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jonathanli

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[ "The applicant was born in DATE and lives in GPE .", "On DATE criminal investigations were instituted against the applicant who was taken into police custody DATE in respect of , inter alia , alleged tax frauds . He was released on DATE .", "On DATE and CARDINAL DATE the applicant was summoned to appear before ORG ( raastuvanoikeus , rådstuvurätt , as from DATE ORG , käräjäoikeus , tingsrätt ) indicted for several aggravated tax frauds . The alleged offences concerned the importation of parts of vehicles and failure to pay relevant tax for them . The relevant decisions of the tax authorities after the clearance of the taxes were not yet final as the applicant had appealed against them . The first hearing before ORG was held on DATE . The complainants and CARDINAL of the CARDINAL defendants , ORG , had not yet been summoned . ORG charged the applicant with CARDINAL aggravated tax frauds , some of which he had allegedly committed together with other defendants , including PERSON . The applicant ’s lawyer asked to be allowed to reply to the charges later . At the request of ORG the case was adjourned until DATE .", "At the second hearing , on DATE , the applicant denied all the charges . Concerning the alleged offences in complicity with PERSON , the applicant stressed PERSON ’s role in the events and his greater knowledge of the subject . CARDINAL complainants and the defendant ORG had still not been summoned . At the request of ORG and ORG , which was one of the complainants , the case was adjourned until DATE .", "At the third hearing on CARDINAL DATE ORG submitted claims for damages . The applicant ’s lawyer opposed the claims and said he would revert to the question of damages in a later hearing . The defendant ORG had still not been summoned to appear before ORG . ORG requested an adjournment in order to have ORG summoned and to submit further clarification to certain questions . His request was not opposed . The next hearing was ordered to be on DATE .", "At the fourth hearing on DATE the applicant was heard in person . His lawyer also clarified the reply to the claims of ORG . ORG stated that ORG had not yet been contacted and requested an adjournment in order to have him summoned . The applicant left the request for an adjournment to ORG discretion . The case was adjourned until DATE .", "At the fifth hearing on DATE ORG stated that ORG had still not been summoned and requested a further adjournment . The applicant left the request to ORG discretion . The case was adjourned until DATE .", "At the sixth hearing on CARDINAL DATE ORG requested the case to be adjourned until further notice since ORG ’s place of residence was not known . The applicant left the case to be decided for his part . ORG considered that it was necessary to hear PERSON before giving a decision on the charges against the applicant . Furthermore , ORG had not yet given its decision concerning the appeals against the decisions of the tax authorities after the clearance of the taxes . ORG , therefore , adjourned the case until further notice of DATE hearing would be given .", "ORG and ORG gave decisions concerning the appeals against the post - clearance decisions on DATE and DATE respectively .", "In DATE the applicant lodged a complaint with the Chancellor of ORG ( oikeuskansleri , justitiekansler ) . The complaint concerned ORG decision to adjourn his case until further notice .", "The seventh hearing before ORG ( the former ORG ) was held on DATE . ORG had been summoned but he was absent from the hearing . At the request of the public prosecutor , which was not objected to , the case was adjourned until DATE .", "At the eighth hearing on DATE PERSON appeared before ORG to reply to the charges . He and the applicant were examined as regards their complicity in the alleged offences . At the request of ORG , which was not objected to , the case was adjourned until DATE .", "At the last hearing on DATE the applicant submitted that the length of the proceedings should be taken into account when assessing his possible punishment . ORG convicted the applicant of a repetitive offence , consisting of CARDINAL tax frauds , an aggravated tax fraud and aiding and abetting in CARDINAL tax frauds and in CARDINAL aggravated tax frauds , and sentenced him to CARDINAL months’ suspended imprisonment . In the reasons given for the sentence the length of the proceedings was not mentioned explicitly . It was , however , noted that the fact that the offences had been committed a long time ago was CARDINAL of the reasons for the court ’s decision to impose a suspended sentence .", "On DATE the Deputy Chancellor of ORG ( apulaisoikeuskansleri , justitiekanslersadjoint ) gave his decision on the applicant ’s complaint , finding no breach of official duties on the part of ORG members or of the public prosecutor nor any reason to take further measures in the matter .", "NORP The public prosecutor and the defendants appealed to ORG ( hovioikeus , hovrätt ) . The applicant requested , inter alia , that the length of the proceedings should be taken into consideration when assessing his sentence . On DATE ORG , as regards the applicant , upheld ORG decision without giving any further reasons .", "NORP The applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) renewing his request that the length of the proceedings be taken into account in the assessment of his sentence . On DATE ORG refused the applicant leave to appeal .", "LAW , LAW ( CARDINAL.CARDINAL.CARDINAL/CARDINAL ) , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided :", "“ When a party requests an adjournment in order to submit further evidence or for some other reason , the case must be adjourned , if the court finds grounds for it . The date for a new hearing must be set at the same time . A court can not adjourn a case of its own motion unless necessary under particular circumstances . ... ”", "As from DATE the rules concerning adjournment of cases were amended ( amendment CARDINAL ) . As regards criminal cases , the above - mentioned provision of law remained essentially unchanged . Furthermore , LAW , LAW , of LAW provided :", "“ When it is important to wait for a decision of another tribunal or some other body before a decision is given in a pending case , or when some other long - lasting impediment exists , a court may order that the hearing of the case will not be pursued until that obstacle ceases to exist . ”", "According to LAW , LAW ( CARDINAL.CARDINAL.CARDINAL/CARDINAL ) , of LAW , which came into force on DATE , charges against defendants accused of committing the same offence must , in principle , be tried together ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .", "The applicant has brought the present application in his capacity as administrator of his deceased father 's estate .", "On DATE a civil action was brought before ORG by , inter alia , the applicant , in his capacity as administrator of his deceased father 's estate , against CARDINAL members of his family and the Attorney - General of the Republic concerning the transfer and registration of certain plots of land .", "On DATE the action was settled by way of friendly settlement .", "On DATE the applicant , in his capacity as administrator of his deceased father 's estate , brought another civil action before ORG against CARDINAL members of his family and the Attorney - General ( “ the defendants ” ) seeking the transfer and registration of a plot of land in his name .", "On DATE ORG upheld the applicant 's claim in part . It issued an order for the annulment of the registration of the plot in the names of defendants nos . CARDINAL–CARDINAL and further , an order for the restoration / reinstatement / re - registration of the property in the applicant 's grandfather 's name .", "On DATE the applicant lodged an appeal with ORG , claiming that ORG should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general , special and exemplary damages ( appeal no . CARDINAL/CARDINAL ) . The defendants also appealed against the first - instance judgment ( appeal no . DATE ) .", "On DATE ORG dismissed the applicant 's appeal but upheld the respondents ' appeal . It set aside ORG judgment and annulled the orders that had been issued .", "LAW safeguards the right to a fair trial . It provides as follows , in so far as relevant :", "“ In the determination of his civil rights and obligations or of any criminal charge against him , every person is entitled to a fair and public hearing within a reasonable time by an independent , impartial and competent court established by law . ... ” .", "In order to ensure the effective protection / application at domestic level of the principle of the right to a trial within a “ reasonable time ” and to provide effective domestic remedies in relation to breaches of that right , ORG passed ORG for Exceeding ORG for the Determination of Civil Rights and Obligations , PERSON CARDINAL(I)/CARDINAL . This PERSON entered into force on DATE and applies to complaints concerning the length of proceedings in all civil and administrative cases .", "The relevant parts of LAW provide as follows :", "“ Whereas Article CARDINAL of LAW and LAW safeguard the right to determination of civil rights and obligations within a reasonable time ,", "And whereas in a number of individual recourses against GPE ORG Rights found violations of LAW in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by ORG within a reasonable time as required by the above - mentioned LAW and also found a violation of LAW in that there were no effective remedies in the Republic as required by LAW allegations of violation of the requirement of LAW ,", "And whereas the LOC 's obligation under LAW to abide by the said Judgments of ORG is being supervised by ORG and entails the adoption of measures preventing future violations as those found by ORG in the above - mentioned individual applications ,", "And whereas a number of individual recourses against the Republic are pending before ORG for violation of Articles CARDINAL and CARDINAL of the LAW regarding determination of the applicants ' civil rights and obligations in civil cases and recourses ,", "And whereas the LOC is bound by LAW to secure the rights of the LAW including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time . ”", "“ ( CARDINAL ) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in ORG or ORG cases , whether they are pending at any stage at first instance or on appeal or have been concluded .", "( CARDINAL ) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present PERSON for obtaining the remedies provided by it .", "( CARDINAL ) Violation , in a court case to which this PERSON applies , of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this PERSON for the violation , is determined by courts vested with competence under this PERSON . ”", "“ The right to determination of civil rights and obligations within a reasonable time in a case to which this PERSON applies is actionable , and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this PERSON , claiming the remedies for the violation provided for in this PERSON . ”", "“ ( CARDINAL ) An action under LAW may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case , i", "( CARDINAL ) An action under section CARDINAL may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present PERSON , or in which execution of a judgment given before the date of entry into force is pending , provided that the action is instituted within DATE of the date of entry into force or the date of the ed within the above time - limit . ”", "“ ( CARDINAL ) Irrespective of the provisions of any other law , the court which is granted jurisdiction by this PERSON to examine and determine an action under sections CARDINAL and CARDINAL for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are :", "( a ) in relation to district court cases , the administrative President of any ORG who , in a case in which , according to the action , the plaintiff 's right to determination of his civil rights or obligations within a reasonable time has been violated , did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination , or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination , the next senior president of the district court or another judge who fulfils the above , as ORG may in the event designate .", "( b ) in relation to ORG cases , CARDINAL judges of ORG , as ORG may in the event designate .", "( CARDINAL ) The judgment of the court with jurisdiction under sub - section ( b ) of paragraph ( CARDINAL final and is not subject to appeal . ”", "“ ( CARDINAL ) Without prejudice to the right to institute an action under sections CARDINAL and CARDINAL , a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub - paragraph ( CARDINAL ) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated .", "( CARDINAL ) For the purposes of sub - section ( CARDINAL ) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or ORG case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section CARDINAL for the examination of the allegation and the granting of remedies for the violation provided for by this PERSON and for the issuance of a decision on these matters .", "( CARDINAL ) the provisions of paragraphs ( CARDINAL ) and ( CARDINAL ) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present PERSON .", "( CARDINAL ) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination .", "... ”", "“ ( CARDINAL ) Irrespective of the provisions of any other law , the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under LAW is :", "( a ) in relation to a district court case which is pending at that stage before a district court , the administrative President of any ORG who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination , or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination , the next senior president of the district court or another judge who fulfils the above , as ORG may in the event designate .", "( b ) in relation to a district court case which is pending at that stage before ORG or to a ORG case which is pending before the court in question at any stage , CARDINAL judges of ORG , as ORG may in the event designate .", "Provided that by virtue of this paragraph under this section judges of ORG who did not participate at any stage of the case will be designated .", "( CARDINAL ) The judgment of the court with jurisdiction , under sub - section ( b ) of paragraph ( CARDINAL ) , is final and is not subject to appeal . ”", "“ In an action under sections CARDINAL and CARDINAL and in an originating application under sections CARDINAL and DATE , the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application , as the case may be , or , in the event it reserves its judgment , it is to deliver it without delay . ”", "“ Actions and originating applications against the Republic under this PERSON are instituted against the Attorney - General of the Republic as defendant or respondent , depending on the case and the provisions of LAW of ORG apply . ”", "“ The court , in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections CARDINAL and CARDINAL and in an application under sections DATE and DATE , takes into account –", "( a ) the total period during which the determination of the rights or obligations in the case is pending or has lasted , taking into account the date on which the case was lodged with the court , and also where relevant any preceding period ,", "( b ) the nature of the case in which , according to the allegation of the plaintiff or the applicant , his right has been violated ,", "( c ) the possible complexity of the case ,", "( d ) the conduct of the plaintiff or the applicant in the proceedings of the case ,", "( e ) the conduct of the judicial authorities at the various stages and processes of the case , including , where relevant , the execution procedures , and the prosecution of the case in the said stages and procedures ,", "( f ) the conduct of other authorities of the Republic , where relevant , at the stage and procedures of execution , as well as at any relevant stage and procedures prior to the date the case was lodged with the court ,", "( g ) any other factors taken into account by ORG as relevant to the matter in issue as these arise from its relevant case - law on the subject . ”", "“ Where in an action under sections CARDINAL and CARDINAL or in an application under sections DATE and CARDINAL the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated , the plaintiff / applicant is entitled :", "( a ) to compensation for any pecuniary damage , loss , costs , and expenses proved to have been sustained on account of the violation ;", "( b ) to compensation for non - pecuniary damage or injury suffered on account of the violation ;", "( c ) to legal costs proved to have been incurred on account of the violation .", "( CARDINAL ) For ascertaining the damage sustained on account of the violation as provided in sub - section ( CARDINAL ) and assessing and awarding the compensation provided for under sub - section ( CARDINAL ) , the court takes into account the criteria and factors taken into account for this purpose by ORG as they can be determined from its case - law in analogous cases of violation of LAW , and the amounts of compensation awarded by the said ORG in such analogous cases . ”", "“ In examining an application made under sections CARDINAL and CARDINAL concerning the issue as to whether the applicant 's right to determination of his civil rights or obligations within a reasonable time has been violated , the court exercises its judgment in relation to factors referred to in paragraphs ( ORG ) of LAW after hearing the applicant and the Attorney - General of the Republic , by reference to the records of the proceedings and the contents of the file or files at first instance , or of any appeal of the case in which the applicant alleges that there has been a violation of his said right . ”", "“ ( CARDINAL ) Where in an application under sections CARDINAL and CARDINAL the court decides under the present PERSON that there has been a violation in a pending case of the applicant 's right to determination within a reasonable time of civil rights or obligations , the said court transmits its judgment immediately to ORG .", "( CARDINAL ) If the case concerning which the competent court issued its judgment and transmitted it to ORG under sub - section ( CARDINAL ) is still pending , ORG issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case , so as to prevent any continuance of the delay or any new delays , and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case :", "Provided that a judge or judges of ORG who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions .", "( CARDINAL ) Directions under sub - section ( CARDINAL ) may include amongst other things-", "( a ) that the pending case be set down immediately for directions before the court , or for trial", "( b ) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions ,", "( c ) that the record of the proceedings be prepared ;", "( d ) that costs which may have been awarded be subject to taxation", "( e ) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications ;", "( f ) that priority be given to the completion of any interim application procedures , or of other interim procedures ,", "( g ) that priority be given to the delivery of a judgment reserved in the case or in an interim application ,", "( h ) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved .", "( CARDINAL ) Directions under sub - section ( CARDINAL ) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph ( a ) of sub - section ( CARDINAL ) of section CARDINAL , and/or has been appealed against by the Attorney General . ”" ]

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[ "The Salvation Army worked officially in GPE from DATE to DATE when it was dissolved as an “ anti - Soviet organisation ” .", "The Salvation Army resumed its activities in GPE in DATE when a group of NORP nationals held a meeting and adopted the articles of association of the GPE branch of ORG .", "On DATE ORG of ORG registered the applicant branch as a religious organisation with status as a legal entity .", "On DATE the GPE ORG registered the applicant branch ’s amended articles of association .", "On DATE a new Law on freedom of conscience and religious associations ( “ the Religions Act ” ) came into force . It required all religious associations which had previously been granted the status of legal entities to bring their articles of association into conformity with the LAW and to re - register by DATE .", "On DATE the applicant submitted to ORG an application for re - registration as a local religious organisation .", "On DATE the deputy head of ORG notified the applicant that its request for re - registration was being denied . He advanced CARDINAL grounds for this refusal . Firstly , it was claimed that , at the meeting of ORG ( the governing body of the applicant branch ) at which amendments to the founding documents had been adopted , CARDINAL members had been in attendance , whereas LAW required that a religious organisation should have CARDINAL founding members . Secondly , it was alleged that no visas for the applicant branch ’s foreign members , or other documents establishing their lawful residence in NORP territory , had been provided . Thirdly , the deputy head referred to the fact that the applicant branch was subordinate to a centralised religious organisation in GPE and inferred therefrom that the applicant branch was “ most probably ” a representative office of a foreign religious organisation operating on behalf and by order of the latter . Accordingly , its activities were to be governed by Government Regulation no . CARDINAL ( see paragraph CARDINAL below ) .", "On DATE the applicant challenged the refusal before ORG of GPE . ORG submitted its written comments , in which it advanced a new ground for the refusal of registration .", "“ ... LAW provides that members of the Branch shall include supporters , soldiers , local officers and officers headed by the Officer Commanding , who is appointed from GPE . Members of the Branch wear a uniform and perform service , which means that the Branch is a paramilitary organisation .", "Pursuant to Presidential Decree no . CARDINAL of DATE ‘ on measures to secure coordinated actions by ORG authorities in the fight against fascism and other forms of political extremism in GPE , no paramilitary formations may be established in GPE .", "We do not consider the use of the word ‘ NORP in the name of a religious organisation to be legitimate . ORG defines the meaning of this word as : CARDINAL . The totality of a ORG ’s armed forces ... ”", "As to the remainder , ORG repeated and elaborated on the grounds for refusal set out in the letter of CARDINAL DATE .", "On DATE the ORG gave judgment . It determined that the applicant branch was a representative office of the international religious organisation “ The ORG ” and therefore was not eligible for registration as an independent religious organisation . In the court ’s opinion , this fact also prevented the applicant branch from being granted re - registration . Secondly , it referred to LAW , banning the founding and functioning of public associations which advocated a violent change in the constitutional principles of GPE or destruction of its integrity , undermined the security of the ORG , created paramilitary formations , or caused social , racial , ethnic or religious division or conflict . The court continued as follows :", "“ In the course of analysis of the LAW , certain provisions stood out , on the one hand , as being imbued with barrack - room discipline , in which members of the religious organisation show unquestionable subordination to its management and , on the other hand , as relieving the management and the organisation as a whole of any responsibility for its PERSON activities . Thus , according to LAW , ‘ the members of the Branch shall act in compliance with ORG and with the instructions of the Officer PERSON , ... ‘ the Branch as a whole shall not be liable for infringements of the legislation of GPE perpetrated by individual members of the Branch’ . This wording of the LAW leads one to conclude that the LAW assumes that the members of the organisation will inevitably break NORP law in the process of executing ORG and the instructions of the Officer Commanding ... The Branch excludes its liability for illegal service activity by its members . ”", "Thirdly , the court pointed out that the grounds for judicial liquidation of the applicant branch , as set out in its articles of association , were inconsistent with those laid down in NORP law . Lastly , the court held that the applicant branch had not disclosed its objectives , given that the articles of association failed to describe “ all the decisions , regulations and traditions of The ORG ” .", "On DATE ORG upheld that judgment on appeal , focusing mainly on the applicant branch ’s foreign ties . It pointed out that the organisation ’s executive body included CARDINAL foreign nationals who had multiple - entry visas , but not residence permits , whereas section CARDINAL ) of LAW required founders to be of NORP nationality . Noting the location of ORG headquarters abroad and the presence of the word “ branch ” in its name , ORG concluded that ORG had correctly insisted on registration of the applicant branch as a representative office of a foreign religious organisation . As a subsidiary argument , ORG endorsed ORG finding that the articles of association did not indicate the precise religious affiliation of its members because it was described as “ NORP ” , certain clauses of the articles of association mentioned the “ faith of The ORG ” , and its objective was the “ advancement of the NORP faith ” . On the allegedly paramilitary nature of the applicant ’s activities , ORG noted :", "“ The argument that [ the applicant ] is not a paramilitary organisation does not undermine the [ first - instance ] court ’s findings that the Branch is a representative office of a foreign religious organisation , ORG , and that the documents submitted for re - registration do not conform to the requirements of NORP law . ”", "On DATE ORG of GPE sent an instruction “ on activities of non - traditional religious associations in the territory of the GPE ” to NORP regional education departments . The instruction stated , inter alia :", "“ ... the international religious organisation ORG is expanding its activities in the central part of GPE . Its followers attempt to influence young people and the military . ORG formally represents ORG branch of NORP ; in essence , however , it is a quasi - military religious organisation that has a rigid hierarchy of management . ORG is managed and funded from abroad . ”", "The applicant branch submitted that this extract was copied verbatim from an information sheet prepared by ORG of GPE and forwarded to ORG on DATE .", "On DATE the time - limit for re - registration of religious organisations expired . Organisations that had failed to obtain re - registration were liable for dissolution through the courts .", "On DATE and DATE ORG and ORG of GPE , respectively , refused the applicant branch ’s request to lodge an application for supervisory review .", "On DATE the GPE ORG brought an action for dissolution of the applicant branch .", "On DATE ORG of GPE granted the action for dissolution . The court found that the applicant branch had failed to notify ORG on time about the continuation of its activities and had failed to obtain re - registration within the time - limit set by LAW . The court held that the applicant branch had ceased its activities and that it was to be stripped of its status as a legal entity and struck off ORG . On DATE ORG upheld that judgment .", "On DATE the applicant brought a complaint before the Constitutional Court challenging the constitutionality of section CARDINAL(CARDINAL ) of LAW , which provided for dissolution of religious organisations that had failed to re - register before the time - limit . The applicant argued that the contested provision imposed dissolution as a form of penalty which could be imposed on a religious organisation on purely formal grounds , in the absence of any violations or offences on the part of the organisation . It maintained that the possibility of no - fault penalty was incompatible with the rule of law and constituted an encroachment on its constitutional rights .", "On DATE ORG ruled on the complaint . It held that re - registration of a religious organisation could not be made conditional on the fulfilment of requirements that were introduced by LAW and which had not legally existed when the organisation was founded . A court could only decide on the dissolution of an organisation which had failed to bring its documents into compliance with the LAW if it was duly established that the organisation had ceased its activities or had engaged in unlawful activities . The court also emphasised that a judicial decision on dissolution of an organisation that had failed to obtain re - registration was to be reasoned beyond a mere reference to such formal grounds for dissolution as the failure to re - register or the failure to provide information on the continuation of its activities . Finally , the court held that the applicant ’s case was to be reheard in the part affected by ORG different interpretation of LAW .", "On DATE the ORG of ORG quashed the judgment of DATE and remitted the case for a fresh examination by a differently composed bench .", "On DATE ORG of GPE dismissed the action for dissolution of the applicant branch brought by ORG . The court founded its decision on ORG ruling .", "On DATE the GPE ORG lodged an appeal . It submitted , firstly , that the judicial decisions upholding its refusal of re - registration remained effective and , secondly , that the entering of information on the applicant branch in ORG did not constitute re - registration for the purposes of LAW .", "On DATE ORG dismissed the appeal and upheld ORG judgment of DATE .", "The applicant submitted that the refusal to re - register it had had an adverse impact on its activities .", "Following the expiry of the time - limit for re - registration on DATE , the applicant branch ’s assets had had to be transferred , in order to avoid seizure , to the community of ORG which had been re - registered at federal level . The transfer process had required considerable time and effort , involving : title to CARDINAL properties ; title to and registration of CARDINAL vehicles ; opening of a new bank account ; replacement of every employee ’s contract ; renegotiation of CARDINAL rental contracts , etc . Each of these transfers had necessitated complex bureaucratic steps and a diversion of resources from religious activities .", "The refusal had also resulted in negative publicity which severely undermined the applicant branch ’s efforts at charitable fund - raising and generated distrust among landlords who refused to negotiate leases with the applicant branch .", "In CARDINAL neighbourhood , the applicant branch ’s mission of delivering hot meals to house - bound elderly persons had had to be stopped entirely , because an official of the local administration had refused to work with the applicant branch as it had no official registration .", "The lack of re - registration had made it impossible for CARDINAL foreign employees and CARDINAL non - GPE NORP employees to obtain residence registration in GPE , which was required by law for everyone who stayed in the city for DATE .", "The articles of association of the applicant branch , approved on CARDINAL DATE and amended on DATE , read in the relevant parts as follows :", "“ ( CARDINAL ) ORG called GPE Branch of ORG , a non - commercial charitable organisation , was established by its first members ... with the aim of professing and advancing the NORP religion ...", "( CARDINAL ) The first members are parties who uphold the Articles of Faith of ORG as set out in Schedule I hereto ...", "( CARDINAL ) The Branch shall be part of The ORG international religious organisation and shall be subordinate thereto .", "...", "( CARDINAL ) The religious activities of the Branch shall be determined according to the Articles of Faith of ORG as an evangelistic NORP church . ”", "“ ( CARDINAL ) The objectives of the Branch shall be the advancement of the NORP faith , as promulgated in the religious doctrines which are professed , believed and taught by ORG , the advancement of education , the relief of poverty and other acts of charity ... ”", "Article CARDINAL guarantees freedom of religion , including the right to profess either alone or in community with others any religion or to profess no religion at all , freely to choose , have and share religious and other beliefs and to manifest them in practice .", "DATE provides that everyone shall have the right to freedom of association .", "On DATE the Federal Law on freedom of conscience and religious associations ( no . CARDINAL of CARDINAL DATE – “ LAW ” ) came into force .", "The founding documents of religious organisations that had been established before LAW were to be amended to conform to LAW . Until so amended , the founding documents remained operative in the part which did not contradict the terms of the LAW ( section CARDINAL(CARDINAL ) ) .", "By a letter of DATE ( no . CARDINAL ) , ORG informed its departments that LAW did not establish a special procedure for re - registration of religious organisations . Since section ORG ) required them to bring their founding documents into conformity with LAW , the applicable procedure was the same as that for registration of amendments to the founding documents described in section GPE ) , which provided that the procedure for registration of amendments was the same as that for registration of a religious organisation .", "NORP The list of documents submitted for registration was set out in section CARDINAL(CARDINAL ) . If the governing centre or body to which the religious organisation was subordinate was located outside GPE , the religious organisation was additionally required to submit the certified articles of association of that foreign centre or body ( section CARDINAL ) ) .", "Section CARDINAL(CARDINAL ) stated that registration of a religious organisation could be refused if :", "“ – the aims and activities of a religious organisation contradict LAW or NORP laws – with reference to specific legal provisions ;", "– the organisation has not been recognised as a religious one ;", "– the articles of association or other submitted materials do not comply with NORP legislation or contain inaccurate information ;", "– another religious organisation has already been registered under the same name ;", "– the founder(s ) has ( have ) no capacity to act . ”", "Section CARDINAL(CARDINAL ) provided that a reasoned refusal of registration was to be communicated to the interested party in writing . It was prohibited to refuse to register a religious organisation on the ground that its establishment was inexpedient .", "Re - registration could be denied to a religious organisation if there existed grounds for its dissolution or for the banning of its activities , as set out in section GPE ) , which established the following list of grounds for dissolution of a religious organisation and the banning of its activities .", "“ – breach of public security and public order , the undermining of ORG security ;", "– actions aimed at a forcible change in the foundations of the constitutional structure or destruction of the integrity of GPE ;", "– formation of armed units ;", "– propaganda of war , incitement to social , racial , ethnic or religious discord or hatred between people ;", "– coercion to destroy the family ;", "– infringement of the personality , rights and freedoms of citizens ;", "– infliction of harm , established in accordance with the law , to the morality or health of citizens , including the use of narcotic or psychoactive substances , hypnosis , commission of depraved and other disorderly acts in connection with religious activities ;", "– encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life or health - threatening conditions ;", "– interference with the receipt of compulsory education ;", "– coercion of members and followers of a religious association and other persons to alienate their property for the benefit of the religious association ;", "– hindering a citizen from leaving a religious association by threatening harm to life , health , property , if the threat can actually be carried out , or by application of force or commission of other disorderly acts ;", "– inciting citizens to refuse to fulfil their civic duties established by law or to commit other disorderly acts . ”", "Section CARDINAL(CARDINAL ) in its original wording specified that the re - registration of religious organisations was to be completed by DATE . Subsequently the time - limit was extended until DATE . Following the expiry of the time - limit , religious organisations were liable for dissolution by a judicial decision issued on an application by a registration authority .", "On DATE a new ORG the ORG registration of legal entities ( no . CARDINAL of DATE ) came into force . State registration of legal entities was delegated to ORG , which was to receive , within DATE , the lists and files of registered legal entities from the bodies that had previously been in charge of their registration , and to enter that information into ORG nos . CARDINAL of CARDINAL DATE and CARDINAL and CARDINAL of DATE ) .", "By Regulation no . CARDINAL of CARDINAL DATE , the government approved the procedure for registration of representative offices of foreign religious organisations . The ORG defines a foreign religious organisation as an organisation established outside GPE under the laws of a foreign ORG ( point CARDINAL ) . A representative office of a foreign religious organisation does not have the status of a legal entity ( point CARDINAL ) and may not engage in ritual and religious activities ( point CARDINAL ) .", "The relevant part of the ORG by ORG by member ORG , doc . DATE , DATE ) on the honouring of obligations and commitments by GPE stated :", "“ CARDINAL . The LAW safeguards freedom of conscience and of religion ( LAW ) ; the equality of religious associations before the law and the separation of church and ORG ( Article CARDINAL ) , and offers protection against discrimination based on religion ( Article CARDINAL ) . The law on freedom of religion of DATE has led to a considerable renewal of religious activities in GPE . According to religious organisations met in GPE , this law has opened a new era , and led to a revitalisation of churches . It was replaced on DATE by a new ORG on freedom of conscience and religious associations . This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions .", "... In DATE , ORG , PERSON , also acknowledged that many section of the DATE Law on freedom of conscience and religious associations do not meet GPE ’s international obligations on human rights . According to him , some of its clauses have led to discrimination against different religious faiths and should therefore be amended .", "In its preamble the law recognises ‘ the special role of Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life’ and respects ‘ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of Russia’ . ...", "According to the regulations by ORG responsible for the implementation of the PERSON on freedom of conscience and religious associations – religious organisations established before the law came into force ( DATE ) had to re - register before DATE .", "The registration process was finally completed on DATE as ORG decided to extend the deadline twice . CARDINAL religious organisations and groups have been registered , and CARDINAL were refused their registration , most of them because they failed to produce a complete file . Many others have , for a variety of reasons , failed to register . The Minister of Justice , PERSON , strongly rejected allegations that ORG had exerted pressure on the ORG to prevent some religious organisations from obtaining their registration . PERSON also indicated that experts of the Ministry had ‘ closely examined’ the status of ORG and ORG , and had come to the conclusion that nothing prevented [ their ] registration at the federal level .", "The Salvation Army , which feeds CARDINAL NORP every month in DATE , has had to waste MONEY in legal fights over registration , and the NORP church ( as well as the NORP community ) has had trouble getting visas for its foreign clergy . Some other religious organisations have also been prevented from being registered at the local level : ORG , ORG , the NORP , ORG and other churches in particular in GPE , in the region of PERSON and in PERSON oblast . These religious organisations also voiced complaints that they had serious difficulties to settle , to build or buy their places of worship , or to recover confiscated properties . Some among them – e.g. , ORG , ORG DATE have claimed that they suffered from repeated harassment by the authorities .", "Indeed , there have been cases where , even if a religious organisation had re - registered nationally , local authorities created obstacles . ...", "...", "Although on DATE , the NORP ORG finally re - registered ORG in GPE , at federal level , registration had been constantly denied to the GPE chapter of this religious organisation by ORG in GPE , and appeals to the various courts in GPE failed . Moreover , in DATE , liquidation procedures were put in place to close down ORG and social programmes within GPE , and on DATE the Tagansk[iy ] intermunicipal court ruled that the GPE chapter was subject to liquidation on the basis of section DATE LAW . ( It provides for the liquidation of the legal entity that did not re - register by DATE deadline . )", "ORG . The co - rapporteurs are very surprised and puzzled by the decision to ban the operations of ORG in GPE , and they would highly appreciate the clarification of this matter by the NORP authorities . In this respect , they refer to ORG call on GPE of DATE to ensure that ORG enjoys the same rights as it has in other member ORG , including the right to be registered in GPE . During their fact - finding visit in DATE , the co - rapporteurs used every opportunity to stress the need for a solution , and the potential embarrassment this problem may cause for GPE . ”", "Resolution CARDINAL ( DATE ) on the honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , noted as follows :", "“ CARDINAL . However , the ORG is concerned about a number of obligations and major commitments with which progress remains insufficient , and the honouring of which requires further action by the NORP authorities :", "...", "xiv . the ORG regrets the problems of ORG and ORG in GPE , but welcomes the decision of the NORP authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end ;", "... ”", "Resolution CARDINAL ( DATE ) on GPE ’s PERSON on religion , adopted by ORG of ORG on DATE , noted , in particular , the following :", "“ CARDINAL . The new NORP Law on religion entered into force on DATE , abrogating and replacing a DATE LANGUAGE law – generally considered very liberal DATE on the same subject . The new law caused some concern , both as regards its content and its implementation . Some of these concerns have been addressed , notably through the judgments of ORG of GPE of DATE , DATE and DATE , and the religious communities’ re - registration exercise at federal level successfully completed by ORG on DATE . However , other concerns remain .", "...", "NORP Moreover , some regional and local departments of ORG have refused to ( re)register certain religious communities , despite their registration at federal level . ORG does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law , preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within ORG . The case of the GPE branch of ORG deserves particular attention in this respect , and should lead to an internal disciplinary inquiry by ORG into the workings of its GPE department . ORG tried to close down this branch of ORG ( despite federal registration ) , for allegedly failing to re - register by the law ’s deadline . ORG ruled in favour of ORG on DATE .", "Therefore , the ORG recommends to the NORP authorities that :", "i. the PERSON on religion be more uniformly applied throughout GPE , ending unjustified regional and local discrimination against certain religious communities and local officials’ preferential treatment of ORG , and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from ORG ;", "ii . the Federal Ministry of Justice become more proactive in resolving disputes between its local / regional officials and religious organisations before disputes are brought before the courts , by taking remedial action within the Ministry in case of corruption and/or incorrect implementation of the PERSON on religion , thus rendering it unnecessary to take such cases to the courts ;", "... ”" ]

[ "11", "9" ]

