Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in Punat , on the LOC island in GPE .

The applicant was in active military service with the former ORG ( hereinafter : “ the ORG ” ) for DATE , until DATE , when he voluntarily left the ORG and moved from PERSON , GPE , where he held a specially protected tenancy of a flat given to him by the ORG , to GPE , GPE .

The applicant made himself available for service in the NORP army . He was unemployed until DATE , when he found civilian employment . He then served in the NORP army DATE and DATE and eventually retired on DATE .

In the meantime , on CARDINAL DATE the Government adopted the Decree on the Prohibition of All Real Estate Transactions in GPE ( ORG o zabrani raspolaganja nekretninama na teritoriju PERSON – “ the Decree ” , published in ORG no . CARDINAL/CARDINAL of DATE ) , which banned all transactions in respect of immovable property situated in GPE and belonging to the Former GPE ’s federal institutions or legal entities having their seat in CARDINAL of its former federal units . The Decree entered into force on DATE .

The applicant had a specially protected tenancy of a flat in GPE , GPE . On CARDINAL DATE the applicant returned that flat to the ORG , in order to obtain priority for the allocation of another flat .

On DATE the applicant was given the right to purchase a flat in GPE by the ORG and moved into the flat with his family .

Pursuant to the Government ’s Decree of DATE , all possessions of the former ORG came under the ownership of GPE .

On DATE GPE declared its independence .

On DATE ORG and the ORG entered an agreement by which ORG guaranteed the personal safety of those members of ORG of the ORG who did not wish to leave the GPE area and to respect their acquired rights .

On DATE ORG and the ORG entered into a further agreement by which ORG guaranteed the personal safety of those members of the ORG who did not wish to leave GPE upon the termination of their service in the ORG and accepted to respect the inviolability of their private property and their continuing right to occupy the flats given to them by the ORG .

From DATE until his eviction in DATE the applicant paid the rent and all the charges in respect of the flat in GPE to ORG . Until DATE the bills were issued in the name of GPE , the previous holder of a specially protected tenancy of the same flat . From DATE the bills were issued in the applicant ’s name .

In DATE the applicant received part of a house in Punat on the island of GPE , GPE by way of a gift from his father .

In DATE the ORG brought a civil action against the applicant in ORG ( PERSON ORG ) , seeking his eviction . The ORG argued that , as the owner of the flat , it had the right to seek the eviction of the applicant because the decision issued by the ORG , granting the applicant the right to purchase the flat in question , had been contrary to the Decree . The ORG sought repossession of the flat .

In his defence dated DATE the applicant maintained that he had served as a ORG officer and that the ORG had allocated the flat in question to him and that , therefore , he had had a valid legal basis for occupying the flat . He further argued that he had had a specially protected tenancy of a flat in PERSON which he had given up in order to obtain a specially protected tenancy of a flat in PERSON . He also submitted that he , at the invitation of the NORP authorities , had made himself available to serve in the NORP army and that he had CARDINAL schoolchildren .

On DATE ORG found in the ORG ’s favour and ordered the applicant to vacate the flat . The court found that the ORG owned the flat and that the applicant had no legal entitlement to occupy it . The relevant part of the judgment reads as follows :

“ It is disputed between the parties whether the defendant ’s occupancy is based on a valid legal entitlement .

It is to be noted in that connection that the defendant had moved into the flat in question on the basis of a decision of the [ ORG ( PERSON garnizona ) no . CARDINAL - CARDINAL - CARDINAL of DATE . Under sections CARDINAL and CARDINAL of the Decree on the Prohibition of All Real Estate Transactions in GPE ( ORG ) , the [ aforesaid ] decision is null and void , and can not serve as a valid legal basis for acquiring a specially protected tenancy , as [ the grounds for doing so ] are those listed in LAW . The above - mentioned Decree entered into force on DATE , while the decision of ORG was not issued until DATE , which was after the entry into force of the above - mentioned Decree . Since a ... legal act contrary to the provisions of the Decree is null and void ... which entails a requirement that the legal position of the parties to such a contract has to be the same as before the contract was concluded ... the plaintiff ’s claim is to be granted ... ”

The applicant lodged an appeal whereby he argued that before it had declared its independence , GPE had had no authority to enact any decrees concerning the assets of the ORG . He also relied on the agreement between ORG and the ORG . He reiterated his argument that he , when leaving the ORG , had acted at the invitation of the NORP authorities and had made himself available to serve in the NORP army .

On DATE ORG ( Županijski sud u ORG ) upheld the first - instance judgment , endorsing the reasoning of the first - instance court , and dismissing the applicant ’s argument that GPE had had no authority to adopt the Decree . The relevant part of the judgment reads as follows :

“ ... the first - instance court established that the defendant had occupied the flat in GPE , PERSON , on the basis of a decision of ORG ... which is null and void under sections CARDINAL and CARDINAL of the Decree ... and therefore can not be considered as a valid legal basis for acquiring a specially protected tenancy , [ in contrast to ] the [ grounds ] listed in section CARDINAL § CARDINAL of LAW ... The Decree entered into force on DATE , while the decision of ORG was not issued until DATE , which was after the entry into force of the above - mentioned Decree . In view of the nullity of the said decision , the plaintiff ’s claim was granted ...

The factual findings and legal standpoints of the first - instance court are accepted by this court as correct .

The defendant argued that , before it had declared its independence , GPE had had no authority to enact any decrees concerning the assets of the ORG because these had been federal assets given to the ORG by a federal statute , namely , the YPA Assets and Financing Act ( Zakon o sredstvima i financiranju JNA ) . Therefore , GPE had had no authority to enact the Decree on the Prohibition of All Real Estate Transactions in GPE ...

These arguments are , however , ill - founded . The Decree is based on LAW , which provides that “ where an act or action by a federal body or by another federal republic ... goes against the territorial integrity of GPE or its interests or where such an act places it in a position of inequality within the Federation , the bodies of the Republic [ of GPE ] shall , on the basis of the right to self - determination and the sovereignty of GPE established by LAW , adopt necessary decisions in order to protect the interests of GPE . ...

Hence , the first - instance court correctly applied sections CARDINAL of the Decree ... by declaring the decision of ORG ... null and void , since it was issued after the said Decree had entered into force . Accordingly the defendant does not have a valid legal basis for occupying the flat in GPE ... and his reliance on the Agreement between GPE and the ORG of CARDINAL DATE is irrelevant .

NORP The applicant brought a constitutional complaint on DATE . In that complaint , the applicant argued that the flat in question had been allocated to him by the former ORG on the basis of a federal statute before GPE had declared its independence . He again reiterated his arguments that he had left the ORG at the invitation of the NORP authorities and had made himself available to serve in the NORP army .

On an unspecified date , the applicant asked ORG , as owner of the flat , to conclude a contract for the sale of the flat between the ORG as seller and himself as buyer . On DATE the applicant lodged another request with ORG , in order to legalise his occupancy of the flat . He claimed that he had a specially protected tenancy of the flat and the right to buy the flat under LAW to LAW ( PERSON o pitanjima sukcesije ) . On DATE ORG dismissed his request , finding that the Agreement cited by the applicant was inapplicable in the applicant ’s case .

On DATE ORG dismissed the applicant ’s complaint , endorsing the lower courts’ reasoning .

On DATE the Rijeka Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u ORG ) sought an enforcement order in ORG for the eviction of the applicant . The enforcement order was issued on DATE . The applicant lodged an appeal , arguing that his eviction from the flat would cause him irreparable damage because he and his family would be rendered homeless . He also sought the adjournment of the eviction until a decision by ORG on his constitutional complaint had been issued .

On DATE ORG dismissed the applicant ’s request for an adjournment , finding that the grounds adduced were not those listed in LAW ( Ovršni zakon ) , and that the applicant had not specified the damage he would suffer if evicted .

The applicant lodged an appeal , arguing , inter alia , that ORG had disregarded his argument that the eviction would render him and his family homeless .

