutor ’s Office replied to her that it had questioned all the witnesses and had examined medical evidence and that an expert report on Mr PERSON ’s mental state at the relevant time had been commissioned .

On DATE the Ust - Kuta District Prosecutor ’s Office discontinued the criminal proceedings against the prison governor PERSON and officer PERSON , the head of the operating unit , for lack of corpus delicti . It appears that on an unspecified date that decision was quashed .

On DATE a commission of CARDINAL psychiatrists and CARDINAL psychologist drew up a forensic psychiatric report in respect of PERSON PERSON . The commission concluded as follows :

“ [ The commission ’s ] conclusion :

[ Mr ] PERSON suffered from a chronic psychiatric disorder in the form of psychopathy of mixed type . [ This diagnosis ] is confirmed by the anamnesis , medical documents and the criminal case file : [ Mr PERSON ] had such character traits as difficulty in communication , quarrelsomeness , hot temper , irritability , aggressiveness , affective instability , tendency towards hysterical and demonstrative reactions with self - mutilation in subjectively difficult situations , tendency towards simulative behaviour ( his examination and lengthy monitoring in the course of repeated placements for psychiatric and neurological in - patient treatment did not confirm the epileptic nature of the ‘ ORG ) ... However , the above - mentioned peculiarities of [ Mr PERSON ’s ] psychic state were not accompanied by a broad decrease in intellect or disturbances of thought , delirium , hallucinations or disturbances of critical and prognostic functions , since as a whole he could control his actions ( his conduct changed depending on the place and environment , he took into account the social status and rank of the interlocutor ) , realise the meaning of his actions and direct them . In the period preceding [ the act of self - mutilation committed by PERSON PERSON ] ... he did not display signs of a temporary mental disorder or dementia , he did not have delirium or hallucinations , and he could realise the meaning of his actions and direct them .

The psychologist ’s conclusion :

Psychological analysis of the contents of the criminal case file confirms that [ Mr ] PERSON had such individual psychological peculiarities as egocentrism , emotionally volitional instability , hot temper , increased irritability , malignance , aggressiveness , difficulties in interpersonal contact , tendency towards conflict in close contact , tendency to create conflict situations , [ tendency towards ] asocial acts , and impulsiveness . In subjectively difficult situations [ he ] displayed affective outbursts , demonstrative behaviour , a tendency towards impulsive behavioural reactions , simulative behaviour and suicide attempts ... The analysis of the contents of the criminal case file confirms the lack of extreme conditions which would have prompted the suicide , and of conditions that would have been conducive to the accumulation of negative emotional experiences and ... neuropsychological tension . [ Mr PERSON ’s ] individual psychological peculiarities were conducive to his committing suicide . ”

On DATE PERSON Kuta District Prosecutor ’s Office again discontinued the criminal proceedings against the prison governor PERSON and officer PERSON on the same ground as before .

On DATE the Deputy Prosecutor of GPE quashed the decision of DATE as ill - founded and premature . He stated , in particular , that the investigating authorities had failed to clarify all the circumstances preceding PERSON death , had not fully complied with the instructions of ORG , had not made a legal assessment of the correctional facilities’ ORG actions as regards the search in the disciplinary cell , and of the prison doctor PERSON ’s actions as regards the untimely medical aid provided on DATE .

On DATE the Ust - Kuta District Prosecutor ’s Office discontinued the criminal proceedings on the following grounds .

According to the decision , Mr PERSON was irritable , aggressive , had an explosive temper and had constant conflicts with other detainees and warders . He often complained of poor health and headaches . During the period of serving his sentence , that is , from DATE , PERSON was on TIME occasions admitted to hospitals within the penal system . In DATE he was diagnosed with epilepsy ; however , the diagnosis was not confirmed and in DATE it was changed to psychopathy . From CARDINAL May to DATE Mr PERSON underwent treatment for his condition in Hospital No . CARDINAL in GPE . For swearing and threatening physical violence he was discharged from the hospital on DATE and transferred back to correctional facility IK-CARDINAL . CARDINAL DATE Mr PERSON was subjected to disciplinary measures on CARDINAL occasions .

On DATE Mr PERSON was placed in a disciplinary cell for a breach of discipline . On DATE he cut his veins . After medical aid had been administered to him , he refused to return to his cell , insulted and threatened officers PERSON grabbed PERSON ’s uniform . So as to prevent his unlawful threats , PERSON , using physical force and rubber truncheons , placed him in the cell . Thereafter PERSON was examined by a member of staff of the medical unit , who noted bruises on his body and extremities . According to the results of the investigation , officers PERSON and PERSON lawfully used rubber truncheons and physical force against Mr PERSON . On the same date the prison governor ordered PERSON placement in a disciplinary cell for the act of self - mutilation .

At TIME on DATE PERSON , while being held in disciplinary cell no . DATE , cut his veins . He refused medical aid from the officers on duty and requested to be seen by a doctor . At CARDINAL a.m. the prison doctor PERSON provided Mr PERSON with medical aid , having dressed the wounds and administered injections , following which Mr PERSON was transported to the medical unit , where he died at TIME as a result of heavy blood loss .

The prison governor PERSON submitted that on DATE he had ordered PERSON placement in a disciplinary cell for having committed an act of self - mutilation .

A witness , S - v , stated that on DATE he had been held in an adjacent disciplinary cell when he had heard Mr PERSON shouting and complaining of high blood pressure . Then PERSON had cut his veins . S - v did not know why he had done so .

