Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

ORG Mr. PERSON , who was born in DATE , lives at GPE ( municipality of PERSON ) , where he used to own and run a garage .

ORG On DATE , he applied to the municipal authorities , in accordance with LAW ( see paragraphs CARDINAL below ) , for a licence to bring into operation an installation for the delivery of liquid petroleum gas ( " ORG " ) to motor vehicles . The installation comprised a surface storage tank with a capacity of QUANTITY .

The application was made public in order to enable those wishing to object to do so . On DATE , CARDINAL neighbours expressed their fear of fire and an explosion being caused by lightning .

ORG On DATE , the municipal authorities granted the licence , subject to CARDINAL conditions which they considered would counter the dangers in question . They referred to a letter in which an official of ORG had indicated that he agreed with such a course .

ORG On DATE , ORG had written to the municipal authorities to advise them to refuse a licence ; in his view , the proximity of houses involved excessive risks . On DATE , he lodged an appeal with the Crown ( GPE ; see paragraphs CARDINAL - CARDINAL below ) .

The municipal authorities informed Mr. PERSON of the appeal on DATE . They stated that since it had no suspensive effect , he could erect the installation . However , they added that if he did so , they would not be liable for any financial losses he might sustain in the event of the licence being cancelled .

ORG The Chairman of ORG of ORG ( Afdeling voor Geschillen PERSON ) - to which ORG it fell to investigate the matter and then advise the ORG - sought information from the Minister of ORG ( sections CARDINAL and GPE ) of ORG ; see paragraphs CARDINAL and CARDINAL below ) . This information was supplied , in a letter of DATE , by the Director ORG ; he expressed the view that the appeal was well - founded as he considered that further conditions ought to be attached to the licence .

ORG After a hearing in the presence of the parties , during which the applicant was heard on DATE , the Chairman of the ORG asked the Director General for additional information .

The latter explained , in a letter of CARDINAL DATE , that the situation had changed : greater importance was now attached to the dangers involved in storage and delivery . He shared the view of ORG that , pending revision of the current officially - recommended standards , there should not be CARDINAL houses within a radius of QUANTITY from the gas tanks and dispensers , nor QUANTITY between the installation and the nearest houses .

The Director General therefore concluded that the licence sought by Mr. PERSON should be refused , as these conditions were not satisfied .

ORG At a hearing held on DATE , the applicant argued that ORG " interim position " , as well as being inadequately motivated , was not based on sufficiently sound technical grounds . Having been asked by the Chairman of the ORG to elaborate on his opinion , the Director General provided , on DATE , further details concerning the safety hazards ; he stated that , pending the results of a study ( which was being undertaken because of the many appeals outstanding ) , a cautious attitude should be adopted when granting licences . He thus confirmed his earlier position .

ORG On DATE , ORG sent to the Minister of ORG an opinion recommending that the licence be refused ; a draft of the Decree to be adopted was attached thereto .

ORG On DATE , by a Decree in the same terms as the draft , the ORG quashed the municipal authorities’ decision . It considered that a different view should be taken regarding the distance between an ORG installation and the neighbouring houses and that , in the particular circumstances , the risks could not be eliminated merely by the imposition of additional conditions .

As a result , the municipal authorities issued an order directing Mr. PERSON to cease operating his installation . He lodged an appeal against this decision , but it was confirmed by the ORG by a Decree of DATE . A second decision - dated DATE and providing for the closure of the installation by the authorities themselves - was quashed , on formal grounds , by ORG ( Afdeling Rechtspraak ) of ORG on DATE . According to information which was given to the ORG at the hearings and was not contested , the installation was not closed down until DATE . At DATE , Mr. PERSON had been declared bankrupt .

The Nuisance Act DATE prohibits , in the absence of a licence , the erection , bringing into operation , exploitation , extension or modification of certain installations which may be a source of danger , damage or nuisance to their surroundings ( section CARDINAL ( CARDINAL ) ) .

The installations concerned are listed in a Decree , and they include those for delivering ORG .

Licence applications , which are submitted to the municipal authorities , are first of all notified to the public , who may make oral or written objections . Certain government bodies - such as ORG - are also given an opportunity to express their views .

The decision lies with the municipal authorities ( section CARDINAL ) . They may refuse a licence only if the erection , bringing into operation , exploitation , extension or modification of the installation would result in danger or , as regards property , industry or health , damage or serious nuisance , and if such danger , damage or nuisance could not be sufficiently averted by the imposition of conditions ( section CARDINAL ( CARDINAL ) in the version in force at the relevant time ) .

Once issued , a licence covers both the original holder and his assignees ( section CARDINAL ) . It may be granted by the municipal authorities for a limited period or subject to conditions binding upon the licensee ( sections CARDINAL and DATE ) .

ORG After the persons and authorities involved have been informed of the decision , the applicant for the licence , anyone who duly raised objections and the government bodies concerned may lodge an appeal with the Crown within a certain period ( section CARDINAL , which was then in force ) . The ORG determines the appeal on the advice of ORG of ORG ( section CARDINAL ) .

An appeal has no suspensive effect but , under LAW ( a ) of ORG ( Wet op de Raad van State ) , the appellant may ask the Chairman of the ORG to defer implementation of the decision or to order interim measures .

ORG At the close of the proceedings , the ORG will confirm , amend or quash the initial decision .

ORG Under LAW , the person of PERSON the Queen - is inviolable . The King takes his decisions on the responsibility of a Minister , who has to countersign them .

The expression " the ORG " , when decision - making powers are being exercised , is commonly used to denote the King together with the Minister or Ministers .

ORG The ORG gives rulings in administrative litigation which is brought before it on appeal . In carrying out this function , the ORG will not take a decision until ORG of ORG has investigated the matter and prepared a draft decision ( section CARDINAL ( CARDINAL ) of ORG ) .

The members of the ORG , whose number is fixed by the ORG but can not be CARDINAL including the Chairman , are chosen by the ORG from amongst the members of ORG and on its recommendation . ORG is to be distinguished from ORG which itself decides cases falling within its competence .

ORG The Chairman of ORG calls for the necessary official reports and informs the Minister concerned thereof ( section CARDINAL ( c ) ( CARDINAL ) ) . The interested parties may submit such documentary evidence as they consider necessary ( section CARDINAL ) . A public hearing enables them , if they so wish , to argue their cases ( section CARDINAL ) . Like the Chairman of the ORG , they may call witnesses or experts , put questions to them and comment on any evidence given ( sections CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL ) .

The ORG deliberates in camera ( section CARDINAL ) ; it may carry out on - site inspections ( section CARDINAL ) , ask for additional official reports , on which the interested parties may comment ( section DATE ) , and hold further hearings ( section CARDINAL ) .

It then draws up a draft LAW , which it submits to the ORG together with its advice ( section CARDINAL ) . The Minister concerned has DATE to inform the ORG of any objections he may have and ask it to reconsider the case ( section CARDINAL ) .

ORG After receiving the ORG ’s advice or further advice , the ORG issues LAW within DATE . This time - limit may be extended by DATE ( section DATE ( CARDINAL ) ) . After it has expired , the ORG must decide in accordance with the ORG ’s advice ( section CARDINAL ( a ) ) . Prior to that , it may depart from the advice , but only if the Minister concerned has first consulted the Minister of ORG or , where the latter is himself concerned , if he has first consulted the Prime Minister ( sections DATE and DATE ( CARDINAL ) ( a ) and ( b ) ) . In practice , the ORG very rarely takes this course .