On DATE ORG dismissed the applicant ’s appeals against the enforcement order and the decision on adjournment of the eviction , finding that the pending constitutional complaint and the irreparable damage claimed did not constitute valid grounds for successfully challenging the enforcement order .

The eviction was initially scheduled for DATE . On that occasion , representatives of ORG Attorney ’s ORG agreed with the applicant ’s request to adjourn the eviction until DATE . The applicant complied with the enforcement order and vacated the flat on DATE .

The relevant part of ORG DATE concluded between ORG and the ORG reads :

“ GPE guarantees the personal safely and respect for the acquired rights , including those from employment , of the members of the ORG who do not wish to leave the territory of PERSON by the date [ noted in ] section LAW at the latest . This guarantee also concerns the members of their families ... ”

“ ... leaving the NORP territory by the members of ORG is to be completed by DATE at the latest . ”

The relevant part of the Agreement of DATE concluded between ORG and the ORG reads :

“ GPE guarantees the personal safely , [ and to respect the ] inviolability of private property and continuing right to use flats , of the members of divisions , institutions and commands of the ORG who do not wish to leave the territory of GPE or the territory of GPE upon the termination of their service in the ORG , as well as [ that ] of the members of their families ... ”

Article CARDINAL of the LAW ( Ustav PERSON , ORG nos . CARDINAL and DATE ) reads as follows :

“ The home is inviolable .

A search of a person ’s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law .

The occupier , or his or her representative , shall be entitled to be present during a search of a home or other LOC . The presence of CARDINAL witnesses shall be obligatory .

Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people , or to property of a high value , the police may enter a person ’s home or other LOC and carry out a search without a court warrant or the occupier ’s consent and without any witnesses being present .

Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence , a search shall be carried out only in presence of witnesses . ”

The relevant part of LAW ( Official Gazette nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) reads :

“ A specially protected tenancy is acquired on DATE of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis , unless otherwise provided by this LAW . ”

The Specially Protected Tenancies ( Sale to Occupier ) Act ( Official Gazette nos . DATE , DATE , CARDINAL CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , PERSON o prodaji stanova na kojima postoji stanarsko pravo ) regulates the conditions for the sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale .

The relevant provision of the LAW provides as follows :

“ Every holder of a specially protected tenancy ( hereinafter ‘ the tenant’ ) may submit a written application to purchase a flat to the ... owner ( ‘ the seller’ ) ... and the seller shall be obliged to sell the flat .

Section CARDINAL paragraph CARDINAL of LAW ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no CARDINAL/CARDINAL ) reads as follows :

“ An owner has the right to seek repossession of his or her property from a person in whose possession it is . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”

The relevant part of ORG decision no . U - III/CARDINAL/CARDINAL of CARDINAL DATE reads as follows :

“ As regards the alleged violation of the constitutional right guaranteed under LAW , it is to be said that that a violation of that right can not occur in enforcement proceedings , as LAW guarantees the inviolability of the home , which concerns the conduct of the police during entries and searches of homes in the execution of arrest warrants or in order to apprehend a perpetrator of a criminal offence or to remove serious risk to the lives and health of persons or to valuable assets . Therefore , the provision in question is not applicable to the proceedings at issue . ”


Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

NORP The applicant bought FAC , GPE , PERSON ’s in DATE . A number of planning applications were made to permit residential use of the land in DATE . The applications were all refused , an appeal being dismissed by ORG in DATE . In DATE or DATE the applicant moved into a converted packing shed on his land .

In DATE the applicant , through an advocate , made representations to a planning inquiry which was considering the draft ORG no . CARDINAL ( GPE ) . In his report to the President of ORG ( IDC ) , the inspector set out the arguments led by the applicant ’s advocate and by the advocate for the ORG , and concluded that a dwelling on the applicant ’s site would be an intrusion into the agricultural / horticultural hinterland . He supported the ORG ’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited .

NORP The President of the IDC submitted GPE , in draft , to the President of ORG on CARDINAL DATE .

The States of Deliberation , presided over by Mr PERSON , the Deputy Bailiff , debated and adopted GPE on CARDINAL and DATE . The zoning of the applicant ’s land was not changed .

A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the ORG on DATE as the ORG was bound to take into account GPE , according to which the site was zoned as a FAC where residential development was not allowed .

On DATE the applicant was convicted by ORG on his guilty plea of changing the use of the shed without permission , contrary to section CARDINAL(CARDINAL)(a ) of ORG ( “ the DATE LAW ) . He was fined MONEY , with CARDINAL days’ imprisonment in default .

On DATE the ORG applied for permission under Section CARDINAL(CARDINAL)(h ) of the DATE PERSON itself to carry out the necessary works to remedy the breach of the planning legislation . The application was adjourned in ORG by the Deputy Bailiff on DATE for a date to be fixed . The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty ’s Procureur .

A further application on the applicant ’s behalf for permission to continue living in the shed was dismissed by the IDC on DATE , and a request for the section CARDINAL(CARDINAL)(h ) proceedings to be adjourned was dismissed by ORG . On DATE ORG comprising the Bailiff and CARDINAL PERSON granted the ORG ’s application under LAW ) .

On DATE the applicant ’s current representative made a formal application for change of use on behalf of the applicant , together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal . The application was rejected by the ORG on DATE in the following terms :

“ I have to inform you that ... the ORG decided to reject your proposal for the following reason which is based on the considerations which the ORG is bound to take into account under the provisions of section CARDINAL of GPE Laws DATE - CARDINAL:–

( a ) Detailed Development Plan no . CARDINAL , as approved by the GPE .

The site is located within a Developed Glasshouse Area and the ORG ’s written statement of policy makes no provision for the form of development proposed . I enclose for your information a copy of the written statement of policy . ... ”

On DATE ORG , comprising the Bailiff , by then Sir PERSON , and CARDINAL PERSON , heard the applicant ’s appeal . The applicant ’s representative accepted that the written statement provided for no development other than “ Developed Glasshouse ” in the area , but submitted that there were nevertheless reasons in the case to permit the change of use : the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land , such that it was unreasonable for the ORG to take an unduly narrow view of what it allowed under the ORG . The ORG then summed up the applicant ’s complaints to the PERSON , instructing them that the ultimate burden of proof was on the ORG to satisfy the PERSON that the ORG ’s decision was reasonable . The appeal was dismissed unanimously . The decision recites the grounds of appeal , but gives no reasons .

The ORG has been referred to CARDINAL recent official document relating to LAW generally . It is GPE , issued in DATE as a manual of reference and best practice for the information and guidance of civil servants . It has forewords by the then Bailiff and President of the GPE , Sir PERSON , and by ORG , Mr F.N. Le Cheminant . The section dealing with the LAW and law of GPE is taken from a pamphlet by a former Bailiff , and the part dealing specifically with the position of the Bailiff reads as follows :

“ The Bailiff is the LOC ’s chief citizen and representative .

The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her ORG subject to a retiring DATE . He is President of ORG , President of ORG , President of ORG , President of ORG and head of the Administration .

The Bailiff , as President of ORG , is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided . In general , the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt . He places measures before the States at the request of ORG but he can also on his own initiative place any matter before the assembly .

He is , with the Lieutenant - Governor , a channel of communication between ORG and the Secretary of ORG for ORG on the one hand and on the other , the Island authorities ; and in a number of questions , as the head of ORG , he would be expected to guide the LOC authorities .

He has been relieved of some of his administrative responsibilities by the appointment of ORG which is in the nature of a co - ordinating committee with advisory powers but the Bailiff may , in his own discretion , lay before the GPE any matter which he has previously referred to the ORG providing that he gives the ORG an opportunity to acquaint the GPE with its views .

While the Bailiff is responsible for arranging the business to come before the GPE , he is not in a position to refuse to place before the GPE any question of business if so requested by Members or ORG . The assembly looks to the Bailiff for advice on matters affecting LAW .

