Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings (total)

András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

He is a journalist on the NORP DATE magazine ORG . From CARDINAL DATE until DATE he was assigned to GPE to report on the policies of ORG and the activities of the NORP institutions .

On DATE and DATE Stern published CARDINAL articles by the applicant based on confidential documents from ORG ) . The first article reported on allegations by a NORP civil servant concerning irregularities in the NORP institutions . The second concerned the internal investigations ORG had carried out into those allegations .

A rumour began to circulate within ORG that the applicant had paid MONEY ( ORG ) or NORP marks ( ORG ) to a NORP civil servant in exchange for this information .

On DATE OLAF , suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the NORP institutions , opened an internal investigation to identify the person who had disclosed the information to the applicant .

The minutes of an ORG meeting held on CARDINAL and DATE stated in particular :

“ The members of ORG noted that the journalist ’s articles were not at all aggressive in tone but hinted at the real situation , as was often the case with individuals . They were surprised that ORG ’s press release referred to a payment for such information . Consequently , they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard . ”

In a letter of DATE written in the course of his inquiry into a complaint ( no . CARDINAL/CARDINAL/GG ) filed by the applicant against ORG , ORG indicated that the suspicions that the applicant had bribed an ORG official had originated from “ information from reliable sources , including members of the NORP Parliament ” .

On DATE ORG issued a press release entitled “ OLAF clarification regarding an apparent leak of information ” . The press release was worded as follows :

“ On DATE , ORG ( ORG ) issued a press release announcing that it had opened an internal investigation under LAW into an apparent leak of confidential information included in a report prepared within ORG . It stated that according to information received by the ORG , a journalist had received a number of documents relating to the so - called ‘ ... affair’ , and that it was not excluded that payment might have been made to somebody within ORG ( or possibly another ORG institution ) for these documents . ORG ’s enquiries have not yet been completed but to date , ORG has not obtained proof that such a payment was made . ”

On DATE ORG issued his decision . He had already submitted a draft recommendation to ORG on DATE . The decision , which essentially reproduced the conclusions set out in the draft , stated in particular :

CARDINAL ... by publishing this press release , ORG has not adequately implemented the ORG ’s draft recommendation . Instead of withdrawing the allegations of bribery , ORG simply states that ‘ to date’ it has not found sufficient evidence to support these allegations . The wording of this press release thus implies that ORG considers it possible that evidence supporting these allegations could still emerge . In these circumstances , the action taken by ORG is manifestly inadequate to remedy the instance of maladministration that the ORG has identified . A critical remark will therefore be made in this respect .

Conclusion

CARDINAL On the basis of the ORG ’s inquiries into this complaint , it is necessary to make the following critical remark :

By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny , ORG has gone beyond what is proportional to the purpose pursued by its action . This constitutes an instance of maladministration . ”

On DATE OLAF lodged a complaint with the NORP judicial authorities , submitting a report on the internal investigation it had carried out . It also referred the matter to the NORP judicial authorities .

Consequently , on DATE , an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant .

On DATE , at the request of the investigating judge , the applicant ’s home and workplace were searched by the NORP judicial authorities . Almost all of the applicant ’s working papers and tools were seized and placed under seal ( CARDINAL crates of papers , CARDINAL boxes of files , CARDINAL computers , CARDINAL mobile telephones and a metal cabinet ) . It appears that the search warrant was not handed to the applicant but was read out to him . No inventory of the items seized was drawn up . On that occasion , the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by ORG , which suspected him of having bribed a NORP civil servant in order to obtain confidential information . According to the applicant , the authorities subsequently lost a whole crate of papers , which was not found until DATE , in DATE .

On DATE and DATE the applicant applied to ORG at ORG for leave to consult the investigation file . His application was refused in a letter dated DATE .

The applicant applied again on DATE , to no avail .

In the meantime , on DATE , he had applied to the investigating judge to have the measures relating to the seizure discontinued .

By an order of DATE the investigating judge rejected his application .

NORP The applicant appealed , alleging , inter alia , a breach of LAW .

ORG upheld the order on DATE , holding as follows :

“ The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom , and , if so , whether that right has an absolute value or is subject to restrictions , has not yet been established in law .

The actual wording of LAW does not recognise the protection of journalistic sources , a right which has developed through the case - law of ORG , albeit without having been enshrined as an absolute value according to legal authorities ( see , to this effect , the judgment of ORG in the case of PERSON and Others v. GPE , DATE , no . CARDINAL , Human Rights Information Bulletin no . CARDINAL , DATE , pp . CARDINAL - CARDINAL ) .

Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information , although the exercise of this right does not give rise to immunity from prosecution or from civil liability ( see in this connection the PERSON granting journalists the right not to disclose their sources of information , passed by ORG on DATE , and the opinion of ORG on the legislative proposals to grant journalists the right to protect their sources of information , approved by ORG on DATE ) .

The investigative measure complained of is , admittedly , an interference in the rights guaranteed by LAW ORG . It was , however , lawfully ordered by the competent investigating judge in connection with the matter referred to him .

It pursues legitimate aims since , in the context of the information in the case file brought to the attention of the court , whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information , its purpose is to ‘ verify whether the protection of confidentiality applies to a lawful or unlawful source ; the latter must be overridden by a superior value , namely the prevention of ORG written application by ORG of DATE , p. CARDINAL ) .

As is rightly noted by the investigating judge , it is not acceptable that the right to protect sources can be used to cover up offences , since this would deprive that right of its purpose , notably the provision of accurate and reliable information to the public , and would be likely to jeopardise public safety by creating de facto impunity ( see to this effect the judgment of ORG DATE , ORG , DATE , p. CARDINAL ) .

In the instant case , as the investigating judge noted in the order appealed against , in particular on page CARDINAL , paragraph CARDINAL.CARDINAL.CARDINAL , the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained , being justified by the ongoing duty to investigate , the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge .

The arguments advanced by the applicant in his submissions to this court , which can not substitute its own findings for those of the court below , do not give rise to any doubt in this respect .

It follows that the appeal is unfounded . ”

The applicant appealed on points of law . Relying in particular on Articles CARDINAL , CARDINAL of the Convention , he submitted that freedom of expression included the freedom to seek out and collect information , essential aspects of journalistic activity . According to the applicant , that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources . The applicant also complained that since he had not had access to the investigation file , he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search .

