Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant is a businessman . In DATE he purchased a saw - mill with the intention of operating it as a going concern .

In DATE the local authority ordered him to shut the saw - mill down because it was situated in the vicinity of sewage disposal installations and threatened the town 's sanitation .

The applicant brought proceedings against the FAC municipal maintenance company ( муниципальное жилищно-коммунальное хозяйство города PERSON ) and the Maykop municipal water supply company ( муниципальное унитарное предприятие « Водоканал » , hereinafter “ the water supply company ” ) , in which he sought an order requiring them to lift the ban on the operation of the saw - mill and damages .

On DATE the ORG of the Republic of Adygeya ordered the water supply company not to prevent the applicant from carrying on his activity . The judgment was not appealed against and became final .

NORP However , it was not enforced . Instead , the water supply company blocked the road leading to the saw - mill and switched off the electricity supply .

The applicant was not issued with a warrant of execution until DATE pending a decision in another case in which a third party was trying to challenge his title to the saw - mill .

On DATE the enforcement proceedings were set in motion .

DATE the bailiff suspended the enforcement proceedings and applied for clarification of the judgment of DATE .

On DATE the ORG held that the judgment of DATE had to be enforced exactly as it was worded .

On DATE the bailiff brought the enforcement proceedings to an end . However , the access road remained blocked and the electricity supply was not restored .

The applicant appealed against the decision to discontinue the enforcement proceedings .

On DATE the ORG quashed that decision .

On DATE ORG upheld the above judgment on appeal .

On DATE the enforcement proceedings were resumed .

On DATE the director of the water supply company issued access passes to the applicant and his nominees .

On DATE free access to the saw - mill was restored , and the obstacles preventing the applicant from using it were removed . He was invited to collect the passes , but failed to do so . When the bailiffs went to the applicant 's home to serve him with papers concerning the enforcement , they were unable to find him , but were met instead by his father , who refused to look at the papers and explained that the applicant had moved to another city .

On DATE the enforcement proceedings were discontinued . The applicant did not appeal against that decision .


No violation of Art. 6-1;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in DATE and lives in PERSON .

The applicant ’s son PERSON was born out of wedlock on CARDINAL DATE . The child was given the applicant ’s family name by decision of GPE of DATE .

At that time PERSON ’s mother was living as a tenant in the applicant ’s house , in a separate apartment . The applicant was sharing an apartment with his long - term partner , PERSON , who later became his wife , and their son NORP aged CARDINAL at that time . During PERSON ’s first year the applicant took parental leave and took care of him together with U. Subsequently , ORG mother took parental leave .

NORP In DATE PERSON ’s mother moved out of the applicant ’s house .

On DATE the applicant asked ORG ( Bezirksgericht ) to transfer sole custody of PERSON to him under LAW of LAW ( ORG ) . He submitted in particular that he and U. had mainly taken care of PERSON and that the child ’s mother was not capable of doing so . The latter opposed the transfer of custody . At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel .

NORP By letter of CARDINAL DATE ORG ( Jugendamt ) , which had been following the case since DATE , expressed the view that both parents were capable of exercising custody .

On DATE the applicant and PERSON ’s mother appeared before ORG and were heard by the judge .

According to the minutes , the applicant requested that the opinion of an expert in child psychology be taken . PERSON ’s mother agreed to that request . The court appointed PERSON , an expert in child psychology , and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant . The judge then proceeded to discuss the factual and legal issues with the parties . The parties then concluded an agreement to the effect that , pending a decision on custody , PERSON would spend DATE with his mother and DATE with the applicant .

The expert , Dr PERSON , submitted his opinion to ORG on DATE . The opinion was based on interviews which the expert had conducted with PERSON ’s mother and the applicant and his partner . He had also paid a visit to the applicant ’s home during which he had observed how the applicant and the other members of his family interacted with PERSON The expert opinion was served on the applicant .

On DATE ORG held a hearing in the presence of the applicant , his counsel , PERSON ’s mother , PERSON and a representative of ORG .

According to the minutes , the contents of the file were read out . Subsequently , Dr PERSON opinion was discussed . In the course of the hearing Dr PERSON supplemented his opinion . He expressed the view that PERSON ’s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant . The representative of ORG opposed the view that PERSON ’s mother was not capable of raising the child . None of the parties made further submissions .

On DATE , that is , on DATE , ORG ordered a second expert in child psychology , PERSON , to submit an opinion on whether or not PERSON ’s mother was capable of taking care of him . In her opinion of DATE , PERSON came to the conclusion that PERSON ’s mother was sufficiently mature , did not show any emotional instability and was capable of taking care of him . A copy of this expert opinion was served on the applicant .

In addition ORG requested ORG to prepare a report . A representative of ORG visited PERSON and his mother at their home and as a result of that visit concluded that she was able to exercise custody .

On DATE and CARDINAL DATE the applicant requested that a decisive expert opinion ( LAW ) be commissioned . The motion contained comprehensive submissions on PERSON ’s mother ’s alleged incapacity to raise him .

ORG ordered a third expert , PERSON , to submit a decisive expert opinion on the question whether PERSON ’s mother was capable of exercising custody .

Both the applicant and PERSON ’s mother made further written submissions . Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of PERSON

On DATE Dr B. submitted his expert opinion . Having interviewed the applicant and PERSON ’s mother , he found that both parents were in principle capable of taking care of PERSON The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life . The applicant had a tendency to dominate and had given reason to fear that , if custody was awarded to him , he would try to curtail the mother ’s access rights . The applicant could provide a more stable environment and a more coherent style of upbringing . However , PERSON ’s best interests would not be manifestly endangered if custody remained with his mother . It was recommended that the applicant be given extensive access rights , in that PERSON should stay with him from DATE , spend DATE with him in DATE and DATE during DATE .

A copy of PERSON expert opinion was served on the applicant , and he was given DATE to submit comments . Within that time - limit , the applicant requested that the expert opinion be discussed at a hearing . He did not make any comments in writing .

Without holding a further hearing , ORG dismissed the applicant ’s request for sole custody of PERSON to be transferred to him by decision of DATE .

ORG noted that under LAW the mother of a child born out of wedlock had sole custody . A transfer of custody was only to be ordered if the child ’s best interests were at risk . In the present case the applicant would have had to prove that PERSON ’s mother was unable to take care of him . While the first expert , Mr PERSON , had come to the conclusion that this was the case , the second expert , PERSON , had reached the opposite conclusion . Finally , the decisive expert opinion by PERSON had found it established that PERSON ’s mother was capable of taking care of him . Having regard to the second and third expert opinions and to the view expressed by ORG , it had been established that PERSON ’s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary .

Furthermore , ORG noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion , since it found that opinion coherent and convincing . The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings . It followed that the applicant ’s further requests for the taking of evidence had to be dismissed .

Finally , the court ruled that its decision was immediately enforceable with the consequence that the agreement of CARDINAL DATE was no longer effective .

The applicant appealed . He complained about a number of procedural shortcomings . He alleged , inter alia , that ORG had failed to hold a hearing for the purpose of discussing PERSON expert opinion , and that it had not heard him in person .

In addition , the applicant contended that the relevant provisions of LAW , namely , Articles CARDINAL and CARDINAL , were discriminatory and suggested that the appellate court request ORG to rule on their constitutionality . Since PERSON had been born out of wedlock , his mother had sole custody of him and he , as the child ’s father , could only be awarded custody if the mother put the child ’s well - being at risk . In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child ’s best interests required that sole custody be awarded to CARDINAL of them . The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification .

On DATE the ORG dismissed the applicant ’s appeal .