In the course of insular legislation or in discussions arising from communications from ORG or ORG , it is the duty of the Bailiff to represent the views of the LOC in constitutional matters .

In the event of differences between the ORG and the GPE it is the historical duty of the Bailiff to represent the views of the people of the LOC . ”

The Bailiff is the senior judge of ORG . In DATE , he has usually occupied the offices of Her Majesty ’s Comptroller , Her Majesty ’s Procureur ( Solicitor - General and Attorney - General respectively ) and , since DATE , Deputy Bailiff , before finally becoming Bailiff . In his judicial capacity , the Bailiff is the professional judge ( with the lay PERSON ) in ORG , and is ex officio President of ORG . In his non - judicial capacity , the Bailiff is President of GPE , of CARDINAL GPE committees ( ORG , ORG , ORG and LAW ) , and he plays a role in communications between the island authorities and the government of GPE and ORG . Where the Bailiff presides in his non - judicial capacity , he has a casting , but not an original , vote .

The States of Election elects people to fill the vacancies which occur amongst the CARDINAL PERSON . PERSON sit as lay members of ORG . It is their function to determine the issues of fact referred to them , and to decide whether or not to allow an appeal . They also sit on certain of the GPE committees , either because a committee mandate requires the election of a NORP or by reason of abilities or interests personal to them . PERSON are not , however , eligible to sit on ORG , ORG or any GPE committee which administers legislation the provisions of which include a right of appeal to ORG against a decision of that committee .

The States of Deliberation exercises its legislative power in GPE in the form of LAW . In practice , a “ ORG d’Etat ” is laid before the GPE , generally by CARDINAL or other of the GPE committees . Having passed through ORG , PERSON ( draft laws ) are scrutinised by ORG and other relevant departments of the GPE government before being submitted to ORG in GPE for royal assent . Ordinances do not need royal assent and are made under GPE limited common - law powers , or under powers delegated to the GPE by GPE laws or Acts of the GPE parliament applicable to GPE .

The States of Deliberation is not divided on party political lines ; members of the GPE are elected as individuals , and vote in all matters according to their consciences . All members are of equal importance , and there are no time - limits on the length of speeches or debates generally . The ORG is scheduled to meet CARDINAL times each calendar year . Sittings usually DATE .

The GPE committees conduct the government of GPE . There are CARDINAL GPE committees , to which specific administrative tasks are given by statute or delegated by ORG . Each committee is directly accountable to ORG .

None of the GPE committees has legal supremacy over the others , although ORG is the most important . It oversees ORG matters and examines all proposals and reports which are to be placed before ORG . The committees , each of which has a Chief Officer or Chief Executive , are supported by a professional civil service of CARDINAL staff .

ORG , one of the GPE committees , appoints officials to fill certain offices in the States’ service when those offices become vacant . With limited exceptions , it appoints at the level of Senior Officer PERSON CARDINAL or above . The offices include ORG and other senior civil servants such as senior medical personnel , the Prison Governor and the Chief Officer of Police . It has never appointed a Chief Executive of the ORG . ORG met CARDINAL times in DATE prior to DATE .

ORG has the power to declare a state of emergency , to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life , and to make other essential arrangements in the case of hostile attack by a foreign power . It has met CARDINAL times in DATE . On none of those occasions was a state of emergency declared .

ORG , which meets about once a month , reviews and revises ORG , reviews and drafts PERSON and , in certain cases , orders that an GPE shall come into force pending consideration by ORG . The latter function has been used on CARDINAL occasions in DATE .

The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of ORG , receives representations from the GPE and makes representations to the GPE for amendments to the Rules . It has met CARDINAL times in DATE .

The Bailiff ’s role in communications between the island authorities and the government of GPE and ORG arises from his historical function of representing the views of the islanders to the ORG . The Bailiff represents a GPE committee ’s views outside the island when specifically requested to do so , and in accordance with a clear mandate . Representations are generally on behalf of the smaller committees . Examples of this function are the Bailiff ’s involvement in negotiating the level of fees payable in respect of GPE students attending higher education institutions in GPE , and in requesting the government to ensure that FAC should have slots for aircraft from regional airports such as GPE .

The States Supervisor , the Chief Officer of ORG , is the committee ’s senior adviser on policy , and is also head of the GPE civil service . He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to ORG and comments on them for the benefit of ORG deliberations on them . He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate .

Section CARDINAL(CARDINAL)(a ) of GPE DATE provides :

“ A person shall not , without the permission in writing in that behalf of ORG , carry out development of any land . ”

Section CARDINAL(a ) provides :

“ In exercising its powers under the provisions of the last preceding section the ORG shall take into account the ORG and ORG when approved by the GPE and any relevant Detailed Development Plans when so approved . ”

In the case of ORG v. ORG ( DATE ) , a challenge was made to the participation of the Bailiff as a judge in ORG in an action against ORG , CARDINAL of the major GPE committees . ORG noted that the then Bailiff , at first instance , had held :

“ Insofar as the constitutional position is concerned ... my first duty is to the ORG in all matters , and I do not espouse causes of the GPE . ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally . The way I defined that was to vote against any proposition before the LAW and only if that vote impinged on my conscience would I contemplate any other course . ”

In connection with the existence of an appeal to it , ORG noted :

“ ... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this ORG . ”

As to the participation of the Bailiff , ORG found that :

“ ... the Bailiff is invested by law with duties in ORG and in the GPE . The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the GPE . I do not think that on these occasions his responsibility in the GPE disqualifies him from discharging his responsibility in this ORG . He can properly discharge both responsibilities because although he is a member of the GPE his special position there means he is not responsible for the decisions of the GPE or the acts of its agencies ... ”


ORG In DATE the applicant was convicted of the murder of a woman whom he had violently assaulted . He was sentenced to a mandatory term of life imprisonment . At that time the doctor who examined him found no signs of mental illness or abnormality . In DATE he was released on life licence after a positive recommendation by ORG .

ORG In DATE the applicant killed a DATE woman who was placing flowers on a family grave in a GPE cemetery . He cut her throat with a knife . In DATE he pleaded not guilty to murder , but guilty to manslaughter on the ground of diminished responsibility . This plea was accepted by the court and in DATE a discretionary sentence of life imprisonment was imposed ( see paragraph CARDINAL below ) . The trial judge considered that a life sentence was appropriate in view of the extreme danger to the public which the applicant represented . The court , at the same time , revoked his life licence under section CARDINAL ( CARDINAL ) of LAW DATE ( " LAW " ; see paragraphs CARDINAL and CARDINAL below ) . The applicant claims that he was informed in DATE by prison officers at FAC that he was subject to the regime for discretionary life sentences .

ORG In DATE the applicant was transferred to the hospital wing of FAC . Since then he has been transferred to FAC where he is held as a " Category A " ( high security ) prisoner .

ORG The applicant was considered for parole by ORG in DATE . ORG recommended that his case be referred again to the local review committee in DATE . By letter dated DATE to the applicant ’s Member of ORG , ORG gave the following information :

" In accordance with paragraph CARDINAL [ of LAW of LAW ] , the trial judge and Lord Chief Justice were consulted in DATE . In the light of their views , it was decided that [ the applicant ’s ] case should be referred to the local review committee , as the first stage in a formal review by ORG , in DATE .

The local review committee considered the case at that time [ DATE ] and ORG considered it in DATE . ORG did not feel able to recommend [ the applicant ’s ] release and recommended instead that it should be referred to the local review committee ( as the first stage in a further formal review ) in DATE . This recommendation was accepted and [ the applicant ] was informed accordingly . He should have been told in DATE , but owing to an oversight at Gartree I am afraid that he was not informed until DATE . You will appreciate that I can not forecast what the outcome of the next review will be or say when [ the applicant ] might be released . When ORG consider [ the applicant ’s ] case in DATE the tariff will have been satisfied and the question of risk will be the overriding consideration . Indeed , ORG will have borne the question of risk in mind in making their recommendation as to the date of the next review . As you know , the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory , no matter how long he has been detained . "

ORG He subsequently learned that the " tariff " period fixed by the trial judge in respect of his second offence expired in DATE ( see paragraph CARDINAL below as regards the " tariff " period ) .