By a judgment of DATE ORG dismissed the appeal . It held that LAW authorised restrictions on freedom of expression , that the search and seizure were provided for by LAW and that ORG had given sufficient and adequate reasons for its decision . ORG further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out . It was sufficient for the investigating judge to have evidence suggesting that that these LOC might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant . Consequently , the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under LAW , and was therefore inadmissible .

In the meantime , on CARDINAL and DATE , the applicant had lodged CARDINAL applications with ORG of ORG . The first sought the annulment of the complaint filed by ORG and compensation for the harm allegedly caused to the applicant ’s career and reputation . The second sought a temporary injunction prohibiting ORG from inspecting any document seized during the searches at issue . By an order of CARDINAL DATE the President of the court dismissed the applications . The President ruled that ORG ’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment . He stressed in particular that ORG ’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings , given that the competent authorities remained free to decide on the action to be taken in relation to the report . As regards the applicant ’s application for interim measures , he ruled that there was no causal link between the alleged harm and ORG ’s action and that it had not been established that ORG had acted in breach of the principles of good administration and proportionality .

The applicant appealed . By an order of DATE the President of ORG of ORG upheld the order .

In the context of those proceedings , the applicant received a copy of ORG ’s complaint but not of the other documents in the criminal file . At that time , he had not been charged in GPE . On DATE the GPE public prosecutor informed the applicant ’s counsel that the investigation in GPE had been closed without any charges being brought .

On DATE ORG drafted a special report for ORG following the draft recommendation he had addressed to ORG in connection with a fresh complaint filed by the applicant ( CARDINAL/CARDINAL/GG ) . In the complaint the applicant alleged that during the inquiry into complaint no . CARDINAL/CARDINAL/GG , ORG had provided incorrect information that was prone to mislead the ORG ; he requested the latter to conduct a new inquiry .

In his above - mentioned report , the ORG stated that the alleged remarks by the members of ORG ( see paragraph CARDINAL above ) had probably never been made . They were rumours circulated by another journalist , PERSON , which the Director General of ORG had not bothered to check with the members of ORG concerned .

In his recommendation , the ORG concluded that ORG should acknowledge that it had made incorrect and misleading statements in its submissions to the ORG in the context of the latter ’s inquiry into complaint no . CARDINAL/CARDINAL/GG .

Article CARDINAL of LAW provides :

“ Medical practitioners , surgeons , health officers , pharmacists , midwives and all other persons who , by reason of their status or profession , are guardians of secrets entrusted to them and who disclose them , except where they are called to give evidence in legal proceedings ( or to a parliamentary commission of inquiry ) or where the law requires them to do so , shall be liable to imprisonment for DATE and a fine ranging from MONEY . ”

The relevant provisions of LAW read as follows :

“ The investigating judge may , if required to do so or of his own motion , visit the home of the accused to search papers , effects and , in general , any items that may be deemed useful in establishing the truth . ”

“ Similarly , the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden . ”

DATE of Regulation EC No . CARDINAL/CARDINAL of ORG and of ORG DATE concerning investigations conducted by ORG provides as follows in respect of confidentiality and data protection :

“ CARDINAL . Information obtained in the course of external investigations , in whatever form , shall be protected by the relevant provisions .

Information forwarded or obtained in the course of internal investigations , in whatever form , shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of ORG .

Such information may not be communicated to persons other than those within the institutions of ORG or in the Member GPE whose functions require them to know , nor may it be used for purposes other than to prevent fraud , corruption or any other illegal activity .

Article CARDINAL of the same ORG provides that it is binding in its entirety and directly applicable in all Member GPE .

Paragraph CARDINAL of LAW states as follows ;

“ The ORG , acting in accordance with the procedure referred to in LAW , after consulting ORG , shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the ORG with a view to affording effective and equivalent protection in GPE . These measures shall not concern the application of national criminal law or the national administration of justice . ”


The applicant , PERSON , is a NORP citizen , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

The applicant served as a dentist in ORG ( ORG ) from DATE to DATE . His post was in GPE , GPE .

By an order of the Commander of the Fifth Military Zone of the Socialist Federal Republic of Yugoslavia of DATE it was decided that , due to his age , the applicant ’s military service would end on DATE . Subsequently , by a decision of ORG ( GPE za socijalno osiguranje vojnih osiguranika ) of DATE , the applicant ’s right to an old - age pension was recognised as from DATE .

The applicant ’s pension was subsequently paid from ORG in GPE until DATE .

According to the Government the payments stopped on that date at the applicant ’s personal request , as he had decided to file an application for a pension in GPE .

According to the applicant on DATE he obtained NORP citizenship and , consequently , only then fulfilled the requirements to apply for a pension in GPE .

On DATE the applicant filed an application for an old - age pension in GPE . As a reason for this request the applicant submitted that he had previously fulfilled the conditions for an old - age pension and also obtained the NORP citizenship .

By a decision of CARDINAL DATE ORG ( Republički fond mirovinskog i invalidskog osiguranja radnika ORG ured GPE ) rejected his request , stating that the applicant did not fulfil the requirements for a pension as he had failed to join the NORP army prior to DATE .

The applicant unsuccessfully appealed against that decision and after his appeal was rejected on DATE , he instituted proceedings before ORG ( Upravni sud PERSON ) . He maintained that the decision to reject his request for an old - age pension had not been adequately reasoned and had failed to state laws on which it had been based . He maintained also that the law requesting the former ORG officers to make themselves available for the service in the NORP army prior to DATE had been enacted on DATE , after he had already fulfilled the conditions for an old - age pension . Furthermore , as that law had been enacted only in DATE he could not have known the above requirement prior to his retirement form service .

On DATE ORG rejected his claim . It noted that the applicant ’s active military service in the ORG had come to an end on DATE and that at that moment he fulfilled the requirements for the old - age pension according to ORG law . It found furthermore that the applicant had failed to make himself available for service in the NORP army prior to DATE , as prescribed by the DATE Former ORG Officers’ Pensions Act . Therefore , he had failed to fulfil the requirements for recognition of his pension rights in GPE , as prescribed by law .

