Remainder inadmissible;No violation of Art. 5-1

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in DATE and is currently detained in FAC .

DATE the applicant was convicted , among other offences , of numerous counts of joint burglary committed in companies and shops and was imprisoned from DATE until DATE .

In DATE ORG convicted the applicant of trafficking in drugs ( hashish and cocaine ) and sentenced him to DATE imprisonment . The applicant was in pre - trial detention and served his sentence from DATE until DATE .

NORP In DATE the applicant was arrested and placed in pre - trial detention on suspicion of drug trafficking ; he has remained in prison since then .

In a judgment dated CARDINAL DATE ORG convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in DATE and involving QUANTITY of hashish . It sentenced him to DATE and CARDINAL months’ imprisonment . It decided not to order the applicant ’s preventive detention under LAW ( see paragraphs CARDINAL below ) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences . In this assessment , the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking . The applicant claimed that he had struck a deal with ORG on the latter ’s proposal that the court would impose a sentence of DATE and would not order his preventive detention if he ceased to contest the court ’s finding of fact . The Government submitted that there was no indication in the case - file that such an agreement had been made .

In a judgment dated DATE ORG dismissed an appeal by the applicant on points of law . It allowed an appeal by the prosecution regarding ORG decision not to order the applicant ’s preventive detention and quashed the judgment in this respect as ORG had not given valid reasons for considering the applicant not to be dangerous to the public .

In a judgment dated DATE a different chamber of ORG ordered the applicant ’s ( first ) indefinite preventive detention pursuant to LAW . Having consulted a psychiatric expert and having regard to the applicant ’s personality and his previous convictions , the court considered that the applicant had a disposition to commit serious offences , was likely to commit further serious drug offences and was thus dangerous to the public .

NORP In a decision dated DATE ORG dismissed as ill - founded an appeal by the applicant on points of law , in which the latter had complained that provisions of substantive law had not been complied with ( allgemeine Sachrüge ) .

On DATE the applicant , without being represented by counsel , lodged a constitutional complaint with ORG against the CARDINAL judgments of ORG and the judgment and the decision of ORG . He complained , in particular , that preventive detention was incompatible with his right to liberty under LAW , which did not cover such a preventive measure . It further violated the prohibition of retrospective punishment under LAW because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of DATE , which had been the maximum penalty at the time he committed his offences . Furthermore , his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with ORG that he would not further contest the court ’s finding of facts in exchange for the court not ordering his preventive detention .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . ORG found that in so far as the applicant complained about the judgment of ORG of DATE and that of ORG of DATE , he had lodged his constitutional complaint out of time . In so far as the applicant complained that ORG order for his preventive detention in its judgment of DATE lacked a valid legal basis and was arbitrary , his complaint was inadmissible for non - exhaustion of domestic remedies . The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by ORG to him before ORG , at least by complaining that provisions of substantive law had not been complied with .

On DATE the NORP ORG , acting as the court dealing with the execution of sentences , having heard the applicant in person , ordered the applicant ’s placement in preventive detention as of CARDINAL DATE ( Article LAW § CARDINAL of LAW ; see paragraph CARDINAL below ) , that is , as from DATE on which the applicant would have served his full prison sentence . The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant ’s dangerousness . In his report dated DATE the expert , having examined the applicant , had considered that , if released , the applicant was very likely to commit further serious offences similar to those he had previously committed . He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences . Even assuming that the security measures taken against him by the prison authorities had not been justified , this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal .

On DATE the ORG rejected an objection ( NORP ) by the applicant .

On DATE the applicant lodged a constitutional complaint with ORG against ORG decision of CARDINAL DATE and ORG decision of DATE . By submissions dated DATE he extended his complaint to ORG decision of DATE . He claimed , in particular , that the order to place him in preventive detention disproportionately interfered with his right to liberty . He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form , that the courts had failed to give convincing reasons , in view of his mostly less serious previous convictions , why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found , in particular , that the decisions of the courts dealing with the execution of sentences to order the applicant ’s placement in preventive detention had not violated the applicant ’s right to liberty . ORG found that ORG assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to CARDINAL term of CARDINAL years’ imprisonment and DATE . The expert report , which was of DATE , was sufficiently substantiated . In so far as the applicant had been refused relaxations in the conditions of his detention , ORG noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations . If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future , the applicant had to raise this issue with the competent lower courts first . In view of the ORG assessment that the applicant was likely to commit further serious offences if released , their finding that the interest in public safety prevailed over the applicant ’s right to liberty had been proportionate .

On DATE the ORG , acting as the court dealing with the execution of sentences , refused to suspend the execution of the preventive detention order against the applicant on probation . That decision was confirmed on appeal .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention , a socalled measure of correction and prevention , under certain circumstances in addition to his prison sentence , a penalty , if the offender has been shown to be dangerous to the public ( LAW ) .

NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Article CARDINAL § CARDINAL of LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person ’s conduct commences with suspension .

Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first placement in preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .

Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provided that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL § CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .

Under the well - established case - law of ORG , a complainant is obliged to submit to that court , within the onemonth time - limit running from the notification of the impugned court decision , either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality ( see , inter alia , the decisions of ORG of DATE , file no . DATE , Collection of the decisions of ORG ) , vol . CARDINAL ( DATE ) , pp . CARDINAL ss . , CARDINAL ; of DATE , file CARDINAL . CARDINAL BvR CARDINAL , CARDINAL and CARDINAL , CARDINAL , Collection of the decisions of ORG , vol . DATE ) , pp . CARDINAL ss . , FAC ; confirmed , for instance , by a decision of DATE , file no . CARDINAL BvR CARDINAL/CARDINAL ) . No distinction was made in these decisions between complainants who were and those who were not represented by counsel .

On DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period ( compare the provisions in paragraphs QUANTITY - CARDINAL above ) and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the most . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law . If the above pre - conditions were not met , those detainees had to be released no later than DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche GPE ) . In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ) .


George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

NORP The applicant , A.L.F. , is a NORP national , who was born in DATE and lives in GPE .


