ITEMID: 001-83983
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MOOREN v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach.
6. On 25 July 2002 the applicant was arrested.
7. On the same day the Mönchengladbach District Court, after hearing representations from the applicant, ordered his detention on remand. The applicant was assisted from this point on by counsel. The District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002. He had been working as a self-employed commercial agent for several firms in Germany since 1994 and been running a telephone service since 2000. In 2001 the company TMA Aachen had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found that, according to the documents before it at that date, the applicant was suspected of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266.
8. The District Court noted that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of the business records that had been seized when his home was searched. He had to be placed in pre-trial detention because of a danger of collusion (Verdunkelungsgefahr) (see section 112 § 2 no. 3 of the Code of Criminal Procedure – paragraph 41 below). The documents seized were incomplete. There was therefore a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts.
9. On 7 August 2002 the applicant, represented by counsel, lodged a motion for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case files. He argued that he had a right to inspect the files in order to examine all the facts and evidence on which the arrest warrant and, in particular, the strong suspicion that an offence had been committed were based and that domestic law prohibited the court from considering facts and evidence to which defence counsel had been refused access pursuant to section 147 § 2 of the Code of Criminal Procedure (see paragraph 44 below).
10. On 12 August 2002 the Mönchengladbach Public Prosecutor’s Office informed the applicant’s counsel that he was being refused access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure as access would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence. The applicant’s counsel did not take up that offer.
11. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant’s counsel complained that he had still not had access to the case files.
12. By an order of the same day, the Mönchengladbach District Court, which had before it the case files of the proceedings, upheld the arrest warrant. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had so far tried to conceal his true place of residence and other personal details from the authorities and had acted with the intent to mislead which,
13. Following the applicant’s appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel’s request for access to the case files, it stated that he should be informed orally about the content of the files in the first instance.
14. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case files would not be sufficient.
15. On 9 September 2002, after hearing representations from the Public Prosecutor’s Office and considering the case files, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the District Court’s decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes. Furthermore, there was a danger of his absconding within the meaning of section 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 41 below), as the applicant had connections in foreign countries and faced a heavy sentence.
16. In view of defence counsel’s refusal to accept the offer made by the Public Prosecutor’s Office to explain the content of the case files orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At the present stage of the proceedings, counsel for the defence could not, however, claim to be entitled to unlimited access to the complete case files.
17. The Regional Court’s decision was served on the applicant’s counsel on 16 September 2002.
18. On 16 September 2002 the applicant, represented by counsel, lodged a further appeal against the detention order. He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based.
19. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to amend its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor’s Office, which had the case files, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor’s Office with the files the next day.
20. On 26 September 2002 the Chief Public Prosecutor’s Office, in its submissions to the Düsseldorf Court of Appeal, stated that it was not prepared to give the applicant access to the case files. It argued that it was sufficient for the applicant to be notified of the overview of the Düsseldorf Tax Fraud Office on the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case files reached the Düsseldorf Court of Appeal on 2 October 2002.
21. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal.
22. On 9 October 2002 the applicant, who had been sent the submissions of the Chief Public Prosecutor’s Office on 7 October 2002, contested its arguments. He stated that the overview was merely a conclusion of the Tax Fraud Office the merits of which he could not examine without having access to the documents and records on which it was based.
23. On 14 October 2002 the Düsseldorf Court of Appeal, on the applicant’s further appeal, quashed the District Court’s decision dated 16 August 2002 and the Regional Court’s decision dated 9 September 2002 upholding the applicant’s detention, and remitted the case to the District Court.
24. The Court of Appeal, which had the investigation files before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the legal requirements. Therefore, the decisions taken in the judicial review proceedings by the District Court on 16 August 2002 and by the Regional Court on 9 September 2002 (but not the detention order of 25 July 2002 itself) had to be quashed. Pursuant to section 114 § 2 of the Code of Criminal Procedure (see paragraph 42 below), the facts leading to a strong suspicion that the accused had committed a particular offence and the reasons for detention had to be set out in the detention order. In order to comply with the constitutional rights to be heard and to a fair trial, the facts and evidence on which the suspicion and the reasons for the defendant’s detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively.
25. The Court of Appeal noted that, in its decisions on the applicant’s detention, the District Court had, however, merely stated that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched”. It should, at minimum, have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence. This defect had not been remedied in the course of the subsequent decisions on the applicant’s continued detention. As counsel for the defence had also been refused access to the case files under section 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard.
26. The Court of Appeal declined to take its own decision on the applicant’s detention itself pursuant to section 309 § 2 of the Code of Criminal Procedure (see paragraph 43 below) or to quash the detention order of 25 July 2002, which it considered to be defective in law (rechtsfehlerhaft), but not void (unwirksam). It stated that it would only quash the detention order if it was obvious that there was no strong suspicion that the accused had committed an offence and that there were no reasons for the arrest. It was for the District Court to inform the accused of the reasons on which the suspicion of his having committed an offence were based and to hear representations from him on that issue. Should the Public Prosecutor’s Office persist, in the interest of its investigations, in not informing the accused of the reasons, the detention order would have to be quashed.
27. As a consequence, the applicant remained in custody.
28. On 17 October 2002 the Mönchengladbach Public Prosecutor’s Office requested the District Court to issue a fresh amended detention order against the applicant.
29. On 29 October 2002 the Mönchengladbach District Court again heard representations from the applicant, his defence counsel, the Public Prosecutor’s Office and an official in charge of investigations at the Düsseldorf Tax Fraud Office on the applicant’s motion for judicial review of the detention order. The applicant’s counsel was given copies of four pages of the voluminous case files containing an overview by the Düsseldorf Tax Fraud Office of the amounts of income and taxes evaded by the applicant between 1991 and 2002. Relying on the applicant’s rights to be heard and to a fair trial, the applicant’s counsel complained that he had not been granted access to the case files before the hearing.
30. The Mönchengladbach District Court then issued a fresh detention order against the applicant. It stated that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1991 and June 2002. Listing in detail the applicant’s income from his various activities as a self-employed commercial agent and the amounts of tax payable, the District Court found that there was a strong suspicion that he had evaded turnover taxes of DEM 125,231.79, income taxes of DEM 260,025, solidarity taxes of DEM 15,240.11 and trade taxes of DEM 36,930. It based its suspicion on documents whose content was explained by a tax official present at the hearing, witness statements of the owners of the firms the applicant was working for, the applicant’s contracts of employment and the wage slips and commission statements that had been issued by the firms.
31. The District Court further found that there was a risk of the applicant’s absconding, which was a ground for detention under section 112 § 2 no. 2 of the Code of Criminal Procedure. He faced a lengthy prison sentence which could no longer be suspended on probation, had not notified the authorities of his place of residence for several years and had claimed that he was living in the Netherlands.
32. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the arrest warrant on condition that the applicant, who in the meantime had complied with his duty to inform the authorities of his address, informed the court of every change of address, complied with all summonses issued by the court, the Public Prosecutor’s Office and the police, and reported to the police three times a week. It suspended the execution of the order to release the applicant at the request of the Public Prosecutor’s Office, which had immediately lodged an appeal.
33. On 7 November 2002, after hearing representations from the applicant and the Public Prosecutor’s Office, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the detention order. It likewise dismissed the appeal lodged by the Public Prosecutor’s Office against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to the Public Prosecutor’s Office and deposit DEM 40,000 as security.
34. Having deposited the security, the applicant was released from prison on 7 November 2002.
35. On 8 November 2002 the applicant lodged a further appeal against the Regional Court’s decision, complaining that his counsel had still not been granted access to the case files.
36. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor’s Office granted the applicant’s counsel access to the case files. It stated that it had intended to send the files to him at an earlier date. However, this had not been possible as the files had been at the Regional Court and had only recently been returned to the Public Prosecutor’s Office. The applicant’s counsel received the files for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002.