On DATE the applicant lodged a constitutional complaint claiming that his right to property was violated by ORG decision in so far as his right to pension in GPE was denied . He argued in particular that the DATE Former ORG Officers’ Pensions Act had not required that he join the NORP army .

On DATE ORG ( Ustavni sud PERSON ) rejected the applicant ’s complaint . It followed the reasoning set out in ORG decision of CARDINAL DATE and found that the applicant ’s constitutional rights had not been violated .

The relevant parts of the Former ORG Officers’ Pensions Act ( DATE - Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše PERSON , ORG no . CARDINAL/CARDINAL ) read as follows :

“ A person whose status as an active officer in the former ORG in the territory of GPE ended prior to DATE , and who had not until that date obtained rights from pension and invalidity insurance may obtain such rights if he fulfils the conditions required of army personnel in order to obtain rights concerning pension and invalidity insurance in accordance with ORG ( Zakon o mirovinskom i invalidskom osiguranju vojnih osiguranika – Official Gazette no . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) and if :

– he had made himself available for the service in the NORP army prior to DATE ... ”

By its decision of DATE ORG , inter alia , guranteed to ORG officers and soldiers who voluntarily left the ORG troops based on NORP territory prior to DATE at TIME the following : personal safety , the same status as they had in the ORG and an organised and unhindered possibility to leave the territory of GPE for those who wished to do so .


Violation of Art. 5-1;No separate issue under Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

The applicant was convicted at ORG on DATE of causing actual bodily harm to a woman passer - by in a random and unprovoked attack . He punched her in the head and in the abdomen and then walked off . Unbeknownst to the applicant , the woman was DATE pregnant . The applicant had previous convictions for unprovoked assaults : in DATE he was sentenced to CARDINAL months’ imprisonment for an assault on his mother ; in DATE he was sentenced to CARDINAL years’ imprisonment for an assault in which he had struck a woman passer - by with a housebrick ; in DATE he was sentenced to CARDINAL months’ imprisonment for assaulting QUANTITY girls walking along a city street . He also had convictions for robbery , criminal damage and various driving offences . The maximum sentence which the court could have imposed under section QUANTITY of the Offences against LAW in respect of the current offence was a term of imprisonment of DATE .

While on remand in ORG the applicant was diagnosed as suffering from “ mental illness ” , manifested in delusions of conspiracy and victimisation and an obsession with astral projection . The precise diagnosis was of schizophrenia superimposed on a psychopathic personality . The applicant had a history of alcohol and drug abuse . He had never previously been diagnosed as mentally ill within the meaning of LAW DATE although , when on remand on a previous charge of actual bodily harm , he had been assessed for psychiatric treatment but had been found to be unsuitable .

The applicant ’s diagnosis ( see paragraph CARDINAL above ) was confirmed by CARDINAL psychiatrists . ORG accordingly imposed a hospital order on him under LAW of LAW . He was also made subject to a restriction order without limit in time under LAW of the same LAW , the court being satisfied that this order was necessary for the protection of the public from serious harm .

On DATE the applicant was admitted to ORG , a maximum security psychiatric institution . Between the date of his admission and up to CARDINAL DATE he remained under the supervision of PERSON , the responsible medical officer ( “ RMO ” ) . PERSON acted as his ORG from CARDINAL DATE until DATE discharge .

When the applicant was admitted to ORG Dr PERSON recorded that he was suffering from schizophrenia superimposed on a psychopathic personality . Soon after his admission the applicant was administered antipsychotic drugs , and it would appear that he responded well to treatment to the extent that by CARDINAL DATE he had developed full insight into his mental illness . The applicant ceased taking medication in DATE ( see paragraph CARDINAL below ) .

NORP The applicant ’s detention was reviewed on several occasions DATE by ORG ( “ the ORG ” ) pursuant to the provisions of section CARDINAL of the CARDINAL Act .

The first review was held in DATE . The ORG had before it the psychiatric report of PERSON , the applicant ’s PERSON at the time , as well as a similar report drawn up by Dr PERSON , a consultant psychiatrist , at the request of the applicant ’s solicitor .

While noting the applicant ’s great progress since the date of his admission to ORG ( see paragraph CARDINAL above ) , PERSON stated that he was still suffering from schizophrenia , superimposed on a psychopathic personality . He was also reported to be devious in his attitude to the staff at the hospital . PERSON concluded that the applicant continued to require treatment and was unfit to be discharged . PERSON expressed the opinion that the applicant showed ample signs of psychopathic disorder with superimposed mental illness and that the mental illness had the characteristics of a paranoid schizophrenic condition . He did not recommend any change in the applicant ’s current status .

In its decision of CARDINAL DATE , the ORG stated that it was satisfied that the applicant was suffering from mental illness or a form of that disorder of a nature or degree which made it appropriate for him to be liable to be detained and that it was necessary for his health or safety and for the protection of other persons that he should receive medical treatment in ORG .

The applicant continued therefore to be detained after that date .

The applicant ’s case came up for review on CARDINAL DATE and again on DATE . On both occasions the ORG decided to make no direction for his discharge or reclassification of his illness , believing that it was necessary for his own health and safety as well as for the protection of other persons in the community at large that he continue to receive medical treatment for his condition in hospital .

A fourth review took place in DATE . The ORG had before it a psychiatric report drawn up on CARDINAL DATE by PERSON who had taken over from PERSON as the applicant ’s PERSON following her retirement ; an assessment of the applicant ’s condition prepared on DATE by ORG , a consultant psychiatrist , based on , inter alia , an interview with the applicant on DATE ; and a further assessment dated CARDINAL DATE drawn up by PERSON , who had interviewed the applicant on DATE .

Dr PERSON and PERSON both concluded that the applicant was free of symptoms of mental illness . Dr PERSON ’s view was that the applicant was no longer detainable under LAW . While recommending a discharge , Dr PERSON noted that arrangements were being made by Dr PERSON ( see below ) to secure accommodation for the applicant in a hostel for persons suffering from drink - related problems . Dr PERSON for his part felt that the applicant still needed to undergo a period of rehabilitation and was not fit for discharge at that time . In his report PERSON PERSON concluded that the applicant was best described as “ a schizoid personality with a history of explosive anti - social behaviour induced by intoxication ” and that he could benefit from a stay in a hostel for people with drink - related problems following his discharge from ORG . Dr PERSON offered to facilitate the applicant ’s transfer to a hostel which he had in mind and to act as his psychiatric supervisor .