MARTI AG, CELLERE AG, GEBR. BRUN AG and STUAG AG v. SWITZERLAND

The applicants are CARDINAL companies involved in building and construction works and registered in GPE . Before the ORG they are represented by PERSON , a layer practising in GPE ( GPE ) .

A.

ORG ( Kantonsblatt ) of the GPE of GPE published on DATE an invitation for tenders by ORG ) of the GPE of GPE in respect of “ preparatory work on the GPE [ motorway ] extension constructions for the north feeder ” . In the same issue , a further invitation for tenders was published by the GPE municipality in respect of “ canalisation and water construction works to be constructed in connection with the NCARDINAL extension works for the north feeder ” . The date for submitting the tenders was fixed for DATE . Offers had to state any construction works to be outsourced to other companies .

The applicants submitted CARDINAL tenders , i.e. for the construction of the north feeder , the canalisation and the water construction works .

On DATE the tenders were examined by the authorities . The applicants were not awarded any construction works . According to notes prepared by representatives of the applicants present upon the occasion , the tenders had been as follows :

in respect of the north feeder : of the CARDINAL tenders made , ORG had offered a lower and ORG a higher price than the applicants ;

in respect of the canalisation and water construction works : of the CARDINAL tenders made , ORG had offered a lower price than the applicants .

Shortly afterwards a meeting was held between the administration and the applicants at which it apparently transpired that ORG was not in fact in a position to undertake the entire construction works itself and that ORG eventually rose to the second position of bidders in view of an alleged calculation error of MONEY in their tender .

As a result , the applicants , pursuant to LAW ( ORG , see below , Relevant domestic law ) filed a complaint with the Government ( NORP ) of the GPE of GPE . They maintained that there had been procedural defects and breaches of LAW , inter alia , in that ORG , in its tender , had omitted to specify which constructions would be outsourced to other companies ; and that the tender of ORG contained elements of unfair competition .

The Government of the GPE of GPE dismissed the complaint on DATE , pointing out that the award had found that ORG would be in a position to undertake substantial parts of the construction works itself , and that the tender of ORG had contained an error in that CARDINAL particular price had been multiplied by CARDINAL .

The applicants filed an administrative law appeal ( PERSON ) with ORG ( Verwaltungsgericht ) of the GPE of GPE in which they complained that they had not had access to a court within the meaning of LAW . They further complained that they had not been able to consult the case - file and that the law had been incorrectly applied .

On DATE the ORG found that it had no jurisdiction to entertain the appeal . In particular , LAW was inapplicable as the applicants had not demonstrated the existence of a “ right ” within the meaning of that Article .

The applicants’ further administrative law appeal was dismissed by ORG ( PERSON ) on DATE , the decision being served on DATE .

In its decision , that court found that the applicants had no standing in view of its constant case - law according to which decisions on tenders did not concern legally protected rights , as would be required when filing an administrative law appeal . In respect of the ORG complaint about lack of access to a court within the meaning of LAW , the court considered that this provision did not itself grant new substantive rights but was applicable only if a “ right ” arose under domestic law . No such right existed if it could not be claimed before a court . The court then referred to LAW of the Ordinance ( Verordnung ) completing LAW ( see below , Relevant domestic law ) . These provisions envisaged , in principle , that tenders with lower prices would prevail , though , according to LAW of the GPE , the lowest offer is not always the cheapest . As a result , domestic law did not grant a “ right ” to be awarded a particular offer upon tender , for which reason LAW was not applicable .

B. Relevant domestic law

The DATE LAW ) of the GPE of GPE deals with invitations for tenders and with the award of construction works by the GPE of GPE and its municipalities . LAW determines that construction works shall as a rule be awarded following a competitive invitation for tenders . LAW provides for an appeal to the Government ( NORP ) for those applicants whose personal interests worthy of protection are at issue ( in ihren persönlichen schützenswerten ORG beeinträchtigt ) .

The Ordinance ( Verordnung ) completing LAW provides , insofar as relevant :

“ Section CARDINAL Principles governing award . ( a ) General

Construction works and supplies are to be awarded , based on the principle of economy , to the candidate who has made the cheapest offer ( günstigstes ORG ) .

ORG The cheapest offer will be the one with the lowest price ( tiefster PERSON ) as long as the implementation of the construction works or supplies corresponds to the substantive requirements and the time - limit . The lowest tender ( niedrigstes ORG ) will not , therefore , always be the cheapest .

Section CARDINAL ( b ) In case of equal or similar tenders

In case of equal or similar tenders , the following criteria shall be considered :

( a ) proof of good performance ;

( b ) variety among the candidates ;

( c ) degree of employment when implementing the construction works ;

( d ) tax domicile in the GPE of GPE or in the municipality concerned ;

( e ) payment of taxes in the GPE of GPE or in the municipality concerned ;

( f ) use of local construction materials and products ;

( g ) professional qualifications of the head of enterprise ( e.g. master craftsman ) and of the ORG employees ;

( h ) training of apprentices ;

( i ) securing and maintaining employment in the GPE of GPE or the GPE municipalities concerned .

The order of relevance when employing the criteria mentioned in LAW shall be determined by the awarding authority individually and according to the situation concerned , in particular in the light of the economic situation . ”

According to LAW of the GPE , the authority concerned is not obliged to give reasons to candidates whose tender has not been considered .

Meanwhile , Section CARDINAL of LAW on a Common Market ( PERSON ) provides for an appeal to a court in case of alleged restricted access to the common market , but this provision entered into force only on DATE .


Violation of Art. 6-1;Violation of Art. 13

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE and DATE respectively . The second applicant is currently detained in FAC . The third applicant lives in GPE , GPE . The remaining applicants live in the village of ORG in GPE .

On DATE and CARDINAL DATE the police in GPE opened CARDINAL investigations into several thefts of sheep and goats . CARDINAL DATE the applicants submitted written explanations admitting to having committed the thefts .