ORG In a ORG memorandum dated DATE the applicant was informed that the " tariff " in respect of his conviction in DATE had now been served and that his continued detention was based on the risk he represented .

ORG Murder carries a mandatory sentence of life imprisonment under ORG DATE . A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge . Such a discretionary life sentence of imprisonment may also be passed in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside ( see , in this connection , GPE PERSON and PERSON v. the GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL ) .

ORG Under LAW of LAW the Secretary of ORG may release on licence a person sentenced to life imprisonment only if recommended to do so by ORG , and after consultation with the Lord Chief Justice of GPE and the trial judge if available . By virtue of section CARDINAL ( CARDINAL ) the Secretary of ORG may revoke the licence of a person whose recall to prison is recommended by ORG .

ORG Under LAW ( CARDINAL ) of LAW , if a person subject to a licence is convicted on indictment of an offence , the trial court may , whether or not it passes any other sentence on him , revoke the licence .

ORG The effect of revocation of a licence , whether by the Secretary of ORG or by a court , is that the person is liable to be detained in pursuance of his sentence ( section CARDINAL ( CARDINAL ) of LAW ) .

It is the duty of ORG to advise the Secretary of ORG with respect to , inter alia , the release on licence under LAW , and the recall CARDINAL , of persons whose cases have been referred to ORG by the Secretary of ORG ( section CARDINAL of LAW ; see also the above - mentioned GPE , PERSON and PERSON judgment , pp . DATE , paras . CARDINAL ) .

ORG Prior to DATE , in respect of both mandatory and discretionary life sentences , the Secretary of ORG would receive the views of the judiciary ( the trial judge and the Lord Chief Justice ) on the period deemed necessary to satisfy the requirements of retribution and deterrence ( " the tariff period " ) and of ORG on the question of risk . The Secretary of ORG would decide when , if at all , it was appropriate to release the prisoner on life licence .

He accepted the views of the judiciary , in discretionary life sentence cases , as to the length of the tariff period . However , in mandatory life sentence cases he formed his own judgment on that question , taking into account the views of the judiciary ( for the distinction between discretionary and mandatory life sentences , see the above - mentioned LAW , PERSON and PERSON judgment , pp . CARDINAL , paras . CARDINAL ) .

ORG Following the judgment of ORG in the case of GPE , PERSON and PERSON ( loc . cit . ) changes to the procedures for the release of discretionary life prisoners were introduced by LAW DATE ( " the CARDINAL LAW ) . ORG decided , however , not to extend these changes to mandatory life sentences . Under LAW of this Act discretionary life prisoners are now informed by the trial judge , in open court , of the tariff period appropriate for the offence . After the expiry of that period , the prisoner has a right to be released on life licence if and when ORG decides that it is safe to do so . They are entitled to appear before the ORG in person , to see all the reports placed before it , and to call witnesses and submit documentary evidence . When the ORG decides that a prisoner should be released the Secretary of ORG is under a duty to do so ( section CARDINAL ( CARDINAL ) of the DATE Act ) .

Section CARDINAL ( CARDINAL ) ( a ) of the DATE Act specifically excludes from eligibility for review under the new procedures a discretionary life prisoner who is also serving a mandatory life sentence .

ORG In the debate in ORG on DATE concerning this legislation , the Minister of ORG for ORG made the following statement concerning the differences between mandatory and discretionary life sentences :

" Mandatory life sentence cases ... raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases . In a discretionary case , the decision on release is based purely on whether the offender continues to be a risk to the public . The presumption is that once the period that is appropriate to punishment has passed , the prisoner should be released if it is safe to do so .

The nature of the mandatory sentence is different . The element of risk is not the decisive factor in handing down a life sentence . According to the judicial process , the offender has committed a crime of such gravity that he forfeits his liberty to the ORG for the rest of DATE . If necessary , he can be detained for life without the necessity for a subsequent judicial intervention .

The presumption is , therefore , that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner ’s release than by his continued detention . In exercising his continued discretion in this respect , the Home Secretary must take account not just of the question of risk , but of how society as a whole would view the prisoner ’s release at that juncture . The Home Secretary takes account of the judicial recommendation , but the final decision is his . "

ORG In relation to mandatory life prisoners , the Secretary of ORG continues to decide the length of the tariff after considering advice from the judiciary and any representations which the prisoner wishes to make . After the expiry of that period , he has power to release the prisoner on life licence if recommended to do so by ORG . The decision on whether to release is for him alone .

ORG On DATE the Secretary of ORG made a statement in ORG explaining his practice in relation to mandatory life prisoners . The statement emphasised that before any mandatory life prisoner is released on life licence , the Secretary of ORG

" will consider not only , ( a ) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and , ( b ) whether it is safe to release the prisoner , but also ( c ) the public acceptability of early release . This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice " .

ORG In determining the principles of fairness that apply to the procedures governing review of mandatory life sentences , the LANGUAGE courts have recognised that the mandatory sentence is , like the discretionary sentence , composed of both a punitive period ( the " tariff " ) and a security period . As regards the latter , detention is linked to the assessment of the prisoner ’s risk to the public following the expiry of the " tariff " ( NORP v. ORG , ex parte Bradley ( ORG ) [ DATE ] CARDINAL Weekly Law Reports CARDINAL ; NORP v. ORG , ex parte ORG ) [ DATE ] CARDINAL All England Reports CARDINAL ; NORP v. Secretary of ORG for ORG , ex parte PERSON ( judgment of ORG DATE ) ; NORP v. ORG , ex parte Creamer and Scholey ( judgment of ORG of DATE ) ) .

ORG In NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL ORG , ORG observed that , in contrast with the position as regards discretionary life sentences , the theory and the practice in respect of mandatory life sentences were out of tune .

In his speech , with which the other Law Lords agreed , Lord PERSON explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a " tariff " period to reflect the requirements of retribution and deterrence . A mandatory life prisoner knew that once he had served the penal element of his sentence the penal consequences of his crime had been exhausted .

Nevertheless , the Secretary of ORG was not obliged to adopt the judicial view of the " tariff " period and it was he who was entrusted with the task of deciding on the prisoner ’s release . He was entitled to depart from the judge ’s advice and to have regard to broader considerations of a public character than those which applied to an ordinary sentencing function . He added ( loc . cit . , p. CARDINAL ) :

" The discretionary and mandatory life sentences , having in the past grown apart , may now be converging . Nevertheless , on the statutory framework , the underlying theory and the current practice there remains a substantial gap between them . It may be - I express no opinion - that the time is approaching when the effect of the CARDINAL types of life sentence should be further assimilated . But this is a task for ORG , and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the ORG , through the medium of judicial review . "

Lord PERSON considered that , having regard to the rights which discretionary prisoners had , the Secretary of ORG was required to comply with the following requirements of procedural fairness when fixing the penal element in a mandatory life sentence : the Secretary of ORG must inform such a prisoner of the judicial advice on the length of the " tariff " , and give him the opportunity to make written representations on that subject before he decides on the appropriate term of DATE . If the Secretary of ORG departs from the judicial advice , he must give reasons for doing so .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

NORP 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 , PERSON .

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

Alleged ill - treatment and investigation

On DATE , the applicant was found guilty of aggravated infliction of bodily harm and sentenced to DATE imprisonment . The applicant began to serve his sentence in GPE prison .

On DATE , due to violations of the internal prison rules , the applicant was transferred from GPE prison to GPE prison and on DATE he was transferred to Daugavpils prison .

