Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

András Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant , Mr PERSON ( “ Halil ” ) , was born in DATE and lives in GPE . At the material time he was DATE and worked as an apprentice in a garage .

On DATE , at TIME , the applicant was taken to the PERSON police station in GPE by his employer , ORG , who accused him of stealing MONEY ( GPE ) –approximately CARDINAL United States dollars ( ORG ) DATE he had asked him to take to the bank . On returning to the garage he claimed that he had been robbed . According to the police report signed at TIME , the employer filed a complaint against PERSON .

At the police station the applicant was questioned by Superintendent GPE and Officer GPE

At TIME the police told the applicant ’s father , PERSON ( “ PERSON ) , what had happened and he went straight to the police station .

At TIME PERSON ’s father and employer reached an agreement . PERSON withdrew his complaint , and PERSON signed the following statement :

“ ... PERSON has recovered his money and withdrawn his complaint . I am therefore taking my son from the police station . I have no demand or complaint to make concerning my son . I do not want him to have a medical check - up ; my son was well treated at the police station and not ill - treated or tortured ... he was handed over to me in good shape and in good health ... ”

NORP However , once outside the police station , PERSON saw his son stagger , totter and vomit twice . Back at home , when PERSON was undressed , his parents and the neighbours present saw numerous injuries and bruises on his body . PERSON then told his father that he had been beaten by his interrogators . PERSON took PERSON to ORG .

Officer GPE , from the hospital ’s police desk , sent him to the casualty department . In a provisional medical report the doctor who examined PERSON made the following observations :

“ The subject is conscious ... He has QUANTITY bruises on his arms and legs and large bruises ( QUANTITY ) on both buttocks ... ”

PERSON was admitted to the paediatric ward .

On DATE returned to the police station to complain about the ill - treatment inflicted on his son and find out who had questioned him . He was given the name of GPE İ.D.

On DATE lodged a complaint against GPE and his subordinate officers with the public prosecutor of GPE ( “ the prosecutor ” ) . He asked for PERSON to be examined by a specialist in forensic medicine .

On DATE the prosecutor interviewed the applicant , who had been discharged from hospital TIME . He stated :

“ ... at the police station I was beaten by CARDINAL policemen in the toilets ; one was wearing glasses and the other had green eyes . CARDINAL of them was a superintendent , at least that ’s what they told me – I would n’t know the difference . I would recognise the officers who beat me ... Later on ... my father and my uncle sorted things out with my boss and came to fetch me from the police station . On the way home I was sick . Then , when we got home and they undressed me , they saw the truncheon marks and took me to ORG ... ”

As his hand had been injured , PERSON had to ‘ sign’ the record of his interview with his fingerprint .

DATE , at the prosecutor ’s request , PERSON was examined by a doctor from ORG . In his preliminary report the doctor wrote :

“ PERSON has been examined . At this time his ... right forearm is immobilised in a plaster cast . He has bruising on the outside of his left arm which is a light violet colour in the middle and pale green round the edges , a pale green bruise on the left elbow , large bruises on both buttocks which are violet in the middle and pale green round the edges , and a pale green bruise on the lower back of the left thigh . It is noted that the subject was admitted to the paediatric ward at ORG , where he received emergency treatment ... for a fractured elbow . The final report will be drawn up on receipt of the hospital diagnosis and treatment report , the X - rays and the radiologist ’s report ... ”

On DATE the applicant was re - examined by another doctor from ORG , who reviewed the findings in the previous reports and stated :

“ Having noted the existence of yellowish bruises measuring QUANTITY on the left buttock , QUANTITY on the right buttock , QUANTITY on the lower back of the left thigh and QUANTITY on the left arm , and [ also ] a muscle tissue trauma on the left forearm ( which has been bandaged with a splint ) , we conclude that as a result of these injuries , which are not life - threatening , the subject should take DATE off work ... ”

On DATE the prosecutor questioned PERSON Denying the accusations , the superintendent said :

“ ... I did not beat the complainant . Besides , hardly TIME went by between the time when his employer brought him in and the time when he was released ... I did not inflict any torture on the complainant . [ Yes , ] I always wear glasses and it was me who talked to the boy ... ”

Chief Superintendent PERSON was subsequently appointed reporting officer to assist the prosecutor in investigating the case . On DATE GPE was brought before PERSON , who recognised him . The reporting officer then interviewed PERSON , who repeated what he had already said and added that GPE and GPE had hit him on the hands , “ backside ” and legs ; when he collapsed under the blows , they apparently took him to a cell and threatened to “ come back ” unless he told them where he had hidden the money .

The reporting officer then questioned GPE , who gave the following explanation :

“ ... at TIME the boy was handed over to his father . According to [ the complainant ] , the boy felt unwell at TIME and was taken to hospital , where a report was drawn up . This event was broadcast on the television channel FAC . Following that broadcast , I was suspended as of DATE . Contrary to what the boy and his father say , neither Officer PERSON nor myself hit [ the applicant ] with truncheons on the hands , backside or legs . ... He arrived at the police station at TIME and I stayed with him until he left at TIME When the boy was brought to the police station his face was dirty ... ; Officer GPE only took him to the toilets so he could wash his face ... The allegations are false ... we are wrongfully accused ... ”

On DATE , DATE , the reporting officer also interviewed PERSON ’s employer , PERSON , and CARDINAL officers from PERSON police station . PERSON testified in favour of the accused , stating that on DATE of the incident , from TIME , he had sat with GPE and neither GPE nor GPE had touched PERSON during that time . CARDINAL of the other police officers questioned said that there had been nothing wrong with the boy when he was handed over to his father , and the third said that he had seen no one ill - treat the boy .

On DATE the prosecutor showed PERSON photographs of the police officers on duty at Çınarlı police station . He identified GPE and GPE

On DATE the prosecutor interviewed GPE , who simply denied the accusations against him . DATE the reporting officer brought GPE before PERSON , who recognised him . The reporting officer then questioned GPE , who stated :

“ ... I was with PERSON at the time ; the boy was contradicting himself , he had dust and mud on his face ; his [ employer ] was with him . At the superintendent ’s request I took the boy to the toilets to wash his face , then took him back to the main office . Around TIME we telephoned his father , who came to fetch him . ... Nobody hit the boy ; if you ask me , his father ... or someone else angry about losing the MONEY probably gave him a good hiding ... ”

On DATE the reporting officer forwarded copies of the reports drawn up in the course of his investigations to the prosecutor ; they were included in the prosecution ’s case file no . CARDINAL/CARDINAL .

On DATE , on receipt of the medical file that had been requested from ORG , the preliminary medical report of CARDINAL DATE was finalised . The final report confirmed all the earlier medical findings . It also mentioned other visible marks on PERSON ’s body : bruising on the upper and lower belly , a CARDINAL x QUANTITY bruise on the side of the left tibia , a bruise behind the left knee , wide bruises on the knees and the right tibia , and bruising on the left wrist , the right elbow , the back of the right hand , and in the groin area . The report indicated that PERSON would probably take DATE to recover .

On DATE the prosecutor indicted PERSON and Officer PERSON before the second section of ORG ( “ the ORG ” ) for violation of Article CARDINAL of LAW ( the obtaining of a confession by a public official by means of torture ) .

Proceedings before ORG commenced on DATE . All the parties attended the hearing on DATE . Their statements may be summarised as follows .

Superintendent GPE :

“ ... I never left my office at any time ; I did not strike the victim at all or order a police officer to hit or maltreat him to make him tell the truth ... ; I only asked Officer PERSON to take him to the washbasin and help him wash his face ... My mistake was not to have had the boy examined by a doctor before handing him over to his father ; if I had done that , there would be no case against me ... ; the complainant [ PERSON ] said that the money had been taken from him by force , so he might have sustained the injuries at that time ... [ PERSON ] was handed over to his father at TIME , but the medical report was obtained at TIME ; I even thought that the parents might be those [ really ] responsible for [ PERSON ’s ] condition , as , if ... he had shown any signs of the injuries described in the report , we would never have let him leave the police station [ in such a state ] ... ”

Officer PERSON :

“ I maintain what I said before [ to the reporting officer and the prosecutor ] ... ; I do not know why the complainant and the victim have made these accusations against us . ”

PERSON , the complainant :

“ ... When I arrived at the police station they had already questioned PERSON ... and my son . ... Then they brought my son ... who said to PERSON , ‘ There you are , did you get what you wanted?’ ; at the time I did n’t realise what he meant ... ; it did n’t register until I got him home and saw the injuries ... ; then they took my son to a cell ; when I went to the toilet I saw him lying down in the cell and told him to sit up properly , but he said he could n’t ... My son spent DATE in intensive care at ORG ... ; they told me they had given him CARDINAL bottles of serum ... ”

PERSON , the victim :

“ ... at the police station that man ( pointing at ORG ) said , ‘ Think carefully , you are going to tell me where the money LAW , then he ... took me into the toilets and hit me on the hands with a truncheon . At CARDINAL point I tripped and fell and the dustbin above me fell on my head . While I was down [ GPE started hitting me ] ; he put his boot over my mouth to stop me screaming ; then he went away saying , ‘ Think carefully ; I ’ll be back’ ; but he did n’t come back ... Then my father and uncle arrived ; ... [ my father ] saw me in the cell and told me to sit up straight , but I could n’t , because I was sore all over ... The superintendent beat me to find out where the money was ... ; GPE held me so I could n’t move , but he did n’t hit me . ... Neither my employer nor my father or my family beat me for losing the money ... ”

The applicant ’s lawyer applied , under LAW , to join the criminal proceedings as a civil party and reserved his rights to compensation . He also filed a list of prosecution witnesses he wished to call . These included the neighbours who had been present when PERSON returned from the police station and taken him to the hospital with his family . The court accepted these requests .