ORG found that the proceedings before ORG had not suffered from any procedural defects . In non - contentious proceedings it was not always required to question the parties at a hearing . A hearing had been held on DATE in the presence of the applicant . Furthermore , the applicant had had the opportunity to file written submissions , of which he had made ample use . He had also been interviewed by the experts . A further hearing for the purpose of discussing the decisive expert opinion of PERSON would only have been required had there been substantial doubts as to its correctness .

Moreover , ORG did not see any reason to request ORG to rule on the constitutionality of the relevant provisions of LAW . It noted that LAW allowed life - companions to request joint custody . The applicant had not claimed to have cohabited with PERSON ’s mother . On the contrary he had cohabited with another woman , PERSON , who had meanwhile become his wife .

A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified . The rule contained in LAW that in the case of a child born out of wedlock ( unless the parents had requested joint custody under LAW ) custody was only to be transferred if the mother put the child ’s well - being at risk , was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child .

The applicant filed an extraordinary appeal on points of law . He repeated his complaints about the alleged procedural shortcomings . In particular , he submitted that the court had neither held a hearing to discuss the decisive expert opinion of PERSON nor given him an opportunity to comment in writing . The applicant also reiterated his request for the case to be submitted to ORG .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant ’s extraordinary appeal on points of law . It noted that the courts were not obliged to hold hearings in custody proceedings . The applicant had been given the opportunity to comment on the expert opinion at issue . Moreover , the courts had correctly applied LAW . It had not been shown that the mother put PERSON ’s well - being at risk .

To date , PERSON ’s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings .

The relevant provisions of LAW in the version in force at the material time read as follows :

“ The parents shall care for and raise the minor child , manage its assets and represent it in these , as well as in all other matters ; care , upbringing and asset management also include representing the child in these matters before the law [ in court ] . The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights . ”

“ The mother shall have sole custody of an illegitimate child . Moreover , unless the present provisions stipulate otherwise , the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children . ”

“ ( CARDINAL ) Whenever the parents of a child live in a common household , they may agree that both parents will have custody in the future . The court shall uphold the agreement if it serves the interests of the child . If CARDINAL parent leaves the common household , other than on a temporary basis , § CARDINAL and § CARDINALa shall be applied accordingly .

( CARDINAL ) NORP Whenever the parents do not live in a common household , they can agree that the father shall also have full custodial powers or regarding specific matters in the future , if they present such an agreement to the court indicating the parent with which the child is to stay primarily . If the child stays primarily in the household of the father , the latter must also be assigned full custody . The court shall uphold the agreement if it serves the interests of the child . ”

This version of LAW was introduced by DATE LAW , which entered into force on DATE . Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household .

“ ( CARDINAL ) Whenever the parents put the well - being of a minor child at risk , on account of their conduct , the court will take the steps necessary to secure the interests of the child , irrespective of which party has applied to the court . In particular , the court may withdraw all or part of the custodial rights in respect of the child , ... ”

“ ( CARDINAL ) If the marriage of the parents of a minor legitimate child is dissolved or annulled , the custodial rights of both parents remain intact . However , they may present an agreement to the court DATE even modifying an existing agreement – regarding custodial responsibility . In this connection it may be agreed that CARDINAL parent alone or both parents shall have custody . Where both parents have custodial powers , those of CARDINAL parent may be limited to specific matters .

( CARDINAL ) Where both parents have custody , they must submit an agreement to the court regarding the parent with whom the child is to stay primarily . This parent must always be put in charge of all custodial matters .

( CARDINAL ) The court must approve the agreement of the parents , if it serves the interests of the child . ”

“ ( CARDINAL ) If an agreement in accordance with LAW on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled , or if it is incompatible with the interests of the child , the court must decide which parent shall henceforth have sole custody , if all attempts to reach an amicable solution fail .

( CARDINAL ) NORP If both parents have custody under LAW after their marriage has been dissolved or annulled , and if one parent applies for the withdrawal of that custody , the court must decide which parent shall have sole custody , if all attempts to reach an amicable solution fail . ”

“ The above provisions shall also be applied if the parents of a minor legitimate child live apart , other than on a temporary basis . However , in such a case the court shall decide on custody only upon application by a parent . ”

A recent case concerning similar complaints ( ORG v. GPE , no . CARDINAL , § § DATE , DATE ) contains the following summary of comparative law :

“ CARDINAL . A survey on comparative law taking into account the national laws of a selection of Member States of ORG shows that basically all Member GPE included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock . The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the GPE agreement to exercise joint authority .

NORP However , the solutions in the Member GPE vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect .

In only a limited number of countries do the statutory regulations explicitly address this issue . In a few countries , such as GPE , GPE and GPE , the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non - consenting parent has a right of veto . By contrast , the laws in GPE , GPE and GPE appear to provide for a joint exercise of parental authority even without the GPE consent .

In some Member GPE such as GPE and GPE , while the law itself is not clear on the subject , the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents , whereas for example ORG has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees . A similar approach seems to be followed in GPE .

With the exception of the few countries where a right of veto of CARDINAL parent is explicitly stipulated in national law , the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of CARDINAL of the parents bearing in mind the best interests of the child . All Member GPE emphasise the importance of the child ’s best interest in decisions regarding the attribution of custody . In determining the child ’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particularegards , inter alia , the demonstrable interest in and commitment to the child by the respective parent .

In summary , ... , the survey confirms that while different approaches exist in the Member GPE , the majority provide for paternal participation in custody if the parents were not married to each other , either irrespective of the mother ’s will or at least by court order following an evaluation of the child ’s interests . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a prison sentence in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

On DATE ORG ( tingsrätten ) convicted the applicant of committing a drugs offence with aggravating circumstances and of attempting to commit a drug smuggling offence with aggravating circumstances on DATE , and sentenced him to CARDINAL years’ imprisonment . The court also ordered that he be permanently expelled from GPE .

On DATE the GPE and PERSON of Appeal ( hovrätten ) upheld the judgment of ORG . The applicant did not appeal against the appellate court ’s judgment , which accordingly became legally binding on DATE .

On DATE ORG ( Kriminalvårdsmyndigheten ) determined the period during which the applicant was to remain in prison . It noted that he had begun to serve his sentence on DATE and that DATE of the prison term , having regard to the total period spent in detention , would be on DATE . The ORG further determined that the applicant would be eligible for conditional release on DATE at the earliest .

On DATE ORG ( NORP , hereafter “ the Administration ” ) declared its intention to make a request to the applicant ’s country of origin , GPE , for him to serve the remainder of his sentence there .

The applicant declared on DATE that he did not consent to such a transfer .

On DATE the ORG requested the transfer of the applicant to GPE under LAW ( hereafter “ LAW ) and LAW . On DATE the NORP Ministry of Justice forwarded this request to ORG .

In an order dated DATE ORG decided that the conditions for taking over enforcement of the NORP sentence were met .

On DATE ORG informed its NORP counterpart that the Minister of ORG had approved the transfer of the applicant to GPE , that the competent NORP court had converted his sentence into CARDINAL years’ imprisonment in conformity with NORP law and that he would be eligible for conditional release on DATE at the earliest .

On DATE the ORG made a final decision on the applicant ’s transfer to GPE . It stated that , since the applicant ’s expulsion had been ordered and he would most probably be expelled to GPE , there were grounds under LAW and LAW for the applicant to serve the remainder of his sentence in GPE .

The applicant appealed against the decision to the Government , stating , inter alia , that he would be serving a longer sentence in GPE and that he would be placed in a “ higher security prison ” where the conditions would be much more severe than those in NORP prisons .

On DATE the ORG confirmed its decision .

On DATE ORG , stating that it shared the ORG ’s conclusion , dismissed the applicant ’s appeal .

The applicant was transferred to a NORP prison on DATE .

