The applicant , Mr PERSON , is an NORP passport - holder but he also claim to be an NORP citizen . He is presently detained in GPE for deportation to GPE . He was represented before the Court by Ms Nyblom , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

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

The applicant came to GPE on DATE and DATE he lodged an asylum application in the name of PERSON . He claimed that he was an NORP citizen and that he had no passport or other travel documents . The only identification document he was able to produce was an NORP military book .

In the initial inquiry the applicant stated that he was born in GPE , GPE , but before travelling to GPE he had lived in GPE . He had left GPE when the intelligence service was looking for him . He had been accused of collaboration with the Daawa party and imprisoned in GPE in DATE . He had fled from GPE because he did not feel safe due to the unstable political situation . He further stated that he did not know where his wife and children were .

On DATE ORG in GPE informed ORG that some visitors had submitted CARDINAL pages of the applicant ’s NORP passport and had stated that the applicant had been an NORP national for DATE and that his family lived in GPE . When confronted with this information on DATE the applicant gave other reasons for his request for a residence permit .

At the outset he answered that he had visited GPE and that if his wife was there she must have moved there recently . He further stated that in addition to NORP citizenship he also held NORP citizenship because his father had been an NORP national . The applicant claimed that he had lived in GPE his whole life and that he possessed an NORP passport , which would be sent to him . However , he never produced any such document to the NORP authorities .

The applicant subsequently maintained that he could not go to GPE . He also claimed that he had not been politically active or committed any crime in GPE . Then he alleged that he had lived in GPE until DATE when he moved to GPE with his wife and family . They lived in GPE until DATE when the war between GPE and GPE broke out . His wife and children arrived in GPE at DATE or DATE and they are still living there . The applicant , however , “ commuted ” between Chaklawa in GPE and GPE before he left for GPE . He finally stated that he could not return to GPE because he had committed adultery with his sister - in - law and his brothers - in - law had initiated legal proceedings against him on the grounds of adultery . He claimed that he had left GPE when he was summoned to the court because he feared that he would be sentenced to inhuman punishment . In this respect he asserted that the penalty for adultery in GPE was stoning to death .

On DATE ORG rejected his request for a residence permit and a working permit because of his lack of general credibility . At the same time ORG ordered his refusal of entry and that the applicant would be sent to GPE unless he showed that he would be received in another country . According to the applicant ’s own statements ORG drew attention to the fact that the applicant had departed from GPE airport holding a valid NORP passport and that he had not been politically active in GPE . He had thus been allowed to leave the country which indicated that he was not of special interest to the NORP authorities . Finally , ORG noted that NORP law placed exacting demands on the testimony of witnesses in order to convict a person of adultery . The applicant had , however , stated that there were no witnesses of the act . In ORG opinion , the applicant ’s assertion only to the effect that he had committed adultery was not a sufficient ground for granting him residence permit . It found no reasons to trust his assertion that he would be persecuted if returned to GPE .

The applicant appealed to ORG ( hereinafter “ the ORG ” ) . In his appeal he stated that the reason why he had first denied being an NORP national was his fear of being expelled to GPE as he had committed adultery in that country . The applicant further claimed that the QUANTITY brothers of the woman in question had reported him and had also declared themselves as witnesses . In support of his claims he invoked a document in LANGUAGE , which he alleged was a summons to appear before a court on DATE . He further submitted CARDINAL warrants for his arrest dated DATE , which he alleged that he had received from a friend in GPE who had visited the applicant ’s closest neighbour in GPE . He finally asserted that a friend would send a judgment to him .

In observations dated DATE the applicant claimed that there had been a misunderstanding regarding the above - mentioned judgment . The document he had now received from his friend , who had bribed an official at the police , was a court request to apprehend him immediately and make him answer to the charges of adultery . CARDINAL named persons had reported him for the crime and declared themselves as witnesses . According to the applicant the document proved that a judgment concerning adultery would be rendered .

ORG had the above mentioned documents translated into NORP and the translations were sent to the applicant on DATE .

On DATE the applicant submitted , inter alia , that it was clear that he was wanted by the police in GPE for adultery , that he was accused of immoral behaviour and an improper relationship with his sister - in - law and that it appeared from CARDINAL of the documents that a judgment existed . The sentence for adultery was , claimed the applicant , stoning to death .

By decision of DATE ORG rejected his appeal . ORG shared the opinion of ORG that the applicant had given contradictory information and found that the explanations provided for this were unconvincing . It also noted that NORP law placed very exacting demands on testimony of witnesses in order to convict a person of adultery .

As regards the documents , which according to the applicant proved that he was summoned to court and would be apprehended and arrested for adultery , ORG observed the following . The applicant had stated that the summons had been delivered to his neighbours and that a friend of his received it from them . Moreover , he had affirmed that a court had rendered a judgment and that it would be sent to him . Later the applicant had indicated that this was a misunderstanding and that the document he had received was a request from the court to apprehend him and that he had obtained the document from a friend who had bribed the police . He had then claimed that a judgment existed because it was stated in one of the documents that “ in order to enforce this judgment according to NORP criminal laws the accused is to be transported urgently to this court house ” . ORG also found that the applicant had submitted contradictory information regarding the documents and that he had not given an acceptable explanation for this . It appeared from the translation that CARDINAL of the documents , named “ Warrant of arrest ” and dated DATE , was issued by ORG and addressed to the Commander of the police within ORG . It was further observed in the warrant : “ in accordance with a report made by the plaintiffs , Mr PERSON and Mr PERSON , against PERSON , accused of immoral behaviour and an improper relationship with his sister - in - law , who are both married and have children . The court finds this proved . ” Another document , ORG noted , also named “ Warrant of arrest ” and issued on DATE , was signed by the interrogator / assisting prosecutor at the office of the public prosecutor . ORG found it remarkable that the applicant had been able to get access to these documents as they seemed to be part of a correspondence between authorities . It further questioned the wording and the contents of the documents and especially noted that in CARDINAL of the documents , the summons application , the office of the public prosecutor was mentioned , an office that was abolished in GPE in connection with a reform of the court system in DATE . For these reasons ORG gave no credence to the documents in question .

In DATE , in the course of the proceedings before the ORG , the applicant submitted to it CARDINAL additional documents . The first was a letter from ORG ( in exile ) , according to which an investigation conducted by the association showed that proceedings eventually had been initiated against the applicant on account of adultery , but that no judgment had been delivered . The other document submitted by the applicant was an e - mail from a NORP law professor of NORP origin , stating that he had no reason to put in question the authenticity of the arrest warrants , noting that they were issued by an investigating judge carrying out tasks previously done by public prosecutors . However , he could not express any view on the possibility of getting access to such documents . He also assumed that the assessment of ORG had been based on a non - professional translation of these documents .

Following the ORG ’s indication under LAW , ORG decided on DATE to stay the enforcement of its decision of CARDINAL DATE refusing the applicant entry into GPE and ordering his expulsion to GPE .