The trial court also heard evidence from ORG , who confirmed ORG version of the facts . In addition to what he had told the investigating authorities , the superintendent said that on DATE of the incident his colleagues at the police station had called him at TIME to tell him that PERSON had been admitted to hospital . He had gone to the hospital with another superintendent and other police officers , where he had been insulted by PERSON ’s friends and family , who allegedly even tried to attack him . He said he had not seen the applicant leave the police station with his father and had no idea what had possessed them to accuse the police when the matter had been settled between himself and PERSON .

PERSON gave evidence as follows :

“ Just before or after DATE someone by the name of PERSON , the minister ’s bodyguard ... , called me to fix an appointment ; he turned up at the appointed place , together with PERSON ... ; he explained that GPE ’s wife was pregnant and that if we ‘ said the right ORG in court , his sentence might not be executed for DATE , until after the baby had been born . I refused , saying that if he [ GPE ] was so concerned about his unborn baby , how could I be expected not to worry about my own son ? ”

At the hearing on DATE , the trial court heard CARDINAL police officers from PERSON police station and CARDINAL prosecution witnesses . The police officers said that when PERSON had gone to the police station to pick PERSON up he had been asked if he wanted to have the boy examined by a doctor , but he had not deemed it necessary , as his written statement confirmed .

PERSON replied that there had been no such offer and that he had signed the statement without thinking , as he had been worried about his son ’s well - being .

Most of the prosecution witnesses confirmed the complainant ’s version of events and the applicant ’s uncle added :

“ ... I went to the police station with [ Mehmet ] ... PERSON showed no visible traces of violence but he looked as if he had been [ shaken up ] ; no one suggested that we might have him examined by a doctor before we left the police station ... We left the station at TIME ... ; as my nephew was getting into the car , he started to vomit ; I went back [ to the police station ] and spoke to the policeman at the door ; he said we could take [ PERSON ] to a doctor ... Even at the police station I had noticed small marks on [ PERSON ’s ] hands , but I thought nothing of it ; I knew ‘ mishaps’ sometimes occurred at police stations , but I certainly did n’t expect to see what we [ found ] when we got home ... The same evening Chief Superintendent PERSON called my brother - in - law to the police station and I went with him . Chief Superintendent PERSON called in GPE and said to him , ‘ Are n’t you ashamed of yourself ? Brutalising a little boy?’ ; GPE said , ‘ I have been in the police for ... DATE and I did my duty ; what of it if I did hit him once or GPE ; then the chief superintendent said , ‘ Let ’s go to the hospital and see this little boy you say you hit once or twice’ . So we went to the hospital together and they saw the victim ; he was bleeding “ top and bottom ” , he had a tube in him ... ”

The defendants GPE and GPE denied all charges . At the hearing on DATE , their superior officer , PERSON , told the court :

“ ... I heard about the incident at TIME , when the boy ’s family contacted me ... ; I brought the parties face to face ... , but when the accused started to deny the accusations in front of [ the family ] ... I had to send them out of my office before something unpleasant happened ; ... to investigate the matter , and at the family ’s request , I went to the hospital , but without the ORG authorisation it was not possible for me to see the child , as he was in intensive care ... Back at the police station I questioned all the police officers on duty , who all maintained that they had seen nothing and knew nothing ... I went to see the victim once at his home . ... [ Apart from that ] , the defendant GPE never went with me to the hospital . When I brought the parties together face to face , the only thing GPE said was that he had done his duty ... ”

After the next hearing , on DATE , ORG pronounced judgment . It began by announcing its conviction that

“ ... having regard to all the evidence , including the reports in the case file , the statements made by the victim and the reports concerning the complaint , the accused did beat the victim in the course of their duty in the manner described in the [ medical ] report , to make him say where he had hidden the money ... ”

NORP However , ORG decided , by a majority , to reclassify the offence as “ assault and ill - treatment ” , as defined in LAW , rather than the verdict requested by the prosecution . The court based its decision on the fact that PERSON ’s employer had withdrawn his complaint ; he was therefore not accused of any crime and so it could not have been the GPE intention “ to obtain a confession ” within the meaning of Article CARDINAL , but rather simply “ to find out what had happened to the money placed in his care ” .

ORG decided to apply the minimum penalty and sentenced GPE and GPE to CARDINAL months’ imprisonment and a DATE suspension from duty . Taking into account the defendants’ good behaviour during the trial and considering that they had confessed , albeit reluctantly , ORG reduced the sentences to DATE and DATE , in conformity with LAW of LAW . Then , by virtue of sections PERSON ) and CARDINAL ) of PERSON no . CARDINAL , it commuted the prison sentences to fines of GPE CARDINAL ( about USD CARDINAL) , then ordered a stay of execution as the defendants had no criminal record and the judges were convinced that they would not reoffend .

The applicant ’s counsel appealed against the judgment on various points of law , including violation of LAW .

By a decision of CARDINAL DATE , ORG admitted the appeal and set aside the impugned judgment for misclassification of the offence , which the higher court considered amounted to extortion of a confession as defined in Article CARDINAL of LAW . The case was accordingly referred back to ORG .

In his written pleadings dated DATE , GPE submitted :

“ I maintain my previous submissions to ORG and declare that I did not commit the offence of which I am accused ; I did not subject the complainant to any violence or ill - treatment . I accordingly ask the ORG to acquit me . In the alternative , and without admitting to any guilt , I beg the ORG to uphold its initial classification if it decides to convict me , as the facts that constitute the offence defined in LAW have not been established in the present case ... ”

On DATE , after re - examining the case , ORG complied with the decision of the higher court and convicted GPE and GPE of contravening LAW and , once again , sentenced them to the minimum penalties : DATE imprisonment , enforceable immediately , and CARDINAL months’ suspension from duty . These sentences were subsequently reduced to CARDINAL months’ imprisonment and CARDINAL months’ suspension from duty , under LAW of LAW . Then , for the reasons stated in the judgment of DATE , the sentences were suspended under LAW no . CARDINAL .

NORP The applicant ’s lawyer again appealed to ORG to set aside this judgment . Deploring that the defendants had been given the benefit of LAW of LAW and LAW no . CARDINAL , he submitted , in particular :

“ As to the application of the minimum penalty : ... on DATE , under suspicion of theft and misappropriation , the victim ... was taken to the police station , where he was beaten with a truncheon and kicked ... by police officers in an attempt to extort a confession ... The victim was DATE when he was subjected to this torture . When a child that age is tortured he suffers not only physical pain but also irreversible psychological damage that can affect his whole future ... Defendant GPE , who was a superintendent at the material time and is [ now ] a chief superintendent , was a public official acting as the officer in charge . It was his duty not only to abide by the law but also to make sure the men under his orders did so ... The sentences handed down ... against the defendants are manifestly contrary to the public interest which underlies Article CARDINAL of LAW . They are likely to undermine society ’s confidence in the forces of law and order ...

As to the application of LAW of LAW : ... as mentioned above , the offence in issue here is generally considered to be one of the most serious . The [ ORG ’s ] view that the defendants felt remorse is unsubstantiated . Throughout the trial they constantly denied the charges ; they even went as far as to suggest that the victim might have been beaten by [ his parents ] . It is inadmissible that someone who denies the charges should be considered to regret their misconduct ...

As to the suspension of the sentences : ... the enclosed newspaper article reveals that defendant GPE had previously been tried for assault on CARDINAL people and abuse of office ... Even though he was acquitted for lack of evidence , it shows the defendant ’s propensity to commit such offences ... ”

In a judgment of DATE , ORG upheld the judgment of CARDINAL DATE , without replying to the above points of law . As the applicant ’s counsel was not notified of this judgment , he did not become aware of it until DATE .

On DATE the applicant ’s lawyer claimed MONEY from ORG in respect of non - pecuniary damage . When the ORG refused to entertain the claim , the family lodged a claim for damages against the ORG with ORG ( “ the court ” ) on DATE .

In a judgment of DATE , the court dismissed the claim as being time - barred under LAW no . CARDINAL ( see paragraph CARDINAL below ) . As the starting - point of the DATE limitation period provided for in that law , the court took the date on which the applicant had obtained the medical certificate , that is , DATE , explaining that the subsequent criminal conviction of the police officers responsible had no bearing on the calculation of the time - limit .