NORP The proceedings remained dormant until DATE when a police investigator questioned several witnesses and commissioned CARDINAL expert reports concerning the value of the stolen animals . DATE the investigator brought charges against the CARDINAL applicants .

On DATE the first and third applicants were questioned before a judge .

NORP In DATE the investigation was concluded and on DATE the applicants were indicted for theft . On DATE they entered into a plea agreement with the prosecution , accepting short suspended sentences . At a hearing held on DATE the ORG affirmed the agreement and discontinued the proceedings . Its decision was final .


Remainder inadmissible;No violation of Art. 6-1

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

In TIME of DATE , the applicant went to visit his mother at her house in GPE but could not park his car because of obstruction by other vehicles . He went into his mother 's house having been unable to alert the owners of other vehicles by sounding his horn . He decided to telephone the police to complain about the obstruction and his mother tried to stop him . At some stage , someone contacted the police and they arrived at the house TIME .

There is a dispute about what occurred subsequently . The applicant was arrested inside his mother 's house for breach of the peace . He disputes that there were lawful grounds for arresting him . He was taken outside the house into the street . The police claimed that at that stage , they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section DATE ) of LAW DATE ( “ the DATE Act ” – see paragraphs CARDINAL below ) .

The applicant was taken to GPE hospital , QUANTITY away from his mother 's home , where he was detained pursuant to section CARDINAL(CARDINAL ) of the CARDINAL Act and , subsequently , section CARDINAL of the DATE Act until DATE , when his release was ordered by a mental health review tribunal .

On DATE , the applicant 's then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant 's detention under section CARDINAL .

On DATE , the eve of the expiry of the relevant limitation period ( see paragraph CARDINAL below ) , the applicant ( who was by then no longer legally represented ) issued proceedings in ORG seeking damages from the Chief Constable of GPE Police for “ trespass , assault , wrongful arrest , misuse of police powers , misuse of section CARDINAL of the CARDINAL Act , falsehood and personal injuries sustained ” as a result of the events of DATE . His particulars of claim indicated that :

“ At the time of the incident on CARDINAL/CARDINAL/CARDINAL at my mother 's house the police at no time inform[ed ] me of any arrest or that I was to be detained pursuant to LAW , DATE . I am aware that the police can only use LAW to detain persons found in public places provided that the person to be detained appears to the police constable to have a mental disorder and to be in immediate need of care or control and such that it be necessary to take the person to a place of safety for the protection of the person detained or for the protection of others . At no stage did the police find me in a public place , on the contrary I was taken from a private dwelling by the police to a public place and at no time could my conduct be construed or considered as that of a mentally - disordered person . Therefore the use of LAW of LAW was unlawful . ”

Under section CARDINAL(CARDINAL ) of LAW , the leave of ORG was required prior to the commencement of any claim relating to the exercise of powers under LAW ( see paragraph CARDINAL below ) . The applicant failed to seek High Court leave before commencing his claim .

On DATE , the respondent filed both a defence to the claim on the grounds of section CARDINAL ) of LAW ( see paragraph CARDINAL below ) relying on the absence of allegations of bad faith or failure to take reasonable care and an application for the claim to be struck out on the grounds that leave from ORG , as required under LAW ) , had not been obtained prior to the proceedings being brought . The respondent further argued that the claims in defamation and falsehood were time - barred pursuant to section CARDINAL of LAW ( “ the DATE ” – see paragraph CARDINAL below ) .

On DATE , ORG ordered that the claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by ORG . The claim in defamation and malicious falsehood was struck out by consent as the relevant limitation period had expired in respect of such claims .

On DATE , permission to appeal the decision to strike out the claim was granted .

On DATE , the Circuit Judge varied the order of ORG . He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under LAW . In relation to the applicant 's complaints regarding his detention under LAW , however , ORG dismissed the applicant 's appeal , finding the legal proceedings in that regard to be a nullity as a result of the failure to obtain prior leave .

In handing down his judgment , he noted :

“ I did consider at CARDINAL stage whether it would be open to Mr. PERSON simply to make an application to ORG for the permission required by CARDINAL of LAW and then simply apply under the provisions of the [ Civil Procedure Rules ] ... to add the further claim . However , the defendant will raise the LAW defence . ”

The applicant was granted leave to appeal to ORG .

NORP Before ORG , the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under LAW until the necessary leave had been obtained . On DATE , ORG dismissed the applicant 's appeal . Leave to appeal to ORG was granted .

NORP The argument before ORG focussed on the consequences in terms of section CARDINAL(CARDINAL ) of LAW of bringing proceedings without prior leave from ORG . The respondent argued that such a failure rendered the proceedings a nullity . The applicant , on the other hand , argued that lack of leave was a procedural irregularity which could be corrected .

On DATE , ORG handed down its judgment and , by a majority of CARDINAL , dismissed the applicant 's appeal .

Lord GPE of GPE , of the majority , considered the applicant 's argument that section CARDINAL(CARDINAL ) infringed his right of access to court but concluded that this was not an argument that he could accept . He noted ( at paragraph CARDINAL ) :

“ ORG has accepted that the right of access to the court is not absolute , but may be subject to limitations : PERSON ( DATE ) CARDINAL EHRR CARDINAL , para CARDINAL . The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective : ibid , para CARDINAL ; M v GPE ( DATE ) CARDINAL DR CARDINAL , CARDINAL . What matters ( PERSON , para CARDINAL ) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right . But the threshold for obtaining leave under section CARDINAL(CARDINAL ) has been set at a very unexacting level : PERSON v Jones [ DATE ] LAW . An applicant with an arguable case will be granted leave . PERSON undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by LAW , which would not itself fall foul of article CARDINAL : PERSON v GPE ( DATE ) CARDINAL EHRR CARDINAL . ”

Similarly , Lord PERSON of ORG - under - Heywood considered that ORG had made it clear under section CARDINAL that relevant proceedings brought without leave were a nullity .