The applicant was summoned to appear before ORG , sitting as a first - instance court , on DATE . On DATE a single judge decided that the applicant ’s sentence was to be converted into DATE imprisonment under NORP law , to be served under a strict prison regime ( fegyház ) . The effect of the latter condition was that he would become eligible for conditional release after having served CARDINAL of the sentence . The applicant appealed against that decision and requested to serve his sentence under a normal prison regime ( börtön ) , which would have made him eligible for release on parole at an earlier date . On DATE ORG , sitting as a chamber of CARDINAL judges at second instance , dismissed the appeal . The NORP courts did not make any fresh assessment of the applicant ’s guilt but accepted the NORP ORG findings as to the facts of the case .

Section CARDINAL of LAW ( Narkotikastrafflagen ; CARDINAL ) provides that anyone who commits a drugs offence with aggravating circumstances shall be liable to CARDINAL years’ imprisonment . In addition , under LAW ( Lagen om straff för varusmuggling , CARDINAL:CARDINAL ) , which was in force at the material time , the same range of prison sentences applied in respect of drug smuggling with aggravating circumstances . With regard to attempted offences , LAW referred to chapter CARDINAL of LAW ( ORG , FAC ) , section CARDINAL of which stipulates that the punishment for an attempted offence shall not exceed the applicable penalty for a complete offence and shall not be less than imprisonment if the penalty for a complete offence is CARDINAL or more years’ imprisonment .

Pursuant to section CARDINAL of the Term of Imprisonment ( LAW ( NORP om beräkning av strafftid m m , CARDINAL ) , ORG determines the expiry date of the prison term for a person who has started serving a sentence . If the sentence exceeds DATE imprisonment , the ORG must also determine the earliest date of conditional release . It further sets the probationary period , which , in accordance with chapter CARDINAL , section CARDINAL , of LAW , corresponds to the remaining portion of the sentence but can not be DATE .

LAW , section CARDINAL , of the Penal Code provides that a person sentenced to imprisonment shall , as a rule , be conditionally released when he or she has served CARDINAL of the sentence .

Under chapter CARDINAL , section CARDINAL , of LAW , if the sentenced person breaches to a significant extent the conditions for serving the sentence , the date of release on parole can be postponed to DATE , but not by DATE on any CARDINAL occasion .

The preparatory work in respect of the latter provision ( ORG reformer av påföljdssystemet , CARDINAL ) states that “ to a significant extent ” means that release may be postponed only for the more flagrant breaches and that a general assessment of whether the inmate has misbehaved is not sufficient . Incidents such as escape or attempts to escape , refusal to work , contact with drugs , drunkenness and threats or violence towards other inmates or a civil servant are examples of cases entailing a postponement of a prisoner ’s conditional release . No postponement is to be ordered , however , if the breach results in a criminal indictment .

LAW , sections DATE , of the Penal Code provide that certain restrictions and supervision by a probation officer may be imposed during the probationary period on a person who has been conditionally released . If the person breaches his obligations during that period , he may forfeit all or part of his conditional liberty .

The Execution of Criminal Verdicts ( International Co - operation ) Act ( Lag om internationellt samarbete rörande verkställighet av brottmålsdom , CARDINAL ) is based , inter alia , on ORG and its LAW . Under the LAW , an appeal lies to the ORG against a decision of the ORG concerning any issue other than the appointment of officially assigned counsel .

The objectives of the DATE LAW , ORG , No . CARDINAL ) , including its DATE LAW ( ETS No . CARDINAL ) , are to develop international co - operation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons . According to the Preamble to LAW , these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society .

LAW enables the transfer of a sentenced person from “ the sentencing ORG ” to “ the administering State ” provided , inter alia , that the person in question is a national of the administering State ; that he or she ( or in some instances a legal representative ) consents to the transfer ; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering ORG or would constitute a criminal offence if committed on its territory ; and that the sentencing and administering GPE both agree to the transfer .

LAW ( “ Effect of transfer for administering ORG ” ) provides :

“ CARDINAL . The competent authorities of the administering State shall :

a. NORP continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in DATE , or

b. convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions . ... ”

LAW ( “ Continued enforcement ” ) provides :

“ CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .

NORP If , however , this sentence is by its nature or duration incompatible with the law of the administering State , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . ”

LAW ( “ Conversion of sentence ” ) provides :

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

c. shall deduct the full period of deprivation of liberty served by the sentenced person ; and

d. shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . ”

LAW ( “ Sentenced persons subject to an expulsion or deportation order ” ) provides :

“ CARDINAL . Upon being requested by the sentencing ORG , the administering ORG may , subject to the provisions of this LAW , agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison .

LAW ( “ Temporal application ” ) provides :

“ This LAW shall be applicable to the enforcement of sentences imposed either before or after its entry into force . ”

LAW contains a similar provision on temporal application .

ORG to LAW recalls in paragraph CARDINAL that persons may be expelled only subject to the provisions laid down in LAW No . CARDINAL to LAW .

The Additional Protocol entered into force in respect of GPE on DATE and in respect of GPE on DATE .


The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

In DATE the applicant was tried before a jury at ORG on a charge of murdering his girlfriend ( “ T. ” ) at her home .

The court heard that the police were called to T. ’s home in TIME of DATE and found her body in the kitchen . The applicant was lying on the floor with his head resting on her stomach . T. had been stabbed CARDINAL times , most of the wounds being to her left hand . There were CARDINAL deep wounds , one to her face and one to her left breast area .

According to PERSON who carried out the post mortem analysis on behalf of the ORG , either of those wounds was fatal . PERSON also examined stab wounds , CARDINAL in all , found on the applicant ’s body . He advised that there was no evidence of defensive injuries either to the applicant ’s arms or hands . At the same time , PERSON was unable to determine whether or not the wounds were self - inflicted or inflicted by CARDINAL party .

ORG , a friend of the deceased , testified at the trial that the applicant telephoned her shortly after TIME on DATE and exclaimed that :

“ T. ’s dead and I ’m dead . ”

When she arrived at ORG house , the applicant was holding a kitchen knife . He told her :

“ I ’ve killed T. , I ’ve got to kill myself . ”

According to CARDINAL police officers who arrived at the scene , the applicant stated :

“ Well lads , I ’ve done it now but I tell you what , I love her . ”

The police recovered CARDINAL blood - stained carving knives from the kitchen , either of which could have caused the injuries to T. and the applicant .

The applicant was taken to a hospital where he underwent lengthy surgery for his injuries . He remained in intensive care for a period of time and was finally discharged on DATE . He was taken directly to a police station . Although a doctor had expressed the opinion on DATE that the applicant was not fit to be interviewed , a contrary opinion was given by another doctor who examined him on TIME of DATE and found that , although in pain , he was fit to be interviewed . The applicant was subsequently interviewed between TIME and TIME on DATE .

The applicant was cautioned as follows in the presence of his solicitor :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”

The applicant ’s solicitor advised him not to answer police questions and referred to the pain which the applicant was suffering as well as his lack of sleep . On the strength of that advice the applicant made no comment to the questions put to him during the interview . The questions centred on his presence at the deceased ’s house , the presence of blood on his clothes and body , his being in possession of knives when the police arrived at the scene and the injuries which he had sustained . He was also questioned about the defence injuries to the deceased ’s body and the absence of any defence injuries to his own body .

On DATE the applicant was charged with ORG ’s murder .

At his trial the applicant did not dispute that he had stabbed T. However he pleaded that he had acted in self - defence . In the alternative , he relied on the defence of diminished responsibility under the terms of section CARDINAL(CARDINAL ) of the Homicide Act DATE , as well as that of provocation .