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[ "The applicant is a NORP national , born in DATE and currently detained in Her FAC , ORG . He is represented before the ORG by Messrs Foot and GPE , solicitors practising in GPE , and Mr GPE", "A.", "", "The applicant lived with his wife DATE . It was alleged that he indecently assaulted his stepdaughter , K ( born in DATE ) , on many occasions during this period , including digital penetration and licking of the vagina , and that he raped her on CARDINAL occasions when she was DATE . DATE after the applicant left the matrimonial home , K made her allegations known to her mother ’s new co - habitee and the applicant was charged with CARDINAL specimen counts of rape , indecent assault and indecency with a child .", "The applicant pleaded not guilty and was tried in ORG before a judge and jury . There was clear medical evidence that someone had penetrated K on a number of occasions , but the applicant denied that it had been him . The defence case was that some other person could have penetrated K during DATE period between the applicant leaving the family home and K first making her complaint . On DATE , the trial judge , in his summing - up to the jury , said ( inter alia ) :", "“ In summing this case up to you , I will set out our respective functions , direct you as to the law , and summarise the evidence that you have heard to the extent that seems necessary and appropriate in this particular case . I direct you as to the law , and you must act upon those directions and apply them faithfully to the facts as you find them .", "The facts in the case are for you and you alone , not me , and those facts must be drawn from the evidence you have seen and heard in this courtroom and from nowhere else . ...", "As I have already said , the responsibility in deciding the facts is entirely yours , and please ignore what I may say about the evidence unless you happen to agree with it . Conversely , if I omit some fact or matter which you consider to be important , please give it as much weight as you consider proper .", "You will not , I know , hold it against this defendant that he came from the dock to give his evidence as opposed to coming through the door of the court as have other witnesses . He has to be seated somewhere , and the dock is the place specially set aside for him in this courtroom .", "But he is a witness in this case , and all witnesses , and I emphasise the word “ all ” , and that includes K , her mother , natural father , stepfather , and the defendant , enter the witness box on a level or even basis . They give their evidence , and that evidence is tested by cross - examination . You see , you hear those witnesses , and no doubt you will already have assessed them , and you will have observed not only what they had to say to you but the way that they said it . ...", "The prosecution bring these charges , the content of the CARDINAL counts on this indictment . It is for the prosecution to prove each of them , and not for the defendant to prove anything , let alone his innocence , and you can not bring in a verdict in this case on any particular count unless and until on the whole of the evidence the prosecution satisfy you and make you sure that guilty is the proper verdict in relation to that count . ...", "The child has been unable to say precisely when certain incidents occurred , and precisely how many . If you are sure that during the period set out in the indictment that [ sic ] the allegation has been proved on CARDINAL occasion , that will suffice . Do you all understand ? But the fact that K variously told her present stepfather , her mother , and later the police and a doctor what had allegedly happened to her can not , as a matter of law , be evidence that it happened or how it happened .", "Now I want to say something about the sexual abuse of children . That has always been regarded as a serious matter by the community whom you represent and , as a consequence , by the courts . The way that the courts , the police , local authorities and the public deal with such offences has changed radically in DATE . The climate has changed from a situation where the victim bottled up what had happened to her all her life , too afraid to let it come out into the open .", "There are all sorts of reasons for that fear , and I will deal with those or some of them in a moment . One only has to remember the print or the painting of the NORP father opening the door and pointing to his young daughter with child in her arms saying : ‘ Never darken my door PERSON , but perhaps that is an extreme example in a much earlier time .", "The allegations in this case began a substantial time ago , DATE . But delay in disclosing these matters by an alleged victim is not uncommon in this type of case . Such offences will typically be committed in the family by the mother ’s then partner or family friend . The alleged abuser will usually be in a position of trust and some power , and the nature of the abuse will often induce a sense of shame and a deterioration in the victim ’s own self esteem and , as here , she may well wish to put it firmly to the back of her mind and just get on with it for the sake of the family and peace and quiet .", "But even DATE , in a more enlightened age , what is involved in making a genuine complaint is not to be underestimated : in having to relive and to recount what had happened , firstly to a parent or stepparent , then to the police , and to a doctor , and then in court in public , even over a video link . She may have feelings of guilt , that she herself was in some way to blame . She may fear the risk of breaking up a family in which the abuse occurred , and perhaps the worst fear of all , that having made full disclosure and having waited for DATE ( if not many years ) for the matter to come to light and then to trial , that nobody would believe her . The complainant of course is not on trial here , but she may very well feel that she is . Please make allowances for that too when you assess her as a witness .", "Indeed , you may have been moved by the evidence that K gave and the somewhat dignified manner in which she gave it . But I am afraid you must put emotion entirely to CARDINAL side , and try this case with a cold , clinical , and an objective eye , for to do otherwise would risk injustice and I am sure not one of you would wish that . ... ”", "The judge next explained the legal elements of each offence on the indictment , and then summarised the evidence in the case . When summarising K ’s testimony he said , in connection with the issues of her delay in reporting the alleged abuse and the possibility that someone other than the applicant might have abused her :", "“ In answer to PERSON , [ K ] said that she was mentally upset at what the defendant was doing to her over a period of DATE , and told her mother ’s boyfriend about what the defendant had been doing DATE after the defendant had left home . She said that she had not told anybody before because she was frightened what the defendant might do , and in any event he might try and contact her and her mother again .", "In DATE , she said that she felt able to tell somebody about it then , and told A ( that is her mother ’s boyfriend ) because she trusted him . She said it was not because something had happened after the defendant had left . No - one else had ever interfered with her in the same way as the defendant had done .", "She said that she once had a boyfriend called F who was now expelled from school for locking a teacher in a room . She said that she last saw her natural father DATE at an interval of DATE , and it was something that she had to do because the court had ordered it . She said that she had not told the woman police officer in her first interview about the defendant putting his penis into her vagina because she did not think it was a nice thing to say , and in any event , she said she was not ready to tell the woman police officer at that time .", "Finally , she said that she did not find it easy to talk about these matters , and only did so because she trusted her mother ’s boyfriend . She believed that he would not recoil from her in disgust and go and tell her mother . She thought that if he did tell her mother , that would upset her , and that she would have thought that it was her fault . She said she felt very uncomfortable about telling the police that the defendant had put his penis and finger into her vagina . ... ”", "Having summarised the evidence of the other witnesses , the judge concluded :", "“ Well , that concludes the evidence in this case . If what the defendant says is true or may be true , then you will acquit him on all counts of this indictment .", "You are going to have to decide who is telling you the truth in this case and who is not . You may ask yourselves , well how do we approach the evidence in the case ?", "Well , may I suggest that first of all you look at the evidence of K entirely on its own and then against the rest of the evidence in the case . Then approach the evidence of the defendant in precisely the same way .", "You will have to ask yourselves what relevance there is , if any , in asking [ K ’s natural father ] about his caution DATE , and in referring to a letter allegedly written by K to a boy named F. Do they , can they ( either of them ) have any relevance or bearing on the allegations that you have to determine ? If they do , or may do , please give them as much weight as you think proper . Or – and it is a matter entirely for DATE have they been introduced into this case as a diversion to deflect you from the real issues that you have to consider , and if you are sure that they have been , then no doubt you will ask yourselves why .", "Now this is an important case . It is important because it is serious . And it is serious from the point of view of the defendant who is on trial . But it is also serious from the point of view of the public , because if it is proved that the defendant has committed these offences or any of them , it is only right that he should be convicted . The question is , has it been proved ? And having said that , never lose sight , of course , that the defendant does not have to prove his innocence ; rather the ORG has to make you sure of his guilt .", "You may ask yourselves where do we begin in our deliberations ? That of course is a matter for you and you alone , not me . It may assist you if I were to highlight some issues which may indicate who is and who is not telling you the truth in this case . If they help you , all well and good , give them as much weight as you think proper , but on the other hand , if they do not , please ignore them entirely .", "Did the defendant say to Police Constable J in GPE before he had been informed as to the reason for the visit : ‘ Oh , she has gone that low , has she?’ If you are satisfied that he said that at that time , what does it mean ?", "On the evidence that you have heard , would K have known about the detail of oral sex and the movement of her mouth up and down an erect penis that felt like a rubber , or was that something that she may have gleaned from either school , her friends , or watching the video ‘ Burlesque’ ?", "Similarly , would K have known about ejaculation over her stomach , describing semen as coming out of a slit at the top of the penis , being lumpy and creamy - white in colour ?", "In what circumstances was the child ’s hymen damaged , such damage being caused by the entry of an erect penis over DATE prior to the onset of the child ’s puberty ?", "What is the significance , if any , of the child asking her mother if you can become pregnant before your periods had begun ?", "Was the position allegedly adopted by the defendant for sexual intercourse with K designed to achieve partial penetration only , so as to preserve her hymen ?", "And finally , why did K not mention in her first interview the fact that the defendant had inserted his finger and penis into her vagina ? Was it because it had never happened , or was it because she was not ready then to mention it at that stage , and was in any event too embarrassed to do so ?", "I know that you will resolve any doubts that you may have in this case in favour of the defendant . ... ”", "The jury retired for CARDINAL , and then convicted the applicant , by a majority verdict of CARDINAL in respect of the rape and indecency charges , and unanimously in respect of the indecent assault . On DATE the judge sentenced the applicant to CARDINAL years’ imprisonment for the offence of rape , and DATE and CARDINAL months’ imprisonment for the offences of indecent assault and indecency respectively , running concurrently with the rape sentence .", "The applicant appealed against both conviction and sentence . ORG , dismissing his appeals , stated ( inter alia ) :", "“ We consider that the judge was entitled to make the observations he did in his summing - up . He was entitled to place allegations of this kind in the context that he did . The observations he made accord entirely with an assessment that any experienced judge , and indeed , we would add , any informed member of the public , would recognise as being well - founded . However , having done so , it would in our clear judgment have been preferable for the learned judge to include some reference to the defence submissions on the issue of delay , particularly when on CARDINAL view it was the only window of opportunity for the penetration to have occurred when the appellant was not living with the child .", "That said , and that criticism having been made , the question for this court remains whether this failure was such as to make the conviction unsafe . We are not so persuaded . Taken as a whole , the summing - up clearly left the issue of the child ’s credibility on which the prosecution case rested for the jury to decide . ... ”", "On DATE ORG refused leave to appeal to ORG ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant ’s husband was murdered . On DATE the applicant was charged with aiding and abetting Mr G , her former lover , to murder her husband . She was released on bail pending trial to her home where she lived with her CARDINAL children , who were DATE at the time ( triplets ) . Neither the police nor the prosecution objected . The trial judge permitted the applicant to remain on bail throughout the trial : no objection was formulated by the prosecution . She continued to reside at home with her children .", "On DATE the jury unanimously convicted PERSON of murder but failed to agree on a verdict on the applicant . The trial judge granted her bail pending the prosecution ’s decision whether to prosecute her further . The prosecution did not object to bail and she remained at home with her children . Subsequently , the prosecution elected to prosecute the applicant again but did not object to her remaining on bail .", "The applicant ’s second trial began on DATE . The second trial judge also allowed bail , no objection being made by the prosecution . On DATE she was , by a majority verdict of the jury , convicted of murder . The trial judge sentenced her to life imprisonment and committed her to custody . The period of imprisonment that the applicant had to serve before she could have been considered for release was set at DATE . Leave to appeal was rejected by a single judge of ORG of GPE .", "On DATE the full ORG allowed her appeal . It found that the second trial judge had misdirected the jury as to the state of mind necessary to make the applicant an accessory to murder . While the prosecution case had been that the applicant had facilitated the killing of her husband by Mr G knowing that he intended to kill and intending that Mr G should do so , that was not the matter put by the second trial judge to the jury : that trial judge had directed the jury as follows :", "“ If you ’re satisfied beyond reasonable doubt that [ the applicant ] participated in a joint venture with [ Mr G ] , realising that in the course of that venture [ Mr G ] might use force with intent to kill or to cause really serious injury to her husband and Mr G did so , then she would be guilty of murder . ”", "ORG found that that ruling effectively opened to the jury the possibility of convicting the applicant for murder on the basis of matters not part of the prosecution case and not canvassed during trial and , notably , on the basis that the applicant had engineered a meeting between her husband and Mr G without any firm intention that he be killed . ORG quashed her conviction and , having heard further submissions , ordered that she be returned upon a fresh indictment for murder before ORG .", "The applicant applied for bail and the prosecution did not object . The summary form of order of ORG of DATE indicates that her application was refused and that she was to remain in detention until retrial . In her application form and subsequent observations the applicant stated that there were CARDINAL grounds for that refusal : she had been convicted by a jury of murder on DATE and any retrial would take place soon . In correspondence , she submits that the reasoning of the appeal court was not committed to writing , that her representative ’s contemporaneous note was mislaid in the Taxing Master ’s office but that the GPE FAC newspaper had accurately reported the reasons for refusing her bail request . The relevant extract reads as follows :", "“ Refusing the application the Lord Chief Justice said he had taken her circumstances into consideration . But he said that the situation was now different in that she had been found guilty by the majority verdict of the jury . ”", "In their written observations , the ORG submitted a copy of the contemporaneous notes of the senior law clerk present at the hearing . The final paragraph of her notes reads as follows :", "“ CS [ Counsel for the prosecution ] : no opposition to bail DATE did attend .", "ORG [ Lord Chief Justice ] : on bail before trial , course of trial , honoured all condits [ conditions ] prosecution does n’t oppose . Material difference here DATE found guilty by jury quashing material irregularity on charge . Does n’t sound directly an issue on bail . Be a prompt retrial . Refused .", "In her application to ORG for leave to appeal against the refusal of bail to ORG , the applicant argued , inter alia , that the reasons for refusing bail on DATE were not relevant , sufficient or lawful within the meaning of LAW . On DATE ORG refused leave .", "NORP The applicant remained in custody until DATE when she was granted bail by the third trial judge , during which period of time her children were cared for by her elderly and infirm parents .", "She remained on bail throughout the third trial . On DATE she was acquitted and released .", "The grant of bail in GPE is governed by common law rather than statute . There is a discretion to grant bail in any case but the court is obliged to pay regard to certain considerations before doing so and may not do so if satisfied of other matters . The grounds on which bail may be refused include : where there are good reasons for believing that the defendant will not turn up for his or her trial ; where there is a serious likelihood that the defendant will interfere with witnesses or evidence or otherwise obstruct the course of justice ; and when the defendant is likely to commit further offences if set at liberty . In deciding whether there are good reasons for believing that the defendant will not turn up for his or her trial , the relevant factors to be taken into account by the court include : the nature and seriousness of the alleged offence ; the probable method of dealing with the defendant in the event of a conviction ; and the strength of the evidence against the defendant . The attitude of the prosecution is one factor to be taken into account by the court ." ]

[ "5" ]

[ "5-3" ]

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[ "The first applicant , PERSON , is a NORP national and lives in GPE , situated in LOC . CARDINAL other applicants , whose names appear in the annex , are members of the school council of the “ GPE ORG ” .", "On DATE ORG ( a territorial public law entity , hereinafter “ the municipality ” ) allowed a public school that was mostly attended by members of a NORP minority to be named after a famous historical figure and named it “ GPE LOC Emilii ORG ” .", "Subsequently the Government ’s Representative in the GPE Region brought an action against the municipality for the annulment of the decision , maintaining that the NORP spelling of the name as “ Emilii GPE ” contravened the Law on ORG and grammar rules of NORP language , which is the only official language in the country . For official names the NORP spelling “ Emilijos Pliaterytės ” should have been used instead .", "On DATE ORG allowed the ORG ’s Representative ’s action . Even if the spelling “ Emilii PERSON was preferred by the NORP minorities living in the area , this did not remove the municipality ’s obligation to comply with the legal requirements for the official naming of the public school .", "On DATE , by a final decision , ORG dismissed the municipality ’s appeal . The court concluded that in a case where the name of a historical figure was being used in the official name of a school ( organisation / company ) , the rules of NORP grammar applied .", "PERSON , who was a staff member of the municipality , participated in the court hearing as a representative of this public institution before the courts .", "As for the remaining CARDINAL applicants , they have not brought any claims at the domestic level . Besides , no application signed by these applicants in their own name has been lodged with the ORG , nor has any authority empowering PERSON to represent them before the ORG been submitted . Their names were notified to the ORG in a letter of CARDINAL DATE .", "LAW ) provides that persons who consider that their rights or interests protected by law have been infringed have a right to lodge a complaint with the administrative court .", "Under LAW , parties to the administrative proceedings shall also be the interested third parties , that is , those persons whose rights and obligations may be affected by a court ’s decision in the case .", "According to Articles DATE and CARDINAL of the LAP , the parties to the proceedings ( including the interested third parties ) have a right , inter alia , to submit their observations , to oppose to the observations of the other parties , to submit requests , to present their statements at the hearing without a timelimit as to the length of their speeches ." ]

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[ "The applicant was born in DATE and is currently serving a prison sentence .", "On TIME the applicant and CARDINAL of his acquaintances , PERSON and PERSON , had a party in PERSON ’s flat . They drank large quantities of alcohol . At some point a fight broke out among them , which resulted in PERSON being stabbed and suffocated .", "At QUANTITY the police found the body of H. in the flat . They also found the applicant drunk and asleep in the flat . The police decided to arrest the applicant on suspicion of having killed H.", "At the police station the applicant was given an explanation of the provisions of LAW and then questioned on account of the incident . The applicant stated that during the party he was repeatedly humiliated by PERSON At certain point the applicant lost his patience and started to beat PERSON to the extent that PERSON lost his consciousness . However , PERSON considered that it had not been enough for PERSON and killed him . After that PERSON left the flat and the applicant fell asleep . The questioning session was carried out by police officers without a lawyer being present .", "At TIME on DATE an investigator from the prosecutor ’s office prepared an arrest report in respect of the applicant . The applicant ’s defence rights were explained to him by the investigator , including the right to remain silent and the right to have a lawyer . The applicant signed the relevant explanatory note stating that he did not need the assistance of a lawyer . The investigator accepted the waiver of legal assistance by issuing a separate ruling . The ruling provided that the applicant had refused legal assistance as he did not need it and entirely trusted the investigative authorities .", "According to the applicant , that waiver was given by him as a result of psychological pressure exercised by the police officers .", "TIME the applicant was questioned by the investigator . The applicant stated that it had been PERSON who had killed H.", "At TIME on DATE the investigator arrested PERSON on suspicion of having killed H. During questioning , PERSON explained that he had gone out of the flat to buy some more alcohol and , while he was away , the applicant had killed H.", "According to the applicant , on DATE he was beaten up by police officers for the first time with the purpose of making him confess to the murder of H. The applicant felt ill and therefore demanded a medical examination .", "On DATE a forensic medical expert examined the applicant . According to the report issued by that expert , the applicant had sustained an abrasion to his chest , which was considered to be a light injury that could have been inflicted DATE before the examination ; and during the examination the applicant had stated that he had had a fight with PERSON and that after his arrest he had not been beaten by anyone .", "Again on DATE ORG ( the “ ORG ” ) ordered the applicant ’s pre - trial detention for DATE .", "On DATE the applicant confessed to the murder . According to the applicant , he wrote the confession after he had been beaten up by a police officer again .", "On DATE the investigator carried out a confrontation between the applicant and PERSON , in the course of which the applicant admitted his guilt . Following this investigatory action PERSON was released .", "The investigator further questioned PERSON ’s acquaintances , the seller of the alcohol , and other individuals who might have known something about the events in question . Expert examinations were carried out . The knife did not have any fingerprints on it .", "On DATE and DATE the applicant was questioned as an accused . He stated that he did not need a lawyer at that time and referred to his statements given during the confrontation with L.", "On DATE the investigation was completed and the case was sent to ORG for trial .", "On DATE the applicant complained to the prosecutor ’s office on account of ill - treatment by the police officers . In his complaint the applicant alleged that immediately after his arrest he had been beaten up by the police officers , who had also threatened to kill him . Allegedly , they had further forced him to confess to the murder .", "On DATE , at the request of the applicant , his brother was admitted to the proceedings as defence counsel .", "When examined by ORG , the applicant denied any involvement in the crime . He stated that he had been subjected to ill - treatment and that his right to a lawyer had been breached . According to the applicant , he also orally requested that PERSON be examined by the court . The request was refused .", "During the trial ORG examined the evidence in the file . It did not question L. but read out his statements given during the pre - trial investigation .", "On DATE ORG found the applicant guilty of having murdered PERSON and sentenced him to CARDINAL years’ imprisonment . In its findings ORG relied on the applicant ’s confession and the other self - incriminating statements given by him during the investigation . It also referred to L. ’s statements given during the investigation , including those given at the confrontation with the applicant , to the forensic medical examination establishing the cause of PERSON ’s death , and to other indirect evidence .", "The applicant appealed , claiming that ORG had failed to assess the evidence properly and had misinterpreted the facts . In particular , the applicant asserted that ORG had failed to pay due attention to the fact that his submissions during the trial had contradicted PERSON ’s statements and that it had not considered whether PERSON might have committed the murder . The applicant further contended that his self - incriminating statements had been obtained through ill - treatment and in breach of his right to legal assistance . He asserted that his ill - treatment had been evidenced by the forensic medical report of DATE .", "On DATE ORG of GPE ( “ the Court of Appeal ” ) considered the applicant ’s appeal and dismissed it as unsubstantiated . According to the applicant , during the appeal proceedings he was assisted , in addition to the assistance provided by his brother , by a legal - aid lawyer .", "In its decision ORG noted that the applicant ’s guilt had been well established by ORG and his contention of having been ill - treated by the police was unfounded . In particular , the forensic medical report of DATE suggested that the abrasion on his chest had been sustained well before his arrest . As to the absence of legal assistance during the investigation , the court noted that the case file contained waivers of the right to legal assistance signed by the applicant .", "The applicant appealed on points of law , claiming in particular that : he had been beaten up by police officers to make him confess to the murder ; his defence rights had not been assured during the investigation ; the lower courts had failed to question all the witnesses and had not examined all the material and documentary evidence ; and the courts had not verified whether PERSON might have committed the murder .", "On DATE the prosecutor ’s office refused to open an investigation in respect of the alleged ill - treatment of the applicant .", "On DATE ORG considered the applicant ’s appeal on points of law and dismissed it as unsubstantiated . It found that the trial court had legitimately convicted the applicant on the basis of his self - incriminating statements , which had been further corroborated by PERSON ’s statements and other indirect evidence . ORG did not find any procedural violations which could give grounds for quashing the decisions of the lower courts .", "On DATE the applicant asked ORG for an extraordinary review of his case .", "On DATE the request was refused .", "Following his arrest on DATE , the applicant was placed in ORG ( “ the ORG ” ) , where he was allegedly held with other detainees suffering from tuberculosis .", "On DATE the applicant was diagnosed with infiltrative tuberculosis of the upper part of the right lung .", "On DATE the applicant was transferred to the Simferopol Pre - Trial Detention Centre ( “ the GPE ” ) .", "On DATE the applicant was diagnosed with tuberculosis of the right lung and registered as a patient at the tuberculosis dispensary .", "On DATE the doctor recommended that the applicant be provided with anti - tuberculosis treatment at a specialised hospital . The applicant stayed in the GPE , where he was examined and treated at the medical unit .", "On DATE the applicant was moved to PERSON no . CARDINAL Prison ( “ FAC ” ) , where he was regularly X - rayed and provided with the following courses of medical treatment :", "- from DATE to CARDINAL DATE ( treatment with isoniazid ) ;", "- from DATE to DATE ( treatment with isoniazid ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid ) ;", "- from DATE to DATE ( treatment with isoniazid and pyrazinamide ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid and pyrazinamide ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid and pyrazinamide ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) ;", "- from DATE to DATE ( treatment with isoniazid and ethambutol ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) ;", "- from DATE to DATE ( treatment with isoniazid and ethambutol ) ;", "- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) ; and", "- from DATE to CARDINAL DATE ( treatment with isoniazid and ethambutol ) .", "According to the ORG , the applicant was X - rayed on CARDINAL DATE and his chest did not display any signs of disease .", "The relevant provisions of the LAW read as follows :", "“ Everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose the defender of his or her rights .", "In GPE , advocacy acts to ensure the right to mount a defence against an accusation , and to provide legal assistance during the determination of cases by courts and other ORG bodies . ”", "“ A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself , members of his or her family or close relatives in the degree determined by law .", "A suspect , an accused , or a defendant shall have the right to mount a defence .", "A convicted person shall enjoy all human and ORG rights , except for the restrictions determined by law and established in court judgments . ”" ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-c", "6-3-d" ]

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[ "The applicant is a corporate body registered in GPE and GPE . It is represented by before ORG by PERSON White solicitors of GPE .", "The applicant is the freehold owner of a purpose - built block of flats , which it constructed in DATE in GPE . CARDINAL of the flats are regulated by LAW ( see below ) .", "The current system of rent control in GPE dates back to DATE . Early provisions intended to protect tenants from high rents had the effect of reducing the amount of accommodation available for private letting , with the result that a series of Rent Acts , culminating in LAW DATE ( “ the DATE LAW ) were passed in an attempt to revitalise the market by way of a system of “ fair rents ” calculated in accordance with statutory criteria . In default of agreement of a “ fair rent ” by the parties to a regulated tenancy agreement , a rent assessment is carried out , in the first instance , by rent officers , who do not need to give reasons for their decisions . An appeal lies first to rent assessment committees , who give written reasons upon request , and thereafter on a point of law to ORG . Once a “ fair rent ” has been assessed by a rent officer or rent assessment committee , it will be registered and constitutes the maximum recoverable rent for the regulated tenancy concerned . No application for registration of a different rent may be made for DATE .", "However , the absence of an open market in private letting following the DATE A ct , combined with a period of high inflation , had the effect that “ fair rents ” as set by rent officers and rent assessment committees lost pace with inflation , to the disadvantage of landlords . LAW DATE ( “ the DATE LAW ) sought to stimulate the market by creating assured and assured - shorthold tenancies , at rents to be negotiated between individual landlords and their tenants . Regulated tenancies under LAW continued to exist , but no new regulated tenancies were to come into existence . The number of such tenancies steady fell from CARDINAL per cent of private tenancies in GPE in DATE to approximately MONEY in CARDINAL/CARDINAL .", "The creation of an open market provided rent officers and rent assessment committees with a new comparator on which to rely when calculating “ fair rents ” under LAW . However , regional variations arose in the weight given to open market rents when calculating “ fair rents ” , with the result that in some areas , including GPE , the gap between registered “ fair rents ” and open market rents increased to the point where the former were at a level of CARDINAL the latter . This led landlords in those areas to challenge the “ fair rent ” assessments concerned and , in DATE ( in the case of ORG v. ORG [ DATE ] CARDINAL HLR CARDINAL ) and again in DATE ( in the case of PERSON v. ORG [ DATE ] QB CARDINAL ) , ORG held that market rents should be awarded greater weight when calculating “ fair rent ” in those areas . A consequence of these decisions was that tenants whose rents had previously been registered at levels well below the open market level suffered very sharp and unexpected rent increases .", "The Government issued a consultation paper entitled “ Limiting Fair Rent Increases ” in DATE setting out various options as to how to address this new problem . Following public consultation in which a number of ORG organisations , as well as individual landlords , made representations , the Government adopted the option most favourable to tenants , namely the making of an order ( ORG Order DATE ( “ the Order ” ) ) applying a maximum index - linked limit to most increases in “ fair rents ” registered under LAW ( the exception applying in cases where rental value had increased significantly due to works carried out by the landlord ) . The effect of the LAW was to cap increases in “ fair rents ” at a level DATE MONEY above inflation .", "The Order was made under LAW DATE ( “ the DATE LAW ) , sub - section ( CARDINAL ) of which states :", "“ The Secretary of ORG may by order provide for-", "( a ) restricting or preventing increases of rent for dwellings which would otherwise take place , or", "( b ) restricting the amount of rent which would otherwise be payable on new lettings of dwellings ;", "and may so provide either generally or in relation to any specified description of dwelling . ”", "The applicant sought judicial review of the Order on grounds , inter alia , that it was ultra vires as ( i ) being beyond the purposes for which the enabling power under LAW had been intended ; ( ii ) having failed to take account of all relevant considerations ; and ( iii ) being unreasonable and disproportionate . ORG granted judicial review on the first ground only and thus declared the Order ultra vires ( NORP v. Secretary of ORG and the Regions ex parte ORG [ DATE ] CARDINAL WLR CARDINAL ) . The Secretary of ORG ’s appeal was allowed by ORG , which found the Order to have been made in proper exercise of the powers conferred by LAW ( [ DATE ] CARDINAL WLR CARDINAL ) .", "Lord PERSON of NORP , delivering the leading judgment in ORG , stated :", "“ I do not find , studying the language of LAW , that it is in any way ambiguous or obscure , or such as to lead to absurdity if given its full apparent effect . But Mr PERSON [ counsel for the applicant ] is correct in his submission that the language is , on its face , very broad . It applies to lettings of dwellings of every kind , no matter who is the landlord or what the nature of the tenancy ... ; it places no limit on the restrictions which the minister may impose on rental payments ; it provides only for annulment on negative resolution ; and it gives no indication of the circumstances in which ORG contemplated that the order - making power should be exercisable . One learns only , from the sidenote and the reference in section PERSON ) , that this is a reserve power , which indicates that it is not a power to be exercised very readily or routinely . ...", "I have no doubt that clear and unambiguous words should be used if the citizen is to be deprived of his property without compensation and any reasonable doubt should be resolved in his favour . But a power to restrict or prevent increases of rent which would otherwise take place or restrict the amount of rent which would otherwise be payable on a new letting must of necessity deprive the landlord of rent which he would , but for the minister ’s order , receive . The words used are capable of no other construction . ...", "Any measure restricting rents , or prices or charges of any kind , must have the effect of depriving the recipient of what he would otherwise receive , but ORG has respected the need for national authorities to strike a balance between the rights of individuals and the general interest of the community . This would appear to be such an instance . ...", "Landlords did indeed have strongly arguable grounds for resisting the government ’s proposal , but it can not be said that their interests were ignored . In the annex to the consultation paper the object of the proposed measure was said to be “ to slow down the rate at which fair rents are increasing for tenants but nevertheless to ensure that there is no disproportionate impact on landlords ” . Under the heading “ Issues for equity or fairness ” , the question was posed “ is it fair to landlords to change the fair rent system which was left intact when LAW DATE was introduced and which they would not have expected to be changed subsequently ” . Having posed the question it can not be thought that ministers ignored the landlords’ answer , disappointed though landlords may be that it was not given greater weight .", "Some of the ministerial statements on this subject could have been more felicitously expressed . But the problem of sharp and unexpected rent increases had indeed arisen despite the fair rent regime , since that regime had been in force throughout and the increases would not have occurred had it been faithfully implemented in all areas from the beginning . Ministers did not suggest that ORG decisions which had brought the reluctant rent officers and rent assessment committees into line had not given true effect to the fair rent legislation , nor that the general law should be changed . But it was the case that what ministers considered a serious social problem had arisen , even if it should not have arisen , and their observations are readily understandable in that context . I see nothing to suggest that the ministers had misconceived the source of the problem . ...", "It is an enduring and intractable problem of social policy that those who need relief can not always be helped without giving relief to those that do not need it . Housing benefit is means - tested , and the allocation of public resources is a matter for ministers , not courts . The hardship which the order imposed on landlords was a very relevant consideration , but it was for ministers to judge where the balance between the competing interests of landlords and tenants should be struck . It was not unreasonable to provide that the maximum recoverable rents should be the rents registered . The timing and scope of the Order were matters on which the ministers had to form a judgment , and their judgment can not be stigmatised as perverse . There was no breach of LAW : ORG has recognised the need for a wide measure of discretion in the implementation of policy in this field , as shown by GPE v. GPE ( DATE ) ... . Any actions the ministers took , or any failure by the ministers to take action , were bound to be bitterly resented by those who were disadvantaged as a result . That does not mean that the action which the ministers did take in making the LAW was unreasonable , unfair or disproportionate , disadvantageous to landlords though it certainly was . ”" ]