The ORG ’s decision , against which no further appeal is available , may be based on considerations of law or of expediency .

The Decree , which incorporates the reasons therefor , is immediately sent to the interested parties and the ORG . It is then made available for DATE for public inspection at the ORG of ORG ( section CARDINAL ( CARDINAL ) ) . If the Decree departs from the advice , it is published in ORG ) together with the Minister ’s report , which contains the ORG ’s draft and the Minister ’s correspondence with the ORG and with the Minister of ORG or the Prime Minister ( section CARDINAL ( CARDINAL ) ) .


Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva

The applicant was born in DATE and lives in LOC .

On an unspecified date in DATE he lodged an action against a collective farm PERSON , seeking damages for a discrepancy in the calculation of compensation for his professional illness that had been paid since DATE . On DATE ORG ( “ the ORG ” ) opened proceedings .

In a judgment of CARDINAL DATE it dismissed the applicant 's action . On DATE ORG ( “ the Court of Appeal ” ) quashed that judgment and ordered a fresh hearing .

On DATE ORG ordered an accounting expert examination . It held the next hearing on DATE .

On DATE ORG ( “ the Fund ” ) joined the proceedings as a second respondent and PERSON was replaced by its legal successor , private company L.

On DATE ORG dismissed the applicant 's claim for damages that after a modification amounted to ORG CARDINAL ( ORG CARDINAL ) . On DATE ORG upheld that judgment . On DATE the applicant appealed in cassation .

On DATE ORG rejected his appeal in cassation .

According to the Government , in the course of the proceedings , the applicant filed CARDINAL procedural request and CARDINAL appeals , CARDINAL of which did not meet procedural requirements . Out of the QUANTITY hearings scheduled DATE and DATE , CARDINAL were adjourned for unknown reasons , CARDINAL were adjourned either at the applicant 's request or due to his failure to attend , CARDINAL was adjourned due to CARDINAL of the respondents ' failure to attend , CARDINAL was adjourned for the parties to reach a friendly settlement , and CARDINAL were adjourned for other reasons beyond parties ' control .


The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by Mr PERSON and Mr B. PERSON , lawyers practising in ORG .

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

Until DATE , the applicants lived in GPE hamlet of NORP village in PERSON , ORG , where they own property . Following an armed clash between the security forces and the ORG militants in a nearby area , the security forces came to GPE and required the inhabitants to establish a village guards system – a security system designed to protect villages against possible terrorist attacks by the ORG .

Upon their refusal , the security forces evacuated the hamlet . The applicants had to move to the city centre of ORG , where they currently live .

On an unspecified date , the security forces set fire to the houses and the cultivated fields in the hamlet .

Following the incidents , the applicants filed applications with the administrative and military authorities , asking for an authorisation to return to their hamlet , or in the alternative , to continue to cultivate their fields . They also requested to be remedied for the incidents . The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award

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

The applicant was born in DATE . He is currently serving a prison sentence in PERSON .

On DATE the applicant was arrested on suspicion of several counts of aggravated murder and robbery . In the course of his arrest force was used against the applicant .

Subsequently , the applicant was taken to a police station , where he was allegedly tortured by unspecified police officers with the aim of extracting a confession of his having committed the crimes of which he was suspected . According to the applicant , during such ill - treatment , which continued for DATE thereafter , he received an eye injury which eventually resulted in him suffering a complete loss of eyesight .

Later on DATE he was taken to a temporary detention centre ( ізолятор тимчасового тримання – “ the ORG ” ) in ORG .

DATE the applicant was taken to ORG , where he was examined by a trauma specialist , a surgeon and a neurosurgeon . The applicant ’s skull was x - rayed and samples of his blood and urine were taken . He was diagnosed with bruising to the chest , lumbar area , kidneys , and soft tissues on the face and the back of his head . The doctors prescribed a further examination of the applicant by an urologist and outpatient supervision by a neurologist .

On DATE a prosecutor from ORG questioned the applicant , in the presence of a lawyer appointed to assist him by the authorities , with a view to taking a decision concerning the applicant ’s continued detention . The prosecutor noted a haematoma on the applicant ’s face next to his right eye . According to the prosecutor ’s report to his superior of the same date , the applicant explained that he had received the injury during his arrest , that he had not been illtreated by the police after his arrest and that he had voluntarily given his confession .

On DATE the prosecutor was instructed by his superior to carry out an inquiry in order to take a decision in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE several police officers gave written explanations concerning the applicant ’s arrest , in which they stated that the applicant had resisted arrest by “ applying unarmed combat techniques and trying to escape ” . According to them , “ measures of physical restraint and special means [ of restraint ] , namely handcuffs ” had been used against the applicant and he had been taken to the police station .

On DATE the applicant was taken by the police to see a medical expert . The expert examined the applicant and noted that he displayed bleeding into the eyeball , haematomas and abrasions on the left side of his chest , arms and legs , some of which were DATE and others were DATE . The expert noted that many of the injuries , including the bleeding into the applicant ’s eyeball , had been caused by blunt solid objects . According to the expert ’s notes , during the examination the applicant stated that some of his injuries had been caused by him falling down the stairs , that his vision had been deteriorating since he was young , and that he had no complaints about the authorities’ actions . The expert concluded that the injuries were of a minor character and that they had not lead to a deterioration of the applicant ’s health .

The applicant remained in police custody until DATE . On DATE he was placed in an investigative detention unit ( слідчий ізолятор – “ GPE ” ) in ORG . Upon his arrival at ORG , the applicant was examined by a paramedic , who noted several bruises on the left shoulder , chest , arm and knee . The applicant did not receive any treatment for his injuries in PERSON .

According to the applicant , on DATE he complained to the same prosecutor from ORG that had previously questioned him that he had been tortured by the police after his arrest .

On DATE the prosecutor issued a decision rejecting the applicant ’s complaints and informed the applicant of it . The relevant parts of the decision read as follows :

“ ... On DATE PERSON was questioned at the regional prosecutor ’s office in the course of consideration of the question of ... his placement in GPE [ GPE ] No . CARDINAL . During his questioning with the participation of [ his ] defence lawyer , PERSON explained that he had sustained the injuries in the course of his arrest , that he did not have any complaints against the police , [ and ] that he had made his first statements freely , without psychological or physical pressure on the part of the police officers .

The [ police ] officers ... who had taken part in the arrest of PERSON [ were questioned and ] explained that they had been aware that PERSON had used firearms during his attempted arrest by the police in GPE , as a result of which QUANTITY police officers had died . Because of that [ fact ] they had been particularly cautious and when PERSON had attempted to resist [ arrest ] ... there had been measures of physical restraint and special means [ of restraint ] , namely handcuffs , applied to him .

According to the records of the forensic examination ... dated DATE , [ the following injuries on the body and face of PERSON ] had been discovered : bleeding into the eyeball ; a haematoma on the left side of the chest ; numerous abrasions on the lower limbs that had been caused by blunt solid objects ; abrasions and scratches on the wrists that had been caused by blunt solid objects , which could have been the handcuffs ; numerous indurations of various parts of the skin with small wounds caused by insects ... the injuries could have been caused to PERSON in the circumstances described by [ both ] the police officers and PERSON himself . Therefore , there are no elements of a crime in the actions of the police officers .

On the basis of the foregoing , pursuant to paragraph CARDINAL of LAW [ LAW ] of GPE [ the prosecutor ] .

Decided :

To refuse the opening of a criminal case against [ the police ] officers who took part in the arrest of ... PERSON on the ground there were no elements of a crime in their actions ... ”

According to the applicant , he was not given a copy of that decision and its details were not explained to him .