As to the latter defences , he relied on the testimony of Dr PERSON , a clinical psychologist , and PERSON and PERSON , both consultant psychiatrists . PERSON stated that , in his opinion , the applicant was suffering from a mild to moderate depressive illness at the time of the incident . In PERSON opinion the applicant was suffering from a moderate depressive illness at the time . They both expressed the view that the applicant was suffering from an abnormality of mind sufficient to impair substantially his mental responsibility . As to the defence of provocation , Dr ORG testified that if the court concluded that the applicant had not got over his mother ’s death and that his condition arose out of inadequacies in his personality , and if it were accepted that the applicant was suffering from mild to moderate depressive illness at the time of the offence , that would be relevant to explaining the applicant ’s reaction and his susceptibility to some types of alleged provocation . PERSON observed that the applicant had real difficulty in processing multiple sources of information , a failing which could be linked to possible brain damage which the applicant sustained in a traffic accident when he was young . The other doctors had earlier stated that their conclusions would be reinforced by evidence of brain damage .

In connection with his plea of self - defence the applicant told the jury that ORG had become argumentative when they went back to her home after TIME spent at a club . T. suddenly began to stab him with a kitchen knife and he defended himself with a fork . T. then attacked him with a bigger knife . He stated in his testimony that he must have taken out a knife from the kitchen drawer during this time . He tried to wrestle her to the floor , but she continued to stab him . He must have lashed out and caused the injury to her face , but did not remember doing so . Eventually she stabbed herself in the chest , telling him that she loved him . He then pulled the knife out of her body . The witness , PERSON , arrived at some stage and he had to smash a glass panel to let her into the house . He told her : “ I think T. is dead . I love her , I ’m going with her . ” With those words , he stabbed himself in the throat and on the chest and lay down on the kitchen floor with his head resting on T. ’s stomach .

When cross - examined as to why he did not give this account of the incident to the police on DATE during interview , the applicant replied that he wanted to answer the questions put to him but :

“ [ that his ] solicitor said I was in no condition to answer . I would have tried my best to answer the questions . I understood what they said . It was fuzzy to me . My recollection was I could n’t recall , but it came back to me in flashbacks . I could n’t remember everything . ... I had to keep trying to remember . I tried to remember the best I could . ... I must have been responsible for it , cos she would n’t be dead . ”

When asked by prosecution counsel what he had remembered on DATE of the interview , the applicant replied that he knew that T. had attacked him , that she had deliberately plunged a knife into him and that he had reacted as he did in self - defence .

He was then asked whether he could have told the police about these matters on TIME of the interview . The applicant replied in the affirmative adding :

“ ... I was advised not to say anything . On ill health , because I was so drugged up from the hospital . Like , I was hurting bad – and they knew I was hurting bad . ”

In the course of the trial , the prosecution invited the judge to leave the jury with the option of drawing adverse inferences from the applicant ’s silence during police interview on the ground that the applicant ’s account of the incident had been fabricated before interview and that he knew that it would not withstand police questioning .

Counsel for the applicant , with reference to ORG judgment in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports , p. CARDINAL ) contended that adverse inferences could only be drawn from an accused ’s silence under caution when the failure to mention facts in interview which are later relied on at the trial can only be explained in terms of their fabrication after the interview .

The trial judge rejected the applicant ’s submission . At the close of the trial the judge in his summing up reminded the jury of the answers given by the applicant under cross - examination . He directed the jury in the following terms :

“ Those were questions asked by [ prosecution counsel ] in cross - examination , members of the jury . You will remember that [ counsel ] was asking them to establish what the defendant said was his state of knowledge at the interview . He was telling you in evidence that at the interview he knew full well that [ T. ] had struck him the first blow , was the aggressor . He knew full well that she had caused a situation where he was acting in self defence . He knew full well that , in the end , she had plunged that knife deliberately into her chest .

Now those are all matters which you heard about in evidence , but which the officers in the interview ... did not hear at all , because when they asked questions directed to these matters the answer was no comment .

You have been rightly told as to what the law is in relation to inferences that you can draw . I told you TIME that I would come to the law on this subject after I had dealt with the answers the defendant had given in his evidence before you as to why he did not mention those facts at the time of the interview . I now , therefore , give you this direction in law . As it is a direction in law , you must take the law from me . The facts , of course , are for you .

The defendant , as part of his defence , has relied on facts which he alleges . Those facts include the fact that [ T. ] attacked him and struck him first , and that what he did was only in self defence . She then plunged the knife into herself . He admits that he did not mention those facts when he was questioned under caution , before being charged with the offence .

The prosecution case is in the circumstances , when he was questioned , he could reasonably have been expected then to mention those facts . If you are sure that he did fail to mention them when he was questioned , and he accepts that , then you decide whether , in the circumstances , they were facts which he could reasonably have been expected then to mention . If they were , the law is that you may draw such inferences as appear proper from his failure to mention these matters at that time .

Failure to mention such a fact can not on its own prove guilt but , depending on the circumstances , you may hold it against him in deciding whether he is guilty . That is , take it into account as some additional support for the prosecution case . You are not bound to do so . It is for you to decide whether it is fair to do so .

There is evidence before you , on the basis of which [ defence counsel ] invites you not to hold it against him that he failed to mention these facts . That evidence I have just reminded you of . It is evidence as to the state of his health at the time , the pain that he was experiencing and that he was acting on legal advice . If you think that that amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not , in your judgment , provide an adequate explanation , or you are sure that the real reason for his failure to mention these facts was that he had no answer , or none that would stand up to cross - examination , then you may hold the adverse inference against him .

Let me warn you as to CARDINAL inference which I direct you is one that you may not draw against him . You may not draw against him an inference that his account was only made up after the interview , and that it is therefore a post interview fabrication . That is because in his trial he was cross - examined . He said at the interview he was fully aware , when the police officers were questioning him , that T. had attacked him , that she had plunged the knife into herself , and that he had been acting only in self defence .

When he gave those answers in the witness box , the prosecution did not challenge that account . They accepted it . The inference they invite you to draw was not that it was made up after the interview . It is a different one . The inference they invite you to draw is that the account was false , and had already been made up on DATE of the interview . But , on DATE , the defendant was simply not prepared to expose the account to critical questioning and examination , which he feared would expose its falsity , in that it would not stand up to questioning and cross - examination at all .

That is the law in relation to inferences . You are entitled to look at the situation in that light , and come to the conclusion whether you will draw inferences against the defendant , or whether you will not . ”

In a separate direction the trial judge also directed the jury that if they were to find the applicant guilty of manslaughter by reason of his diminished responsibility at the time of the offence they had to be satisfied that the applicant was suffering from an abnormality of mind , that that abnormality was caused or induced by disease or injury and that the abnormality “ substantially impaired ” the applicant ’s responsibility for his act . The judge stated with reference to the expert medical witnesses called by the applicant and to the statutory requirements of section CARDINAL(CARDINAL ) of the Homicide Act DATE :

“ You will probably be quite satisfied that the defence has established an abnormality of mind , has established that it was caused by disease . It will be the third element that you will move on to . Abnormality of mind proved to the necessary standard by the defendant . Abnormality induced by disease , the disease of a depressive illness , again proved .

So you would have to go on to the third question , which is whether the defendant ’s mental responsibility was or was not substantially impaired by that abnormality of mind . You will want to consider the views of the experts on that question . But as you have heard , and as is the law , the decision as to whether or not his responsibility was substantially impaired is a matter for you , the jury . ”

The trial judge subsequently advised the jury on the issue of “ expert evidence ” and the approach which they should take to the evidence given by the medical experts called by the applicant . He noted that PERSON had stated under cross - examination that even if all CARDINAL of the requirements contained in the Homicide Act DATE were satisfied , his view depended on what he had been actually told by the applicant after the commission of the offence . The trial judge concluded his summing up by stating that the decision as to whether or not the applicant ’s responsibility was “ substantially impaired ” was a matter for the jury to decide and that they were not bound by what the medical witnesses had said . The jury was told that if there was no evidence to cast doubt on the medical evidence , then they must accept that evidence . The judge then dealt with the issue as to what the defendant had said to the doctors on the basis on which they had formed an opinion . He reminded the jury that PERSON had acknowledged that if that evidence was undermined , the basis for his opinion would disappear .