“ CARDINAL . It seems to me quite evident from the legislative history of this provision that from DATE onwards ORG intended to make leave a precondition of any effective proceedings . Unlike the position prior to DATE , the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a ORG judge . Absent such leave , albeit he might be notified of a claimant 's proposal to proceed against him , he was not to be troubled by such proceedings . The very inflexibility of the provision was an integral part of the protection it afforded . If , however , the [ applicant 's ] approach were to be adopted , inevitably ( unless by chance the court took the point of its own motion ) the defendant himself would be drawn into the litigation .

... I repeat , the requirement for leave here was to safeguard prospective defendants from being faced with proceedings ( which might not be sufficiently meritorious to deserve leave ) unless and until a ORG judge thought it appropriate that they be issued . And that is not a protection that can be secured save by a clear and inflexible rule such as section CARDINAL(CARDINAL ) ( and its legislative predecessors ) have always hitherto been understood to provide . Just such a rule applies in respect of those adjudged vexatious litigants under section CARDINAL of LAW DATE and ORG clearly intended to achieve the same result under LAW legislation . Whether or not such protection is necessary or desirable is , of course , open to question and has , indeed , been extensively debated over DATE . But your Lordships ' task is not to decide whether it is desirable but whether presently the legislation confers it . ”

As to the Article CARDINAL argument advanced by the applicant , Lord PERSON said ( at paragraph CARDINAL ) :

“ To suggest that the approach hitherto adopted to section CARDINAL(CARDINAL ) involves a violation of article CARDINAL of LAW seems to me fanciful . Such an approach can not sensibly be seen ( as ORG suggests ) ' to brand every person who is or has been subject to the compulsory powers in LAW as a potential vexatious litigant ' . Nor can it be seen to have ' an effect out of all proportion to the aim which it is attempting to pursue . ' Of course , in a rare case ( perhaps such as this one ) a combination of circumstances — ignorance of the law ( ie of section CARDINAL(CARDINAL ) ) , the delay in the issue of proceedings until DATE limitation period , and the inflexibility of section CARDINAL of the LAW DATE itself ( assuming the defendant chooses to take LAW defence ) will operate to deprive the prospective claimant of his claim . But that , of course , is equally so in the case of a litigant in person ignorant of DATE limitation period itself . In each case the loss of the claim is the price paid for certainty — just as there is a price to be paid for the established principle ( and the assurance it provides ) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to LAW and it seems to me unsurprising that the point was not even taken in the courts below . ”

Baroness PERSON of GPE , dissenting , noted at the outset of her opinion ( at paragraph CARDINAL ) :

“ The question is CARDINAL of statutory construction . Despite the antiquity of this provision , which dates back to LAW , the question has never arisen directly before . But it concerns a fundamental constitutional right – the right of access to the courts . It also concerns the exercise of that right by a peculiarly vulnerable group of people – people who are or have been the subject of compulsory detention under LAW DATE . The courts here DATE and in GPE – have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints : see particularly ORG ( DATE ) CARDINAL EHRR CARDINAL in GPE and R v Secretary of ORG for ORG , Ex p PERSON [ DATE ] QB CARDINAL ; R v Secretary of ORG for ORG , Ex p PERSON [ DATE ] CARDINAL ORG CARDINAL ; and R ( PERSON ) v Secretary of ORG for ORG [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL AC CARDINAL in GPE . The courts should be no less vigilant to safeguard the rights of mental patients , most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims . ”

She continued :

“ CARDINAL . I approach the task of construing section CARDINAL(CARDINAL ) , therefore , on the basis that ORG , by enacting the procedural requirement to obtain leave , did not intend the result to be that a claimant might be deprived of access to the courts , unless there is express language or necessary implication to the contrary . If there is no express language , there will be no necessary implication unless the legislative purpose can not be achieved in any other way . Procedural requirements are there to serve the ends of justice , not to defeat them . It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant .

The express words are :

' No civil proceedings shall be brought ... in respect of any such act without the leave of ORG ; ... '

These words say nothing about what is to be the consequence if , through ignorance or error , proceedings are in fact started without leave ... ”

“ DATE . Nowhere ... is there any discussion of the consequence if proceedings are brought without first obtaining leave . The purpose was and remains the protection of staff . But protection from what ? It can not have been intended or expected that staff would be protected from all knowledge of possible claims . LAW had expressly required that notice of an application for leave be given to the proposed defendant . Good practice and common courtesy , then as now , would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave . What staff are protected from is having to defend a baseless action . Such protection is not undermined if an action is , whether through ignorance or inadvertence , begun without leave and the defendant takes the point or the court takes it of its own motion . The burden is still on the claimant to establish that the case should go further . ”

She concluded ( at paragraphs CARDINAL ) that :

“ If spotted in time , the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant . If it is not spotted in time , and the action succeeds , no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand ; but a serious injustice will be done to the successful claimant if it has to be set aside , for by then it is not at all unlikely that the action will be statute barred . The fact that leave is required at all may not emerge until a relatively late stage in the proceedings . That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no - one noticed at the time is an affront to justice .

My ORG , I would not interpret section CARDINAL(CARDINAL ) so as to achieve such an obviously unjust result unless driven by the statutory language so to do . The statutory language makes it clear that if anyone , including the claimant , appreciates the point , then leave must be obtained . It does not make it clear that if no - one , including the court or the defendant , does so , the proceedings are a nullity . Halfway houses are usually to be preferred to absolute extremes . ”

Considering LAW and the jurisprudence of this ORG , ORG noted :

“ CARDINAL . To be proportionate , a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued . To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims . But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in LAW as a potential vexatious litigant . There are some compulsory patients who suffer from paranoid delusions ; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble . But the blanket restriction in section CARDINAL(CARDINAL ) takes no account of these subtleties . It assumes that everyone who has ever been subject to LAW compulsion is automatically suspect . This is not only empirically unproven . It certainly can not be taken for granted when LAW powers may be exercised by people with no mental health expertise whatsoever . On the one hand , therefore , section CARDINAL(CARDINAL ) goes too far . On the other hand , however , it may not go far enough , because it is limited to acts done in pursuance of LAW itself . If certain mental patients are ex hypothesi vexatious litigants , then people who exercise authority over them otherwise than under LAW may also deserve protection .