The decision was not challenged before the courts under the procedure envisaged by LAW .

On DATE the applicant was transferred to PERSON . On DATE he was examined by a doctor , who noted that the applicant suffered from loss of eyesight as a result of a head injury in DATE and had several bruises on his body .

On DATE the applicant was examined by a medical expert , who noted that the applicant had suffered a head injury and was completely blind .

During his detention in PERSON the applicant was examined by doctors and received specialist ophthalmological treatment in DATE and DATE and in DATE , DATE and DATE . On several occasions he was taken to public hospitals for medical examination . The doctors concluded that the applicant did not require eye surgery and could receive the necessary medical treatment in the GPE .

On DATE , on the order of the trial court , a medical panel established that the applicant had become completely blind and , accordingly , suffered from the highest officially recognised degree of disability . The applicant was diagnosed with corneal cicatrix and leucoma , a cataract of the right eye resulting from a penetrating wound , and uveitis in the left eye . The doctors concluded that the applicant was in need of outside assistance to manage aspects of daily life .

On DATE the applicant was placed in GPE to serve his sentence .

During his detention in GPE the applicant was examined by doctors , including an ophthalmologist , at least once DATE . In DATE he was prescribed eye surgery at a specialised hospital . According to the Government , the applicant did not avail himself of the possibility to undergo the surgery pursuant to paragraph LAW CARDINAL of the Code on the Execution of Sentences ( see paragraph CARDINAL below ) .

Subsequently , the applicant was prescribed anti - relapse treatment in view of his blindness , which mainly included administering medication . On several occasions the applicant refused to be examined by doctors and in DATE and DATE he refused to be transferred to a hospital within FAC to receive specialised ophthalmological treatment .

In DATE the administration of ORG did not allow the applicant ’s mother to supply him with unspecified medication which he allegedly needed . The authorities explained that the applicant would be given the necessary medication if his doctors so decided . In DATE the authorities informed the applicant ’s mother that her request for the applicant ’s transfer to a specialised prison for persons suffering from the highest degree of disability could not be met as no such a prison existed . The applicant did not provide further details in that respect .

The applicant alleged that in spite of his blindness he had been handcuffed when leaving his cell , including during DATE walks and family visits , and had been followed by several wardens with a dog .

He also stated that in GPE he had been unlawfully refused TIME DATE walks to which he had allegedly been entitled in view of his disability ; that his cell had lacked ventilation ; and that he had not been allowed to make phone calls . He provided no further details in this respect .

According to the applicant , in DATE the prison authorities delayed , for DATE , the dispatch of CARDINAL of his letters .

By a letter of DATE addressed to the applicant ’s mother , the Head of ORG informed her that :

During [ DATE ] walks [ the applicant ] has been handcuffed with his hands behind his back , as are all other life - sentenced prisoners , in accordance with paragraph CARDINAL of LAW .

Once the area for [ DATE ] walks is adapted to the requirements of ORG ... as amended on DATE , life - sentenced prisoners will be allowed to stay there without handcuffs .

In accordance with LAW and LAW , prisoners sentenced for life are entitled to TIME DATE walks .

Prisoners suffering from tuberculosis ... are entitled to TIME DATE walks .

[ Mr PERSON ] does not suffer from tuberculosis , he is being detained under the ordinary regulations , and he is being [ taken for ] TIME DATE walks .

All [ of PERSON ] correspondence is dispatched in accordance with LAW ; it has not been hindered . ”

By a letter of DATE , ORG informed the applicant ’s mother that in DATE CARDINAL of the dogs accompanying the prison guards had bit the applicant because of his own recklessness . It was also stated that handcuffs were not being applied during DATE walks .

The CARDINAL above - mentioned letters contained a statement that the actions of the penitentiary authorities could be challenged before a prosecutor .

On DATE the applicant was moved to ORG , where he is currently serving his sentence . The applicant has not provided information concerning the medical assistance provided to him in that colony .

In DATE the applicant ’s mother was informed that the applicant ’s complaint of torture had been rejected as unsubstantiated , though no details of the decision were given to her . In DATE she requested a copy of the decision , which was sent to her in DATE .

Subsequently , the applicant ’s mother complained to a Member of ORG of the applicant ’s torture by the police and the authorities’ failure to investigate the matter . Upon a request by the Member of ORG , in DATE the materials of the previous inquiry were checked by the prosecutor ’s superior , who eventually confirmed the accuracy of the decision issued on DATE . In particular , the supervising prosecutor studied the materials of the DATE inquiry .

In DATE the applicant lodged a compensation claim with ORG of GPE against ORG for the Execution of Sentences and ORG , alleging that his disability had been caused by the unlawful actions of the police and the failure of the penitentiary authorities to provide him with adequate medical assistance . The courts at CARDINAL levels of jurisdiction refused to examine the applicant ’s claim for failure to meet the relevant procedural requirements . The applicant challenged the refusal in cassation , the outcome of which is unknown .

The criminal investigation in the applicant ’s case was completed in DATE . Subsequently , the criminal case was referred to ORG for trial .

In the course of the investigation and trial , the applicant was assisted by a lawyer appointed for him by the authorities . That lawyer took part in the first stages of the proceedings before the first - instance court and was later replaced by another lawyer for unknown reasons . The new lawyer continued defending the applicant until those proceedings were completed .

In the course of the trial the applicant contested the charges against him and alleged that his confession to some of the crimes of which he had been accused had been obtained under physical and psychological pressure from the police .

On DATE the court found the applicant guilty of CARDINAL counts of aggravated murder , infliction of grievous bodily injuries , illegal possession of firearms , banditry , and robbery . In particular , the applicant was held to be responsible for the murder of CARDINAL people , including QUANTITY police officers who had attempted to stop him from committing crimes . He was found to be exceptionally dangerous to society and was sentenced to life imprisonment , together with the confiscation of all his property .

NORP The court mainly based its judgment on the statements of CARDINAL witnesses and victims of the crimes , the testimony given by the applicant at the trial , and on the conclusions of several forensic , ballistic and other expert examinations . The findings of the court concerning CARDINAL of the counts of murder were partly based on the confessions obtained from the applicant during his time in police custody .

In the same judgment the court , relying on the decision of the prosecutor of DATE , dismissed the applicant ’s complaints of torture by the police and found that there was no evidence that his confession had been obtained under duress .

On DATE the applicant lodged an appeal in cassation , contesting the first - instance court ’s factual findings and legal conclusions . He further argued that , in determining his sentence , the court had not taken into account his poor state of health . The applicant also maintained his allegation of torture by the police .

On DATE ORG partly varied the judgment of CARDINAL DATE , while confirming the first - instance court ’s findings concerning the applicant ’s guilt and upholding his sentence . ORG also rejected the applicant ’s allegation of torture on the same grounds as the first - instance court .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity ... ”

“ ORG of GPE constitutes a unified system that is entrusted with :

( CARDINAL ) prosecuting [ crimes ] in court on behalf of the ORG ;

( CARDINAL ) NORP representing the interests of a citizen or of the State in court in cases determined by law ;

( CARDINAL ) supervising compliance with the law by the bodies that conduct detection and search activities , inquiries and pre - trial investigations ;

( CARDINAL ) supervising observance of the law in the execution of judicial decisions in criminal cases , and also in the application of other coercive measures aimed at the restraint of ORG personal liberty . ”

The relevant provisions of LAW , as in force at the material time , provided :

“ A court , prosecutor , investigator or body of inquiry must , to the extent that it is within their power to do so , institute criminal proceedings in every case where signs of a crime have been discovered , take all necessary measures provided by law to establish the circumstances surrounding the crime , identify those guilty of the crime and punish them . ”

“ Criminal proceedings shall be instituted on the basis of :

( CARDINAL ) applications or communications from enterprises , institutions , organisations , officials , representatives of official bodies , the public and individuals ;

( CARDINAL ) communications from representatives of the authorities , the public or individual citizens who have apprehended a suspect in the place where the crime was committed or caught him red - handed ;

( CARDINAL ) [ the suspect ’s ] appearance with an acknowledgement of guilt ;

( CARDINAL ) information published in the media ;

( CARDINAL ) direct detection of signs of a crime by a body of inquiry , investigator , prosecutor or court .