On DATE the applicant was convicted of murder . He was given a mandatory life sentence .

On DATE the Single Judge refused the applicant ’s application for leave to appeal against conviction .

The applicant ’s renewed application was heard by ORG ) . In his perfected grounds of appeal , the applicant asserted , inter alia , that the trial judge had misdirected the jury by leaving them the option of drawing an adverse inference in circumstances where the prosecution had not alleged that his account at the trial had not been recently fabricated . He maintained in the alternative that the trial judge was wrong to leave the jury the option of drawing adverse inferences in circumstances where the applicant had given unchallenged evidence that he could have given his account of the incident in interview .

The applicant also maintained before ORG that the trial judge had misdirected the jury as regards the medical evidence which supported his defence of diminished responsibility . He referred in particular to his concerns that the judge ’s first directions on this matter were contradictory and that the judge had failed to say what evidence pointed against the medical experts’ opinion .

ORG dismissed the applicant ’s appeal in its judgment delivered on DATE . Lord Justice PERSON stated with respect to the issue of adverse inference :

“ The third suggested ground of appeal arises CARDINAL of the CARDINAL Act with regard to inferences that the jury might draw from the ‘ No comment’ answers in interview . In his summing - up the learned judge reminded the jury of what had happened and in particular of the fact that the defendant ’s solicitor had advised him not to answer questions at that stage . He referred also to the parts of the evidence where the defendant had been asked about this , and in particular he quoted the defendant ’s answers which were as follows : ‘ My solicitor said I was in no condition to answer . I would have tried my best to answer the questions . I understood what they said . It was fuzzy to me . My recollection was I could n’t recall , but it came back to me in flashbacks . I could n’t remember everything.’ He said , ‘ I had to keep trying to remember . I tried to remember the best I could.’ He tried to work out what went on .

He was also asked : ‘ You had the ability DATE to say all of those things to the police , did you not?’ He said he could have said them to the police . He was asked , ‘ You could have said those things?’ , and said , ‘ But I was advised not to say anything . On ill health , because I was so drugged up from the hospital . Like , I was hurting bad – and they knew I was hurting bad’ .

Then the learned judge proceeded to consider the question of inferences , and he gave the jury an extended direction ... He concluded as follows :

‘ When he gave those answers in the witness box , the prosecution did not challenge that account . They accepted it . The inference that [ they ] invite you to draw was not that it was made up after the interview . It is a different one . The inference they invite you to draw is that the account was false , and had already been made up on DATE of the interview . But , on DATE , the defendant was simply not prepared to expose the account to critical questioning and information , which he feared would expose its falsity , in that it would not stand up to questioning and cross - examination at all.’

It was , in other words , not put to the defendant that he had invented or fabricated his account after the interview .

The submission made to us , as it was made to the learned judge in the course of the trial , was that no inference was possible and therefore the jury should have been directed , since the prosecution did not rely upon that inference , that no inference should be drawn by them against the defendant . This had been the subject of a ruling on DATE before speeches began . The judge ruled that it was unnecessary for the defence to call the solicitor who had given the advice because there was no suggestion of recent fabrication , meaning post - interview intervention .

We would hold that the submission which [ prosecution counsel ] made , and which the learned judge upheld , was correct . The inference described by the learned judge to the jury was a possible inference for the jury to draw . It would mean that the defendant already had it in mind to say that he had acted in self - defence , and the question would remain , if that was in his mind , why should he not say so ? We therefore reject that suggested ground of appeal also . ”

As to the issue of how the trial judge dealt with the applicant ’s defence of diminished responsibility , Lord Justice PERSON stated that he had no hesitation in holding that the trial judge ’s directions on the matter were sufficient since he had made it clear to the jury that the doctors had agreed at the trial that their opinions were based on what the applicant had told them after the offence about his mental condition . It was in that context that the jury had to consider whether or not the applicant ’s account to them was truthful .

Section CARDINAL of ORG LAW DATE provides that :

“ CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused –

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

Where this subsection applies ...

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .

Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ”

Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ) adds that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

Further details of the law and practice governing the interpretation of these provisions are set out in the ORG v. the GPE judgment of CARDINAL DATE ( application no . CARDINAL , to be published in the ORG ’s official reports ) .

“ Where a person kills or is a party to a killing of another , he shall not be convicted of murder if he was suffering from such abnormality of mind ( whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing . ”


The applicant , ORG , is a NORP limited liability company . Before the ORG it was represented by PERSON , a lawyer practising in PERSON . The respondent Government were represented by their Agent , PERSON , Director in ORG .

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

In DATE the applicant bought QUANTITY of copper in GPE and paid for it in cash with GPE dollars . During the customs clearance the NORP customs authorities found that the information noted in a bill of consignment was false insofar as the identity of the seller company and the buyer company were concerned . Furthermore , a certain other company was mentioned in the false documents as a forwarding company . The signature of FAC , operational manager of that company , had been forged in those documents . None of these companies had anything to do with the freight . It also appeared that the seller did not have a licence to sell the copper even though such a licence was obligatory when exporting copper from GPE .

The NORP customs issued a prohibition of transfer of the copper and reported the case to the police . It appears that in DATE the NORP authorities announced that the copper had been stolen in GPE . The owner of the applicant company was suspected of aggravated concealment of illegally obtained goods and of having forged the bill of consignment .

On DATE the NORP customs authorities informed the NORP police that the NORP company which purported to sell the copper to the applicant did not exist . The NORP managing director who had supposedly signed the contract and the company from which the NORP seller had purported to buy the copper did not exist , either . As the copper had not been sold legally in GPE and as it had been illegally exported to GPE , the NORP authorities claimed that GPE was its legal owner and that it had to be returned to GPE .

By a letter of DATE , Inspector PERSON from LOC informed the NORP customs that according to the pre - trial investigation carried out into the matter , and on the basis of reports obtained from GPE concerning the identification of the copper , GPE was the legal owner of the copper . He stated that there were no obstacles on the part of the police to returning the copper to its legal owner . The applicant argued that the letter had the character of a decision . The Government argued that the purpose of the letter was to communicate information to the custom authorities .

On DATE , after the pre - trial investigation had been completed , the matter was transferred to a public prosecutor for consideration of charges . On DATE the public prosecutor decided not to prosecute the owner of the applicant company as there was no evidence supporting the allegations that the copper had been stolen or that he had known that the bill of consignment had been forged .

Meanwhile , in DATE and DATE the applicant company instituted civil proceedings before ORG ( käräjäoikeus , tingsrätten ) against ORG and GPE , respectively , requesting that the prohibition of transfer be revoked and that ORG confirm that the applicant company was the legal owner of the copper . In its decision of DATE ORG found that it was not competent to examine the request that the prohibition of transfer be revoked . As to the ownership issue ORG considered , taking into account that no one had ever claimed that ORG was the legal owner of the copper , that it could not be considered a party to the proceedings . Thus , the claims made against ORG could not be examined . Insofar as GPE had claimed the ownership of the copper but had not made any submissions to ORG , the court found that it had no competence to examine an issue concerning a foreign ORG 's ownership rights , being prevented by the international principles concerning the foreign sovereign states ' immunities . It appears that the applicant company appealed and that on DATE ORG ( hovioikeus , hovrätten ) upheld the decision .