Major PERSON stated that on DATE he and warder PERSON . had been among the officers on duty in the disciplinary wing . At TIME he had heard screaming from cell no . CARDINAL , where PERSON was being held . At around CARDINAL.CARDINAL a.m. he and warder PERSON . had entered the cell and had seen that Mr PERSON had cut his veins . They had tried to provide him with medical aid so as to stop the bleeding , but he had firmly refused to be aided and to leave the cell and had stated that he needed a doctor . Major PERSON had then called for a doctor , who had arrived at the disciplinary wing at CARDINAL a.m. PERSON had dressed the wounds and had administered injections , following which PERSON PERSON had immediately been transported to the medical unit . However , because of the blood loss he had died there at TIME In the course of additional questioning PERSON submitted that late in TIME QUANTITY DATE he and warders NORP and PERSON . had conducted an inspection of the disciplinary wing and had not found any forbidden objects .

PERSON . made a similar statement and added that after Mr PERSON had been pronounced dead , officer PERSON , the head of the operating unit , had arrived at the disciplinary wing and conducted an inspection of cell no . CARDINAL .

PERSON submitted that on DATE he had been the prison doctor on standby duty . At TIME , after a call from an officer on duty , he had arrived at the disciplinary wing , where in cell no . CARDINAL he had dressed the wounds and administered an injection of caffeine to PERSON , who had cut his veins . At the time Mr PERSON had been in a semi - conscious state . Then Mr PERSON had been transported on a stretcher to the medical unit , where he had died . PERSON had pronounced him dead at TIME

The post - mortem report stated that the death of Mr PERSON had occurred because of heavy blood loss as a result of injuries caused by the slashing of the large vessels in the elbows and forearms . It also noted that the prisoner had had bruises on his body and legs .

According to a psychiatric and psychological expert report , Mr PERSON suffered from psychopathic personality disorder , was in constant conflict with other persons , and tended towards hysterical behaviour , self - mutilation , suicide attempts and simulation of epileptic fits . However , he was able to assess and control his conduct and never showed symptoms of imbecility . The experts did not establish the existence of any circumstances which could have prompted PERSON to commit suicide .

In the course of the investigation no proof of prison governor PERSON ’s and officer Y. ’s having committed such offences as abuse of official powers and incitement to suicide was found .

In the course of additional inquiries , it was established that Mr PERSON had cut his veins with a piece of a blade from a disposable safety razor which he had had with him in the disciplinary cell as it was allowed by the internal regulations . When warder NORP had asked Mr PERSON what he had done with the piece of blade , he had replied that he had placed it in the lavatory pan .

The additional check also established that duty schedules were fixed for medical staff for DATE and DATE . At TIME a member of the medical staff remained on duty at his home . The time required for a member of the medical staff to arrive at the correctional facility in reply to an urgent call depended on the distance between his home and the facility . PERSON , who had been the prison doctor on duty on DATE , had arrived at the facility within TIME from the departure of the operating unit to fetch him . This was also confirmed by PERSON in the course of additional questioning and by the head of the medical unit , K - v .

Warder NORP stated that during TIME DATE he had been the assistant officer on duty . At TIME on DATE he , Major PERSON and warder PERSON . had conducted an inspection of the disciplinary wing and had found no forbidden objects . At TIME or a little later , following a call from warder PERSON . , he had arrived at disciplinary cell no . CARDINAL and had seen that PERSON had cut his veins . When he had asked him how he had cut his veins , PERSON had explained that he had used a piece of blade from a disposable safety razor which he had thrown into the lavatory pan . Mr PERSON had refused to leave the cell to be provided with first aid and requested to be seen by a doctor . PERSON then had gone to fetch PERSON and had returned with him TIME . He did not know what medical aid PERSON had provided since he had left to inspect the facility . Having reached the medical unit , he had learnt from PERSON that PERSON had died of blood loss .

Having regard also to ( i ) Annex CARDINAL to ORG , adopted by order no . CARDINAL of ORG of DATE , which did not forbid the keeping of a disposable safety razor in a disciplinary cell , and ( ii ) ORG held in ORG , adopted by order no . CARDINAL of ORG DATE , which provided that constant supervision of inmates held in disciplinary cells must be effected through the inspection hole in the doors of the cells , and that officers on duty must call a doctor for inmates requiring medical assistance , the Ust - Kuta District Prosecutor ’s Office concluded that the prison governor PERSON , the head of the operating unit NORP , Major PERSON , warders NORP and PERSON . and the prison doctor PERSON had not committed the alleged offences of incitement to suicide , abuse of official powers and neglect of duty or failure to assist in a dangerous situation , and discontinued the criminal proceedings .

On DATE ORG dismissed a complaint by the applicant about the discontinuation of the criminal proceedings , finding that decision to have been lawful and well - founded .

DATE . On an unspecified date the applicant challenged the decision of CARDINAL DATE before a court . She also complained that her son ’s beating with rubber truncheons by warders on DATE had not been lawful .

On DATE the Ust - Kuta District Court of GPE dismissed the applicant ’s complaint . The applicant was not present at the hearing .

On DATE ORG quashed that decision and remitted the case for a fresh examination on the ground that the applicant had not been duly notified of the hearing of DATE .

On DATE the Ust - Kuta District Court held that the prosecutor ’s decision was lawful and dismissed the applicant ’s complaints .

On DATE ORG upheld the decision on appeal . The applicant ’s subsequent application for supervisory review of that decision was refused by ORG on DATE .

On DATE PERSON , a neuropathologist at prison hospital no . CARDINAL , was questioned . He submitted that in DATE Mr PERSON had been admitted to the hospital , having been diagnosed with epilepsy . However , the diagnosis had not been confirmed and Mr PERSON had been diagnosed with a psychopathic disorder . During his stay at the hospital he had displayed unbalanced behaviour and mood swings , and had been irritable and emotionally unstable . Mr PERSON had been provided with a complete course of treatment . His parents had never been asked to provide any medicines for him since all the required medicines had been available at the hospital .