The CARDINAL documents ( the alleged summons application and the CARDINAL warrants of arrest ) the applicant has invoked in support of his claim have been examined by legal experts at the request of ORG in GPE . They concluded that the documents were not authentic and that the alleged case regarding adultery does not exist . An inquiry to the NORP court designated in CARDINAL of the documents revealed that the case in question concerned cheque fraud and not immoral behaviour or adultery . According to the ORG , the kind of court mentioned did not even handle cases of adultery .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lived in GPE .

On DATE the ORG of the Voronezh Region granted the applicant ’s claim against ORG and awarded her MONEY ( RUR ) for pension arrears .

The judgment was not appealed against and entered into force . On DATE a writ of execution was issued .

The judgment was executed on DATE .


The applicant was the technical director , technical and economic adviser and special representative and agent of company X.

On an unspecified date , preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed in the course of his functions in DATE .

On DATE ORG attached to ORG requested that the applicant be either remanded in custody , or placed under house arrest , or prevented from exercising his functions as director of company X , on the ground that there was a serious indication of his guilt resulting from the statements of CARDINAL witnesses and from the result of an expert opinion carried out in the course of the preliminary investigations . The content of the statements and of the expert opinion had been corroborated by further documents . The applicant appeared to have commissioned Y , the head of urban planning of the Brindisi local authority , as chief engineer for the building of a road ( “ Strada dei Pittachi " ) and as co - director of works for the construction of the new district detention centre at GPE . These appointments were alleged to be a “ payment ” from company X to Y for delivering false declarations in the approval procedure relating to the projects which company X had submitted for the road - works .

ORG further explained that , given that the applicant maintained his functions in company X , there was a risk that he would commit further similar offences .

On DATE the Judge for Preliminary Investigations of Brindisi issued a warrant of arrest against the applicant on the ground that the indications of guilt which existed against him , as indicated in ORG request of DATE , were serious .

As regards the grounds for precautionary measures , the judge recalled that , as indicated by ORG in his above request , the applicant had maintained his position as ORG of company X. The judge considered inter alia that , in order to decide what precautionary measure was more suitable in that case , he had to take into account the nature of the conduct under examination . The worst aspects of the applicant ’s conduct were the failure to observe the rules of the administrative procedure and the waste of public funds , coupled with the breach of the rules on public tendering . This conduct had resulted in a project which showed no respect for the environment , which was very serious , given that “ the chaotic and unliveable character of NORP cities is not caused solely by the spreading of common crime but primarily stems from the urban growth pattern ( general lack of any effective regulation and resultant lack of adequate public areas for parking , gardens and relief roads ; this unease is tangibly felt in all parts of GPE ) . Abuses relating to management and spending of public funds like those committed in FAC project must be considered just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of MONEY at gunpoint or with the help of accomplices , as often happens in GPE . Given the legislator 's intention to counter the risk to society in such cases by the most stringent precautionary measure , i.e. detention in prison , this is even more justified in the far more serious case under investigation and is to be considered appropriate and necessary albeit not peremptorily stipulated by LAW paragraph of LAW ( “ ORG ” ) among the circumstances where detention is mandatory . Otherwise the difference in treatment would be unjustifiable , and therefore unjust ” . The judge concluded that he was thus firmly convinced that in cases like the CARDINAL under consideration , “ where each act ( a ) is aimed at the pursuit of reprehensible private interests and ( b ) is committed by persons who do or should bear a high reputation because of the powers and/or responsibilities which they exercise , the measure of prison detention must be applied ( not the measure of house arrest which is very convenient - especially for someone like the accused who is used to living indoors - but not sufficiently deterrent ) . ”

The applicant was arrested on DATE .

On DATE he filed with ORG an application for release from detention or , failing that , house arrest , arguing that there was no “ serious indication of guilt ” within the meaning of Article CARDINAL of the Code of Criminal Procedure , and that there were no grounds whatsoever for precautionary measures .

CARDINAL

Finally , the applicant inter alia drew the court ’s attention to the established case - law to the effect that , when a precautionary measure is considered a significant period of time after the committal of the offence , account must be taken of the accused ’s conduct after the committal of the offence . Insofar as he was concerned , in DATE that had elapsed after the offence of which he was accused , he had not been accused or charged with any similar or different offence .

Following a hearing on DATE , the court in a decision of CARDINAL DATE held that there undoubtedly existed a “ serious indication of guilt ” against the applicant . It further held that “ there undoubtedly was a danger of his committing further crimes within the meaning of LAW ORG considering how the accused succeeded in unlawfully attaining the economic ends identified ” . It thus rejected his application for release . However , given that the applicant had a clean record , the court upheld his subsidiary request and placed him under house arrest .

On DATE the applicant appealed on points of law against the refusal to release him , on the ground that his detention on remand was in breach of Articles CARDINAL and CARDINAL ( c ) ORG .. He stressed in particular that ORG had not given any reasons for the application of precautionary measures within the meaning of LAW ( c ) ORG

On DATE the applicant filed a request with the Brindisi Judge for ORG to revoke the order for his being kept under house arrest , as he had resigned from his office of technical director of company X.

This application was rejected by the Judge for Preliminary Investigations on DATE on the grounds of the short period of time elapsed since the application of the measure , which moreover had been changed into a more lenient one , and of the seriousness of the accusation . The judge explained that the applicant could have the possibility of using his experience and professional skills either on his own account or in the employment of another company .

On DATE , the applicant appealed to ORG against this decision . He underlined that the previous decisions had been based on the need for prevention of crime , and in particular on the circumstance that the applicant had maintained his position in company X. Accordingly , now that he had resigned , such need did not exist any more .

In a decision of DATE the court pointed out that all previous decisions on the applicant ’s detention were based on LAW ) . It held that , given that the applicant had resigned and in the light of the time already elapsed since the application of the measure and of the personality of the accused , there were no longer any grounds for his detention on remand . It accordingly ordered his immediate release .

On DATE the applicant withdrew his appeal on points of law of DATE , which was acknowledged on DATE .

By a judgment of DATE , ORG acquitted the applicant on the ground that the facts had not occurred ( “ perché il fatto non sussiste ” ) . This judgment became final on DATE .

Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( “ ORG ” ) set out the conditions for precautionary measures ( misure cautelari ) , namely the existence of serious evidence of guilt ( “ gravi indizi di colpevolezza ” ) in respect of a crime punishable with life imprisonment or detention for DATE .

Article CARDINAL ORG provides in addition that precautionary measures can be ordered for the following reasons : prevention of interference with the course of justice ( LAW ( a ) ) , danger of flight ( CARDINAL ( b ) ) and prevention of crime ( CARDINAL ( c ) ) .

Article CARDINAL ( c ) reads as follows : ( precautionary measures are ordered ) “ where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ” .

Detention pending trial ordered or maintained in breach of LAW does not give rise to a right to compensation under Articles CARDINAL and CARDINAL ORG ..

Under LAW ORG , detention pending trial can only be ordered if all other precautionary measures appear to be inadequate . Where there is serious evidence that the offence of being a member of a mafia - type organisation has been committed , there is a rebuttable presumption that the necessity for detention pending trial exists .

Article CARDINAL ORG provides inter alia that the detention order must contain the explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt , including the factual elements on which the evidence is based and the grounds for its pertinence , and must take into account also the time elapsed since the committal of the offence .