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[ "The facts of the case and the relevant legal framework may be summarised as follows .", "On DATE a coalition of armed forces ( ORG or “ LAW ) , led by GPE with a large force from GPE and smaller contingents from GPE and GPE , commenced the invasion of GPE .", "Major combat operations in GPE ceased at DATE . GPE and GPE thereafter became occupying powers within the meaning of section III of LAW on LAW ( DATE ) and LAW ) relative to ORG in Time of War ( GPE , DATE ) ( “ the LAW ” ) . LAW placed an obligation on GPE , within the area it occupied , to protect the civilian population against all acts of violence and LAW , DATE and CARDINAL gave GPE the power , inter alia , to intern NORP civilians where necessary for imperative reasons of security .", "ORG ) was created by the government of GPE as a “ caretaker administration ” until an NORP government could be established . It had power , inter alia , to issue legislation . On DATE the GPE Secretary for Defence , PERSON , issued a memorandum formally appointing Ambassador PERSON as Administrator of the CPA with responsibility for the temporary governance of GPE . The CPA administration was divided into regional areas . CPA LOC remained under GPE responsibility and control , with a GPE regional coordinator . It covered DATE GPE ’s CARDINAL provinces , each having a governorate coordinator . NORP troops were deployed in the same area . GPE was represented at CPA headquarters through the office of GPE . Although GPE and his office sought to influence CPA policy and decisions , he had no formal decision - making power within the CPA . All the CPA ’s administrative and legislative decisions were taken by Ambassador PERSON .", "CPA Regulation No . CARDINAL gave the CPA authority to issue binding regulations and orders and memoranda in relation to the interpretation and application of any regulation and order . CPA Order No . CARDINAL , dated DATE , modified the Iraqi Penal Code to remove certain offences and , in section CARDINAL(CARDINAL ) , suspended the operation of the death penalty in GPE . CPA Memorandum No . CARDINAL of DATE was entitled “ Criminal Procedures ” and contained , inter alia , the following provisions :", "“ ( CARDINAL ) Consistent with LAW , the following standards will apply to all persons who are detained by ORG solely in relation to allegations of criminal acts and who are not security internees ( hereinafter ‘ criminal detainees’ ) :", "( a ) Upon the initial induction into a ORG detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney .", "( b ) A criminal detainee suspected of a felony offence may consult an attorney TIME after induction into a ORG detention centre .", "( c ) A criminal detainee shall be promptly informed , in writing , in a language which they understand , of the particulars of the charges preferred against them .", "( d ) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance DATE from the date of induction into a ORG detention centre .", "( e ) Access to detainees shall be granted to official delegates of ORG ( ICRC ) . ...", "( CARDINAL ) Where any criminal detainee held by ORG is subsequently transferred to an NORP court , a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process , but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed . ”", "“ ( CARDINAL ) Consistent with LAW , the following standards will apply to all persons who are detained by ORG where necessary for imperative reasons of security ( hereinafter ‘ security internees’ ) :", "( a ) In accordance with LAW shall , with the least possible delay , afford persons held as security internees the right of appeal against the decision to intern them .", "( b ) The decision to intern a person shall be reviewed not DATE from the date of induction into an internment facility by a competent body established for the purpose by ORG .", "( c ) The operation , condition and standards of any internment facility established by ORG shall be in accordance with section IV of the Fourth Geneva Convention .", "( d ) Access to internees shall be granted to official delegates of ORG ( ICRC ) . ...", "( e ) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning his or her status , or following the commission of a crime while in internment , the period that person has spent in internment will not count with respect to the period set out in section ORG ) herein .", "( f ) Where any security internee held by ORG is subsequently transferred to an NORP court , a failure to comply with these proceedings shall not constitute grounds for any legal remedy , but may be considered in mitigation in sentence . ”", "NORP The invasion had gone ahead after the abandonment of the efforts by the coalition GPE to obtain the backing of ORG ( ORG ) resolution ( ORG ) . DATE was adopted by the ORG on DATE . Acting under LAW , the ORG called on the coalition of occupying GPE , in conformity with LAW and other relevant international law , to promote the welfare of the NORP people and work towards the restoration of conditions of stability and security . The ORG further requested the Secretary - General to appoint a Special Representative in GPE : he was to report regularly to the UNSC on his activities under the ORG , which were to coordinate the activities of ORG and other international agencies engaged in post - conflict processes and humanitarian assistance in a number of specified ways , including the protection of human rights .", "NORP In DATE ORG was established , which the CPA was to consult on all matters concerning the temporary governance of GPE .", "UNSCR CARDINAL , adopted on DATE , underscored the temporary nature of the CPA ’s role ; determined that ORG and its ministers were the principal bodies of the NORP interim administration which embodied the sovereignty of ORG during the transitional period until an internationally recognised , representative government was established and assumed the responsibilities of the CPA ; called upon the CPA to return governing responsibilities and authorities to the people of GPE as soon as practicable ; and invited ORG to produce a timetable and programme for the drafting of a new constitution for GPE and for the holding of democratic elections under that constitution . It authorised the ORG to take all necessary measures to contribute to the maintenance of security and stability in GPE and provided that the requirements and mission of the ORG would be reviewed within DATE of the date of the ORG and that in any case the mandate of the ORG was to expire upon the completion of the political process to which the resolution had previously referred .", "Pursuant to UNSCR DATE ( see paragraph CARDINAL above ) , provision was made by CPA Order No . CARDINAL of DATE for the setting up of ORG to try members of the previous NORP regime alleged to be responsible for crimes and atrocities . In the Order , the CPA delegated to the interim government the following authority :", "“ ORG is hereby authorised to establish an NORP Special Tribunal ( the ‘ Tribunal’ [ subsequently known as the ‘ NORP High Tribunal’ or ‘ IHT’ ] ) to try NORP nationals or residents of GPE accused of genocide , crimes against humanity , war crimes or violations of certain NORP laws , by promulgating a statute , the proposed provisions of which have been discussed extensively between ORG and the CPA ... ”", "On DATE ORG promulgated ORG for the State of Iraq for the Transitional Period ( known as the “ LAW ” ) . This provided a temporary legal framework for the administration of GPE for the transitional period which was due to commence by DATE with the establishment of an interim NORP government ( “ the interim government ” ) and the dissolution of the CPA . LAW made provision for the laws in force in GPE at the time of that change to continue in effect unless rescinded or amended by the interim government , and specifically for the laws , regulations , orders and directives issued by the CPA to remain in force until rescinded or amended by legislation duly enacted and having the force of law .", "Further provision for the new regime was made in UNSCR CARDINAL , adopted on DATE . The ORG endorsed “ the formation of a sovereign interim government of GPE ... which will assume full responsibility and authority by DATE for governing GPE ” ( LAW and welcomed “ that , also by DATE , the occupation will end and [ the CPA ] will cease to exist , and that GPE will reassert its full sovereignty ” ( LAW . It noted that the presence of the ORG was at the request of the incoming interim government ( as set out in correspondence between the NORP Prime Minister and the GPE Secretary of ORG annexed to the resolution ) and reaffirmed the authorisation for the ORG to remain in GPE , with authority to take all necessary measures to contribute to the maintenance of security and stability there . Provision was again made for the mandate of the ORG to be reviewed within DATE and to expire upon completion of the political process previously referred to .", "A revised version of CPA Memorandum No . CARDINAL was issued on DATE ( “ CPA Memorandum No . CARDINAL ( Revised ) ” ) which amended the law and procedure in relation to detention . It provided as follows :", "“ ( CARDINAL ) This Memorandum implements CPA Order No . CARDINAL by establishing procedures for applying criminal law in GPE , recognising that effective administration of justice must consider :", "( a ) the continuing involvement of ORG ( ORG ) in providing critical support to some aspects of the administration of justice ;", "( b ) the need to transition from this support ;", "( c ) the need to modify aspects of NORP law that violate fundamental standards of human rights ;", "( d ) the ongoing process of security internee management in accordance with the relevant and appropriate standards set out in LAW which shall be applied by the ORG as a matter of policy in accordance with its mandate .", "... ”", "“ ( CARDINAL ) ORG national contingent of the ORG shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees ( hereinafter ‘ criminal GPE ) who shall be handed over to NORP authorities as soon as reasonably practicable . A national contingent of the ORG may retain criminal detainees in facilities that it maintains at the request of the appropriate NORP authorities based on security or capacity considerations . Where such criminal detainees are retained in the detention facilities of a national contingent of the ORG the following standards will apply :", "( a ) Upon the initial induction into the detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney by the authority serving an arrest warrant .", "( b ) A criminal detainee suspected of a felony offence may consult an attorney TIME after induction into the detention centre .", "( c ) A criminal detainee shall be promptly informed , in writing , in a language which they understand , of the particulars of the charges preferred against them by the authority serving an arrest warrant .", "( d ) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance DATE from the date of induction into the detention centre .", "( e ) Access to detainees shall be granted to the NORP Prisons and Detainee Ombudsman ( hereinafter ‘ the Ombudsman’ ) . ...", "( f ) Access to detainees shall be granted to official delegates of ORG ( ICRC ) . ...", "( CARDINAL ) Where any criminal detainee held by a national contingent of the ORG is subsequently transferred to an NORP court , a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process , but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed . ”", "“ ( CARDINAL ) Any person who is detained by a national contingent of the ORG for imperative reasons of security in accordance with the mandate set out in UNSCR CARDINAL ( hereinafter ‘ security internees’ ) shall , if he is held for a period TIME , be entitled to have a review of the decision to intern him .", "( CARDINAL ) The review must take place with the least possible delay and in any case must be held DATE after the date of induction into an internment facility .", "( CARDINAL ) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not DATE from the date of induction into an internment facility .", "( CARDINAL ) The operation , condition and standards of any internment facility established by the ORG shall be in accordance with section IV of the Fourth Geneva Convention .", "( CARDINAL ) ORG internees who are placed in internment after DATE , must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the NORP criminal jurisdiction not DATE from the date of induction into an ORG internment facility . Any person under DATE interned at any time shall in all cases be released not DATE after the initial date of internment .", "...", "( CARDINAL ) If a person is subsequently determined to be a criminal detainee following a review of his or her status , or following the commission of a crime while in internment , the period that person has spent in internment will not count with respect to the period set out in section CARDINAL(CARDINAL ) herein ... ”", "CPA Order No . CARDINAL ( Revised ) , dated DATE , dealt with the status of ORG personnel in GPE . LAW established the immunity from NORP legal process of ORG personnel , as follows :", "“ ( CARDINAL ) Unless provided otherwise herein , the ORG , the CPA , ORG , their Personnel , property , funds and assets , and all ORG shall be immune from NORP legal process .", "( CARDINAL ) All ORG , CPA and ORG , and ORG shall respect the NORP laws relevant to those Personnel and Consultants in GPE including the Regulations , Orders , Memoranda and Public Notices issued by the Administrator of the CPA .", "( CARDINAL ) All ORG , CPA and ORG , and ORG shall be subject to the exclusive jurisdiction of their ORG . They shall be immune from any form of arrest or detention other than by persons acting on behalf of their ORG , except that nothing in this provision shall prohibit ORG from preventing acts of serious misconduct by the above - mentioned ORG , or otherwise temporarily detaining any such Personnel or Consultants who pose a risk of injury to themselves or others , pending expeditious turnover to the appropriate authorities of ORG . In all such circumstances , the appropriate senior representative of the detained person ’s ORG in GPE shall be notified immediately .", "( CARDINAL ) GPE of MNF Personnel shall have the right to exercise within GPE any criminal and disciplinary jurisdiction conferred on them by the law of that ORG over all persons subject to the military law of that ORG .", "... ”", "Section CARDINAL(CARDINAL ) of the Order provided for the inviolability of ORG facilities , as follows :", "“ The ORG may use without cost such areas for headquarters , camps or other LOC as may be necessary for the conduct of the operational and administrative activities of the ORG . All LOC currently used by the ORG shall continue to be used by it without hindrance for the duration of this Order , unless other mutually agreed arrangements are entered into between the ORG and the ORG . While any areas on which such headquarters , camps or other LOC are located remain NORP territory , they shall be inviolable and subject to the exclusive control and authority of the ORG , including with respect to entry and exit of all personnel . The ORG shall be guaranteed unimpeded access to such MNF premises . Where ORG are co - located with military personnel of GPE , permanent , direct and immediate access for the ORG to those premises shall be guaranteed . ”", "On DATE the occupation came to an end when full authority was transferred from the CPA to the interim government and the CPA ceased to exist . Subsequently the ORG , including the NORP forces forming part of it , remained in GPE pursuant to requests by the NORP government and authorisations from the UNSC . In accordance with section CARDINAL of LAW ( see paragraph CARDINAL above ) , the CPA Memorandum and Order set out above remained in force .", "In DATE ORG reintroduced the death penalty to GPE in respect of certain violent crimes , including murder and certain war crimes .", "On DATE ORG established ORG ( ORG ) . The ORG was given jurisdiction over a list of offences , including war crimes , committed in GPE or elsewhere during the period QUANTITY DATE to CARDINAL DATE . Article CARDINAL of its Statute provided for a number of fair trial guarantees for accused persons . Article CARDINAL provided that the ORG should impose the penalties prescribed by LAW .", "On DATE a memorandum of understanding ( ORG ) regarding criminal suspects was entered into between the GPE contingent of the ORG and ORG and of ORG ( collectively referred to as “ the Participants ” ) . The preamble to the ORG recited the authority of the GPE contingent of the ORG , “ in accordance with the mandate conferred by UNSCR CARDINAL ” , to intern persons for imperative reasons of security , and the power of national contingents of the ORG , “ in accordance with CPA Memorandum No . CARDINAL ( Revised ) ” , to apprehend persons who were suspected of committing criminal acts . It also stated that “ [ w]hereas GPE is developing its own custodial capacity with the aim of being able to confine all criminal suspects in its own facilities , it may , in the meantime , request [ the GPE contingent of the ORG ] to confine persons who are suspected of having committed criminal acts in safe and secure detention facilities , subject to security and capacity considerations ” . The substantive provisions of the ORG included the following :", "“ This Memorandum of Understanding ( MOU ) sets out the authorities and responsibilities in relation to criminal suspects . For the purpose of this ORG , ‘ criminal PERSON are : ...", "( c ) individuals who are suspected of having committed criminal acts who are held at the request of the NORP authorities . ”", "“ ( CARDINAL ) The interim NORP government ( and any successor ) has legal authority over all criminal suspects who have been ordered to stand trial and who are waiting trial in the physical custody of [ the GPE contingent of the ORG ] in accordance with the terms of this Memorandum of Understanding ( ORG ) .", "( CARDINAL ) The [ GPE contingent of the ORG ] has a discretion whether to accept any particular criminal suspect into its physical custody and whether to continue to provide custody for a suspect who is in its physical custody at the time this ORG comes into operation or who , at any time in the future , comes into its custody . ... ”", "“ ( CARDINAL ) In relation to any criminal suspect being held in the physical custody of the [ GPE contingent of the ORG ] , ORG will :", "( a ) provide [ the GPE contingent of the ORG ] with a written request for his delivery up to attend a court appearance or for any other purpose connected with the criminal process and will give as much advance notice of the proposed date when the presence of the suspect is required as is practicable ;", "...", "( d ) ensure that any criminal proceedings commenced against a criminal suspect progress without undue delay .", "( CARDINAL ) In relation to any criminal suspect being held in the physical custody of [ the GPE contingent of the ORG ] , [ the GPE contingent of the ORG ] :", "( a ) will provide humane treatment and will not subject any criminal suspect to torture or to cruel , inhuman or degrading treatment or punishment ;", "...", "( c ) will take appropriate steps to ensure that the conditions of custody meet the standards set out in CPA Memoranda Nos . CARDINAL and CARDINAL ;", "...", "( CARDINAL ) In relation to any criminal suspect apprehended by [ the GPE contingent of the ORG ] and handed over to the NORP authorities as soon as reasonably practicable , in accordance with section CARDINAL of the CPA Memorandum No . CARDINAL ( Revised ) , ORG and ORG , as the case may be :", "( a ) will provide humane treatment and will not subject any criminal suspect to torture or to cruel , inhuman or degrading treatment or punishment ; and", "( b ) will hold the criminal suspect in accordance with NORP law .", "( CARDINAL ) In relation to any criminal suspect transferred to ORG or ORG by [ the GPE contingent of the ORG ] from its detention facilities , ORG and ORG , as the case may be , will :", "( a ) inform [ the GPE contingent of the ORG ] before releasing any individual and will comply with any request by [ the GPE contingent of the ORG ] that [ the GPE contingent of the ORG ] should reassume custody if ,", "( i ) the individual is wanted for prosecution by any ORG that has contributed forces to the ORG for breaches of the laws and customs of war , or", "( ii ) the internment of the individual is necessary for imperative reasons of security ,", "in which case [ the GPE contingent of the ORG ] will assume custody of that individual after consultation between the Participants to reach an agreed solution . ...", "( c ) provide an assurance that during any temporary periods when a suspect is in the hands of the NORP authorities whether at the [ the GPE contingent of the ORG ] ’s detention facility or elsewhere and at any time following the transfer of a suspect to NORP facilities ,", "( i ) the suspect will be treated humanely and will not be subject to torture or to cruel , inhuman or degrading treatment or punishment ; and", "( ii ) the requirements of CPA Orders with respect to cooperation with and reasonable access to be provided to ORG and ORG will be adhered to .", "( CARDINAL ) If [ the GPE contingent of the ORG ] decides that it is no longer prepared to provide custody facilities for a particular suspect , it shall give notice of this decision to ORG as soon as possible to enable ORG to make other arrangements for the custody of that suspect if it so wishes . ORG will then notify [ the GPE contingent of the ORG ] of the arrangements it has made or alternatively will indicate that the suspect should be released . [ The GPE contingent of the ORG ] will then use its best endeavours to enable any such alternative arrangements to be put in place . ”", "The last relevant ORG , DATE of DATE , extended the ORG ’s mandate to remain , for the last time , until DATE . Annexed to the ORG was a letter from the NORP Prime Minister which stated , inter alia :", "“ The government of GPE requests that ORG should consider extending the mandate of NORP in the light of GPE ’s achievements over DATE , namely , the strengthened capacity of its ORG and security forces and its significant successes in the security , political and economic spheres . A review of the role and authority of ORG will thus be required in order to strike a balance between , on the one hand , the need to extend , CARDINAL last time , the mandate of the force and , on the other hand , progress made by GPE in the area of security . In this regard , it is important for GPE to be treated as an independent and fully sovereign ORG and , in seeking the aforementioned balance , the following objectives should be highlighted :", "...", "NORP The government of GPE will be responsible for arrest , detention and imprisonment tasks . When those tasks are carried out by NORP , there will be maximum levels of coordination , cooperation and understanding with the government of GPE . ”", "In DATE ORG made representations to the NORP Deputy Prime Minister , PERSON , and the NORP Minister of Human Rights that GPE should not adopt the death penalty Order ( which restored the death penalty for certain specified offences ) of the interim NORP government .", "Further representations were considered before the ORG was signed in DATE . However , that ORG was intended to set out the authorities and responsibilities of the respective parties . Consequently , primarily as a result of the reintroduction by GPE of the death penalty for certain specified offences , the judgment was made that GPE would not respond favourably to requests that the ORG reverse the effect of the recently adopted NORP Order and prohibit the imposition or use of the death penalty . The judgment was made that it was better to pursue GPE opposition to the imposition and use of the death penalty by other means .", "Further representations were made on this issue . During GPE Presidency of ORG in DATE , the ORG made representations to the NORP Deputy Minister for ORG advocating the abolition of the death penalty .", "The Government supported a démarche against the use of the death penalty issued by the NORP Presidency to ORG in DATE .", "On DATE the NORP ambassador made representations to the NORP President , PERSON , that he should not sign a death warrant in the event that a death penalty was passed on those involved in the abduction of PERSON and PERSON .", "The Prime Minister ’s Special Envoy for Human Rights in GPE wrote to the President of GPE on DATE to request a stay of execution for CARDINAL NORP women sentenced to death . The opposition to the imposition or use of the death penalty under any circumstances was reiterated .", "In DATE the Government supported a démarche opposing the use of the death penalty following the imposition of the death penalty on PERSON .", "The Government strongly supported the resolutions adopted by ORG in DATE ( A / Res/CARDINAL/CARDINAL ) and in DATE ( A / Res/CARDINAL/CARDINAL ) , calling upon all GPE that maintain the death penalty to establish a moratorium on executions with a view to abolition .", "NORP In response to recent executions in GPE , the Government joined other NORP member GPE in a démarche against the death penalty delivered on DATE and reissued on DATE by ORG Presidency to NORP Vice President PERSON and to the Head of the NORP Prime Minister ’s Office .", "ORG , passed on DATE , stated as follows :", "“ The forces of GPE and GPE are permitted to stay in GPE to complete the tasks they are given , and for these tasks to end no later than the CARDINALst of DATE and to fully withdraw from GPE no later than the DATE .", "... ”", "“ ( a ) Members of the forces referred to in ORG CARDINAL and CARDINAL of the PERSON and members of ORG of the countries to which those aforementioned forces belong , who are working with those forces , shall be subject to the jurisdiction of GPE with the exception of crimes committed by them while on duty which are not committed with intent or do not arise from gross negligence , and with the exception of those committed by them inside agreed facilities and military installations used by them , in which case they shall be subject to the jurisdiction of the country to which they belong .", "...", "( c ) An accused member of the forces or ORG of the countries referred to in DATE and CARDINAL of this PERSON , shall be held in the custody of the authorities of the country to which the accused belongs . These authorities should make available the accused to the NORP authorities for the purposes of investigation and trial .", "... ”", "“ The task and activities of the forces referred to in ORG CARDINAL and CARDINAL of this PERSON and their facilities and military installations during their temporary presence in GPE are to be specified by the government of GPE with the agreement of the governments and parties concerned , providing that these troops do not carry out any operations or military activities within NORP land , airspace and waters without prior approval from the government of GPE . ”", "The applicants are NORP from southern GPE . The first applicant joined ORG in DATE , aged CARDINAL . In DATE he became the Branch Member of the PERSON branch of ORG ( reporting to the second applicant , the General Secretary of the PERSON branch ) . The second applicant joined ORG in DATE , aged DATE . In DATE he became the General Secretary of the PERSON branch , the highest rank in the province of PERSON .", "NORP On or around DATE , CARDINAL NORP servicemen , Staff PERSON and PERSON , were ambushed in PERSON , southern GPE , by NORP militia forces . Their bodies were found on DATE buried in the grounds of a government building in PERSON . They were found to have been killed by multiple gunshot wounds .", "DATE NORP forces in GPE arrested the first applicant on DATE and the second applicant on DATE . They were initially detained at a facility run by NORP forces known as “ GPE ” . On DATE they were transferred to a NORP - run facility in GPE known as the “ Divisional Temporary Detention Facility ” . On DATE they were transferred to another NORP detention facility in GPE , the “ ORG ” , where they remained until DATE .", "The applicants were initially classified as “ security internees ” . Their notices of internment stated that they were suspected of being senior members of ORG under the former regime and of orchestrating anti - MNF violence by former regime elements , and that it was believed that if they were released they would represent an imperative threat to security .", "DATE and DATE the Special Investigations Branch of GPE ORG conducted an investigation into the deaths of Staff PERSON and ORG and found evidence that the applicants were part of a group who slapped and rifle - butted the soldiers , at a time when they were prisoners of war ; entered into an agreement to kill them ; and were among those seen to have shot at them .", "The minutes of the meetings of ORG ( ORG ) referring to the applicants read as follows :", "“ GPE SofS [ Secretary of ORG ] is concerned about the death penalty and the [ NORP ] prosecutor is not sure that there is a realistic prospect of conviction as the offence happened too close to the actual hostilities . Negotiations are continuing at a high level . ”", "“ Referred to ORG over proposed transfer to CCCI [ ORG of GPE ] because the death penalty might be imposed . There has now been a case conference between prosecutor , MoJ [ NORP Ministry of Justice ] and ORG legal [ ORG ] .", "CCCI is still considering whether to take the case . Comd [ Commander ] Legal will chase ORG and progress from CCCI . ”", "“ A case conference was held in GPE on DATE . This has convinced the prosecutors that there is a good case . However they have cold feet about prosecuting it as the matter is so high profile . ORG will be considering with ORG - I [ Senior NORP Military Representative – GPE ] POLAD [ Political Adviser ] how to proceed ; we may have to bring a prosecutor or assistant out from GPE . ”", "“ ORG [ a military legal officer ] has asked ORG Brig Prosecutions to look into establishing a new post in GPE for an ORG officer to assist with the prosecution of this case . The requirements will be discussed between ORG and the NORP JAG [ Judge Advocate General ] liaison team to the CCCI when SCARDINAL Legal attends GPE on DATE . ”", "“ SIB [ Royal Military Police Special Investigation Branch ] have now completed final interviews , which have not progressed the case in any material way . Discussions between Legal Branch , ORG - I ORG and ORG [ ORG ] are ongoing reference the bid for an ORG officer / civilian lawyer to assist with the prosecution of this case . ORG [ NORP military legal officer , PERSON ] will go to GPE from DATE to begin to assess the paperwork and decide what further work is needed and how long it will take , in order better to decide on the requirement for the assistant prosecutor . ”", "“ ORG visited GPE to consider the requirements for a CCCI LO [ NORP ORG Officer ] . The [ deleted ] Case is almost ready to take to court but the EOD [ explosive ordinance disposal ] case ... will need a significant amount of work . The decision over who will take on these cases has been staffed back to ORG . PERSON ( ORG - I ORG ) thinks it should be an ORG officer , the ORG hierarchy are not sure . Due to the sensitivity of these cases it will probably be decided at ministerial level . ”", "“ The CCCI LO issue over who is to liaise with the ORG over the prosecution of the ORG murder case ... is still being considered in the GPE . ORG will be chasing ORG DATE .", "HQ ORG , ORG [ ORG ] and ORG are discussing who will take this case forward at the CCCI . The GPE LOs are not prepared to take the case on and have asked for a GPE LO . It is not yet clear who this will be . Once it has been decided who will lead on the case , ORG will need to make further enquiries . ”", "“ ORG [ the ORG Prosecuting Authority ] has informed ORG that Major PERSON has been designated as the PERSON to the CCCI . Date of commencement tbc [ to be confirmed ] . This will affect internees DATE and DATE [ the applicants ] as they may eventually be transferred to the CCCI if it is decided to prosecute them . ”", "“ The issue is over who will conduct the case . It has been agreed that Major PERSON will be sent to liaise with the CCCI in GPE wef [ with effect from ] DATE to progress prosecutions . However it now appears that there is confusion over whether he will be allowed to progress this particular case ( although others will be OK ) . ORG will chase ALS to find out what will be decided about progress on this case . This case needs more investigations and a decision clarifying how many accused / what offences before it can be passed to the investigative magistrate of the CCCI and a remand order can be sought . ”", "“ The ALS CCCI LO is currently examining all the case papers and will produce a case analysis as to potential prosecution of all individuals implicated , including this internee . The case analysis is expected to be available in DATE . It will then be circulated within the MOD / ORG and other interested parties in order for a decision as to the way forward to be made , particularly given the potential death penalty issue .", "Upon distribution of the case analysis from ORG , pressure should be maintained on ORG to identify the way forward given the potential death penalty difficulties . ORG to action . ”", "“ The ALS CCCI LO has now considered all the case papers and prepared a case analysis as to the strength and viability of a potential prosecution of all individuals implicated , including this internee . Pursuant to a meeting with ORG at HQ MND(SE ) [ ORG ( South - East ) ( GPE ) ] on DATE , it has been assessed that there exists sufficient evidence to prosecute the case against this internee . The case analysis is now with ORG in GPE , where a meeting is expected to take place between PJHQ [ Permanent Joint Head Quarters ] , the ORG and the ORG within DATE focusing on the legal ramifications surrounding the transfer of the case to the CCCI in GPE for prosecution , particularly given the potential death penalty issue .", "Pressure should be maintained on the MOD / FCO to expedite the way forward in providing guidance on the potential death penalty difficulties now that the case analysis is complete and the early phases of the operation are underway . ORG to action . ”", "“ The case analysis is now with the MOD / FCO in GPE and governmental discussions are ongoing ( although currently stalled ) on the legal ramifications surround [ sic ] the transfer of the case to the CCCI in GPE for prosecution , particularly given the possible application of the death penalty .", "Pressure must continue to be maintained on the MOD / FCO to expedite the way forward now that the case analysis is with the Government for consideration . In particular , guidance must be sought on the safeguards that can be imposed before transferring the case to the CCCI , especially in light of the potential death penalty difficulties . ORG to action . ”", "[ Having noted that the case analysis was still with the MOD / FCO in GPE ]", "“ ORG hope is this internee ’s case , together with DATE , will be submitted before the CCCI in GPE during DATE with the ultimate aim these internees be transferred out of the DTDF [ ORG ] and handed over into the ICJS [ NORP Criminal Justice System ] . ORG was of the view it would be easier to secure witness evidence in any CCCI case owing to the fact this internee , together with DATE , were senior Ba’athists . Issues may arise over the detention of potential co - accused . Again , however it is assessed that the detention of such individuals who are still alive may prove less problematic than many other detention questions . ”", "“ This internee ( together with ... PERSON ... ) is , as a result of extensive investigation by ORG of ORG , believed to be responsible for the deaths ( on or DATE ) of Staff PERSON and PERSON , both of ORG .", "The investigation has resulted in eye witness testimony that alleges this accused ( who was a civilian and head of ORG ) was CARDINAL of a group of people who slapped and rifle - butted the CARDINAL above - named soldiers at a time when they were prisoners of war and were , therefore , protected persons under LAW to LAW dated DATE . This internee was a party to an agreement to kill the soldiers and was seen to be CARDINAL of those who shot the CARDINAL soldiers .", "The police investigation is now complete and GPE intends to lodge the evidence with ORG in the near future . ”", "On DATE the cases against the applicants concerning the deaths of Staff PERSON and ORG were formally referred by the GPE contingent of the ORG to the Chief Investigative Judge of ORG . The cases were subsequently transferred to ORG and on DATE a NORP officer attended that court to make a statement of complaint in respect of the killing of the CARDINAL soldiers .", "On DATE the applicants appeared before ORG of ORG to give evidence in response to the complaint . The court issued arrest warrants under LAW and made an order authorising the applicants’ continued detention by the GPE contingent of the ORG . On DATE the GPE authorities decided to reclassify the applicants from “ security internees ” to “ criminal detainees ” .", "After an initial investigation , ORG decided that , since the alleged offences constituted war crimes , the ORG cases should be transferred to the ORG ( see paragraph CARDINAL above ) and the ORG accepted that it had jurisdiction . The applicants twice appealed against the decision to transfer their cases to the ORG but ORG in its appellate capacity dismissed the first appeal on DATE and ORG in GPE dismissed the second appeal on CARDINAL DATE .", "The ORG first requested that the applicants be transferred into its custody on DATE and repeated that request on several occasions until DATE . When asked by ORG to clarify why the applicants were not transferred by the GPE contingent of the ORG to the ORG DATE , counsel for the Government explained :", "“ We took the view that there was then a genuine issue , because there had been no decision by any court as to whether or not there was the international - law obligation that we say existed or any decision on the question of jurisdiction . That was resolved by ORG , and thereafter we have said it is not now possible for us to give that undertaking [ not to transfer them ] . ”", "DATE . On DATE the applicants issued judicial review proceedings in GPE challenging , inter alia , the legality of their proposed transfer . Shortly after proceedings were issued , the Government provided an undertaking that it would not transfer the applicants pending the determination of their claim before the NORP courts .", "DATE , on DATE , PERSON ( Legal Adviser at the NORP embassy in GPE ) met with the President of the ORG , President PERSON , to reiterate GPE strong opposition to the death penalty . During this discussion President PERSON invited letters from the GPE families and from the NORP embassy in GPE opposing the imposition of the death penalty in this case , as that would be a factor which would be taken into account by the court . President PERSON also indicated that it would be helpful if the NORP embassy waived its right to civil compensation .", "On DATE the Second Secretary Human Rights Officer at the NORP embassy in GPE , Mr PERSON , met with President PERSON to further discuss the situation and what would be the effect if CARDINAL of the families of the CARDINAL victims were to write to seek clemency . The President indicated that if CARDINAL of the CARDINAL families sought clemency , the letter from CARDINAL family would be taken into account by the court and the fact that the other family had not done so would not significantly affect matters .", "The Government were able to contact CARDINAL of the families of the CARDINAL victims . That family agreed to support a plea for clemency and the non - imposition of the death penalty in the event that the applicants were convicted of a capital offence .", "The NORP embassy in GPE also wrote seeking the non - imposition of the death penalty . It also waived any right to civil compensation .", "PERSON held a further meeting with President PERSON on DATE and presented him with the letter from the NORP embassy , outlining GPE opposition to the imposition of the death penalty . The letter was signed by the NORP ambassador , PERSON , and waived the right to compensation . This was accompanied by a letter dated DATE from CARDINAL of the families seeking clemency , with an NORP translation .", "The hearing before ORG took place on DATE . Claims by the applicants concerning the legality of their detention by NORP forces were adjourned .", "At the hearing the court expressed its concerns about what would happen to the applicants after the expiry of ORG mandate on DATE . The Government put before the court evidence about the intergovernmental negotiations between GPE and GPE that were then continuing as to whether and pursuant to what terms NORP forces would be permitted to remain in GPE post-CARDINAL DATE . This included the following statement of PERSON , one of the leaders of GPE negotiating team :", "“ ... I recognised that , if possible , it would be desirable for GPE forces to be in a position to continue to hold the claimants for a period of time whilst this litigation is resolved . I therefore considered with colleagues whether it would be appropriate to raise this issue with the NORP negotiating team . I can not comment in detail on sensitive inter - governmental negotiations , but the judgment was made that to introduce the issue of GPE forces continuing to hold detainees , whether generally or specifically in relation to these CARDINAL claimants , risked adversely affecting the conduct and outcome of these important and urgent negotiations .", "Furthermore , the judgment was made that raising the issue would not in any event have resulted in any agreement with the NORP authorities whereby the claimants remained in the custody of the NORP forces in GPE , still less that they would agree to the removal of the claimants from GPE . Given the fact that the NORP are seeking the transfer of detainees from the GPE to GPE and the fact that these CARDINAL claimants are NORP nationals accused of crimes within GPE and that the NORP courts have repeatedly requested the transfer of these QUANTITY claimants in order to complete investigations and if appropriate try them , there was no realistic prospect of GPE agreeing to allow them to remain within the custody of the GPE . To have raised the issue would therefore have resulted in my judgment in no change in relation to the position of the claimants , but would have risked adversely affecting the conduct and outcome of the negotiations with the government of GPE .", "... I have considered whether there may be any other means whereby GPE forces could continue to hold the claimants for a period of time beyond DATE pending the outcome of this litigation . Conceivably , we might ask the government of GPE to submit draft legislation to the CoR [ ORG ] specifically to permit the GPE to hold the claimants indefinitely or pending the outcome of this litigation . Given the facts set out in the previous paragraph , I consider that there is no reasonable prospect that the government of GPE would accede to such a request . Furthermore , the process of drafting and passing such legislation would extend beyond DATE . And even raising the issue would in my considered opinion risk adversely affecting the passage of the legislation and finalising of the inter - governmental arrangement .", "There is no likelihood in my view of the GPE being able to secure any agreement from the NORP authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation . ”", "Judgment was delivered on DATE . ORG noted that the applicants had been subject to the jurisdiction and legal authority of the NORP courts since no later than CARDINAL DATE ( see paragraph CARDINAL above ) . CPA Memorandum No . CARDINAL ( Revised ) ( see paragraph CARDINAL above ) , which was the NORP law in force at the time , required the NORP forces to hand over “ criminal detainees ” to the NORP authorities as soon as practicable . This requirement was also reflected in GPE ORG of CARDINAL DATE ( see paragraph QUANTITY above ) . Nonetheless , ORG rejected the ORG ’s argument that the actions of GPE in respect of the applicants were attributable to the NORP authorities : the NORP forces were lawfully present in GPE , pursuant to a ORG mandate , as part of the ORG subject to the exclusive jurisdiction of GPE and independent of ORG . The NORP forces had physical custody and control of the applicants and had it in their power to refuse to transfer them to the custody of the ORG , even if to act in such a way would be contrary to GPE international - law obligations . The applicants therefore fell within GPE jurisdiction for the purposes of LAW DATE .", "ORG then considered whether the applicants could rely on the principle against refoulement in GPE v. GPE , ( DATE , Series A no . CARDINAL ) . It rejected the ORG ’s argument that the PERSON principle could apply only to transfers across territorial boundaries , but it considered itself bound by ORG judgment in R(B ) v. Secretary of ORG ( [ DATE ] EWCA Civ CARDINAL : see paragraph CARDINAL below ) , which held that where a fugitive was within the jurisdiction of GPE but on the territory of another sovereign ORG ( for example , within an embassy or consulate ) , GPE was under an international - law obligation to surrender him unless there was clear evidence that the receiving ORG intended to subject him to treatment so harsh as to constitute a crime against humanity .", "The Divisional Court considered expert evidence relating to the fairness of proceedings before the ORG . It found no cogent evidence to support the ORG claims that detainees held by the NORP authorities were subjected to torture to extract confessions and that evidence obtained by torture would be used against them . It found that although , during the first CARDINAL trials before the ORG in which PERSON was CARDINAL of the defendants ( the PERSON and PERSON trials ) , there had been a number of fatal attacks on ORG staff and defence lawyers , the situation had improved and no lawyers , witnesses or ORG staff members had been kidnapped or killed in DATE . It did not , therefore , consider that ORG staff and counsel would be so concerned about their safety as to prevent the applicants from having a fair trial and it found that adequate security measures were taken to protect witnesses . There had been no permanent replacements of judges in current trials and there was not a sufficient risk of replacement of the judiciary to operate as a factor prejudicing the possibility of the applicants’ receiving a fair trial . The court noted examples of concerns expressed by third parties relating to the independence of the ORG , but observed that these related to events during the PERSON and PERSON trials in DATE , with no more recent examples of such concerns . Taking everything together , it was satisfied that the ORG was sufficiently independent to meet the requirements of a fair trial . There was no real risk of defence counsel being prevented from doing a proper job for the applicants in the event of a trial . The IHT Statute and its rules had been modelled on FAC for the Former GPE and GPE and ORG . The protection afforded to defendants included the presumption of innocence ; the right to be informed of charges ; the right to defence counsel ; the right to be tried without undue delay ; the right to be present during trial ; the right to examine or confront witnesses ; the privilege against self - incrimination ; the right not to have silence taken into account in determining guilt ; the right of disclosure of exculpatory evidence and witness statements ; the exclusion of coerced evidence ; the right to ensure that interrogations are videotaped ; the right to pose questions directly to the witness ; and the right to appellate review . ORG concluded with regard to the risk of a breach of LAW :", "“ The overall picture which emerges is that , although initially there were deeply unsatisfactory aspects of the ORG and trial environment , which cast doubt on the ability to provide defendants with a fair trial at that time , there have been many significant improvements since then .", "... To date the claimants have appeared before the NORP courts and have denied the allegations made against them ; and there can be no complaint about the way in which the courts have dealt with them . As to the future , looking at the various points individually and cumulatively , the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by LAW . Thus , even if the LAW were to apply in the normal way , we would reject the claim that transfer of the claimants into the custody of the ORG would be contrary to LAW . ”", "Next , ORG considered the evidence relating to the likelihood that the applicants would be subjected to the death penalty . It concluded :", "“ Taking the evidence as a whole , we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed , contrary to LAW No . CARDINAL , if they are transferred into the custody of the ORG . In particular : ( a ) the penalties for the offences with which the applicants are charged include the death penalty ; ( b ) there is clear evidence that persons convicted of such offences are liable in practice to be sentenced to death ; ( c ) the matters relied on as mitigating against the imposition of the death penalty are not sufficiently cogent or certain to negative the real risk ; ( d ) in spite of the efforts made on behalf of the Secretary of ORG , no assurance has been given that the death penalty will not be imposed in this case ; and ( e ) in any event , even if President PERSON [ the President of the ORG ] had given such an assurance , we are not satisfied it would necessarily be effective because he does not have the authority to bind the appeal chamber which would automatically have to consider the appropriate sentence , whatever decision the trial chamber had reached . ”", "However , the court found that although the death penalty was prohibited by the Convention , it was not yet contrary to internationally accepted norms , at least where it was imposed for serious crimes following conviction at a trial that met minimum standards of fairness . It followed that “ however repugnant the death penalty may be within our domestic legal system and under the Convention , its imposition would not be contrary to international law ” and the risk that the applicants might be executed did not therefore operate to relieve GPE of its public international - law obligation to transfer them to the custody of the ORG .", "The Divisional Court next examined the issues under LAW . It found that the ORG had requested that , prior to trial , the applicants should be detained in LAW of FAC , which was run by ORG ; if the applicants were convicted and sentenced to over DATE of imprisonment , they would be sent to FAC , also run by ORG . The court referred to a report by ORG , the NORP army officer responsible for conducting inspections of NORP overseas military detention facilities , who had inspected PERSON in DATE and found that Compound CARDINAL “ satisfied the requirements [ of FAC ] ” in respect of the applicants , providing “ relative segregation , protection from elements and reasonable living conditions ” . Although the Provost PERSON ’s inspectors had received complaints from some detainees about the lack of visits and the quality of the food , no one had complained of mistreatment . ORG also referred to an inspection report by ORG to CARDINAL at FAC , which found no indication that detainees were subjected to intentional or overt acts of mistreatment . Conditions at Compound CARDINAL were found to comply with basic human rights standards ; detainees were allowed regular visits from legal representatives and relatives ; force was used only as a last resort when necessary to prevent prisoners from harming themselves or others ; corporal punishment was forbidden and the prisoners interviewed stated that they had never known it to be used ; and there was a robust system for the reporting of any mistreatment . In addition , the court had reference to the fact that , in accordance with paragraph CARDINAL(c ) of section CARDINAL of the MOU of CARDINAL November CARDINAL ( see paragraph CARDINAL above ) , the NORP authorities had provided an assurance that , following transfer to NORP facilities , the applicants would be treated humanely . Although the applicants had adduced expert evidence concerning the conditions at FAC , this evidence did not establish any instances of actual mistreatment of prisoners . The evidence relating to FAC did not indicate that , if detained there , the applicants would be at risk of ill - treatment . The court therefore concluded that the evidence fell well short of establishing substantial grounds for believing that the applicants would face a real risk of treatment contrary to LAW if transferred into the custody of the ORG .", "ORG concluded that the proposed transfer would be lawful and it dismissed the claim for judicial review , but added :", "R(B ) v. Secretary of ORG , as we have understood the judgment of ORG in that case . ... ”", "The Divisional Court granted the applicants leave to appeal to ORG and , on DATE , granted an interim injunction prohibiting their transfer until TIME on DATE to allow an application for interim relief to be made to ORG .", "The applicants appealed against ORG judgment , principally on the grounds that ( CARDINAL ) the court had erred in concluding that there was a relevant public international - law context which could have the effect of modifying the principle in PERSON ( cited above ) ; ( CARDINAL ) even if the court had applied the right test , it had been wrong to hold that the death penalty and execution were not contrary to internationally accepted norms ; ( CARDINAL ) LAW and international law prevented transfer