Meanwhile on DATE , the applicant company requested that the customs authorities hand over the copper . DATE the forwarding agency informed the applicant company that the copper had been sold on to a NORP company by GPE in co - operation with the NORP customs .

On DATE , the applicant company instituted civil proceedings for public - sector liability for damages under LAW ( vahingonkorvauslaki ; skadeståndslagen ; CARDINAL ) against ORG , claiming the amount of MONEY ( equivalent to ORG CARDINAL ) as compensation for the lost copper . It argued that the ORG was liable for the damage as a police officer , PERSON , when acting as public authority , had overstepped his powers in ordering that the copper be returned to GPE even though there was no proof that it had been stolen .

On DATE the ORG rejected the applicant 's claims , finding that the police officer in question had been entitled to agree with the findings of the NORP authorities that the copper had been stolen , having regard to the fact that the bill of consignment was forged , that the purchase price amounted to CARDINAL of the copper 's real value and was paid in cash , that the company 's representative did not know the identity of the seller 's representatives , that the driver had been instructed to visit the customs authorities at a precise time and that the applicant company 's representatives had not contacted the seller to sort things out following the prohibition of transfer . These circumstances warranted the conclusion that there was something shady and secret about the purchase . The wording of the police officer 's communication to the customs indicating that there was no obstacle to returning the copper to GPE did not , however , decide the question of the ownership of the copper . As the copper had most probably been stolen in GPE , the applicant company had , in accordance with LAW ( rikoslain voimaanpanemisesta annettu asetus , förordningen om införande av strafflagen ) , been obliged to return the copper to its legal owner without compensation . In accordance with the said provision , the applicant was entitled to seek compensation from the seller of the copper or from the person who had stolen it . Insofar as the ORG had argued that the applicant company , prior to commencing an action for compensation , should have appealed against the customs ' decision with a view to minimising any possible damage , ORG noted that the applicant had no interest in demanding a written decision as to the refusal to customs clear the copper delivery and to appeal against such a decision , as the company had considered that the customs ' actions so far had been justified .

On DATE ORG upheld ORG judgment .

On DATE ORG refused the applicant leave to appeal .

Section CARDINAL ( CARDINAL/CARDINAL ) of LAW reads , in so far as relevant , as follows :

“ If a dispute arises concerning an item that has been stolen , ... from its previous holder , and if the one who has become the holder of the item proves that he received it in good faith , the holder of the item in dispute shall be obliged to hand it over without compensation and may seek compensation from the person he received the item from or from the person through whose offence he received it . ”

According to the amended section CARDINAL ( CARDINAL/CARDINAL ; as in force at the relevant time ) of LAW ( tullilaki , tullagen ) , a decision of the district customs office could be appealed against to ORG . According to section CARDINAL of LAW , unless otherwise provided , a decision of ORG may be appealed against to ORG in accordance with the provisions of ORG ( muutoksenhausta hallintoasioissa annettu laki , lagen om ändringssökande i förvaltningsärenden ; CARDINAL/CARDINAL ) , as in force at the relevant time .

According to section CARDINAL ( f ) of LAW ) , as in force at the time , a person had the right of possession of goods if he was their importer , exporter or owner or otherwise had possession or control over the goods .

According to section CARDINAL ( CARDINAL ) of LAW ( CARDINAL/CARDINAL ; tulliasetus , tullförordningen ) , as in force at the time , the customs authorities had to ensure , to the extent possible , that the goods were delivered to the person who has a lawful right of possession in respect of them .

According to chapter CARDINAL , section CARDINAL of LAW a person , who has suffered injury or damage owing to an erroneous decision by a state or municipal authority and without an acceptable reason has failed to appeal against the said decision , shall not be entitled to damages from the state or the municipality for injury or damage that could have been avoided by appealing .


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

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

DATE and DATE the applicant performed military service near the GPE nuclear tests site . On CARDINAL DATE ORG of GPE issued the applicant with a certificate confirming that he had been exposed to radioactive emissions during his military service .

In DATE and DATE the applicant unsuccessfully applied to various NORP authorities to be granted the status of a victim of the GPE nuclear tests .

In DATE the applicant lodged a civil action against ORG of ORG ( “ the Agency ” ) . He challenged the refusal of the ORG to issue him with a certificate for citizens who had been exposed to radioactive emissions as a result of nuclear tests on the GPE test site ( “ the GPE certificate ” ) .

On DATE the ORG of GPE granted the applicant ’s action and ordered the ORG to provide him with the GPE certificate confirming his entitlement to certain social benefits . The ORG did not appeal against the judgment and it became final on DATE .

On DATE the court bailiffs opened enforcement proceedings .

The ORG did not execute the judgment and requested the NORP Regional prosecutor ’s office to bring an application for supervisory review .

On DATE the ORG prosecutor ’s office ordered the court bailiffs to suspend the enforcement proceedings and lodged an application for supervisory review ( протест в порядке надзора ) with the Presidium of ORG . The prosecutor submitted that the area where the applicant had served was not in the NORP list of areas that had suffered from radioactive emissions and the NORP legislation could not be applied by analogy .

On DATE the applicant received a court summons advising him that the hearing on the prosecutor ’s complaint would take place on DATE . The applicant submits that on DATE he filed written observations , but they were not accepted and he was promised that he would be given time to make oral submissions .

On DATE the ORG of ORG held a hearing . According to the applicant , his representatives were not given an opportunity to speak before the court and the written memorandum was only accepted by the court registrar after the hearing finished . The Presidium of ORG , by way of supervisory review , quashed the judgment of DATE on procedural and substantive grounds and remitted the case for a new examination .

On DATE ORG of GPE made a new determination of the applicant ’s action against the ORG and dismissed it as having no grounds in the domestic law .

On DATE ORG of ORG upheld , on the applicant ’s appeal , the judgment of DATE .

The PERSON “ On the social protection of citizens who had been exposed to radioactive emissions as a result of nuclear tests on the GPE test site ” ( no . CARDINAL of CARDINAL DATE ) , which was in force at the material time , provided that certain benefits and compensation available to the GPE victims should be extended to those citizens who had lived in the area surrounding the GPE test site and their descendants of the first and second generations . Articles CARDINAL and CARDINAL specified that the scope of the benefits and compensations should be determined by reference to a person ’s exposure to radioactive emissions . These benefits and privileges included , in particular , free medical treatment , free medical insurance , housing maintenance subsidies , special payments to offset the loss of potential earnings , preferential treatment under labour laws , etc .

Under LAW certificates were the documents confirming a person ’s entitlement to benefits and compensations set out in the LAW .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE .

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

On DATE the applicant ’s wife ’s car was stolen . PERSON contacted the applicant and asked for money for return of the car . The applicant reported this to the police and on DATE , under instructions from police officers , he gave the money to PERSON and recorded the conversation on audio tape . On DATE PERSON was arrested . On DATE PERSON was charged with theft and extortion , mainly on the basis of the aforementioned evidence . On DATE the criminal case was referred to the court .

Meanwhile , on DATE ORG Office brought charges against the applicant concerning repeated misappropriation .

On DATE the applicant entered a plea of guilty and confirmed that the examination of evidence was not necessary . He explicitly refused the assistance of defence counsel . On DATE the criminal case was referred to the court .

CARDINAL On DATE , during the hearing , the applicant confirmed that defence counsel and examination of witnesses were not necessary . ORG found the applicant guilty and sentenced him to DATE and QUANTITY months’ imprisonment . The applicant was taken to ORG from the courtroom .

On DATE ORG examined the applicant ’s appeal and upheld the judgment of the lower court . According to the records of the hearing the applicant said in his statement to the court that he had been beaten up on his way to the prison and that it had happened because of his previous cooperation with the police .