The applicant ’s lawyer appealed to ORG . In a judgment of DATE , ORG dismissed the appeal and upheld the judgment of DATE .

The lawyer then applied for rectification of the judgment , arguing , inter alia , that the way in which the limitation rule for actions against administrative acts had been interpreted and applied in this case was at variance both with administrative law and with international legislation on the prevention of ill - treatment , in so far as the treatment to which the applicant had been subjected amounted not to any ordinary administrative act but to torture . He submitted that the period during which his client was entitled to sue for damages had not started until DATE he had been informed of the final conviction decision , namely , DATE , the date on which the criminal nature of the impugned act had been finally established .

In a final judgment of DATE , ORG confirmed the judgment of DATE by a majority of CARDINAL judges to CARDINAL .

The relevant provisions of LAW are as follows .

“ Any public servant ... who inflicts torture or cruel , inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to five years’ imprisonment and temporarily or permanently barred from public service . ”

“ Prison sentences :

Life imprisonment shall mean imprisonment until death . Unless explicitly provided otherwise [ herein ] , other immediately enforceable prison sentences shall range from CARDINAL to DATE . ”

“ Any law - enforcement officer ... who , in the course of duty ... and in circumstances other than those prescribed by law ... , ill - treats , injures or strikes a person or does them bodily harm shall be sentenced to CARDINAL months’ and CARDINAL years’ imprisonment and temporarily barred from public service . ... ”

“ The judge has full discretion to determine the principal sentence , which can vary between a minimum and a maximum , taking account of factors such as the circumstances in which the offence was committed , the means used to commit it , the importance and seriousness of the offence , the time and place at which it was committed , the various special features of the offence , the seriousness of the damage caused and the risk [ incurred ] , the degree of [ criminal ] intent ... , the reasons and motives for the offence , the aim , the criminal record , the personal and social status of the perpetrator and his conduct following the act [ committed ] . Even if the minimum sentence is imposed , the reasons for that choice must be stated in the judgment . ”

“ If the court considers that there are mitigating circumstances other than those prescribed by law ... , the death penalty shall be commuted to life imprisonment , and life imprisonment to DATE .

Other penalties shall be reduced by a maximum of CARDINAL . ”

Sections DATE and CARDINAL of PERSON no . CARDINAL , establishing youth courts and regulating their jurisdiction and the procedure before them , cover the preliminary investigation of juvenile delinquency .

“ The term minor , for the purposes of this law , shall mean persons DATE at the time when the offence was committed . ”

“ The preliminary investigation of offences committed by minors shall be carried out by the public prosecutor in person or by a deputy appointed by him . ”

Article CARDINAL of the Code of Criminal Procedure as it stood at the material time stipulated that , from the time of their arrest , minors should have the assistance of an officially assigned counsel without having to ask for it .

Sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . CARDINAL on the execution of sentences read as follows :

“ Short custodial sentences which do not have to be served immediately may , depending on the personality and situation of the defendant and the circumstances in which the offence was committed , be commuted by the court :

( CARDINAL ) to a heavy fine ... of MONEY per day ; ”

“ The court may decide to suspend the execution of a fine and/or a prison sentence of DATE ... if it is convinced , taking into account the offender ’s criminal record and potential to commit crime , that there is little risk of any further offence being committed , and provided that the offender has never been sentenced to anything other than a fine . The reasons for suspending the sentence must be stated in the decision . ”

Regulation CARDINAL , paragraph CARDINAL , of the disciplinary regulations of the security forces stipulates :

“ The following acts , actions and conduct shall be punished by expulsion from the public service :

Inflicting torture on any person ... on police premises ; ”

Section CARDINAL of Law no . CARDINAL states :

“ Before initiating administrative proceedings , people whose rights have been violated as a result of administrative acts shall submit a claim for damages to the administrative authority concerned within DATE of the date on which they received notification of the impugned act , in writing or otherwise , and , in any event , within DATE of the impugned act . An administrative action may be brought if that claim is rejected , in whole or in part , by the administration . The time - limit for such administrative action shall be calculated from DATE after notification of the claim ’s rejection was received or , if the claimant has received no reply , from the expiry of the DATE period the administration has in which to reply . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

In NORP criminal - law practice a confession is said to be “ tevilli ” ( “ qualified ” , a confession of a complex type ) when the person confessing to the offence simultaneously invokes circumstances that may be considered to exonerate them or mitigate their guilt : examples are self - defence in a murder case , or something that cancels liability in a criminal case , such as having paid the price for the object one is accused of stealing . Such confessions are considered to be divisible , so the courts may distinguish between the part of the confession acknowledging the offence and the part explaining why it was committed , and choose to admit only the confession , not the reasons given .

At the ORG ’s request , the ORG supplied the following information concerning the practical interpretation in criminal law of the legal definition of the tevilli confession , which they translate as “ tacit ” confession :

“ ... The court must decide in what circumstances the offence may be attributed to a person who clearly denies all the charges . In criminal law the trial court may base its judgment on the incriminating evidence and convict a defendant who denies everything if there is a body of consistent evidence pointing ‘ beyond reasonable PERSON to his guilt . When the court evaluates the evidence , if the defendant can not prove that he was not at the place where the offence was committed on the material date and at the material time and , according to the evidence in the case file , the offence could not have been committed by anyone else , the court may [ find ] the defendant guilty . ”

As to judicial practice in respect of the application of minimum sentences , the Government were unable to present examples , as requested by ORG , of judgments explaining why the criminal - court judge had imposed a sentence heavier than the minimum prescribed by law . They simply explained that the courts had a certain discretion when it came to passing sentence between the upper and lower limits , the aim being to prevent repeat offences .


András Sajó;Guido Raimondi;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicants in application no . CARDINAL/CARDINAL , PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in the town of GPE , near GPE . They were represented before the ORG by PERSON GPE , a lawyer practising in GPE .

The applicants in application no . CARDINAL/CARDINAL , PERSON , Ms PERSON , PERSON , Mr PERSON , Ms PERSON , PERSON , PERSON , PERSON and Ms PERSON , are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in the town of GPE , near GPE . They were represented before the ORG by PERSON GPE , a lawyer practising in GPE .

The applicants in application no . QUANTITY , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON PERSON , Mr GPE and Mr PERSON , lawyers practising in GPE .

The applicant in application no . CARDINAL/CARDINAL , PERSON , is a NORP national who was born in DATE and lives in Şırnak . She was represented before the ORG by Mr PERSON and PERSON PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent .

The facts of the cases , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

The first applicant ’s husband and the remaining applicants’ father , PERSON , lived in the village of NORP , which is located within the administrative jurisdiction of GPE , in south - east GPE .

According to the applicants , on DATE a number of soldiers took PERSON from his home in order to use him as a guide during a military operation conducted in the area . The applicants’ neighbours witnessed the incident . Nothing has been heard from PERSON since that date .

On DATE an article was published in a DATE newspaper stating that PERSON corpse had been found . The applicants were not informed of this event by the authorities .

On an unspecified date the first applicant filed a petition with the NORP public prosecutor ’s office and requested that an investigation be initiated into her husband ’s disappearance . On DATE the NORP public prosecutor issued a decision based on a lack of jurisdiction ( görevsizlik kararı ) and passed the investigation to the ORG military prosecutor ’s office .

On DATE the first applicant filed a petition with the NORP public prosecutor ’s office . In her petition , she stated that DATE after the disappearance of her husband , she had found a body in the vicinity of their village . She had thought that it was her husband , as she had recognised the buttons of the shirt on the body . Noting that there had been no investigation into PERSON disappearance , she requested that an investigation be conducted .

On DATE the NORP public prosecutor heard the first applicant , who reiterated her request .

On DATE the NORP public prosecutor issued a decision not to prosecute in respect of the first applicant ’s allegations . In his decision , the public prosecutor noted that the first applicant had filed a petition with the public prosecutor ’s office in DATE , at which time she had also handed over a raincoat and empty cartridges which she had found in the vicinity of their village to the public prosecutor , and that there had been a previous decision not to prosecute issued on DATE which had been based on a lack of jurisdiction . He further noted that the first applicant had not submitted any new evidence and that her previous allegations had already been dealt with by the public prosecutor ’s office . The public prosecutor concluded that there was no reason to initiate an investigation into the first applicant ’s complaints .

On DATE PERSON objected to the decision of DATE . The objection was rejected by ORG on DATE .

In the meantime , on CARDINAL DATE the NORP public prosecutor issued a decision based on a lack of jurisdiction in relation to CARDINAL cases of disappearance , including that of PERSON . In his decision , the public prosecutor noted that it had been alleged that PERSON body had been found . The public prosecutor referred the cases to the NORP public prosecutor ’s office .

On DATE the ORG military public prosecutor ’s office issued a decision based on a lack of jurisdiction in relation to the aforementioned CARDINAL cases of disappearance , including that of PERSON , holding that the military public prosecutor ’s office at ORG had jurisdiction .