Having examined Mr PERSON ’s medical file , the neurologist PERSON stated that in his childhood he had suffered a craniocerebral trauma . Since DATE he had been suffering from frequent fits that had mostly occurred at TIME . He had been diagnosed with epilepsy and had undergone in - patient treatment in DATE . Later he had been treated in the psychiatric ward of prison hospital no . CARDINAL . There he had repeatedly feigned polymorphous fits and had been placed under constant monitoring , which had revealed no momentary lapses of reason or convulsive contractions , although irritability , hot temper and rudeness had remained . Accordingly , the diagnosis of epilepsy had been changed to CARDINAL of psychopathy . During the term of PERSON PERSON ’s detention , in - patient and outpatient treatment and supervision had been fully available to him .

NORP The head of a psychiatric ward , PERSON . , having studied PERSON medical file , concluded that while in detention he had been fully provided with the requisite medical assistance for his mental and somatic state . The diagnosis of epilepsy had been correctly discarded and had not subsequently been confirmed .

On DATE , the head of the medical unit of correctional facility IK-CARDINAL , issued a certificate concerning the circumstances of Mr PERSON ’s death . The certificate stated :

“ At TIME on CARDINAL DATE ... [ Mr PERSON ] knocked at the door of disciplinary cell no . CARDINAL , told [ warder PERSON . ] that he had high blood pressure and asked him to call for a doctor on duty .

[ PERSON . ] reported to [ Major PERSON ] , [ who ] immediately sent [ warder NORP ] in a car to fetch [ prison doctor PERSON ] , who lived near the correctional facility and was required to go to the facility in the event of an emergency . At the same time [ Mr PERSON ] was placed under constant visual supervision through the inspection hole in the door of the cell .

At TIME [ the warders ] opened cell no . CARDINAL following changes in [ Mr Shumkov ’s ] behaviour and discovered that he had committed an act of self - mutilation , having cut blood vessels in both arms .

[ Mr PERSON ] refused to leave the cell to receive medical assistance and stated that he would wait for the doctor in the cell . [ The warders ] brought bandages to the cell in order to dress the wounds . [ Mr PERSON ] took the bandages but refused [ the warders’ ] medical assistance .

At TIME [ Dr PERSON ] arrived and immediately provided [ Mr PERSON ] with medical assistance in the cell . [ He ] dressed the wounds so as to stop the bleeding , administered injections to increase blood pressure and stimulate cardiac activity ... , and performed artificial lung ventilation and indirect heart massage , following which [ Mr PERSON ] was taken to the medical unit ... where , despite the efforts to resuscitate him , at TIME he was pronounced dead as a result of heavy blood loss caused by the injuries to the large blood vessels . ”

According to a certificate of CARDINAL DATE issued by the prison authorities , during Mr PERSON ’s detention in correctional facility IK-CARDINAL from DATE and from DATE to CARDINAL DATE he was held in conditions which complied with the relevant regulations . There was no infringement of PERSON PERSON ’s right to life by any officers of the correctional facility .

Another certificate issued on the same date stated , inter alia , that in the course of serving his sentence Mr PERSON had breached prison discipline CARDINAL times , as a result of which he had on CARDINAL occasions been placed in the disciplinary wing and CARDINAL times in solitary confinement in a disciplinary cell . In DATE he was recognised as a persistent offender and placed in stricter conditions of detention . All these measures were applied lawfully . Mr PERSON was hot - tempered , tended to create conflicts , behaved defiantly and did not react to admonitions .

NORP In an undated certificate prison officer PERSON stated that throughout the term of his imprisonment PERSON had physically resisted prison officers , provoked conflicts with other inmates , behaved aggressively and breached disciplinary regulations .

In CARDINAL undated certificates prison officers PERSON and PERSON stated that in DATE they had served in correctional facility IK-CARDINAL . They submitted that Mr PERSON had been mentally unstable and had repeatedly created conflicts with other detainees , which was the reason for his subsequent transfer to a different correctional facility . A number of times he had attempted to commit acts of self - mutilation by cutting his forearms . He had also regularly been admitted for treatment in prison hospital no . CARDINAL .

In a certificate of DATE prison officer PERSON stated that during the term of his imprisonment PERSON PERSON had on a number of occasions been subjected to disciplinary sanctions for disobedience , insults and conflicts with other inmates . He had often been aggressive and violent . Such behaviour had been caused not only by his psychological particularities but by a manifest unwillingness to follow the prison rules .

In a report of DATE prison officer P - na stated that from DATE she had held a post as inspector of DATE . She remembered PERSON as a frequent offender who had behaved defiantly towards other detainees , which had often caused conflicts .

On DATE inspector PERSON of correctional facility IK-CARDINAL drew up an internal inspection report concerning the incident of CARDINAL DATE . According to the report , the use of rubber truncheons in respect of Mr PERSON was lawful and proportionate .

On DATE the Ust - Kuta Prosecutor ’s Office refused to institute criminal proceedings against officers PERSON of the events of DATE . The decisions stated , inter alia :

“ On DATE [ the detainee Mr ] PERSON committed an act of self - mutilation having slashed his veins . However , he was provided with medical aid in due time . After [ officers PERSON and S. ] asked [ Mr ] PERSON to return to his cell , the latter refused , grabbed [ L. ’s ] uniform , swore at him and threatened him with physical violence . So as to prevent the unlawful threats of [ Mr ] PERSON , [ L. and S. ] , using physical force and rubber truncheons , placed him in the cell . [ Thereafter ] [ Mr ] PERSON was examined by a member of staff of the medical unit , who noted bruises on his body and extremities .

Taking into account the foregoing , as well as the fact that [ officers PERSON used [ rubber truncheons ] and physical force in respect of [ Mr ] PERSON after the latter ’s refusal to comply with their lawful orders , the institution of criminal proceedings against [ L. and PERSON ] should be refused for lack of corpus delicti . ”

Article CARDINAL of the LAW of GPE protects the right to life .