37. On 23 October 2002 the applicant lodged a complaint with the Federal Constitutional Court against the decision of the Düsseldorf Court of Appeal dated 14 October 2002 and the detention order issued by the Mönchengladbach District Court on 25 July 2002. In his submission, his rights to liberty, to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by the Basic Law had been violated. He argued in particular that his right to liberty, the deprivation of which was only constitutional if it was in accordance with the law, had been breached by his illegal detention on the basis of a void detention order. The complete refusal to allow his defence counsel access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure had violated his right to be heard in court as guaranteed by Article 103 § 1 of the Basic Law (see paragraph 45 below) and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 46 below). The impugned decisions disregarded both the case-law of the Federal Constitutional Court and the Court’s case-law as laid down in its judgments of 13 February 2001 in the cases of Garcia Alva, Lietzow and Schöps v. Germany. The Court of Appeal’s refusal to quash the detention order and to take a decision itself and its decision to remit the case to the District Court instead had also breached his right to a fair hearing within a reasonable time.
38. On 4 and 11 November 2002 the applicant extended his constitutional complaint to include the decisions of the Mönchengladbach District Court dated 29 October 2002 and the decision of the Mönchengladbach Regional Court dated 7 November 2002.
39. On 22 November 2002 the Federal Constitutional Court, without giving further reasons, declined to consider the applicant’s constitutional complaint against the detention orders issued by the Mönchengladbach District Court on 25 July 2002 and 29 October 2002, the decision of the Mönchengladbach Regional Court dated 7 November 2002 and the decision of the Düsseldorf Court of Appeal dated 14 October 2002.
40. On 9 March 2005 the Mönchengladbach District Court convicted the applicant on eight counts of tax evasion and sentenced him to a total of one year and eight months’ imprisonment suspended on probation. The court found that the applicant, who had confessed to the offences, had evaded turnover taxes of DEM 129,795, income taxes of DEM 344,802 and trade taxes of DEM 55,165.
41. Sections 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to section 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (section 112 § 2 no. 2) or of collusion (section 112 § 2 no. 3).
42. According to section 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written arrest warrant. The arrest warrant names the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest. Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the arrest warrant unless national security would thereby be endangered.
43. Under section 117 § 1 of the Code of Criminal Procedure, remand prisoners may ask at any time for judicial review (Haftprüfung) of the decision to issue an arrest warrant or for the warrant to be suspended. They may lodge an appeal under section 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention and a further appeal (weitere Beschwerde) against the Regional Court’s decision on the appeal (section 310 § 1 of the Code of Criminal Procedure). If the appeal court considers the appeal against the (continued) detention to be well-founded, it will take a decision on the merits at the same time (section 309 § 2 of the Code of Criminal Procedure). However, according to the domestic courts’ case-law, a detention order which does not comply with the duty to set out the grounds for suspecting the accused of an offence is not void, but merely defective in law. If, in such a case, the prosecution also refused access to the case file, the defective reasoning amounts to a refusal to hear representations from the defendant. In these circumstances, the court of appeal – by way of an exception to section 309 § 2 of the Code of Criminal Procedure – may remit the case to the district court (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, pp. 318-319; compare also Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, pp. 118-120, to which the Düsseldorf Court of Appeal referred in the present case).
44. Section 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been or will be presented to the trial court, and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk. At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (section 147 § 3 of the said Code). Pending the termination of the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter it is for the president of the trial court (section 147 § 5). An accused who is in detention is entitled to seek judicial review of a decision of the Public Prosecutor’s Office to refuse access to the files (ibid.).
45. According to Article 103 § 1 of the Basic Law every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör).
46. Article 104 § 3 of the Basic Law provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge no later than the day following his arrest; the judge must inform him of the reasons for the arrest, hear representations from him and give him an opportunity to raise objections. The judge must then, without delay, either issue a written arrest warrant setting out the grounds therefor or order the detainee’s release.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-60417
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PODKOLZINA v. LATVIA
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;Not necessary to examine Art. 14;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, a Latvian national born in 1964 and living in Daugavpils (Latvia), is a member of the Russian-speaking minority in Latvia.
9. By a decision of 30 July 1998 the Central Electoral Commission (Centrālā vēlēšanu komisija) registered the list of the candidates of the National Harmony Party (Tautas saskaņas partija) in the elections to the Latvian parliament (Saeima) of 3 October 1998. The applicant's name appeared on the list as the candidate for the constituency of Latgale.
At the time of the registration of its list of candidates the National Harmony Party supplied the Central Electoral Commission with all the documents required by the Parliamentary Elections Act, including a copy of the certificate attesting to the fact that the applicant knew the State's official language – Latvian – issued on 23 January 1997 by the Standing Committee for the Certification of Linguistic Competence in the town of Daugavpils, a body responsible to the State Language Centre (Valsts valodas centrs), an administrative institution which was itself answerable to the Ministry of Justice.
10. On 6 August 1998 an examiner employed by the State Language Inspectorate (Valsts valodas inspekcija), part of the State Language Centre, went to the applicant's place of work and examined her orally to assess her knowledge of Latvian. As the applicant had not been notified of the visit, the examiner approached her while she was conducting negotiations with her business associates.
Having informed the applicant of her intention to verify the level of her competence in Latvian, the examiner struck up a conversation with her in that language. During the conversation, which lasted over half an hour, the examiner asked the applicant, among other questions, why she supported the National Harmony Party rather than some other party.
The examiner returned next day accompanied by three persons whom the applicant did not know, who were to act as invigilators. The examiner asked the applicant to write an essay in Latvian. The applicant agreed to do so and began to write. However, being extremely nervous, because she had not expected such an examination and because of the constant presence of the invigilators, the applicant stopped writing and tore up her work.
11. The examiner then drew up a report to the effect that the applicant did not have an adequate command of the official language at the “third level”, the highest of the three categories of competence defined in Latvian regulations.
12. On 10 August 1998 the State Language Centre sent the chairman of the Central Electoral Commission a letter certifying the level of knowledge of the official language attained by a number of candidates on the lists registered for the parliamentary elections. Although the letter referred to the report drawn up by the examiner from the State Language Inspectorate, the report was not appended to it. According to the certificate, of the nine candidates actually examined only the applicant did not have a command of Latvian at the “third level”. Twelve other candidates, who had not been required to take an examination, had documents certifying that their knowledge was at the requisite level.
13. By a decision of 21 August 1998 the Central Electoral Commission struck the applicant's name out of the list of candidates.
14. On 27 August 1998 the National Harmony Party, acting on the applicant's behalf, asked the Riga Regional Court to set aside the above decision. In its pleading the party alleged that when the list of candidates in the election was registered a copy of the certificate attesting to the applicant's knowledge of the State language had been supplied to the Central Electoral Commission. It submitted that the Central Electoral Commission should have taken that certificate into account, instead of relying solely on the certificate issued by the State Language Centre, as the two documents contradicted each other.
15. In a final judgment of 31 August 1998 the Riga Regional Court refused the application on the ground that the Central Electoral Commission had acted within the limits laid down by the Parliamentary Elections Act. In its judgment the Regional Court noted that section 11 of the Act made possession of a certificate of knowledge of the official language at the “third level” by all candidates who had not completed their primary or secondary education in Latvian a prerequisite for the registration of a list of candidates. Consequently, the Central Electoral Commission had complied with the requirements of the Act by deciding to register the list on which the applicant's name appeared. On the other hand, section 13 of the Act empowered the Commission to rectify the lists already registered by striking out the names of candidates whose level of knowledge of the official language had proved to be insufficient; in the applicant's case the inadequacy of her linguistic competence had been confirmed by the State Language Centre's certificate. The Riga Regional Court accordingly held that there had been no breach of the law.