in circumstances where substantial grounds had been shown for believing there to be a real risk of the applicants being condemned to death by hanging ; ( CARDINAL ) it was incorrect to conclude that any GPE jurisdiction to try the applicants either did not exist or was subordinate to NORP claims ; ( CARDINAL ) the court had applied the incorrect test in respect of the ORG claims concerning the fairness of any trial before the ORG ; and ( CARDINAL ) the court had erred in concluding that the evidence before it did not establish substantial grounds for believing there to be a real risk that the ORG trial would involve a flagrant breach of the principles guaranteed by LAW .", "On DATE ORG directed that the full appeal hearing would take place on DATE . It made an injunction prohibiting the applicants’ transfer before TIME on DATE .", "Among the evidence placed before ORG was a further statement by PERSON concerning the ongoing negotiations with GPE . He explained , inter alia , that the question of NORP forces being permitted to exercise detention powers in GPE had been expressly rejected by GPE in the course of the negotiations :", "“ In the course of discussions on DATE , NORP officials made clear that , even in relation to any proposed authorised tasks , they did not consider it acceptable for GPE forces to exercise detention powers after DATE .", "It remains my firm and considered view that , in all the circumstances , there is no likelihood of the GPE being able to secure any agreement from the NORP authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation . Further , as I said in my first witness statement , even raising the issue would risk adversely affecting the conduct and outcome of the current negotiations . ”", "ORG dismissed the appeal at TIME on DATE , with the following short oral reasons .", "“ ( i ) On the facts GPE is not exercising jurisdiction over the appellants within the meaning of ORG , LAW . See in particular PERSON v. GPE ( DATE ) CARDINAL BHRC CARDINAL . In essence GPE detains the appellants only at the request and to the order of the ORG , and is obliged to return them to the custody of the ORG by force of arrangements made between GPE and GPE , and GPE has no discretionary power of its own to hold , release or return the appellants . They are acting purely as agents of the ORG .", "( ii ) R(B ) v. Secretary of ORG for Foreign and Commonwealth Affairs [ DATE ] CARDINAL shows that an obligation of this kind to return persons to the host ORG has to be respected , albeit that the holding ORG in question is subject to ORG obligations , unless – paragraph DATE to return the appellants would expose them to a crime against humanity . We are bound by that decision , being a decision of this court .", "( iii ) Neither the death penalty generally , nor the death penalty by hanging , is shown to be a crime against humanity or an act of torture .", "( iv ) Accordingly , even if GPE is exercising LAW , contrary to our opinion , it is obliged to return the appellants to the custody of the ORG . That is so before DATE ; a fortiori after DATE , when there will be no ORG mandate , no provision as between GPE and GPE granting inviolability to the NORP base or allowing for any detention of the appellants by the GPE forces , save to the order of the ORG . In short , GPE will have no colour of legal power whatever after DATE to do anything other than return the appellants to the order of the ORG . There will be no power to move the appellants anywhere else , nor indeed to prevent the NORP taking the appellants from NORP custody . NORP troops could not be ordered to take any steps to prevent that happening . Before DATE it is true that the base at GPE is inviolable under local arrangements made between GPE and GPE , but that inviolability ceases DATE . That is why GPE is thereafter entirely legally powerless to take action other than in compliance with the wishes of the ORG or to resist any action taken by the NORP authorities .", "( v ) No freestanding claim against GPE under customary international law can run , nor is there on the facts any viable claim under ORG , LAW . ”", "DATE . ORG refused the applicants permission to appeal to ORG , stating that :", "“ Certainly there are some important issues that have been raised but in the context of this case , having regard to the position that obtains post-CARDINAL DATE , it would not be right to grant permission . ”", "ORG also refused to grant the applicants interim relief pending either an application to ORG for permission to appeal and for interim relief , or to this ORG for interim measures . Shortly after TIME ORG lifted the injunction which had prevented the applicants’ transfer until TIME on DATE .", "ORG handed down its full written judgment on DATE ( [ DATE ] EWCA Civ CARDINAL ) . It found , firstly , that there were substantial grounds for believing that the applicants would face a real risk of execution if they were transferred to the custody of the ORG , for the following reasons .", "“ It is common ground that the death penalty is a punishment available under NORP law for the offences with which the appellants are charged . ORG held ( paragraph CARDINAL ) that that was enough to give rise prima facie to a real risk of its being applied to the appellants . Accordingly , following the approach commended by ORG in GPE v. GPE ( application no . DATE , judgment of CARDINAL DATE ) , in particular at paragraph CARDINAL , the burden effectively shifted to the Secretary of ORG to show that such a risk was not in fact made out .", "Mr PERSON for the Secretary of ORG relied on evidence to the effect that the family of one of the victims had written to President PERSON of the ORG to seek clemency for the appellants if they were found guilty . President PERSON had earlier invited letters of this kind through the NORP embassy , indicating that it would be helpful if the embassy could waive claims to civil compensation and that he would then pass such letters to the trial chamber for their consideration . PERSON , Legal Adviser and Head of the Justice and Human Rights Section at the NORP embassy in GPE , has given evidence of legal advice to the effect that the impact of a plea of clemency by the families of the victims in GPE is likely to be that the NORP court ‘ will not impose the death penalty in any particular ORG . PERSON says that President PERSON has confirmed that such a plea for clemency is likely to be an important factor for any court in assessing what sentence would be imposed on the claimants . She also produces a letter from President PERSON , given to her at a meeting on DATE , in which the court ’s procedures for considering sentence are described in some detail . ORG observed ( paragraph CARDINAL ) :", "‘ That letter represents President PERSON ’s considered written position . It is striking that the letter gives no indication whatsoever that the death penalty would not be or even probably would not be imposed.’", "PERSON relied on the evidence of PERSON , an NORP attorney who was LAW to the ORG DATE and DATE . Mr ORG had also met President PERSON , on DATE . The President explained the factors which would influence the ORG against imposing a death sentence . These were ‘ an admission of the crime by the claimants , a request for forgiveness from the family of the victims , a request for forgiveness of the court for the acts , and a request for leniency from the family of a victim’ ( ORG , paragraph CARDINAL ) . Mr Spillers reported the President as indicating that an assurance that the death penalty would not be imposed was ‘ implicit’ in his account of these factors .", "Mr PERSON has provided a further statement since ORG judgment was delivered . He describes the outcome of the ORG proceedings in what has been called the DATE Uprising case . The CARDINAL defendants were all former high - ranking members of PERSON regime charged with crimes against humanity . CARDINAL were acquitted . CARDINAL received very substantial terms of imprisonment . Only the remaining CARDINAL were sentenced to death , including CARDINAL ( ‘ ORG Ali’ ) who was already under sentence of death following an earlier trial .", "...", "In my judgment there is no sufficient basis for departing from the balanced assessment of ORG on this point . Mr Spillers’ new evidence concerning the DATE Uprising case , while helpful to the Secretary of ORG , is not so substantial as to overturn the lower court ’s conclusion . The real risk test is satisfied . ”", "In support of its conclusion that the applicants did not fall within GPE jurisdiction for the purposes of the Convention and LAW DATE , ORG observed as follows .", "Until DATE the GPE forces at GPE enjoyed the guarantees of immunity and inviolability provided by CPA Order No . CARDINAL ( Revised ) . But those measures prohibited invasive sanctions ; they did not confer executive power . In my judgment , from DATE until DATE , the NORP forces at GPE were not entitled to carry out any activities on GPE ’s territory in relation to criminal detainees save as consented to by GPE , or otherwise authorised by a binding resolution or resolutions of ORG . So much flows from the fact of GPE ’s sovereignty and is not contradicted – quite the reverse – by any of ORG measures in the case . Thus the ORG mandate was extended by ORG at GPE ’s express request . The letter requesting its extension ( which was attached to LAW ( DATE ) ) expressly stated at paragraph CARDINAL , ‘ [ CARDINAL government of GPE will be responsible for arrest , detention and imprisonment ORG . The various material ORG ( DATE ) , DATE ) and DATE ( DATE ) ) all emphasise the primacy of NORP sovereignty . As regards criminal detentions , CPA Memorandum No . CARDINAL ( Revised ) makes it [ plain ] that so far as criminal detainees may be held by any national contingent of the ORG , they are held , in effect , to the order of the NORP authorities .", "In these circumstances GPE was not before DATE exercising any power or jurisdiction in relation to the appellants other than as agent for the NORP court . It was not exercising , or purporting to exercise , any autonomous power of its own as a sovereign ORG .", "As I stated earlier , once the mandate expired there remained under international law no trace or colour of any power or authority whatever for the ORG , or any part of it , to maintain any presence in GPE save only and strictly at the will of the NORP authorities . [ Counsel for the applicants ] sought to submit that the NORP base at GPE would by force of customary international law remain inviolable after DATE . But she was unable to identify any principle which might , on the facts , support that position ; and it is to my mind wholly inescapable that after that date NORP forces remaining in GPE have done so only by consent of the NORP authorities and on such terms as those authorities have agreed . And it must have been plain , as soon as it was known when the mandate would come to an end , that this would be the true state of affairs .", "And there is no sensible room for doubt but that the terms on which NORP forces would be permitted to remain in GPE by the NORP authorities would not encompass any role or function which would permit , far less require , NORP ( or any other ) forces to continue to hold detainees . ...", "After DATE NORP forces enjoyed no legal power to detain any NORP . Had they done so , the NORP authorities would have been entitled to enter the premises occupied by the NORP and recover any such person so detained .", "It is not easy to identify precisely the scope of the LAW where it is said to be exercised outside the territory of the impugned ORG , because the learning makes it clear that its scope has no sharp edge ; it has to be ascertained from a combination of key ideas which are strategic rather than lexical . Drawing on the PERSON judgment and their Lordships’ opinions in PERSON , I suggest that there are CARDINAL core propositions , though each needs some explanation . ( CARDINAL ) It is an exceptional jurisdiction . ( CARDINAL ) It is to be ascertained in harmony with other applicable norms of international law . ( CARDINAL ) It reflects the regional nature of the Convention rights . ( CARDINAL ) It reflects the indivisible nature of the Convention rights . The first and second of these propositions imply ( as perhaps does the term jurisdiction itself ) an exercise of sovereign legal authority , not merely de facto power , by CARDINAL ORG on the territory of another . That is of itself an exceptional state of affairs , though well recognised in some instances such as that of an embassy . The power must be given by law , since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law , but offensive to them ; and there would be no principled basis on which the power could be said to be limited , and thus exceptional . ... It is impossible to reconcile a test of mere factual control with the limiting effect of the first CARDINAL propositions I have set out , and , indeed , that of DATE , as I shall explain .", "These first CARDINAL propositions , understood as I have suggested , condition the others . If ORG is to exercise LAW outside its own territory , the regional and indivisible nature of the Convention rights requires the existence of a regime in which that ORG enjoys legal powers wide enough to allow its vindication , consistently with its obligations under international law , of the panoply of Convention rights – rights which may however , in the territory in question , represent an alien political philosophy .", "The ORG ’s natural setting is the espace juridique of the GPE Parties ; if , exceptionally , its writ is to run elsewhere , this FAC juridique must in considerable measure be replicated . In short ORG must have the legal power to fulfil substantial governmental functions as a sovereign ORG . It may do so within a narrow scope , as an embassy , consulate , military base or prison ; it may , in order to do so , depend on the host ORG ’s consent or the mandate of ORG ; but however precisely exemplified , this is the kind of legal power the ORG must possess : it must enjoy the discretion to decide questions of a kind which ordinarily fall to the ORG ’s executive government . If the LAW is held to run in other circumstances , the limiting conditions imposed by the CARDINAL propositions I have set out will be undermined . ”", "ORG also considered the question of conflicting international - law obligations , which arose only if it was wrong about the lack of jurisdiction , and held that ORG had been correct in having regard to GPE obligation under international law to transfer the applicants to the custody of the ORG :", "“ CARDINAL . ... ORG to the ORG , exercising LAW in a foreign territory , may certainly owe duties arising under international law to the host ORG . LAW [ on ORG , DATE ] , referred to in R(B ) at paragraph CARDINAL , offers an obvious platform for such a potential duty . In this case GPE was plainly obliged under international law to transfer the applicants pursuant to the ORG ’s request . In such instances , there may be a conflict between ORG obligations and its international obligations .", "One solution might have been to hold that the existence of such an international obligation is incompatible with the exercise of LAW , because it would show that ORG legal power in the relevant foreign territory lacked the amplitude required to guarantee the Convention rights . In that case there would be no conflict . Such a comfort would of course be no comfort to the appellants – the duty to transfer them would without more negative the ORG jurisdiction , so that they would enjoy no Convention rights . However , such an outcome would , I think , have been consistent with PERSON ; but this is not the direction our courts have taken . Both PERSON and R(B ) recognise that a ORG may be fixed with potentially inconsistent obligations arising under the ORG and international law respectively .", "With great respect I see no reason to doubt this position . While I have certainly asserted that the scope of the LAW has to accommodate the pressure on GPE Parties of international obligations apart from the ORG , it by no means follows that the ORG duty must always yield to the other obligation , so that no conflict can arise . No doubt it will be a matter for assessment in any case ( where the issue sensibly arises ) whether the international - law obligations are so pressing , or operate on so wide a front , as in effect to deprive the relevant ORG of the espace juridique which the LAW demands . They may not do so ; and where they do not , this court ’s decision in R(B ) shows the correct juridical approach . ”", "ORG rejected the applicants’ argument , based on GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) , that where the proposed refoulement was to a ORG where after the trial the applicant might suffer the death penalty , no flagrant breach of the right to a fair trial under LAW needed to be shown , only a real risk of an unfair trial . The court observed that Öcalan was not a refoulement case and that in PERSON and GPE v. GPE ( no . CARDINAL , ORG CARDINAL-XI ) , the ORG had held that it was necessary in a deportation or extradition case for the applicant to establish a risk of suffering a flagrant denial of a fair trial in the receiving ORG , the outcome of which was or is likely to be the death penalty , before the ORG could find a violation of LAW . ORG accepted ORG assessment of the evidence about the fairness of proceedings before the ORG and therefore also dismissed the complaint under LAW .", "Finally , ORG rejected the ORG argument under international law that execution by hanging fell to be regarded as a crime against humanity , inhuman or degrading treatment or a form of torture . While terrible errors occurred from time to time , where for example the hanged man ’s neck was not broken so that he suffocated , or the drop was too long so that he was decapitated , such evidence was anecdotal and partial . There was other evidence , such as that considered by ORG , in its report of DATE , which found that hanging was “ speedy and certain ” . The court concluded that , since the evidence before it regarding this method of execution was very limited , it was in no position to arrive at any overall finding as to the effects of hanging for the purpose of making an assessment of its compatibility or otherwise with norms of customary international law .", "NORP The applicants’ lawyers contacted ORG DATE but were advised that ORG would be closed DATE and New Year period and would not reopen until DATE .", "DATE . On DATE the ORG request for legal aid to petition ORG was refused , primarily on the basis that the transfer ( see paragraph CARDINAL below ) meant that no effective remedy would be available .", "On DATE the applicants lodged a petition for leave to appeal with ORG . It was refused on DATE .", "On DATE , prior to ORG hearing on interim relief , the applicants lodged an urgent application for interim measures under LAW of ORG . The Government made written representations to the ORG as to why the applicants’ application should not be granted , copies of which were provided to the applicants .", "Shortly after being informed of the ruling of ORG on DATE , the ORG gave an indication under Rule DATE , informing the Government that the applicants should not be removed or transferred from the custody of GPE until further notice .", "The applicants were transferred into the physical custody of the NORP authorities and admitted to PERSON on DATE .", "On TIME , the Government informed the ORG and the ORG solicitors that the applicants had been transferred . In their letter to ORG stated :", "“ ... the Government took the view that , exceptionally , it could not comply with the measure indicated by the ORG ; and further that this action should not be regarded as a breach of LAW in this case . The Government regard the circumstances of this case as wholly exceptional . It remains the Government policy to comply with Rule CARDINAL measures indicated by the ORG as a matter of course where it is able to do so . ”", "In accordance with assurances given by ORG in DATE and DATE , the applicants were initially held at FAC , Compound CARDINAL . In DATE they were transferred to Compound CARDINAL of the same prison .", "On DATE PERSON ( Legal Adviser at the NORP embassy in GPE ) reminded President PERSON of his previous statements on the death penalty .", "The PERSON trial before the ORG commenced on CARDINAL DATE . Each was represented by an NORP lawyer . The applicants were originally charged with killing the CARDINAL NORP soldiers when they had clearly surrendered , an offence carrying a maximum penalty of the death sentence .", "On DATE this ORG declared the application admissible and put further questions to the parties ( see paragraphs CARDINAL - CARDINAL above ) . In particular , it requested ORG to inform it of the representations , if any , which had been made to the NORP authorities since the time of the applicants’ transfer with a view to ensuring that they would not be subjected to the death penalty if convicted .", "On DATE , after the close of the evidence in the case , the prosecution read CARDINAL letters to the trial chamber of the ORG . The first , dated DATE , was from the ORG conveying their opposition to the death penalty and enclosing the letter received in DATE from the family of CARDINAL of the murdered soldiers ( see paragraphs CARDINAL and DATE above ) . The second letter was from the sister of the other soldier , with whom the Government had made contact , also asking for clemency for the defendants . The Chief Trial Judge then read out a statement of charges against each applicant . The charges had been reduced from killing the soldiers to negligently handing them over to other ORG officials who killed them , instead of protecting them and sending them for medical treatment as required by LAW ( I ) for DATE Wounded in Armies in FAC DATE . This charge did not carry a death sentence .", "At the next hearing , on DATE , a further charge was added , namely torture or inhuman treatment of the soldiers , contrary to LAW . According to LAW and CARDINAL § § DATE of PERSON no . ( DATE on ORG , the penalty for this offence “ shall be determined by the court taking into account the gravity of the crime as well as the individual circumstances , judicial precedents and relevant sentences issued by international criminal courts ” . The Government informed the ORG by a letter of DATE that the President of the trial chamber had informed a NORP official in GPE that “ [ i]n his view , a death sentence was not the appropriate penalty in this case ” .", "On DATE the ORG gave its verdict . It decided to cancel the charges against the applicants , due to insufficient evidence , and ordered their immediate release . Shortly thereafter the prosecutor lodged an appeal against this decision to ORG .", "By a letter of CARDINAL DATE , the Government informed ORG that ORG had decided that the investigation had been incomplete and had ordered that the case be remitted for reinvestigation by the NORP authorities and retrial . The applicants remain in custody .", "The LAW provides , inter alia :", "“ Protected persons are entitled , in all circumstances , to respect for their persons , their honour , their family rights , their religious convictions and practices , and their manners and customs . They shall at all times be humanely treated , and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity .", "Women shall be especially protected against any attack on their honour , in particular against rape , enforced prostitution , or any form of indecent assault .", "Without prejudice to the provisions relating to their state of health , age and sex , all protected persons shall be treated with the same consideration by the ORG to the conflict in whose power they are , without any adverse distinction based , in particular , on race , religion or political opinion .", "However , the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war . ”", "“ Should the Power , in whose hands protected persons may be , consider the measures of control mentioned in the present Convention to be inadequate , it may not have recourse to any other measure of control more severe than that of assigned residence or internment , in accordance with the provisions of ORG DATE and CARDINAL .", "... ”", "“ The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary .", "If any person , acting through the representatives of ORG , voluntarily demands internment , and if his situation renders this step necessary , he shall be interned by ORG in whose hands he may be . ”", "“ Protected persons shall not be arrested , prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation , or during a temporary interruption thereof , with the exception of breaches of the laws and customs of war . ... ”", "“ Protected persons who have been accused of offences or convicted by the courts in occupied territory , shall be handed over at the close of occupation , with the relevant records , to the authorities of the liberated territory . ”", "“ If the Occupying Power considers it necessary , for imperative reasons of security , to take safety measures concerning protected persons , it may , at the most , subject them to assigned residence or to internment . ... ”", "This statute was enacted to give effect in GPE domestic law to the provisions of the DATE LAW . It provides , inter alia :", "“ CARDINAL(CARDINAL ) Any person , whatever his nationality , who , whether in or outside GPE , commits , or aids , abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence . ”", "The term “ grave breach ” is defined in each of the LAW of DATE and in Additional Protocol I as certain acts ( including wilful killing , torture or inhuman treatment , wilfully causing great suffering or serious injury to body or health , extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly , wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial ) committed against “ protected persons ” ( as defined precisely in each Convention ) , including prisoners of war , civilians and the wounded .", "NORP The purpose of ORG ( JDP ) CARDINAL “ Prisoners of War , Internees and Detainees ” ( DATE ) is as follows :", "“ CARDINAL . ... to provide high - level joint doctrinal guidance on how to deal with persons who fall into the hands of ORG during military operations , whether Prisoners of War ( PW ) , civilian internees or those detained as a result of suspected or actual criminal activity .", "This Edition of JDP CARDINAL - CARDINAL is written primarily for the benefit of GPE operational Commander responsible for GPE Forces’ compliance with domestic GPE law , international law and ORG ) . It should prove useful to those involved in operational planning when the issues covered in this publication may arise . It is also intended to assist those responsible for all aspects of force protection and area security , personnel whose duties involve liaison with local civil authorities , ORG ( ORG ) , ORG , ORG ) ) , ORG Governmental Organisations ( NGOs ) and ORG ( IOs ) , such as ORG ( ICRC ) . ”", "LAW CARDINAL - CARDINAL.CARDINAL “ Detainees ” ( DATE ) concerns the handling of detainees . It commences by stating as follows ( footnotes omitted ) :", "“ CARDINAL . ORG may be empowered under ORG ( ORG ) law to participate in the arrest of criminal suspects or may be involved in the arrest of persons indicted for war crimes . This chapter details the arrangements for the handling of such persons when they are being temporarily detained by ORG during military operations abroad that do not amount to ORG .", "Detainees are a category of prisoner distinct from PW and internees . Detainees are those individuals who , during operations abroad not amounting to ORG , are held by ORG because they have committed , or are suspected of committing , criminal offences .", "Detainees are a category of prisoner who can only be held during operations other than ORG . It should be noted that , during ORG , those who have committed or are suspected of committing criminal offences are categorised and treated as internees .", "The provisions for the handling of detainees will vary according to the national laws of the territory in which ORG are operating , the nature of the operation and the legal framework under which ORG are operating . This is a complex area and specialist staff and policy advice will invariably be called for at the earliest stages of planning .", "Detainees should be handed over to the appropriate local authorities at the earliest opportunity , provided that there is no reason to believe they will suffer abuses of their human rights . ”", "Section IV of JDP CARDINAL - CARDINAL.CARDINAL is entitled “ Transfers ” and states :", "“ CARDINAL . Except for their repatriation or return to their country of residence after the cessation of hostilities , detainees must not be transferred to a ORG that is not a party to the GCs [ LAW ] . Moreover , they may only be transferred to a State that is a party if the detaining ORG has satisfied itself that the receiving ORG is willing and able to apply the GCs . In the event of transfers taking place , the receiving ORG becomes responsible for the application of the GCs . Should that ORG fail to carry out its obligations in any important respect , it is the duty of the ORG which made the transfer either to take effective measures to correct the situation or to request the return of the persons affected . ... In no circumstances may a detainee be transferred to a ORG where he has reason to fear persecution on account of his political opinions or religious beliefs .", "It should be borne in mind that the application of LAW to those held in GPE facilities in some circumstances may impose additional restrictions on their transfer , in particular if they are likely to be tried for an offence which carries the death penalty . ”", "Section V of JDP CARDINAL - CARDINAL.CARDINAL deals with “ Handover to the ORG ” . It provides :", "“ CARDINAL . Detainees must be handed over to the ORG authorities as soon as practicable in order that detainees can be dealt with according to the local criminal justice system . ...", "There may be cases where handover to the ORG can not take place immediately :", "a. If the ORG lacks sufficient criminal justice infrastructure to take custody of the detainee , for example , courts , police , custodial facilities and lawyers .", "b. If there are reasonable grounds to suspect the handover would compromise the safety of the detainee . ”", "Article CARDINAL of LAW of DATE provides :", "“ CARDINAL . Without prejudice to their privileges and immunities , it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving ORG . They also have a duty not to interfere in the internal affairs of that ORG .", "All official business with the receiving ORG entrusted to the mission by the sending ORG shall be conducted with or through ORG of the receiving ORG or such other ministry as may be agreed .", "The LOC of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present LAW or by other rules of general international law or by any special agreements in force between the sending and the receiving ORG . ”", "In R(B ) v. Secretary of ORG for Foreign and Commonwealth Affairs , cited above , ORG observed as follows :", "“ In a case such as ORG commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another ORG . The same is not necessarily true where a ORG permits an individual to remain within the shelter of consular LOC rather than requiring him to leave . It does not seem to us that the LAW can require GPE to give refuge to fugitives within consular premises if to do so would violate international law . So to hold would be in fundamental conflict with the importance that FAC attached in GPE to principles of international law . Furthermore , there must be an implication that obligations under a Convention are to be interpreted , insofar as possible , in a manner that accords with international law . What has public international law to say about the right to afford ‘ diplomatic PERSON ?", "Oppenheim [ ORG ’s International Law edited by the late Sir PERSON and Sir PERSON vol CARDINAL ] deals with this topic at paragraph CARDINAL , from which we propose to quote at a little length :", "‘ Paragraph CARDINAL : So - called diplomatic asylum", "The practice of granting diplomatic asylum in exceptional circumstances is of long - standing , but it is a matter of dispute to what extent it forms part of general international law .", "There would seem to be no general obligation on the part of the receiving ORG to grant an ambassador the right of affording asylum to a refugee , whether criminal or other , not belonging to this mission . Of course , an ambassador need not deny entrance to refugees seeking safety in the embassy . But as ORG noted in the ORG case ... in the absence of an established legal basis , such as is afforded by treaty or established custom , a refugee must be surrendered to the territorial authorities at their request and if surrender is refused , coercive measures may be taken to induce it . Bearing in mind the inviolability of embassy LOC , the permissible limits of such measures are not clear . The embassy may be surrounded by soldiers , and ingress and egress prevented ; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful , and measures involving an attack on the envoy ’s person would clearly be unlawful . Coercive measures are in any case justifiable only in an urgent case , and after the envoy has in vain been requested to surrender the refugee .", "It is sometimes suggested that there is , exceptionally , a right to grant asylum on grounds of urgent and compelling reasons of humanity , usually involving the refugee ’s life being in imminent jeopardy from arbitrary action . The practice of GPE has afforded instances of the grant of asylum in such circumstances . The grant of asylum ‘ against the violent and disorderly action of irresponsible sections of the population’ is a legal right which , on grounds of humanity , may be exercised irrespective of treaty ; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances . There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases . ORG judgment in the ORG case suggests that the grant of asylum may be justified where ‘ in the guise of justice , arbitrary action is substituted for the rule of law . Such would be the case if the administration of justice were corrupted by measures clearly prompted by political ORG . However , the ORG went on to emphasise that ‘ the safety which arises out of asylum can not be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted ORG . Thus it would seem not to be enough to show that a refugee is to be tried for a ‘ political’ offence : it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded . Even where permissible , asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist.’", "The propositions in ORG are based , to a large extent , on what seem to be the only juridical pronouncements on the topic to carry authority . On DATE ORG gave judgment in a dispute between GPE and GPE that GPE had referred to ORG GPE ) ( DATE ) ICJ Rep. CARDINAL . GPE had given refuge in its embassy in GPE to the leader of a military rebellion , which had been almost instantaneously suppressed . At issue was the effect of CARDINAL Conventions to which both GPE and GPE were party which made provision in relation to the grant of asylum to political refugees but not to criminals . GPE ’s arguments included the contention that by customary international law it was open to GPE unilaterally to determine that the fugitive fell to be classified as a political refugee . Much of the judgment related to the effects of the CARDINAL Conventions , but the ORG made some general comments in relation to ‘ diplomatic asylum’ :", "‘ The arguments submitted in this respect reveal a confusion between territorial asylum ( extradition ) , on the one hand , and diplomatic asylum , on the other .", "In the case of extradition , the refugee is within the territory of the ORG of refuge . A decision with regard to extradition implies only the normal exercise of the territorial sovereignty . The refugee is outside the territory of the ORG where the offence was committed , and a decision to grant him asylum in no way derogates from the sovereignty of that ORG .", "In the case of diplomatic asylum , the refugee is within the territory of the ORG where the offence was committed . A decision to grant diplomatic asylum involves a derogation from the sovereignty of that ORG . It withdraws the offender from the jurisdiction of the territorial ORG and constitutes an intervention in matters which are exclusively within the competence of the ORG . Such a derogation from territorial sovereignty can not be recognised unless its legal basis is established in each particular ORG", "In DATE CARDINAL fugitives who were subject to detention orders issued by the NORP government sought refuge in FAC in GPE . They became known as the GPE CARDINAL . ORG decided that it would not compel them to leave but that it would not intervene on their behalf with the NORP authorities . They were told that they could not stay indefinitely and , eventually they left . CARDINAL of them were immediately arrested and charged with high treason , which carried the death penalty . We were referred to an LAW ( CARDINAL ) by PERSON , which included the following propositions :", "‘ There exists no universally accepted international agreement to assure a uniform response by ORG to grant refuge in a mission in an emergency . Most countries , with the exception of those in LOC , deny outright the claim to diplomatic asylum because it encroaches upon the ORG ’s sovereignty .", "Some countries give limited recognition to the practice , allowing ‘ temporary safe stay’ on a case - by - case basis to persons under threat of life and limb . It should be recognised that a ORG has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries . Moreover , this should be considered a basic human right , to be invoked by those fleeing from the persecution for reasons of race , religion , or nationality , or for holding a political opinion in an emergency situation involving the threat of ORG", "Discussion", "We have concluded that , if the PERSON approach is to be applied to diplomatic asylum , the duty to provide refuge can only arise under the Convention where this is compatible with public international law . Where a fugitive is facing the risk of death or injury as the result of lawless disorder , no breach of international law will be occasioned by affording him refuge . Where , however , the receiving ORG requests that the fugitive be handed over the situation is very different . The basic principle is that the authorities of the receiving ORG can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction ; see LAW . Where such a request is made the LAW can not normally require the diplomatic authorities of the sending ORG to permit the fugitive to remain within the diplomatic LOC in defiance of the receiving ORG . Should it be clear , however , that the receiving ORG intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity , international law must surely permit the officials of the sending ORG to do all that is reasonably possible , including allowing the fugitive to take refuge in the diplomatic LOC , in order to protect him against such treatment . In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum .", "It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum . This is an area where the law is ill - defined . So far as NORP law was concerned , the applicants had escaped from lawful detention under the provisions of LAW . On the face of it international law entitled the NORP authorities to demand their return . We do not consider that the GPE officials could be required by the ORG and LAW to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury . ”", "At its meeting on DATE , ORG adopted the text of LAW No . CARDINAL to the LAW and authorised the publication of the following explanatory report ( footnotes omitted ) :", "“ CARDINAL . The right to life , ‘ an inalienable attribute of human PERSON and ‘ supreme value in the international hierarchy of human PERSON is unanimously guaranteed in legally binding standards at universal and regional levels .", "When these international standards guaranteeing the right to life were drawn up , exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law ( cf . , for example , LAW of LAW ... ) .", "NORP However , as illustrated below , there has since been an evolution in domestic and international law towards abolition of the death penalty , both in general and , more specifically , for acts committed in time of war .", "At the NORP level , a landmark stage in this general process was the adoption of LAW No . CARDINAL to the LAW in DATE . This LAW , which to date has been ratified by almost all GPE Parties to the LAW , was the first legally binding instrument in LOC – and in the world DATE which provided for the abolition of the death penalty in time of peace , neither derogations in emergency situations nor reservations being permitted . Nonetheless , under LAW , ‘ A ORG may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war’ . However , according to the same LAW , this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions .", "Subsequently , ORG established a practice whereby it required from GPE wishing to become a member of ORG that they committed themselves to apply an immediate moratorium on executions , to delete the death penalty from their national legislation , and to sign and ratify LAW No . CARDINAL . ORG also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to ORG . More generally , the ORG took the step in DATE of inviting all member GPE who had not yet done so , to sign and ratify LAW No . CARDINAL without delay ( Resolution CARDINAL ( DATE ) on the abolition of capital punishment ) .", "This fundamental objective to abolish the death penalty was also affirmed by LAW of member ORG GPE , DATE ) . In LOC , the Heads of State and Government called for the ‘ universal abolition of the death penalty and [ insisted ] on the maintenance , in the meantime , of existing moratoria on executions in Europe’ . For its part , ORG has indicated that it ‘ shares ORG strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place’ . ORG subsequently adopted a Declaration ‘ For a NORP Death Penalty - Free Area’ .", "In the meantime , significant related developments in other fora had taken place . In DATE , ORG adopted ‘ Guidelines to EU Policy Toward Third Countries on the Death Penalty’ which , inter alia , state its opposition to this penalty in all cases . Within the framework of ORG , a LAW to LAW , aiming at the abolition of the death penalty , was adopted in DATE . For DATE , ORG has regularly adopted ORG which call for the establishment of moratoria on executions , with a view to completely abolishing the death penalty . It should also be noted that capital punishment has been excluded from the penalties that ORG and ORG for the Former GPE and GPE are authorised to impose .", "The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above - mentioned developments concerning the abolition of the death penalty in general . It was raised for the first time by ORG in Recommendation CARDINAL ( DATE ) , in which it recommended that ORG draw up an additional protocol to the LAW , abolishing the death penalty both in peace- and in wartime .", "While ORG ) , by a large majority , was in favour of drawing up such an additional protocol , ORG at the time considered that the political priority was to obtain and maintain moratoria on executions , to be consolidated by complete abolition of the death penalty .", "A significant further step was made at ORG , held in GPE on DATE on the occasion of the CARDINALth anniversary of the Convention , which pronounced itself clearly in favour of the abolition of the death penalty in time of war . In Resolution II adopted by the Conference , the few member GPE that had not yet abolished the death penalty nor ratified LAW . CARDINAL were urgently requested to ratify this LAW as soon as possible and , in the meantime , respect strictly the moratoria on executions . In the same ORG , the Conference invited ORG ‘ to consider the feasibility of a new additional protocol to the LAW which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war’ ( paragraph CARDINAL of Resolution II ) . The Conference also invited member GPE which still had the death penalty for such acts to consider its abolition ( ibidem ) .", "In the light of texts recently adopted and in the context of ORG consideration of the follow - up to be given to ORG , ORG presented a proposal for an additional protocol to LAW at the CARDINAL meeting of ORG ( DATE ) . The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace .", "At their PERSON meeting ( DATE ) , ORG instructed the CDDH ‘ to study the NORP proposal for a new protocol to the Convention ... and submit its views on the feasibility of a new protocol on this matter’ .", "The CDDH and its ORG for ORG ) elaborated the draft protocol and the explanatory report thereto in the course of DATE . The CDDH transmitted the draft protocol and explanatory report to ORG on DATE . The latter adopted the text of the LAW on DATE at the ORG meeting of ORG and opened it for signature by member ORG on DATE . ”", "On DATE PACE adopted the following resolution on the “ Promotion by ORG member ORG of an international moratorium on the death penalty ” :", "“ CARDINAL . ORG confirms its strong opposition to the death penalty in all circumstances . The death penalty is the ultimate form of cruel , inhuman and degrading punishment : it violates the right to life . The ORG takes pride in its decisive contribution to making the member ORG death penalty - free zone , and strongly regrets the fact that CARDINAL NORP country – GPE – still carries out executions .", "The ORG has also on several occasions taken a strong stand against executions in other parts of the world , and in particular in ORG GPE which retain the death penalty , namely GPE and GPE .", "It notes with satisfaction that the death penalty is on the decline worldwide , as shown by a PERCENT decrease in executions and death sentences DATE .", "It also draws attention to the fact that PERCENT of known executions in DATE took place in CARDINAL countries : GPE , GPE , GPE , GPE , GPE , and GPE – a ORG observer ORG . Based on available public records , which may cause the number of executions to be underestimated in countries lacking free media or an accountable government , GPE alone accounts for CARDINAL of all executions worldwide . GPE ’s execution rate nearly doubled from DATE . GPE also witnessed a dramatic increase in executions in DATE , bringing the number up to CARDINAL . GPE , among the worst offenders in DATE , saw a decrease in DATE to CARDINAL executions , but witnessed an upsurge in DATE ( CARDINAL executions through to DATE ) .", "The small number of countries that still resort to executions on a significant scale is becoming increasingly isolated in the international community . DATE , the number of abolitionist countries rose from CARDINAL . This number increases to CARDINAL when including those countries which have not carried out any executions for DATE or more and which can therefore be considered as abolitionist in practice . The time is now ripe to give new impetus to the campaign in favour of a death penalty - free world .", "The ORG therefore strongly welcomes NORP efforts in ORG in advocating for a moratorium on the death penalty , as well as the support of ORG for this initiative , and expects it to be proceeded with in such a manner as to guarantee the best possible success within ORG .", "A moratorium on executions is but CARDINAL step in the right direction , the ultimate goal remaining the complete abolition of the death penalty in all circumstances .", "In the meantime , a moratorium is an important step as it saves lives immediately and has the potential of demonstrating to the public in retentionist countries that an end to ORG - sponsored killings does not lead to any increase in violent crime . On the contrary , a moratorium on executions can bring about a change of atmosphere in society fostering greater respect for the sanctity of human life , and thus contribute to reversing the trend towards ever - increasing hate and violence .", "Finally , a universal moratorium on the death penalty represents a concrete and highly symbolic political act , which could help change an international climate which is all too often characterised by violent actions which take their victims – by no means exclusively in a context of conflict DATE from among civilian populations . A universal moratorium on the death penalty would also make a significant contribution to the establishment of a shared and operational body of principles and rules leading towards a more effective rule of law at international level .", "The ORG calls on all member and observer GPE of ORG to actively support the initiative for the abolition of the death penalty in ORG and to make the best use of their influence in order to convince countries that are still on the sidelines to join in . In this context , it warmly welcomes the resolution in the same spirit , adopted by ORG on DATE , on the initiative for a universal moratorium on the death penalty .", "At the GPE meeting of DATE , ORG and ORG ( ORG ) of ORG unanimously made a formal commitment to tabling DATE at the next session of ORG of the United Nations – a resolution calling for a moratorium on executions all over the world .", "The ORG recalls that , whilst CARDINAL States have so far ratified LAW to LAW ( ORG ) , adopted by ORG in DATE to promote the universal abolition of the death penalty , CARDINAL ORG member and observer GPE have not yet done so , namely GPE , GPE , GPE , GPE ( observer ) , GPE , GPE ( observer ) , GPE ( signed but not ratified ) , GPE , GPE , and GPE ( observer ) . For countries which have de facto and de jure abolished the death penalty ( GPE , GPE , GPE , GPE , GPE ( observer ) , GPE and GPE ) , or which maintain a moratorium ( NORP Federation ) , the ratification of LAW to the ORG would be a valuable gesture of political support for abolition , and would contribute to further isolating the remaining retentionist countries .", "ORG own instruments against the death penalty are also still lacking ratifications . In particular , Protocol No . CARDINAL to ORG concerning the abolition of the death penalty ( ORG . CARDINAL ) has still not been ratified by GPE , despite the commitment to do so undertaken upon its accession to ORG in DATE . Protocol No . CARDINAL to the Convention concerning the abolition of the death penalty in all circumstances ( ETS No . CARDINAL ) , including in time of war or imminent threat of war , has still not been signed by GPE and GPE , and has still not been ratified by GPE , GPE , GPE , GPE , GPE and GPE . For the sake of the strong and unified signal to be sent by ORG as a whole , the ORG calls on the countries concerned to sign and ratify these instruments without further delay .", "The ORG notes in this context that GPE ’s ORG approved on DATE , in a second reading , the constitutional bill containing amendments to LAW concerning the abolition of the death penalty ; the bill is presently before the senate for its second reading and final adoption under the current procedure for constitutional revision . The bill aims to delete from LAW the following words : ‘ unless in the cases provided for by military laws in case of war’ , thus eliminating any reference to the death penalty in LAW and making it possible to ratify LAW . CARDINAL to the Convention .", "Also , the ORG reiterates its view , noted in LAW ( DATE ) on the position of ORG as regards ORG member and observer GPE which have not abolished the death penalty , that the death penalty should be abolished in GPE , GPE and GPE , and that the sentences of all prisoners currently on death row in these territories should be immediately commuted to terms of imprisonment in order to put an end to the cruel and inhuman treatment of those who have been kept on death row for DATE in a state of uncertainty as to their ultimate fate .", "The ORG fully supports the Conference to establish a NORP Day against the Death Penalty , to be held in GPE on DATE , and expects all member ORG also to show their unstinting support . Given its pioneering work on the abolition of the death penalty in LOC and beyond , the ORG must play a central role , including through involvement in the drafting of the joint declaration , which its President should co - sign at the inaugural conference . The ORG will stand ready to contribute to publicity and promotion , including through coordination of supporting events in member States’ national parliaments . ”", "In GPE v. GPE ( Communication No . CARDINAL , ORG . ORG , DATE ) , ORG found that PERSON extradition to GPE , where he risked execution , gave rise to a violation by GPE of LAW ( ORG ) . ORG made the following request :", "“ CARDINAL . ORG requests ORG to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to ORG to ensure that a similar situation does not arise in the future . ”", "In PERSON Judge v. GPE ( Communication No . DATE , ORG . ORG , DATE ) , the ORG found that PERSON Judge ’s deportation to GPE , where he had been sentenced to be executed , gave rise to violations by GPE of the ORG , and continued :", "“ CARDINAL . Pursuant to LAW ( a ) of the LAW , the ORG concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving ORG to prevent the carrying out of the death penalty on the author . ”", "In its judgment of DATE in LOC and Others , ORG for GPE found a number of violations of the Convention arising from the transfer of the claimants , who had been detained in GPE , to the custody of the GPE security services who subsequently removed them to FAC at FAC . ORG then ordered GPE , inter alia , to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants , including attempts to seek assurances from GPE via diplomatic contacts that the applicants would not be subjected to the death penalty ." ]