The ORG ruled on DATE as follows :

“ The ORG accepts the medical evidence that the patient is not now suffering from mental illness . The episode of mental illness from which he formerly suffered has come to an end . He is not now in receipt of any psychotropic medication . ”

However the ORG continued :

“ The [ applicant ] had an unrealistic opinion of his ability to live on his own in the community after DATE in ORG and required rehabilitation under medical supervision and that such rehabilitation ( and its associated support ) can be provided only in a hostel environment . Further , the ORG is of the opinion that the recurrence of mental illness requiring recall to hospital can not be excluded until after successful rehabilitation of that nature . ”

On that basis , the ORG ordered the applicant ’s conditional discharge , the conditions being that the applicant be subject to the psychiatric supervision of ORG and to the social - worker supervision of a nominated psychiatric social worker , and reside in a supervised hostel approved by ORG and the nominated psychiatric social worker .

The applicant ’s discharge was to be deferred until arrangements could be made for suitable accommodation .

Following the DATE review , considerable efforts were made to secure hostel accommodation for the applicant , but to no great avail . In the report of a senior social worker dated DATE , it was noted that no progress had been made on account of , inter alia , the limited number of hostel placements in the area catering for the applicant ’s specific needs . The applicant himself also seemed intent on portraying himself in a negative light when visiting hostels , with the result that he confirmed their initial anxieties about accepting him .

The nominated psychiatric social worker ( see paragraph CARDINAL above ) , Mr PERSON , contacted a number of hostels . In his report of CARDINAL DATE , PERSON PERSON described how his search for hostel accommodation for the applicant had been “ a time - consuming , lengthy and frustrating ” experience both for himself and the applicant . CARDINAL hostel visited had rejected the applicant almost immediately . Another rejected him without seeing him and the housing associations running hostels in conjunction with ORG also felt unable to offer him accommodation for some time on account of staff composition . It would appear that all potential hostels expressed concern about the applicant ’s drinking problem and his previous history of assaults on women which might present a threat to female residents and members of staff . Mr PERSON indicated that the applicant during this time had not always shown a realistic appreciation of the lifestyle needed to achieve a successful rehabilitation .

However , CARDINAL hostel , PERSON , did express interest in accepting the applicant on condition that he agree to and successfully complete an DATE trial period in an open ward in a local hospital . Mr PERSON believed that PERSON was the only viable option , although the applicant remained rather ambivalent about exploring this possibility .

On DATE the applicant applied to the ORG to have his detention reviewed , hoping for an absolute discharge . The ORG met in DATE and heard the applicant in person . It had before it Mr PERSON ’s report on attempts to find suitable accommodation for the applicant ( see paragraph CARDINAL above ) , as well as his views on the applicant ’s suitability for absolute discharge . Mr PERSON had concluded that he would be fearful of granting an absolute discharge since the applicant , if left to his own devices and without suitable support , could quickly find himself in trouble again . He was in favour of the applicant spending an DATE trial period in a local hospital , which would provide the basis for acceptance by the PERSON hostel .

The ORG also considered a report prepared by PERSON , dated CARDINAL DATE . PERSON confirmed in this report that the applicant was no longer mentally ill . He stated that the terms of the earlier conditional discharge were still being pursued but that it had not yet been possible to find suitable accommodation . He recommended that the applicant be discharged as soon as appropriate arrangements could be made .

The ORG noted in its ruling of CARDINAL DATE that the necessary arrangements for supervised accommodation had not been easy to make “ probably because the patient is himself not easy to please ” . The ORG accepted the reasoning of the DATE ORG ( see paragraph CARDINAL above ) . Although acknowledging that the applicant ’s clear preference was for an absolute discharge , the ORG considered that it was in the interests of the applicant and the public that “ he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional ” .

Accordingly , the ORG once again directed the applicant ’s conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation .

On DATE the applicant commenced trial leave at another hospital , PERSON , which was less secure than ORG ( see paragraph CARDINAL above ) . He was allowed increasing freedom in the form of time away from the hospital . On DATE , after drinking in a local pub , he returned to the hospital TIME and assaulted a patient whom he alleged had provoked him . Thereafter the placement began to break down completely . In a report dated DATE , PERSON , the supervising psychiatrist , noted that the applicant had terrorised the nursing staff and had began to reject the rehabilitation plans which had been foreseen for him . He was returned to ORG on CARDINAL DATE .

Back in ORG , the applicant was given the choice to return to the pre - discharge unit there , where he could pursue other pre - discharge possibilities , or to go to another ward containing more long - term patients . The applicant chose the latter option .

A sixth review was carried out in DATE . The ORG considered a progress report drawn up by PERSON on DATE , the report prepared in DATE by ORG ( see paragraph CARDINAL above ) and a report of PERSON PERSON dated CARDINAL DATE .

Dr ORG noted in his report the failure of the trial - leave period ( see paragraph CARDINAL above ) and the difficulty in rekindling the applicant ’s motivation . Dr PERSON concluded :

“ [ the applicant ] is not mentally ill and does not require to remain in ORG . Since DATE attempts to obtain his conditional discharge have been foiled by his inability to cooperate with the arrangements made and it is now difficult to envisage any conditions of his discharge that would be acceptable to [ the applicant ] . ”

Dr PERSON ’s report of CARDINAL DATE expressed pessimism about the applicant ’s future in the light of the failure of the trial - leave period . He indicated that the applicant suffered from an explosive disorder of personality which meant that “ when he is not in the middle of an explosion he is not in the formal sense mentally ill ” . Dr PERSON had no doubt that intoxication had played some part in the breakdown of the rehabilitation process and was convinced that the applicant ’s intoxicated explosions would likely recur whenever he was granted freedom into the community with access to intoxicants . Dr PERSON also considered that any further attempt at rehabilitation through general psychiatric routes would be inappropriate and for this reason was reluctant to continue as his psychiatric supervisor .