16. On 14 September 1998 the National Harmony Party, acting on the applicant's behalf, lodged third-party appeals against that judgment with the President of the Civil Division of the Supreme Court and the Attorney-General, asking for the proceedings to be reopened on account of a serious and manifest breach of the substantive legal rules, resulting from faulty interpretation of the Parliamentary Elections Act.
By two letters dated 29 September and 1 October 1998 respectively, the Attorney-General's office and the President of the Civil Division of the Supreme Court dismissed the appeals, ruling that the Regional Court had given reasons for its judgment and that the judgment was in accordance with the law.
17. Article 9 of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922, provides:
“Any Latvian citizen in possession of his full civic rights who has reached the age of 21 by the date of an election shall be eligible for election to Parliament.”
18. The relevant provisions of the Law of 25 May 1995 on parliamentary elections (Saeimas vēlēšanu likums – “the Parliamentary Elections Act”) are worded as follows:
Section 4
“Any Latvian citizen who has reached the age of 21 by the date of an election shall be eligible for election to Parliament, provided that he is not barred by one of the restrictions set out in section 5 of this Act.”
Section 5
“The following persons may not stand as candidates in an election or be elected to Parliament:
...
(7) persons who do not have a command of the official language at the third (upper) level of knowledge.”
Section 11
“The following documents must be enclosed with the list of candidates:
...
(5) a certified copy ... of the certificate of knowledge of the official language at the third (upper) level, where the candidate was not taught in Latvian at school ...”
Section 13
“...
(2) Once registered, lists of candidates may not be altered, and the only corrections which the Central Electoral Commission may make to them are:
1. striking a candidate's name out of the list where:
(a) the candidate is not a citizen in possession of full civic rights (see sections 4 and 5 above);
...
(3) ... [T]he candidate's name shall be struck out of the list by virtue of a certificate from the relevant authority or a decision of the court. The fact that the candidate:
...
7. does not have a command of the official language at the third (upper) level of knowledge shall be certified by the State Language Centre; ...”
19. By section 50 of the Law of 28 July 1994 on the rules of parliamentary procedure (Saeimas kārtības rullis – “the Rules of Parliamentary Procedure Act”), Latvian is the sole working language in Parliament and its committees. All draft legislation and decisions, challenges and questions by members, and any documents appended to them must be written in Latvian.
20. The relevant provisions of the Languages Act (Latvijas Republikas Valodu likums), in force at the material time and up to 1 September 2000, were worded as follows:
Section 1
“In the Republic of Latvia the official language shall be Latvian.”
Section 4
“... [A]ll agents of public institutions ... must be capable of understanding and using the official language and the other languages at the level which is necessary for them to be able to perform their professional duties. The level of linguistic knowledge required of these agents shall be laid down in a regulation approved by the Cabinet ...”
Section 6
“[I]n public institutions the official language shall be the language used for information documents and for all working meetings. Persons who do not have a command of the official language may, at working meetings and with the consent of the other participants, use another language. In that case, whenever at least one participant so requests, the organiser shall ensure that a translation into the official language is provided.”
Section 7
“In the Republic of Latvia ... institutions and organisations must use the official language in all official information documents and in correspondence with addressees within the country. ...”
21. At the material time the precise levels of knowledge of Latvian were laid down by the regulation of 25 May 1992 on certification of knowledge of the State language (Valsts valodas prasmes atestācijas nolikums). Chapter II of the regulation fixed the limits of the three levels of knowledge of Latvian, of which the third was defined as follows:
“Mastery of the spoken and written language is required for agents and employees whose professional tasks entail management of an undertaking and organisation of labour, or ... frequent contact with the public, [and for those] whose duties have to do with the well-being and health of the population (for example, members of parliament, persons managing public or administrative institutions or their structural units, boards of directors, inspectorates or undertakings, their deputies and secretaries, senior specialists, advisers, auditors, employees of Latvian cultural, educational and scientific bodies, doctors, assistant doctors, lawyers and judges). ...
This level of knowledge of the official language entails the ability to:
(1) converse freely;
(2) understand texts chosen at random; and
(3) draft texts relating to one's professional duties.”
22. Chapter IV of the regulation provided that examinations to test linguistic competence were to be organised by certification boards of nine, seven or five members, as the case required. Thus a board to verify the linguistic competence of a firm's employees had to have at least five members, including one representative of the trade concerned, one member delegated by the municipal certification board, and specialists in Latvian.
Chapter VI of the regulation governed in detail the procedure for assessing the linguistic knowledge of persons required to take the examination. Each examination was to include a written part and an oral part. Each candidate was to have twenty to thirty minutes to prepare answers to the questions asked by members of the board, who could ask supplementary questions, but should, in principle, refrain from interrupting the candidate. The linguistic competence of each candidate was then assessed according to a number of different criteria (his narrative, conversational and writing skills, the breadth of the vocabulary used, and observance of grammatical rules). After the examination, board members deliberated before deciding by a simple majority vote which candidates had passed. Where the municipal certification board's delegate expressed an unfavourable vote, the unsuccessful candidate could appeal against the final decision to the board which had delegated him. A report had to be written on each candidate.
23. Section 51 of the Parliamentary Elections Act (see paragraph 18 above) provides:
“An organisation which has submitted a list of candidates, or the candidates themselves, may challenge the decision of an electoral commission within seven days by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls.”
24. Administrative appeals are governed by the provisions of Chapter 24-A of the Latvian Code of Civil Procedure (Latvijas Civilprocesa kodekss), applicable to all relations covered by administrative law, except those for which a special appeals procedure has been laid down by law. In respect of electoral matters the lex specialis is Chapter 23 of the Code, whose relevant provisions provide as follows:
Article 230
“... candidates for election to the Parliament of the Republic of Latvia ... may challenge an electoral commission's decisions by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls.”
Article 233
“After hearing the appeal, the court shall deliver a judgment, either
(1) ruling that the electoral commission's decision was taken in accordance with the law and dismissing the appeal; or
(2) upholding the appeal and setting aside the electoral commission's decision.
No appeal shall lie against this judgment, which shall take effect on delivery. The court shall immediately serve a copy of it on the Central Electoral Commission ...”


ITEMID: 001-105834
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LARISA ZOLOTAREVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 5. The applicant was born in 1932 and lives in Moscow.
6. The applicant resided in a municipal two-roomed flat together with her son, his ex-wife K. and their daughter, a minor at the time. On an unspecified date the applicant brought a claim against K. seeking K.’s eviction. K. countersued the applicant asking the court to rehouse everyone. K. alleged that the applicant and her son had forced her to move out of the flat and their joint residence in the same flat had become impossible.
7. On 28 May 1998 the Tverskoy District Court of Moscow dismissed the applicant’s claims and granted K.’s claim. It ordered the applicant and her son to be rehoused in another two-room flat. At the same time K. and her daughter were granted a room in another building. The flat the applicant resided in was assigned to another family. In particular, the court noted as follows:
“Pursuant to Article 68 of the [Housing Code], if the members of a family fail to reach an agreement with regard to re-housing, any of them may ask for the re-housing arrangements to be determined by the court. The court must take into consideration the relevant circumstances and the interests of the persons to be re-housed.
The court asked repeatedly that [the applicant and her son] justify their objection to the re-housing arrangement [proposed by K.]. However, they did not present any written submissions... and refused to give any [oral] explanation or answer any questions during the court hearing...
The witnesses testified that the parties were in conflict and provided details as to the altercations between [them]...
The existence of a conflict between the parties is also confirmed by the numerous complaints they have lodged against each other with the law-enforcement agencies...
Having regard to the above, the court concludes that the parties cannot share the flat in question. K. and her daughter are unable to reside in the flat, which fact amounts to a violation of their housing rights...