[ "13", "3", "34" ]

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[ "The applicant , PERSON , is a NORP national born in DATE who resides in GPE in GPE . Before the ORG he is represented by PERSON M. Ziegler , a lawyer practising in GPE .", "The facts of the case as submitted by the applicant may be summarised as follows .", "Criminal proceedings were instituted against the applicant on account of water pollution . During the course of the investigations he was remanded in custody for DATE . On DATE the ORG ( LOC ) convicted the applicant of various charges of having contravened LAW ( Umweltschutzgesetz ) and ORG ( Gewässerschutzgesetz ) . The conviction was confirmed upon appeal by ORG ) of the GPE of GPE on DATE which sentenced the applicant to CARDINAL months’ imprisonment , suspended on probation , a fine of MONEY ( CHF ) , and damages of CHF CARDINAL .", "The applicant then filed CARDINAL pleas of nullity ( PERSON ) , CARDINAL with ORG ( Kassationsgericht ) of the GPE of GPE in which he complained of various procedural deficiencies , the other with ORG ( PERSON ) in which he complained of his conviction . On DATE ORG partly upheld the applicant ’s plea of nullity . In particular , it found that ORG , contrary to LAW , had not pronounced its judgment publicly ; however , ORG considered it unnecessary for this reason to quash the previous decision as this would unnecessarily prolong the proceedings .", "Against the decision of ORG the applicant filed on DATE a public law appeal ( staatsrechtliche Beschwerde ) with ORG . Therein , he complained , inter alia , that ORG had not conducted an oral hearing and had disregarded certain submissions of his ; that it had failed to transmit CARDINAL submission of a lower instance to him for observation ; that it had failed to draw the necessary conclusions from the fact that the judgment of ORG had not been pronounced publicly ; that a LOC Attorney who had ordered the applicant ’s detention on remand had breached LAW ; that certain ORG judges had been biased ; and that previous instances had in various respects incorrectly assessed the evidence . In his public law appeal the applicant also requested all submissions in the proceedings to be transmitted to him for his observations .", "ORG transmitted a copy of the applicant ’s public law appeal to ORG of the GPE of GPE and to ORG . The latter filed no observations , whereas ORG submitted a reply , numbering CARDINAL pages , on DATE . Therein it explained , inter alia , why the applicant could in respect of CARDINAL issue no longer be considered a victim , and why certain other submissions were new and could not therefore be considered by ORG . It pointed out that the ORG ’s jugment in the PERSON ( judgment of DATE , Reports DATE , p. CARDINAL ) would , if applied consistently , prolong proceedings ad infinitum , and it also explained its point of view in respect of the complaint under LAW .", "On DATE ORG transmitted a copy of the observations of ORG to the applicant . By letter of DATE the applicant filed a request with ORG , asking for the opportunity to reply to the observations of that court , though it appears that he received no reply thereto .", "In CARDINAL judgments of DATE ORG dealt with the applicant ’s plea of nullity and public law appeal . Both judgments were served on the applicant on DATE .", "In the judgment of DATE concerning the applicant ’s plea of nullity , ORG considered the various relevant legal provisions and concluded that the applicant had been incorrectly convicted . As a result , it quashed the judgment of ORG of the GPE of GPE of DATE . The applicant was awarded CHF CARDINAL as compensation for costs .", "In the other judgment of DATE , numbering CARDINAL pages , ORG dismissed the applicant ’s public law appeal , while imposing CHF CARDINAL as court costs on him . In its judgment it dismissed the applicant ’s complaints that he had not had an oral hearing before ORG and that his subsequent submissions had not been considered . To the extent that the applicant had not been able to comment before ORG on the observations of a lower instance , ORG considered a reply unnecessary as the submissions had been “ completely irrelevant ” ( völlig belanglos ) . Insofar as the applicant complained about the consequences of the lack of public pronouncement , ORG found that the applicant had insufficiently substantiated this complaint , and that in any event it found ORG reasoning pertinent . ORG also dismissed the applicant ’s complaints about the taking of evidence .", "Proceedings were then resumed before ORG of the GPE of GPE which on DATE acquitted the applicant of the various offences ." ]

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[ "The applicant , a NORP citizen born in DATE , lives in GPE . In DATE , she met a Mr. B , with whom she started living . Her son , A , was born on CARDINAL DATE , shortly after Mr. PERSON ’s release from a term of imprisonment . She had a second child , PERSON , on DATE and a third - who is not the subject of the present proceedings - in DATE .", "DATE after her discharge from hospital after the birth of A , the applicant was severely assaulted by Mr. PERSON He again assaulted her in DATE , during a visit to A in hospital . Although the applicant was not aware of it at the time , this incident caused ORG of the local authority ( \" the ORG \" ) in whose area she lived to put A on the \" at - risk register \" ; such registers , which are maintained on a non - statutory basis by each local authority for reference purposes as an administrative aid for agencies with professional responsibilities for children , record particulars of children identified as being actually or potentially at risk of abuse .", "In DATE , after a period of accommodation in hostels , the applicant and Mr. B obtained the tenancy of a flat , but difficulties arose because of his drinking , his constant assaults on the applicant and his failure to pay the rent . The applicant acknowledges that at this time she was managing to look after A but unable to give him enough love and attention . From DATE , the family was regularly visited by a social worker , who assisted it notably with its financial problems .", "In DATE , the applicant was visited by a social worker who told her of ORG ’s entry on the \" at - risk register \" . On another occasion , the social worker warned Mr. B that , if he did not \" buck his ideas up \" , A would be taken away . In DATE , Mr. PERSON sought treatment for his drinking problem , but when on DATE leave relapsed and again assaulted the applicant .", "During the course of a visit by the applicant , A and Mr. B to the latter ’s family in GPE in DATE , Mr. PERSON was arrested on fraud charges . On returning home with A , the applicant discovered that Mr. B had permitted squatters to enter the flat and had \" sold \" them the key . The ORG advised the applicant to put A into voluntary care ( see paragraphs CARDINAL below ) for DATE until the flat could be recovered and it placed A with short - term foster parents employed by its ORG . The ORG subsequently evicted the squatters ; the applicant , who was again pregnant , followed its advice to leave A in voluntary care until after her confinement .", "The applicant ’s second child , J , was born on DATE , by which time Mr. B had returned from GPE , having been given a suspended sentence . On DATE , he arrived at the foster GPE home , drunk and in an aggressive mood , to collect A to visit the applicant in hospital . On being notified by the foster parents , the ORG sent a social worker to accompany Mr. PERSON A. It was worried that Mr. B would remove A from care and the night - duty staff were warned to apply for a place of safety order ( see paragraph CARDINAL below ) should he try to do so . The social workers also warned Mr. B that , unless his behaviour improved , the ORG might assume his parental rights ( see paragraph CARDINAL below ) .", "The applicant was discharged from hospital on DATE and A was returned home in DATE , but the situation with Mr. PERSON did not improve .", "In DATE , the applicant was admitted to hospital urgently . She and Mr. PERSON decided that since he was incapable of looking after the children , they should be put into the voluntary care of the ORG , which placed them with foster parents . Whilst in hospital , the applicant decided to leave Mr. PERSON With the assistance of a social worker she went to a women ’s aid refuge where she stayed for DATE .", "The ORG was fearful as to Mr. B ’s likely reaction to the applicant ’s decision to leave him and the possibility that he might discharge the children from voluntary care . In DATE , the Chairman of the ORG ’s ORG approved the passing of a resolution assuming Mr. B ’s parental rights over the children - although , since they were illegitimate , he did not in fact have , for the purposes of the relevant legislation , any such rights - , on the ground that his \" habits or mode of life render[ed ] him unfit to have the care of the child[ren ] \" . He was told of this resolution , but made no objection ( see paragraph CARDINAL below ) . He continued to receive support from the social services and was admitted to hospital in DATE for alcohol detoxification , but relapsed .", "Whilst at the women ’s refuge , the applicant visited A and J frequently at their foster GPE home . She told the social worker responsible that she wanted to discharge the children from care when she had recovered from the period in hospital . She also took legal advice with a view to excluding Mr. PERSON from contact with her or the children , as the ORG had made this a condition for offering her accommodation with them .", "Following a case conference held in DATE - in the absence of the applicant , who had not been informed of the meeting - , the ORG decided to place J , in addition to A , on the \" at - risk register \" in view of the uncertainty of the family ’s position . Nevertheless , the social worker responsible told the meeting that it was hoped that in time the children would be re - united with the applicant ; the possibility that she might resume living with Mr. PERSON was also discussed , but no decision was reached as to the consequences which this should have for her and the children .", "On DATE , A and J were discharged from care and went to live with the applicant at the refuge .", "The applicant had applied to the local ORG for an injunction excluding Mr. B from the flat and on DATE she heard from her solicitor that the proceedings were to come on for hearing on DATE . On the basis of the good relations existing between them , the applicant arranged with the short - term foster parents , with whom the children had been placed before , that they would look after the children on DATE of the hearing ; this was an informal arrangement in which the ORG was not involved .", "On DATE , the applicant met Mr. B outside the court and they agreed to try to resume their relationship despite the proceedings . The facts relating to the subsequent TIME are in dispute . According to the applicant , she asked the foster parents to look after the children for a further night so that she could establish the effectiveness of the reconciliation with Mr. PERSON She also states that she was told to contact a senior social worker , whom she had never met , who informed her that she could not have her children returned to her if she intended to resume her relationship with Mr. B ; she understood the position to be that she should leave the children with the foster parents until DATE , that the ORG would take no action in the meantime and that , on that date , she should discuss the matter with the social worker whom she knew . According to the social worker ’s records , the applicant and Mr. B were both warned on DATE that the ORG would have to obtain some legal authority over the children , although a parental rights resolution was not mentioned .", "During a discussion on DATE , the CARDINAL social workers responsible for the case agreed that an application should be made to assume the applicant ’s parental rights . The relevant notes record :", "\" ... In the longer term , consideration should be given to spelling out to [ the applicant ] what we would expect of her prior to discharging the children to her again , and that if she appears unable to provide long - term satisfactory care for them we would move to considering freeing them for adoption . \"", "The applicant , who had not been contacted by the ORG on DATE either in respect of this discussion or otherwise , attended ORG on DATE as , according to her , she had arranged . She states that she was informed on DATE that the ORG had passed a resolution assuming her parental rights over A and J.", "The circumstances surrounding the exact date and the manner of the passing of the resolution are confused . In all subsequent proceedings the ORG maintained that it was passed on DATE , but ORG investigation ( see paragraph CARDINAL below ) reveals that it was dated DATE , possibly as a result of delay in typing the document . Although at the time the children were de facto placed with the foster parents who had looked after them when they were in voluntary care ( see paragraph CARDINAL above ) , it appears to be very doubtful whether they were then , as a matter of law , in the voluntary care of the ORG and therefore whether the resolution was lawfully made ( section CARDINAL(CARDINAL ) of LAW DATE ; see paragraph CARDINAL below ) . According to ORG , the ORG believed the resolution to be lawful and its officers had acted in good faith . The grounds for the purported assumption of the applicant ’s parental rights were that she had consistently failed , without reasonable cause , to discharge the obligations of a parent so as to be unfit to have the care of the children .", "After service by the applicant , on DATE , of a counter - notice objecting to the parental rights resolution , the question of its appropriateness was referred by the ORG on DATE to the juvenile court for decision ( see paragraph CARDINAL below ) . Various hearing dates were set , but had to be vacated ; in the meantime , A and J , who had been placed with short - term foster parents , remained subject to the resolution and were visited by the applicant , approximately once a week . The social worker responsible informed her that if Mr. B obtained work and if their flat was improved , the social worker would not oppose the children ’s return home . On DATE , the applicant was offered increased access of CARDINAL visits per week . According to ORG report , the applicant told a social worker in DATE that she was very anxious about the children returning home because of Mr. PERSON ’s behaviour and , on DATE , that she felt \" unable to look after the children \" . In DATE , the juvenile court hearing was adjourned because the applicant ’s solicitor was ill and to enable her to obtain a medical report on Mr. PERSON", "On DATE , Mr. B got drunk and broke into a safe in a hospital where he and the applicant had started voluntary work . After going to GPE and spending the proceeds there , they were both arrested and charged , the applicant subsequently being released on bail . On DATE , she was sentenced to CARDINAL months’ imprisonment but on DATE , following an appeal to ORG , she was released on DATE probation . Mr. PERSON was imprisoned until DATE , and there has been no further contact between him and the applicant .", "At a case conference on DATE , the ORG took the contingent decision that if the parental rights resolution did not lapse - because the applicant either withdrew her objection thereto or failed in challenging it before the juvenile court - , her access to A and J would be stopped and they would be placed for adoption with long - term foster parents . The applicant was not notified of the conference or its outcome and the fact that this decision was taken was only revealed subsequently .", "The adjourned hearing before the juvenile court was held on DATE , but on that occasion the applicant withdrew her objection to the parental rights resolution : her then solicitors had advised her that , being in prison at the time , she could not realistically contest the resolution , although she should be able to retain contact with the children .", "On her release from prison on DATE , the applicant asked to see her children . She was told that she could not , firstly because she had been in prison and secondly because of her relationship with Mr. B ; she also learned , for the first time , that it was proposed to place the children for adoption in the very near future . They were in fact so placed in DATE , with long - term foster parents to whom they had been introduced on DATE . The applicant , who had last seen A and J on DATE , did not see them again until DATE ( see paragraph CARDINAL below ) .", "Having taken further legal advice , the applicant applied on DATE to the juvenile court for the discharge of the parental rights resolution ( see paragraph CARDINAL below ) . She was no longer able to maintain that she had opposed the resolution throughout , but submitted that its discharge would be in the children ’s best interests . Due to court delays the case was not heard until CARDINAL and DATE , when the juvenile court decided by a majority that the resolution should stand . It considered that there was a risk that the applicant would resume her relationship with , and hence expose the children to the influence of , Mr. PERSON ; further , that it would be disruptive for the children to move them from the long - term foster parents .", "An appeal by the applicant to ORG of ORG against this decision was heard on DATE and was dismissed . The judges took the view that it would cause the children unjustifiable disruption to remove them from their foster parents and concluded that , on balance , the children ’s interests were best served by their remaining in care . The applicant had argued that if her appeal were not allowed , the question of her access to the children would be decided by the ORG in its sole discretion and unfavourably to her , given its commitment to their adoption . Whilst it considered this argument , ORG was not able to examine the question of access as a separate issue ( see paragraph CARDINAL below ) . Both judges referred to the effects of the passage of time between the placing of the children with prospective adopters in DATE and the hearing of the appeal , the President of ORG stating :", "\" I do not suggest anyone is to blame for this . It may merely be the result of circumstances ... It can not be sufficiently stressed that in a case such as the present , where continuity is seen by all concerned to be highly relevant , and indeed was the very basis of the decision of the court below , expedition is all in relation to the possible success of an appeal . There is no reason why an interlocutory application should not be made in this court to expedite the hearing of an appeal . \"", "The applicant was given leave to appeal to ORG against ORG decision , but did not pursue the matter .", "After taking further advice , the applicant applied to ORG in DATE to make the children wards of court ( see paragraphs DATE and DATE below ) , in order to raise the issue of her access to them . On DATE , ORG , following the principles set out by ORG in A v. ORG , declined to exercise its jurisdiction to continue the wardship : it found it impossible to say that there had been some clear abuse by the ORG in the exercise of its discretion ( see paragraphs CARDINAL - CARDINAL below ) . It considered , inter alia , that it would have been \" premature \" for the ORG to have informed the applicant in DATE of its contingent decision of DATE ( see paragraph CARDINAL above ) .", "The applicant was granted leave to appeal against this decision but was advised that there were no grounds for doing so ; she was also told at that time that there were no further remedies available to her for the resumption of access to the children .", "The applicant referred the matter to ORG , who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions .", "The applicant alleged maladministration in that ( a ) there were shortcomings in the way in which the ORG assumed her parental rights in DATE and ( b ) the ORG failed subsequently to keep her informed of its intentions for her children . In his report of CARDINAL DATE , ORG found maladministration on the first but not on the second of these grounds , although he added that ideally the applicant should have been told of the decision taken at the case conference of CARDINAL DATE ( see paragraph CARDINAL above ) . In considering the injustice suffered as a result of the maladministration found , he stated :", "\" I can not now speculate what would have happened had the errors not occurred . Events may quite well have turned out no differently , but it is impossible to say . The clock can not be put back and , as I have made clear , the future of the children is in the hands of the courts . Accordingly there is little that the [ ORG ] can now do to remedy the possible injustice , except to apologise to [ the applicant ] and reimburse her for any costs she has incurred in making her complaint to me , and to review [ its ] procedures . I am pleased to note that [ it is ] already carrying out such a review . \"", "On CARDINAL DATE , the foster parents applied to adopt A and J. In DATE , whilst adoption proceedings were pending before ORG , the applicant applied to it for the children to be made wards of court , notably because the prospective adopters had separated and in order to seek access to and care and control of the children . In DATE , the ORG , by its own decision , rescinded the parental rights resolution . On DATE , ORG confirmed the wardship and also dismissed the foster GPE application to dispense with the applicant ’s consent to the adoption ( see paragraph CARDINAL below ) ; the question of access was adjourned .", "On DATE , an order was made in ORG authorising the guardian ad litem ( see paragraph DATE below ) to arrange and supervise up to CARDINAL visits per year between the applicant and A and J ; the latter are still wards of court and are living with the foster mother . Such visits took place in DATE and DATE and , at the time of the hearings before ORG , another was in prospect for DATE .", "In the law of GPE and GPE , there are a number of different and partially co - ordinated procedures for dealing with the welfare of children . Whilst the oldest of these is the wardship jurisdiction of ORG , it has for DATE co - existed with , but not been ousted by , various statutory provisions whereby a child who is at risk may be put into the care of a local authority .", "Although the terms are not wholly accurate , the legislation is commonly divided into CARDINAL categories : the first provides for \" compulsory care \" , by establishing machinery whereby a local authority can obtain a court order committing a child to its care ; the second concerns \" voluntary care \" , the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts . At any given time , there are CARDINAL children in public care in GPE and GPE , of whom CARDINAL are not living with their parents or a relative .", "The statutory provisions have been amended on several occasions and many of them were repealed and replaced by LAW ( \" LAW \" ) , a consolidating measure the greater part of which came into force on DATE . In the following summary of the law in force at the time of the present case , the original enactments are cited first and any corresponding provision of the DATE Act in force at the relevant time is indicated in square brackets .", "By way of general background information , the summary covers all CARDINAL of the procedures referred to above ( namely those relating to compulsory care , voluntary care and wardship ) , but in the present case it was the machinery for voluntary care and the wardship jurisdiction of ORG which were directly relevant .", "The principal statute concerning compulsory care is ORG \" LAW \" ) , as amended by LAW DATE and then partly replaced by LAW ; it enables a local authority to obtain , as a temporary measure , a \" place of safety order \" and , as longer - term measures , a variety of other orders .", "Under section CARDINAL ) of the CARDINAL Act , any person , including a local authority , may apply to a justice of the peace for authority to detain a child and take him to a place of safety ; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe , inter alia , that the child ’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill - treated , or that he is exposed to moral danger .", "A \" place of safety order \" so granted lasts for a maximum of DATE and can not be extended . The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it .", "If the local authority wishes to retain the child in protective surroundings after the DATE period , it has either to make the child a ward of court ( see paragraphs DATE below ) , or to institute care proceedings under LAW ( see paragraphs CARDINAL below ) , or to apply to a justice or a GPE court for an interim order under section PERSON ) ( see paragraph CARDINAL below ) ; if an application of the last kind is refused , the child ’s immediate release \" may be ordered \" .", "Under sections CARDINAL and CARDINAL ) of the DATE Act , a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is , subject to certain exceptions , under a duty to institute care proceedings by bringing the child before a juvenile court .", "In care proceedings instituted by a local authority , the parties are the local authority and the child , but not the latter ’s parents . The child is entitled , subject to his means , to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer . If the child is of sufficient competence , he may decide that he wishes to be separately represented .", "A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority . As a matter of practice , the court will also allow such parent to cross - examine witnesses on behalf of the local authority and to have separate legal representation .", "If the court before which the child is brought is satisfied that CARDINAL of the grounds specified in section CARDINAL of the DATE Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made , it may make , inter alia , a supervision order , a care order or an interim order . The specified grounds include those on which a place of safety order may be made ( see paragraph CARDINAL above ) .", "A supervision order is an order placing the child under the structured supervision of the local authority ; subject thereto , he may continue to live with his parents .", "A care order is an order committing the child to the care of the local authority . The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order ( section CARDINAL of the DATE Act [ ORG ) of the DATE Act ] ) , except that it can not cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it can not agree to the child ’s adoption .", "An interim order is a care order limited to a specified period not exceeding DATE ; it may be renewed on application ( section QUANTITY of the DATE Act ) . It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made ( section CARDINAL(CARDINAL ) ) or , alternatively , during the currency of a place of safety order ( see paragraph CARDINAL above ) . The powers and duties of the local authority under an interim order are the same as under a full care order ( see paragraph CARDINAL above ) .", "A full care order normally terminates when the child in question attains DATE ( section CARDINAL(CARDINAL)(b ) of the CARDINAL Act ) .", "In addition , under sections CARDINAL ) and CARDINAL ) , the juvenile court may , on application by the child or his parent on the child ’s ( but not his own ) behalf and if it considers it appropriate , discharge the care order and may , on discharging it , make a supervision order in respect of the child . Such applications may be made DATE or , with the juvenile court ’s permission , more frequently ( section ORG ) ) . The paramount consideration in deciding whether to discharge the order is the interests of the child .", "Under sections ORG ) and CARDINAL ) of the DATE Act , the child in respect of whom the care order was made , or his parent on the child ’s ( but not his own ) behalf , may appeal to ORG against the making of a care order , against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge . ORG will review the decision by way of re - hearing the case . From ORG a further appeal may , with leave , be made to ORG by way of case stated ; thereafter an appeal lies to ORG and , in rare cases , to ORG .", "The local authority has no general right to appeal against a juvenile court ’s refusal to make a care order , except on a point of law to ORG .", "The principal statute concerning voluntary care is LAW DATE ( \" LAW \" ) , as amended by LAW DATE and then replaced by LAW . This legislation in effect enables a parent to place his child into the care of a local authority ; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently .", "LAW [ CARDINAL of the DATE Act ] imposes on the local authority a duty to receive into its care a child under CARDINAL where it appears , inter alia , that his parents or guardian are for the time being or permanently prevented by illness , incapacity or other circumstances from providing for his proper accommodation , maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child ’s welfare . Whilst the authority must , save as otherwise provided in the LAW , keep the child in its care so long as his welfare requires it and he has not attained the age of DATE , it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child ’s welfare .", "LAW [ CARDINAL of the DATE Act ] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care . However , if the child has been in care throughout DATE , no person may take him away unless he has given CARDINAL days’ notice of his intention to do so or has the authority ’s consent ( section CARDINAL(CARDINALA ) [ CARDINAL ) ] ) .", "Moreover , if a parent requests the return of the child , the authority is not compelled to comply regardless of his welfare ( ORG v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . If it then considers the transfer of care to the parent to be inconsistent with that welfare , it may either pass a parental rights resolution ( see paragraph CARDINAL below ) or apply to make the child a ward of court ( see paragraphs CARDINAL - CARDINAL below ) .", "If it appears to a local authority in relation to any child who is in its care under LAW [ CARDINAL of the DATE Act ] that , inter alia , a parent of his is unfit to have the care of the child on account , notably , of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent , the local authority may resolve that there vest in it the parental rights and duties with respect to that child ( section CARDINAL(CARDINAL ) [ CARDINAL ) ] ) . The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property , including \" a right of access \" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders ( section CARDINAL(CARDINAL ) of the DATE Act [ CARDINAL(CARDINAL ) of LAW ] and section CARDINAL(CARDINAL ) of LAW DATE ) .", "Before passing a parental rights resolution , the local authority must consider a report from its ORG on the desirability of assuming parental rights , which report should contain all the material necessary for the proper exercise of the authority ’s discretion . In deciding the matter , the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account .", "If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known , he must be served with notice of it , indicating his right to object by counter - notice within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ] ) . If such objection is made , the resolution lapses on the expiry of DATE from service of the counter - notice ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) . However , within that period , the local authority may \" complain \" to a juvenile court , in which event the resolution will not lapse until the complaint is determined ; on hearing the complaint , the court may order that the resolution is not to lapse , provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child ’s interest ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) ] ) .", "A parental rights resolution continues in force until the child attains DATE , unless it is previously rescinded by the local authority or terminated by a juvenile court ( LAW CARDINAL of LAW [ CARDINAL of the DATE Act ] ) .", "The parent concerned , even if he did not originally object to the parental rights resolution , may apply to a juvenile court for its discharge . The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child ’s interests ( section CARDINAL(CARDINAL)(b ) [ CARDINAL(CARDINAL)(b ) ] ) . An application based on the original foundation for the resolution can , however , be entertained only if lodged within DATE of its adoption ( section CARDINAL of the Magistrates’ Court Act DATE ) .", "Under section CARDINAL of the DATE LAW ] , an appeal ( by the parent or the local authority ) lies to ORG of ORG from the making by a juvenile court of an order confirming ( under section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) or discharging ( under section CARDINAL(CARDINAL)(b ) [ CARDINAL ) ] ) a parental rights resolution , or from a juvenile court ’s refusal to make such an order . A further appeal lies to ORG and , with leave , to ORG .", "ORG of ORG has an inherent jurisdiction , independent of statutory provisions and deriving from the prerogative power of the ORG acting in its capacity as parens patriae , to make a child a ward of court .", "The effect of wardship is that custody , in a broad sense , of the child is vested in the court itself ; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever , notably as regards the care and control of and access to the child and his education , religion or property . In making such orders , the court is required to treat the child ’s welfare as the \" first and paramount consideration \" ( Guardianship of Minors Act DATE , section CARDINAL ) . Unless terminated earlier by order of the court , the wardship continues until the child attains his majority .", "Where there are exceptional circumstances making it impracticable or undesirable for the ward to be , or continue to be , under the care of his parents , the court may make an order committing him to the care of the local authority ( LAW DATE , section CARDINAL(CARDINAL ) ) , subject to the power of the court to give directions ( Matrimonial Causes Act DATE , section CARDINAL(CARDINAL)(a ) ) . In such circumstances , custody of the child remains with the court and it is for the court , and not the local authority , to take major decisions regarding the ward ’s future ; it retains , inter alia , jurisdiction to make orders for access to the child .", "PERSON proceedings may be instituted by anyone who can show an appropriate interest in the child ’s welfare . An application for a wardship order has to be made by originating summons . The child becomes a ward immediately the summons is issued but the wardship automatically lapses after DATE unless within that time an appointment is made for the hearing of the summons . This appointment is normally held before a registrar who , subject to an appeal to a judge , may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings .", "A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child . From the judge ’s order , an appeal lies to ORG and thence , with leave , to ORG .", "The child may be represented in wardship proceedings by a guardian ad litem appointed by the court ; this is usually the Official Solicitor , who is a full - time public employee entirely independent of the executive .", "Under the Rules of ORG , it is possible to seek an order expediting the proceedings , notably if a party thereto is dilatory .", "The functions of a local authority in child - care matters are exercised and decisions are taken either by its ORG or by a sub - committee or an officer to whom powers have been delegated . At the time relevant to the present case , the practice varied from authority to authority , there being no precise requirements or guidance even of a non - statutory kind , and much depended on the nature or gravity of the decision to be taken . Whether the child is in its care by virtue of the DATE [ DATE ] or LAW , the local authority must give first consideration to the need to safeguard and promote the child ’s welfare throughout his childhood , and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them , having regard to his age and understanding ( section CARDINAL of LAW DATE [ CARDINAL ) of the DATE Act ] ) .", "Authorities’ decisions in this area are , in fact , often based on the outcome of case reviews or case conferences . The authority is under a statutory duty to review the case of each child in its care at DATE intervals ( section CARDINAL(CARDINAL ) of the DATE Act ) and , as a matter of practice , the child ’s position will in addition be regularly examined at case conferences . Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority ’s ORG , as well as by such other persons as health visitors , doctors and police officers .", "A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof , although he has no legal right to do so . His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority .", "In the absence of legal proceedings , the parent can not compel the local authority to produce or permit inspection of TIME of its relevant meetings or reports produced thereat , although the authority has a discretion to allow such inspection . In proceedings for judicial review ( but not in juvenile court proceedings ) , the court may order the pre - trial disclosure of such documents , but only after leave to institute the proceedings has been obtained ( see paragraph CARDINAL below ) ; however , this would be a rare occurrence , the general rule being that the documents are privileged and not open to inspection .", "A parent whose child is in the care of a local authority is not automatically deprived of access to him . The continuation of access is , however , a matter within the discretionary power of the authority ( per Lord PERSON in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Thus , under LANGUAGE law , the question whether and to what extent a parent is to have access to his child who is in public care was , at the relevant time , within the competence of the local authority to decide , without any application to a court .", "Both the DATE [ CARDINAL ] Act and the DATE Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable : the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time .", "The statutory remedies described in paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL above , whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution , are directed to the order or resolution as such , there being , at the relevant time , no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child .", "A decision of a local authority concerning access can , however , be challenged by way of an application for judicial review . Anyone who wishes to make such an application must first seek , normally within DATE of the decision , the leave of the court . The circumstances where judicial review will lie may be briefly summarised as follows :", "( a ) the authority acted illegally , ultra vires or in bad faith ;", "( b ) the authority failed to take into account relevant considerations , took account of irrelevant considerations or came to a decision to which no reasonable authority could have come ( Associated Provincial Picture Houses , Ltd. v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ;", "( c ) the authority failed to observe statutory procedural rules or to act fairly ( see notably R v. ORG , ex parte C and R v. GPE , ex parte B , ORG , DATE ) .", "The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision - making process itself , and the court will not act as a \" court of appeal \" from the body involved . Thus , where on a successful application for judicial review the court quashes an authority ’s decision , it will normally remit the matter to the authority for reconsideration ; it may , however , also direct the authority to reach a conclusion in accordance with the court ’s findings ( Rules of ORG , Order CARDINAL , rule ORG ) ) .", "In certain circumstances , the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former ’s care . The general rule is that the prerogative power of the ORG is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation . In the leading case of ORG , ORG examined the relationship between the wardship jurisdiction and the authorities’ statutory powers . Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions , notably on such matters as access to the child : the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise ( except on judicial review principles ; see paragraph CARDINAL above ) the exercise of discretion within the field committed to them by statute . Sometimes , however , the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court .", "The foregoing limits on ORG powers apply only where the wardship proceedings concern a child who is already in public care . If he is not , ORG can examine fully such questions as access and make such order as it considers to be in his best interests .", "The inability of parents to approach the courts , save as explained above , where decisions are made by a local authority affecting access to their children led ORG , in ORG Social Security Adjudications Act CARDINAL , to modify the law on this point .", "Under the new provisions - which came into force on DATE , that is after the events giving rise to the present case - , a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent . The latter then has a right to apply to a juvenile court for an access order , requiring the local authority to allow access subject to such conditions as the court may specify . Where an access order has been made , there is a right to apply for variation . An appeal against the juvenile court ’s decision lies to ORG . Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration .", "This new remedy applies only to decisions refusing or terminating access ; in all other cases , the nature and extent of access remain within the local authority ’s discretion .", "In DATE , the ORG published a Code of Practice on Access to Children in Care . This document stresses the importance of involving the child ’s natural parents in the local authority ’s decision - making process in this area and of informing them fully and promptly as to the substance of decisions concerning access .", "A court can not make an adoption order in respect of a child unless , inter alia , it is satisfied that each parent freely and unconditionally agrees ( Children Act DATE , section CARDINAL ) . However , such agreement may be dispensed with upon a number of grounds specified in that section , notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties . In reaching any decision relating to the adoption of a child , a court must have regard to all the circumstances , first consideration being given to the need to safeguard and promote his welfare throughout his childhood ( Children Act DATE , section CARDINAL ) .", "Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of ORG . On an application for leave , the court ’s function is to consider whether the proposed adoption application is one that might reasonably succeed , the merits of the matter being examined subsequently , once leave has been granted and after compliance with the requirements concerning notices and reports ." ]