Article CARDINAL § CARDINAL ORG provides that anyone who has been acquitted in a judgment that has become final DATE on the grounds that the case against him has not been proved , he has not committed the offence , no criminal offence has been committed or the facts alleged do not amount to an offence at law – is entitled to equitable reparation for any period he has spent in detention pending trial , provided that misrepresentations or fault on his part were not contributory factors in his being detained .

Under LAW , a person whose detention pending trial has been found , in a final decision , to have been ordered or maintained in breach of ORG CARDINAL and CARDINAL ORG , is entitled to compensation . An application for reparation under LAW must be made within DATE after the judgment becomes final . The maximum award is MONEY ( Article CARDINAL ORG ) .


CASE OF RAMISHVILI AND KOKHREIDZE v. GEORGIA

Violations of Art. 3 (substantive aspect);Violation of Art. 5-1-c;No violation of Art. 5-4;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

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

The applicants were co - founders of and shareholders in a private media company ( “ the media company ” ) which owned the television channel “ TV CARDINAL ” ( “ the channel ” ) , broadcasting in GPE . The first applicant , as an anchorman of the popular talk show “ FAC ( Debates ) , often addressed politically sensitive issues .

Under a service agreement of DATE , the media company undertook to air several documentary films made by “ ORG Reporter ” , a private film - production company ( “ the production company ” ) . Consequently , in DATE , the latter started working on a documentary concerning certain business activities of PERSON , a parliamentarian from the presidential political party ( “ the ruling party ” ) , which held at that time the majority of seats in ORG . The object of the documentary was to expose PERSON allegedly illegal commercial activities . According to the Government , except for the applicants , nobody within the media company knew about the making of the compromising film .

After PERSON had tried in vain to persuade the journalists of the production company to drop the project , he contacted the first applicant . From DATE the parliamentarian placed numerous telephone calls , asking PERSON to block the film . Eventually , they agreed to meet and discuss the issue .

During their first meeting , which took place in TIME of CARDINAL DATE , an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for MONEY ( EUR CARDINAL,CARDINAL ) . Immediately after this meeting , Mr B. complained to the Minister of the ORG that the first applicant had been blackmailing him . He reported to the authorities that , in the event of the compromising film being aired , it could have disastrous consequences not only for him personally but also for the image of the ruling party .

DATE , ORG initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits . DATE , PERSON met the first applicant again . They agreed that the latter would accept the sum in CARDINAL instalments : ORG CARDINAL,CARDINAL and CARDINAL ( ORG CARDINAL and CARDINAL ) .

In TIME CARDINAL DATE , PERSON informed the prosecution service that he would hand over the first instalment to the first applicant TIME . The MONEY notes were consequently processed with invisible chemicals and marked with a special pencil , while their serial numbers were recorded by the investigation authorities . ORG ( “ the ORG ” ) issued a ruling , dated DATE , at TIME , authorising the secret videoing of the meeting without a court order , due to “ urgent necessity ” . The camera was hidden on the parliamentarian ’s person .

The meeting during which PERSON handed over the money to the first applicant took place on DATE at TIME , in the apartment of a mutual friend of theirs . It was also attended by the second applicant . The conversation and the handing over of the money were videoed secretly ( “ the video recording of CARDINAL DATE ” ) by the parliamentarian . When the applicants left the meeting and got into the second applicant ’s car , they were arrested and searched . ORG and the car in which the money was found were seized . On DATE the ORG legalised the secret video recording .

On DATE Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion . They pleaded “ not guilty ” and refused to testify at that time .

On DATE the ORG granted the prosecutor ’s motions and remanded the applicants in custody for DATE . The order noted that the collected evidence – the parliamentarian ’s statements , the results of the on - the - spot search of the applicants , the seized materials and the video recording of CARDINAL DATE substantiated the suspicion that the applicants had committed the offence with which they had been charged . The court dismissed the prosecutor ’s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated . However , it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company .

On DATE the applicants appealed against this decision , complaining that their detention was not lawful within the meaning of LAW , since the prosecution had failed to prove the reasonableness of the imposition of such a measure . They complained in particular that , apart from the parliamentarian ’s statements , the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed . Further , they alleged that , contrary to LAW , they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel .

On DATE the investigator issued a ruling , incorporating as evidence into the criminal case file the seized GPE dollar notes , the second applicant ’s car and the traces of chemicals found there , as well as the applicants’ fingerprints and some other results of their search and arrest on DATE .

On DATE the NORP ORG dismissed the ORG appeal at an oral hearing . The case file contained photographs of that hearing showing that the applicants had been kept in a barred dock , surrounded by several guards . The photographs further showed that the court room was extremely overcrowded ( for a detailed description of the hearing , see paragraphs CARDINAL below ) .

NORP The decision of DATE endorsed the reasoning of the lower court concerning the ORG managerial positions in the media company as a ground supporting the risk that they might influence the witnesses . It reiterated that the collected evidence DATE the parliamentarian ’s statements , the results of the on - the - spot search of the applicants , etc . – suggested “ with a high degree of probability ” that the applicants had committed the crime .

On DATE the investigator incorporated the video recording of CARDINAL DATE and its verbatim transcript as evidence into the criminal case file . On DATE the investigator presented the transcript to the applicants . Calling its authenticity into question , the applicants requested leave to watch the recording .

On DATE the investigator informed the applicants in writing that the preliminary investigation had been terminated . On DATE the case materials were presented to the applicants in prison . However , because at that time no appropriate equipment had been provided , it was only on DATE and DATE that the applicants , in the presence of their advocates , watched the video recording of CARDINAL DATE for the first time .

On DATE the prosecutor sent the criminal case , along with the bill of indictment of DATE , to ORG for trial .

On DATE the DATE pre - trial detention period expired without the court ordering its extension .

On DATE the applicants filed a complaint with ORG , demanding their immediate release . They claimed that they had been deprived of their liberty in breach of LAW ( “ the ORG ” ) and LAW , since no judicial decision had authorised their detention since DATE . No immediate response from the court was forthcoming .

On DATE the administration of GPE No . FAC , where the first applicant was provisionally detained , transferred the latter from his ordinary cell to the punishment cell ( karceri ) , which measured QUANTITY and was intended for solitary confinement , as a disciplinary punishment for using a mobile telephone , the latter incident occurring for the first time . According to the first applicant , in NORP times , this type of cell was used for the confinement of those on death row . There was another person sharing the cell with the applicant ( “ the second inmate “ ) .

On DATE , the applicants were taken to the admissibility hearing before ORG . ORG decided to commit the applicants for trial under LAW ORG . In addition , it rejected their motion of DATE to be released or to have their detention pending trial replaced by a more lenient measure of restraint , ruling in the following terms :

“ The defence incorrectly alleges a violation of the Convention as regards the fact that , after the DATE detention period expired , [ the applicants ] were not immediately brought before a court . [ In fact ] the criminal procedural law does not require that , once the case is referred to the court for a hearing on the merits , any procedural decision be taken on the measure of restraint applied to the accused . According to the ORG , the [ national ] court ought to decide on a case within a reasonable period of time . ‘ Reasonable period of time’ is defined by Article CARDINAL(CARDINAL ) CARDINAL of the ORG as follows . ‘ In the course of the hearing of a criminal case by a ORG , the period of detention must not exceed DATE from the date on which the case is sent to the court.’ Consequently , the [ applicants’ ] detention pending trial has not exceeded its legal term . ”

In the operative part of the decision of DATE , it was noted that there was no appeal possible .