Pursuant to Article 98 of the [Housing Code], K. cannot be evicted from the flat. It was established that [the applicant and her family] had consented to K. moving into the flat. K. had moved into the flat and, as set forth in Articles 53 and 54 of the [Housing Code], she had acquired a right to reside in there.
The court has established that it was impossible for the parties to share the flat due to their own behaviour ... The conflicts between the parties underlie the housing dispute between them.
The court further considers that K.’s eviction, if ordered, would have an adverse effect on the housing rights of her daughter, who lives with her.
According to K., she asked for re-housing for the first time in 1992. However, [the applicant and her son] did not consent to it.
K. proposed the following re-housing arrangement: [the applicant and her son] would move into a two-room flat ... In the flat in dispute each resident party had been afforded 7.85 sq. m of the living area... Following the re-housing, [the applicant and her son] would be afforded 15.2 sq. m of the living area each ... The two would have separate rooms. The flat is located in [Moscow]...
The court does not discern any reason why the proposed re-housing arrangement should not be implemented ...”
8. On 2 September 1998 the Moscow City Court concurred with the assessment of the matter made by District Court and upheld the judgment of 28 May 1998 on appeal.
9. On 1 October 1998 the bailiff initiated enforcement proceedings.
10. On an unspecified date the applicant asked for supervisory review of the judgments of 28 May and 2 September 1998.
11. On 27 January 1999 the Supreme Court of the Russian Federation asked the District Court to forward the case-file for supervisory review. As regards the applicant’s eviction, the judge in charge of the matter noted that the execution of the judgment of 28 May 1998 “should be stayed”.
12. On 17 June 1999 a bailiff, P., called at the applicant’s flat and told her that she would be evicted the following day. As regards the stay of execution, he advised her to contact the court.
13. On 18 June 1999 the bailiff showed up at the applicant’s flat at 10 a.m. The applicant refused to open the door. The bailiff had to leave. He returned with the rescue service at 2 p.m. The applicant was not in the flat. The bailiff entered the flat. The applicant returned one and a half hours later. She claimed that she did not feel well and was undergoing treatment in a hospital. The bailiff left.
14. After having verified that the applicant had not been admitted to any hospital, the bailiff forced open the door to the flat at 7 p.m. and started the eviction process. According to the applicant, the bailiff summoned police officers, who took her to the police station where she stayed for three hours. The bailiff completed the eviction at 1.30 a.m. Some of the applicant’s belongings were moved to her new home and the remainder were left at the flat.
15. On 22 June 1999, in the applicant’s absence, the bailiff moved the rest of her belongings to her new home.
16. On 26 June 1999 the Supreme Court of the Russian Federation refused to review the judgments of 28 May and 2 September 1998 by way of supervisory review. In particular, the letter addressed to the applicant stated as follows:
“I hereby inform you that your complaint against the judgment of the Tverskoy District Court of 28 May 1998 concerning your claims against K. ... has been considered and dismissed. The grounds for dismissal have been communicated to you earlier at a meeting.”
17. On 17 July 1999 the applicant lodged a complaint against the bailiff, challenging the manner in which he had conducted her eviction.
18. On 6 December 2001 the Khamovnicheskiy District Court of Moscow found the bailiff’s actions unlawful and ordered him to provide the applicant with an access to her belongings stored at her new home. In particular, the court found as follows:
“The court established that bailiff P. conducted enforcement proceedings after 11 p.m. although there was no imminent risk to anyone’s life or health ... This fact was not denied by the representative of the [bailiff’s service]. Nor was evidence presented to the court that [the bailiff] had obtained a written approval from a senior bailiff to carry out the enforcement proceedings after 10 p.m.
As it has been established by the court, [the applicant] had asked the bailiff to suspend the enforcement proceedings arguing that she was not feeling well and her son [who had been subject to eviction too] had been absent. Bailiff P. refused to do so, alleging that [such a suspension] was exclusively within a court’s competence.
Nevertheless, Article 19 of the Federal Law on Enforcement Proceedings provides that bailiffs may suspend enforcement proceedings ... for a period not exceeding ten days ...
The [bailiff’s service] failed to prove that the bailiff had notified [the applicant and her son] of the possibility of voluntary execution of the judgment concerning their eviction. Nor was any evidence submitted to show that the applicant’s son had been notified of the eviction date. The list of the [applicant’s] possessions was not properly compiled. This fact was not denied by the [bailiff’s service]...
The court has established that the case concerning the [applicant’s] eviction was repeatedly subject to supervisory review. On 27 January 1999 the Deputy President of the Supreme Court of Russia, Zh., requested the file and the execution of the judgment was stayed. The Supreme Court of Russia dismissed the [applicant’s] complaint only on 26 June 1999. Accordingly, the enforcement of the judgment had been stayed until 26 June 1999...
However, bailiff P. failed to stay the enforcement proceedings following the Supreme Court’s decision to stay the execution of the judgment. Accordingly, the [applicant’s] eviction was carried out during the period when the execution of the judgment had been stayed by the Deputy President of the Supreme Court of Russia.
Having regard to the above, the court concludes that the actions taken by bailiff P. should be found unlawful.”
19. The decision was not appealed against and took effect on 18 December 2001.
20. On 27 June 2002 the applicant brought an action against the Ministry of Finance of the Russian Federation for damages resulting from the bailiff’s unlawful actions. She sought compensation for both pecuniary and non-pecuniary damage.
21. On 16 May 2003 the Basmanniy District Court of Moscow rejected the applicant’s claims. In particular, the court stated as follows:
“Pursuant to [the rules of civil procedure], each party should [substantiate its allegations]...
[The applicant] did not present to the court any evidence to show that her property had been damaged or destroyed as a result of illegal actions taken by [the bailiff].
As indicated on [the certificate of the delivery to the applicant of her belongings], she did not make any comment or complain with regard to the delivery of her property.
No damage or destruction of the [applicant’s] property has been documented after the applicant’s re-housing on 18-19 June 1999...
Having regard to the above, the court considers that the damage to and destruction of the [applicant’s] property was not a result of illegal actions on the part of the bailiff...
Accordingly, there is no causal link between the bailiff’s illegal actions and the harm caused to the applicant’s property ... and there is, accordingly, no reason to award damages to the applicant ...
The applicant did not present any evidence to substantiate her allegations that she had incurred non-pecuniary damage as a result of the infringement of her personal non-property rights ... through the illegal actions of the bailiff in the course of the eviction on 18-19 June 1999.”
22. On 18 November 2003 the Moscow City Court upheld the judgment of 16 May 2003 on appeal.
23. Enforcement proceedings should be conducted on working days between 6 a.m. and 10 p.m. They can be carried out between 10 p.m. and 6 a.m. only in the event of an “imminent risk to life or health”. In such a case, the bailiff should obtain written permission from his superior (Article 12 of the Federal Law on enforcement proceedings of 21 July 1997 as amended, in force at the material time, hereinafter “the Law”).
24. The bailiff may suspend the enforcement proceedings for no more than ten days at the debtor’s request (Article 19 of the Law).
25. The enforcement proceedings should be stayed if an authorised officer issues a relevant decision ordering the stay of the execution of the relevant legal act (Article 20 § 6 of the Law).
VIOLATED_ARTICLES: 8


ITEMID: 001-109544
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF REYNOLDS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The present application was introduced by Mrs Patricia Reynolds, a British national born in 1935 who lived in Hebden Bridge. Following the introduction of the application, Mrs Reynolds died and Ms Catherine King (her daughter) continued the case on her behalf. The Court has referred below to Mrs Reynolds as the applicant.
6. The applicant’s son, David Reynolds, was born in 1969 and he died on 16 March 2005. The present application relates to his death.
7
8. Mr Reynolds was diagnosed with schizophrenia in 1998. He was treated by a mental health team which was operated by the National Health Service Trust (“the NHS Trust”) and which assigned Mr Stephens as Mr Reynold’s Care Co-ordinator. On 16 March 2005 Mr Reynolds contacted the applicant and Mr Stephens: he was hearing voices ordering him to kill himself. The applicant and Mr Stephens went to Mr Reynolds’s home.