NORP In his appeal on points of law of DATE the applicant complained about the severity of the sentence . He also mentioned his cooperation with police , and that as a result he had suffered bodily injuries in prison .

On DATE the applicant asked the Prosecutor General to reduce his final sentence . He mentioned , inter alia , that because of his cooperation with the police he had encountered problems in prison , specifically that his nose had been broken and he had also sustained other body injuries . In DATE he sent a similar request to ORG .

On DATE ORG dismissed the applicant ’s appeal on points of law .

On DATE , at the request of ORG , ORG reduced the applicant ’s sentence by DATE , owing to the fact that he had helped to disclose a serious criminal offence .

On DATE the applicant was released from prison after serving his sentence .

The applicant arrived at FAC on DATE and was placed in a filtering cell with CARDINAL other inmates .

According to the applicant , during TIME CARDINAL DATE he was physically and sexually assaulted by his fellow inmates : his nose was broken and he was raped . He complained about this to the Central Prison doctor , who rendered medical assistance but refused to draw up a medical report in this connection ; similarly , a prison guard refused to initiate an investigation into the assault .

On DATE he was transferred to cell DATE , which provided services to the prison canteen .

According to a report drawn up by the head of the medical unit of ORG , on DATE the applicant was examined by FAC doctor , who recorded the applicant ’s complaints about inflammation of the duodenum . On DATE the applicant had a prophylactic examination by the same doctor , who assessed him as in good health and fit for work in the prison canteen .

On DATE the applicant asked ORG to transfer him to specialised detention facilities in FAC , arguing that he had been receiving threats from those he had testified against .

On DATE an officer of ORG of ORG met the applicant . According to the report drawn up by the officer during the meeting the applicant complained about possible threats , in that the people he had testified against were known to some of his fellow inmates . The applicant denied having any problems in LOC where he was employed in the canteen .

Further , according to the same report , in a telephone conversation on DATE a police officer in charge of PERSON ’s criminal case confirmed that the applicant was cooperating , and acknowledged that the applicant might therefore encounter problems in prison , but he refused to confirm this in writing . With the agreement of the deputy head of ORG it was decided to transfer the applicant to ORG . The report also stated that on DATE a representative of ORG had advised the head of ORG by telephone to take the applicant “ under control ” .

On DATE the applicant was transferred to FAC .

On DATE the applicant complained to the ORG ( ORG at that time ) that he had been ill - treated on DATE in FAC . At the ORG ’s request in DATE ORG requested information from ORG about the applicant ’s situation there .

On DATE the head of ORG reported that when the applicant arrived his personal file did not contain any indication that he required isolation from other inmates , and that he had not raised any complaints about physical ill - treatment while detained in FAC . It was also noted that according to the ORG internal classification the applicant was “ kreisais ” ( someone who had allegedly , inter alia , cooperated with the law enforcement authorities ) .

On DATE the head of FAC informed ORG that the applicant had never complained about the incident of DATE . The letter contained statements from CARDINAL of the CARDINAL fellow inmates with whom the applicant had been placed on DATE ; they all denied any ill - treatment of the applicant .

Relying on the above reports , on DATE ORG informed ORG that there was no information about the applicant ’s ill - treatment .

NORP In response to the request of ORG , on DATE ORG stated that they had not received any complaints from the applicant concerning ill - treatment in LOC on DATE or in any other prison . The letter confirmed that by virtue of section CARDINAL of LAW would have decided on the opening of criminal proceedings if it had received a complaint from the applicant of physical or sexual ill - treatment or a refusal by the prison administration to review the complaint .

Aiming to ensure that the applicant attended PERSON ’s trial , on DATE the prosecutor in charge asked ORG to transfer the applicant from ORG to Rīga . In her letter the prosecutor noted that PERSON had been detained in LOC and that his criminal case contained compelling information that PERSON had previously intimidated the applicant . Therefore ORG was asked to transfer the applicant to the specialised detention facilities in LOC . The prosecutor referred to a report addressed to ORG which confirmed the attempt to intimidate the applicant .

It appears that on CARDINAL occasions the applicant had been transferred to FAC in GPE in order to attend PERSON ’s trial .

In DATE and DATE ORG dismissed the applicant ’s requests to allow him to continue serving the rest of his sentence in LOC .

Sections CARDINAL and CARDINAL of the Criminal Law provides criminal sanctions for rape and other forms of sexual assault , the severity of sanctions varying according to the qualification of the offence .

Section CARDINAL of the Law of Criminal Procedure provides that the official authorised to perform criminal proceedings has a duty in each case where the reason and grounds for initiating criminal proceedings have become known , to initiate proceedings and to direct them towards fair regulation of the criminal law as set out in LAW .

By virtue of section CARDINAL parts CARDINAL and CARDINAL , CARDINAL reason for initiating criminal proceedings is information which indicates that a criminal offence has been committed , if such information has been submitted to , or acquired by , an investigating institution ( izmeklēšanas iestāde ) , ORG , or the court . The information referred to above may be submitted , inter alia , by a person who has suffered as a result of a criminal offence ; by controlling and supervising institutions ; by medical practitioners or institutions ; or by any natural or legal person regarding possible criminal offences from which that person has not directly suffered .

Section CARDINAL provides that criminal proceedings may be initiated if there is an actual possibility ( reāla iespēja ) that a criminal offence has been committed . Criminal proceedings may also be initiated if the information received described circumstances relating to a criminal offence which may have taken place and the examination of such information is possible only by methods applicable to criminal proceedings .

Section CARDINAL sets out the responsibility for instituting investigations and those of ORG and the courts in the initiation of criminal proceedings . In particular , an investigator has a duty to initiate criminal proceedings , within his or her competence , if any of the factors referred to in LAW of this PERSON are present . A public prosecutor may send materials for examination to an investigating institution or commence criminal proceedings within the scope of his or her competence , in connection with any reason referred to in section CARDINAL of this PERSON . Besides , a decision of a public prosecutor regarding the initiation of criminal proceedings , and the materials related to such decision , shall immediately be sent to an investigating institution , except for particular cases referred to in LAW , paragraph CARDINAL of this PERSON .

By virtue of sections CARDINAL and CARDINAL the ORG shall carry out pre - trial criminal proceedings and investigate criminal offences committed by detained or convicted persons , or by employees of ORG in places of imprisonment .

According to part CARDINAL of the transitional provisions the terms izziņas iestāde ( institution of an inquiry ) and izziņas izdarītājs ( person presiding over an inquiry ) used in other legal enactments shall hereinafter be understood as the terms izmeklēšanas iestāde ( investigating institution ) and izmeklētājs ( investigator ) .

According to section CARDINAL , an administrative act is a legal instrument issued by an institution in an area of public law . It further specifies that decisions regarding , inter alia , criminal proceedings and court adjudications , are not administrative acts .

The other relevant parts of ORG as applicable at the material time concerning the right to challenge administrative acts and actions of public authorities are summarised in PERSON v GPE ; no . CARDINAL , § § DATE , DATE , not yet final .

The relevant provisions of the PERSON on ORG applicable at the material time are summarised in PERSON v. GPE , no . GPE , § DATE , DATE . In particular , according to section CARDINAL a prosecutor shall supervise the execution of sentences of deprivation of liberty and the places of that detention .

Section CARDINAL provides that a prosecutor shall , in accordance with the procedures prescribed by law , carry out an examination if the information received contains assertions regarding either a crime or violation of the rights and lawful interests of , inter alia , detainees .

According to section CARDINAL paragraph CARDINAL ORG is an institution of an inquiry ( izziņas iestāde ) in criminal proceedings instituted to investigate offences committed by detained or convicted persons . By virtue of section CARDINAL paragraph CARDINAL the head of ORG shall have the power to launch an investigation in such criminal proceedings .