The case file contained photographs showing that the applicants had been kept in a barred dock during the hearing of DATE and that there had been security guards armed with machine guns and wearing hoodlike black masks in the court room .

On DATE at TIME , some toxic smoke ( later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell , see paragraphs CARDINAL and CARDINAL below ) leaked into the first applicant ’s punishment cell . Owing to the lack of ventilation , the smoke filled the cell quickly , causing the applicant and the second inmate to suffer from smoke inhalation , an inability to breathe and eye watering . According to the first applicant , they shouted and knocked on the door for TIME before the prison guard opened the door and let both inmates out until the smoke was gone .

On DATE the first applicant was returned from the punishment cell to his ordinary cell .

On DATE the second applicant , also provisionally detained in GPE No . FAC , was moved from his CARDINAL - bed cell , with CARDINAL inmates in it , to another cell with QUANTITY beds , where QUANTITY prisoners were kept . The inmates were obliged to take turns to sleep .

On DATE the first applicant filed a complaint with both the ORG and ORG ( “ the MJ ” ) , the authority in charge of the penitentiary system , challenging the conditions in the punishment cell and the lawfulness of his confinement there . According to the complaint , the punishment cell had no window or ventilation and was extremely damp . Tap water ran non - stop and noisily TIME a day . A narrow pipe in the corner , located QUANTITY away from the bed , was designated as a toilet . It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole ; there was no partition separating “ the toilet ” from the rest of the cell and a stench hung in the air all the time . CARDINAL inmate could not avoid seeing what the other was doing . The cell was infested with cockroaches and rats occasionally ran through it . The only bed , infested with vermin , was not wide enough to accommodate CARDINAL persons .

In such conditions , the first applicant claimed that he had not been able either to have any normal sleep or to eat properly . During the whole period of his confinement in the punishment cell , he was never let out for a walk or other physical exercise . He alleged that he was never visited by a doctor or provided with any other care .

From DATE hearings were held almost daily . In the hearing rooms , the applicants were always kept in the same conditions as those on DATE : being displayed to the public in the barred dock , in the presence of hooded guards with machineguns .

At a hearing on DATE , the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison . He declared that he intended to begin a hunger strike . The judge did not respond . Shortly afterwards , CARDINAL more inmates were placed in the second applicant ’s already overcrowded CARDINALbed cell , increasing the total number of prisoners there to CARDINAL .

On DATE the ORG informed the first applicant that it had taken note of his complaint of DATE . It also advised him that , according to ORG , the conditions in the punishment cell fully complied with “ international standards ” .

On DATE , after the prosecution had finalised its submissions before the court , the applicants requested , on the basis of LAW of the ORG , that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances . In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority , but were rather co - founders of the media company . ORG dismissed that request on DATE . The judge acknowledged that this fact was indeed “ a newly - discovered circumstance ... ” , but ruled that it was “ not a significant new circumstance which could justify revision of the imposed restraint measure ” . The judge went on to say , “ This is especially true since the accused have not yet presented their submissions and have not been examined ; nor has the collected evidence been assessed ... ”

NORP The applicants then challenged the judge for bias , questioning her impartiality , but this challenge was dismissed as unsubstantiated by the same judge of ORG that DATE . An appeal against both decisions of DATE lay only in connection with an appeal against the final verdict .

On DATE the ORG , convicting them of conspiracy to commit extortion , sentenced the first applicant to CARDINAL and the second applicant to DATE in prison . On DATE the ORG upheld the verdict .

After conviction the applicants were transferred from GPE No . ORG to Rustavi No . ORG . They challenged the appellate decision of DATE in ORG . The case file did not contain information on any further developments in the criminal proceedings .

On DATE the ORG informed the first applicant that on DATE it had opened a criminal case with regard to his complaint of DATE concerning his confinement in the punishment cell but , after a preliminary investigation , had decided on DATE to close it as no elements of a crime had been disclosed .

The ORG decision of DATE noted that the first applicant ’s transfer to the punishment cell had been , under Rule CARDINAL § CARDINAL ( b ) of ORG , a lawful disciplinary punishment for the use of a mobile telephone , such an act representing a grave violation of detention rules . Based on the statements of the administrative staff of GPE No . FAC , as well as the prison doctor and the second inmate , the decision stated that the first applicant had been visited by the doctor DATE and offered food identical to that provided in the ordinary cells . It noted however that , according to the first applicant ’s statements , he had refused to consume the food due to the unsanitary conditions in the punishment cell . As to the fire incident created by the inmate in the adjacent cell on DATE , the ORG , relying on witness testimonies , stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life .

The Government submitted TIME of the interview with the second inmate on CARDINAL DATE . The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that , in any case , he and the first applicant had had ample supplies because of their relatives’ food parcels , which they had brought with them from their ordinary cells .

Relying on the examination of the punishment cell carried out by an investigative commission on DATE , the ORG ’s decision of CARDINAL DATE further stated that the cell had been equipped with an appropriate system of “ air filtration ” and inside artificial lighting , and that there had been a toilet , partitioned by a special wall from the rest of the cell .

According to TIME of the punishment cell inspection of DATE , submitted by the Government , it was conducted without the first applicant or his advocates’ participation . They further disclosed that the punishment cell had been located in the basement of GPE No . CARDINAL prison , its length and width being QUANTITY by QUANTITY , and the bed had been QUANTITY wide . As to the toilet , it consisted of a hole in the ground and CARDINAL cemented bricks for placing the feet . There was no sink , and the water tap was set just above the toilet hole . The only source of lighting was an electric bulb . According to the minutes of the inspection and the attached plan of the cell , there was no window with access to daylight .

With due regard to the above findings , the ORG decided on CARDINAL DATE that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell .

DATE . On DATE the first applicant filed a complaint against this decision , claiming that the investigation had not been effective or objective . He complained that , whilst he had filed his complaint on DATE , the ORG had opened proceedings DATE on DATE . This lapse of time , in his view , had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held . In this regard , he challenged the ORG ’s failure to enquire as to when exactly the ventilation , lighting and the toilet partition had been installed in the punishment cell . The first applicant further complained that the ORG had inexplicably disregarded his assertions that none of the above - mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who , being potential suspects in the case , could not be said to have been impartial witnesses . He challenged the fact that , despite his statement that he had never been provided with medical care , the ORG had trusted the statements of the prison doctor , another potential suspect , without having examined any other source of information ( i.e. the relevant prison logbook of medical visits ) . He further claimed that the second inmate , being under the complete control of the authorities who were wellknown for abuses in prisons , might easily have been threatened or forced to make false statements . Finally , the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on DATE . Consequently , they had not been given a chance to participate in the investigation so as to ensure its objectivity .