The Health Care ( General Principles ) Act of DATE provides that persons serving a sentence in prisons are entitled to medical assistance at the ORG ’s expense and , as the case may be , at institutions run by the general public health service ( section CARDINAL ) .

DATE . LAW of DATE provides that correctional institutions are responsible for inmates’ security and healthcare ( section CARDINAL ) .

DATE Code on the Execution of Sentences , as it read at the material time , provided that inmates suffering from a psychiatric disorder which did not attain the degree of legal insanity could be subjected to compulsory medical treatment subject to authorisation by a competent court . Such inmates included persons who posed a danger to others or themselves , in which case the prison authorities had to apply for a court order for their compulsory medical treatment .

Article CARDINAL of the DATE Code on LAW , as it read at the material time , provided that medical units and hospitals , including specialised psychiatric and tuberculosis hospitals , were available within the penal system to provide medical care for inmates ( § CARDINAL ) . Medical aid should be provided in accordance with the laws of GPE and statutory instruments of ORG and ORG ( § § CARDINAL and CARDINAL ) .

According to ORG , adopted by order no . CARDINAL of ORG of DATE , in force in the relevant part until DATE , a correctional facility provided medical examinations , supervision and treatment of inmates using the means and facilities recommended by ORG . In instances where medical aid could not be provided in a medical institution within the penal system the inmate could be transferred to a medical institution within the ordinary healthcare system ( section CARDINAL ) .

The Internal Regulations further provided that inmates placed in disciplinary cells or solitary confinement could not take foodstuffs and personal items to their cell , except for a towel , a piece of soap , toothpaste and a toothbrush ( section CARDINAL ) . Annex CARDINAL to ORG listed items whose use was forbidden in a correctional facility , including knives and other sharp cutting or piercing objects .

Annex CARDINAL to ORG , adopted by order no . CARDINAL of ORG of DATE , which from DATE ( the new Regulations ) replaced ORG adopted on DATE , listed items whose use was forbidden in a correctional facility , including knives , straight razors and blades for safety razors . ORG were published in DATE Acts of ORG ( no . DATE ) .

Under LAW it was permitted to inmates placed in disciplinary cells or solitary confinement to take with them to their cell a towel , a piece of soap , toothpaste and a toothbrush , toilet paper , hygienic items ( for women ) , newspapers and magazines they were subscribed to , religious literature and objects of cult ( section CARDINAL ) .

The Instruction on Supervision of Inmates held in ORG , adopted by order no . CARDINAL of ORG DATE , as in force at the relevant time , provided that officers responsible for supervision of inmates held in disciplinary cells monitored the inmates’ presence and conduct by means of constant surveillance through inspection holes in the doors of the cells . Officers on duty had to call for a doctor for inmates requiring medical aid ( section CARDINAL.CARDINAL.CARDINAL ) . In the event of sudden illness , self - mutilation or a suicide attempt on the part of an inmate , a junior officer immediately had to alert the officer on duty and , upon the latter ’s arrival , and having ensured that it was not a case of simulation , would open the cell and provide the inmate with the requisite aid . The officer on duty would then decide what further action to take ( section CARDINAL ) .

DATE . The DATE Code of Criminal Procedure of the RSFSR , which was in force until DATE , required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts ( Articles CARDINAL and CARDINAL - CARDINAL ) .

No criminal proceedings could be brought in the absence of a corpus delicti ( LAW . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed against to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .

On DATE the DATE Code of Criminal Procedure of the ORG was replaced by LAW .

Article CARDINAL of the new Code lays down a judicial procedure for the consideration of complaints . Orders of an investigator or prosecutor refusing to institute criminal proceedings or terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen ’s access to justice , may be appealed against to a local district court , which is empowered to check the lawfulness and grounds of the impugned decisions .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

The applicant was born in DATE and lives in Zvolen . He was a member of ORG ( PERSON ) of GPE .

On DATE the applicant was charged ( obvinený ) with carrying out business activities without authorisation ( Article CARDINAL § CARDINAL and CARDINAL ( a ) of LAW ( CC ) ) , extortion ( LAW ) and rape ( LAW ) . The charges were based on the suspicion that the applicant who was disqualified from carrying out business activities by law on account of his status as a police officer had arranged for a third person , PERSON , to run a restaurant on his behalf . He was further suspected of having threatened P. with violence in order to make her give him an amount of money and of having forced at gunpoint a waitress , Ms. PERSON , to have intercourse with him . The blackmail charge was later extended as the applicant was also suspected of having made violent threats against PERSON in order to force her to be his girlfriend .

The applicant was detained , dismissed from the police and tried on the above charges . The details are set out below .

On DATE the Minister of the ORG issued an order ( personálny rozkaz ) dismissing the applicant from service in the police . The evidence available showed that the applicant had committed the acts of which he was charged . Such conduct grossly violated the service oath and , accordingly , was incompatible with service in the police . The applicant ’s administrative appeal ( rozklad ) was dismissed on DATE .

The applicant ’s subsequent numerous requests that ORG review his dismissal in a special procedure outside the framework of ordinary appellate proceedings ( mimo odovlacieho konania ) and that the proceedings be reopened failed .

On DATE the applicant challenged his dismissal by way of an administrative - law action in ORG ( Najvyšší súd ) . It was declared inadmissible on DATE on the ground that it clearly had been filed outside the statutory DATE time - limit , counted from the final administrative decision in the case which was the decision of DATE .

On DATE the applicant challenged the dismissal order of DATE in ORG ( Ústavný súd ) under LAW . It was declared inadmissible on DATE as being belated . Moreover , and in any event , the review of the dismissal order fell within the jurisdiction of ORG . ORG review was merely subsidiary and did not apply to the dismissal order directly . As for the decision of ORG , it could not be reviewed either because the applicant ’s constitutional complaint was not directed against it .

On DATE , at TIME , the police detained the applicant on the above charges . He was assigned an ex officio lawyer .