According to the applicant , on DATE in NORP prison he had felt weak due to being on hunger strike , and had lain down on the floor . A prison guard had approached him and kicked him in the left knee once . DATE another prison guard kicked him in the left side CARDINAL times . Afterwards , on DATE the prison guards humiliated the applicant several times by lifting him up together with his bed and throwing it onto the floor .

On DATE the applicant complained to the prison doctor about permanent pain in his left knee allegedly caused by ill - treatment by a prison guard . According to the medical report the doctor detected a deformation in the joint of the applicant 's left knee . It also stated that the knee was not swollen and the skin of the knee was of a normal colour . It was concluded that the deformation of the applicant 's left knee was caused by chronic arthrosis . Following another medical examination on DATE the applicant was diagnosed with inflammation of the left knee joint .

On DATE the applicant was transferred to ORG and on DATE he was admitted to the surgical unit of the hospital , where his previous diagnosis was confirmed .

On DATE during a medical examination at the hospital the applicant complained of a swollen knee . He also stated that DATE he had fallen on his left knee .

On DATE the applicant left the hospital after having received medical treatment and having refused to have his knee operated on .

Meanwhile , on DATE the applicant had applied to ORG complaining that from DATE to DATE the NORP prison guards had ill - treated him ( see paragraph CARDINAL above ) . He also complained to ORG about the circumstances of his transfer from NORP prison to FAC DATE , alleging that he had not been provided with nutrition during the transfer .

On DATE a prosecutor from ORG met with the applicant in private and obtained statements from him .

On DATE ORG ordered a forensic medical report on the applicant 's knee injury .

On DATE the applicant underwent forensic medical tests . The medical expert 's referred to the applicant 's medical history by stating , inter alia , that in DATE the applicant has complained about pain in spine and his right leg . In order to reach a conclusion the experts requested additional medical records from ORG .

On DATE ORG dismissed the applicant 's claim concerning the conditions of his transfer to FAC .

On DATE the forensic medical expertise concluded that the swelling in the applicant 's left knee was associated with chronic changes to the knee joints caused by deforming arthrosis and bursitis .

On DATE a prosecutor of ORG decided not to initiate criminal proceedings regarding the alleged ill - treatment in NORP prison . The decision was supported by the results of the expert report and the results of the internal investigation undertaken by the head of NORP prison . According to the latter , on DATE , DATE and DATE prison guards had inspected the cell without using any force against the applicant . The applicant did not appeal against the decision to a prosecutor of a higher rank .

From DATE to CARDINAL DATE the applicant was repeatedly admitted to ORG concerning his joint disease .

Alleged inference with the applicant 's right to respect for his correspondence

According to the applicant , on DATE he complained to ORG that the PERSON prison administration had confiscated complaints he had drafted to various ORG institutions . He also asked ORG to forward his letters , without specifying their contents , to ORG and the Minister of Justice . The letters to the latter authorities were in a sealed envelope attached to the letter addressed to ORG .

Following the applicant 's inquiry on DATE ORG informed the applicant that it had not received his complaint of DATE .

On DATE , naming the document “ a copy of the letter of CARDINAL July DATE ” , the applicant sent to ORG an identical complaint with attached sealed letters addressed to ORG and ORG .

On DATE ORG asked the ORG prison authority to examine the applicant 's complaints , whereas the letters addressed to other ORG institutions were returned to the applicant informing him that they could be sent at his own expense directly to the recipients .

On DATE ORG replied to the applicant on the merits of his complaint of DATE , which was allegedly the copy of the letter from DATE .

On DATE the applicant repeatedly asked ORG to forward a sealed envelope to ORG .

On DATE and DATE ORG received letters from the applicant .

Under section CARDINAL of the code convicted persons have the right to write proposals , submissions and complaints to ORG institutions , public organisations and officials . Proposals , submissions and complaints of convicted persons shall be sent to the appropriate persons and decided in accordance with the procedures prescribed by law . Proposals , submissions and complaints addressed to the prosecutor shall not be monitored and shall be dispatched within TIME ( as worded at the material time ) .


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE ORG found the applicant guilty of membership of an organised criminal group , several counts of attempted aggravated murder , intentional destruction of property and arms possession and sentenced him to CARDINAL years’ imprisonment , which he was sent to serve in correctional colony no . CARDINAL , GPE .

On DATE the applicant brought an action with ORG , complaining of various violations of his rights by the administration of correctional colony no . CARDINAL . In particular , he complained that on a number of occasions in DATE and DATE the director of the correctional colony had ordered him to be placed in a punishment cell , which had entailed a serious worsening of the general conditions of his detention and limitation or deprivation of his rights as a detainee . The applicant also argued that the colony authorities had unlawfully seized his writing utensils , and had forbidden him to use the colony library and to purchase newspapers , magazines and books . He further alleged that they had not allowed him to have meetings with counsel and to make paid phone calls to his relatives , counsel and ORG . His biggest grievance , however , was that the administration had refused to post his complaints to various authorities in GPE and had monitored or even intercepted his correspondence with ORG . The applicant also requested that ORG ensure that he could be present at a court hearing during the examination of his complaint .

Following a number of refusals by ORG to grant the applicant ’s request , and the subsequent revocation of those decisions by ORG , on DATE the ORG granted leave to bring an action for an examination on the merits , and set a preliminary hearing for DATE . Subsequent hearings were held on DATE . The applicant was not informed of either of those hearings . In fact , on DATE he was transferred to another correctional colony in the town of Verkhneuralsk , GPE , QUANTITY from his previous place of detention .

On DATE the applicant was transferred to detention facility no . CARDINAL in GPE .

On DATE ORG dismissed the applicant ’s complaint , having found that either the restrictions on the applicant ’s rights had been lifted following an inquiry by prosecution authorities or they had been warranted by the applicant ’s placement in the punishment cell , in view of numerous instances of unlawful behaviour on his part , such as refusal to keep his cell tidy , destruction of colony property , and so on . The applicant was not brought to the hearing . Representatives of the colony administration attended the hearings before ORG and made oral submissions .

By a separate decision issued on CARDINAL DATE ORG responded to the applicant ’s request to be present at the hearings . In particular , ORG held as follows :

“ [ The applicant ] , having been convicted by the judgment of DATE of ORG , is currently serving his sentence . It appears from the case file materials that he was transferred outside GPE . [ The applicant ] lodged a complaint about the actions of the head of [ correctional colony no . CARDINAL ] , GPE ... ; accordingly , his complaint is being examined by ORG within the civil procedure . LAW of GPE , in force at the material time , does not provide for an opportunity to transfer convicts to [ ensure ] their participation in court hearings in civil cases ; therefore it is impossible for the court to ensure [ the applicant ’s ] presence at the hearings in the present civil case . ”

NORP The applicant appealed , arguing , inter alia , that ORG had unlawfully refused to ensure his presence at the hearings , despite the fact that the majority of the circumstances in dispute were exclusively within his personal knowledge and it was important for ORG to hear both parties to the proceedings , the applicant and the administration .

At a hearing on CARDINAL DATE , held in the applicant ’s absence , ORG upheld the judgment of CARDINAL DATE , endorsing ORG reasoning , including that on the subject of the applicant ’s attendance .

The Code of Civil Procedure of GPE ( ORG ) provides that individuals may appear before a court in person or may act through a representative ( LAW ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has dismissed as inadmissible complaints by detainees whose requests for leave to appear were refused by civil courts . It reasoned that the relevant provisions of LAW and LAW did not , as such , restrict a detainee ’s access to court . ORG has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court , either through a representative or in any other way provided by law . If necessary , a hearing should be held at the convict ’s place of detention , or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict ’s place of detention to obtain his / her submissions or to take any other procedural steps ( decisions CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) .

Under Articles CARDINAL and CARDINAL of the ORG a court may hold a session elsewhere than in a court - house if , for instance , it is necessary to examine evidence which can not be brought to the court - house .