On DATE the first applicant ’s complaint of DATE was dismissed by ORG . In reply to his complaint that the criminal proceedings had commenced DATE after his complaint of DATE had been lodged , the decision noted that “ the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on DATE . ” It further stated that the ORG had duly assessed the ORG statements , including those of the prison staff and the first applicant , and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant .

The decision of DATE was adopted without an oral hearing and pronounced in absentia .

As part of their observations on the admissibility and merits of the application , the ORG submitted a video recording of the proceedings concerning the ORG appeal against their detention on remand held at ORG on DATE . The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing , excluding , for example , images of armed men inside the court room . They agreed however that this recording should be accepted and relied on as a source of information about the hearing . The applicants additionally provided annotations to some of the scenes .

The opening scenes of the ORG ’s recording showed an overcrowded court room before the start of the hearing . A large number of media personnel and cameras on tripods were situated in the middle of the room . The dock was a metal cage with a barred ceiling , located at the far end and separated from the rest of the court room . The audience was comprised of civilians , with a large number of women most of whom could be identified as the ORG supporters . However , there were CARDINAL men in plain clothes who were undercover police agents , according to the applicants . Moreover , many of those men were openly identified as agents by the ORG supporters on the spot . The supporters engaged in heated argument with several men in plain clothes , complaining about the lack of space and the ORG ’s inability to provide a larger court room for the hearing .

The CARDINAL uniformed guards and several men in plain clothes escorted the handcuffed applicants into the court room . When the judge was seated , the crowd was still pressing into the room . The entrance door was blocked by the plain - clothes men from inside , while several hooded and armed guards could be seen forcing the door closed from the outside . The judge requested the people in the room to calm down . The judge specifically reproached the media representatives for their disorderly behaviour .

The general noise level in the court room remained unabated even after the hearing was declared open . The judge offered the applicants the possibility of conducting the hearing in camera but they refused . Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses . The body language of the judge betrayed resignation and frustration , as he was unable to establish order .

When the advocates spoke they were dazzled by camera flashes and halogen camera lights of the journalists . During their speech there were continual interruptions by the judge and the public , and relentless banging on the entrance door from the outside , as well as the sound of construction works nearby . Now and then mobile telephones rang and persons conducted conversations . Communication between the defence , the prosecution and the judge , constantly hampered by the unsolicited interruptions of journalists , was made possible by repeatedly requesting other people to move aside or sit down on the floor . The temperature in the court room was high , judging by the sweat on people ’s faces . The persons presumed to be undercover agents , and some court personnel , could be seen constantly entering and leaving the judge ’s deliberation room .

In order to see what was happening , respond to the judge or be heard , the applicants had to stand on the chair in the barred dock , hanging on to the metal side bars , and shout . They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them . When answering CARDINAL of the judge ’s questions , the first applicant , hanging on the bars and grimacing as if to emphasise by body language his resentment at the situation , made the following remark :

“ ... The Government might have something against me ... this I can [ more or less understand] ... but [ I can not ] understand why it is necessary to detain [ the second applicant ] ... [ unless , ] of course , the Government wish to fill up the prisons [ cixeebi]! ... [Well , ] I have been there [ in the prison ] ; unimaginable things happen there! ... There is no need for [ the second applicant] ... no place for him to be with me , here , in this cage ! [ galiaSi] ... This is my declaration ! ”

The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them . The dialogue of questions and answers between judge and prosecutor was unaffected . Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator .

There were episodes when the prosecutor refused to reply to the second applicant’ ridiculous question ... go and ask the parliamentarian about that ! ” , and the question was then dismissed by the judge .

In another episode , when the second applicant asked , “ Could you , please , indicate the page and the paragraph in the case materials which prove that the parliamentarian ... has testified against me ? ” , the prosecutor started laughing in reply and answered in a sarcastic tone , “ Which case materials ? ! Which page ? ! Which paragraph ? ! ” and then murmured “ This man is not sane ... ” The judge intervened and rephrased the question as follows , “ Do the parliamentarian ’s testimonies incriminate [ the second applicant ] ? ” The prosecutor ’s “ yes ” was endorsed by the judge as a reply to the question .

In some episodes , when the applicants or their advocates asked questions which perplexed the prosecutor , the judge either directly replied instead ( i.e. by locating the necessary pieces of evidence in the case file ) or rephrased the questions in a leading manner , thereby suggesting a suitable answer for the prosecutor . Thus , CARDINAL of the advocates asked the prosecutor why it was necessary to impose detention on remand for DATE , when there were CARDINAL witnesses who remained to be examined . As the prosecutor was unable to answer , the judge interrupted with , “ [ Because ] the criminal procedural legislation does not envisage the imposition of detention for a lesser term ” .

As the judge retired for deliberations , the public were ushered out of the court room by the guards and plain - clothes men . After the deliberations , the room contained many fewer people than before . The composition of the public had changed to an almost all - male audience , avoiding the camera by ostentatiously turning their backs towards it and the judge . As the judge read the decision , the plain - clothes men stood next to him . Strangers constantly entered and left the judge ’s deliberation room . There were brief glimpses of CARDINAL or CARDINAL guards wearing black hood - like masks inside the court room in front of the closed door .

The closing scenes briefly showed the large number of presumably undercover plain - clothes agents leaving the court room , not hiding their irritation when filmed . A few of the applicant ’s supporters , readmitted to the room after the deliberations , complained that the agents had occupied almost all of the seats . They asked the cameraman to film the presence of the agents . The first applicant then stated , “ Look , there they are ... the agents ( TanamSromlebi ) ! ” and pointed to the plain - clothes men . The following remarks could be heard : “ Their presence was overwhelming ! ... More agents than family or friends ! ”

In the last scene , a hooded , armed man inside the court room nodded to the cameraman , apparently requesting the latter to stop recording .

The case file also contained a video recording , submitted by the applicants , showing how CARDINAL plain - clothes men , identified in the ORG ’s video as undercover agents , attending the hearing of DATE , left ORG through the same back door exit as the handcuffed applicants . The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants . Some of the undercover agents were filmed changing from their civil clothes into police jackets . The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black , hood - like masks .

In a letter of DATE , the second applicant informed ORG his early release from prison on the basis of a Presidential pardon of CARDINAL DATE . He maintained his intention to pursue the ORG proceedings .

LAW of the person , respect for human dignity ... ”

“ In the course of an investigative or judicial action , it is prohibited to exert upon a person physical or psychological pressure ... or to subject a detained person to conditions that encroach upon his or her human dignity . ”

“ CARDINAL . No one may be arrested without a court order or other judicial decision .

Courts , prosecutors and investigators are obliged to immediately release any person who is detained unlawfully . ”

“ CARDINAL . Where there is a sufficient basis for hearing the case , the judge ( court ) , without prejudging the merits of the case , shall commit the accused for trial ...

During the admissibility hearing , in addition to deciding whether to commit the accused for trial ... , the judge ( court ) shall decide whether to impose a measure of restraint on the accused . ”

“ The judge ( court ) shall decide whether to commit the accused for trial within DATE or , in complicated cases , within DATE of delivery of a final judgment on the last criminal case registered with the same judge ( court ) . ”

Article QUANTITY provided that the presiding judge was the authority in charge of a hearing . He or she was responsible for maintaining order in the court room and carried out all kinds of procedural actions envisaged by the LAW . In addition , Article CARDINAL stated that , during a hearing , the judge had to abide by all the general legal principles contained in LAW of Part I of the LAW , of which LAW , cited above , formed a part .