On DATE the applicant was brought before the judge of the Zvolen ORG súd ) .

The parties disagree as to the exact time when this took place . The Government rely on TIME of the applicant ’s questioning which bear his signature and indicate that he had appeared before the judge at TIME The applicant now claims that he was presented to the judge at TIME , which is after the CARDINAL statutory time - limit .

The applicant pleaded not guilty . There is no indication that he complained about infringement of the above time - limit . The questioning was concluded at TIME with ORG decision to remand the applicant in detention ( see the subsequent paragraph ) .

On DATE ORG remanded the applicant under LAW ( b ) and ( c ) of LAW ( ORG ) which allowed for detention of persons charged with criminal offences where there were reasonable grounds for believing that if released they would interfere with the course of justice or continue to engage in criminal activities . The court found it established that the applicant ’s liberty had been restricted on DATE at TIME There was a strong suspicion against him which was based on testimonies of P. , PERSON and CARDINAL witnesses . The applicant was suspected of having threatened and used violence against P. and PERSON over an extended period . Therefore it could be presumed that he would continue doing so with a view to hampering the proceedings . This presumption rendered his detention justified on the legal grounds referred to above .

The applicant ’s appeal ( sťažnosť ) against the remand order was dismissed by ORG ( PERSON súd ) on CARDINAL DATE .

In the period prior to DATE the applicant filed numerous petitions for release . They were dismissed by the prosecution service , ORG and ORG on various grounds including that some of the petitions had been lodged DATE from the final determination of the previous petition and , as they contained no new relevant information , they had to be dismissed under LAW of the ORG .

In all cases the authorities found that the suspicion against the applicant and the grounds for his detention , as established at the time of his remand , still persisted . In decisions of DATE and DATE the ORG moreover observed that covert messages from the applicant to his wife , PERSON and her family members had been intercepted , which showed that he had actually attempted to interfere with the course of justice and that he was likely to act violently . The existence of such messages was established by the prison administration and the prosecution service , which confirmed it in their respective letters of CARDINAL and DATE .

On DATE ORG authorised extension of the applicant ’s detention under LAW ORG until DATE .

On DATE , ORG found the applicant guilty and sentenced him ( see below ) . At the same time it decided that for the time being the applicant should be released from detention . The release order was however not yet enforceable as it had been challenged by the prosecution .

On DATE ORG allowed the prosecutor ’s appeal against the release order and ruled that the applicant should remain in detention . With reference to the intercepted letters ORG found that the applicant had attempted to influence witnesses and concluded that , if released , it was likely that he would exert pressure on the victims with a view to having their statements modified .

On DATE ORG dismissed the applicant ’s petition for release . The applicant appealed to ORG but on DATE withdrew the appeal . ORG acknowledged the withdrawal on DATE .

On DATE the applicant petitioned for release again . He contested the charges and argued that there was no risk that he would continue to offend as envisaged by LAW ) of the ORG .

NORP In a letter of DATE ORG informed the applicant that under LAW of the ORG his petition of DATE could not be dealt with because it had been lodged prior to the final determination of his previous petition and contained no new relevant information .

On DATE the applicant lodged a fresh petition for release and ORG ordered his release on DATE .

On DATE ORG upheld the release order of DATE on the prosecutor ’s appeal . It referred to the evidence taken in the course of the proceedings , the length of the applicant ’s detention and the fact that his criminal record was clear . It concluded that the reasons for his detention had fallen away .

The applicant was released on DATE .

NORP In the course of the proceedings the applicant unsuccessfully attempted to have criminal proceedings brought against the officials dealing with his case . He complained , inter alia , that no decision had been given to authorise the extension of his detention after DATE ( see paragraph CARDINAL above ) .

On DATE ORG issued a search warrant for CARDINAL flats and a cottage used by the applicant . The searches took place on CARDINAL and DATE .

On DATE the Zvolen ORG dismissed the applicant ’s appeal against his charges . His appeal against the extended charge for extortion was dismissed later .

On DATE ORG assigned the applicant a new ex officio lawyer at the applicant ’s request .

On DATE the applicant was indicted to stand trial in ORG on the above charges .

On DATE the case was assigned to a different judge of ORG , GPE , because the previous judge knew the applicant and felt personally biased .

ORG held hearings on DATE at which it heard the applicant , the victims and several witnesses .

Following the hearing of DATE , on DATE , ORG found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment . Both the applicant and the prosecution appealed .

On DATE ORG quashed ORG judgment and remitted the case to the latter for the taking of further evidence and re - examination . ORG held that it was necessary to rehear the case as in the course of the proceedings there had been a change in the ORG chamber dealing with it .

On DATE ORG assigned the applicant a new ex officio lawyer at the request of the previous lawyer who felt that the applicant had no confidence in him .

On DATE ORG exempted Judge PERSON from dealing with the applicant ’s case at her own request because she felt partial because of the applicant ’s persistent use of invectives against her .

The case was assigned to a new judge , ORG , who also requested his exclusion . He submitted that he knew the applicant and that he felt concerned by his invectives directed against the previous judge .

On DATE ORG ruled that M.Š. would not be excluded from dealing with the applicant ’s case .

On DATE M.Š. again requested his exclusion from the case as he felt biased after the applicant had filed an unsuccessful criminal complaint against him .

On DATE ORG found that M.Š. was not disqualified from dealing with the case as , being a professional judge , he had to be prepared to accept a certain level of criticism without losing his impartiality .

On DATE ORG ordered an expert examination of the applicant ’s mental health . On DATE ORG quashed this order on the applicant ’s appeal for reasons of formality .

DATE and DATE ORG held CARDINAL hearings and made CARDINAL attempts at establishing the whereabouts of P. who was believed to be staying in GPE .