The first applicant ’s husband and the remaining applicants’ father , PERSON , lived in the village of GPE , which is located within the administrative jurisdiction of GPE , in south - east GPE .

According to the applicants , in DATE PERSON was taken from his house by a group of soldiers so that he could help them by using his familiarity with the area to act as a guide . CARDINAL neighbours witnessed the incident . Nothing has been heard from him since that date .

NORP The mayor of the town of NORP and mayors of the nearby towns sent a joint letter to the office of the Prime Minister . In their letter the mayors stated that large scale military operations had been conducted in their areas in DATE . During the operations a large number of houses had been burnt down and a number of villagers – including Mr DATE had been taken away by the soldiers . The bodies of CARDINAL of the villagers had subsequently been found but nothing had been heard from the remaining villagers . No response was given to this letter by the Prime Minister ’s office .

In DATE the applicant PERSON made an official complaint to the Hozat prosecutor . However , on DATE the prosecutor decided that military prosecutors had jurisdiction to investigate the disappearance . In DATE the applicants made an application to the ORG military prosecutor and asked for those responsible for the disappearance to be prosecuted .

As no response was received from the military prosecutor , the family submitted another petition on DATE . They also stated in their petition that the military prosecutors were not allowing them to consult the investigation file .

On DATE the ORG military prosecutor ’s office informed the applicants that the investigation file had been forwarded to the ORG prosecutor .

On DATE the ORG prosecutor decided that his office lacked jurisdiction to investigate the killings and disappearances of CARDINAL people , including the disappearance of Mr PERSON . The investigation files were forwarded to the prosecutor ’s office in the town of NORP . According to this decision , the first applicant , PERSON , had been questioned by the prosecutor and had stated that her husband had been taken away from their home by soldiers .

On DATE the ORG military prosecutor decided that his office also lacked jurisdiction to investigate the disappearances and killings and sent the investigation files to the military prosecutor ’s office in GPE . It appears from this decision that the NORP prosecutor had decided on DATE that his office did not have jurisdiction either . It also appears from the decision that , according to the NORP prosecutor ’s decision , there was evidence showing that a number of villagers had been taken away from their villages by soldiers and that nothing had been heard from those villagers since .

According to the applicants , on DATE the first applicant ’s husband , PERSON , and the second applicant ’s son , PERSON , were bundled into an unmarked car in GPE by CARDINAL plain - clothed members of the security forces and taken away to an unknown location . CARDINAL of their friends witnessed the incident .

In the course of DATE , the applicants and their families made a number of applications to various domestic authorities , including the local prosecutors , ORG , local governors , ORG and ORG . Most of their requests for information received no response . On some occasions they were told that the QUANTITY men were not in custody . The disappearance of the QUANTITY men was reported in the national media .

On DATE the first applicant , PERSON , submitted a written petition to the ORG prosecutor . She alleged that her husband had been arrested and detained on a number of occasions prior to his disappearance on DATE . She asked the prosecutor to inform her as to whether there had been any developments in the investigation into the disappearance of the CARDINAL men .

On DATE the second applicant , PERSON , also submitted a written petition to the ORG prosecutor and asked for information about the investigation into the disappearance of her son .

On DATE the prosecutor questioned the second applicant and recorded her statement . She gave the prosecutor the names of the eyewitnesses to the incident .

On DATE the applicants were questioned by a prosecutor in the town of Silopi in the presence of their CARDINAL lawyers . The first applicant gave the prosecutor a copy of a national newspaper article published in DATE , in which it was reported that the CARDINAL men had been killed by members of the security forces and then buried in a river bed next to LOC . The newspaper article was based on information given by Mr FAC , a former agent of the GPE ( PERSON Terörle Mücadele – the anti - terror intelligence branch of the gendarmerie ) . A number of investigations had already been instigated into Mr PERSON ’s allegations and the bodies of a number of individuals had been found in the locations described by him .

When the applicants were shown photographs of the bodies of people killed in the area , they told the prosecutor that CARDINAL of the dead men looked like their disappeared relatives . They asked the prosecutor to identify the bodies and , if it was established that the bodies were indeed those of their relatives , they asked for the bodies to be returned to them .

The prosecutor ordered the exhumation of the remains of CARDINAL people who had been killed in DATE and whose bodies had been buried by the local authorities DATE because no relative had claimed them . A DNA analysis conducted in DATE showed that the CARDINAL men were not the applicants’ disappeared relatives .

On DATE the ORG prosecutor decided to close the investigation because the statute of limitations had expired . In the prosecutor ’s decision , the offence was qualified as “ deprivation of liberty ” , for which the prescription period was DATE . The prosecutor considered that nothing had happened in the course of DATE to stop the running of the time - limit . According to the documents submitted by the applicants , the prosecutor ’s decision was only communicated to the first applicant , PERSON .

On DATE the first applicant , with the assistance of her lawyer , lodged an objection with ORG against the prosecutor ’s decision . She stated that a number of newspaper articles had detailed how her husband and PERSON had been killed and where they were buried .

The objection was dismissed by ORG on DATE . ORG did not respond to the first applicant ’s arguments concerning the newspaper articles . The decision was communicated to the applicants’ lawyer on DATE .

In DATE the applicant ’s DATE son , PERSON , was summoned to the Uludere FAC . When he failed to return , the applicant went to the gendarmerie station to look for him . She was told that her son had been handed over to the military in Şırnak .

After receiving no news from her son for DATE , the applicant made an official complaint at the Uludere prosecutor ’s office on DATE , and asked for her son to be found .

In DATE the Uludere prosecutor decided that he lacked jurisdiction to investigate the disappearance because , according to CARDINAL eyewitnesses heard by him , the applicant ’s son had disappeared in PERSON , which was outside his jurisdiction . The prosecutor therefore forwarded the file to his opposite number in PERSON . It also appears from the prosecutor ’s decision that , in a letter sent to him on DATE , the Uludere ORG officials denied having summoned the applicant ’s son to their station .

The applicant claimed that for a period of DATE she had visited various ORG offices on CARDINAL of occasions and had asked unsuccessfully for information about her son .

On DATE the applicant , with the assistance of CARDINAL legal representatives , sent a letter to the PERSON prosecutor ’s office and asked for information about the investigation into the disappearance . She claimed that the failure to find and prosecute those responsible for her son ’s disappearance was in breach of ORG , DATE and CARDINAL of the LAW and of applicable domestic law .

On DATE the Şırnak prosecutor informed the applicant that the investigation into the disappearance of her son had been closed on DATE by a decision of his office not to prosecute on account of a lack of evidence .

According to the decision of DATE , the Şırnak prosecutor ’s office had been informed by ORG on DATE that PERSON had not been detained by them . The PERSON prosecutor had also enquired as to the accuracy of CARDINAL eyewitness statements to the effect that PERSON had been put in a helicopter in Uludere and flown to PERSON . In their reply of DATE ORG had informed the PERSON prosecutor that , although there were no regular helicopter flights between Uludere and PERSON , the military did use helicopters between the CARDINAL locations when the need arose . Thus , it was impossible to establish whether a helicopter flight had been made to Uludere on DATE in question .

It also appears from the prosecutor ’s decision that the applicant had informed the investigating authorities that ORG Commander had visited a café in Uludere and told those present in the café , which had included civilians and village guards , that PERSON was in PERSON and would soon be released . When questioned by the PERSON prosecutor , however , the village guards present during the commander ’s visit had stated that the commander had not said anything about PERSON .

Upon receiving the Şırnak prosecutor ’s decision of DATE on DATE , the applicant ’s legal representatives filed an objection against it . They argued that the investigation by the PERSON prosecutor had been inadequate . They submitted that important leads had not been followed up , not all eyewitnesses had been heard , and the prosecutor had been content to accept the written replies received from the military , rather than questioning them in person .

The objection was rejected by ORG on CARDINAL DATE on the grounds that the CARDINAL legal representatives “ had not been representing the applicant at the time of the adoption of the prosecutor ’s decision of DATE and the objection was thus filed outside the statutory timelimit ” .

ORG decision was communicated to the applicant ’s lawyers on CARDINAL DATE .

Unbeknown to the applicant , on DATE the Minister of ORG asked ORG to set aside the ORG judgment because , the Minister argued , the applicant had lodged the objection within the time - limit foreseen in the applicable statute .

ORG accepted the ORG ’s request on CARDINAL DATE and quashed ORG decision of CARDINAL DATE . Subsequently , ORG examined the applicant ’s objection against the PERSON prosecutor ’s decision and accepted it . ORG ordered the prosecutor to carry out a new investigation into the disappearance of the applicant ’s son .

The new investigation started by the Şırnak prosecutor is still pending .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in ORG .

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

On DATE the applicant filed a claim for damages with ORG . She claimed compensation under LAW of DATE on the ground that the sum of CARDINAL NORP korunas ( SKK ) had been unlawfully withheld from her old - age pension between DATE and DATE . The applicant relied on a decision of DATE , delivered by ORG , according to which the decision to withhold a part of the applicant ’s pension with a view to recovering a sum of money due by her had been erroneous . The applicant appointed her daughter to represent her in the proceedings .