9. Mr Stephens contacted the Crisis Resolution Home Treatment Team (“CRHTT”) informing it that Mr Reynolds might need to be hospitalised. The CRHTT is a community-based team of mental health professionals operated by the NHS Trust from the psychiatric unit of Calderdale Royal Hospital (“the Hospital”). Mr Stephens was told that no beds were available but that Mr Reynolds could have a crisis bed at the Intensive Support Moving On Scheme Unit (“the ISMOS Unit”). The local Council is responsible for the Unit and it is located in a building of which the Council is the occupier for the purposes of the Occupiers Liability Act 1957 (“the 1957 Act”). It is staffed by social workers experienced in the care of mental health patients and it provides an alternative to in-patient care where the risk assessment renders this appropriate. ISMOS Unit patients are not subjected to formal monitoring but staff regularly check on them and have custody of their medication. While patients are voluntary, cameras monitor the outside of the building so that the ISMOS Unit is alerted if a patient leaves.
10. On the way to the ISMOS Unit Mr Reynolds told Mr Stephens that he found the ‘voices’ so distressing that he felt like killing himself. Mr Stephens therefore took Mr Reynolds to the Hospital (run by the Trust) for a clinical assessment. This was carried out by a psychiatrist of the CRHTT assisted by a psychiatric nurse and Mr Stephens. Mr Reynolds was assessed to be a low suicide risk. He had once again reduced his medication in order to drink and socialise at the weekend. His psychotic symptoms had therefore returned but he had stabilised rapidly as he had already re-taken his medication that morning. The voices had diminished and were not troubling him any more although he was terrified of their returning. During the assessment, he confirmed that he did not want to kill himself. He had no history of self-harm/attempted suicide, he had not acted on his earlier hallucinations and, even when having hallucinations, he had sought help.
11. Since it was agreed that Mr Reynolds needed a safe and supported environment, he was admitted to the ISMOS Unit as a voluntary in-patient. He was allocated one of the crisis rooms across from the staff room on the sixth floor. During dinner he seemed withdrawn and unwell. Later that evening, he was found wandering outside the building but he returned with staff to his room. At 22.00 there was a change of shift, the new staff were briefed and Mr Reynolds appeared more relaxed and spoke with them.
12. Mr Reynolds was due his medication at 22.45. At around 22.30 he broke a window in his room and fell from the sixth floor to his death.
13. On 26 May 2005 an internal investigation into Mr Reynolds’ death was completed by the NHS. The resulting Report recommended, inter alia, that the bedroom windows in the crisis rooms at the ISMOS Unit be reinforced. On 20 May 2005 the applicant’s daughter wrote a letter of complaint to the Trust. On 20 June 2005 the Trust responded stating that it had reviewed the information available on the relevant date but that there had been no indication that Mr Reynolds would harm himself.
14. The applicant could not afford legal representation for the Inquest. She considered applying to the Legal Services Commission for legal aid and, following receipt of the Coroner’s views as regards the two criteria applied by the Commission in deciding on a grant of legal aid, the applicant decided not to pursue a claim.
15. On 22 March 2005 the Inquest was opened and adjourned by the Coroner. It resumed on 21 July 2005. The applicant attended with two daughters including Ms King. The Coroner sat without a jury. He explained that the Inquest was to find the answers to four limited factual questions: who was the deceased and how, where and when did the death come about. “How” was limited to “how the cause of death arose” since an Inquest was not an opportunity to examine the broad circumstances in which the death occurred so that all questions touching thereon would be excluded as would any question of civil or criminal liability.
16. Oral evidence was given by, inter alia, the psychiatrist and the psychiatric nurse who assessed Mr Reynolds; by the relevant four members of staff at the ISMOS Unit; by the eye witness who saw him step through the broken window; and by the team leader of the CRHTT. The applicant gave evidence: she considered that her son had not attempted to commit suicide but rather had wished to go home and had not realised he was on the sixth floor. The applicant submitted questions to the Coroner prior to the Inquest and she and her daughters put questions to witnesses during the Inquest.
17. The Inquisition Form recorded that Mr Reynolds had been placed in the crisis room for a few days for monitoring; that just a few hours later he broke a window, climbed through it and walked off the window sill; and that he sustained fatal injuries as a result of the fall and was pronounced dead that day. The Coroner’s conclusion as to death was an “Open verdict”, he explaining that, while those with schizophrenia presented a high incidence of suicide, there was insufficient evidence that Mr Reynolds intended to kill himself.
18. Since the Coroner was concerned about a psychiatric facility on a sixth floor, in July 2005 he reported the incident to the NHS Trust under Rule 43 of the Coroners Rules 1984. By letter of 11 October 2005 the NHS Trust informed the Coroner that, since an ISMOS Unit was used when the risk was low, its location on the sixth floor was not unusual. However, the windows had been reinforced and, in the longer term, there were plans to re-locate the ISMOS Unit to a two storey dwelling.
19. The applicant obtained legal aid and issued an action for damages under section 7 of the Human Rights Act 1998 (HRA”) against the NHS Trust and the Council, arguing that they had failed to adequately discharge their duties to Mr Reynolds in breach of Articles 2, 3 and 8 of the Convention in that they had failed to ensure his appropriate placement, failed to ensure that the ISMOS Unit was safe and failed adequately to assess the suicide risk or to admit him for in-patient care. An expert report obtained by the applicant from a consultant psychiatrist for the proceedings (although not served since the action was later struck out, see below) considered that the care of Mr Reynolds fell below the required standard.
20. On 21 December 2006, the High Court decided the case of Savage ν South Essex Partnership NHS Foundation Trust ([2006] EWHC 3562, paragraphs 33-37 below).
21. The NHS Trust and the Council served defences in March 2007. The Trust accepted that it owed a common law duty to take reasonable steps to try to prevent Mr Reynolds from taking his own life. The Council accepted that it owed a common law duty of care not to expose Mr Reynolds to a reasonably foreseeable risk of injury or harm on the premises as well as a common duty of care under the 1957 Act. However, both defendants argued that the applicant had no cause of action and that the case should be struck out since the High Court judgment in the Savage case had provided that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The applicant requested that her action be adjourned pending the appeals in the Savage case.
22. On 13 July 2007 the County Court delivered its judgment striking out the applicant’s case pursuant to Rule 3.4 of the Civil Procedure Rules holding that there were no reasonable grounds for bringing the claim. The County Court noted that the High Court in the Savage case had accepted that, where the allegations were of clinical negligence, the measure of the duty owed to both voluntary and involuntary patients was as outlined in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000V) and in R (Takoushis) v. Inner North London Coroner and Another ([2006] 1WLR 46) namely, that there had to be at least gross negligence of a kind sufficient to sustain a charge of manslaughter. The applicant had not made any such allegations:
“It is thus clear that there is strong authority which would make it highly unlikely that any decision on appeal in the case of Savage would render [the Trust and the Council] liable under the provisions of Article 2.”
23. In refusing the applicant’s request for an adjournment, the County Court did not accept that the law relating to the treatment of voluntary mental health patients was uncertain or in a state of development which was likely to lead to a change in the law which would enable the applicant’s claim to succeed. It was not persuaded that the prospect of the appeal in the case of Savage raised a sufficient prospect of an outcome favourable to the applicant as to justify refusing the orders sought by the defendants.
24. Two barristers, experienced in clinical negligence, human rights cases and Inquest law, advised the applicant that an appeal had no realistic prospect of success. One of these opinions was submitted to the Legal Services Commission which withdrew legal aid in August 2007.
25. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 renders the relevant public authority liable under section 7 of the HRA and a judge has the power to award damages under section 8 of the HRA.
26. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown.
27. As to the scope of an Inquest (including a resumed one), section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (a document completed by the Inquest jury at the end of the evidence). It must set out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 36(2) specifically provides that neither the Coroner nor the jury shall express any opinions on any other matters. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person.
28. On 11 March 2004 the House of Lords decided (R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of Inquests to date was incompatible with the procedural requirements of Article 2. Using the interpretation mechanism of section 3 of the HRA, the House of Lords extended the Inquest regime so that “how” (section 11(5)(b)(ii) of the 1988 Act and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning “by what means and in what circumstances” the deceased came by his death. Lord Bingham clarified that, however the jury’s extended factual conclusions were to be conveyed, Rule 42 was not to be infringed so that there could be no finding of criminal or civil liability. While acts or omissions could be recorded, expressions suggestive of civil liability, in particular neglect, carelessness and related expressions were to be avoided.
29. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.
30. Claims arising from a death caused by negligence are brought under the Fatal Accidents Act 1976 (“the 1976 Act”) or the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). The 1976 Act enables those who were financially dependent on the deceased to recover damages for the loss of support: the scheme is compensatory and, save for the sum of currently 10,000 pounds sterling for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The 1934 Act enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of death together with funeral expenses.
31. Mr Takoushis, diagnosed with schizophrenia, left a hospital where he was a voluntary patient and committed suicide. His wife challenged certain rulings of the Coroner. The Court of Appeal, following the approach of the High Court, examined, in the first place, whether those rulings were justified on the assumption that Article 2 was not engaged. The Court of Appeal did not uphold the Coroner’s rulings and ordered a new Inquest.
32. The Court of Appeal went on to examine the applicability and scope of the protection of Article 2 in such cases partly because the point was evidently of some potential importance for the new Inquest which was now to be held. It accepted that simple negligence in the care of a patient resulting in his or her death was not sufficient to amount to a breach of the State’s obligation under Article 2 to protect life, although the position might be different where gross negligence or manslaughter had been alleged (relying, inter alia, on R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), itself based on Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000V). The Court of Appeal concluded by rejecting the argument that the deceased should be considered an involuntary patient as he would have been detained had he been seen leaving the hospital: the court found that the deceased was clearly a voluntary patient and that there was an important difference between the principles applicable to those who were detained and those who were not.
33. The deceased was an involuntary mental health patient who left an open acute psychiatric ward and committed suicide.
34. The Trust contended before the High Court that the extent of the obligations of health authorities to protect a patient’s life was to be found in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000V) namely, that the treatment alleged amounted either to gross negligence or to manslaughter. The claimant argued, citing Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998VIII), that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so. The claimant sought to distinguish her son’s position (an involuntary patient) from that of a voluntary patient arguing that the test for Article 2 liability in Powell did not apply to her son and equating the duty of care owed by the State to an involuntary patient with that owed to a prisoner in the criminal justice system. The High Court expressly rejected that distinction, finding that the proper test applicable to a breach of the substantive obligation under Article 2, in respect of both voluntary and involuntary patients where the relevant allegations were of clinical negligence, was the Powell test namely, that of gross negligence of a kind sufficient to sustain a charge of manslaughter (the High Court relied on the above-cited Takoushis judgment). The High Court struck out Ms Savage’s action. In December 2007 the Court of Appeal allowed Ms Savage’s appeal.
35. The appeal to the House of Lords was rejected by judgment dated 10 December 2008. Lord Rodger, giving the main judgment of the House of Lords, noted that the fundamental error in the approach of the Trust was to conceive of the Powell decision and the Osman judgment as laying down two mutually exclusive approaches whereas the Court’s case-law did not contain a hint of such an approach. The principles represented by those cases related to different aspects of the Article 2 obligations of health authorities and Lord Rodger summarised the relevant obligations of the health authorities under Article 2 as follows:
“In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.
In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2.
Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell.
The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell.
Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.”
36. Lord Rodger noted that it was relevant to the authorities’ obligations under Article 2 that the deceased was a detained patient and he continued:
“Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable ... not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European court has developed for prisoners and administrative detainees must apply to patients who are detained. ...... The hospital authorities are accordingly responsible for the health and well being of their detained patients. Their obligations under Article 2 include an obligation to protect those patients from self-harm and suicide.”
37. Baroness Hale noted the special position of detained patients and that it was not necessary to address in that case the extent of the State’s operational duty to protect non-detained patients. Lord Walker and Lord Neuberger agreed with both Lord Rodger and Baroness Hale.
38. The deceased was a voluntary patient who committed suicide once released on home leave. Her parents brought a claim under the HRA and the 1934 Act, in their own right and on behalf of their child’s estate. The claim under the 1934 Act on behalf of the estate for negligent care was settled by the Trust: 5,000 pounds sterling (GBP) in general damages and GBP 2,500 in funeral expenses, plus legal costs.
39. The High Court ([2009] EWHC 1827 (QB)) and the Court of Appeal (2010] EWCA Civ 698) held that there was no operational duty under Article 2 on the hospital authorities to take reasonable steps to protect the deceased against the risk of suicide because she was a voluntary patient and the remedy for allegations of clinical negligence as regards voluntary patients was an action in negligence. In any event, the parents were no longer victims for the purposes of the HRA given their settlement of the 1934 Act proceedings. The parents appealed.
40. On 8 February 2012 the Supreme Court ([2012] UKSC 2) allowed the appeal, Lord Dyson giving the main judgment. He found that the difference between voluntary and involuntary psychiatric patients was more apparent than real, noting that a voluntary patient who was a suicide risk was taking medication which would compromise his/her ability to make an informed decision, was likely to be detained if he/she attempted to leave and, indeed, may have consented to be a patient to avoid detention. An informal psychiatric patient’s position was therefore more analogous to that of the child at risk of abuse (Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001V). Accordingly, he was in no doubt that the NHS Trust owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide. On the facts, that obligation had not been fulfilled since the decision to allow her home on leave was one that no reasonable practitioner would have made.
41. Moreover, by settling the 1934 negligence claim on behalf of the estate, the parents could not be said to have renounced their own Article 2 claim for non-pecuniary damages for bereavement to which damages they were entitled. However, negligence proceedings had not been open to them (section 1A of the Fatal Accidents Act 1976, the deceased not being a minor on death). Lord Dyson awarded each parent GBP 5,000 under Article 2 of the Convention. Lady Hale, Lord Brown, and Lord Mance delivered concurring judgments and Lord Walker agreed with the main judgment and with the added comments of the remaining judges.
VIOLATED_ARTICLES: 13
2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-88623
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CRAIK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Robert Craik, is a British national who was born in 1949 and lives in County Durham. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 25 September 1998. In April 2002, the applicant made a claim for widows’ benefits. On 30 April 2002 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 4 September 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-97186
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: VRABEL v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Tibor Vrábel, is a Slovakian national who was born in 1952 and lives in Levice. He was represented before the Court by Ms Z. Kupcová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 June 1998 the applicant’s son, then 21 years old, was to participate in a triathlon competition at a lake near Senec. On the same day, an association of model boat builders from Senec organised an international competition of radio-controlled model boats in the adjacent part of the same lake. The organisers of the two events had arranged between themselves that no model boats would be on the lake between 1.45 and 3 p.m. when the triathlon competition was to take place.
After noon and prior to the start of the triathlon competition the applicant’s son had a swim in the lake. A model boat belonging to a participant from Ukraine suddenly changed its trajectory after having touched a buoy demarcating the race circuit. It hit the applicant’s son’s head and spine. After his body was brought to shore by divers, a physician established that the applicant’s son had suffered fatal head injuries.