On DATE ORG held another hearing following which , on DATE , it found the applicant guilty as charged and sentenced him to CARDINAL half years’ imprisonment and a fine . In reaching that conclusion ORG took into account the testimonies of numerous witnesses , reports from several experts and complex documentary evidence . The applicant appealed .

On DATE ORG quashed the judgment of DATE and found the applicant guilty of having run a business without authorisation and of extortion . It acquitted him of the remaining charges and sentenced him to CARDINAL imprisonment and a fine .

The Prosecutor General challenged the judgment of DATE by means of a complaint in the interest of law ( sťažnosť pre porušenie zákona ) filed with ORG .

On DATE ORG quashed the judgment of DATE and ordered ORG to re - examine the applicant ’s appeal against the judgment of DATE .

ORG called hearings for DATE and DATE . They had to be adjourned as the applicant did not appear .

ORG requested that the applicant be brought by the police and eventually issued a warrant for his arrest .

The applicant then appeared before ORG of his own accord and the arrest warrant was quashed .

On DATE ORG held a hearing following which , on DATE , it upheld ORG judgment of DATE as regards the conviction and increased the penalty which had been imposed in the judgment of CARDINAL DATE to CARDINAL years’ imprisonment .

The Minister of ORG challenged the judgment of DATE by means of a complaint in the interest of law . He contested mainly the imposed sentence considering that ORG had failed to take due account of the seriousness of the offences and the context in which they had been committed .

On DATE ORG quashed the judgment of DATE finding that the sentence imposed was too lenient . ORG was accordingly instructed to re - examine the applicant ’s appeal against the judgment of DATE .

DATE . On DATE ORG held a hearing following which , on DATE , it increased the sentence imposed in the judgment of DATE to CARDINAL years’ imprisonment . No further appeal was available . The applicant then unsuccessfully sought to challenge his conviction in ORG .

On DATE the applicant lodged a complaint under Article CARDINAL of the LAW asserting violations of his constitutional rights in the criminal proceedings against him . He complained inter alia about the length of the proceedings , directing this part of his complaint exclusively against ORG .

On DATE ORG declared the complaint about the length of the criminal proceedings before ORG admissible and the remaining complaints inadmissible .

On DATE ORG found that ORG had violated the applicant ’s right to a hearing “ without unjustified delay ” ( LAW ) .

ORG found that the subjectmatter of the proceedings was not particularly complex and that no undue delays could be attributed to the applicant . In contrast , ORG had been inactive without any justification DATE and DATE .

ORG concluded that the finding of a violation of the applicant ’s right was in itself sufficient just satisfaction for him . In view of all the circumstances including the fact that there had only been CARDINAL relatively insignificant period of unjustified delay , ORG considered that financial compensation for the applicant ’s nonpecuniary damage would not be appropriate . It however awarded him reimbursement of his legal costs .

Article CARDINAL provides that international instruments on human rights and freedoms ratified by GPE and promulgated under statutory requirements have precedence over national laws , provided that they guarantee greater constitutional rights and freedoms .

Under ORG case - law ( see , for example , the decision of DATE , file no . I. ÚS CARDINAL ) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the LAW and with international treaties . Accordingly , the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the LAW or international treaties .

Pursuant to LAW no one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law .

Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Under LAW any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law .

Detention on remand is governed by the provisions of Articles CARDINAL et seq . A person charged with a criminal offence ( obvinený ) can be detained inter alia when there are reasonable grounds for believing that he or she would influence the witnesses or the co - accused or otherwise hamper the investigation ( LAW ( b ) ) or continue criminal activity , complete an attempted offence or commit an offence which he or she prepared or threatened to commit ( LAW ( c ) ) .

Article CARDINAL § CARDINAL provides inter alia that where detention in the pre - trial phase of proceedings exceeded DATE and the release of the detainee would jeopardise the purpose of the proceedings , a single judge can extend the detention for a period of DATE . A motion for such an extension shall be lodged by the public prosecution service . A further extension of detention in the pre - trial phase of the proceedings beyond the DATE limit can be authorised by a chamber of judges up to a maximum of DATE .

Under LAW detention on remand in the pre - trial phase of the proceedings and in the proceedings before a court taken together can not exceed DATE . An extension by DATE can be authorised by ORG .

Article CARDINAL § CARDINAL entitles the detainee to apply for release at any time . When the public prosecutor dismisses such an application in the pretrial phase of the proceedings , he or she shall submit it immediately to the court . The court shall rule on such an application without delay . If the application is dismissed , the accused may renew it DATE after the decision has become final unless he or she invokes different reasons .

Under LAW , natural persons have the right to protection of their personality rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .

Under LAW , natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated . They also have the right to appropriate just satisfaction .

Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been considerably diminished , the injured party is also entitled to financial compensation for non - pecuniary damage .

In an action of DATE a married couple asserted a claim against ORG for financial compensation for non - pecuniary damage caused to them by detention on remand and criminal proceedings against them , which ended with their acquittal . The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary .

The action was examined on appeal by ORG under file number CARDINALCo CARDINAL/CARDINAL . In its judgment of DATE the court interpreted the claim as a claim for protection of personal integrity under LAW . It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness . Relying on the judgment of ORG of DATE file number ORG CARDINAL/CARDINAL , the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal . The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive . The above claim was thus not accepted , unlike other claims made in the same action ( compensation for lost profit , legal costs and infringement of the presumption of innocence ) .

Further details concerning protection of personal integrity under LAW are summarised in GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .

Article CARDINAL defines the jurisdiction of the ordinary courts . Pursuant to its first paragraph , unless jurisdiction is conferred by statute on other authorities , the ordinary courts examine and decide upon matters stemming from relations under civil law , labour law , family law , the law of cooperatives , and commercial law . Under paragraph CARDINAL , other matters may be examined and decided upon by the ordinary courts only if a statute so provides .