On DATE ORG proposed in writing that the court take relevant evidence and decide on its basis . On DATE the applicant submitted further arguments to ORG .

On DATE ORG adjourned the case with a view to hearing a representative of the defendant and studying the case - file concerning the withholding of the sum in question .

On DATE and on DATE the president of ORG dismissed the applicant ’s complaints about the length of the proceedings . The applicant was informed that the case could not be proceeded with as the relevant case - file was being examined by ORG in the context of a different set of proceedings . The applicant objected that her case could be proceeded with as she had submitted all relevant information and evidence .

On DATE the president of ORG informed the applicant that the examination of the case - file concerning the enforcement in question was necessary before proceeding with the applicant ’s action , and that that case file was still with ORG .

On DATE the Bratislava II ORG heard the representative of the defendant Ministry at the request of ORG . The representative of the defendant stated that ORG had no objection to the applicant ’s claim being granted in accordance with the relevant provisions of LAW of DATE .

On DATE the Topoľčany ORG ordered the defendant to pay SKK CARDINAL to the applicant in compensation for damage which she had suffered as a result of the above erroneous enforcement . The damages granted comprised the statutory default interest in respect of the sum which had been withheld between DATE and DATE and the expenses incurred by the applicant in the context of the enforcement . The court noted that the sum erroneously withheld had already been returned to the applicant .

The ORG further granted SKK CARDINAL to the applicant in compensation for her representative ’s travelling costs and other expenses incurred in the context of the proceedings concerning her claim for damages . ORG dismissed the applicant ’s claim for compensation for the time which her representative had spent travelling to the court hearings . The decision stated , with reference to Regulation No . CARDINAL , that such compensation was only payable to advocates . The judgment became final on DATE .

Section CARDINAL ( CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ ’s decision or by its erroneous official action ( “ LAW ” ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of , inter alia , civil proceedings .

In accordance with the ORG practice , LAW does not permit granting compensation for damage of non - pecuniary nature with the exception of compensation for damage caused to a person ’s health which is governed by Regulation No . CARDINAL .

Regulation No . CARDINAL/CARDINAL governs the payment of advocates’ fees and expenses .

Section CARDINAL provides that advocates are entitled to compensation for travel time outside the place of their residence in the context of representing their clients .


The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mrs L. Madatova , a lawyer practising in GPE .

The applicant 's father , before his death , owned a part of a non - residential building used as a garage . At the material time , according to the applicant , the garage was used by T.B. under a lease agreement .

In DATE , the applicant 's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father . According to the applicant , the remaining parts of the property were open for inheritance by his relatives , but none of them formalized their rights .

In DATE PERSON filed a lawsuit before ORG , claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in DATE with some of the applicant 's relatives , who had then been the owners of the garage .

The applicant counterclaimed , asking the court to order PERSON 's eviction from the garage . He denied PERSON 's allegations that the garage had been de facto sold in DATE , arguing that there were no proper documents verifying that such a sale had ever taken place . He claimed that the garage had remained in the ownership of his family until his father 's death and that , thereafter , he had rightfully inherited his father 's share of the property and properly formalized his ownership rights .

On DATE ORG upheld PERSON 's claim in full and rejected the applicant 's counterclaim .

The applicant appealed , alleging that the district court had wrongfully assessed the facts . On DATE ORG set aside the district court 's judgment and ruled in the applicant 's favour .

Following T.B. 's cassation appeal , on DATE ORG held that ORG improperly applied the relevant provisions of the domestic law to the facts of the case . ORG modified ORG decision and declared that the disputed property was in GPE 's ownership . ORG decision became final and enforceable upon its delivery .

On DATE the applicant filed an “ additional cassation ” appeal with the President of ORG , asking for the reopening of the proceedings and quashing ORG decision of DATE by the ORG of ORG ( ORG ) .

By a letter of DATE , the President of ORG rejected the applicant 's request , finding no grounds for the reopening of the proceedings .

Law On Courts and Judges of DATE

“ [ T]he ORG shall be the highest judicial authority with regard to civil ... , criminal , administrative and other disputes falling within the jurisdiction of the general and specialized courts .

ORG [ is ] a court of cassation instance ... ”

“ The Plenum of the Supreme Court shall be composed of the President , Vice Presidents and judges of ORG , the President of ORG , the President of ORG and the President of ORG of GPE . ...

The Plenum of ORG ... shall , in the manner established by law , review cases under the procedure of additional cassation , on submission of the President of ORG , or pursuant to a protest by ORG or an appeal by the defendant ... ”

“ The President of ORG ... shall , in cases and under the procedure provided by law , submit cassation instance decisions for the review of the Plenum of ORG ... ”

Code of Civil Procedure of GPE DATE

“ The decision [ of the cassation instance court ] shall enter into legal force from the moment of its delivery . ”

“ Submissions , appeals or protests concerning decisions of ORG ... may be reviewed by the ORG of ORG under the procedure of additional cassation . ”

“ A submission concerning a decision of ORG ... may be made by the President of ORG on the basis of an application by persons non - parties to the case whose interests were affected by the judicial acts . An appeal may be filed by a party to the case who has been represented by an advocate . [ A protest may be filed by ORG in certain specified circumstances . ] ”

“ The ORG shall consider cases exclusively on the points of law . ”

Article CARDINAL § CARDINAL lists the grounds which merit the reconsideration of ORG cassation instance decision by the ORG of ORG . These grounds are present if , inter alia , ORG decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision , or was based on a legal norm declared as unconstitutional by ORG , or if ORG ruling infringed the rights and obligations of persons who were not a party to the case .

“ If appropriate grounds exist , the President [ of ORG ] shall transmit the submission , appeal or protest , together with the case file , to the ORG of ORG . ”

Relevant domestic practice

Any additional cassation proceedings in the ORG of ORG can be reopened only at the discretion of the President of ORG , following a motion by the relevant party ( e.g. , an additional cassation appeal or Chief Prosecutor 's protest ) . The ORG itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals .

An additional cassation appeal is first submitted to the President of ORG . The President , in his or her sole discretion and without holding any formal judicial hearing , decides if there are any grounds to reopen the case and transmit the appeal to the ORG . If the President decides that the proceedings should be reopened , he or she then transmits the additional cassation appeal , together with the case file , for the in - substance review of the ORG at its next sitting . Meanwhile , if necessary , the President may issue an order suspending the execution of the final judgment pending the review of the case by the ORG .

However , if the President deems that there are no grounds for additional cassation review , he or she simply sends a rejection letter to the applicant , briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the ORG . The recent practice shows that the President of ORG routinely denies additional cassation review in the majority of domestic cases , due to the absence of the relevant grounds .


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

On DATE , the applicant applied for asylum in the GPE under a false identity . This asylum request was rejected by decision of DATE . The applicant 's subsequent appeal was dismissed on DATE by ORG ( arrondissementsrechtbank ) of GPE .

On DATE , the applicant filed a second request for asylum in the GPE , this time under this true identity . He stated that he was single , that he had no relatives living in the GPE and that his father had died . His family in GPE consisted of his maternal grandfather , his mother and CARDINAL brother who was born in DATE . He had no other relatives . He claimed that he had been arrested in GPE on DATE after a passenger in his taxi had been found to carry weapon parts , that he had been taken into detention , had been ill - treated during his detention and had managed to escape with the aid of a guard . He further claimed that had left GPE by boat on DATE and that he had arrived in the GPE on DATE .

On an unspecified date , a medical examination of the applicant disclosed that he might be infected with HIV and he was referred to ORG in DATE for further medical examinations . In a letter of DATE , a specialist in internal diseases of this hospital confirmed this diagnosis and stated that the applicant found himself in the CARDINAL clinical category of the disease , i.e. the asymptomatic stage of the disease with a CDCARDINAL + count of MONEY The specialist concluded that , given the low CDCARDINAL + count , antiretroviral treatment was indicated . The applicant was in fact provided with such treatment .

On DATE , the Deputy Minister of Justice ( Staatsecretairs van Justitie ) rejected the applicant 's asylum request , finding that the applicant 's asylum account lacked credibility . In so far as the applicant relied on his health problems , the Deputy Minister considered that the applicant could apply for a residence permit on medical grounds . On DATE , the applicant filed an appeal with ORG of The Hague .

In a letter of DATE , a specialist in internal diseases of ORG informed the applicant 's lawyer that , if the applicant were to cease taking anti - HIV medication , his prospects would become very unfavourable within a short delay . The specialist further wrote that it was not to be expected that , in GPE , medication was obtainable that the applicant needed to suppress the HIV - infection and to improve his immune system .