[ Criminal ] proceedings may be instituted only where there is sufficient information that a crime has been committed . ”

“ Applications or communications ... about a crime may be made in writing or orally ... ”

“ A prosecutor , investigator , body of inquiry or judge shall accept applications or communications about crimes [ which have been ] committed or [ are ] being prepared , including in cases that are outside their jurisdiction .

Upon an application or communication about a crime , the prosecutor , investigator , body of inquiry or judge shall adopt , within DATE , CARDINAL of the following decisions :

( CARDINAL ) to institute criminal proceedings ;

( CARDINAL ) NORP to refuse to institute criminal proceedings ;

( CARDINAL ) NORP to remit the application or communication for examination in accordance with [ the rules of ] jurisdiction .

Simultaneously , all possible measures shall be applied to prevent the further commission of the crime or to put an end to it ...

Before instituting criminal proceedings , the prosecutor , investigator or body of inquiry shall conduct an inquiry , if it is necessary to verify [ information contained in ] an application or communication about a crime . [ Such inquiry ] shall be completed within DATE by means of collecting explanations from individual citizens or officials or by means of obtaining necessary documents .

[ Information contained in ] an application or communication about a crime may be verified before instituting criminal proceedings through detection and search activities ... ”

“ A decision by an investigator or body of inquiry refusing to institute criminal proceedings may be appealed against to the relevant prosecutor . If that decision was taken by a prosecutor , it may be appealed to a higher prosecutor . An appeal shall be lodged by a person whose interests are concerned or by his / her representative within DATE from the date of receipt of a copy of the decision .

If the prosecutor refuses to annul the decision ... a person whose interests are concerned or his / her representative may lodge an appeal against it with a court under the procedure prescribed by LAW .

“ An appeal against a decision by a body of inquiry , investigator or prosecutor ... refusing to institute criminal proceedings shall be lodged with [ the relevant ] court by a person whose interests are concerned or his / her representative within DATE of notification of the decision by the prosecutor ... ”

“ An appeal against a decision by a body of inquiry , investigator or prosecutor ... refusing to institute criminal proceedings shall be examined [ by the relevant court ] in a single - judge bench within DATE of its receipt .

The judge shall obtain the materials on the basis of which the decision ... was taken , examine them , and inform the prosecutor and the appellant of the date on which the hearing on the appeal is scheduled . If necessary , the judge may hear the appellant in person .

Having examined the appeal , the judge ... shall take CARDINAL of the following decisions , depending on whether the requirements of LAW were observed :

( CARDINAL ) to set aside the decision not to institute criminal proceedings and remit the materials for additional inquiry or open a criminal case ;

( CARDINAL ) to reject the appeal .

The judge ’s order may not be appealed against ... ”

DATE PERSON provides that male detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security . They are placed in cells for CARDINAL people . Under LAW , they are allowed to have a TIME DATE walk .

Article CARDINAL prohibits the use of special instruments of restraint , including handcuffs , to prisoners with ( amongst other things ) “ apparent signs of disability ” , provided they do not commit gang violence or violent assault endangering the life or health of others and do not offer armed resistance .

Pursuant to paragraph CARDINAL of Article CARDINAL , prisoners may seek , at their own or at their relatives’ expense , medical assistance , including treatment , from civilian medical institutions . In such cases , medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his / her sentence , under the supervision of the colony ’s medical staff .

According to LAW , the prosecution service constitutes an integrated centralised system headed by ORG and based on the principle of hierarchical subordination .

The Detection and Search Act provides a legal basis for various measures which may be used by the police , secret service and several other law - enforcement bodies in order to collect and record information about unlawful activities . These measures include questioning individuals upon their consent , secretly collecting data concerning crimes , using undercover agents , personal surveillance and so forth . Law - enforcement authorities entrusted with detection and search functions are required to follow ORG instructions .

The rules governing the detention of prisoners sentenced to life imprisonment subject them to special restrictions as regards the material conditions of their detention , activities and opportunities for human contact , which include permanent separation from the rest of the prison population , limited visiting entitlements , a prohibition on communication with other prisoners , and being escorted by CARDINAL wardens with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell ( regulations DATE ) . On DATE regulation CARDINAL has been amended to include the requirement that doors to walking areas in the sectors for prisoners sentenced to life imprisonment should be equipped with special windows allowing putting on and off handcuffs on prisoners .

Pursuant to regulation CARDINAL , prisoners sentenced to life imprisonment receive medical aid , as a rule , in their cells in the presence of CARDINAL guards . Such prisoners are to be transferred to a medical institution run by ORG for the Execution of Sentences , or to a regular medical centre , if they need urgent medical aid .

Annex CARDINAL to the ORG states that people detained in penitentiary institutions are not allowed to keep in their possession any medicines or medical items .

The instruction is a classified ( non - public ) document . An extract from it ( paragraph CARDINAL ) submitted by the ORG provides as follows :

“ When prisoners sentenced to life imprisonment are taken out of their cells , the junior warden shall open the first door from the corridor side of the [ door ] and order the prisoners to come up to the door and turn round , facing toward the opposite wall and holding their hands behind their backs , and then , through the opening , handcuff the prisoners . Having handcuffed all the prisoners and having made sure that they have stepped back [ against ] the opposite wall , the warden shall [ then ] open the internal door . After the prisoners have been taken out from their cells , they shall undergo a partial search with the use , if necessary , of technical means of detection and control . The aforementioned category of prisoners are [ to be ] taken from their cells one after another , escorted by CARDINAL officers from the administration and a junior warden with a guard dog .

When escorting a prisoner sentenced to life imprisonment , CARDINAL junior warden shall walk ahead of him , surveying the route . The prisoner shall follow CARDINAL metres behind . The rest of the escorting junior wardens shall follow the prisoner QUANTITY behind . The movement of life - term prisoners is organised under the personal control of the on - duty assistant to the prison governor , or his deputy , who , in all instances , shall follow in the rear . ”

In the DATE report the ORG described the problem of ill - treatment in the course of pre - trial investigations as a systemic one . In particular , she noted that :

“ ... [ P]eople [ arrested by the police ] are being beaten , humiliated , [ and ] tortured during TIME following arrest in order to extract confessions or statements incriminating others . Torture and cruel and degrading treatment of citizens in the premises of the police at pre - trial stages of criminal proceedings are widespread and systemic . [ This ] gives evidence of brutal violations of human rights and abuse of power . ”

According to the ORG , the fact that police officers were required to increase the percentage of solved crimes , while investigators were required to increase the number of cases referred to the courts for trial , contributed to the use of torture . As she put it in the report , “ the lack of ORG qualification in the situation when courts often accept a suspect ’s confession as sufficient proof [ of his guilt ] [ gave motivation ] for law - enforcement officers to rapidly [ extract confessions ] ... ”

The ORG also noted the lack of adequate action on the part of prosecutors as regards allegations of torture by the police , the ORG inquiries often being perfunctory and seriously protracted . She further observed that , when such cases reached the courts , the latter were in general hesitant to apply adequate sanctions against police officers responsible for torture and other forms of ill - treatment . According to the ORG , in DATE out of CARDINAL police officers found guilty of such crimes CARDINAL were sentenced to imprisonment .