DATE . Under the terms of LAW are bound , inter alia , by the decisions of the competent authorities that a criminal offence has been committed and by whom ( paragraph CARDINAL ) . Other questions which normally fall to be decided by other authorities can be decided by a civil court . However , if the competent authorities decided upon such a question , the civil court will adopt their decision ( vychádza z ich rozhodnutia ) .

The Act lays down rules for ORG liability for damage caused by unlawful decisions ( Part ( Časť ) One ) and wrongful official conduct ( Part CARDINAL ) .

NORP The general scope of State liability for damage caused by unlawful decisions is defined in LAW . Pursuant to this provision the ORG is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings . However , decisions concerning detention and sentencing are excluded .

Special rules concerning ORG liability for damage caused by decisions on detention are embodied in sections CARDINAL et seq . The ORG is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted ( section CARDINAL ( CARDINAL ) ) .

Section CARDINAL ( CARDINAL ) renders the ORG liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions .

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the wrongful act in question .

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


Violation of Article 6 - Right to a fair trial

Christos Rozakis;Costas Pamballis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Pamballis;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in GPE .

The applicants rented a souvenir shop together in GPE . On DATE they filed an application ( KCARDINAL/CARDINAL ) before ORG ( ” the LOC ” ) challenging the amount of rent they paid the respondents and seeking its reduction .

On DATE the ORG ordered that the application be served abroad on the respondents in GPE .

On DATE the respondents filed their defence .

Upon completion of the pleadings , the applicants , on DATE , requested the ORG to list the application for mention .

The application was listed for directions CARDINAL times DATE and DATE . No court records are available for this period .

On DATE the respondents filed an application for discovery and inspection of documents .

On DATE the respondents requested that the ORG carry out a local survey . With the applicants’ agreement , this was carried out on DATE .

The case was listed for a directions hearing to be held on DATE with a view to setting a hearing date after the parties’ lawyers had the opportunity to inform the court of their decision regarding the manner in which the court ’s expert would testify .

On the above date the respondents requested leave to amend their valuation .

The application was set down to be heard on DATE and the court directed that its expert would testify and be cross - examined on DATE .

The hearing started on the above date . Following the expert ’s testimony , the respondents requested that cross - examination take place on another date to allow their expert to assess the evidence given and prepare their cross - examination . The applicants’ lawyer objected .

The court granted the adjournment and set the case down for DATE after discussing the suitability of that date for the lawyers . Costs were ordered against the respondents .

The hearing continued on the above date with the cross - examination of the ORG ’s expert by the respondents’ lawyer . When this finished the hearing was adjourned to DATE at the ORG request .

The hearing continued on DATE with the cross - examination of the ORG ’s expert by the ORG lawyer . At the end of the hearing the respondents requested the court to join the application with another CARDINAL applications ( KCARDINAL/CARDINAL , KCARDINAL/CARDINAL and KCARDINAL/CARDINAL ) as they all concerned the determination of the rental value of shops which were situated in the same complex . The parties agreed and the court issued an order joining the applications . As the lawyers considered there was not enough time for the testimony and cross - examination of the respondents’ expert the hearing was fixed for DATE , following the DATE vacation .

On the above date the court accepted the parties’ request that the evidence of the expert be given at the same time for all the cases followed by separate cross - examination by each lawyer . After the examination - in - chief of the first witness , the examination - in - chief of the second witness was interrupted due to that witness ’s ill health .

The hearing continued on DATE and was then adjourned to DATE . It was further adjourned , however , on that date , as the respondents’ expert could not attend due to a health problem .

The hearing was then listed for DATE . It continued on that date and then on DATE . The hearing was initially due to continue DATE but was instead adjourned to CARDINAL and DATE in order to allow the lawyer in CARDINAL of the applications to prepare his client ’s defence .

On DATE , however , the court cancelled the first session as one of the trial judges would be abroad . It further issued an order separating the applications ( see paragraph CARDINAL above ) and stated that separate decisions would be delivered .

On DATE the parties’ lawyers addressed the court .

On DATE the court rejected the evidence given by the respondents’ expert and , on the basis of the evidence of the expert it had appointed , ordered a reduction in the rent paid by the applicants . Costs were awarded in favour of the applicants .

On DATE the respondents lodged an appeal before ORG .

NORP By letter dated DATE the Registrar of the LOC of GPE informed ORG of ORG that the records of the proceedings would be transcribed and sent to ORG by DATE .

By a letter dated DATE ORG informed the appellants that their appeal had been entered in the register ( appeal no . DATE ) .

NORP By letter CARDINAL DATE the Registrar of the LOC of GPE sent the case file , the court records , the judgment and the list of exhibits to ORG .

The appeal was listed for a preliminary hearing on DATE . On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing .

These were filed on DATE .

On DATE the applicants informed the court that they had appointed a new lawyer .

On DATE the appeal was submitted to ORG but in the absence of an available date it was not set down for hearing .

On DATE the Chief Registrar of ORG informed the parties that the appeal had been set down for hearing on DATE . Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties’ request until DATE .

On DATE the parties addressed the court and judgment was reserved . The applicants’ lawyer stated that he was in complete agreement with the first - instance judgment .

On DATE ORG upheld the appeal and set aside the ORG ’s decision . It ordered a retrial of the case . ORG found that the LAW had erred in its assessment of the evidence that had been put before it . In this connection , it noted that the LOC had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age , condition and facilities of those shops when assessing the rental value of the shop in question . Secondly , it found substantial errors in the valuation made by the ORG ’s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared . The court considered that the valuation given by the ORG ’s expert had been ill - founded and unreliable and that therefore the ORG should not have relied on it . Similarly , the court found that the valuation of the respondents’ expert ( the appellants at the appeal stage ) had been unsound . In this connection , it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes . ORG therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the ORG shop .

Finally , ORG ordered that the costs of both the first instance and appeal proceedings be paid by the applicants ( the respondents at the appeal stage ) .