This case is an excellent illustration . The police case is that Mr PERSON was first arrested inside his mother 's home for a breach of the peace . Having been taken outside he was then detained under section DATE ) of the DATE Act :

Police officers lead difficult and dangerous lives . They have to make snap decisions in complex situations where there is no time for quiet contemplation . They deserve the support of the public , the courts and the law . But it has not been shown why they should need more protection and more support when they remove people to a place of safety under LAW DATE than they have when they conduct an ordinary arrest .

Even where a rational connection between the end and the means can be shown , the means still have to be proportionate to the ends . There will be cases in which the operation of section CARDINAL(CARDINAL ) is proportionate . There will be other cases , quite possibly including this , in which it is not . Blanket provisions , which catch a great many cases in which the restriction is not justified in order to catch the few where it may be , require particularly careful scrutiny . If section CARDINAL ) has the effect that proceedings are always a compete nullity , thus depriving a claimant of a good claim , that is an effect out of all proportion to the aim which it is attempting to pursue . Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response . ”

In the applicant 's case , she concluded that the appeal should be allowed , noting ( at paragraphs CARDINAL ) :

“ The police may well have an answer to PERSON claim . But their case is not without difficulty . If he was ' removed ' under LAW of LAW from his mother 's home , he can not have been ' found in a place to which the public have access ' . If he was arrested in her home for a breach of the peace , and then ' removed ' under LAW after they had taken him outside , can it be said that they ' found ' him there ? ( To say otherwise would deprive section CARDINAL of much of its usefulness when an arrested person is later discovered to have a mental disorder . ) These are questions which deserve to be addressed at the trial of the claim . By no stretch of the imagination is this vexatious . It may not be worth a great deal of money but that is not the point .

Section CARDINAL(CARDINAL ) covers a great many people who are neither vexatious litigants nor , by reason of their mental disorder , more likely than the general population to launch vexatious actions . I do not believe that ORG ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain ORG leave in time . Defendants deserve protection from vexatious claims . They do not deserve protection from meritorious claims . But if that was ORG 's intention , it is an irrational and disproportionate interference in the Convention right to access to justice . There is no problem in reading down section CARDINAL(CARDINAL ) to cure that because there is nothing there to prevent it . However , the best solution would be to remove the procedural requirement altogether , as proposed in Clause CARDINAL of ORG PERSON proposed by ORG in DATE ( CARDINAL , Cm PERCENT CARDINAL ) . ORG Bill currently before ORG , provides such an opportunity . ”

Also dissenting , Lord PERSON accepted that it was not desirable to leave it until the limitation period had

Following the conclusion of the proceedings in ORG , the applicant did not continue with the remainder of his claim ( see paragraphs CARDINAL , CARDINAL and DATE above ) in ORG .

Section CARDINAL of LAW , as in force at the time of the applicant 's arrest and the commencement of the legal proceedings in this case , provided as follows :

“ ( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person or for the protection of other persons , remove that person to a place of safety within the meaning of section CARDINAL above .

( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . ”

Section CARDINAL provided :

“ ( CARDINAL ) No person shall be liable , whether on the ground of want of jurisdiction or on any other ground , to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this LAW or any regulations or rules made under LAW , or in , or in pursuance of anything done in , the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this LAW , unless the act was done in bad faith or without reasonable care .

( CARDINAL ) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of ORG ; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of ORG . ”

The relevant provisions of LAW have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes .

Section CARDINAL of the DATE Act allows for detention for the purposes of assessment for DATE .

Section CARDINAL of LAW DATE ( “ the DATE LAW ) provides as follows :

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

Section CARDINAL establishes a more limited time period for commencing actions for defamation or malicious falsehood and provides that :

“ The time limit under LAW shall not apply to an action for–

( a ) libel or slander , or

( b ) slander of title , slander of goods or other malicious falsehood ,

but no such action shall be brought after the expiration of DATE from the date on which the cause of action accrued . ”

Section CARDINAL of the CARDINAL LAW provides for a special time limit for actions in respect of personal injuries :

“ ( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ... where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person .

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

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

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

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

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

Section CARDINAL of the LAW provides for discretionary disapplication of the time - limit for actions in respect of personal injuries or death :

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

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

( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;

the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .

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

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

( c ) the conduct of the defendant after the cause of action arose , including the extent ( if any ) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff 's cause of action against the defendant ;

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

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

LAW on the Rights of Persons with Disabilities , signed by the respondent ORG on DATE and ratified on DATE , aims to promote , protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities , and to promote respect for their inherent dignity ( LAW ) .

Article CARDINAL provides for equal recognition before the law and stipulates :

“ CARDINAL . GPE Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .

GPE Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .

GPE Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .

GPE Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law . Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights , will and preferences of the person , are free of conflict of interest and undue influence , are proportional and tailored to the person 's circumstances , apply for the shortest time possible and are subject to regular review by a competent , independent and impartial authority or judicial body . The safeguards shall be proportional to the degree to which such measures affect the person 's rights and interests .

Subject to the provisions of this article , GPE Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property , to control their own financial affairs and to have equal access to bank loans , mortgages and other forms of financial credit , and shall ensure that persons with disabilities are not arbitrarily deprived of their property . ”

Article CARDINAL contains provisions on access to justice and provides , in so far as relevant :

“ CARDINAL . GPE Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others , including through the provision of procedural and age - appropriate accommodations , in order to facilitate their effective role as direct and indirect participants , including as witnesses , in all legal proceedings , including at investigative and other preliminary stages .


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

The applicants were born in DATE , DATE and DATE respectively . The first and the third applicant live in GPE and the second applicant resides in PERSON . The application concerns the wounding of the first applicant , who was DATE at the time , and the death of the second and third applicants ' sons , ORG and PERSON , who were DATE respectively , as a result of the explosion of an RPG-CARDINAL ( anti - tank grenade launcher ) grenade outside the applicants ' village , GPE , in GPE .