In his report PERSON PERSON noted that the applicant ’s failure to complete successfully the trial - leave period ruled out any prospect of his acceptance by the PERSON hostel .

On DATE the ORG found that the applicant was not suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment . However , the ORG was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment . The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support . Hence the applicant was again ordered to be conditionally discharged , such discharge to be deferred until alternative supervised accommodation could be found .

The applicant ’s final review took place in DATE . He was assessed prior to this review by PERSON , who indicated that the applicant had no symptoms of mental illness and , provided that the topic of rehabilitation was avoided , he was constantly pleasant , friendly and cooperative . PERSON concluded :

“ There is no basis for [ the applicant ] continuing to be classified as suffering from mental illness and with the benefit of hindsight it appears unlikely that he ever experienced more than a drug - induced psychosis ... He does not require to remain in ORG but it is difficult to envisage any conditions of his discharge that would be acceptable to him and his current application for an absolute discharge must now be considered on its merits . ”

On DATE the ORG ordered the applicant ’s absolute discharge on the basis that the applicant

“ is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment ” .

In reaching this conclusion the ORG had regard to Dr ORG ’s oral evidence . It noted from his evidence that the applicant had not suffered from mental illness since DATE and was not suffering from any other form of mental disorder . Medication had been withdrawn in DATE . The applicant had shown consideration and kindness to other patients in his ward and he was “ often acting more like a member of staff than a patient ” .

Furthermore , the ORG noted that PERSON considered that the index offence was not to be regarded as a result of mental illness but of a likely combination of drugs and alcohol . The applicant had suffered a psychotic episode whilst on remand which PERSON attributed to the stress of prison and the withdrawal of drugs and alcohol . According to PERSON there was no evidence that this illness was likely to recur and there was no medical basis to believe that the applicant would be dangerous if released .

While having regard to the view of the Secretary of ORG that only a conditional discharge was appropriate at that stage , the ORG concluded that it was proper and in the interests of justice to grant the applicant an absolute discharge .

The applicant was released from ORG on DATE . Since then , he has not relapsed into mental illness . At the hearing the ORG was informed that the applicant had recently been given a conditional discharge following his conviction of a minor public - order offence arising out of an altercation with a neighbour . He was also facing a charge of cultivating cannabis .

Section CARDINAL ( CARDINAL ) of LAW DATE ( “ the DATE LAW ) defines “ mental disorder ” as mental illness , arrested or incomplete development of mind , psychopathic disorder and any other disorder or disability of mind . A personality disorder would not , of itself , justify detention unless it came within the definition of psychopathic disorder , namely “ a persistent disorder or disability of mind ( whether or not including significant impairment of intelligence ) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the person concerned ” .

Under LAW CARDINAL ) of the LAW , dependence on alcohol or drugs is not to be construed as a form of mental disorder .

Section CARDINAL of the DATE Act empowers a court to order a person , on being convicted of a criminal offence punishable with imprisonment , to be admitted to and detained in a specified hospital ( “ a hospital order ” ) .

The court can only make a hospital order if it is satisfied on the written or oral evidence of CARDINAL registered medical practitioners that the offender is suffering from mental disorder ( see paragraph CARDINAL above ) and that

“ the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment , and in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration in his condition ” ( section DATE ( CARDINAL ) ( a ) ( i ) )

and

“ the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of a [ hospital order ] ” ( section DATE ( CARDINAL ) ( b ) ( ii ) ) .

Under section DATE ( CARDINAL ) a hospital order must specify the form or forms of mental disorder from which the offender is suffering , as confirmed by the evidence of CARDINAL practitioners .

Section CARDINAL of the DATE Act empowers a court to make a restriction order ( with or without limit of time ) at the same time as it makes a hospital order . The restriction order gives the Secretary of ORG , inter alia , increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if still at large , that it is necessary for the protection of the public from serious harm to make the order . A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of ORG ( see paragraph CARDINAL below ) to order release more narrowly than in the case of an ordinary mental patient .

Under section CARDINAL of the CARDINAL Act , a person who is subject to a hospital order and restriction order ( “ a restricted patient ” ) , and who is detained in hospital , may apply to the ORG after CARDINAL months’ detention for a review of his detention . After CARDINAL months’ detention such applications may be made DATE . The Secretary of ORG may at any time refer the case of a restricted patient to the ORG ( section CARDINAL of LAW ) . Tribunals are made up of a legally qualified member who sits as the chairperson , a medically qualified member who interviews the patient and a lay member .

NORP Under LAW ( CARDINAL ) and ( CARDINAL ) of LAW , read in conjunction with section DATE ( CARDINAL ) , where an application is made to the ORG by a restricted patient or where his case is referred to the ORG by the Secretary of ORG , the ORG is required to direct the absolute discharge of the patient if it is satisfied

( a ) ( i ) that the patient is not then suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment ; or

( ii ) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment ( section CARDINAL ( CARDINAL ) of the DATE Act ) ; and

( b ) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment ( section CARDINAL ( CARDINAL ) of LAW ) .

Pursuant to section CARDINAL ( CARDINAL ) , where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect .

Under LAW ( CARDINAL ) of LAW , where the ORG is satisfied as to either of the matters referred to at ( a ) in paragraph CARDINAL above but not as to the matter referred at ( b ) in paragraph CARDINAL above , it is required to direct the conditional discharge of the patient . Lady Justice PERSON , giving judgment in the case of NORP v. ORG , ex parte K ( [ DATE ] CARDINAL ORG , ORG ) , explained the nature of this power as follows :

“ LAW gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital . This would appear to be a provision designed both for the support of the patient in the community and the protection of the public , and it is an important discretionary power vested in an independent tribunal , one not lightly to be set aside in the absence of clear ORG pp . CARDINAL–CARDINAL )

By virtue of section CARDINAL ( CARDINAL ) of LAW , a patient who has been conditionally discharged may be recalled by the Secretary of ORG and must comply with the conditions attached to his discharge . In contrast to absolute discharge , a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order .