On DATE , following a hearing held on DATE , ORG of The Hague rejected the applicant 's appeal of DATE . It accepted the finding of the Deputy Minister that no credence could be attached to the applicant 's asylum account . In so far as the applicant relied on his health problems , ORG decided not to take into account the information set out in the letter of DATE as this information had only been submitted DATE before the hearing held on DATE . It found that taking this information into consideration would be contrary to the principles of due process . It further held that it had not been established that there was a causal link between the applicant 's illness and his departure from GPE and that it had not appeared that there were such compelling reasons of a humanitarian nature being connected to the applicant 's reasons for leaving GPE that it should be held that , in all reasonability , it could not be expected from the applicant to return to his country of origin . No further appeal lay against this decision .

On DATE , the applicant filed a third request for asylum on the basis of newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) . When , on DATE , he was interviewed by the immigration authorities on this request , the applicant stated inter alia that he was cohabiting with another asylum seeker from GPE since DATE and that CARDINAL children had been born out of this relationship in DATE and DATE , respectively . He further stated that his family in GPE consisted of his mother and a younger brother .

This third request was rejected on DATE by the Minister for ORG ( Minister PERSON ) , who had succeeded the Deputy Minister of ORG under LAW ( Vreemdelingenwet ) which , on DATE , had replaced LAW DATE . As to the applicant 's argument that , given his ORG , his expulsion to GPE would be in violation of his rights under LAW ; the Minister recalled that , according to the constant case - law , such a situation would only arise if the alien concerned found himself in an advanced and directly life - threatening stage of an incurable disease . The Minister found that there were insufficient indications in the applicant 's submissions for holding that there was such a situation in his case and , on this basis , concluded that – irrespective of the possibilities of treatment in GPE and the presence a social support network there DATE the applicant 's case did not raise an issue under LAW . Moreover , as already indicated in the decision of DATE , the applicant could apply for a temporary residence permit on medical grounds . The Minister further found no indication in the applicant 's case for concluding that , owing to traumatic experiences linked to the reasons for leaving the country of origin , it could not in all reasonability be expected from the applicant to return to GPE thus rendering him eligible for a residence permit on grounds of compelling reasons of a humanitarian nature . On this point , the Minister considered that the health problems relied on by the applicant were not linked to his reasons for leaving GPE . The applicant was ordered to leave the GPE within TIME .

On DATE , the Minister informed ORG for ORG opvang ORG ; “ ORG ” ) , since the applicant 's asylum request had been rejected on DATE , the applicant 's entitlement to ORG - sponsored reception and care facilities for asylum seekers ( “ opvang ” ) had ceased . However , the Minister was of the opinion that the applicant 's expulsion should be stayed under LAW as , according to medical advice obtained , the applicant was unfit to travel . The Minister therefore advised the ORG to prolong the provision of reception and care facilities to the applicant until DATE . On DATE , the Minister informed the applicant that the ORG had been advised to prolong until DATE the provision of facilities . The Minister further indicated that an advice of ORG Medische Advisering ) would be sought on a possible prolongation of this period .

On DATE , the applicant 's treating specialist doctor of ORG informed the applicant 's lawyer that , DATE after having started treatment in DATE , the applicant 's condition was stable but that his immune system had apparently been so weakened when he had started treatment that it had still not been properly restored . The doctor further stated that by the suppression of the AIDS virus there was no direct danger , but that as soon as the anti - HIV therapy would be stopped , the applicant would fall back to the advanced stage of the disease which , given its incurable nature , would entail a direct threat for life .

The applicant 's appeal against this Minister 's decision of DATE was dismissed by ORG of GPE on DATE .

By letter of DATE , the Minister for ORG informed the applicant 's lawyer that , before a decision could be taken on the question whether the applicant 's expulsion should be stayed further on medical grounds , it was necessary to obtain medical information from the doctors treating the applicant for which the latter 's written consent was required . The applicant 's lawyer was requested to return the appended consent form within DATE .

On DATE , the Minister informed the applicant that , pending the issuance of an advisory opinion of ORG about his situation and on the basis of LAW , his expulsion would be stayed until DATE .

The applicant 's appeal to ORG ( Afdeling Bestuursrechtspraak ) of ORG against the ruling given on DATE by ORG of The Hague was rejected on DATE . Although ORG accepted that the letter of DATE of ORG constituted a relevant new fact , it found that this could not lead to quashing the impugned decision taken by the Minister on DATE . It considered that it could not be concluded from the contents of this letter that the applicant 's illness had attained such an advanced and direct lifethreatening stage that it should be held that the expulsion of the applicant to GPE or any other country would be in violation of LAW . It further took into consideration that – according to an additional medical statement of CARDINAL DATE that had been submitted to ORG – the HIV - virus would be suppressed as long the applicant would continue taking medication , so that there was no direct threat for life . It therefore accepted that there were no grounds on the basis of which the Minister should reconsider the decision of DATE .

Under LAW of LAW DATE ( PERSON , hereinafter “ the Act ” ) , which was in force until DATE , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political convictions , or of belonging to a particular race or a particular social group , could be admitted as refugees . The expression “ refugee ” in this provision was construed to have the same meaning as in LAW ( decision of ORG ( Afdeling Rechtspraak ) of ORG of DATE , PERSON [ ORG ] DATE , no . CARDINAL ) .

On DATE , LAW entered into force . On the basis of LAW , an alien may be eligible for a residence permit for the purposes of asylum if , inter alia ,

– he or she is a refugee within the meaning of LAW , or

– he or she has established well - founded reasons to assume that he / she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

Article CARDINAL of LAW ( PERSON ) provides that an applicant must adduce newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) if a new request is filed following a decision in which the original request is , either totally or partially , rejected . When no such facts or altered circumstances have been adduced , the administrative authority may reject the new request with reference to the decision on the original request . Article CARDINAL thus embodies the res iudicata principle for the administrative law . Nevertheless , an exception has been made in this particular area of the law , in that an alien may adduce exceptional facts and circumstances relating to him or her personally , on the basis of which the new request may be assessed outside the framework of Article CARDINAL . In the case of a repeat asylum application which also invokes the risk of treatment contrary to LAW , an assessment by the court outside the framework of Article CARDINAL is therefore possible .

ORG has on CARDINAL occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances ( judgment of DATE , no . CARDINAL/CARDINAL , PERSON Asiel- en ORG [ Newsletter on ORG and Refugeelaw ] CARDINAL ) . It did so on the basis of the exceptional circumstance that there was no dispute between the parties , that on his return to his country of origin , the alien would run a real risk of being subjected to treatment or punishment proscribed by LAW .

During the initial asylum procedure , an alien is in principle entitled to reception and other facilities including health care , provided by the ORG . Pursuant to LAW , an alien whose stay in the GPE is not lawful is not entitled to such facilities . This provision applies to asylum seekers whose applications have been unsuccessful . Also , a second or further application for asylum does not confer a new entitlement to facilities . An exception to that basic principle can nevertheless be made if , inter alia , the asylum seeker finds him or herself in extremely compelling humanitarian circumstances ( FAC schrijnende humanitaire omstandigheden , LAW of FAC ) .

The ORG decides whether or not facilities will be provided . Appeal lies against a decision to refuse facilities , but also against a failure to decide ( or to decide within a reasonable time ) on a request for facilities . The lodging of an appeal does not suspend the denial of facilities , but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings .

According to LAW , the Minister can order the expulsion of an alien illegally staying in the GPE and who has not voluntarily left the GPE within the time - limit fixed for this purpose . However , pursuant to LAW , no expulsion will take place when , in view of the health condition of the alien , travelling is contra - indicated .

In a report dated DATE of ORG für die ORG ) on HIV and AIDS in GPE , it is stated that DATE according to information set out in the UNAIDS / WHO Epidemiological Fact Sheet DATE on GPE – it was assumed that PERCENT of the adult population in GPE was HIV - positive whereas PERCENT of the total population in GPE is insured against sickness . As regards the local possibilities of treatment , the report states that DATE although treatment is possible in various hospitals in the capital of GPE as well as in all regional hospitals – many patients can not afford treatment .

According to a report issued on DATE by ORG federal des réfugiés ) , treatment is available in GPE , both in various hospitals in its capital PERSON and in CARDINAL regional hospitals . It further states that , PERCENT of the total population in GPE has a health insurance , the costs of treatment are generally borne privately and that , as the average DATE income in GPE lies CARDINAL , a person infected with HIV or suffering from AIDS who does not have health insurance will hardly be able to afford treatment if relatives are unable to provide financial support , despite the fact that negotiations between the NORP authorities and the pharmaceutical industry have resulted in a considerable reduction of the prices of certain medications for the treatment of HIV / AIDS .


Remainder inadmissible;Violation of Art. 10

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

The applicant was born in DATE and lives in the town of PERSON in LOC .

NORP In DATE the applicant , a former military officer , sent a letter to the commander of military unit no . CARDINAL , who supervised the command of unit no . DATE . The letter read as follows :

“ On DATE the command of military unit no . DATE held a meeting of war veterans ... who live in the military compound . The meeting adopted an open letter to ORG of GPE with a request to return the town baths to the compound residents and to stop discrimination against the residents on account of their social or official status ...