In her subsequent DATE reports concerning the human - rights situation in GPE , the ORG made similar observations regarding the problem of ill - treatment by the police . For instance , in the DATE report she noted that ( extracts from paragraph CARDINAL of the report ) :

“ ... [ L]aw - enforcement authorities beat individuals in order to extract confessions , to improve solved crimes’ rates , to extort bribes , or to steal [ ORG property ] .

The majority of such incidents take place in the premises [ of law - enforcement authorities ] . Unfortunately , torture takes place in all regions of GPE , which is evidenced by the results of [ the ORG ’s ] work , information from prosecutors , human rights defenders , ORG , and court verdicts . [ Such incidents ] happen in different places , with different individuals , and in different circumstances . However , it is perhaps commonplace [ ... ] that an individual in [ GPE ] may not feel free [ and ] protected from the criminal acts of ORG agents .

Unfortunately , ill - treatment by law - enforcement authorities has taken on very brutal forms and has increasingly resulted in GPE deaths . In DATE police officers tortured QUANTITY people to death , in DATE CARDINAL , and in DATE ! ”

In the DATE report the ORG named the problem of illtreatment as one of the top priorities in her work , noting that CARDINAL of CARDINAL complaints , which were being lodged with her office against police officers every year , concerned that problem . The ORG considered that , in order to eradicate torture in police custody , it was necessary “ to liquidate corruption in that body , to change the evaluation of police ORG work [ currently ] based on the number of solved crimes , to put an end to [ the practice of ] abusing arrests and administrative detention , to provide arrested people with the possibility of obtaining assistance of a lawyer , to keep record and statistics of incidents of application of physical violence , to create an appropriate mechanism of investigation of complaints of torture , and [ to establish ] the national mechanism of prevention of torture ” ( section CARDINAL of the report ) .

NORP The report is based upon a detailed analysis of information concerning the human rights’ observance by the NORP police in DATE , which includes official statistics , normative acts , observations by nongovernmental organisations , individual complaints and mass media publications . According to the report , in DATE alone CARDINAL persons were ill - treated by the police , of which CARDINAL persons died . There were CARDINAL official complaints of ill - treatment by the police lodged with the authorities during DATE and PERCENT of them were found substantiated . Prosecutors opened CARDINAL criminal cases against police officers on charges of torture and CARDINAL cases on charges of infliction of bodily injuries and murder by agents of the police .

The report also contains the following extract from an unpublished letter of ORG dated DATE :

“ ... Numerous complaints against police officers provide evidence that the aims , methods and practice of law enforcement authorities have not changed . Repression , disrespect of ORG rights , freedoms and interests prevail in particular through [ resort to ] torture , inhuman or degrading treatment , physical and psychological pressure on suspects . Besides , because of the low level of professionalism of a large number of police officers and [ their ] lack of skills [ to employ detention and search techniques ] as envisaged by law , they use prohibited methods of [ police ] inquiry ... ”

The Government submitted copies of decisions concerning complaints of police ill - treatment made by CARDINAL private individuals , PERSON and PERSON , who had been arrested by the police on DATE and released on DATE . The police had allegedly tried to coerce the complainants to confess to certain criminal acts . As established by medical examinations upon their release from police custody , the complainants had been injured either on DATE or DATE before .

The copies included CARDINAL ORG decisions rejecting the complaints , which were subsequently quashed by higher prosecutors and a court . The court found that the ORG inquiry had not been full and objective and that they should have questioned several more people , including CARDINAL of the complainants , and should have examined certain medical documents . The third decision issued by the prosecutors contained reference to the medical documents indicated by the court and to statements obtained from CARDINAL of the people mentioned in the court ’s decision . It was concluded that the allegations were unfounded and that the complainants had been injured before their arrest . It is unknown if the latter finding was challenged before the courts .

On DATE the ORG published a report on its visit to GPE from DATE . The relevant parts of the DATE report read as follows :

Torture and other forms of ill - treatment

The treatment of persons deprived of their liberty by members of the operational services of [ the police ] remains a source of grave concern for the ORG , DATE after its first visit to GPE . Once again , widespread allegations of physical ill - treatment have been received , at the time of apprehension and in particular during questioning .

There is no need here to set out the alleged forms of physical ill - treatment , as they are similar to those described in paragraph CARDINAL of the report on the DATE visit . As in the past , in many cases , the severity of the ill - treatment alleged was such that it could be considered as amounting to torture .

In the light of the information at its disposal , the ORG can only reach the same conclusion as it had in DATE , namely that persons deprived of their liberty by [ the police ] run a significant risk of being physically ill - treated at the time of their apprehension and/or while in the custody of [ the police ] ( particularly when being questioned ) , and that on occasion resort may be had to severe ill - treatment / torture .

The DATE visit showed that progress in implementing the recommendations made by the ORG in its previous report , aimed at introducing a strategy to prevent ill - treatment , has been slow ...

It is axiomatic that CARDINAL of the most effective means of preventing ill - treatment of persons deprived of their liberty lies in the diligent examination by the relevant authorities of all complaints of such treatment brought before them and , where appropriate , the imposition of a suitable penalty . This will have a very strong deterrent effect . Conversely , if the relevant authorities do not take effective action upon complaints referred to them , those minded to ill - treat persons deprived of their liberty will quickly come to believe that they can act with impunity .

In this respect , it must unfortunately be pointed out that , once again , the ORG ’s delegation heard allegations to the effect that prosecutors and judges paid little attention to complaints of ill - treatment - even when the person concerned displayed visible injuries .

In this context , the figures transmitted by ORG speak volumes . It seems that over DATE , the NORP prosecutors did not initiate any criminal proceedings against law enforcement officials under ORG CARDINAL ( assault and battery ) and CARDINAL ( torture ) of LAW . ”

The ORG made similar findings regarding allegations of ill - treatment by the police and lack of effective investigation in the reports on its visits to GPE from DATE ( paragraphs CARDINAL of the DATE report ) and from DATE ( paragraphs CARDINAL of the DATE report ) . In the preliminary observations concerning its visit to GPE from CARDINAL DATE to DATE , published on CARDINAL DATE , the ORG noted that “ the phenomenon of police ill - treatment [ remained ] widespread and that persons [ ran ] a significant risk of being subjected to ill - treatment while in the hands of the police ( in particular , when they [ did ] not rapidly confess to the criminal offence(s ) of which they [ were ] suspected ) ” .

During the DATE visit the ORG delegation also inspected ORG . CARDINAL for men , including the unit for men sentenced to life imprisonment , and the temporary unit for women sentenced to life imprisonment at ORG No . DATE . The ORG made the following findings concerning certain aspects of the conditions of detention of prisoners sentenced to life imprisonment ( paragraph CARDINAL of the DATE report ) :

“ ... [ W]hereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women , the NORP authorities have still not ceased this practice for men .

More generally , the attitude towards this category of prisoners at Colony No . CARDINAL was extremely security - oriented , with staff constantly stressing their ‘ dangerousness’ . In addition , the delegation noticed a wire cage in the staff office , in which the prisoners said they were systematically locked when interviewed by members of staff ... ”

The ORG called upon the NORP authorities to abolish “ the practice of systematically handcuffing men whenever they are taken out of their cell ... with immediate effect ” .