[ "6", "8" ]

[ "6-1" ]

[]

[]

[]

[]

[ "The first applicant , in ORG . CARDINAL/CARDINAL , is a citizen of both GPE and GPE , born in DATE . He is presently detained at a prison in GPE . Before the Court he is represented by Mr. PERSON , a lawyer practising in GPE , and by Mr. PERSON , a lawyer practising in GPE .", "The second applicant , in Application No . CARDINAL/CARDINAL , is an NORP citizen , born in DATE . He is presently detained at a prison in GPE . Before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .", "A.", "On DATE the applicants were arrested and subsequently remanded in custody on suspicion of having murdered PERSON who had recently disappeared . PERSON had been , like the second applicant , a film director and producer . He had been a competitor of the second applicant and PERSON had , in a letter addressed to ORG , accused the second applicant of having bribed public officials in order to be awarded film production contracts by that ministry . In DATE parts of a human body were discovered in GPE . This body was subsequently identified as being GPE Before their arrest , the applicants were repeatedly questioned by the police and the investigating judge . The second applicant confessed to having killed PERSON in GPE and gave further details of the circumstances . The first applicant stated that , until TIME , he had not been aware of any plans to kill PERSON but had later helped to dispose of the body .", "On DATE the trial against the applicants , both charged with murder , commenced before ORG ( PERSON für PERSON ) , sitting as an Assize Court ( Geschworenengericht ) . Both applicants pleaded “ not guilty ” .", "At the hearing the applicants were confronted with the second applicant 's confession to the police and the investigating judge . According to that confession , both applicants had planned to lure ORG to GPE with the help of ORG , a young woman . ORG , with whom PERSON had become friendly , invited him to visit her uncle in GPE . The first applicant played the uncle 's role . Once FAC arrived at the apartment of this uncle , the first applicant served him refreshments mixed with a sleeping drug . Thereupon the second applicant shot him and cut the body up , helped by the first applicant . For that purpose they had brought with them an electric saw , a cutter , plastic bags and a pistol . The second applicant also stated that he had committed these acts under the influence of the first applicant .", "When heard by the court , the first applicant stated that he had not been involved in the plot and had thought that they were to meet LANGUAGE and other film - makers in the apartment in GPE in order to discuss film projects . As PERSON had been unwilling to meet the second applicant , they had had to use unusual methods to persuade him come to GPE and , therefore , had used ORG as a decoy , and he had pretended to be her uncle . He had not seen how PERSON had been shot , as he had been in the kitchen when he suddenly heard a noise . He returned to the room where GPE was lying on the sofa . The second applicant said that LANGUAGE was dead . The second applicant then left the room , still holding a gun in his hand , whereupon the first applicant realised that the second applicant had shot PERSON had not helped the second applicant undress or cut up the victim . Instead he went to the neighbours to inform them that there might be some noise due to construction works . On his return , he saw several black bags outside the bathroom . The second applicant took them to the car and the first applicant assisted him in finding containers , in order to deposit the bags . Against his advice to sell the pistol , the second applicant had thrown it into the river . The following day they cleaned the apartment and removed the bed . The second applicant elaborated a plan that they should pretend that PERSON was still alive . The first applicant denied having given any medicine or sleeping drugs to the victim , or having seen a third person at the apartment . He said that he had fallen asleep soon after the victim had arrived , and for this reason had not been present all the time . He claimed that he had assisted the second applicant after the killing because he was his friend and because he feared him .", "The second applicant withdrew his earlier confession and stated that neither he nor the second applicant had killed ORG third man had been present in the apartment , whose name was PERSON , a NORP who had connections with the ORG . PERSON had been cheated by PERSON , another film - maker , and had hoped that the victim had information about that person . He further claimed that on DATE in question he had been completely drunk and had stayed alone in a separate room . He had only heard a fight going on in the room where the victim was . The fight had taken place between the victim and PERSON In the course of this fight PERSON must have shot PERSON did not know how the body had been sawn into pieces , or what had happened to his pistol . He had lured GPE to GPE in order to play a trick on him , since PERSON had tried to ruin his reputation at the ministry . He had intended to hide cocaine in GPE 's car and to call the customs authorities . It had been PERSON who had brought him the cocaine and some other medicine in order to persuade PERSON to talk about PERSON 's whereabouts .", "Asked by the Presiding Judge why he had not mentioned PERSON , but only when he had been questioned by the investigating judge the last time , the second applicant stated that he had promised PERSON to protect him for DATE .", "The Presiding Judge questioned the second applicant in detail on how he had been able to give details about the crime in his confession to the police although he had allegedly not seen anything . In reply the second applicant claimed that he had been able to reconstruct the crime on the basis of the questions asked by the police and the pictures they had shown him . When he made his first false confession , he had felt he was in a state of unreality , believing that he was himself a police officer . He had therefore enjoyed developing his confession on the basis of the police questions . The second applicant admitted that , after PERSON had been killed , he and the first applicant had planned to pretend that GPE was still alive .", "On DATE of the trial , the court heard several witnesses , namely neighbours to the apartment in GPE , an employee and a friend of the victim , the bank agent , the victim 's aunt , the secretary of the first applicant and a friend of the first applicant . The wife of the second applicant refused to give evidence . Moreover , the court heard the police officers who were involved in the preliminary investigations and questioned them , in particular , about the confession of the second applicant and the manner in which it was made . Then the court heard CARDINAL court experts in , inter alia , forensic medicine and psychiatry .", "The court rejected the request to hear ORG in person , but read out her statement made during the preliminary proceedings . Relying on medical certificates and on the report of CARDINAL of the medical experts present at the trial , the court concluded that to summon and question ORG would create a risk for her health , since she lived now in GPE and was suffering from multiple sclerosis , which meant she had to avoid unnecessary effort and excitement .", "On DATE ORG convicted the second applicant of murder and sentenced him to life imprisonment . The first applicant was convicted of aiding and abetting and sentenced to DATE imprisonment . The jury found that , according to their common plan , the second applicant had killed PERSON , while the first applicant had assisted in the murder by giving sleeping drugs to the victim .", "On DATE the applicants filed a common request for rectification of the transcript of the trial ( PERSON ) . They argued that the Presiding Judge had made several mocking remarks and gestures which had not been recorded in the transcript but which could have influenced the jury . Defence counsel referred to their private notes , according to which the Presiding Judge had expressed doubts in respect of the existence of PERSON From DATE of the trial , the Presiding Judge had DATE requested the defence counsel of the second applicant to provide the name of the witness who would testify that CARDINAL of the jurors was biased , as claimed by the defence . Moreover , the Presiding Judge had interrupted both applicants several times , especially at the end of the trial , when they wanted to give their last speech to the jury .", "On DATE the Presiding Judge rejected the request for rectification of the transcripts . He stated that he and the court clerk responsible for the record ( PERSON ) had compared the transcript of the hearing with the stenographic notes and had found that the transcript corresponded to those notes . Contrary to the private notes and the applicants ' submissions , the Presiding Judge had announced the names of the jurors and their substitutes , and had shown where they were seated . In respect of the conduct of the defence counsel of the second applicant , ORG , as well as that of the Presiding Judge , the transcript was accurate .", "It transpires from the transcript of the trial , which covers CARDINAL pages , that the relationship between defence counsel , ORG , and the Presiding Judge was rather tense and characterised by mutual accusations . The following events are mentioned in the transcript :", "At the hearing on DATE , ORG challenged CARDINAL juror for bias . He claimed that he had been informed that this juror had stated after the hearing on DATE that the applicants should be sentenced to life imprisonment . The juror denied that she had made such a statement . ORG said that a letter sent to the court containing the name of the \" informant \" had been provided by a third person .", "In the hearing on DATE , the Presiding Judge asked ORG to provide him with the name of the informant , so that the court could decide the defence 's challenge of the juror for bias . Otherwise he warned that he would inform ORG and ORG to take steps against counsel for having defamed a juror .", "On DATE ( DATE of the trial ) counsel gave the Presiding Judge a copy of a criminal information he had filed with ORG concerning the conduct of the Presiding Judge . At the same time he challenged the Presiding Judge for bias . He submitted that the Presiding Judge lacked the necessary objectivity and tried to influence the jury by means of gestures , facial expressions and ironical , cynical remarks . Moreover , he complained that the Presiding Judge exercised unnecessary pressure on him , since he had repeatedly asked for the name of the informant . In this context he also accused the Presiding Judge of making propaganda ( PERSON ) in the courtroom .", "At the hearing on DATE , the bench of ORG ( PERSON ) dismissed the second applicant 's motion challenging the Presiding Judge for bias , finding that the Presiding Judge 's possible smiles ( allfälliges GPE ) at certain statements did not influence the jurors , who were responsible ( mündige ) citizens . The court denied that any propaganda to the press or the public had occurred . That day , the defence counsel of the first applicant requested the hearing of certain journalists with possible knowledge of the juror 's bias . However , he did not know the name of the person who had , in turn , informed the journalists . The second applicant joined the request .", "At the hearing on DATE , ORG dismissed the motion challenging a juror for bias . It found that it had not been proved that the juror had made the contested statement . Moreover , the defence had not provided the court with the name of the person who had allegedly heard the partial statement . The court further dismissed the request to hear the journalists since they could not give any direct testimony themselves , having only spoken on the telephone to an anonymous informant .", "On an unspecified day the first applicant filed a plea of nullity ( PERSON ) and an appeal against sentence ( GPE ) . He complained that at the trial it had not been possible for him to understand which member of the jury was a full member and which a substitute member , that the Presiding Judge had failed to swear in CARDINAL members of the jury by hand - shake and that CARDINAL members of the jury had been biased . He further complained that the Presiding Judge had interrupted him when he had addressed his last words to the jury , and that evidence requested by him had not been obtained by the court . He also complained that the verdict of the jury had been wrong because the submissions of the second applicant had been implausible . He argued that further questions should have been put to the jury and that NORP law , which was more lenient in relation to the offence of which he was accused , should have been applied .", "On DATE the second applicant filed a plea of nullity and an appeal against sentence . He complained that ORG had refused to take the evidence requested by him and had dismissed his challenge for bias of the Presiding Judge , that further questions should have been put to the jury and that there were contradictions between the verdict and the contents of the case - file .", "On DATE ORG dismissed the pleas of nullity and appeals against sentence . It confirmed the sentence in respect of the second applicant and increased the sentence of the first applicant to life imprisonment . The decision was served on the applicants on DATE .", "As regards the first applicant 's complaint as to the membership of the jury , ORG noted that according to the transcripts of the trial the Presiding Judge had called up each member of the jury by name and assigned a fixed place to him or her . It had therefore been clear which juror was sitting as a full member and which juror was a substitute . The jury was consequently not wrongly composed as claimed by the applicant . The Presiding Judge 's failure to swear in by handshake the members of the jury who had no religious belief , might have been a procedural mistake but did not constitute a ground of nullity .", "As regards the first applicant 's complaint that he was denied the right to the last word , ORG noted that these allegations were not confirmed by the transcript of the trial . In any event , the applicant had failed to respect the procedural requirements for raising this ground of nullity because he should have requested an interim decision on this issue .", "ORG also held that ORG had acted correctly when it dismissed the first applicant 's requests for the taking of evidence . As regards his request to hear his urologist ( sic ) on whether the first applicant had undergone a change in his personality after a car accident in DATE , it found that CARDINAL expert psychiatric reports had been obtained which were sufficient . As regards the request to hear journalists about a juror 's alleged bias , ORG noted they could not give any direct testimony themselves , having only spoken on the telephone to an anonymous informant . Even if ORG had heard the journalists , this would not have proved that the information given by the anonymous person had been correct . As regards the hearing of ORG , ORG referred to its reasoning on the second applicant 's plea of nullity ( below ) . As regards the first applicant 's complaint that NORP law had not been applied , ORG found that in the present case NORP law was applicable , since it concerned an offence committed abroad by an NORP citizen against another NORP citizen .", "As regards the second applicant 's plea of nullity , ORG found that the complaint about the alleged bias of the Presiding Judge was unfounded . ORG noted that the request for rectification of the transcripts had been dismissed and the applicant 's complaints could not therefore be examined on the basis of the allegations made in the request for rectification . ORG stated that a judge is not prevented from forming his own opinion about the guilt of the accused before the end of the trial . Only if the judge maintains this opinion despite evidence to the contrary could he or she be deemed biased . In particular , in the case of spontaneous reactions ( like gestures and changing facial expressions ) , the judge 's lack of impartiality must be shown by additional concrete indications . The same considerations applied to remarks by which a judge expressed his sceptical attitude vis - à - vis a submission . A judge is not prevented from showing such an attitude , since a judge also indicates his attitude when referring an accused or witnesses to contradictions in or the improbability of their statements . Since the second applicant had not submitted any specific circumstances on which an objective observer could doubt the impartiality of the Presiding Judge , there was no infringement of the applicant 's defence rights .", "As regards the complaint about the failure of ORG to take the evidence requested by the second applicant , ORG found that ORG had acted correctly when rejecting these requests . ORG had not been present when the offence had been committed and had always claimed that she had not been involved in the applicants ' plans . It was therefore not necessary to hear her on the question whether there had been any indication that F.K. should be killed in GPE . Moreover , a medical expert had confirmed that appearing before the court would involve a danger to her health , as she was suffering from a serious illness . Given that ORG was living in GPE , the NORP courts could not compel her to appear at the trial ." ]

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[ "The applicants were born in DATE and DATE respectively .", "The first applicant started serving a DATE prison sentence in DATE . On DATE his sentence was suspended on probation . According to the latest information submitted by the second applicant he is serving a prison sentence and is detained in FAC .", "NORP In DATE , the applicants were involved in an affair which had largescale media coverage called “ The Car Boot Affair ” ( FAC ) . ORG , the applicants’ friend , was kidnapped and subjected to illtreatment for DATE by people paid by a businessman , PERSON , to get back money he had allegedly stolen from the boot of a car belonging to the businessman .", "In TIME of DATE , TIME , ORG received a phone call from one of his friends , GPE , who informed him that he was invited at the headquarters of PERSON ’s company to clarify the situation of the stolen money . ORG accepted the invitation and went to the place indicated . Immediately after his arrival , ORG admitted under threat that he had stolen the money , with another person . From that moment he was kept prisoner , permanently guarded by the people being paid by PERSON , in different buildings in GPE .", "On DATE he was taken to a villa belonging to QUANTITY in LOC . On DATE , taking advantage of a lapse of attention on the part of the people guarding him , ORG climbed out of a window of the toilets and escaped .", "NORP Immediately after ORG ’s escape , PERSON left the country in order to avoid arrest .", "NORP The role played by the applicants in this affair was highly controversial .", "The prosecutors presented them as individuals paid by PERSON to kidnap ORG and keep him under guard .", "According to the statements given by ORG , the victim , and other witnesses , the applicants were friends of the victim and they were present at the meeting between PERSON and ORG as protection for the latter .", "According to a statement given by a witness , GPE , before ORG on DATE , the applicants were sent to the headquarters of ORG company to protect ORG and to keep their mutual friends informed of what was happening .", "In his statement given on DATE , GPE recognised that he had contacted the applicants and asked them to be present at the meeting . He also added that they had informed him that their friend ORG needed help , which they could not provide as they were outnumbered and surrounded by armed persons .", "Furthermore , at the last hearing before ORG held on DATE , ORG ’s lawyer called for the CARDINAL applicants to be acquitted , stressing that they were the victim ’s friends , who had tried to make their friend ’s situation easier under the circumstances .", "According to the applicants , they were present at the meeting which took place on DATE between their friend and PERSON They informed GPE and GPE ( another friend of ORG ) that ORG would not be released until he returned the stolen money . When they saw that the people paid by PERSON had left the headquarters of PERSON ’s company with their friend , they tried to find out where he had been taken . On being informed that their friend was being kept in a deserted house outside GPE , they went there and tried to release him .", "When threatened by PERSON and the people paid by him they were forced to give up and leave . They maintained that they did not inform the police , because they were frightened by PERSON ’s threats .", "Also , when they found out that GPE ’s house had been set on fire and that PERSON ’s car had been found full of spent bullets , the applicants decided to run and hide in GPE until the situation was clarified even though they knew that warrants had been issued on them as witnesses .", "By a bill of indictment delivered on DATE by the prosecutor ’s office attached to ORG , the applicants and CARDINAL other defendants were charged with conspiracy to commit a crime under LAW of LAW and with deprivation of liberty under LAW of LAW . Their arrest was also ordered . It was not possible to arrest the applicants as they were hiding in GPE .", "On DATE the applicants informed the mass media that they intended to surrender to the NORP authorities DATE . They alleged that in this way they had tried to obtain some protection against the individuals in the pay of PERSON , who were continuing to threaten them . DATE they surrendered to police at FAC .", "At a hearing on DATE ORG replaced the arrest warrant on the applicants with an obligation not to leave the city , citing as a reason that the justification for keeping them under arrest had changed in the light of the evidence adduced before the court .", "By a judgment delivered on DATE the GPE Court acquitted the applicants . It found the rest of the defendants guilty as charged and sentenced them to imprisonment ( most of DATE ) . It noted that the victim had stated before the court that the applicants “ did not threaten or hit him or keep him prisoner , but on the contrary they protected him as much they could , and maybe if they had not been there he would be dead ” . Furthermore , it referred to the victim ’s statement of CARDINAL DATE , which reads as follows : ” PERSON and Auras untied me and they could not simply just leave as they were afraid ... and on the other hand they tried to calm things down , helping me as much they could so as not to be killed ( omorât în bătaie ) ” . The ORG also noted that this statement was in agreement with the statements of the witnesses GPE , GPE and GPE", "The prosecutor ’s office attached to GPE ORG lodged an appeal , seeking , inter alia , a guilty verdict on the applicants . It maintained that the applicants were part of the group controlled by PERSON and that they had contributed to ORG ’s being held captive , as they had invited him to the place where he was kidnapped .", "On DATE ORG allowed the appeal in part but maintained the not - guilty verdict on the applicants . It held that the mere fact of their presence at the headquarters of GPE ’s company could not lead to the conclusion that they were guilty , in the absence of any incriminatory evidence .", "The prosecutor ’s office attached to ORG lodged an appeal on points of law , again seeking the conviction of the applicants . In its grounds for appeal it maintained that even if the applicants could not be convicted as perpetrators they should be convicted as accomplices .", "At the last hearing before ORG and Justice held on DATE , all the lawyers representing the defendants submitted oral conclusions on the admissibility of the appeals . No other evidence was adduced before the court . The applicants were invited to speak only before the end of the hearing ( ultimul cuvânt al inculpatului ) . They said that they agreed with the statements submitted by their lawyers .", "Public pronouncement of the decision was adjourned until DATE , as the court needed more time for deliberation .", "On DATE ORG and ORG allowed in part the appeal on points of law lodged by the prosecutor , set aside the decisions of the first CARDINAL courts with respect to the acquittal of the applicants , and retained the file for fresh consideration without setting a date for a new hearing . It found the applicants guilty as charged and sentenced each of them to CARDINAL years’ imprisonment .", "The High Court of Cassation and ORG considered that the findings of fact by the first - instance courts were not ill - founded and were thus suitable for appellate review without taking further evidence . Giving a new interpretation to the facts it found that the applicants’ roles consisted in luring ( ademenirea ) the victim to the headquarters of PERSON ’s company . It also found that the applicants were members of ORG group .", "Although it held that the applicants’ role consisted only of luring the victim and that they were present only on TIME of CARDINAL January CARDINAL and the night which followed , they were sentenced to CARDINAL years’ imprisonment , the same punishment received by the other co - defendants , who had kept ORG in captivity for the whole fiveweek period and had subjected him to constant ill - treatment .", "The relevant provisions concerning the appeal on points of law of LAW as in force at the material time are described in GPE , no . CARDINAL , § DATE , ECHR CARDINAL-VIII ) , and PERSON v. GPE , ( no . CARDINAL , § MONEY , DATE ) .", "Law no . ORG which amended LAW made it mandatory for an appeal court to hear an accused when the firstinstance court had acquitted him or her . Currently , where an appeal court quashes a judgment given by a first - instance court , it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter has not been heard or if he or she was acquitted by the first - instance court ( Articles DATE § DATE , as amended ) ." ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-c", "6-3-d" ]