Article CARDINAL of the ORG contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances . By a ruling of CARDINAL DATE ORG indicated that this LAW should be interpreted as , in principle , allowing a procedure to be launched to have a final judgment re - examined on account of newly discovered circumstances , such as the finding of a violation of LAW in a given case by ORG .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Loukis Loucaides;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants are NORP nationals . Their names , dates of birth and places of residence are set out in the FAC . They are represented by PERSON PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Ms PERSON , Mr PERSON and Mr ORG , lawyers practising in GPE .

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

The applicants stated that they are relatives of CARDINAL NORP - Cypriot men , both civilians and army personnel , who went missing in DATE following the invasion of northern GPE by NORP armed forces . These men were listed as missing persons , the information being given to ORG and ORG .

The respondent Government stated that the relatives of ORG had already known that he had died at the time of the events in DATE but that his body could not be recovered due to the conflict . They pointed out that his name was not submitted to the authorities as CARDINAL of the men who had gone missing .

The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons ( “ CMP ” ) between DATE . Further details are set out in the LOC .

On DATE the lawyer for the applicants in the group of applications ( ( nos . CARDINAL/CARDINAL , ORG , CARDINAL , CARDINAL , ORG , DATE , DATE , ORG and ORG ) landed from GPE at GPE international airport for a DATE business and private trip as he had done before . At passport control , he was held up for TIME and then confined to the airport terminal . In TIME , after TIME , his passport was returned and he was put on a plane back to GPE . He was questioned by the NORP police on arrival as the NORP authorities had described him to the airline and NORP authorities as “ unwanted ” .


Violation of Art. 5-4;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr PERSON was born in DATE and is currently detained in GPE prison .

ORG On DATE , the applicant - then aged CARDINAL - was convicted at ORG of the murder of his younger brother , aged CARDINAL . The applicant had inflicted severe injuries on the infant while looking after him . He received a mandatory sentence of detention " during Her Majesty ’s pleasure " pursuant to section CARDINAL ( CARDINAL ) of ORG as amended ) ( see paragraph CARDINAL below ) . Its effect was to render the applicant " liable to be detained in such a place and under such conditions as the Secretary of ORG [ for ORG ] may direct " .

ORG In passing sentence on the applicant , the judge stated :

" I regard you as someone who has demonstrated himself tobe a cruel and unfeeling young man . I think you are -certainly for the time being - a dangerous person . "

The applicant appealed against both his conviction and sentence . ORG dismissed his appeal on CARDINAL DATE .

Mr PERSON was first detained in the youth wing of GPE prison and then in a young ORG institution before being transferred to an adult prison .

ORG Under the administrative procedures governing such sentences as that received by the applicant , a " tariff " period is set to fix the number of years’ detention necessary to satisfy the requirements of retribution and deterrence ( see paragraph CARDINAL below ) . In this regard , in DATE the trial judge wrote to the Secretary of ORG :

" Over DATE immediately preceding thebaby ’s death , [ the applicant ] had undoubtedly treated himwith very considerable violence by slapping , kicking andshaking . The baby was covered with CARDINAL bruises andhis brain and spine were injured . Since [ the ORG ever having laid hands on him , it was not possibleto discover why he had acted with such violence . [ The applicant ] is unquestionably an unscrupulous youngliar , but the most unusual feature of him was hisimpassivity . He demonstrated no feeling whatsoever forhis brother ’s injuries and death . This gave me the impression that he is very probably avery dangerous young man who is quite unmoved bybrutality . I am anxious that this aspect of hischaracter should be borne fully in mind whenever thequestion of release arises . He still has CARDINAL youngsiblings and their safety must be a predominantconsideration . I am deeply concerned at the appearanceof normality this young man gives ; it is probably verymisleading . I can not recommend any period for his detention . It willhave to continue until one can say with reasonablecertainty that maturation has rendered him safe . PERSON is that he is already ` old for his years’ , asone police officer described him . PERSON hereinvolves much more than simply a young boy growing up . I can do no more than sound this sombre note of warning . "

ORG It was not until DATE that the applicant ’s tariff was set , at DATE , by the Secretary of ORG after a confidential process of consultation involving the trial judge and the Lord Chief Justice . In the course of this process , in which the applicant had no sight of any of the documents , the trial judge recommended a period of DATE " in view of the young age of [ the ] prisoner at the time of the offence " ; the Lord Chief Justice agreed but stated that this should be " the absolute minimum " . However , the Secretary of ORG commented : " I can not accept the judicial tariff as matching the gravity of CARDINAL of the most appalling offences I have encountered . "

He accordingly increased the proposed tariff by DATE . The applicant first learnt about these details through a letter from ORG DATE , sent in accordance with the ORG of Lords’ judgment of DATE ( see paragraph CARDINAL below ) .

ORG In the course of the applicant ’s detention ORG ( see paragraph CARDINAL below ) has so far considered whether or not to recommend the applicant ’s release on CARDINAL occasions .

ORG The first ORG review took place in DATE . The reports of progress were positive and , as later disclosed to the applicant :

" ORG [ see paragraph CARDINAL below ] , whofelt that the risk was acceptable , considered PERSON suitable to be given a provisional release date . "

ORG did not however recommend the applicant ’s release but it did recommend that he be transferred to a less restrictive category C prison with a further review to commence in DATE . At the time , the applicant did not see any of the reports before ORG and had no opportunity to appear before it .

ORG The second ORG review took place in DATE . ORG summary of the review , disclosed later to the applicant , stated :

" ORG recommended that Mr Hussainshould be given a provisional release date ... ORG did not recommend PERSON release , butrecommended his transfer to open conditions with afurther review to commence DATE thereafter . However , the Secretary of ORG rejected the Board’srecommendation and directed that he should move toanother category C prison with a further review tocommence in DATE . "

Again the applicant did not see any of the reports on him and was afforded no hearing before ORG . He was given no reasons for the decisions taken .

ORG In the third review in DATE , ORG recommended that the applicant be transferred to open conditions with a further review in CARDINAL months’ time . However , the Secretary of ORG , in exercise of his statutory powers ( see paragraph CARDINAL below ) , rejected this recommendation , directing that the applicant remain in close conditions with a further review to commence in DATE . The applicant was only informed in DATE that his release had not been recommended and about the date of his next review .

ORG In DATE , PERSON applied for judicial review ( see paragraph DATE below ) in respect of the decision communicated in DATE on the basis that he had not been shown the reports on him placed before ORG . He relied on the case of PERSON ( see paragraph CARDINAL below ) as establishing that persons detained during Her Majesty ’s pleasure had a right at common law to disclosure of reports .

ORG On DATE , ORG gave ORG an undertaking to reconsider the applicant ’s case immediately and to disclose their case file to him so that he could make informed representations . The applicant withdrew his application for judicial review .

ORG At his most recent review in DATE , the applicant was shown the reports on him that were before ORG but he was not given an opportunity to appear in person before the ORG . Following this review , the Secretary of ORG accepted ORG recommendation to transfer the applicant to open - prison conditions , which transfer took place in DATE . ORG will again consider the applicant ’s case in DATE .

ORG The applicant has been detained for DATE .

ORG A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder . LANGUAGE law imposes a mandatory sentence for the offence of murder : " detention during Her Majesty ’s pleasure " if the offender is under the age of CARDINAL ( section CARDINAL ( CARDINAL ) of ORG as amended ) - see paragraph CARDINAL below ) ; " custody for life " if the offender is DATE ( LAW CARDINAL ( CARDINAL ) of LAW DATE ) ; and " life imprisonment " for an offender aged CARDINAL or over ( section CARDINAL ( CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .

Mandatory life sentences are fixed by law in contrast to discretionary life sentences , which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( for example manslaughter , rape , robbery ) . The principles underlying the passing of a discretionary life sentence are :

( i ) that the offence is grave and

( ii ) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside .

Discretionary life sentences are indeterminate so that " the prisoner ’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large " ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , CARDINAL ) .