Under LAW ( CARDINAL ) of LAW , a tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to their satisfaction . However , in the case of restricted patients , whose discharge has been accordingly deferred , the ORG does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to reconvene the proceedings failing such compliance with the time fixed . However , once the case comes back before the ORG on an application by the patient ( which at the earliest will be DATE ) or on a reference from the Secretary of ORG ( which may be at any time ) the ORG must consider the case afresh . In Secretary of ORG for ORG v. ORG and another ( [ DATE ] CARDINAL ORG , ORG ) , Lord Bridge noted that there was no basis in the DATE Act or in the rules of ORG to defer a conditional discharge until a fixed date . He stated :

“ ... it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how long it will take to make the necessary arrangements . The decision should simply indicate that the direction is deferred until the necessary arrangements have been made to the satisfaction of the tribunal and specify what arrangements are required , which can normally be done , no doubt , simply by reference to the conditions to be imposed . Whoever is responsible for making the arrangements should then proceed with all reasonable expedition to do so and should bring the matter to the attention of the tribunal again as soon as practicable after it is thought that satisfactory arrangements have been made ... ” ( at p. CARDINAL )

NORP The Secretary of ORG may also order a patient ’s conditional or absolute discharge ( section CARDINAL of LAW ) .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Damage - finding of violation sufficient;Costs and expenses partial award

On DATE the ORG issued a warrant of arrest against the applicant who was suspected of attempted manslaughter , robbery and rape . He was arrested on DATE .

On DATE ORG ( Sąd Wojewódzki ) prolonged the detention on remand until DATE finding a reasonable suspicion that the applicant had committed the crimes in question . The ORG considered that certain witnesses had to be heard and that expert opinions should be taken .

On DATE ORG transmitted the bill of indictment to ORG . The applicant was charged with attempted manslaughter , assault , causing severe bodily harm , use of a dangerous weapon , aggravated theft , rape and theft .

On DATE the applicant requested ORG to release him . On DATE the ORG refused to order the applicant 's release in view of the seriousness of the offences concerned .

On DATE the first hearing was held before ORG . The applicant requested that the case be transmitted to ORG as most witnesses lived nearby . He requested access to the case - file in order to read it in a detailed manner . The ORG refused the first request and complied with the second .

On DATE the applicant failed to appear before the ORG . It transpires from TIME of the hearing that he had refused to leave the prison cell as he felt unwell . A prison physician stated that there were no medical objections to the applicant 's participation in the hearing . The hearing set for DATE was not held for the same reason .

On DATE the ORG heard the applicant , who denied his involvement in the crimes concerned , and another accused . The hearing was adjourned for DATE . At this date the court heard CARDINAL witnesses and further questioned the applicant . On DATE CARDINAL further witnesses were heard . The hearing was adjourned until DATE .

Subsequently the judge rapporteur fell ill . He remained on sick leave from DATE to CARDINAL DATE . The case was assigned to a new panel of judges .

On DATE the applicant complained to the Minister of Justice about the length of the proceedings .

The hearing fixed on DATE was adjourned as the applicant 's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health .

On DATE the hearing was recommenced in view of the change in the composition of the court . The court questioned the applicant and another co - accused . The hearing was adjourned for CARDINAL and DATE .

On DATE the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney . At the hearing set for DATE this lawyer was not present . The ORG adjourned the hearing until DATE and assigned CARDINAL new lawyers for the applicant 's defence . As they failed to appear at the hearing on DATE , the ORG adjourned the hearing until DATE .

On DATE of the officially appointed lawyers requested that the hearing be recommenced . The ORG complied with this request and again questioned the applicant and another co - accused .

On DATE the applicant complained to the ORG ( PERSON ) about the length of the proceedings in his case and on DATE to the Minister of ORG .

At the hearing on DATE and DATE the court heard DATE witnesses . At the hearing on DATE CARDINAL out of CARDINAL witnesses who were to be heard on DATE complied with the summonses . The ORG imposed fines on some of them .

On DATE the President of ORG requested the President of ORG of that ORG to follow closely the progress in the case and to prepare DATE a progress report , with DATE set for DATE .

By a letter of CARDINAL DATE the applicant requested the court to recall CARDINAL of the counsel assigned to his case under the legal aid scheme and to assign the case to the lawyer who had been representing him at the beginning of the proceedings . On DATE the court refused , having noted that the first officially appointed counsel had fallen ill ; subsequently the applicant had withdrawn the power of attorney of the second counsel ; and the third counsel had retired . The court further pointed out that granting the applicant ’s request would have resulted in a fifth lawyer financed by the legal aid scheme representing the applicant in the proceedings .

On DATE CARDINAL witnesses were heard . On DATE the hearing was adjourned as the president of the court fell ill .

On DATE the President of ORG reiterated his request to the President of ORG to supervise the proceedings and to present a first report on the progress by DATE .

On DATE the ORG requested the President of ORG to inform him about the progress in the case .

At a hearing on CARDINAL DATE five witnesses out of CARDINAL summoned for that date complied with the summonses . The applicant requested to be released . The court , having heard the prosecutor ’s argument in reply , refused to release him in view of the seriousness of the crimes he was charged with . The court further considered that there was the risk of collusion . On DATE the applicant lodged an appeal against this decision with ORG . On DATE ORG upheld the contested decision . The ORG observed that the applicant was suspected of serious crimes and that there was a risk of collusion . The ORG noted that there was progress in the case as hearings were being held . Thus , even regard being had to the fact that the applicant had been detained on remand for DATE , there were no reasons which would justify his release .

On DATE the applicant again requested that his counsel be changed .

On DATE the ORG again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand .

On DATE ORG ordered that accused ORG be released in view of his poor health .

On DATE the applicant requested his release , relying on his rights guaranteed by ORG .

On DATE ORG refused to release the applicant . The ORG noted that the applicant was suspected of dangerous crimes . It also considered that there was a risk of collusion and that , if released , the applicant would jeopardise the criminal proceedings by trying to bear pressure on witnesses and by contacting another co - accused who was not detained .

On DATE the applicant complained to the Minister of ORG about the length of the proceedings .

DATE the ORG composed a list of the addresses of witnesses who had failed to appear on DATE . In particular , the court had to establish the address of the rape victim .

On DATE witnesses out of the CARDINAL summoned for that date complied with the summonses . The applicant requested a medical examination in view of his gastrological problems . The court ordered the medical services of FAC to submit a medical opinion as to their gravity . Another coaccused , who had been released on DATE in view of his illhealth , failed to appear .