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

On DATE PERSON , PERSON and PERSON took their animals out to graze . When the animals returned to the village without the children , the villagers launched a search party and informed the military nearby ; FAC . A search was also unsuccessfully conducted within the military confines . DATE , the dead bodies of ORG and PERSON were found in a wheat field between the army barracks and LOC . The first applicant , who had injuries to his eyes and legs , was found QUANTITY away . He was immediately taken to ORG for treatment . As a result of the explosion , the first applicant suffered partial loss of the sight of CARDINAL eye and the total loss of sight in the other .

According to the first applicant 's testimony , given to a prosecutor on DATE , the children were grazing their sheep in the field when they found an object with an iron head which looked like a bullet . The first applicant left the other CARDINAL children to find water while they were trying to hit the iron head with pieces of metal . At that moment the bullet exploded .

On DATE the ORG public prosecutor instigated an investigation into the incident . The prosecutor noted that there were numerous trenches around the area for tank and gun practice . The remains of the ammunition at the scene were secured . Reports and sketches were drafted and a postmortem examination was conducted on the deceased . The cause of death was attributed to hemorrhagic shock and the doctor deemed it unnecessary to conduct a classic autopsy of the deceased .

On DATE the ORG public prosecutor decided that he lacked jurisdiction to investigate the incident and forwarded his decision to the military prosecutor 's office at the DATE gendarmerie border brigade commandership ( “ the military prosecutor ” ) .

The military prosecutor instigated an investigation into the incident . In particular , he requested the official records regarding the use of grenade launchers by the military during training , and medical reports regarding the health of the first applicant .

In the course of the investigation evidence was gathered from the first applicant , the third applicant , the head of the village , Mr PERSON NORP , a fellow villager , the soldiers on patrol duty on DATE of the incident and a higher - ranking military official .

On DATE the military prosecutor gave a decision that there was no need to initiate criminal proceedings on the ground that there was no fault or negligence attributable to anyone except PERSON , PERSON and PERSON . In his decision , the prosecutor noted that the children , while they were grazing their animals , had collected , near the trenches , a grenade from an RPG-CARDINAL grenade launcher and parts of a rocket , and that the incident had occurred while they were trying to explode them . He further noted that the incident had occurred QUANTITY away from the ORG where CARDINAL fields met and that it was not a military area . In this connection , the prosecutor held that , according to the official military records , no unexploded grenades or rockets had been found after military training exercises , that the origin of these artefacts could not be established and that , even assuming that they were launched from the military training field , their range made it impossible for them to have landed QUANTITY away from it .

The decision of the military prosecutor was served on CARDINAL DATE on PERSON , on DATE on PERSON and on DATE on PERSON . The applicants did not object to the military prosecutor 's decision .

On DATE and CARDINAL DATE the applicants made applications to ORG for compensation on account of the injury sustained by the first applicant and the death of the other applicants ' sons . They received no positive reply .

On DATE the first and the second applicants , and on CARDINAL DATE the third applicant , brought actions for compensation against the Ministry before ORG . They were represented by the same lawyers . In their petitions , the applicants claimed that PERSON had been injured and ORG and PERSON had died as a result of a mine which had been placed there by the gendarmerie police station . The first applicant requested the court to award MONEY ( TRL ) for pecuniary damage and TRL CARDINAL for nonpecuniary damage . The second and the third applicant each requested TRL CARDINAL for loss of income on account of the death of their sons .

On DATE ORG , basing its decision on the doctrine of “ social risk ” , awarded the applicant 's claim in full . Although the amount determined by experts for pecuniary damage was significantly higher , the court was bound by the amount requested by the applicant .

The Ministry appealed .

On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to determine which administrative entity , that is either ORG or ORG , had responsibility for compensating the applicant .

On DATE ORG , deciding that ORG had responsibility , gave its judgment . The court held as follows :

According to the report of the public prosecutor , the incident took place QUANTITY from FAC . ( According to the sketch plan the distance is QUANTITY . ) It was a grenade for a rocket launcher called RPG-CARDINAL , which exploded . The explosion occurred in an area where rockets are launched . Yet the origin of the grenade which caused the explosion is unknown . According to the inventory of ORG , this type of weapon ( RPG-CARDINAL ) is used by the military . However , it was included in the inventory of the CARDINALth ORG after the date of the incident in question . The maximum shooting range of the RPG-CARDINAL is QUANTITY metres . The results of an investigation into the military units deployed in the region prior to the incident revealed that CARDINAL of these units had engaged in shooting practice . According to the records of that unit they had left no unexploded grenades . The rocket launcher in question is frequently used by members of the ORG terrorist organisation . Furthermore , the incident took place QUANTITY from the barracks , in an area , which according to the attached map , has been declared to be a CARDINALnd degree military security zone .

Although it is established that the explosion occurred in the vicinity of the rocket launching zone , since the distance from the barracks was QUANTITY it can not be accepted that the unexploded grenade which caused the explosion was one used during a military unit 's training . The investigation conducted by the military prosecutor at ORG Commander 's office resulted in the same conclusion . Moreover , the conditions in the region are particular : the weapon in question is frequently used and hidden by the terrorist organisation . The grenade might have been left by terrorists who attacked the barracks . It should therefore be concluded that the damage in the present case was not caused by the activities of military forces but rather by terrorist activities . Nevertheless , taking into account the fact that a state of emergency was in force in the region at the time and the extraordinary nature of the damage , compensation should be awarded by the administration in accordance with the theory of “ social risk ” .

... The plaintiff should therefore be paid his claim in full , TRL CARDINAL for pecuniary damage ... although according to the expert reports , pecuniary damage in the present case could amount to TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL .

... As regards non - pecuniary damage , the plaintiff should be awarded TRL CARDINAL .

The Ministry appealed .

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

On DATE ORG , basing its decision on the doctrine of “ social risk ” , awarded the applicant a certain amount of compensation .

The ORG appealed .