On DATE the Commissioner for Human Rights published a report on his visit to GPE from DATE , in which he inter alia noted that “ practically all [ his ] interlocutors , including heads of parliamentary political groups , representatives of law enforcement and civil society confirmed that torture was widespread in GPE ” ( paragraph CARDINAL of the report of CARDINAL DATE ) . During his visit to GPE in DATE , the Commissioner for Human Rights made the following observations in that context ( paragraph CARDINAL of the report published on DATE ) :

“ Ill - treatment by police in custody is a persistent problem in GPE , which has been raised in a number of reports of ORG for ORG . Reports by international non - governmental organisations suggest that the phenomenon is fed by a culture of police impunity . Complainants who make well - founded allegations of serious abuses often receive the standard response that “ there is no evidence of a crime ” . The vast majority of cases , however , both grave and minor , are not reported to the authorities at all because the victims fear retaliation by the police , or have no faith that any action will be taken . ”

DATE . The relevant extracts from the Appendix to the Recommendation , adopted at the PERSON meeting of ORG , read as follows :

Instruments of restraint

CARDINAL The use of chains and irons shall be prohibited .

CARDINAL Handcuffs , restraint jackets and other body restraints shall not be used except :

a. if necessary , as a precaution against escape during a transfer , provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise ; or

b. by order of the director , if other methods of control fail , in order to protect a prisoner from selfinjury , injury to others or to prevent serious damage to property , provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority .

CARDINAL.CARDINAL ORG of restraint shall not be applied for any longer time than is strictly necessary .

CARDINAL NORP The manner of use of instruments of restraint shall be specified in national law ... ”

At a number of its meetings ORG has considered , pursuant to LAW , the measures adopted by ORG of GPE with a view to complying with the ORG ’s judgments concerning the issues of inhuman and degrading treatment of applicants and/or the absence of an effective remedy whereby complaint might be made and a lack of procedural safeguards in police custody .

For instance , during the CARDINALth meeting on DATE such judgments were put on the ORG ’s agenda , namely ORG v. GPE ( no . CARDINAL/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON ( no . CARDINAL/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . GPE , DATE ) .

According to the material of the meeting ( see document ORG OJ / DH(CARDINAL)CARDINAL ) , ORG noted that since the events described in the judgments the NORP authorities had adopted a number of measures to prevent new , similar violations . However , in spite of those measures , “ the infliction of deliberate physical ill - treatment of detainees by police officers on duty , remains widespread in GPE ” . The Deputies further noted that a comprehensive “ action plan / action report ” was awaited from GPE , which should contain details of the measures envisaged or taken to combat abuse in police custody and the evaluation of how these measures addressed the violations found by the ORG .

Therefore , the consideration of the matter was postponed pending the submission of the “ action plan / action report ” by ORG .

At its CARDINALth meeting on DATE ORG adopted the guidelines setting out concrete measures which the member states should adopt to ensure that those responsible for acts amounting to serious human rights violations ( including violations of ORG , DATE , DATE and CARDINAL of the Convention ) were held to account for their actions and that victims of human rights violations had the right to an effective remedy .

Concern about the “ persistence of widespread use of torture ” was expressed by ORG in its concluding observations concerning GPE published in DATE .

At its CARDINAL session ( DATE ) ORG considered the fifth periodic report concerning GPE . The relevant extracts from its conclusions provide as follows :

ORG is deeply concerned at allegations of torture and ill - treatment of suspects during detention , as well as reported abuses during the period between apprehension and the formal presentation of a detainee to a judge , thus providing insufficient legal safeguards to detainees ...

The ORG is concerned by the failure to initiate and conduct prompt , impartial and effective investigations into complaints of torture and ill - treatment , in particular due to the problems posed by the dual nature and responsibilities of the General Prosecutor ’s office , ( a ) for prosecution and ( b ) for oversight of the proper conduct of investigations . The ORG notes the conflict of interest between these CARDINAL responsibilities , resulting in a lack of independent oversight of cases where ORG office fails to initiate an investigation . Furthermore , there is an absence of data on the work of ORG office , such as statistics on crime investigations , prosecutions and convictions , and the apparent absence of a mechanism for data collection ...

The ORG is concerned at the current investigation system in which confessions are used as a principal form of evidence for prosecution , thus creating conditions that may encourage the use of torture and ill - treatment of suspects . The ORG regrets that ORG did not sufficiently clarify the legal provisions ensuring that any statements which have been made under torture shall not be invoked as evidence in any proceedings , as stipulated in the LAW ... ”

DATE . In its DATE report on human rights violations , ORG made the following observations in respect of GPE :

“ ... [ T]he pattern of torture and ill - treatment by law enforcement officials continued to persist from DATE , with the perpetrators rarely being brought to justice . Police officers reportedly punched , hit and kicked detainees and used various torture techniques on them , including suffocation .

Once initiated , investigations into cases of alleged abuse by police officers were slow and inconclusive . According to the Government , CARDINAL cases of abuse by law enforcement officials were reported , while CARDINAL police members were charged with such crimes in DATE . During DATE ORG reportedly received CARDINAL complaints concerning human rights abuses by law enforcement officials , and CARDINAL of them dealt with physical and psychological violence .

Amnesty International ’s DATE report referred to “ widespread and persistent allegations of torture and ill - treatment of detainees by law enforcement ” . Subsequent reports contained similar observations .

In a recent publication concerning the issue , ORG : ORG in GPE ( DATE ) , ORG noted that :

According to some estimates , CARDINAL of people in GPE may be victims of police abuses DATE . Violations range from minor infringements of the criminal procedural code , to racial abuse , extortion , torture and other ill - treatment , and deaths in custody .

These abuses are encouraged by a culture of impunity for the police in GPE . Complainants who make well - founded allegations of serious human rights abuses all too often receive the standard response “ there is no evidence of a crime ” . The vast majority of cases , however , both grave and minor , are not reported to the authorities at all because victims fear retaliation by the police , or have no faith that any action will be taken .

It was concluded that “ CARDINAL key problems must be addressed [ by ORG ] as a priority – the lack of regular detention monitoring , the lack of independent investigations , and a reluctance to prosecute police officers ” .


JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND

There are CARDINAL applicants in the present case . The first applicant , ORG r.y . , is an association promoting PERSON culture . The other applicants , PERSON , PERSON , PERSON and PERSON , are NORP nationals of PERSON origin and living in PERSON , ORG and ORG , respectively . They are all members of the first applicant association . They are represented before the ORG by Mr PERSON , ORG Secretary , ORG , and PERSON , PERSON at ORG and PERSON . The respondent Government are represented by their Agent , Mr PERSON , Director , ORG .

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

According to LAW , the PERSON , as an indigenous people , have the right to maintain and develop their own language and culture . The definition of culture includes their traditional sources of livelihood , that is to say reindeer herding , fishing and hunting .

In GPE a fishing right can be a so - called “ private fishing right ” , connected to the ownership of land . The properties in any CARDINAL village have fishing rights in the common water - areas of that village . There are also “ specific private fishing rights ” , which some properties have within the water - areas of other villages or within the ORG - owned water - areas . All these rights , as rights connected to the ownership of land , enjoy the constitutional protection of property .

In addition to private fishing rights , there are public fishing rights which are usually based on membership of a public community , for example a municipality , on the basis of public law . Such a fishing right does not enjoy the constitutional protection of property .