Later the same day police officers drew up reports on the accident and on the examination carried out on the spot. They further photographed the victim and drew up a record concerning the identification of the body. The police retained the model boat which had apparently hit the applicant’s son and heard what its owner had to say. His replies were interpreted by the director of the model boat competition. A written report by the doctor who had examined the corpse was prepared on 6 June 1998. Several objects belonging to the victim were given to the applicant.
On 8 June 1998 the police in Senec appointed a forensic expert with a view to determining the cause of death of the applicant’s son.
On the same day the police concluded that there were no grounds for a criminal prosecution of the Ukrainian owner of the boat. The responsibility for safety of the event lay with the club which had organised the competition. The boat owner could not be held responsible for the fact that a swimmer, who was not supposed to be in the area of the competition, had entered the raceway.
The boat owner was allowed to return to Ukraine, but the police kept the model boat for the purpose of an examination by experts.
In a preliminary report of 9 June 1998 the forensic institute which had carried out an autopsy of the victim’s corpse concluded that the fatal injury had been inflicted by an object which had fractured the victim’s skull, concussed his cerebral tissue and caused bleeding in the brain chambers.
Between 8 and 16 June 1998 police officers interviewed twelve persons with a view to establishing the relevant facts.
In the meantime, on 10 June 1998, the applicant consulted the police file and copies of several documents included in it were given to him.
On 12 June 1998 the applicant complained to the Inspection Department of the Ministry of the Interior that the police had acted erroneously in that, inter alia, they had failed to accuse the owner of the model boat of an offence and to carry out an alcohol test on him. The applicant further expressed the view that the police had disregarded attempts by the organisers of the model boat race to distort the account of the events.
In a letter of 6 July 1998 a public prosecutor pointed out that, at that time, it had not been clearly shown whether the criminal liability for the accident lay with the Ukrainian participant, the organisers or whether it was attributable to the behaviour of the applicant’s son.
On 10 July 1998 the applicant complained to the Bratislava III District Prosecutor’s Office that the police had attempted to manipulate the investigation with a view to concealing the real cause of his son’s death. On 23 July 1998 the Bratislava III District Prosecutor replied to the applicant that his allegation was unsubstantiated.
According to a forensic report submitted to the police on 16 August 1998, the applicant’s son had drowned after a serious injury to the skull during a sporting activity performed in water. The injuries were so serious that death could not have been avoided, even if there had been immediate medical assistance.
On 26 August 1998 the Inspection Department of the Ministry of the Interior informed the applicant that the police investigation had been supervised by a public prosecutor and that his complaint about misconduct of the policemen concerned was unsubstantiated.
Between 7 and 17 September 1998 police officers questioned five people. On 10 November 1998 a public prosecutor heard the director and an organiser of the triathlon competition.
In a letter of 21 December 1998 a public prosecutor instructed the Bratislava III Investigation Office of the Police Corps to accuse the director of the model boats competition of having caused damage to another’s health. The letter stated that all documents submitted by the applicant should be included in the file.
On 4 January 1999 the Regional Prosecutor’s Office in Bratislava informed the applicant, in reply to his complaint, that the public prosecutor dealing with the case had concluded that the organisers of the model boat race had not complied with the statutory security measures, as a result of which his son had been fatally injured.
On 25 January 1999 a police investigator accused the director of the model boats competition of having caused injury to another’s health. The director was accused of failing to take appropriate measures with a view to protecting the lives and health of other persons.
In the course of February 1999 the investigator obtained information about the accused from several authorities and institutions.
The investigator examined the accused from 8 a.m. to 4.30 p.m. on 23 February 1999. She heard the applicant from 9 a.m. to 2.20 p.m. on 24 February 1999. The applicant stated that he wished to join the proceedings as a civil party claiming compensation for pecuniary and non-pecuniary damage.
On 25 February 1999 the director of the triathlon race was examined for more than four hours. Another person involved in organising the triathlon race was heard as a witness on the same day. Between 26 February and 3 March 1999 the investigator heard ten other witnesses.
On 10 March 1999 the Bratislava Regional Prosecutor’s Office dismissed a complaint by the accused against the decision to start criminal proceedings against him.
Between 10 March and 25 March 1999 the police investigator examined sixteen witnesses.
In the meantime, on 22 March 1999, the applicant submitted his claim for damages as an injured party.
In a report of 26 April 1999 the police investigator indicated that the investigation could not be concluded within three months as, inter alia, the public prosecutor supervising the proceedings had concluded that there was a need to hear the Ukrainian competitor as a witness. For that purpose a request for legal assistance was to be sent quickly to the Ukrainian authorities.
Following his request of 10 May 1999, the applicant consulted the entire investigation file on 31 May 1999.
On 14 June 1999 the Bratislava III District Prosecutor’s Office submitted to the General Prosecutor’s Office a translation of the request for legal assistance in obtaining a statement from the Ukrainian boat owner. Subsequently the request was transmitted to the Ukrainian authorities.
In September 1999 and in February 2000 the investigator obtained further information about the accused.
The Ukrainian authorities heard the owner of the model boat in Kiev on 9 March 2000. The Bratislava III District Prosecutor’s Office received their reply on 5 May 2000. A Slovak translation of the statement was submitted to the police investigator on 6 June 2000.
In his statement the model boat owner explained that, because of an obstacle, he had had to change the trajectory of his model when passing around a buoy demarcating the race area. After that, the model had come to a standstill. The competitor expressed the view that the race area had not been sufficiently secured. The organisers had warned visitors and requested them to abstain from swimming in the lake or approaching its shore. However, several persons had disregarded that warning. The witness further stated that he had drunk no alcoholic beverage before the race. There had been several kiosks around the lake where such beverages were being sold. Nobody had moved the buoys after the accident.
During the course of the investigation the applicant complained of shortcomings to public prosecutors at several levels and to the Inspection Service of the Ministry of the Interior. He alleged that the policemen involved had committed an offence and that no effective investigation had been carried out into the case.
In particular, the applicant contended that the police had failed to inform him of his rights and about the procedure after the incident had occurred; had not checked whether the persons involved had consumed alcohol; had refused to record the applicant’s statement; that the first statement of the Ukrainian participant had not been interpreted by an authorised interpreter, and that photographs had neither been taken nor drawings made of the scene of the incident. The failure to carry out an appropriate investigation at the outset had been, according to the applicant, the result of undue influence of members of a political party then in government who had acted as patrons of the model boat race.
The applicant also maintained that the organisers of the race and divers involved had manipulated the scene of the accident, and complained that the model boat owner had not been prosecuted.
The applicant’s complaints were examined by several police and public prosecution authorities but they were dismissed as being wholly unsubstantiated. However, a public prosecutor of the Bratislava Regional Prosecutor’s Office admitted, in September 1999, that the police had proceeded erroneously in that they had let the director of the competition interpret the Ukrainian participant’s statement on 6 June 1998.
On 14 June 2000 the applicant examined the police file concerning the case and obtained copies of the relevant documents. According to the record of the examination, the applicant declared that he had no proposals for further action to be taken within the preliminary proceedings
On 19 July 2000 a public prosecutor charged the director of the model boats race with causing injury to another’s health before the Bratislava III District Court.
The District Court held hearings on 16 October and 14 November 2000, and 16 and 19 January 2001. On the last-mentioned date it convicted the accused of causing injury to health. It imposed an eighteen-month prison sentence on him, conditionally suspended for a probationary period of three years.
At the main hearing the court heard the accused and the applicant, as well as nineteen witnesses. The statements of four other persons were read out. The court also had regard to extensive documentary evidence including forensic reports.
In his statement, the applicant affirmed that the area of the model boat race had not been duly secured. He accused the organisers of having manipulated the buoys after the incident. The applicant further referred to the Ukrainian participant’s statement according to which alcoholic beverages had been served at the place of the competition.