Commanders of the military unit conduct themselves as ‘ usurpers , invaders and occupants’ . In a short period of time the new commander of military unit no . DATE , Colonel GPE , destroyed the town dance hall and the warehouse for vegetables , locked up the leisure centre of the unit , performed an unauthorised dismantling of the bus park and threw everyone out of the bathhouse which he converted into a ‘ ORG for a narrow circle of chosen ones . ”

Mr Shatov lodged a defamation action against the applicant , claiming that the letter of DATE had impaired his honour and dignity . He sought compensation in respect of non - pecuniary damage and a written apology , enclosing its proposed text .

By judgment of DATE , ORG of GPE found for the plaintiff . It established that the dance hall and the warehouse had been indeed dismantled , but the materials had been used for the needs of the military unit , that the leisure centre was open , and that the soldiers and officers and their family members could still use the baths . The court noted that the document the applicant produced to prove the dismantling of the bus park could not be used in evidence as it bore no stamp .

ORG found that the information stated in the letter of DATE had been untrue and damaging to PERSON honour and dignity , and ordered as follows :

“ Pursuant to ORG CARDINAL § CARDINAL and CARDINAL of LAW , the court orders [ the applicant ] to pay Mr Shatov MONEY in respect of non - pecuniary damage because the allegations about Mr Shatov ’s ‘ discrimination against citizens , [ his acting as an ] usurper , invader , occupant , destruction of the dance hall and the warehouse , unauthorised dismantling of the bus park and throwing everyone out of the bathhouse which he converted into a ‘ ORG for a narrow ORG have impaired PERSON honour and dignity ...

... to order that [ the applicant ] make a written apology to PERSON within DATE , worded as follows : “ In DATE I , [ the applicant ] , sent to the commander of military unit no . CARDINAL a letter containing information on your professional activities , which was untrue and damaging to your honour and dignity . This fact was established by ORG on DATE . I apologise to you for having disseminated such information , for undermining your authority in the eyes of your subordinates and superiors , compound residents and the PERSON town residents , and for causing you personal suffering ” ;

... and to make an apology to the commander of military unit no . CARDINAL of GPE worded as follows “ In DATE I , [ the applicant ] , sent you a letter containing information on the professional activities of the commander of military unit no . DATE , PERSON , which was untrue and impaired PERSON honour and dignity . This fact was established by ORG on DATE . I apologise for misleading the command of military unit no . CARDINAL by giving untrue information . ”

The applicant appealed against the judgment of DATE . He claimed that the letter of DATE contained his own value judgments , which were not amenable to proof . On DATE ORG upheld the judgment , endorsing the reasons of the first - instance court .

Article CARDINAL of LAW guarantees the freedom of expression . Article CARDINAL provides that NORP citizens shall have the right to petition in person , as well as to submit individual and collective appeals to , ORG authorities and local self - government bodies .

Article CARDINAL of LAW is a general provision containing a list of the forms of redress which can be obtained in respect of civil rights . It includes recognition of a right , restitutio in integrum , compensation in respect of pecuniary or non - pecuniary damage and other forms of redress prescribed by law . LAW reads in its relevant parts as follows :

“ CARDINAL . A citizen shall have the right to claim through the court that the information discrediting his honour , dignity or business reputation be refuted , unless the person who has disseminated such information proves its truthfulness ...

NORP If the information discrediting the honour , dignity or business reputation of the citizen has been disseminated by the mass media , it shall be refuted by the same media ...

NORP The citizen with respect to whom the media have published the information infringing upon his rights or protected interests shall have the right to publish his reply in the same media ...

The citizen with respect to whom the information discrediting his honour , dignity or business reputation has been disseminated shall also have the right , in addition to the refutation of the given information , to claim compensation in respect of pecuniary and non - pecuniary damage caused by the dissemination .

If the person who has disseminated the information ... can not be identified , the citizen shall have the right to turn to the court with a demand that it recognise the disseminated information as untruthful ... ”

Resolution no . CARDINAL of ORG of DATE ( as amended on DATE , in force at the material time ) established that the notion “ dissemination of information ” employed in LAW was understood as the publication of statements or their broadcasting , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL another person . It specified , however , that “ communication of such information to the person whom it concerned could not be treated as dissemination ” .

In their ORG of DATE , ORG recalled that under LAW of LAW no one can be compelled to express his opinions or beliefs or compelled to refrain from expressing them . It thus instructed the courts below that an apology , whatever its form , was not prescribed under NORP law , including LAW , as redress ( point CARDINAL ) . The above does not exclude the possibility for a judge to approve a friendly - settlement agreement the terms of which require such an apology . ORG also instructed the other courts that when a citizen lodges a complaint with a public authority alleging , for instance , that a criminal offence has been committed and when such an allegation proves to be unfounded , the latter fact can not serve as a basis for an action under LAW . ORG explained that civil liability could not arise in such a situation in view of the applicant ’s exercise of his right of petition to a public authority , which was to carry out an inquiry , and that such a situation did not equate to dissemination of false defamatory information ( point CARDINAL ) . A defamation action may only succeed if a court has established that the petition to the public authority lacked any foundation and was intended to cause damage to another person , thus amounting to an abuse of the right ( ibid ) .

Until DATE the general administrative complaints procedure was prescribed by Decree no . CARDINAL issued by the Presidium of ORG on DATE , as subsequently amended in DATE and DATE , in so far as it was compatible with LAW and the DATE LAW . A number of public authorities had individual regulations on the matter .

According to the DATE decree , a written petition or complaint should be signed by the complainant and should indicate his or her full name and place of residence ( point CARDINAL ) . A petition or complaint should be submitted to the official or authority who is the immediate superior of the official or authority against whom the complaint is directed ( point CARDINAL ) . The filing of defamatory petitions or complaints should be punishable by the law ( point CARDINAL ) .

LAW of CARDINAL DATE ( Federal Law no . CARDINAL-ФЗ ) sets up a new framework for administrative complaints and petitions . According to its section CARDINAL § CARDINAL , a petition containing obscene or insulting phrases , threats to life or limb of an official or his or her family members , may be left without examination on the merits ; in such cases the complainant should be warned against the abuse of the right .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in Pănăşeşti . He was represented before the ORG by PERSON PERSON , a lawyer practising in PERSON . The Government were represented by their Agent , Mr PERSON .

NORP The facts of the case may be summarised as follows .

On DATE the applicant was accidentally injured by an individual , NORP , sustaining an injury to his left thigh bone . On an unspecified date the applicant instituted civil tort proceedings against NORP , seeking a court order obliging NORP to pay him compensation for pecuniary damage .

On DATE the ORG ordered NORP to pay the applicant CARDINAL Moldovan lei ( MDL ) ( the equivalent of MONEY ( ORG ) in compensation for pecuniary damage and LAW ( LAW ) for legal fees . This decision was final and an enforcement warrant was issued . It has not been enforced to date .

On DATE the ORG delivered the ORG and others pilot judgment ( see ORG and Others v. GPE , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , DATE ) in which it found , inter alia , that the problem of non - enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “ systemic problem ” . The ORG ordered , inter alia , that the respondent ORG set up an effective domestic remedy which secures adequate and sufficient redress for non - enforcement or delayed enforcement of final domestic judgments ( see ORG and others , cited above , LAW and point CARDINAL of the operative part ) .

On DATE ORG informed the ORG that on DATE a new law ( PERSON no . CARDINAL ) entered into force , instituting a remedy against the problem of non - enforcement of final domestic judgments and against the problem of unreasonable length of proceedings .

On DATE ORG informed the applicant and all other applicants in the same position of the new remedy , asking whether they intended to make use of it within the DATE time - limit set by LAW . DATE ( see paragraph CARDINAL below ) . The applicants’ attention was drawn to the fact that according to LAW , the ORG may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible .

By a letter of CARDINAL DATE the applicant informed the ORG in response that he was not intending to use the new remedy because it was not effective . In particular , the applicant argued that even the denomination of PERSON no . CARDINAL suggested that it offered a remedy only when a final judgment had not been enforced in a timely manner but not when the judgment had not been enforced at all . In the applicant ’s view , the law did not provide for a mechanism to trigger a rapid enforcement of an unenforced final judgment . Moreover , the applicant submitted that it would be an excessive burden for him to be requested to go back to the domestic courts and attempt to exhaust the new remedy .

According to PERSON no . CARDINAL anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation . According to section CARDINAL of the law , it should be interpreted and applied in accordance with the national law , the Convention and the ORG ’s case - law . According to section CARDINAL of the law the courts are obliged to deal with applications lodged under the law within DATE . LAW law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court , compensation for pecuniary damage , non - pecuniary damage and costs and expenses have to be awarded to the applicant . LAW the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants . Under LAW law all individuals who have complained to ORG that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within DATE of the entry into force of the new law , provided that ORG has not ruled on the admissibility and merits of the complaint .

At the same time LAW was modified in such a manner as to reduce the number of instances of appeal from CARDINAL to one and to waive court fees for such proceedings .