On DATE ORG , basing its decision on the doctrine of “ social risk ” , on the same ground as above , awarded the second applicant GPE CARDINAL,CARDINAL,CARDINAL in respect of pecuniary damage together with legal interest running from the date of the incident , DATE .

The Ministry appealed .

On DATE ORG upheld the judgment as regards the amount of compensation awarded but quashed the judgment of the first - instance court in respect of the date from which the interest should run .

On DATE ORG held that the date of interest would start to run from the date when the applicant lodged an application with ORG , i.e. DATE .

The ORG appealed .

On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to determine which administrative entity , either ORG or ORG , had responsibility for compensating the applicant .

On DATE ORG , basing its decision on the doctrine of “ social risk ” on the same ground as above , awarded the third applicant GPE CARDINAL,CARDINAL,CARDINAL in respect of pecuniary damage together with legal interest running from DATE .

The Ministry appealed .

The relevant domestic law and practice in force at the material time can be found in the following judgments : PERSON and Others v. GPE ( nos . DATE - CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE , § § DATE and DATE , ORG CARDINALVI ( extracts ) ) , and PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE ) .


Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in DATE and lives in GPE .

On DATE the applicant , accompanied by ORG and GPE , threw a burning torch into a car belonging to ORG as a retaliatory measure for allegedly unfair business dealings with the applicant . The interior of the car was damaged . The police decided not to initiate criminal proceedings into the incident at the material time for lack of corpus delicti .

On DATE PERSON was fatally injured in a stabbing .

Criminal proceedings into the circumstances of his death were initiated on DATE .

According to the applicant , at TIME on DATE he was arrested on suspicion of incitement to murder and taken to LOC , where he was severely ill - treated by some QUANTITY police officers until he confessed to the offence on CARDINAL DATE . In particular , he alleged that the police officers had handcuffed and kicked him and fractured his ankle with a crowbar . He had lost consciousness and , on coming round , had found himself suspended from a crowbar with his hands locked under his knees . After he had signed the confession , the officers had contacted his wife and requested her to bring fresh clothes and a coat , on which he was then carried down to a police cell . Afraid that the staff of ORG ( the “ ORG ” ) would not admit the applicant on account of his injuries , the officers left him in a cell at the police station , unable to walk and without even the most basic care .

According to the official record , the applicant was arrested on DATE at TIME in the LOC of FAC .

On DATE criminal proceedings were instituted against the applicant and CARDINAL other individuals : PERSON , who was suspected of ORG ’s stabbing , and ORG , who was suspected of having hired PERSON to do so .

On DATE the applicant was admitted to the ORG . The officer on duty noted that he had a leg injury .

On DATE the ORG paramedic called an ambulance . The ambulance paramedic found that the applicant had suffered a severe chest contusion and arranged for his admission to ORG , where he was treated until DATE . According to a medical certificate issued by the hospital , the applicant had suffered a closed chest injury , closed fragmental fracture of the right ankle and a haematoma in an ankle joint . He was operated on to drain abscesses on both ankles . QUANTITY of puss was recovered from CARDINAL ankle and QUANTITY from the other .

On DATE the applicant was officially indicted for incitement to murder .

On DATE the Vatutinsky District ORG rejected a request by the applicant to initiate criminal proceedings against the police officers on account of his alleged ill - treatment , as it found his complaint unfounded .

On DATE the case - file concerning the murder charges was sent with the bill of indictment to ORG for examination on the merits .

On DATE the court held the first hearing .

DATE the court held some QUANTITY hearings . At the trial all the defendants retracted their initial confessions . CARDINAL witnesses also complained that they had been ill - treated by the police , who had incited them to give evidence against the defendants , who were friends of theirs . The applicant further alleged that the police officers had drafted a confession which they had forced him to sign .

On DATE ORG found the defendants guilty as charged and sentenced the applicant to fifteen years’ imprisonment . It rejected the GPE allegations of ill - treatment , primarily on the strength of the testimony of QUANTITY police officers who had denied the allegations while admitting that force had been used to arrest the defendants . The court further referred to the ORG office ’s decision of DATE , dismissing the applicant ’s request to institute criminal proceedings .

On DATE the applicant filed a new request with the ORG office for a criminal investigation into his alleged ill - treatment . This was rejected on DATE .

On DATE , following complaints by the defendants and several witnesses involved in the proceedings of ill - treatment , the Deputy Head of ORG , NORP , sent a letter to the Prosecutor General requesting a criminal investigation .

NORP In a letter of DATE the Deputy ORG requested ORG to include his letter in the case - file and informed NORP that no investigation had been possible at the material time , as the case had been pending before the judicial authorities , which prevented the prosecution from having access to the relevant materials annexed to the case - file .

On DATE the Vatutinsky District PERSON issued the applicant with a certificate stating that , in addition to the injuries recorded in the hospital , in DATE he had also suffered injuries to his wrist and coccyx .

On DATE ORG quashed the judgment of DATE and remitted the case for additional pre - trial investigations . It found it peculiar that the applicant ’s confession was dated CARDINAL DATE , while the official record stated that he had first been questioned and arrested on DATE . Further , it noted that the trial court should have ordered a medical report on the applicant in order to obtain objective information concerning his injuries and an assessment by a handwriting expert to verify his allegation that his confession had not been drafted by him .

On DATE the investigators decided to resume the criminal proceedings against the applicant , ORG and ORG on suspicion of arson in connection with the torching of ORG ’s car in DATE . Subsequently , the applicant was formally charged with arson .

On DATE the criminal cases concerning both the arson and murder charges were joined .

On DATE the medical records of the applicant ’s injuries were assessed by a medical expert , who confirmed that in DATE the applicant had suffered a haematoma to his right ankle joint . At the same time he found that the chest contusion diagnosis was insufficiently substantiated . He did not provide any conclusions concerning the other injuries listed in the applicant ’s records .

On DATE the police instituted criminal proceedings against ORG , the applicant ’s wife on the grounds that , while working as a nurse , she had forged , in particular , a certificate that purported to have been issued by the Vatutinsky District PERSON on DATE . On DATE she was amnestied .