The District Court established that the accused, in his capacity as director of the model boat race, had acted negligently in that he had not taken appropriate measures, as required by sections 3, 4, 5 and 9 of Law no. 315/1992, with a view to preventing injury to other persons present. In particular, the model boat race had continued despite the fact that there had been swimmers in the lake. Safety barriers had not been arranged in an appropriate manner in order to ensure that visitors were kept separate from the competition area.
The applicant claimed 469,359 Slovakian korunas (SKK) in compensation for damage from the accused. The District Court found that the applicant had incontestably suffered damage of SKK 35,420. It awarded that sum to the applicant and referred him, with the remainder of his claim, to a civil court.
The accused appealed, claiming that he had committed no offence.
At the hearing before the appellate court, the applicant requested that the first-instance decision on his claim for damages be upheld.
On 26 September 2001 the Bratislava Regional Court varied the first-instance judgment, reducing the sentence to one year’s imprisonment conditionally suspended for two years. The Regional Court held, in particular, that the sentence originally imposed was excessively severe as, inter alia, the accused was not the only person who was responsible for the accident. The appellate court expressed the view that other persons who had given authorisation for the two events to be held concurrently without ensuring that appropriate safety measures were taken also bore responsibility for the accident.
The Regional Court further quashed the first-instance decision on the applicant’s claim for damages. The appellate court noted that the sum awarded to the applicant had not been sufficiently specified and, more importantly, it was not clear whether the accused was liable for damage under the provisions of civil law or labour law. The determination of that issue depended on the legal status of the model builders’ club of which the accused was a member. If the club was a part of the Slovak Association of Model Builders, that association was liable for the damage. In such a case the question arose as to whether the Ministry of the Interior was not also liable. The appellate court held that the determination of those issues was beyond the scope of the criminal proceedings and that the applicant should bring his claim for damages before a civil court.
The judgment became final on 26 September 2001. It was served on the applicant on 7 December 2001.
In November 2001 the applicant sought assistance from the Crime Victims Centre with a view to obtaining compensation for damage which he had suffered.
In a letter of 24 October 2003 a lawyer of that Centre informed the applicant that the model boat competition had been organised by the club from Senec, which was a legal person. In accordance with Article 420 § 2 of the Civil Code, that club was liable for damage resulting from the criminal offence committed by its president when organising the competition. The applicant’s claim against the latter had not interrupted the running of the statutory limitation period, which had therefore expired on 6 June 2001.
The view was further expressed in the letter that, for similar reasons, the applicant’s right to claim compensation for non-pecuniary damage under Article 13 of the Civil Code had also lapsed on 6 June 2001.
It was therefore no longer possible for the applicant to claim compensation before the civil courts.
Since August 1998 the applicant has been treated as an outpatient for psychological trauma suffered as a result of his son’s death.
In 1999 the applicant’s contract of employment was terminated. The applicant submitted that, as a result of the mental problems which he had been experiencing, he was no longer able to carry out his job.
The Government contested that argument. Relying on the relevant document, they argued that the applicant’s contract had been terminated for redundancy.
In August 2000 the applicant was found to be fully disabled, one of the reasons being his mental disorder.
In 2005 a physician confirmed that the applicant continued to suffer from severe depression. For that reason an expert commission confirmed, in November 2005, that the applicant was still disabled.
At the relevant time Law no. 315/1992 governed the organisation of sporting and tourist events accessible to the public.
Under section 1(3), prior approval of a State authority is not required for a sporting event to be held.
Section 3 obliges the organiser to notify the municipality concerned in writing of the plan to organise a sporting event within its territory. Such notification must indicate, inter alia, the name and purpose of the event, its venue and time, the expected number of participants as well as the measures which the organiser will take with a view to maintaining public order and preventing harm to the lives or health of the participants or to the environment.
Section 4(1) provides for an obligation of the organiser of a sporting event to maintain public order both at the place where the event takes place and in the adjacent area, to comply with the relevant rules relating to security and health protection, to establish teams of organisers and to give relevant instructions to its members. It also provides that an organiser has to suspend or put an end to an event where public order has been disturbed and where it is not possible to restore it. Where an organiser is unable to maintain public order, he or she shall ask the municipal authority or the police for assistance.
Under section 6, the organiser is entitled, inter alia, to ask participants to refrain from inappropriate behaviour and to expel persons who, despite a prior warning, seriously disturb the event.
Section 8(1) gives municipalities the right to verify whether an event is held in accordance with the earlier notification submitted by the organiser.
Pursuant to section 8(4), a person whom the municipality has authorised in writing to supervise the event shall draw the organiser’s attention to any shortcomings established. The supervisor has to stop or suspend an event at which human rights and freedoms are being breached.
Section 9 provides that the area where an event is held is to be arranged in a manner permitting the effective control of all participants, appropriate placement of security barriers, and the designation and separation of individual sectors. An organiser is authorised to close an area where the circumstances or the participants’ behaviour indicate that the event could be disturbed. Finally, an event cannot start unless all relevant provisions of the Act are complied with.
Pursuant to Article 224 § 1, a person who negligently causes the death or serious damage to the health of another person is to be punished with a prison sentence of up to two years or a ban on any involvement in the activity in issue. Paragraph 2 of Article 224 provides that the perpetrator of such an offence is to be punished with a prison term of between six months and five years where the offence results from his or her failure to comply with an important obligation relating to his or her job, position or function or an important obligation imposed by law.
Article 43 §§ 1 and 2 provide, inter alia, that a person who has suffered damage as a result of a criminal offence can claim compensation from the accused person and request that the court, in a judgment convicting the accused, order the latter to compensate for such damage.
Under Article 158 §§ 4-6, where no criminal proceedings can be brought because the person who could be liable for an offence has not yet been identified, the police or investigator can take action for the purpose of criminal proceedings, such as taking evidence, but only to the extent that such action cannot be delayed or repeated later. Within the meaning of this provision, an action or procedural step cannot be postponed until criminal proceedings are brought where, in view of the purpose of the criminal proceedings, there is a danger of it or its object being thwarted, destroyed or lost.
Under Article 229 § 1, a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence going beyond the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged.
Article 246 § 1 (d) provides that an injured party may appeal against a first-instance judgment only to the extent that it concerns his or her claim for damages.
The following provisions are relevant in the present case.
“Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health...”
“1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
“After the death of the injured party the right to the protection of his or her personal integrity shall pass to his or her spouse and children or, if none, to his or her parents.”
“A person who by unjustified interference with another person’s personal rights causes [pecuniary] damage is responsible for it in accordance with the provisions of this law on liability for damage.”
“1. The right to compensation for damage shall lapse two years from the date when the injured party learns about the damage and who is liable for it.
2. The right to compensation for damage shall lapse, at the latest, three years ... from the event which is at the origin of the damage ...”
“Where the creditor, prior to the expiry of the limitation period, asserts his or her right before a court or other appropriate authority and where he or she duly pursues the proceedings, the limitation period does not run from the moment when the claim was submitted and during the period when the proceedings are pending...”
“1. Everyone shall be liable for any damage he or she causes by breach of statutory duty.
2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity. Such other persons do not bear liability under the Civil Code for damage thus caused.” ...
“1. Compensation shall cover actual damage and loss of profit.
2. Damage shall be made good in money. However, if the injured party so requests and it is possible and appropriate, damage shall be repaired by restitution in full...”
“Indemnification for damage to health shall consist of a lump-sum payment for suffering (bolestné) and reduced capacity for work (sťaženie spoločenského uplatnenia).”
...“2. In the event of fatal injury, the compensation shall cover reasonable funeral costs provided such costs have not been paid by the health insurer.”
Information on the legal opinion and domestic courts’ practice as regards the protection of one’s personal rights under Articles 11 et seq. of the Civil Code are set out in Kontrová v. Slovakia, no. 7510/04, decision of 13 June 2006 and judgment of 31 May 2007, §§ 33-35, ECHR 2007VI (extracts), and Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008.