ORG The notion of detention during Her Majesty ’s pleasure has its origins in statutory form in an LAW for " the safe custody of insane persons charged with offences " ( Criminal Lunatics Act ) , which provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in " strict custody until His Majesty ’s pleasure shall be known " and described their custody as being " during His [ Majesty ’s ] pleasure " .

ORG In DATE , detention during His ORG pleasure was introduced in respect of offenders aged DATE . It was extended to cover those under DATE at the time of conviction ( DATE ) and further extended to cover persons under DATE at the time when the offence was committed ( DATE ) .

ORG The provision in force at present is LAW ( CARDINAL ) of ORG as amended ) ( " LAW " ) which provides :

" A person convicted of an offence who appears to thecourt to have been under DATE at thetime the offence was committed shall not , if he isconvicted of murder , be sentenced to imprisonment forlife , nor shall sentence of death be pronounced on orrecorded against any such person ; but in lieu thereof thecourt shall ... sentence him to be detained during ORG ’s pleasure and , if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of ORG may direct . "

ORG In the case of NORP v. Secretary of ORG for ORG , ex parte PERSON ( DATE , unreported ) Lord Justice PERSON in ORG held as follows in respect of detention " during Her ORG ’s pleasure " :

" At the time of sentencing , the detention orders undersection CARDINAL were mandatory . It is indeed the statutoryequivalent for young persons of the mandatory lifesentence for murder . But the sentence itself is closerin substance to the discretionary sentence of which partis punitive ( retribution and deterrence ) and the balancejustified only by the interests of public safety when thetest of dangerousness is satisfied . The fact that themandatory life prisoner may be given similar rights asregards release on licence does not alter the fact thatthe mandatory life sentence is justifiable as punishmentfor the whole of its period : see NORP v. Secretary of StateEx . p. Doody & Others [ DATE ] Q.B. CARDINAL and PERSON v. DATE ) . The order for detentionunder section CARDINAL is by its terms both discretionary andindeterminate : it provides for detention ` during ORG ’s pleasure’ ... I would decide the present case onthe narrow ground that , notwithstanding ORG practice , the applicant should be regardedas equivalent to a discretionary life prisoner for thepurpose of deciding whether ORG rather than PERSON his case . "

( transcript , pp . CARDINALC-CARDINALB )

The court accordingly held that the applicant in the case , detained during Her Majesty ’s pleasure , should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before ORG when it decided whether he should be released after his recall to prison on revocation of his licence .

ORG has changed its policy accordingly .

ORG However , in a statement in ORG made on DATE ( see paragraph CARDINAL below ) , the Secretary of ORG , Mr PERSON , explained that he included in the category of " mandatory life sentence prisoners " those

" persons who are , or will be , detained during ORG ’s pleasure under LAW ( CARDINAL ) of ORG ... "

ORG In NORP v. Secretary of ORG for ORG , ex parte T. and Others [ DATE ] ORG Bench CARDINAL , CARDINAL , Lord Justice PERSON in ORG ( with whom Mr Justice PERSON agreed ) said :

" I see no reason to regard him as having any specialstatus because he was sentenced to detention [ during ORG ’s pleasure ] rather than to life imprisonment , despite what was said by ORG when giving judgment inReg . v. ORG , ex parte PERSON ( ORG DATE , unreported ) . The issues in that casewere very different from those with which we areconcerned . If PERSON had not been sent to hospital hecould hope to benefit from the provisions ofsection CARDINAL ( CARDINAL ) of the DATE Act [ on mandatory lifeprisoners ] ... It will be recalled that in ORG ’s casethe offence was murder , so the sentence was mandatory notdiscretionary . "

On appeal ORG stated that in respect of a person sentenced to detention during Her ORG ’s pleasure under LAW ( CARDINAL ) of LAW for the offence of murder , the relevant provisions on release were those in LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , and not those relating to a discretionary life prisoner ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL ) .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her ORG pleasure have a " tariff " set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular following the coming into force on DATE of LAW DATE ( " the CARDINAL LAW ) .

ORG LAW ( CARDINAL ) of LAW DATE ( " LAW " ) provided , inter alia , that the Secretary of ORG , on the recommendation of ORG and after consultation with the Lord Chief Justice and the trial judge , may " release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section CARDINAL of ORG . In this respect no difference was made between discretionary and mandatory life prisoners .

ORG By virtue of LAW ( CARDINAL ) of the DATE Act , persons detained during Her Majesty ’s pleasure and those life prisoners who are not discretionary life prisoners ( see paragraph CARDINAL above ) , may be released on licence by the Secretary of ORG , if recommended to do so by ORG and after consultation with the Lord Chief Justice and the trial judge . The decision on whether to release still lies , therefore , with the Secretary of ORG .

ORG The Secretary of ORG also decides the length of a prisoner ’s tariff . Subsequently to a ORG judgment of DATE ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL , CARDINAL G ) , the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG who then proceeds to fix the tariff . Where the Secretary of ORG decides to depart from the judicial recommendation he is obliged to give reasons . As a matter of practice the prisoner is informed of the Secretary of ORG ’s final decision .

In the second , post - punitive phase of detention the prisoner knows that " the penal consequence of his crime has been exhausted " ( ibid . , CARDINAL ) .

ORG A statement of policy issued by Sir PERSON , then Secretary of ORG for ORG , on CARDINAL DATE indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public .

ORG On DATE the Secretary of ORG , Mr PERSON , made a statement of policy in relation to mandatory life prisoners , stating , inter alia , that before any such prisoner is released on licence he

" will consider not only , ( a ) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and , ( b ) whether it is safe torelease the prisoner , but also ( c ) the publicacceptability of early release . This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice " .

ORG In a number of recent court cases involving persons detained during Her Majesty ’s pleasure , it has been stated that the correct test for post - tariff detention was to be whether the offender continued to constitute a danger to the public ( NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE ; NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE - cited above at paragraph CARDINAL ; NORP v. Secretary of ORG for ORG , ex parte PERSON ( no . CARDINAL ) , DATE ) .

ORG The DATE Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .

ORG Pursuant to section CARDINAL of the CARDINAL Act , the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner is entitled to an oral hearing , to disclosure of all evidence before the panel ( see paragraph CARDINAL below ) and to legal representation . There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross - examine those who have written reports about him .

ORG For the purposes of the DATE Act , persons detained during Her Majesty ’s pleasure are not regarded as discretionary life prisoners ( section CARDINAL ( CARDINAL ) ) .

ORG LAW of LAW set out the constitution and functions of ORG :

" ( CARDINAL ) For the purposes of exercising the functionconferred on it by this Part of this LAW and GPE there shall be a body known as ORG ... consisting of a chairman and not lessthan CARDINAL other members appointed by the Secretary ofState .

( CARDINAL ) The following provisions shall have effect withrespect to the proceedings of ORG on any casereferred to it , that is to say

( a ) the ORG shall deal with the case onconsideration of any documents given to it by theSecretary of ORG and of any reports it has calledfor and any information whether oral or in writingthat it has obtained ; and

( b ) if in any particular case ORG thinks it isnecessary to interview the persons to whom the caserelates before reaching a decision , the ORG mayrequest CARDINAL of its members to interview him andshall take into account the report of that interviewby that member ...

( CARDINAL ) The documents to be given by the Secretary of ORG under the last foregoing subsection shallinclude

( a ) where the case referred to the ORG is CARDINAL ofrelease under section CARDINAL of this Act , anywritten representations made by the person to whomthe case relates in connection with or since hislast interview in accordance with rules under thenext following subsection ;

( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representations made under that section . "

As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :

" CARDINAL . ORG shall include among its members

( a ) a person who holds or has held judicial office ;

( b ) a registered medical practitioner who is apsychiatrist ;

( c ) a person appearing to the Secretary of ORG tohave knowledge and experience of the supervision orafter care of discharged prisoners ;

( d ) a person appearing to the Secretary of ORG tohave made a study of the causes of delinquency orthe treatment of offenders . "

ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , including , in the case of life prisoners , a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL ( CARDINAL ) of LAW ) after consultation with the Lord Chief Justice . With the exception of the new rules concerning discretionary life prisoners , similar provisions apply under LAW .