In the municipalities of ORG , ORG and ORG , that is to say in the Sámi Home District , there were no public fishing rights DATE .

As mentioned above , Sámi landowners have fishing rights in connection with their land ownership and the ORG owns the fishing rights in the ORG - owned water - areas . The fishing rights of Sámi people who do not own any land has been based on custom from time immemorial ( ylimuistoinen nautinta , urminnes hävd ) . It entitles them to fish within the ORG - owned water - areas in the municipalities of ORG , ORG and ORG . The right is based on civil law and enjoys , as such , the constitutional protection of property .

LAW ( kalastuslaki , lagen om fiske ; CARDINAL ) , as amended on DATE , entered into force on DATE . According to the LAW , public fishing rights were extended to apply also in the municipalities of ORG , ORG and ORG . It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the ORG - owned water - areas .

Prior to the DATE amendment , LAW ( CARDINAL/CARDINAL ) had been applied in the above - mentioned municipalities regardless of the fact that the CARDINAL LAW ( CARDINAL/CARDINAL ) applied to all other parts of GPE . The DATE amendment did not affect the position in the municipalities of ORG , ORG and ORG as , according to ORG perustuslakivaliokunta , grundlagsutskottet ) of ORG ( eduskunta , riksdagen ) , questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the PERSON people had to be settled before the law could be amended . Therefore LAW did not apply in the above - mentioned municipalities .

As from DATE , the public fishing right was extended to the area of the above - mentioned municipalities , maintaining “ the ancient right of the local people to fish within the ORG - owned water - areas without consideration ” . According to the applicants , the DATE Fishing Act did not , however , guarantee such a right to the “ local people ” , including also non - Sámi residents , as it was only granted to them by the DATE amendment .

The DATE amendment also includes provisions concerning restrictions on hooks allowed in the area . Those restrictions entered into force at DATE .

Section CARDINAL , subsections CARDINAL and CARDINAL ( CARDINAL )

“ Everyone is equal before the law . No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development . ”

Section CARDINAL ( CARDINAL/CARDINAL ) reads as follows :

“ The property of everyone is protected . Provisions on the expropriation of property , for public needs and against full compensation , are laid down by an LAW . ”

Section CARDINAL , subsection CARDINAL ( CARDINAL ) reads as follows :

“ The PERSON , as an indigenous people , as well as the GPE and other groups , have the right to maintain and develop their own language and culture . Provisions on the right of the PERSON to use the PERSON language before the authorities are laid down by an LAW . The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an LAW . ”

The provisions above are equivalent , respectively , to Sections CARDINAL and CARDINAL and LAW , subsection CARDINAL , of the present LAW ( perustuslaki , grundlagen ; GPE ) .

Section CARDINAL reads as follows :

“ A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village , based on custom from time immemorial , shall remain valid . The right to use a fishing site on the basis of custom from time immemorial shall , however , only be valid if the boundaries of the site have been clearly established .

If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters , any claim thereto must be brought to the competent district court within DATE from the date on which the decision on the boundaries has become final . ”

Section CARDINAL reads as follows :

“ Further provisions on the use of the state 's fishing rights and on fishing in state - owned waters , as well as on the management of such waters , shall be given by Decree , and in this respect the interests of the local population shall be a primary concern .

The fishing arrangements referred to in subsection CARDINAL above must nevertheless not endanger fish or prawn stock . ”

Section CARDINAL reads as follows :

“ A local inhabitant , especially where he or she has otherwise no fishing right , has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by ORG . Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish .

Where found appropriate by ORG , a licence may also be issued for purposes other than those referred to in subsection CARDINAL above .

The fishing licences referred to in subsections CARDINAL and CARDINAL above shall not be so extensive in scope and number that the fish or prawn stock is endangered . ”

Section CARDINAL reads as follows :

“ The provisions of this Decree shall apply in the municipalities of ORG , ORG and ORG .

For the purposes of this Decree , " LAW " means LAW of DATE ( CARDINAL/CARDINAL ) , as amended . ”

Section CARDINAL reads as follows :

“ The state provincial office shall set up an advisory board for each of the CARDINAL municipalities for DATE at a time , to discuss fishery matters relating to the water areas referred to in DATE , subsection CARDINAL above . The advisory boards shall have as their duties , within the limits of their competence , to give opinions , make proposals and take initiatives , as well as to perform other duties assigned to it in this LAW .

DATE , ORG and ORG shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences . The opinion may only be derogated from by the authorities for special reasons . Each advisory board shall also be requested to provide an DATE report on plans concerning the management of fishing sites . ”

Section CARDINAL reads as follows :

“ An advisory board shall consist of CARDINAL members and their personal deputies . ORG , ORG ( saamelaiskäräjät , sametinget ) , the fishing districts , the municipality and the local associations of professional fishermen shall each appoint CARDINAL member and his or her personal deputy . Where the professional fishermen have not created any association , or the associations are not able to agree on the member representing them jointly , the municipality shall appoint CARDINAL of the candidates . The advisory board shall elect CARDINAL of its members as president and CARDINAL as vice - president .

The advisory board shall be convened by the president or , in his absence , by the vice - president , and its quorum is constituted by the president or vice - president and CARDINAL other members .

The work of the advisory boards shall otherwise be governed by the provisions on government committees . ”

Section CARDINAL reads as follows :

“ Permanent residents of the municipality carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state - owned waters referred to in DATE , subsection CARDINAL above , located in their municipality of residence . Such a licence may also be issued , subject to a charge , to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above .

A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish , fish culture , scientific research or other use or management of fishing sites . ”

Section CARDINAL ( CARDINAL/CARDINAL ) reads as follows :

“ The state 's fishing sites ( valtion yksityiset kalastukset , statens enskilda fisken ) shall remain in the possession of the state in those areas where they have customarily been and still are in the state 's possession . Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state - owned waters shall be given by decree , and in this respect the interests of professional fishermen and the local population shall be a primary concern . Permanent residents of the municipalities of ORG , ORG and ORG , carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood , have nevertheless a right to obtain a fishing licence free of charge for fishing in state - owned waters located in the said municipalities .

The provisions of LAW CARDINAL above are , however , also applied to state - owned waters . ”

“ A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village , which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason , will remain in force as of old . Undisturbed possession of a fishing place since time immemorial , however , is valid only if the boundaries of the place may be reliably shown .

If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary , any action concerning the matter shall be instituted in the general court of first instance within DATE of the date when the demarcation has gained legal force .

Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this LAW , such a decision shall continue to be observed . ”

Section CARDINAL ( CARDINAL/CARDINAL ) , subsections CARDINAL and CARDINAL , read as follows :

“ This Act repeals :

LAW ( DATE ) issued on DATE ;

the Decree of DATE on the enforcement and the application of LAW ( CARDINAL/CARDINAL ) ; and

the Decree of DATE on the use of the private fishing grounds of the ORG and on fishing in fishing waters belonging to the ORG ( CARDINAL/CARDINAL ) , as amended ; as well as

LAW of DATE ( CARDINAL/CARDINAL ) § CARDINAL paragraph CARDINAL .

What has been enacted in paragraph CARDINAL subparagraph CARDINAL shall not apply to the area of the municipalities of ORG , ORG and ORG for which areas LAW ( CARDINAL ) as amended remains in force . ”

“ A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to LAW paragraph CARDINAL belonging to the ORG .