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[ "NORP The applicant , ORG , is a company based in ORG . It was represented before the ORG by Mr D. Joksimović", "NORP On an unspecified date the applicant company instituted civil proceedings before ORG against ORG ZASTAVA DATE u restrukturiranju ( the debtor ) , seeking , inter alia , declaratory redress in the property context .", "On DATE ORG ruled in favour of the applicant company and , further , ordered the debtor to pay it MONEY for legal costs .", "This judgment became final on CARDINAL DATE .", "On DATE the applicant company filed a request for the enforcement of the above judgment in respect of the costs awarded , proposing that it be carried out by means of bank transfer .", "On DATE ORG rejected this request given that the debtor was “ being restructured ” ( see paragraph CARDINAL below ) .", "On DATE this decision was upheld at second instance .", "On DATE the applicant filed a constitutional appeal .", "The case is currently pending before ORG .", "The applicant company and the debtor were companies predominantly consisting of socially - owned capital .", "On DATE ORG ordered the restructuring of the debtor , which process is still ongoing .", "Article CARDINAL § CARDINAL of this LAW provides that all enforcement proceedings are to be conducted urgently .", "Articles CARDINAL - CARDINAL set out the relevant details as regards enforcement by means of a bank account .", "Articles DATE set out the details as regards the restructuring of companies about to be privatised . This restructuring , however , is optional and a company may be sold without having been restructured if ORG so decides . Article PERSON provides that companies undergoing restructuring can not be subjected to an enforcement procedure until the end of restructuring process but no later than DATE .", "These provisions are set out in the case of PERSON and Others v. GPE ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § DATE ) ." ]

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[ "ORG The applicant , Dr PERSON , is a NORP citizen of NORP origin , born in DATE . In DATE he was employed as a doctor by ORG in GPE , GPE . He rented a flat in the town , but spent DATE with his family on the island of ORG in the neutral and demilitarised NORP archipelago of GPE at the southern end of LOC . From DATE he worked as a doctor in the public health service in another NORP town , PERSON . Since DATE he has been working in GPE .", "ORG During the period when the applicant was working in GPE his income from the above - mentioned posts was , in accordance with the convention between GPE and GPE for the avoidance of double taxation ( see paragraph CARDINAL below ) , liable to NORP tax . The applicant was allowed deductions for the cost of maintaining CARDINAL homes as well as for travel expenses to and from GPE . As he was considered not to be permanently resident in GPE , he was , until DATE , taxed in the so - called LOC ( gemensamma distriktet ) and he paid only a reduced municipal tax ( see paragraph CARDINAL below ) .", "ORG On DATE the law was amended , with the result that the applicant was no longer taxed in the Common District but in the municipality where he stayed , i.e. in PERSON ( see paragraph CARDINAL below ) . The deductions which had previously been allowed were no longer permitted and he now had to pay the full municipal tax , including a special tax to ORG ( \" the church tax \" - see paragraphs DATE below ) . He was informed by the tax authorities that he could not claim any reduction of the church tax unless he was formally registered as resident in GPE ( see paragraph CARDINAL below ) .", "Dr PERSON appealed to ORG ( mellankommunala skatterätten ) against the decision to treat him for tax purposes as having been resident in PERSON in DATE . He claimed that he should still be taxed in LOC as he was not living in GPE . In a judgment of CARDINAL DATE the court dismissed the appeal .", "ORG In the meantime , on DATE , the applicant had obtained a decision from ORG ( riksskatteverket ) to the effect that if he travelled DATE from PERSON to his work in GPE he would not be regarded as a resident for the purposes of section DATE of LAW DATE ( kommunalskattelagen - see paragraph CARDINAL below ) and would thus be taxed in LOC . However , he found DATE commuting to PERSON , and in DATE he accordingly took on less responsible work with lower pay in GPE , to which he could just manage to commute from PERSON . As a result he was again taxed in LOC and was not liable to the church tax .", "ORG An appeal by PERSON to ORG ( kammarrätten ) of GPE against ORG judgment was dismissed in a judgment of CARDINAL DATE and on DATE ORG ( regeringsrätten ) refused an application by him for leave to appeal .", "ORG In addition to the above - mentioned proceedings , the applicant submitted an appeal to ORG ( länsrätten ) of GPE against the order to pay full church tax on his DATE income , on the ground that he was neither a member of ORG , nor a NORP citizen nor resident in GPE . In a judgment of CARDINAL DATE the court dismissed the appeal , holding that LAW ( lag CARDINAL:CARDINAL om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , \" LAW \" - see paragraph CARDINAL below ) did not apply to the applicant .", "Dr PERSON appealed to ORG of GPE , which in a judgment of CARDINAL DATE confirmed the judgment of the lower court . His application for leave to appeal was refused by ORG on DATE .", "ORG The applicant also lodged a complaint with ORG ( justitieombudsmannen ) concerning his obligation to pay tax for the religious activities of ORG . In his decision of DATE the ORG noted that the requirement in LAW that a person be formally registered as resident in GPE ( mantalsskriven , as defined in the GPE on the keeping of population records , folkbokföringsförordningen ) in order to be able to apply for exemption from the church tax had been questioned on several occasions by various bodies , including ORG . Although the problem raised by the applicant was a limited one , the ORG concluded that it showed up an inconsistency in the tax legislation for which there was no objective justification and that it was understandable if this inconsistency caused irritation . In a letter of DATE to the Government , he proposed that the registration requirement should be abolished . As a result of this proposal LAW was subsequently amended accordingly ( see paragraph CARDINAL below ) .", "Dr PERSON paid church tax in the amount of MONEY for DATE , MONEY for DATE and MONEY for DATE . If he had been allowed the reduction provided for in LAW , he would have had to pay CARDINAL , CARDINAL and MONEY , respectively ( see paragraph CARDINAL below ) .", "ORG The provisions regarding municipal income taxation in general are included in LAW DATE , which has been amended on numerous occasions over DATE . The references below to this LAW and to other enactments are all to the version in force during the relevant period ( DATE ) , unless otherwise stated .", "Liability to pay tax in GPE was regulated in section CARDINAL , subsection CARDINAL , of LAW : residents of GPE were taxed on their world - wide income whereas non - residents had a more limited liability , covering , inter alia , income derived from employment in the NORP public service .", "Under LAW with GPE for the avoidance of double taxation ( published in GPE författningssamling ( \" SFS \" - the official journal ) , DATE ) , the right to tax income derived from public service vested in the ORG which paid the remuneration ( with certain exceptions not relevant here ) .", "ORG Regarding the place of taxation in GPE , section CARDINAL , subsections CARDINAL and CARDINAL , of LAW provided that income earned by a resident from employment was to be taxed in the municipality where he was formally registered as a resident ( mantalsskriven ) .", "According to ORG ( lag om skatt för gemensamt kommunal ändamål ) , income earned by a non - resident from employment in , inter alia , the NORP public service was to be taxed in GPE in the so - called LOC . The tax rate ( MONEY ) applicable in this district was lower than the ordinary municipal tax rate . The tax levied was not destined for any specific municipality but was used for levelling out the burden of taxation between different municipalities or other administrative authorities . It did not include any tax payable to ORG .", "ORG As a result of an amendment to LAW of LAW and subsection CARDINAL of the instructions relating to section CARDINAL of the same Act ( SFS CARDINAL:CARDINAL ) , certain non - residents were considered , with effect from DATE , to have sufficient connection with GPE to be liable to pay the full municipal tax . The Government PERSON ( CARDINAL/CARDINAL:CARDINAL ) containing these amendments did not mention the problems which might result for non - residents in relation to LAW .", "Henceforth , a non - resident with certain types of income , such as that derived from employment in the public service , and with a temporary abode in GPE was no longer taxed in LOC but in the municipality where he had first lived . This meant that he had to pay municipal tax at the same rate as a resident and also church tax .", "ORG The church tax is collected together with the ordinary municipal tax . The rate is determined by the local parish council . This system has a long tradition and is based on the fact that ORG is the established church . Under the transitional provisions of LAW ( regeringsformen ) , its parishes have a status similar to that of the municipalities - including the right of taxation .", "ORG LAW was enacted in DATE at the same time as LAW ( lag CARDINAL:CARDINAL om religionsfrihet ) in order to secure better respect for freedom of religion ( see Government Bill CARDINAL:CARDINAL , p. CARDINAL ) . LAW , made the following provision for a reduction in the church tax :", "\" Church tax which is referred to in LAW on parish administration ( lag CARDINAL om församlingsstyrelse ) and is imposed either by decision of a parish council or otherwise in accordance with the principles that apply to the imposition of municipal tax , shall be levied on a person who was not a member of ORG at the beginning of DATE and who is formally registered as resident ( mantalsskriven ) in this country for DATE at CARDINAL per cent of the amount assessed . \"", "The registration requirement meant that LAW did not apply to persons who had only a temporary abode in GPE . According to the travaux préparatoires of the LAW , the reasons for this were that the case for reduction could not be argued with the same force in regard to persons who were not resident in GPE as it could in regard to those who were , and that the procedure would be more complicated if the reduction applied to non - residents ( Government PERSON , p.CARDINAL ) .", "The MONEY of the church tax that remained after the reduction was supposed to cover the costs borne by the parishes of certain administrative functions such as the keeping of population records and the maintenance of churchyards and other public burial - grounds .", "ORG With effect from DATE , LAW was amended in order to take into account the criticism made by ORG ( see paragraph CARDINAL above ) , so that the taxpayer no longer has to be registered as resident in GPE in order to benefit from the reduction of the church tax ( Government PERSON , p. CARDINAL ) .", "ORG Under LAW , as worded before DATE , membership of ORG was reserved to NORP citizens and foreigners living in GPE . In DATE an amendment ( SFS CARDINAL:CARDINAL ) opened membership also to other groups of persons . In order to leave the ORG , it is sufficient for the person concerned to notify his resignation to the church authorities of his parish . Special rules apply to minors ." ]

[ "14", "P1" ]

[ "P1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant 's wife died on DATE . His claim for widows ' benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows ' benefits because he was not a woman . The applicant appealed and on DATE reconsideration took place and the previous decision was upheld . 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 benefits were payable to widowers under GPE law .", "The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "In TIME of DATE the applicant was arrested at GPE , GPE , on suspicion of having killed , shortly before , his friend Ms. PERSON with whom he had gone to GPE on holiday .", "On DATE the applicant 's trial commenced before a Court of Assizes ( Geschwornengericht ) of ORG ( PERSON ) , sitting with a jury . The applicant was assisted by his official defence counsel Mr. PERSON An interpreter was present . At the hearing , the court heard the applicant 's statements , the testimony of several witnesses and the explanations of the psychiatric experts Professor PERSON and Dr. PERSON Several requests for the taking of further evidence , inter alia as to the victim 's personality and behaviour in the past , the applicant 's criminal responsibility and his state of mind following the offence , were dismissed .", "At the end of the hearing , the court put CARDINAL questions to the jury : a first main question related to the offence of murder , CARDINAL subsidiary questions concerned the offences of unpremeditated homicide , intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death , respectively , and a fifth main question about the applicant 's criminal responsibility . The court 's directions to the jury covered the jury 's duties and the general legal notions of intent and negligence . As regards the questions , the jury was inter alia directed that the offence of murder ( PERSON ) consisted in the intentional killing of a human being and that premeditated homicide ( Totschlag ) was the intentional killing of a human being in a comprehensible state of emotion ( in einer allgemein begreiflichen heftigen PERSON ) .", "On DATE the jury , by a unanimous verdict , found the applicant guilty of murder . The jury also unanimously found that the applicant was criminally responsible . According to the record of their deliberations , the jury relied in particular on the testimony of the hotel owner , as well as on the expert opinion of Professor P.", "The ORG sentenced the applicant to DATE imprisonment . In fixing the sentence , the ORG considered as a mitigating circumstance the applicant 's diminished responsibility ( verminderte PERSON ) , although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour . Moreover , he had not made a repentant confession ( reumütiges PERSON ) , and his statements regarding the offence had not essentially contributed to the establishment of the truth .", "The applicant , assisted by his official defence counsel Mr. PERSON , filed a plea of nullity ( PERSON ) with ORG ( Oberster Gerichtshof ) , challenging the order of questions put to the jury , the dismissal of his requests for the taking of further evidence , as well as the conclusiveness of the findings of the jury . He further lodged an appeal ( GPE ) complaining about the severity of the sentence , referring to further mitigating circumstances such as his previous reputable life , his feelings of regret and repentance and his emotional state at the time of the offence .", "ORG ) also appealed against the sentence , requesting that a life sentence be imposed . The ORG considered that the fact that the applicant 's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor . Rather it showed the applicant 's particular dangerousness and aggressiveness towards women intending to terminate their relations with him .", "On DATE ORG issued a summons for the hearing on the plea of nullity and the appeals , indicating that , at the hearing on the plea of nullity , the applicant , being incarcerated , could only appear through his official defence counsel and that , at the hearing of the appeals , he would not be brought to court as the conditions of section CARDINAL § CARDINAL of LAW were not satisfied .", "On DATE ORG , upon the request of the senior partner of counsel Mr. PERSON , appointed Mr. PERSON as the applicant 's official defence counsel for the purposes of the proceedings before ORG . The applicant received the certificate of appointment on DATE . By letter of DATE , the applicant requested ORG to allow him to be represented by Mr. PERSON at the hearings and to attend them as an observer . On DATE ORG , upon instructions by ORG , informed the applicant , with the assistance of an interpreter , that the conditions of section CARDINAL § CARDINAL of LAW were not satisfied , and that his attendance as an observer was not possible .", "On DATE ORG held the hearing on the plea of nullity and the appeals in the absence of the applicant . He was represented by his new official defence counsel , Mr. S. ORG rejected the plea of nullity as well as both appeals .", "ORG , in its judgment , found that the rejection by the trial court of the applicant 's requests for the taking of evidence did not impair the rights of the defence . In particular , ORG confirmed in detail the reasoning of the trial court that the requests concerned in part irrelevant issues and in part issues which required expert evidence . Moreover , the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility . ORG also dismissed the applicant 's argument that the order of questions put to the jury had been incorrect . ORG found that there could be no objection to the findings of the jury . The applicant 's allegation of a discrepancy in the statements of CARDINAL of the main witnesses was unfounded and , in any event , expert evidence had been taken on the relevant issue , namely his mental state at the time of the offence .", "As regards the appeals , ORG noted that the applicant 's own statements appeared to indicate that he quickly lost his self - control in his contacts with women . Nevertheless , there was no sufficient reason to exclude the mitigating circumstance that he had been previously of good conduct . ORG further , on the basis of the file , considered that there had been no provocation and that there were no indications of exceptional mental or emotional excitement . Except for the further mitigating circumstance , there was no other reason to amend the evaluation regarding the applicant 's character or his mental state at the time of the offence , or his motive . Taking all the circumstances into account , the sentence imposed by the trial court appeared appropriate .", "The decision was received at ORG on DATE and by the applicant 's defence counsel , Mr. PERSON , on DATE .", "A first - instance court judgment given by a ORG , at ORG can be challenged by a plea of nullity to ORG on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . ORG task is mainly to control the acts of the bench and the presiding judge of ORG examining , in particular , whether the trial has been conducted in a manner which complies with fundamental procedural principles , whether the right questions have been put and the right directions given to the jury . ORG may only verify whether the jury has provided unclear , incomplete or contradictory answers to the questions put to it . ORG supervises the correct application of the criminal law , but in so doing is bound by the jury 's findings of fact .", "In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of LAW ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence .", "As regards the hearing on a plea of nullity , section CARDINAL of LAW provides :", "“ CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...", "If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel . ... ”", "Section CARDINAL of the Code of Criminal Procedure applies , in principle , the above rules to nullity pleas arising out of jury trials .", "However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .", "The sentence as such can be challenged by way of an appeal against sentence . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined , a public hearing must normally be held .", "As regards the personal appearance of the accused at a public appeal hearing , section CARDINAL § CARDINAL , second sentence , of LAW provides :", "“ An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement , or otherwise if his personal presence appears necessary in the interests of justice . ”", "The applicant applied to ORG on DATE . He alleged , inter alia , a violation of LAW and CARDINAL ( c ) of the LAW on the ground that , in criminal proceedings against him , he was not present at the hearing before ORG .", "The Commission declared the application ( No . CARDINAL ) partly admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed by a majority the opinion that there had been a violation of LAW and CARDINAL ( c ) of the LAW ." ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-c" ]

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[ "NORP The applicant company , ORG , is the owner and publisher of the DATE newspaper ORG .", "In DATE GPE and GPE , the parents of PERSON , dissolved their common household and concluded a provisional agreement on the custody of NORP under which sole custody was granted to GPE , while his brother stayed with PERSON On DATE PERSON asked for custody to be withdrawn from GPE and transferred to him .", "On DATE GPE and GPE agreed that pending the outcome of an expert report custody be provisionally transferred to PERSON ( vorläufige Obsorge ) and that for the time being NORP should live with PERSON , his father .", "It appears that subsequently PERSON hindered contact between NORP and GPE and , in DATE , moved to GPE . Thereupon , by an interlocutory decision ( einstweilige GPE ) of DATE , custody of NORP was transferred back to GPE", "PERSON was ordered to hand NORP over to GPE immediately or to take him back to GPE before DATE . That order was confirmed on appeal on DATE and became final .", "Thereupon GPE travelled to GPE to have that decision enforced . PERSON proposed to GPE that they enter into an agreement on custody of NORP , and GPE also agreed to staying in GPE . However , no such agreement was finally reached . After GPE had settled in GPE and found employment there , PERSON , together with NORP , left GPE for GPE .", "On DATE , pending the outcome of the custody proceedings , custody was temporarily transferred to ORG . On DATE the court dismissed PERSON ’s request for custody to be withdrawn from GPE and transferred to him . The decision was declared immediately enforceable .", "Subsequently , various attempts to enforce that decision were undertaken . The NORP newspapers reported on these events because PERSON kept them regularly informed and sought publicity .", "The first attempt at enforcement , on DATE , failed because GPE and NORP went into hiding . PERSON had informed the media of this step in advance . Some time later they returned . In order to enforce the custody decision the competent court scheduled a hearing for DATE in the course of which NORP was to be handed over to GPE PERSON failed to appear at the hearing .", "Thereupon the judge ordered that NORP be brought before the court by force ( zwangsweise GPE ) .", "When that decision had to be enforced by court officers NORP barricaded himself in his elementary school and , since the police officers who intervened decided not to use physical force on the LOC of the school , this attempt also failed . These events were also widely covered by the media because PERSON had informed them in advance .", "After further unsuccessful attempts the rural police ( ORG ) were informed on DATE that NORP was at his father ’s house . Court officers sent to the house noted , however , that NORP was not in the house but , together with a babysitter , in a car in front of it . The officers tried to take hold of NORP but he cried and resisted . These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists , who had been informed and had hurried to the spot .", "In order to establish whether NORP had suffered injuries during the attempt to enforce the court order , PERSON took him to the GPE hospital . On DATE , by means of a diversion manoeuvre , GPE and NORP were separated and on DATE NORP was handed over to his mother , GPE , on the premises of the hospital . GPE and NORP have been living in GPE since that time . This final phase of the events was also widely reported on in the media .", "On DATE PERSON , represented by his mother , brought proceedings under LAW and CARDINAL of LAW against the applicant company , seeking damages and publication of the ensuing judgment , claiming that a series of articles on the above - mentioned events published by the applicant company DATE and DATE and which contained a detailed description of the events , giving his full name and illustrated by pictures of him , had breached his rights under those provisions .", "He argued that the reporting on him had interfered with his strictly private life in a manner likely to expose and compromise him in public . Moreover , the articles constituted a breach of section ORG of LAW , which prohibited reporting on the victim of a crime in a manner which made him or her recognisable in public ; that was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant public interest in the information . Both applications were lodged with ORG .", "On DATE ORG gave a detailed judgment in the case , which referred to the following articles published in the applicant company ’s newspaper and summed up by ORG as follows :", "“ ( CARDINAL ) DATE", "The heading ‘ Missing father returns home with his CARDINAL boys’ , with a picture of NORP . According to the report , the child ’s father returned DATE with NORP and his brother and had to go to the police because the boy was being forced against his wishes to move in with his mother following an inhuman court decision in the context of a divorce battle .", "( CARDINAL ) DATE", "The heading ‘ Family drama : NORP needs peace at DATE , accompanied by a picture of the child . The report describes a failed attempt to take the boy to GPE and quotes the head teacher of his primary school as saying that NORP suffers from anxiety . A large number of people , some of whom have signed a petition , are reported to be campaigning for NORP to remain with his father .", "( CARDINAL ) DATE", "( a ) On the front page , the heading ‘ My best friend is my dog’ . Underneath is a picture of NORP with his dog and text stating that the child does not wish to go to his mother .", "( b ) The heading ‘ What ’s going on here is ORG , with CARDINAL photographs of NORP . According to this article , CARDINAL police officers entered the primary school in order to fetch the boy , who refused to go with them . The head teacher , some parents and classmates are reported as saying that what happened was inhuman .", "( CARDINAL ) DATE", "The heading ‘ Mad scramble for CARDINAL - old’ , with a picture of NORP . The report states that several different people want the child , but no one has asked his opinion , resulting in an inhuman tug - of - war which is already affecting the child psychologically . The article further reports that a bailiff went to the child ’s father ’s flat but found no one at home .", "( CARDINAL ) DATE", "( a ) On the front page , the heading ‘ NORP ’s battle for his home’ , with a picture of the plaintiff showing him grimacing as he resists being taken ( into the police car ) by the bailiff , while his brother tries to obstruct the bailiff .", "( b ) The heading ‘ You have no idea what you ’re doing to the ORG , with CARDINAL more pictures . The article describes the child being taken from the babysitter ’s car to the police car . It likens the scene to something from a distant dictatorship , with CARDINAL bailiffs trying to tear the young plaintiff away from his familiar surroundings by brute force , against his will and despite his cries for help . Neighbours and friends of the family are reported as crying with rage and directing abuse at the court officials . The plaintiff reportedly sustained a serious injury to his spine at the hands of the bailiffs and had to be taken to hospital .", "( CARDINAL ) DATE", "( a ) On the front page , the heading ‘ The whole of GPE up in arms’ , accompanied by a photograph of the child lying in a hospital bed wearing a surgical collar . According to the article , the child was injured by the bailiffs’ rough treatment , and everyone was appalled and angered .", "( b ) The heading ‘ Bailiff pursues DATE right into hospital’ , with CARDINAL pictures of the plaintiff , one showing him on a stretcher , one of him grimacing in pain in the arms of the bailiff while his brother tries to obstruct the latter , and a close - up of the child , again grimacing in pain , next to the bailiff and the car . The article also details rough treatment by the bailiffs , reportedly causing injury to the child , who is said to have complained of neck pains and to have told reporters how he had been punched in the back of the neck by one of the bailiffs . The doctor treating him is reported to have fitted a surgical collar .", "( c ) The heading ‘ Cries for help rang out in the ORG , again with pictures of the child and reports on the public ’s reaction to the bailiffs’ methods ;", "( d ) The heading ‘ All for the good of the ORG , together with the court ’s findings and a picture of the child and", "( e ) NORP letters from readers angered by the treatment of the child by his mother and the court , again with a picture of the plaintiff .", "( CARDINAL ) DATE", "( a ) Heading on front page ‘ NORP abducted from hospital’ , together with a photograph .", "( b ) The heading ‘ GPE country moved by abduction’ , with CARDINAL photographs . The article criticises the allegedly rough methods of the bailiffs .", "( c ) The heading ‘ Did the bailiff want to put a sticker on the ORG , also with critical comments .", "( d ) The heading ‘ Abduction from hospital at dead of ORG , also with a photograph The article describes the child ’s removal from the hospital by his mother and quotes the father as saying that unless tough action is taken against the bailiffs , he will lodge a complaint .", "( e ) The heading ‘ Minister PERSON says violence against children is PERSON again with a photograph and comments on the case , including by the then ORG Minister PERSON , who condemns violence against children .", "( CARDINAL) DATE", "( a ) The heading ‘ Everyone wants NORP finally left in NORP : another report on the mother ’s flight with her child , accompanied by a photograph of the child .", "( b ) The heading ‘ LOC like those with NORP are completely avoidable’ , also with a photograph . Comments on the case by a crisis - management expert .", "( CARDINAL ) DATE", "( a ) The heading ‘ NORP ’s case reopened’ , with photograph . The report states that a new expert psychological opinion on the child is to be ordered .", "( b ) The heading ‘ Custody battle – the story so far’ , describing events up to that point .", "( c ) The heading ‘ NORP hatred in salmon pink’ , with comments by PERSON , again with a picture of NORP grimacing in pain as the bailiff tries to put him in the police car .", "( CARDINAL ) DATE", "Under the heading ‘ NORP already in PERSON , a report stating that the child has already been taken to GPE by his mother and has had to leave his beloved dog behind . The report is accompanied by a picture .", "( CARDINAL ) DATE", "The heading ‘ I do n’t want to stay here any DATE , again with CARDINAL pictures of NORP . The reporter writes that the judge and bailiffs will have to answer to a disciplinary board and that NORP no longer wishes to stay with his mother in GPE but wants to return to his father in GPE .", "( CARDINAL ) DATE", "The heading ‘ ORG soon to search for missing PERSON , again with a picture of the child . The report states that the boy has tried to run away from his mother and has disappeared .", "( CARDINAL ) DATE", "A reader ’s letter under the heading ‘ Violence is not the ORG , in which a NORP criticises the judge , again with a picture showing NORP grimacing in pain . ”", "ORG allowed the action and ordered the applicant company to pay damages in the amount of ORG CARDINAL,CARDINAL , to publish the judgment in its newspaper , and to bear the costs of the proceedings . ORG found that by publishing the above articles containing details of the custody dispute over DATE PERSON , and , moreover , disclosing his full name and accompanied by a photograph of him partly showing a highly distressed facial expression , the applicant company had exposed his strictly private life in a manner likely to compromise him in public , in breach of section CARDINAL of LAW . Moreover , the articles published on CARDINAL , DATE and DATE had , without justification , disclosed the identity of a person who had been the victim of a criminal offence to a large and not directly informed circle of people , in breach of section ORG of LAW .", "ORG accepted that there existed a direct link between the events reported on and the public interest because of the sharp criticism voiced of the conduct of the court officials who had attempted to enforce the custody order . However , the person with custody of NORP had not agreed to publication and the public interest in the events could have been satisfied without giving the child ’s full name and publishing pictures of him .", "On DATE the applicant company appealed . Relying on LAW , it argued , inter alia , that ORG had failed to take into account the fact that there had already been an ongoing debate and that NORP ’s father , acting as his son ’s spokesman and in his interests , had informed the media of the events . Furthermore , it claimed that it had only acted as a public watchdog , informing the public about the proceedings and criticising the domestic authorities in the public interest .", "On DATE ORG partly allowed the appeal . It found that there had been no breach of section ORG of LAW , because under that provision a compensation claim existed only if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’s protected interests . In the present case , however , it was not the description of a criminal act that had breached NORP ’s protected interests , since the proceedings against the court officials had ended without a conviction . ORG therefore remitted the case to ORG on this point .", "It further emphasised that by giving details of the plaintiff ’s intimate family life and his full name , and by adding pictures of him , the newspaper had intruded into his strictly private life , as these details had merely been given in order to create a sensation and satisfy the curiosity of its readers . Even if there was a link to public life , a media outlet could report on a person ’s strictly private life only to the extent necessary to satisfy the need for information related to those elements which were of relevance to the public interest . Reporting on events relating to a person ’s strictly private life therefore had to be appropriate to the circumstances and proportionate . In the present case it had not been necessary for the purpose of informing the public of alleged shortcomings within the judiciary , nor had it been necessary to expose in such an intense and striking manner the severe strain being suffered by the juvenile plaintiff by inserting photographs showing his distress and despair , mentioning his full name and setting out the details of his seizure .", "On DATE ORG ruled again on the case and found no breach of section ORG of LAW . It accordingly reduced the amount of compensation to LAW .", "On DATE ORG upheld that decision .", "Section CARDINAL of LAW , which has the title “ Interference with a person ’s most intimate personal sphere ” ( NORP des höchstpersönlichen PERSON ) , reads as follows :", "“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication is true and has a direct connection to public life ;", "in the circumstances it could have been assumed that the person concerned had agreed to the publication ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL of LAW , which has the title “ Protection against divulging a person ’s identity in special cases ” ( ORG in besonderen NORP ) , reads as follows :", "“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "NORP has been the victim of an offence punishable by the courts , or", "NORP is suspected of having committed , or has been convicted of , a punishable offence ,", "and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .", "( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication", "NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,", "NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .", "( CARDINAL ) No compensation claim under paragraph CARDINAL exists if", "NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;", "NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;", "NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;", "it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;", "the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”", "Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :", "“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”", "Section CARDINAL of LAW , which has the title “ Separate compensation proceedings ” ( PERSON ) , insofar as relevant , reads as follows :", "“ In a judgment by which compensation under LAW , DATE , CARDINAL or CARDINAL has been awarded on the basis of a separate compensation request , the court must also order the publication of the judgment if the person concerned so requests , ... ”" ]

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[ "10" ]

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[ "The applicant was born in DATE and lives in GPE .", "Since DATE , the applicant had been receiving an old - age pension . From DATE , her pension was to be calculated under the Law on Calculating and ORG . The law introduced a new method for calculating pensions . This method , “ a pensioner 's individual multiplier ” was meant to link the pensioner 's pension to his or her previous earnings .", "The authority in charge of the applicant 's pension , ORG of LOC of GPE , fixed the applicant 's multiplier at CARDINAL . The applicant considered that the agency had misread the law , and that her multiplier should be higher . On an unspecified date in DATE she challenged the agency 's decision in a court . Thus , in her view the net underpayments from DATE until DATE amounted to MONEY , without taking into account the raise of the local cost of living index .", "The case came before ORG . On DATE the court held for the applicant . It found that the agency had misread the law : as from CARDINAL DATE the multiplier should have been TIME . Consequently , the agency was ordered to recalculate the applicant 's pension accordingly and pay it .", "The agency appealed against the judgment , but on DATE ORG dismissed the appeal , and the judgment came into force . On DATE the court issued a writ of execution where it invited the local branch of ORG to recalculate the applicant 's old age pension , applying the multiplier PERSON , and pay it to the applicant . The enforcement proceedings against the ORG were initiated . The agency recalculated the pension in accordance with the judgment of DATE and requested the federal ORG to allocate respective amounts .", "On DATE ORG had passed an Instruction on the Application of Limitations Established by the Law on Calculating and ORG ( hereinafter DATE “ Instruction ” ) . The ORG clarified how to apply the law .", "NORP Some time thereafter a group of individuals challenged the Instruction before ORG . On DATE the enforcement of the judgment in the applicant 's favour was suspended in connection with the proceedings before ORG . On DATE ORG dismissed the complaint . It found that contrary to what the plaintiffs suggested ORG had not trespassed its authority when it issued the ORG , and that the ORG 's interpretation of LAW had been correct . On DATE the Cassation Section of ORG upheld this judgment on appeal .", "On DATE , the agency asked ORG to re - open the case due to discovery of new circumstances . They argued that the interpretation of the law on pensions given by the ORG was different from that of ORG . Further , they referred to the decision of ORG of GPE which confirmed the lawfulness of the ORG . The agency argued that it had not known about those facts until after the litigation , and that the case should therefore be reconsidered .", "On DATE , the district court granted the agency 's request and reopened the judgment under LAW . Under this Article , a court might reopen a judgment , if a party discovered significant circumstances that were not and could not have been known to this party during the litigation .", "Having reconsidered the case , on DATE the district court dismissed the applicant 's claims in full . On DATE , the regional court upheld the judgment on appeal .", "The Code of Civil Procedure of DATE ( “ CCivP ” ) , as in force at the material time , provided as follows :", "Article CARDINAL . FAC for re - consideration", "“ [ Judgments ] which have come into force may be re - considered on the basis of newly - discovered circumstances . The grounds for re - consideration ... shall be :", "significant circumstances which were not and could not have been known to the party who applies for re - consideration ; ...", "cancellation of a court [ judgment ] or of another authority 's decision which served as legal basis for the [ judgment ] in question . ”", "Article CARDINAL . Making of application", "“ ... [ An application for re - consideration of a [ judgment ] due to newly - discovered circumstances ] is to be made within DATE after the discovery of the circumstances . ”", "Article CARDINAL . Ruling on the re - reconsideration of the case", "“ ... The ruling ordering the re - consideration of the judgment ... due to newly - discovered circumstances is not subject to any appeal ” .", "On DATE ORG of GPE adopted a ruling concerning certain provisions of LAW ( CCrP ) . In that ruling ORG decided that LAW CCrP ( “ FAC for re - consideration of a [ criminal ] case on the basis of newly discovered circumstances ” , which was in many respect similar to LAW ) was unconstitutional in that it limited the grounds for the re - opening of a criminal case by the situations of “ newly discovered circumstances ” . In that ruling ORG suggested that this provision of the ORG prevented rectification of judicial errors and miscarriages of justice ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE and presently residing in GPE , GPE .", "The applicant lived in GPE DATE . On DATE he was granted a residence permit based on the fact that he had married a NORP woman , PERSON They have a daughter , born in DATE , and a son , born in DATE . On DATE the applicant was granted a permanent residence permit .", "On DATE the applicant was sentenced to DATE in prison for having threatened ORG ( olaga hot ) and obstructed the course of justice ( övergrepp i rättssak ) in DATE . On DATE he was convicted of CARDINAL counts of threatening behaviour and CARDINAL counts of obstruction of justice committed in DATE . The threats were directed against ORG and members of her family . The applicant received a CARDINAL months’ prison sentence . He was released on probation on DATE .", "On an unspecified date the applicant and PERSON divorced . It appears that ORG has custody of the children . After his release from prison the applicant had contacts with the children DATE at ORG ’s home .", "By a judgment of DATE ORG ( tingsrätten ) of GPE sentenced the applicant to CARDINAL months’ imprisonment , ordered his expulsion from GPE and prohibited him from returning before DATE . The court found that , on DATE , the applicant had turned up at ORG ’s home and had assaulted and threatened ORG and guests she had invited to a party . As a result of the assault , ORG had facial injuries and a broken nose . The applicant was found guilty also of criminal damage ( skadegörelse ) .", "As regards the applicant ’s expulsion , ORG made the following conclusions :", "( Translation )", "“ The crimes in question are such that it is possible to expel the applicant under LAW , LAW , second sentence , first paragraph of LAW [ Utlänningslagen ] . However , LAW , LAW requires that there be special reasons for the expulsion as , at the time of the indictment , he had been living in GPE for DATE . [ The applicant ] has not established himself in the NORP labour market . For the third time in DATE , he has committed crimes against the persons representing his only connection to GPE . Further , his crimes seem to have become more serious . Also his children have been indirectly affected by his criminal acts . It appears that the contacts with the children will be very limited in the foreseeable future even if [ the applicant ] remains in GPE . In weighing the circumstances in favour of and against expulsion , ORG finds that there are special reasons for expelling [ the applicant ] from GPE . ... ”", "On DATE ORG ( hovrätten ) of GPE and PERSON upheld ORG judgment . On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal .", "Later the applicant requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . By a decision of CARDINAL DATE the ORG rejected the request .", "On DATE the applicant was released on probation and expelled to GPE ." ]