On DATE the Vatutinsky District ORG again refused to institute criminal proceedings in connection with the applicant ’s allegation of ill - treatment . It noted , in particular , that the applicant had been arrested on DATE and that , as the arresting officers had been aware that the applicant , a former sportsman , was well - built , might have been armed and was implicated in a serious offence , they had had to use force to arrest him . In doing so , they had tripped him up , thrown him against the bonnet of a car , and handcuffed him . ORG considered that this was what had caused the applicant to suffer the haematoma . As regards the other injuries noted in the applicant ’s medical records , they had not been confirmed by the recent medical expert report .

On DATE ORG found it probable that the applicant ’s confession had been dictated by a professional , skilled in the preparation of procedural documents , to an individual , who had written the text under stress , possibly on account of physical pain . No assessment was carried out to determine whether the statement had been written by the applicant ’s hand .

In DATE the criminal case concerning the murder and arson charges was sent to ORG ( the former ORG ) for trial .

On DATE the court decided that further pre - trial investigations were necessary . It found , inter alia , that the investigation had not fully complied with ORG instructions . In particular , it had not been established why the applicant ’s confession had been dated DATE , while no other procedural documents had been executed on that date ; nor was there any indication as to where the applicant had been held between TIME and DATE and why he had arrived in the ORG only on DATE . The court further noted that the officers manning the LOC where the applicant had been kept before DATE should have been questioned about his state of health during that period . Finally , the investigation should have established whether it was likely that the applicant ’s injuries had been caused in the manner he had described .

On DATE ORG upheld the decision to order additional investigations .

On DATE the case was referred to ORG for trial . DATE and DATE that court held some DATE hearings .

On DATE ORG remitted the case for a pre - trial investigation in respect of the murder charges . It found , in particular , that the materials relating to the applicant ’s first interrogation , in which he had confessed to the murder , were inadmissible as evidence , as he had been questioned as a witness in the absence of a lawyer , whose presence was obligatory in view of the gravity of the alleged offence . Furthermore , the court referred to the failure of the investigation to establish the facts concerning the drafting of the applicant ’s confession and the other circumstances of his arrest and initial interrogation , including DATE . It noted , in particular , that the investigator had alleged that he had been unaware of the applicant ’s detention on DATE . According to him , the applicant had confessed on DATE . At the same time , several police officers had submitted that the investigative and prosecuting authorities had been fully aware of the applicant ’s arrest on CARDINAL DATE . The court also noted that the expert who had carried out the applicant ’s medical assessment had not made any findings concerning certain of his injuries , including the wrist injury and CARDINAL abscesses that had been noted in various medical records . Moreover , the assessment had not been carried out by a panel of experts as required , but by a single expert .

On DATE the court found the applicant , ORG and GPE guilty of arson and sentenced the applicant to DATE imprisonment .

On DATE ORG upheld ORG decision of DATE and judgment of DATE .

On DATE the investigators ordered the applicant ’s medical assessment by a panel of experts .

On DATE ORG found the diagnosis of the closed chest injury unfounded . They confirmed , however , that on CARDINAL DATE the applicant had had the following injuries : a haemorrhage of the left ankle and contusion of soft tissue on the left arm , which qualified as light bodily injuries , and a haemorrhage of the right ankle and a closed fracture of the right ankle , which qualified as bodily injuries of “ intermediate ” gravity . Based on the available documents it was not possible to establish the exact date of the infliction of these injuries , however , their infliction in the period between CARDINAL and CARDINAL DATE was not improbable .

By DATE the proceedings in respect of PERSON , the alleged perpetrator of the murder , were terminated for want of evidence of his involvement . As of DATE the proceedings in respect of the applicant and ORG were still pending .

NORP The relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) .


The applicants , Mr PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE , respectively , and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG did not designate an Agent for the purpose of the proceedings before the ORG .

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

On DATE the applicants were taken into police custody by policemen from ORG of ORG on suspicion of membership of the illegal ORG ( ORG ) . Subsequently , their houses were searched and the incident reports were signed by the applicants . During the search , the police found documents relating to the ORG . Magazines published by the ORG were also found in the first applicant ’s house .

On DATE the applicants signed forms whereby their rights as detainees were explained to them . The forms included their right to inform one of their relatives about their detention and their right to request the assistance of a lawyer .

According to the custody records ( nezaret kayıt defteri ) , the police informed PERSON ( the wife of the first applicant ) , PERSON ( the wife of the second applicant ) and Mr PERSON ( the brother of the third applicant ) about the applicants’ detention . Moreover , it was noted in these records that the applicants did not request the assistance of a lawyer .

In their police statements , the applicants accepted the charges against them . The first applicant gave a detailed description of his role in the ORG .

On DATE the applicants were questioned by ORG . Before the public prosecutor , the applicants denied the charges against them and refuted the statements they had made to the police . The same day the applicants were brought before an investigating judge at ORG . They confirmed the statements which they had made to the public prosecutor . The court ordered the detention on remand of the first CARDINAL applicants and released the third applicant .

By an indictment dated DATE , the public prosecutor initiated criminal proceedings against the applicants in ORG . The first applicant was accused of membership of the ORG and the last CARDINAL applicants were accused of aiding and abetting that organisation . The applicants were represented by their lawyers during the domestic proceedings .

On DATE , taking into account the illegal documents found in his house , the witness testimonies that confirmed his involvement in the illegal organisation and recalling the fact that he had been previously convicted of aiding and abetting the ORG in DATE , ORG found the first applicant guilty of being a member of the ORG . It accordingly sentenced him to DATE and CARDINAL months’ imprisonment under LAW . The court further acquitted the second and third applicants of the charges against them .

The first applicant appealed . On DATE ORG , upholding ORG reasoning and assessment of evidence , rejected the applicant ’s appeal .

The third paragraph of LAW , as amended by PERSON no . CARDINAL of DATE , provides that , when a person is arrested , a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period by the public prosecutor .