When the ORG is a joint owner of common fishing waters , it may grant the licence referred to above concerning the fishing rights corresponding to its share . The fishing corporation concerned shall be informed by an authority of the granting of the licence . A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence .

When the licences referred to above in this section can not be granted to all who want them , priority shall be given to persons engaging in fishing professionally or for domestic needs . ”

Section PERSON ( CARDINAL/CARDINAL ) reads as follows :

“ A licence entitling permanent residents of the municipalities of ORG , ORG and ORG to carry out fishing referred to in LAW , subsection CARDINAL of LAW , shall be issued by the authority referred to in section CARDINAL , subsection CARDINAL of the LAW or , in accordance with instructions issued by it , by its subordinate regional office or other entity recognised by the said authority . The licence may not be given for DATE at a time . A right based on a licence is not transferable .

Licences referred to in subsection CARDINAL of section CARDINAL above may be issued in the municipalities of ORG , ORG and ORG where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in LAW , subsection CARDINAL of LAW . ”

Section CARDINAL ( CARDINAL/CARDINAL ) reads as follows :

“ The obligation to pay the fishery fee laid down in LAW paragraph CARDINAL of LAW shall concern all persons DATE who take directly part in the catch . The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch .

Those under DATE who under LAW paragraph CARDINAL of LAW shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or LAW paragraph CARDINAL of LAW without paying the fee , shall prove their age in a reliable way , when necessary . ”

“ ... the provisions of LAW and LAW , concerning fishing rights based on land - ownership , are similar in substance . At the time of enactment of LAW , no final court decisions had been given on the water district boundaries in the municipalities of ORG , ORG and ORG . Therefore , the existing specific rights to a fishing site , attached to real estates , were also unclear . For these reasons , the provisions of the DATE LAW remained in force for the CARDINAL northernmost municipalities .

Thereafter , the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established . There are no longer any unsolved questions of ownership of water areas in respect of individual real estates , and therefore it is no longer necessary to apply the DATE LAW in the area in question .

The state - owned fishing sites are of great importance for the local population in the municipalities of ORG , ORG and ORG . In the absence of decisions on the establishment of water district boundaries , there were unsolved questions in respect of the ownership of the water areas . Therefore , the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence . In the proceedings for the establishment of water district boundaries , most of the waters were established as belonging to the state . Thus , the state also held the fishing rights attached to the waters , except for certain specific fishing rights . In order to provide for the possibilities of the local inhabitants to fish , it was provided in the decree implementing the DATE LAW , which entered into force in DATE , that the local inhabitants of the CARDINAL northernmost municipalities , who were carrying out professional fishing , fishing for personal purposes or other natural means of livelihood , had the right to obtain a fishing licence free of charge for fishing in the state - owned waters located in their municipalities of residence . The local inhabitants were also provided with a possibility to participate in decision - making concerning fishing and management of fish stock in respect of those waters , by means of setting up advisory boards for each of the CARDINAL municipalities . These advisory boards had , inter alia , the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences . ORG , ORG , the fishing districts , the municipality and the local associations of professional fishermen appointed members to ORG . ...

It is proposed that the possibility for the local inhabitants of ORG , ORG and ORG municipalities to fish in the state - owned waters be maintained . Therefore , the present proposal contains provisions which are currently included in a decree , concerning the right of the local inhabitants carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state - owned waters ( LAW ) . ...

The application of LAW in the municipalities of ORG , ORG and ORG does not remove or change the fishing rights that their inhabitants have in the state - owned waters which have an established legal basis , such as the basis of custom " from time immemorial " . Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the Sámi population . In order to secure the fishing rights of the local inhabitants carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood , it is proposed that the LAW contain those provisions on the right to fish free of charge in the state - owned waters which are now included in a decree . Thus , the existing provisions would be included in an LAW of ORG instead of a decree , but the proposal does not intend to change the substance of the provisions .

“ On different occasions ( opinions CARDINAL/CARDINAL , DATE and CARDINAL ) ORG has found that local inhabitants of the CARDINAL northernmost municipalities , who have no titles to land , have such fishing rights as enjoy the protection of possessions guaranteed by the LAW .

In the opinion given in DATE , ORG observed that " the bill subject to debate , concerning fishing in the CARDINAL northernmost municipalities , entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood , of whom most represented the PERSON population , as a licence would thereby be necessary for fishing and it would be subject to a charge . " In the ORG 's view , the bill had to be considered in accordance with the procedure for the enactment of the LAW .

The opinion given by LAW in DATE concerned the Government PERSON for the enactment of the CARDINAL LAW . The ORG drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay . Thereafter , the Law and ORG proposed that the fishing legislation - the DATE LAW - in force at the material time should remain in force for the said municipalities ( Report of ORG DATE ) . Thus , a provision based on that proposal , subsection CARDINAL of section CARDINAL , was included in the new LAW .

In DATE , the opinion of ORG concerned a Government Bill in which it was proposed , inter alia , that section subsection CARDINAL of section CARDINAL of the DATE LAW be repealed . On that occasion , the ORG was of the view that the bill entailing repealing of the said provision had to be discussed in accordance with the procedure provided for in section CARDINAL of LAW . The ORG further noted , referring to the ILO Convention No CARDINAL concerning ORG , adopted in DATE , that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the LAW . ...

Extending the scope of application of LAW to concern the CARDINAL northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section CARDINAL of LAW and with the requirements of foreseeability . A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions . Referring to earlier opinions , the ORG finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of ORG ( Opinions of the Constitutional Law Committee CARDINAL/CARDINAL and CARDINAL ) . ...

Subsection CARDINAL of section CARDINAL means that the local inhabitants in the CARDINAL northernmost municipalities maintain their possibility to fish free of charge in the state - owned waters , based on custom . In the ORG 's view , this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom " from time immemorial " and on an extensive right of enjoyment , which have been observed in earlier opinions of the ORG , concerning the traditional rights of inhabitants who do not have titles to land . For this reason , the ORG is of the view that the bill is also acceptable in the light of the provisions in section CARDINAL of LAW . As regards the status of the Sámi people , particularly in view of the provisions in subsection CARDINAL of section QUANTITY , the ORG has paid attention to the fact that fishing has been part of the traditional way of life of the PERSON without any restrictions as to their place of residence . Therefore , the ORG finds it important to clarify the last part of the provision in subsection CARDINAL of CARDINAL so that the fishing right is not only dependent on the place of residence but is valid in the areas of all CARDINAL northernmost municipalities where the person is resident in CARDINAL of them . ...

Article CARDINAL of LAW provides for the rights of minorities . For example in the light of the practice of ORG monitoring the implementation of the LAW , it may be observed that the exercise of fishing rights of the PERSON is part of their minority culture . The proposed amendment may not be considered to entail prevention of fishing as part of the PERSON culture in the sense of constituting a violation of LAW . In this respect , reference may be made to LAW , which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge . ...

The Government PERSON does not interfere with questions of ownership . The purpose of the proposed provisions is , inter alia , to establish the right of permanent residents of the municipalities of ORG , ORG and ORG to obtain a fishing licence free of charge for fishing in the state - owned waters , on certain conditions . The PERSON is not restricted to the PERSON as a population group but concerns all residents of the said municipalities . Apart from permanent residence , it is further required for the existence of such a right that the residents in question carry out professional fishing , fishing for personal purposes or other traditional means of livelihood . In the ORG 's view , these conditions are , however , of such a nature that they have relevance in particular for the PERSON . Therefore , it may be observed that the PERSON partly contributes to the protection of the right of the PERSON to use the water areas in question . ”