ORG Under LAW ( CARDINAL ) of LAW the Secretary of ORG established for every prison a ORG with the function of advising him on the suitability for release on licence of prisoners . It was the practice to obtain this assessment before referring a case to ORG . Before ORG reviewed a case , a member of the committee would interview the prisoner if he was willing to be interviewed . The first review by ORG was normally fixed to take place DATE before the expiry of the tariff . ORG were abolished by ORG DATE . The prisoner is now interviewed by a member of ORG .

ORG Persons serving a sentence of detention during Her Majesty ’s pleasure may institute proceedings in ORG to obtain judicial review of any decision of ORG or of the Secretary of ORG if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality , irrationality or procedural impropriety ( ORG Unions v. Minister for ORG [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL - CARDINAL ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Just satisfaction dismissed (out of time)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant filed a civil claim against his employer , company Z , seeking the payment of outstanding holiday pay ( regres za korišćenje godišnjeg odmora ) due for DATE and DATE , the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from DATE to DATE , statutory interest and legal costs .

Following a remittal in DATE , on DATE ORG ( PERSON ) ruled in favour of the applicant . As regards the outstanding holiday pay , the court observed that company Z had not paid DATE pay due for DATE and DATE to any of its employees , as its alleged parent company had been encountering financial difficulties . The court , however , found these facts to be irrelevant to the outcome of the applicant ’s claim , as according to LAW and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer ’s profits .

On DATE ORG ( Okružni sud ) reversed the part of ORG judgment which concerned holiday pay and legal costs , while upholding the remainder . ORG based its refusal on the finding , disregarding applicable employment law , that company Z had not paid outstanding holiday pay to any of its employees and therefore that “ to accept the applicant ’s claim would mean that the applicant would be treated more favourably than his colleagues , who had not received payment of outstanding holiday pay from their employer either ” . No further recourse against this judgment was available to the applicant .

It would appear that DATE a number of the applicant ’s colleagues lodged the same or similar claims to those of the applicant with ORG .

On DATE and DATE ORG rejected the claims of the applicant ’s colleagues for the same reasons as ORG had in the applicant ’s case . However , ORG , which , following reforms to the judicial system had become the competent appeal court , overturned both judgments on DATE and DATE , respectively . In so doing , the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law ( see paragraphs CARDINAL below ) , finding that the reasons for judgment given by ORG in their cases were irrelevant and that it had erred in law in rendering the judgments .

Article CARDINAL paragraph CARDINAL stipulated that collective bargaining agreements , labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act .

Pursuant to clause CARDINAL ) , an employee shall be entitled to additional pay , including to holiday pay , which shall amount to a DATE average wage in the relevant industrial sector . Holiday pay shall be paid in full to employees who are entitled to DATE of DATE leave , and shall be reduced proportionally if the employee is entitled to DATE of DATE leave .

The text of clause CARDINAL ) of this agreement corresponds to clause CARDINAL of the DATE Agreement . Additionally , clause CARDINAL ) provides that in case of its financial inability to pay holiday pay as a lump sum , the employer may pay it in several instalments .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and lived in GPE . He died on CARDINAL DATE .

On DATE the applicant sought medical assistance from ORG No . CARDINAL ( NORP міська клінічна лікарня № PERCENT ORG “ the Hospital ” ) , where he was diagnosed as having an acute respiratory disease . He was prescribed out - patient treatment .

NORP On his next visit to the FAC on DATE the applicant was tested for his reaction to a vaccination against diphtheria . The test showed no susceptibility to diphtheria antigens .

On DATE the applicant was vaccinated against diphtheria . According to the applicant , the vaccination was contraindicated for him .

On DATE the applicant was examined by a doctor , who indicated that the applicant ’s state of health had improved and that the treatment had given positive results . He was diagnosed with tracheobronchitis , which was confirmed during his further visits to the doctor on CARDINAL , DATE and DATE .

From DATE the applicant spent CARDINAL a year at different medical institutions receiving treatment for a number of chronic diseases ( for instance , pancreatitis , cholecystitis , hepatitis , colitis ) .

On DATE the Chief Doctor of the Hospital reprimanded doctor Ya . and nurse Sh . for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection . He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules .

On DATE the applicant instituted proceedings in ORG in GPE against the local department of public health ( ORG міський відділ охорони PERSON ) and the ORG , seeking compensation for damage to his health . He alleged that the vaccination on DATE had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases . He also complained that the vaccine had been of poor quality as it had been uncertified , had expired and had been stored in inappropriate conditions . He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination .

DATE and DATE , DATE and DATE , CARDINAL and DATE and DATE and CARDINAL DATE medical expert examinations were conducted into the applicant ’s allegations .

On DATE the court found against the applicant . With reference to the conclusions of the medical expert examiners , the court established that the applicant ’s diseases had no causal link to his vaccination . It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within DATE following the vaccination . The only disease that could be associated with the vaccination was urticaria ( commonly known as hives ) , which the applicant had suffered from DATE after the vaccination and which could not therefore have had any causal link to it . The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules . Furthermore , the epidemic situation in the GPE region had called for his vaccination against diphtheria . The court noted that no physical force had been applied to the applicant and that , being an adult of sound mind , he could have refused to have the vaccination , as he had done before on several occasions . The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations , it had been conducted by a qualified nurse in a doctor ’s office , in a doctor ’s presence , with prior verification of the applicant ’s reaction to such a vaccination , and it had not caused the applicant to have any negative side - effects . The court also noted that the applicant ’s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence . The court observed that none of the applicant ’s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status . The court also examined the applicant ’s allegations about the alleged falsification of medical records and rejected them as unsubstantiated .

On DATE and CARDINAL DATE respectively ORG and ORG upheld the above judgment .

On DATE the applicant died of a heart attack . By letter of CARDINAL DATE the applicant ’s mother informed ORG of her wish to pursue the application .

The relevant section of the LAW reads as follows :

“ Preventive vaccinations against tuberculosis , polio , diphtheria , whooping cough , tetanus and measles are compulsory in GPE .

Groups of the population and categories of employees subject to preventive vaccination , including those which are compulsory , and the procedure for and scheduling of their implementation shall be specified by ORG ... ”

These guidelines , approved by ORG of GPE on DATE , provide for the organisation of vaccinations , set out a list of contraindications and side - effects and the procedure for informing the appropriate parties of any negative side - effects after vaccination .

On DATE ORG of ORG Recommendation DATE ) on vaccination in LOC . The relevant part of this recommendation states :

NORP The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us . CARDINAL of cases have been reported since the outbreak of the epidemic in DATE , and CARDINAL have died of a disease generally believed to have been wiped out . Other pockets of infection may attain epidemic proportions at any time : poliomyelitis , tuberculosis , tuberculous meningitis , pertussis , etc .

The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally . With CARDINAL of people now free to travel from CARDINAL country to another , it has not been possible to halt such epidemics . The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect , and the austerity imposed by economic reforms has worsened the situation .

The ORG therefore recommends that ORG invite member states :

i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases , and to arrange for efficient epidemiological surveillance ;

ii . to grant increased assistance as a matter of urgency , internationally co - ordinated through ORG ( who ) and ORG in particular , to countries suffering from the diphtheria epidemic , in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims :

a. to achieve a high immunisation level among the population ;

The ORG furthermore invites ORG :

i. to define a concerted pan - NORP policy on population immunisation , in association with all partners concerned , for example who , PERSON and ORG , aimed at the formulation and observance of common quality standards for vaccines , and to ensure an adequate supply of vaccines at a reasonable cost ... ”