On DATE the applicant refused to leave the prison cell . A medical opinion of DATE stated that he suffered from chronic gastritis , but could be treated in the prison .

In a letter of DATE the applicant challenged the judges . He referred to the fact that on DATE the court had ordered the police to force him to leave his cell in order to attend the hearing . On DATE ORG refused to comply with this request .

At the hearing on DATE CARDINAL out of CARDINAL witnesses appeared before the court . On DATE witnesses were heard . On DATE the applicant refused to leave the prison cell , declaring that he felt unwell and he had not received the summons . The court adjourned the hearing in order for a physician to established whether the applicant ’s condition prevented him from attending the hearing . Having examined the applicant , the physician stated that there were no medical objections to the applicant ’s participation in the hearing .

Further hearings were held on DATE and DATE . On DATE the ORG convicted the applicant of attempted manslaughter , rape and aggravated theft and sentenced him to DATE imprisonment .

On DATE , following the applicant ’s appeal , ORG in part quashed the first - instance judgment and ordered that the case be reconsidered . On DATE ORG again convicted the applicant and imposed a sentence of PERCENT imprisonment .

LAW , enacted in DATE applicable at the material time , listed as so - called “ preventive measures ” , inter alia , detention on remand , bail and police supervision . The authorities competent to decide on detention on remand were provided for in ORG CARDINAL and CARDINAL of the Code , which read as follows :

" CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , they shall be ordered by the prosecutor ( ... ) . "

" CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ....

A prosecutor 's order on detention on remand may be appealed to the court competent to deal with the merits of the case .... "

CARDINAL

The courts , when ruling on the prosecutor ’s request submitted in pursuance of LAW , were under an obligation to determine the period for which detention could be prolonged . If the court refused to grant the prosecutor ’s request for prolongation of detention or if the prosecutor had failed to submit a request for such prolongation before or on the expiry of the last detention order , the detained person had to be released .

Article CARDINAL of the Code provided that a preventive measure should be immediately quashed or altered if the basis therefor had ceased to exist or if new circumstances had arisen which justified quashing or replacing a given measure which a more or less lenient one .

Under LAW ( CARDINAL ) and ( CARDINAL ) of the LAW , detention on remand could be imposed if there was a reasonable risk that an accused would attempt to induce witnesses to give false testimony or to obstruct the due course of the proceedings by any other unlawful means , or if the accused had been charged with an offence posing a serious danger to society .

Under the provisions of the DATE Code there were CARDINAL different legal avenues whereby a detained person could challenge the lawfulness of his or her detention and thus possibly obtain release . Under LAW . § CARDINAL of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor ( see § CARDINAL above ) . Under LAW § § CARDINAL(CARDINAL ) and CARDINAL he could lodge an appeal against a further decision by that court prolonging his detention at a prosecutor 's request . Finally , LAW stated that an accused could at any time apply to the authority conducting the criminal proceedings , i.e. the prosecutor or the court , depending on the stage the proceedings had reached , to have a preventive measure quashed or altered .

Imposition and prolongation of preventive measures , including detention on remand , were examined by the courts in proceedings held in camera . The presence of the parties at court sessions other than hearings , including sessions held in proceedings concerning review of detention on remand , was regulated in ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , which , insofar as relevant , provided :

" The court pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... "

" A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law provides for it . "

A new Code of Criminal Procedure was enacted by the PERSON ( ORG ) on DATE . It entered into force on DATE . Pursuant to LAW , before deciding on the application of the preventive measures , the court shall hear the person charged with offence . The lawyer of the detainee should be allowed to attend in the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings .

The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to impose or to prolong detention on remand is to be considered .


The applicant , Mr Ivica Gregurinčić , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr B. Spiz , a lawyer practising in GPE . The respondent Government were represented by successive Agents : PERSON and PERSON .

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

On DATE a member of ORG allegedly damaged the applicant ’s car .

On DATE the applicant instituted civil proceedings before ORG ( PERSON ) seeking damages from the ORG .

The court held hearings on DATE , DATE and on DATE .

On DATE ORG Zakon o dopunama PERSON o obveznim odnosima ) entered into force . It provided that proceedings for damage caused by members of the army and the police from DATE to CARDINAL DATE would be stayed .

The court held hearings thereafter : on DATE , CARDINAL DATE , DATE and on DATE . It would appear that the proceedings in issue are still pending .

ORG Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . It provided , inter alia , that proceedings instituted against the ORG for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation . The LAW also imposed an obligation on the Government to submit to the ORG such special legislation no later than CARDINAL DATE .

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

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

The “ Damage Caused by Members of ORG and Police during the Homeland War Act DATE ” ( Zakon o odgovornosti PERSON štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . It provides that proceedings which were stayed pursuant to LAW will resume and defines circumstances in which the ORG is liable for damage caused by members of the army and the police during the war .

The relevant part of CARDINAL of LAW DATE ( Ustavni zakon o Ustavnom sudu PERSON , its consolidated text was published in ORG no . CARDINAL/CARDINAL ) , as amended on DATE , reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”


The applicant is a NORP national , born in DATE and living in GPE .

The applicant 's mother , born in DATE , used to live in GPE , near GPE , assisted on a DATE basis at her domicile by GPE

On an unspecified date near DATE the applicant 's mother telephoned to the public care doctor , Mr. PERSON , requesting his assistance because her lower abdomen was painful and swelling . The doctor , allegedly without visiting her , wrote a medical prescription recommending x - rays of the applicant 's abdomen ; he left the prescription with the local pharmacy , where GPE went to fetch it on behalf of the applicant ’s mother .

On DATE the applicant 's mother went to the local public hospital GPE to have x - rays of her abdomen ; she was accompanied by GPE She was made to drink barium before undergoing the examination ; X - rays were taken of her stomach . She collapsed during the examination ; however , despite her serious health condition , she was subsequently discharged from hospital and sent back home in a wheel - chair . The x - ray plates bear the stamp of ORG but were not signed by the radiologist who carried out the examination , nor was his name indicated .