“ Extortion is claiming another person ’s object or property right or property use under threat of using violence against the victim , or the victim ’s close relative , destroying or damaging the object , or of making public information which may impair the victim ’s reputation , or of spreading such information as may substantially prejudice the victim ’s rights ... ”

Under LAW of ORG , in the event of a violation of prison regulations , a detainee could be subjected by the prison administration to disciplinary sanctions . Rule CARDINAL § CARDINAL listed the disciplinary sanctions as follows :

( a ) a warning ;

( b ) a reprimand ;

( c ) a short - term or long - term ban on visits ;

( d ) confinement from DATE in a punishment cell ;

( e ) prohibition to receive parcels .

Rule CARDINAL § CARDINAL explicitly prohibited detainees from taking food to a punishment cell from their ordinary cells .

Under Addendum No . CARDINAL to the Prison Rules , detainees were forbidden to use telephones in prison .

The relevant parts of the Report read as follows :

“ a. Prison No . CARDINAL , GPE

At the end of the visit in DATE , the ORG ’s delegation asked the NORP authorities to take out of use all cells located in the basement of the main detention block ( i.e. quarantine , transit and disciplinary cells ) . This measure was reportedly taken soon after the DATE visit . However , as a result of the increasing number of prisoners sent to ORG . CARDINAL , it became necessary to start using the basement cells again . In DATE , CARDINAL prisoners were being held in the basement ... The cells were dark , badly ventilated , damp and disgustingly filthy . Further , in some cells , prisoners were sharing beds .

DATE . Conditions on the other levels of the main detention block remained extremely poor . Many of the dormitories were grossly overcrowded , with CARDINAL m² of living space per prisoner . The number of inmates often exceeded the number of beds , thereby compelling prisoners to sleep in CARDINAL and occasionally even CARDINAL shifts ( for example , CARDINAL prisoners in a cell measuring CARDINAL m² which was equipped with CARDINAL beds ) . The situation was exacerbated by poor ventilation and lack of natural light ... The sanitary arrangements were also completely inadequate : CARDINAL prisoners might be sharing the same dilapidated and generally filthy toilet facility inside a dormitory . Further , there was no heating , and exposed electrical wires throughout the accommodation areas created a high risk of accidents ...

The situation with regard to food had not changed since the DATE visit ; in practice , prisoners relied to a great extent on food parcels from their families .

Further , as in DATE , prisoners did not receive any personal hygiene items and there were no laundry facilities . The prison had relinquished responsibility for providing prisoners with bedding and many prisoners slept in what could only be described as rags ...

... at the end of the visit in DATE the delegation made CARDINAL immediate observations in respect of Prison No . CARDINAL in GPE , requesting the NORP authorities to : ... ( ii ) definitively take out of service all cells located in the basement of the main detention building ( including the isolation and “ karzer ” cells ) ; ( iii ) ensure that all prisoners , including those in the “ quarantine ” section and disciplinary isolation cells , are guaranteed outdoor exercise of TIME per day .

In view of the deteriorated situation observed in DATE , the delegation reiterated the above - mentioned immediate observations ...

At the end - of - visit talks in DATE , the Minister of ORG acknowledged that Prison No . CARDINAL was substandard in all the key aspects ...

c. Discipline

... At Prison No . CARDINAL in GPE , the disciplinary cells criticised in the report on the visit in DATE had been taken out of service and replaced with CARDINAL other cells , located in a different part of the basement of the main detention block . Admittedly , the cells in question were larger and equipped with sleeping platforms . However , the cells were substandard in all other respects ; in particular , they had no access to natural light and were unventilated , humid and dilapidated ...

During the second periodic visit , the delegation was concerned to note that prisoners undergoing disciplinary confinement in the establishments visited were still not offered outdoor exercise ... at the end of the visit in DATE , the delegation made an immediate observation , requesting the NORP authorities to ensure that inmates placed in disciplinary cells in all penitentiary establishments in the country are guaranteed TIME of outdoor exercise per day ... The ORG reiterates [ that ] recommendation ... ”

“ ... The space allocated for prison cells in GPE — both in law and in practice — is significantly less than that required by regional human rights standards ... In its DATE recommendations to the NORP government , the ORG lowered this standard suggesting , “ A standard of CARDINAL m² per prisoner should be aimed at . ” GPE ’s PERSON on Imprisonment requires that the living space for each convict in the cells of ORG must be not QUANTITY . Detainees should each be provided with a separate bed ...

ORG . CARDINAL dates from DATE ... In many parts of FAC . CARDINAL , the walls and floors are crumbling and in a state of disrepair . Electrical wires are exposed in the cells and corridors . The regular detention cells are filled with as many twotier metal bunk beds as the rooms will hold . There were no tables or chairs in the rooms at the time of ORG visit . Detainees must sit on beds or on the floor when they are not sleeping . The toilets are partitioned from the rest of the cell by only a short wall or sometimes with a piece of fabric or shower curtain that the inmates have put up themselves . This design allows for very little privacy for those using the sanitary facilities . Because of the overcrowding , beds are often placed very close to the toilets . The toilets are decaying and filthy . In several cells ORG found piles of garbage near the door . ORG considers the conditions in which detainees are housed in this facility violate the prohibition on inhuman or degrading treatment .

All of the cells in FAC No . CARDINAL visited by ORG smelled strongly of human sweat , human excrement , and cigarette smoke . Detainees spend consecutive DATE and DATE in these cells without being allowed outside ... The cells were also unreasonably hot , due to the overcrowding and lack of ventilation . Many prisoners were reduced to wearing very little clothing in an effort to stay cool ...

ORG found the most appalling conditions to be in the basement “ quarantine ” cells in FAC No . CARDINAL ... The cells visited by ORG had no natural light or ventilation , owing to their location in the basement , and CARDINAL tiny window covered with screens . Artificial light was provided by a bright light over the door . There was no running water in the sinks . There was standing water on the floor in one cell . The bed frames consisted of bare iron planks , and there were no mattresses and only a few tattered blankets ...

The deputy director of ORG . CARDINAL claimed that detainees “ wash once per week . ” However , detainees stated that they do not shower once per week because “ [ t]here are too many people . ” ...

In FAC No . CARDINAL , ORG found the kitchen building to be decaying . Water was overflowing some of the food preparation containers resulting in standing water on the floor ... ”


CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM

Alvina Gyulumyan;Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Pavlovschi;Viera Strážnická;Vladimiro Zagrebelsky;Volodymyr Butkevych

The second applicant company is the registered owner of a plot of CARDINAL ha of agricultural land in GPE . The first applicant company acquired the land by a series of transactions DATE and owned it until DATE , when it transferred the land to the second applicant company subject to an option to repurchase . The owners of a property adjacent to the land , PERSON and PERSON ( “ the PERSON ” ) occupied the land under a grazing agreement until DATE . On DATE a chartered surveyor acting for the applicant companies wrote to the ORG noting that the grazing agreement was about to expire and requiring them to vacate the land . In DATE the applicant companies refused a request for a further grazing agreement for DATE because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission .

Notwithstanding the requirement to vacate the land at the expiry of the DATE agreement , the ORG remained in occupation at all times , continuing to use it for grazing . No request to vacate the land or to pay for the grazing which was taking place was made . If it had been , the evidence was that the PERSON would happily have paid .

NORP In DATE an agreement was reached whereby the applicant companies agreed to sell to the PERSON the standing crop of grass on the land for MONEY ( GBP ) . The cut was completed by DATE . In DATE an inquiry was made of the applicant companies as to whether the PERSON could take another cut of hay or be granted a further grazing agreement . No reply to this letter or to subsequent letters sent in DATE was received from the applicant companies and thereafter the PERSON made no further attempt to contact the applicant companies . From DATE until DATE the PERSON continued to use the whole of the disputed land for farming without the permission of the applicant companies .

In DATE Mr PERSON registered cautions at ORG against the applicant ORG title on the ground that he had obtained title by adverse possession .

On DATE the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions . On DATE the applicant companies issued further proceedings seeking possession of the disputed land .

The PERSON challenged the applicant ORG claims under LAW ( “ the LAW ” ) , which provides that a person can not bring an action to recover any land after the expiration of DATE of adverse possession by another . They also relied on LAW , which applied at the relevant time and which provided that , after the expiry of the DATE period , the registered proprietor was deemed to hold the land in trust for the squatter .

Judgment was given in favour of the PERSON on DATE ( [ DATE ] PERSON ) . Mr Justice PERSON held that since the PERSON had enjoyed factual possession of the land from DATE , and adverse possession took effect from DATE , the applicant ORG title was extinguished pursuant to LAW , and the PERSON were entitled to be registered as proprietors of the land . At the conclusion of his CARDINAL - page judgment , PERSON remarked that the result he had reached did not accord with justice and could not be justified by practical considerations : the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at ORG . The fact that an owner who had sat on his rights for DATE should be deprived of the land was in his view “ illogical and disproportionate ” .

The applicant companies appealed and on DATE ORG reversed the ORG decision on the ground that the PERSON did not have the necessary intention to possess the land , and the applicant companies were therefore not “ dispossessed ” of it within the meaning of LAW ( [ DATE ] EWCA Civ CARDINAL , [ DATE ] ORG CARDINAL ) . Although this conclusion was sufficient to dispose of the appeal , CARDINAL members of ORG went on to address the question whether the applicant ORG loss of title to the land could also have given rise to a violation of LAW No . CARDINAL as applied in domestic law by LAW DATE .

Lord Justice Mummery , giving the judgment of the court , held that LAW No . CARDINAL did not impinge on the relevant provisions of LAW , which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for DATE or more after being dispossessed by another . The extinction of the applicant ORG title was not , in his view , a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate , but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period . In the alternative , ORG found that any deprivation was justified in the public interest , the conditions laid down in LAW being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title : those conditions were not disproportionate , the period of DATE being reasonable and not imposing an excessively difficult burden on the landowner .

Lord Justice PERSON took as his starting - point that limitation periods were in principle not incompatible with the PERSON and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the LAW . This position obtained , in his view , even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights , whether real or personal , or of damages : there was thus nothing inherently incompatible as between LAW and LAW No . CARDINAL .

The PERSON appealed to ORG , which , on DATE , allowed their appeal and restored the order of ORG ( [ DATE ] ORG CARDINAL , [ DATE ] CARDINAL All ER CARDINAL ) . Lord PERSON , with whom Lord PERSON of ORG and Lord PERSON agreed , held that the PERSON did have “ possession ” of the land in the ordinary sense of the word , and therefore the applicant companies had been “ dispossessed ” of it within the meaning of LAW . There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime . Concluding , Lord PERSON held as follows :

“ ... Despite ORG ’s notification to quit the land in DATE , its peremptory refusal of a further grazing licence in DATE and the totally ignored later requests for a grazing licence , after DATE the ORG stayed in occupation of the disputed land using it for what purposes they thought fit . Some of those purposes ( i.e. , the grazing ) would have fallen within a hypothetical grazing agreement . But the rest are only consistent with an intention , verified by Mr PERSON , to use the land as they thought best . That approach was adopted from the outset . In my judgment , when the PERSON remained in factual possession of the fully enclosed land after the expiry of the mowing licence they manifestly intended to assert their possession against ORG .

... Before your Lordships’ ORG , it was conceded that LAW [ incorporating LAW ] did not have a retrospective effect . But ORG submitted that , even under the common - law principles of construction applicable before LAW came into effect , the court should seek to apply the law so as to make it consistent with LAW ] . Any such old principle of construction only applied where there was an ambiguity in the language of a statute . No such ambiguity in LAW of DATE was demonstrated to your Lordships . ”

Lord GPE of GPE , agreeing with Lord PERSON , made the following statement in the course of his judgment :

“ The PERSON have acted honourably throughout . They sought rights to graze or cut grass on the land after DATE , and were quite prepared to pay . When ORG failed to respond they did what any other farmer in their position would have done : they continued to farm the land . They were not at fault . But the result of ORG ’s inaction was that they enjoyed the full use of the land without payment for DATE . As if that were not gain enough , they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all . In the case of unregistered land , and in DATE before registration became the norm , such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay . But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result , and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it . It is reassuring to learn that LAW CARDINAL has addressed the risk that a registered owner may lose his title through inadvertence . But the main provisions of that Act have not yet been brought into effect , and even if they had it would not assist GPE , whose title had been lost before the passing of the LAW . While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend , this is a conclusion which I ( like the judge [ PERSON ] ... ) ‘ arrive at with no LAW . ” ( PERSON ( ORG and Others v. PERSON and Another [ DATE ] CARDINAL All ER CARDINAL , at CARDINAL )

As noted above , the question whether the result was incompatible with the applicant ORG rights under LAW No . CARDINAL was not pursued before ORG . However , in his judgment Lord Hope of PERSON , who also agreed with Lord PERSON on the reasons for dismissing the appeal , observed that the question under the Convention

“ ... is not an easy one , as one might have expected DATE in the context of a statutory regime where compensation is not available DATE to lean in favour of the protection of a registered proprietor against the actions of persons who can not show a competing title on the register . Fortunately ... a much more rigorous regime has now been enacted in Schedule CARDINAL to LAW CARDINAL . Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain a title to it against the wishes of the proprietor . The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation , although that is an important factor , but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor . ”

The value of the land in issue is disputed between the parties . The applicant companies put their pecuniary loss at MONEY . The Government put the value of the land in DATE ( when the DATE limitation period expired ) at GBP MONEY , and in DATE ( when ORG judgment was delivered ) at MONEY .

At the relevant time , section CARDINAL of LAW , a consolidating Act , provided :

“ ( CARDINAL ) No action shall be brought by any person to recover any land after the expiration of DATE from the date on which the right of action accrued to him or , if it first accrued to some person through whom he claims , to that person .