According to section CARDINAL the special protection measures specified in this law are ensured by the following institutions : a specially authorised division of ORG ; a specially authorised department of ORG and at the place of imprisonment DATE a specially authorised division of the place of imprisonment , as well as other persons performing investigative operations , if , in accordance with the instructions of ORG , it is necessary to ensure special protection .

According to section CARDINAL the reasons of applying special protection shall be an actual threat to the life , health or other legal interests of a person , expressed imminent threats or other sufficient grounds indicating that the danger may be imminent owing to a person ’s participation in criminal proceedings . The special protection shall be appplied based on either a written request of a person testifying in criminal proceedings and a proposal of the investigating authority ; or the initiative of a court , if a reason for applying special protection has arisen during the course of adjudication ; or a written submission of another person to whom the special protection has been assigned .

The report of CARDINAL DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( “ the ORG ” ) from CARDINAL to CARDINAL DATE notes the following :

“ DATE . During the DATE visit , the delegation examined several internal investigation files on inquiries conducted by ORG into serious incidents of inter - prisoner violence at FAC and FAC . The delegation also had consultations with the competent prosecutor in Rīga .

It came to light that , in several cases , no criminal investigations had been initiated , despite the fact that medical evidence consistent with allegations of inter - prisoner violence was available . In this connection , the delegation was informed that , as a rule , instances of inter - prisoner violence were only reported to the prosecutor if the victim made explicit allegations to this effect in his written statement to ORG . In this connection it appeared to be immaterial whether or not the prisoner concerned had previously made such allegations to the doctor and the allegations had been recorded in his medical file .

It is also of concern that , even when the prosecutor had become aware of serious cases of inter - prisoner violence , he had not always initiated investigation not taken a formal reasoned decision on the matter . In fact , ORG investigation file was simply returned to the prison , without any record being kept that the prosecutor had examined the case .

The ORG recommends that the existing procedures be reviewed in order to ensure that whenever injuries are recorded by a doctor which are consistent with allegations of inter - prisoner violence , the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him .

More generally , the ORG calls upon the NORP authorities to develop strategies with a view to addressing the problem of inter - prisoner violence in the establishments visited ( and , as appropriate , in other prisons in GPE ) .

In the light of the above , the ORG calls upon the NORP authorities to take immediate steps to review throughout the prison system the role played by ORG , in the light of the remarks made above ... .

In particular , steps should be taken to ensure that :

- criminal investigations into instances of ill - treatment by staff as well as inter - prisoner violence are no longer carried out by ORG . Such investigations should be conducted by a body which is independent of the establishment concerned , and preferably of the prison system as a whole .

- prisoners are allocated / transferred to cells under the responsibility of the Director of the establishment concerned ” .

At FAC , neither the complement of qualified nursing staff nor the psychiatric / psychological services had been strengthened , despite the specific recommendations made after the DATE visit and reiterated after DATE visit . ....

In the light of the above , the ORG reiterates its recommendation that steps be taken , as a matter of priority , to ensure that :

- the complement of qualified nursing staff at FAC and FAC is increased ;

- every newly - arrived prisoner is properly interviewed and physically examined by a medical doctor ( or a fully qualified nurse reporting to a doctor ) as soon as possible after his admission to FAC ; save for exceptional circumstances , the interview / examination should be carried out on DATE of admission ;

DATE . In both establishments ( including ORG ) , the examination of medical files revealed that the injuries observed ( upon admission or after violent incidents within the prison ) were frequently not recorded in detail , and that no additional information was given as to the causes of the injuries sustained .

The ORG must therefore reiterate its recommendation that steps be taken at FAC and FAC ( as well as in other prison establishments in GPE ) to ensure that the record drawn up after a medical examination of a prisoner , on arrival or after a violent incident within the prison , contains :

( i ) a full account of statements made by the prisoner concerned which are relevant to the medical examination , including any allegations of ill - treatment made by him ;

( ii ) a full account of the objective medical findings based on a thorough examination ;

( iii ) the doctor ’s conclusions in the light of ( i ) and ( ii ) . In his conclusions , the doctor should indicate the degree of consistency between allegations made and the objective medical findings ; these conclusions should be made available on request to the prisoner concerned and his lawyer .

Further , whenever injuries are recorded by a doctor which are consistent with allegations of ill - treatment made by a prisoner , the record should be immediately brought to the attention of the relevant prosecutor ( see also paragraph CARDINAL ) ” .

In response to the above report ORG referred to an instruction of DATE adopted by ORG . According to the instruction , in case there has been an incident of ill - treatment in a prison establishment , the prison doctor has to examine the detainee and to inform the administration of the prison . The latter has to inform the ORG ’s office and carry out an investigation according to the procedure established by law .

The report of DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( “ the ORG ” ) from CARDINAL DATE to DATE notes :

“ DATE . ... As was the case during all previous visits , the delegation observed a number of shortcomings in the manner in which injuries were recorded at FAC . First of all , several newly - arrived prisoners met by the delegation displayed visible injuries on various parts of the body ( including on the face ) , but no injuries at all were recorded in the medical file , despite the fact that these injuries had apparently been sustained prior to admission . Further , although objective medical findings relating to injuries were recorded in other cases , they were frequently not accompanied by an account of the statements made by the persons concerned which are relevant to the medical examination . In particular , medical records frequently failed to note the prisoner ’s account of the origin of these injuries ( or to note if the person concerned had refused to reply to the relevant questions asked by the doctor ) as well as the doctor ’s conclusions in the light of the objective findings and the prisoner ’s account . Further , at FAC , the delegation found instances where visible injuries had not been recorded at all in the ORG medical files ( including after violent incidents in the prison ) .

The ORG must recommend once again that steps be taken at FAC and FAC , as well as in all other prisons in GPE , to ensure that the record drawn up after a medical examination of a prisoner , on arrival or after a violent incident within the prison , contains :

( ii ) a full account of objective medical findings based on a thorough examination ;

( iii ) the doctor ’s conclusions in the light of ( i ) and ( ii ) . In his conclusions , the doctor should indicate the degree of consistency between any allegations made and the objective medical findings ; these conclusions should be made available to the prisoner and his lawyer .

Recommendation Rec ( CARDINAL of ORG to member states on the protection of witnesses and collaborators with justice .

“ II . General Principles

Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation .

While respecting the rights of the defence , the protection of witnesses , collaborators of justice and people close to them should be organised , where necessary , before , during and after the trial .

Acts of intimidation of witnesses , collaborators of justice and people close to them should , where necessary , be made punishable either as separate criminal offences or as part of the offence of using illegal threats ” .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG , GPE .

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

On DATE , the applicant , owner of a van , received a notice from the police stating that his vehicle had been photographed speeding at QUANTITY in a restricted zone on DATE . He was asked to name the driver .

A final reminder was sent to him on DATE allowing him a further DATE to provide the required information , failing which he would be prosecuted for the additional offence of failing to give the name and address of the driver , contrary to section QUANTITY of LAW DATE .

He replied stating that he did not know who the driver was and that he did not believe it was his van in the photograph .

On DATE , the applicant received CARDINAL summonses to appear before ORG , CARDINAL stating that he was the driver of the van and the second that he had failed to give information as to the driver of the vehicle .

On DATE , ORG acquitted the applicant of being the driver of the vehicle alleged to have been exceeding the speed limit . It convicted him of failure to give information about the driver . He was fined ORG , with his licence to be endorsed with CARDINAL penalty points .

The relevant domestic law and practice is set out in O’Halloran and PERSON the GPE [ ORG ] , ORG . ORG , § § DATE , ORG DATE ...