Following a request by ORG Limassol- GPE , ORG , in a letter dated DATE , gave directions for the retrial of the application .

On DATE the application was brought before a newly composed ORG and was listed for a directions hearing on DATE in view of the possibility of a friendly settlement .

On the latter date the application was fixed for hearing on DATE . On that date the respondents requested that they be given time to consider the court ’s proposals with regard to a settlement . With the applicants’ agreement the application was set down for hearing on DATE . On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent . The applicants’ lawyer claimed his costs [ for the retrial ] and the respondents’ lawyer claimed the costs of the first trial and appeal .

On DATE the court determined the rent as agreed and ordered that the respondents pay the retrial costs , as assessed by the Registrar and approved by the court , unless the parties reached a different agreement .

During the retrial proceedings , by letter dated DATE , the applicants’ lawyer requested the Attorney - General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants .

By letter dated CARDINAL DATE the Attorney - General replied that this was not possible since the proceedings in question concerned a trial between private parties and , further , that it was for the courts to take into account all relevant circumstances when determining the matter of costs .

Section CARDINAL of ORG Law CARDINAL ( Law no . CARDINAL/CARDINAL , as amended ) provides as follows :

“ The costs of , and incident to , any civil proceedings , in any court , shall , unless otherwise provided by any law in force for the time being , or any subsidiary legislation , be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid ” .

Order CARDINAL of LAW sets out the rules concerning costs . Rule CARDINAL of this Order provides as follows :

“ Subject to the provisions of any law or Rules , the costs of , and incident , to any proceeding shall be in the discretion of the ORG or Judge , who may authorise an executor , administrator or trustee who has not unreasonably instituted , or carried on , or resisted any proceeding , to have his costs paid out of a particular estate or fund . ”

Regulation CARDINAL ( a ) of ORG of DATE provides :

“ The award of costs is a matter in the discretionary power of the court . The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account . ”

Section CARDINAL of the Rent Control Law CARDINAL/CARDINAL ( as amended ) provides that the procedure before ORG is a summary procedure not bound by the rules of evidence .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr. Y. GPE .

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

The applicant owns a CARDINAL % share in ORG , a joint venture ( hereinafter the “ Company ” ) . The ORG was incorporated on DATE as a joint venture with a CARDINAL % share at all relevant times being owned by a NORP partner . The Company and its subsidiary were conducting a gas trading business .

The ORG also fell into the category of “ companies with foreign investments ” , within the meaning of LAW DATE ( the “ DATE LAW ) , until its repeal in DATE .

The DATE Act was adopted with a view to encouraging foreign investments and was applied to companies where a foreign partner had PERCENT share . This Act established preferential treatment for such companies , including , inter alia , DATE immunity from changes in the law governing foreign investments ( Section CARDINAL ) . This immunity was to be granted on the making of the relevant application and calculated from the date of its establishment .

On DATE ORG passed the Companies set up with ORG Act CARDINAL ( the “ LAW ” ) , which provided that companies with a foreign shareholding were subject to general tax , customs and currency regulations , and repealed LAW . LAW affected all joint ventures irrespective of when the foreign investment had been made .

In its judgment of DATE , ORG gave a binding interpretation of LAW , holding that it provided valid grounds for refusing new and withdrawing previously granted taxation privileges .

In DATE the Company instituted proceedings in ORG claiming immunity under LAW . On DATE the court found for the Company and declared that , until DATE , the Company was exempted from any new taxes , duties , changes in the method of calculation or payment of taxes introduced after CARDINAL September CARDINAL .

On DATE ORG , following the appeal of the customs authorities , quashed this decision and remitted the case . On DATE the ORG 's claim was declared inadmissible .

On DATE ORG , upon the supervisory complaint of its Deputy President , quashed the decisions of DATE and DATE , and upheld the judgment of DATE , thus reinstating the ORG 's immunity from any changes in tax and customs law .

On DATE ORG clarified its judgment of DATE upon the ORG 's request . The court specified that the ORG , as well as its subsidiaries , was immune from any changes in fiscal legislation , including that introduced by LAW . This ruling was upheld by ORG on DATE and by ORG on DATE . On DATE ORG rejected the request of the Head of ORG to reopen the proceedings due to the new circumstances .

On DATE ORG ( hereafter “ ORG ” ) refused to allow the ORG 's subsidiary free transit of a certain amount of gas across the NORP border . The ORG 's subsidiary together with the applicant and the ORG 's foreign shareholder challenged this decision before the courts .

On DATE the ORG of GPE allowed this claim and ordered ORG to allow the gas to be imported , referring in this respect to the DATE judgment .

On DATE ORG granted ORG 's appeal , quashed the judgment of DATE and rejected the claim as unfounded . The court indicated that LAW , as interpreted by ORG , gave sufficient grounds for annulling the taxation privileges enjoyed by the ORG and its subsidiary .

On DATE ORG rejected the cassation appeal against the judgment of ORG as unfounded .

Section CARDINAL of that Act provided that it was applicable to companies of any type or form as long as a foreign investor owned at least a PERCENT share in such a company .

According to LAW a “ company with foreign investments ” falling into the scope of this LAW could be granted , upon submission of the relevant application , immunity for a period of DATE from changes in special legislation to do with the regulation of foreign investments .

The Preamble specified that the LAW 's aim was to put companies with foreign shares in an equal position to those without foreign investments , thus protecting free competition and domestic industry .

Section CARDINAL of the Act declared that companies with foreign investments were subject to general tax , customs and currency regulations .

Section CARDINAL of the LAW repealed LAW .

According to Section CARDINAL , this LAW applied to all joint ventures irrespective of when the foreign investment was made .

Following a request from ORG , ORG gave an official interpretation of LAW . The court explained that this provision constituted adequate grounds for refusing new and withdrawing previously granted applications for those privileges regarding taxes , customs duties and currency controls .