TIME , on DATE , the applicant 's mother was seized by extremely severe pain . She was taken by ambulance to the above hospital at CARDINALhCARDINAL , where she died at CARDINAL of an intestinal occlusion .

The applicant learned about his mother 's death on that DATE .

In DATE the applicant happened to discuss the circumstances of his mother 's death in detail with a doctor friend of his , who requested to examine the x - ray plates taken of the applicant 's mother on DATE . The applicant obtained from the hospital copy of his mother 's medical file including the x - ray plates and subsequently submitted them to the doctor , who on DATE drafted a medical report according to which the x - ray plates clearly showed that the applicant 's mother had an intestinal occlusion . Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous .

The applicant obtained a second medical report from another doctor , dated DATE and supporting the findings of the first .

A third medical report was drafted by a third specialist on DATE .

On DATE the applicant filed a criminal complaint with the ORG 's Court of Florence , claiming that Mr. PERSON , the public care doctor who had recommended an x - ray examination of the applicant 's mother without examining her beforehand , was to be held responsible for her death and seeking that the identity of any other person responsible for his mother 's death be established and that they all be prosecuted for manslaughter .

Investigations were opened against ORG and other unidentified persons under file no . CARDINAL .

On DATE ORG interrogated ORG in the presence of his counsel . He claimed that he had visited the applicant 's mother before recommending x - rays of her abdomen and that he had left the prescription with her . He said he had suspected a tumour but not an intestinal occlusion . He further stated that , after being informed of the applicant 's mother 's death , he had learned that she had collapsed during the x - ray examination but had not been kept in hospital , which he had found unreasonable on the part of the hospital . He stated that he did not know the identity of the radiologist who had carried out the examination .

On DATE ORG heard GPE as a witness ; she described the circumstances of the applicant 's mother 's death and claimed that the applicant 's mother had not been visited by the doctor PERSON on DATE at issue and that she herself had gone to the pharmacy to fetch the prescription for the X - rays .

ORG , a doctor who was on duty at the hospital on DATE , was also heard as a witness on an unspecified date .

On DATE ORG requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ( " gli elementi raccolti non sono sufficienti ed idonei a sostenere TIME in giudizio " ) .

On DATE the applicant filed an objection to the request to discontinue the investigations ( opposizione alla richiesta di archiviazione ) . He underlined that ORG had not sought to establish the identity of the radiologist who had carried out the x - ray examination of his mother and requested that PERSON , the director of ORG of the hospital , be heard in order to ascertain which radiologists had been on duty on CARDINAL DATE . He further pointed out significative inconsistencies in the testimony of ORG

By a decision of DATE the PERSON Judge for ORG ruled that the investigation be discontinued on the ground that , in the light of the investigations carried out , the elements of the alleged negligence of ORG and of the unidentified radiologist were insufficient to support an accusation in court .

On DATE the applicant requested the ORG Judge for ORG to reopen the investigations . This request was granted on DATE in respect of the unidentified radiologist .

On DATE ORG requested the police to take evidence from all employees of ORG of the hospital who had been present on DATE , with a view to identifying the author of the medical report which was drawn up after the x - rays had been taken , and establishing which typing machine had been used .

CARDINAL of the hospital employees - T.B. , GPE , GPE , GPE - were heard by the police on DATE . They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine . Urgent medical reports were written by hand by the doctors immediately after the examination , whereas non - urgent ones were dictated by doctors and only subsequently typed by an employee , M.T .. Doctors would sometimes type their reports themselves , in particular the Director of ORG . The witnesses were shown the medical report on the condition of the applicant 's mother , drafted on DATE , and found it unusual ; they declared that that kind of x - ray examination was always carried out by a doctor assisted by a technician . They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the ORG . Some of them thought that it had been typed on the ordinary typing machine and not on the computer .

DATE , the employee who used to type non - urgent medical reports , was interrogated by the police on DATE . She explained that the ordinary typing machine was kept in the doctors ' room . She further explained that she used to type the medical reports on behalf of the doctors , who would sign them at DATE ; the reports would not be stamped with the ORG 's name . She was shown the report drafted on DATE and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor .

On DATE PERSON , a radiologist , was examined by the police . He confirmed that non - urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors ; only the Director of the ORG used to type his reports himself . He was shown the report drafted on DATE and confirmed that such kind of examination would be carried out by a doctor assisted by a technician , but could not remember whether he had carried it out himself although he thought he had not , as the report did not have the same characteristics as his usual ones . He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed , and that it had been stamped with the name of the ORG , which was unusual . He further said that if he had been aware of a situation similar to that described in the medical report at issue , he would have tried to contact the patient 's family or family doctor to point out the gravity of the situation .

On DATE PERSON , the Director of ORG , was interrogated by the police . He stated that he had been informed of the case of the applicant 's mother only in DATE , when the applicant had requested certain information from him which he could not provide . He explained that in DATE radiologists and technicians were organised in shifts ; the shift tables used to be thrown away after the end of the relevant week , as they were used only for the purpose of internal organisation . He examined the report of CARDINAL DATE and noticed the absence of the responsible doctor 's name and signature ; he stated that doctors did not type medical reports themselves , but wrote them by hand in urgent cases .

On DATE ORG requested that the investigations be discontinued on the ground that the elements gathered in the course of the " extremely accurate " investigations carried out by the police had not led to the precise but only to the " probable " identification of the radiologist who had carried out the examination of the applicant 's mother without realising her serious medical condition . ORG considered , however , that the gathered elements , although credible , were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence . On the other hand , ORG considered that the testimonies did not entirely support the deductions of the police .

On DATE the applicant filed an objection to the request to discontinue the investigations . He requested in the first place that further investigations be carried out in respect of ORG He further underlined certain inconsistencies in the testimony of PERSON He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue , given that it was obviously unusual to stamp medical reports with the name of the GPE and about the characteristics of the reports drafted by PERSON finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor .

By a decision dated DATE , the Florence Judge for ORG ruled that the investigations against unknown persons for the manslaughter of the applicant 's mother be discontinued . The judge pointed out in the first place that , by decision of DATE , the investigations had been reopened only in respect of unknown persons and not also in respect of G.T .. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth .

The applicant appealed to ORG against this decision . By a decision dated DATE , ORG rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent ORG margin of appreciation .