( CARDINAL ) Part I of Schedule CARDINAL to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned . ”

Paragraph CARDINAL of Schedule CARDINAL provided :

“ Where the person bringing an action to recover land , or some person through whom he claims , has been in possession of the land , and has while entitled to the land been dispossessed or discontinued his possession , the right of action shall be treated as having accrued on DATE of the dispossession or discontinuance . ”

The same limitation provisions therefore applied to both registered and unregistered land . In the case of unregistered land , section CARDINAL of the DATE Act provided that , on the expiration of the limitation period regulating the recovery of land , the title of the paper owner was extinguished . In the case of registered land , section GPE ) of LAW DATE provided that on the expiry of the limitation period the title was not extinguished but the registered proprietor was deemed to hold the land thereafter in trust for the squatter .

GPE ’s ORG ( Fourth Edition , Reissue CARDINAL ) sets out the law in the following terms :

“ CARDINAL . When the owner of land has been out of possession , and a stranger has been in possession , for a period sufficient to bar the owner ’s right to re - enter or to recover possession by action , the owner ’s title is extinguished , and the stranger acquires a title which is good against all the world , including the former owner .

LAW operates negatively to bar the right and extinguish the title of the true owner , and does not effect a transfer of his estate to the stranger ; the new title depends on the principle that possession gives title , coupled with the extinction of the rights of the former owner , and is subject to any easements [ etc . ] which remain unextinguished . ”

ORG considered the law on limitation periods in its report of DATE ( Cmnd CARDINAL ) . It commented negatively on the ORG practice of granting an implied licence to the would - be adverse possessor , which had the effect of stopping time running against the owner , and proposed no change to the existing limitation periods , and agreed that the expiration of the limitation period should serve to extinguish the claimant ’s title .

A Law Commission Consultation Paper on Limitation of Actions of DATE ( Consultation Paper No . CARDINAL ) gave a number of general policy aims of the law on limitations . The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right . The ORG , too , has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial , and as guarantor of legal certainty . Finally , limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly .

A separate Law Commission Consultative Document on land registration in DATE ( prepared with ORG ; PERSON No . CARDINAL ) noted that , although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format , there were certain areas where this was not wholly true . CARDINAL example given was the position of the rights of adverse possessors ( section GPE ) of LAW DATE was referred to ) . The Consultative Document set out and commented on CARDINAL particularly cogent reasons often given for the law on adverse possession :

( i ) Because it is part of the law on limitation of actions . It noted :

“ ... because adverse possession is an aspect of the law of limitation , it is of course customary to account for it , in part at least , in terms of the policy of limitation statutes generally , namely to protect defendants from stale claims and to encourage plaintiffs not to sleep on their rights . However , adverse possession does not merely bar claims . Its effect is positive : ‘ a squatter does in the end get a title by his possession and the indirect operation of LAW ] ... ’ This can only be justified by factors over and above those which explain the law on limitation . In this context it should be noted that a landowner may be barred even where he or she is quite blameless . As we have explained above , adverse possession can take place without it being readily detectable . In any event , this particular justification has much greater force in relation to unregistered land than it does for land with registered title . Unregistered title ultimately depends upon possession . It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights . ... [ w]here title is registered , ... the basis of title is primarily the fact of registration rather than possession . Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ... ”

( ii ) Because if land and its ownership are out of kilter , the land may become unmarketable . Where the registered owner has disappeared , and can not be traced , and a squatter takes possession , the doctrine of adverse possession “ does at least ensure that in such cases land remains in commerce and is not rendered sterile ” . Where there have been dealings “ off the register ” , such as where a farmer agrees to a land swap with a neighbour under a “ gentleman ’s agreement ” but does not register the change , “ adverse possession fulfils a useful function ” .

( iii ) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure . In such circumstances adverse possession can be justified on grounds of hardship , and there are parallels with the principles of proprietary estoppel .

( iv ) Because it facilitates and cheapens investigation of title to land . ORG accepted this last reason as being very strong for unregistered land , but considered that for registered land , where title depends on the contents of the register rather than possession , it was not applicable .

ORG proposed , provisionally , that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration , and that it should be limited to very few , exceptional cases .

A Report on Limitation of Actions ( Law Com No . CARDINAL ) and CARDINAL on registered land ( Law Com No . CARDINAL ) followed the Consultation Papers , and were published in DATE .

ORG on LAW recommended that the general limitation period for actions in respect of land should be DATE . It added that if the proposals made on registered land in PERSON No . CARDINAL were accepted , the proposal would relate only to interests in unregistered land ( and unregistrable interests in registered land ) .

As a result of the various criticisms , including those made by a number of the judges in the present case and the ORG on registered land ( Law Com No . CARDINAL ) , LAW CARDINAL made a number of changes to the law as it related to registered land . It provided that adverse possession , for however long , would not of itself bar the owner ’s title to a registered estate . A squatter was entitled to apply to be registered as proprietor after DATE , and would be so registered if application was not opposed . If the application was opposed , it would be refused . If the application was refused but no steps were taken to evict the squatter or otherwise regulate the position , he was entitled to apply again to be registered as proprietor , and would be so registered whether or not the application was opposed . LAW came into force on DATE .

On DATE , Deputy Judge PERSON in ORG gave judgment in the case of ORG v. ORG , DATE ) . The case concerned a licensee who had remained in possession of registered land for DATE after the expiry of his licence . Applying the judgment of ORG in the present case , the judge found that under LANGUAGE law as it stood up to the entry into force of LAW DATE the registered owner of the land lost all claim to it . However , on analysing the facts on a Convention basis , he found that there was no real public or general interest in the law on adverse possession in the case of registered land , and that the adverse consequences for the landowner were disproportionate . By reinterpreting the relevant legislation in accordance with section CARDINAL of LAW , the judge found that the claim by the former licensee to have acquired the disputed land failed .


NORP In DATE ORG transferred to the applicants a property situated in GPE . There was no adequate access by road to the property at that time , but the ORG authorities declared that an access road would soon be constructed . However , the authorities did not undertake any action to ensure proper access to the applicants ' property . In particular , a right of way through neighbouring properties was never created .

In DATE the applicants brought a civil action to have a right of way established by way of a judicial decision . On DATE ORG allowed their request . Their neighbours appealed .

On DATE the ORG quashed the judgment of the firstinstance court and remitted the case for reexamination , finding that the first - instance court had failed to assess the evidence properly .

By a judgment of DATE ORG again granted a right of way to the applicants . The neighbours brought a new appeal . On DATE the ORG quashed the contested judgment and again remitted the case for re - examination .

On DATE ORG allowed the applicants ' claim . ORG dismissed the neighbours ' appeal on DATE . The neighbours brought a cassation appeal before ORG .

ORG refused to entertain their appeal on DATE . This decision was served on the applicants on CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of the PERSON of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) , are stated in the ORG 's decisions in the cases of ORG v. GPE no . MONEY ( dec . ) , § § CARDINAL , ORG CARDINALV and PERSON GPE no . CARDINAL ( dec . ) , ECHR CARDINALVIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL , ORG CARDINALV.

NORP In particular , section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the ORG :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”