CASE OF O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM

No violation of Art. 6-1;No separate issue under Art. 6-2

Alvina Gyulumyan;Christos Rozakis;Egbert Myjer;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Snejana Botoucharova;Stanislav Pavlovschi;Volodymyr Butkevych

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

On DATE , at TIME , a vehicle of which the applicant was the registered keeper , registration number TCARDINAL TBX , was caught on a speed camera driving at QUANTITY ( mph ) on FAC where the temporary speed limit was QUANTITY .

On DATE , the police camera enforcement unit of ORG wrote to the applicant :

“ I have photographic evidence that the driver of TCARDINAL TBX failed to comply with the speed limit ... It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit ... You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page CARDINAL . I must warn you that if you fail to comply with this demand within DATE you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £ MONEY and CARDINAL penalty points . ”

The attached Notice of Intended Prosecution informed the applicant that it was intended to institute proceedings against the driver of the vehicle . He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver ’s identification . He was again informed that a failure to provide information was a criminal offence under section CARDINAL of LAW DATE .

NORP The applicant answered the letter confirming that he was the driver at the relevant time .

On DATE the applicant was summoned to attend ORG where he was tried for driving in excess of the speed limit . Prior to the trial , the applicant sought to exclude the confession made in response to LAW , relying on sections CARDINAL and CARDINAL of ORG read in conjunction with LAW . His application was refused in the light of the decision of ORG in PERSON v. PERSON [ DATE ] CARDINAL WLR CARDINAL . Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section CARDINAL demand . The applicant was convicted and fined MONEY ( GBP ) , ordered to pay GBP CARDINAL costs and his licence was endorsed with CARDINAL penalty points .

On DATE the applicant asked the magistrates to state a case for the opinion of the High Court :

“ Whether in the circumstances of this case , the admission that the defendant was indeed the driver should have been excluded under sections DATE and CARDINAL of ORG having regard to LAW and the recent cases decided by ORG as he had been obliged to incriminate himself ? ”

On DATE the GPE clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by ORG in PERSON v. PERSON ( cited above ) and by ORG in Director of Public Prosecutions v. PERSON ( [ DATE ] EWHC Admin CARDINAL ) .

On DATE the applicant ’s application for judicial review of the GPE decision was refused .

A car of which the applicant was the registered keeper was caught on speed camera on DATE driving at QUANTITY where the speed limit was QUANTITY .

On DATE the Surrey Police sent the applicant a Notice of Intended Prosecution in the following terms :

“ In accordance with LAW DATE , I hereby give you notice that proceedings are being considered against the driver of PERSON motor vehicle registration mark EYX CARDINAL ...

This allegation is supported by means of photographic / recorded video evidence . You are recorded as the owner / keeper / driver or user for the above vehicle at the time of the alleged offence , and you are required to provide the full name and address of the driver at the time and location specified . Under section CARDINAL of FAC you are required to provide the information specified within DATE of receipt of this notice . Failure to supply this information may render you liable to prosecution . The penalty on conviction for failure to supply the information is similar to that for the offence itself , i.e. a fine and penalty points . ”

On DATE the applicant wrote to ORG invoking his right to remain silent and privilege against self - incrimination .

On DATE the Surrey Police informed the applicant that the appeal in PERSON v. PERSON , cited above , held that section CARDINAL did not infringe the said rights .

NORP The applicant refused to supply the information .

On DATE the applicant was summoned to ORG for failing to comply with section CARDINAL(CARDINAL ) of the Road Traffic Act DATE . He obtained an adjournment .

On DATE ORG agreed to a further postponement , apparently with reference to the applicant ’s proceeding with an application in GPE . The applicant wrote to ORG on DATE , relying on LAW and CARDINAL of the Convention .

On DATE ORG cancelled the postponement and fixed the trial for DATE , on which date the applicant was convicted and fined GBP CARDINAL with GBP CARDINAL costs and CARDINAL penalty points . He states that the fine was substantially heavier than that which would have been imposed if he had pleaded guilty to the speeding offence .

Section CARDINAL of LAW DATE ( “ the DATE LAW ) deals with the duty to give information of a driver of a vehicle in certain circumstances . Subsection ( CARDINAL ) refers to the traffic offences to which the section applies . They include parking on a cycle track ( under LAW of LAW ) and causing death by reckless driving ( section CARDINAL ) , offences under a number of other provisions , including speeding , and manslaughter by the driver of a motor vehicle .

Subsection CARDINAL provides :

“ Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies –

( a ) NORP the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police , and

( b ) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver . ”

Subsection CARDINAL provides :

“ Subject to the following provisions , a person who fails to comply with a requirement under subsection ( CARDINAL ) above shall be guilty of an offence . ”

Subsection CARDINAL provides :

“ A person shall not be guilty of an offence by virtue of paragraph ( a ) of subsection ( CARDINAL ) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was . ”

A person guilty of an offence under subsection CARDINAL can be disqualified or have his licence endorsed with CARDINAL penalty points ; he may also be fined up to level CARDINAL on the standard scale , that is , GBP CARDINAL .

Section CARDINAL(CARDINAL ) of the Road Traffic Offenders Act DATE provides that on summary trial for a relevant offence , including speeding offences , a statement in writing signed by the accused under section CARDINAL(CARDINAL ) of LAW that he was the driver of the vehicle on that occasion may be accepted as evidence of that fact .

Section CARDINAL provides

“ ( CARDINAL ) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section ;

( CARDINAL ) NORP If , in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained –

( a ) by oppression of the person who made it ; or

( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession which might be made by him in consequence thereof ,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession ( notwithstanding that it may be true ) was not obtained as aforesaid .

Section CARDINAL(CARDINAL ) provides :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

In PERSON v. PERSON , cited above , ORG considered the case of a woman arrested for shoplifting in the vicinity of a car that appeared to be hers . She was breathalysed and tested positive for alcohol consumption . With a view to ascertaining whether she had been guilty of driving her car while under the influence of alcohol ( contrary to section CARDINAL of the CARDINAL Act ) , the police served her with a section QUANTITY notice . The Procurator Fiscal sought to use her answer that she had been driving as the basis for a prosecution for driving with excess alcohol . ORG of Justiciary allowed the defendant ’s appeal , finding that the prosecution could not rely on evidence of the admission which she had been compelled to make .

On appeal by ORG , ORG found that the use of the admission did not infringe the requirements of LAW . Lord PERSON of GPE , giving the leading judgment , held , inter alia :

“ The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies . The need to address it in an effective way , for the benefit of the public , can not be doubted . Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying , prosecuting and punishing offending drivers . Materials ... incomplete though they are , reveal different responses to the problem of enforcement . Under some legal systems ( GPE , GPE and GPE are examples ) the registered owner is presumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration . There being a clear public interest in enforcement of road traffic legislation the crucial question in this case is whether section CARDINAL represents a disproportionate response , or CARDINAL that undermines a defendant ’s right to a fair trial , if an admission of being the driver is relied on at trial .

I do not for my part consider that section CARDINAL , properly applied , does represent a disproportionate response to this serious social problem , nor do I think that reliance on the respondent ’s admission in the present case , would undermine her right to a fair trial . I reach that conclusion for a number of reasons .

Section CARDINAL provides for the putting of a single , simple question . The answer can not of itself incriminate the suspect , since it is not without more an offence to drive a car . An admission of driving may , of course , as here , provide proof of a fact necessary to convict , but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in PERSON , and the penalty for declining to answer under the section is moderate and non - custodial . There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice , and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission .

While ORG was entitled to distinguish ... between the giving of an answer under section CARDINAL and the provision of physical samples , and had the authority of ORG in PERSON ... for doing so , this distinction should not in my opinion be pushed too far . It is true that the respondent ’s answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote . In contrast , it may be acknowledged , the percentage of alcohol in her blood was a fact , existing before she blew into the breathalyser machine . But the whole purpose of requiring her to blow into the machine ( on pain of a criminal penalty if she refused ) was to obtain evidence not available until she did so and the reading so obtained could , in all save exceptional circumstances , be enough to convict a driver of an offence ... [ I]t is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not . Yet no criticism is made of the requirement that the respondent undergo a breath test .

All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime . This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the ORG but because the possession and use of cars ( like , for example , shotguns ... ) are recognised to have the potential to cause grave injury . It is true that section CARDINAL(CARDINAL)(b ) permits a question to be asked of ‘ any other person’ who , if not the owner or driver , might not be said to have impliedly accepted the regulatory regime , but someone who was not the owner or driver would not incriminate himself whatever answer he gave . If , viewing this situation in the round , one asks whether section CARDINAL represents a disproportionate legislative response to the problem of maintaining road safety , whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual , whether ( in short ) the leading of this evidence would infringe a basic human right of the respondent , I would feel bound to give negative answers . If the present argument is a good one it has been available to NORP citizens since DATE , but no one in this country has to my knowledge , criticised the legislation as unfair at any time up to now . ”

The decision was adopted by the English High Court in Director of Public Prosecutions v. PERSON , cited above .