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[ "The applicants ' ancestors emigrated to ORG from the GPE during the NORP - Russian War of DATE . In DATE the authorities gave them usufructuary rights to a piece of land located within the administrative division of the town of ORG , near GPE . Although they were able to use the land , they were not able to buy it . In DATE , when LAW of the then newly founded GPE entered into force , it became possible for private individuals to own property .", "DATE a Mr PERSON , who had been an army commander , a member of ORG and a judge , forced the applicants ' ancestors and a number of other villagers living in the same area of their land and registered the land in his own name and that of his wife .", "A court case was brought in DATE to challenge the registration of the land in the name of the PERSON family . In DATE the applicants ' ancestors applied to ORG ( hereafter “ the ORG ” ) and asked to be given permission to join the proceedings as interveners . This request was rejected on DATE .", "An appeal lodged by the applicants ' ancestors against the decision of ORG was upheld by ORG and the decision of DATE was thus quashed .", "The proceedings , which recommenced before ORG in DATE , ended DATE with a decision of CARDINAL DATE . ORG found in favour of the applicants ' ancestors ( as , by DATE , some of the applicants had started taking part in the proceedings themselves , for practical reasons those applicants as well as the ancestors of the younger applicants will hereafter be referred to as “ the applicants ” ) and ordered the registration of the land in their names in ORG .", "An appeal lodged by the ORG and the heirs of PERSON against the decision of DATE was upheld by ORG on DATE . The decision of CARDINAL DATE was thus quashed . A revision request made by the applicants was also rejected .", "Proceedings recommenced before ORG in DATE . These proceedings continued for DATE and ended on DATE . In its decision ORG rejected the applicants ' claims in respect of plots CARDINAL . CARDINAL , and severed the proceedings in so far as they concerned plots CARDINAL . CARDINAL - CARDINAL .", "In the meantime , on DATE of the applicants , namely PERSON , PERSON , PERSON , PERSON and PERSON , gave a power of attorney to PERSON to represent them in all proceedings in GPE .", "On DATE the applicants appealed against the decision of DATE in so far as that decision concerned their entitlement to plots CARDINAL . CARDINAL . This appeal was rejected by ORG on DATE . ORG upheld the requests made by a number of other persons who were also participating in the proceedings in respect of plots FAC . CARDINAL and quashed the decision of DATE in so far as it concerned those persons ' claims . A new set of proceedings in respect of those persons ' entitlement to plots CARDINAL . CARDINAL began .", "A request made by the applicants on DATE for a revision of the decision was rejected on DATE and the decision of CARDINAL DATE thus became final in so far as it concerned the applicants ' entitlement to plots nos . CARDINAL - CARDINAL . The proceedings concerning other persons ' entitlement to plots CARDINAL . CARDINAL continued .", "In DATE new proceedings started before ORG in respect of plots CARDINAL . CARDINAL - CARDINAL . These proceedings ended on DATE with a decision in which the applicants ' claims in respect of plot no . CARDINAL were rejected . The applicants appealed on DATE .", "On DATE ORG quashed the decision of DATE and decided that the proceedings concerning plots nos . DATE should be joined to the other pending proceedings which concern other persons ' entitlement to plots nos . CARDINAL .", "The proceedings concerning both sets of plots were thus joined and they are still continuing with the participation of CARDINAL heirs of the original plaintiffs and of the PERSON family .", "The names of CARDINAL of the applicants - Mr PERSON and PERSON PERSON in the petitions submitted to the domestic courts and in the decisions rendered by those courts ." ]

[ "6" ]

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[ "On DATE , the applicant , whilst driving under the influence of drink , knocked down a cyclist who was fatally injured . After hitting the cyclist , the applicant drove off without stopping to give assistance and only gave himself up to the police TIME .", "On DATE , the St. ORG ( Bezirkshauptmannschaft ) , finding the applicant guilty of a number of road traffic offences , ordered him to pay a fine of CARDINAL NORP schillings ( ORG ) with CARDINAL days’ imprisonment in default . This sentence included a fine of ORG CARDINAL,CARDINAL with CARDINAL days’ imprisonment in default imposed for driving under the influence of drink , contrary to sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL)(a ) of FAC DATE ( Straßenverkehrsordnung ) .", "On DATE ORG ( PERSON ) convicted the applicant under LAW of LAW ) of causing death by negligence “ after allowing himself ... to become intoxicated ... through the consumption of alcohol , but not to an extent which GPE ] his responsibility ... ” , and sentenced him to CARDINAL months’ imprisonment .", "The applicant ’s appeal against conviction and sentence was dismissed by ORG ( Oberlandesgericht ) on DATE . The applicant argued that , in the light of the ORG ’s PERSON v. GPE judgment ( DATE , Series A no . CARDINAL-C ) , the decision of ORG should be quashed . ORG recognised that the double conviction violated LAW CARDINAL to the LAW . However , it found that , in spite of the PERSON case , NORP law remained unchanged . It distinguished the PERSON judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings , whereas in the present case , the order was reversed . ORG explained that the double punishment was possible because there was no provision of NORP law which provided for a principle of “ subsidiarity ” between the administrative and the criminal proceedings in the present circumstances . It concluded that this could not hinder the criminal proceedings which had a much wider scope . The applicant ’s conviction was therefore upheld .", "On DATE the sentence of CARDINAL months’ imprisonment imposed on the applicant was reduced to DATE by virtue of the Federal President ’s prerogative of pardons .", "Section CARDINAL ( CARDINAL ) of LAW DATE provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY respectively .", "Section CARDINAL of LAW , so far as relevant , provided at the material time , that :", "“ ( CARDINAL ) It shall be an administrative offence ( PERSON ) , punishable with a fine of not less than ORG CARDINAL,CARDINAL and not more than ATS CARDINAL,CARDINAL or , in default of payment with CARDINAL to CARDINAL GPE imprisonment , for any person :", "( a ) to drive a vehicle when under the influence of drink ...", "( CARDINAL ) An administrative offence is not committed where : ...", "( c ) facts constituting an offence under sub - sections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) also constitute an offence falling within the jurisdiction of the [ ordinary ] courts ... . ”", "In its judgment of CARDINAL DATE ORG had to examine the constitutionality of LAW subsection ( CARDINAL ) of LAW , by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts .", "ORG noted that it was not contrary to LAW if a single act constituted more than one offence . This was a feature common to the criminal law of many NORP countries . However , it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute CARDINAL offence , whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment . Thus , LAW prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other . Where , as in the present case , the law explicitly provided that one offence was not subsidiary to another , it had to be guided by LAW . The ORG ’s Gradinger judgment of DATE had shown that there was a breach of this Article if an essential aspect of an offence , which had already been tried by the courts , was tried again by the administrative authorities .", "Section CARDINAL subsections ( CARDINAL)(a ) and ( CARDINAL ) of LAW , taken together , meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent . According to the criminal courts’ constant case - law under LAW § CARDINAL of LAW ( cited below ) , drunken driving was also an essential aspect of certain offences tried by these courts . Insofar as LAW ( CARDINAL ) of FAC limited the subsidiarity of administrative offences to those enumerated in subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL , thus excluding subsidiarity for the offence of drunken driving contained in section CARDINAL ( CARDINAL)(a ) , it violated LAW .", "Under LAW , it is an offence , punishable by up to one year ’s imprisonment , to cause death by negligence . Where the special circumstances of LAW apply , the maximum possible sentence is increased to up to three years’ imprisonment .", "Article CARDINAL § CARDINAL applies where a person commits the offence", "“ after allowing himself , even if only negligently , to become intoxicated ... through the consumption of alcohol , but not to an extent which excludes his responsibility , notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state ” .", "By virtue of an irrebuttable presumption applied by the criminal courts , a driver with a blood alcohol level of QUANTITY or higher is deemed to be “ intoxicated ” for the purposes of LAW ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant was taken into police custody on suspicion of committing “ extortion and blackmail ” and “ causing a public danger ” .", "On DATE the applicant was brought before an investigating judge of ORG ( Okrožno sodišče v PERSON ) , who opened a judicial investigation against him and remanded him in pre - trial detention .", "During the judicial investigation proceedings , it was reported in several newspaper articles that the applicant had committed a number of criminal acts .", "The judicial investigation against the applicant was discontinued on CARDINAL DATE for lack of evidence and the applicant was released on DATE .", "On an unspecified date , and in accordance with LAW , the applicant lodged a request with ORG for compensation in respect of the damage sustained . On DATE the ORG offered to pay the applicant CARDINAL NORP tolars ( SIT – approximately CARDINAL euros ( ORG ) ) , which the applicant did not accept .", "On DATE the applicant instituted civil proceedings against ORG and ORG in the ORG seeking compensation in the amount of SIT CARDINAL ( approximately EUR CARDINAL ) for non - pecuniary damage . He also requested to be exempted from payment of court fees .", "On DATE the court held a hearing .", "NORP In addition , on DATE the applicant was arrested on charges of drug trafficking . He remained in pre - trial detention until DATE when ORG found him guilty as charged .", "A hearing in the civil proceedings scheduled for DATE had to be postponed because of the applicant 's detention . Subsequently , a hearing was held on DATE .", "As regards the criminal proceedings , on DATE ORG ( PERSON v PERSON ) allowed the applicant 's appeal against the first - instance court 's judgment and remitted the case for re - examination . On DATE the applicant was acquitted . On an appeal by the public prosecutor , the judgment was upheld by ORG on DATE .", "NORP Moreover , in DATE , the applicant was accused of drug trafficking in CARDINAL other sets of criminal proceedings . The proceedings were discontinued as the public prosecutor withdrew the bills of indictment .", "On DATE the applicant filed written submissions in the civil proceedings which he had instituted on DATE before ORG and increased the amount of his compensation claim .", "The court held a hearing on DATE . The applicant did not appear at that hearing .", "On DATE , after a hearing , ORG handed down a judgment in which it awarded the applicant SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . Both parties appealed .", "On DATE ORG allowed the defendant 's appeal and reduced the amount of the award to SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . That judgment became final .", "On DATE ORG requested ORG ( Okrožno sodišče v PERSON ) to open a criminal investigation against the applicant and CARDINAL other individuals for drug trafficking .", "According to the Government , the applicant was not available to the prosecuting authorities during the investigation stage , although he had promised the police in a telephone conversation that he would report for questioning . In addition he had not accepted the summons – substitute notification had thus been served on DATE . The investigating judge issued CARDINAL orders for the applicant to appear before the court , but to no avail .", "On DATE ORG indicted the applicant and CARDINAL other individuals in ORG , accusing the applicant of drug trafficking .", "On DATE the court ordered the applicant 's arrest and issued an arrest warrant .", "At a hearing held on DATE , the applicant 's proceedings were separated and transferred to ORG . However , they were eventually transferred back to ORG . In addition , the proceedings directed against the other CARDINAL individuals were joined to the applicant 's proceedings .", "On DATE the applicant was arrested and taken into police custody .", "The court held hearings on DATE , DATE , DATE , DATE and DATE .", "On DATE the court pronounced a judgment finding the applicant guilty and sentencing him to DATE imprisonment . The court ordered that the applicant remain in detention until he started serving his sentence .", "The applicant appealed to ORG ( PERSON sodišče v PERSON ) . The court allowed the appeal on DATE and remitted the case to the first - instance court for re - examination . The court also ordered the applicant 's release .", "A hearing was scheduled for DATE but later postponed since one of the accused could not be summoned . Hearings scheduled for DATE and CARDINAL DATE were also postponed .", "The court held hearings on DATE , DATE and DATE .", "Another hearing scheduled for DATE was adjourned because CARDINAL defendants did not appear . Further hearings were then held on DATE and DATE .", "After a hearing on DATE , the court handed down a judgment in which it acquitted all CARDINAL defendants .", "NORP The public prosecutor lodged an appeal .", "The proceedings are pending before ORG .", "The following provisions of the DATE LAW ( PERSON , ORG no . CARDINAL ) are relevant to the present case :", "“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law . ... ”", "“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a ORG or local authority or as a holder of public office . ... ”", "“ The Constitutional Court shall hear :", "... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom ;", "...", "Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . ”", "Following the GPE v. GPE judgment of DATE ( no . CARDINAL , ORG CARDINALX ) and decision no . U - I-CARDINAL/CARDINAL of ORG ( DATE ) , both obliging ORG to establish conditions in which the right to a trial without undue delay must be afforded , ORG adopted on DATE a ORG on ORG , the so - called ORG . Its goal is the elimination of backlogs in NORP courts and prosecutor 's offices by DATE , by providing for structural and managerial reform of the judiciary .", "The preparation of the LAW on the Protection of the Right to a Trial without undue Delay was part of ORG .", "Since DATE the Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG no . DATE LAW ” ) has been implemented . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for parties to court proceedings , participants in non - contentious proceedings and injured parties in criminal proceedings .", "Section CARDINAL provides for CARDINAL remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) DATE and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .", "Section CARDINAL defines the criteria that domestic authorities should take into account when assessing the complaints :", "“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”", "The supervisory appeal is governed by sections CARDINAL and DATE , which provide as follows :", "“ ( CARDINAL ) If a party considers that the court is unduly protracting the decision - making , he or she may lodge a supervisory appeal in writing before the court hearing the case ; the decision thereon shall be taken by the ... president of the court ( hereinafter ' the president of the court ' ) .", "( CARDINAL ) For the purposes of decision - making concerning the protection of the right to a trial without undue delay , the supervisory appeal shall contain the following elements :", "– personal or corporate name or any other name of the party , with address of permanent or temporary residence or registered office ;", "– personal or corporate name or any other name of the representative or lawyer , with address of permanent or temporary residence or registered office ;", "– indication of the court hearing the case ;", "– reference number of the case or date on which the case was filed in the court ;", "– indication of circumstances or other particulars concerning the case , which demonstrate that the court is unduly protracting the decision - making ;", "– handwritten signature of the party , representative or lawyer . ”", "“ ( CARDINAL ) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolution of the case concerned by the supervisory appeal , the president of the court shall dismiss the appeal by a ruling .", "( CARDINAL ) If the supervisory appeal does not contain all the required elements referred to in section CARDINAL(CARDINAL ) of this LAW , the president of the court shall dismiss it by a ruling . No appeal shall lie against that ruling .", "( CARDINAL ) If no ruling as provided for in subsections CARDINAL or CARDINAL of this section is given , the president of the court shall , in the framework of his court management competence under the statute governing the court system , forthwith request the judge or chair of a court panel ( hereinafter ' the judge ' ) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings , not DATE after receiving the request of the president of the court or after obtaining the file , if necessary for drawing up the report . The report shall include the declaration in respect of criteria referred to in DATE of this LAW and the opinion on the time - limit within which the case may be resolved . The president of the court may also require the judge to submit the case file if he assesses that , in the light of allegations of the party indicated in the supervisory appeal , its examination is necessary .", "( CARDINAL ) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time - limit not exceeding DATE following the receipt of the supervisory appeal , the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal .", "( CARDINAL ) If the president of the court establishes that in view of the criteria referred to in LAW CARDINAL of this Act the court is not unduly protracting the decision - making in the case , he shall dismiss the supervisory appeal by a ruling .", "( CARDINAL ) If the president of the court has not informed the party in accordance with subsection", "( CARDINAL ) If the president of the court establishes that the undue delay in decision - making in the case is attributable to an excessive workload or an extended absence of the judge , he may order that the case be reassigned . He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service .", "( CARDINAL) A judge may be assigned by the DATE schedule of allocation to act in place of or together with the president of the court in exercising the court management competence for decision - making in respect of the supervisory appeal . ”", "Sections CARDINAL , CARDINAL and CARDINAL define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion . They read , in so far as relevant , as follows :", "“ ( CARDINAL ) If , under section CARDINAL ) or ( CARDINAL ) of this LAW , the president of the court dismisses the supervisory appeal or fails to respond to the party within DATE or fails to send the notification referred to in section CARDINAL(CARDINAL ) of this LAW within the said time - limit or if appropriate procedural acts have not been performed within the time - limit set in the notification or ruling of the president of the court , the party may lodge a motion for a deadline under section CARDINAL(CARDINAL ) of this LAW with the court hearing the case .", "...", "( CARDINAL ) The party may lodge the motion for a deadline within DATE after receiving the ruling or after the time - limits provided for in subsection QUANTITY of this section . ”", "“ ( CARDINAL ) The president of the higher court in the judicial area covering the local court , district court or other court of first instance , shall be competent to decide on the motion for a deadline concerning cases heard by the local court , district court or other court of first instance .", "... ”", "“ ( CARDINAL ) If the motion for a deadline is manifestly unfounded , having regard to the timetable for the resolution of the case and the actions of the party , the president of the court shall dismiss it by a ruling .", "... ”", "( CARDINAL ) The president of the court shall decide on the motion for a deadline within DATE after receiving it . ”", "Section CARDINAL governs the competence of ORG in cases where a supervisory appeal has been lodged with the ORG rather than with the court of competent jurisdiction :", "“ ( CARDINAL ) If the supervisory appeal is lodged with the Ministry responsible for justice ( hereinafter referred to as ' ORG ) , the Minister ... responsible for justice ( hereinafter referred to as ' the Minister ' ) shall refer it to the president of the court of competent jurisdiction to hear it in accordance with this LAW and shall ask to be kept informed of the findings and decision .", "... ”", "Further to section CARDINAL , just satisfaction may be provided by payment of monetary compensation , a written statement of ORG or the publication of a judgment :", "“ ( CARDINAL ) If the supervisory appeal lodged by the party has been granted or if a motion for a deadline has been lodged , the party may claim just satisfaction under the present Act .", "( CARDINAL ) Just satisfaction shall be provided by :", "i. payment of monetary compensation for damage caused by a violation of the right to a trial without undue delay ;", "ii . a written statement from the State Attorney 's ORG that the party 's right to a trial without undue delay has been violated ;", "iii . the publication of a judgment to the effect that the party 's right to a trial without undue delay has been violated . ”", "Section CARDINAL provides for a compensatory remedy and fixes the maximum amount that could be awarded :", "“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by a violation of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .", "( CARDINAL ) Monetary compensation in respect of individual , finally decided cases shall be awarded in an amount of MONEY .", "( CARDINAL ) When deciding on the amount of compensation , the criteria referred to in section CARDINAL of this Act shall be taken into account , in particular the complexity of the case , actions of the ORG , actions of the party and the importance of the case for the party . ”", "Sections DATE , CARDINAL govern just satisfaction proceedings and proceedings in respect of pecuniary damage :", "“ ( CARDINAL ) Proceedings to enforce a claim for just satisfaction , provided that the condition referred to in section CARDINAL ) of this Act is met , shall be instituted by a party by means of an application for settlement lodged with the State Attorney 's Office with a view to reaching an agreement on the type or amount of just satisfaction . The party may lodge such application within DATE after the final resolution of the case . The ORG Attorney 's Office shall rule on the application of the party within DATE if it establishes that the just satisfaction claim is substantiated . Until the expiry of the above - mentioned period , the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court .", "( CARDINAL ) If , in accordance with subsection CARDINAL of this section , the agreement has been reached with the party , the ORG Attorney 's ORG shall enter into an out - of - court settlement with the party . ”", "“ ( CARDINAL ) If no agreement under LAW of this LAW is reached upon the application for settlement , or the ORG Attorney 's ORG and the party fail to negotiate an agreement within DATE of the application being lodged , the party may bring an action for damages .", "( CARDINAL ) An action for damages against GPE shall be brought not DATE after the final resolution of the party 's case .", "... ”", "“ ( CARDINAL ) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within DATE of the final ruling of the court on the party 's case in accordance with the provisions of LAW concerning pecuniary damage .", "... ”", "Sections CARDINAL and CARDINAL further provide for payment of compensation :", "“ ( CARDINAL ) The ORG Attorney 's ORG shall pay monetary compensation on the basis of the settlement referred to in section CARDINAL(CARDINAL ) of this LAW and for all appropriate costs incurred by the party in connection therewith .", "( CARDINAL ) The ORG Attorney 's ORG shall pay monetary compensation and the party 's costs of the proceedings on the basis of a final court decision which has established the violation of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”", "“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”", "“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney 's ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney 's ORG within DATE after the date of receipt of the proposal of the ORG Attorney 's ORG . The State Attorney 's Office shall decide on the proposal as soon as possible and within DATE at the latest . ...", "( CARDINAL ) If the proposal for settlement referred to in subsection CARDINAL of this section is not acceded to or the ORG Attorney 's ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the reply from the ORG Attorney 's ORG that its proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for the ORG Attorney 's ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”" ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , a NORP citizen born in DATE , is a pensioner living in GPE ( GPE ) .", "Until DATE the applicant , who draws an old - age pension , lived with her husband in a house belonging to He . PERSON , one of her CARDINAL sons , in ORG in the GPE of GPE . As she was suffering from leg sores , she received help from ORG to the Sick and Housebound from DATE . In DATE He . PERSON moved in .", "In DATE , at their request , the applicant and her husband were placed under the guardianship ( ORG ) of their other son , DATE However , He . PERSON objected to this . At DATE the applicant 's husband moved into the S. Nursing Home at PERSON in the GPE of GPE . It was agreed that the applicant would also move in within DATE , but she did not do so .", "NORP On DATE a new guardian , PERSON , was appointed . At the applicant 's request and in view of He . PERSON 's resistance to the new guardian , the guardianship order was discontinued in respect of the applicant on DATE , but the order in respect of her husband remained effective .", "Early in DATE the applicant 's husband died .", "On DATE ORG to the Sick and Housebound wrote to ORG ( LANGUAGE - behörde ) , stating , inter alia :", "“ For the following reasons [ the applicant 's ] treatment and care is causing increasing difficulty ; for DATE now it has become impossible . Our programme is being disrupted : virtually every day we must stand outside a closed door and wait until He . M , her son , perhaps deigns to open it , scantily dressed . Frequently , we must try again at another time ... A collection of newspapers , cardboard boxes and full plastic bags makes it difficult for us to gain access to the equipment we need for our work ... If [ the applicant ] is bedridden , which she was from DATE to CARDINAL DATE because of the lack of heating in the rooms , we are unable to undertake even the minimum care of [ her ] on account of the chaos in the room [ i m räumlichen Debakel ] ... We will be able to continue to provide care for [ the applicant ] until DATE . If [ she ] or her family wishes us to continue our services , this will be possible after DATE , but only on the following conditions :", "We expect He . PERSON to open the door to us at the latest by TIME , and to be properly dressed ;", "We expect heated rooms in DATE in order to provide the necessary care ;", "We require space to be made available in [ the applicant 's ] bedroom , and the spare bed , as well as the boxes and bags that are lying around , to be taken out , as they hinder our work ; access to [ the applicant 's ] bed must be free ;", "Once a DATE we wish to put fresh linen on [ the applicant 's ] bed ; He . M. shall wash the linen , or have it washed elsewhere ;", "If [ the applicant ] is bedridden , she should have a warm TIME meal ( to be provided by the home services of the old people 's home ) . ”", "It appears that the applicant and He . PERSON did not respond to that proposal . On DATE ORG to the Sick and Housebound stopped visiting them . Subsequently , following an eye operation , the applicant 's eyesight deteriorated . From DATE the association 's doctor ceased to visit the applicant , who continued to live with He . M.", "On DATE ORG ) requested ORG ( ORG ) to place the applicant in an old people 's nursing home .", "On DATE the LOC Governor visited the applicant . The applicant explained that , as a rule , her son did the cooking and that she was given enough to eat . She could go to the toilet unassisted , and washed herself in the kitchen . Her leg sores were washed and treated by a woman who helped her . The applicant also stated that she did not wish to go to ORG .", "On DATE ORG ordered the applicant 's placement for an unlimited period in GPE on account of serious neglect ( schwere PERSON ) . The ORG relied on ORG et seq . of ORG ( PERSON ) and LAW ( PERSON über die fürsorgerische GPE ) of the GPE of GPE . The order requested the municipal police , together with the health inspectors , to implement the order on DATE . The order noted that the applicant required permanent treatment in view of her leg sores and cataract , that she no longer received care from a doctor or an association , and that it was not certain that she had enough to eat . The order , referring to intolerable conditions of hygiene in the unheated flat , stated that this situation , which had already lasted for DATE , would not change in the foreseeable future .", "On DATE the applicant was placed in the S. Nursing Home in GPE .", "The applicant and He . PERSON , her son , each filed an appeal ( PERSON ) with LAW Rekurskommission ) of the GPE of GPE . ORG consisted of CARDINAL judges , its president being a lawyer . The other QUANTITY persons were specialised judges , CARDINAL of whom , the rapporteur , was a doctor .", "On DATE ORG conducted a hearing at which the applicant , He . PERSON , their lawyer , a member of ORG and a representative of ORG were present . According to the record of the hearing , the applicant explained that she had no reason to be unhappy with the nursing home , that , as she could no longer walk , it would be better for her to stay there , and that she did not see how matters could get better for her . However , she also said that she “ wanted to get out of GPE .", "ORG dismissed the appeals DATE . As to the facts it found :", "“ The situation at [ the applicant 's home ] was apparently catastrophic , CARDINAL parties found it necessary to file reports or make statements . It is noted in the file that lately [ the applicant ] had taken to staying in bed , her eyesight was very poor , and she could not walk or stand properly . According to her own submissions , she has to hold on to support wherever she goes . She needs a wheelchair , but does not have one at home . The flat was not heated , there was refuse everywhere , and no one was catering for meals . The nurse responsible for [ the applicant 's ] care had already stated on a previous occasion that her leg sores had not healed because of her living conditions . The nurse now states that in DATE of care she had noticed a serious loss of body weight , which she attributed to the fact that [ the applicant 's son ] was not taking sufficient care to ensure that his mother was eating properly . A certain Mr Hi . , who had brought [ the applicant ] home after her stay in hospital , had been horrified by the state of the flat and said that it was not heated . The fruit vendor also reported that the situation was horrific . When PERSON , the head of the social services , had been asked how [ the applicant ] responded to the nursing home , she had answered that she had been present when [ the applicant ] had arrived . At that time [ the applicant ] had not been able to walk , she was not properly dressed ( she was wearing nylon tights and a torn woollen jacket ) and smelled badly . PERSON was shocked and declared that she had never seen a person in such a state , although she had a long experience in guardianship matters . ”", "In its decision ORG considered that CARDINAL grounds had been made out under LAW that justified withdrawing the applicant 's liberty on grounds of welfare assistance . Firstly , the applicant had been neglected , as she was no longer able to tend to her most basic dietary and hygiene needs . She could not even dress herself . Without outside help she was confined to bed . Since ORG to the Sick and Housebound had stopped visiting , the problem was unresolved , particularly as the applicant refused to go into the S. Nursing Home voluntarily . In respect of the second ground , ORG considered that “ during the hearing it had come to the conclusion that the applicant had a mental disability ( senile dementia ) ” ( Geistesschwäche ( altersbedingte Demenz ) ) . In view of that disability , ORG considered that the applicant 's placement in a nursing home “ would be justified even if it was considered that the degree of neglect was not sufficiently serious ” . The decision continued :", "“ In this context , the appellants ' argument is not helped by the fact that [ the applicant ] has accepted that she needs to go into a nursing home , as she explained during the appeal hearing . It is true that there would be no need for deprivation of liberty on grounds of welfare assistance if [ the applicant ] went to reside at the S. Nursing Home of her own free will . However , it transpires from the case file that although she has already frequently stated that she was now willing to enter PERSON voluntarily , finally this has not happened . ”", "In ORG view , if the applicant were released , she would return to her son , who was unable to provide sufficient care for her , as he was himself an invalid with poor eyesight . Yet , the S. Nursing Home , which could provide the necessary care , was ideal for the applicant as it was in an area she knew . Indeed , the applicant was hardly aware of the deprivation of liberty , which was minimal , and in fact it mainly affected her son , who did not want to leave his mother . ORG further found that the deprivation of liberty on grounds of welfare assistance complied with LAW ) of the LAW , since that provision also permitted a deprivation of liberty in cases of vagrancy , a term that was to be understood in a wide sense .", "The applicant and her son He . PERSON lodged a public - law appeal ( staatsrechtliche Beschwerde ) which ORG ( PERSON ) dismissed on DATE . The decision was served on DATE .", "In so far as the applicant and her son complained that ORG had not examined whether less stringent measures were possible , the court found :", "“ The ORG concludes on the facts that the first appellant [ the applicant ] is no longer capable of looking after and caring for herself , feeding herself or even dressing herself ; without outside help she would be confined to bed ; the second appellant [ the applicant 's son ] who is an invalid , and is in fact no longer able to see , is unable to look after her , and there is nobody else who is in a position to care for her ; other attempts which have been made to resolve this problem have failed ; in the end , placement in the S. Nursing Home at ORG has been considered to be the only means of preventing neglect . ORG has therefore duly considered the proportionality of the deprivation of liberty ...", "Whether in the case of the first appellant there exists , apart from serious neglect , some mental disability which would also justify a deprivation of liberty in itself DATE a point which is challenged by the appellants DATE and whether procedural rules have allegedly been breached in connection with this ground of detention , are matters which do not need to be examined , particularly as the appellants have been unsuccessful in their appeal against the [ applicant 's ] detention for serious neglect . ”", "On DATE ORG lifted the applicant 's placement order as she had agreed to reside in the nursing home of her own free will .", "Articles CARDINALa et seq . of the NORP Civil Code concern the withdrawal of liberty on grounds of welfare assistance ( fürsorgerische GPE ) . Article ORG provides :", "“ An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness , mental disability , alcoholism , other addictions or serious neglect , if the person can not otherwise be afforded the necessary personal care .", "In this context , account must be taken of the burden which the person places on his or her environment .", "The person concerned must be released as soon as the situation permits . ”", "Article CARDINALe , which lays down the procedure in such cases , provides that “ in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion ” .", "The Deprivation of Liberty on Grounds of Welfare Assistance Act of the GPE of GPE implements ORG et seq . of LAW . Sections CARDINAL et seq . of the LAW concern “ measures without deprivation of liberty ” . Section CARDINAL provides that ORG ( LANGUAGE - behörde ) shall secure the necessary personal assistance for persons who put themselves or others in danger on account of mental illness , mental disability , alcoholism , other addictions or serious neglect . Under LAW , ORG may order care measures if guardianship measures do not suffice ; such measures may be renewed after DATE and standard social - work procedures are to be followed . Sections CARDINAL et seq . concern the “ deprivation of liberty on grounds of welfare assistance ” . Section CARDINAL mentions , inter alia , the institutions in which such persons may be placed , namely a psychiatric clinic , a therapeutic home or a nursing home . Section CARDINAL mentions the competent decision - making bodies , in particular ORG ." ]

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[ "5" ]

[ "5-1" ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "The applicants used to go to the village of ORG ( now PERSON ) , LOC , GPE , to visit PERSON ( the applicants’ mother and grandmother respectively ) . They had a long - standing conflict with PERSON ’s neighbour PERSON in connection with the use of their neighbouring plots of land . On several occasions the applicants sought institution of criminal proceedings against S. , without success .", "On CARDINAL of the applicants’ visits to the village , on DATE at TIME , CARDINAL armed men wearing GPE masks burst into ORG house , CARDINAL of them wearing jackets similar to those used by the police . They threatened and beat up PERSON and the applicants , then searched the house and seized a camera which the applicants allegedly used to carry for “ making a record of the danger posed by PERSON", "On CARDINAL DATE the applicants went to the ORG ( PERSON центральная районная больница ) where the first applicant was diagnosed with an injury to the thoracic cage and lumbar contusion , and the second applicant with contusion of the scalp . The nurse on duty at FAC contacted the ORG of the Interior ( ORG Приволжского района ) .", "On DATE the investigation team went to examine the scene of the incident . The applicants and PERSON were questioned on the circumstances of the incident .", "Upon their return to GPE , on DATE the applicants on their own initiative underwent an examination by a forensic medical expert and were diagnosed with multiple abrasions and bruises on their faces and bodies caused by a blunt hard object possibly on CARDINAL DATE and not resulting in any damage to health ( medical certificates nos . CARDINAL and CARDINAL ) .", "On DATE chief district police officer PERSON . of the ORG of the ORG decided not to institute criminal proceedings , for lack of evidence of a crime .", "On DATE the first applicant complained to ORG that she and her son had been assaulted on DATE . She further claimed that they had been threatened that they would be killed if they continued to make complaints against S. , and that they would have to pay MONEY ( RUB ) for each of their visits to the village .", "On DATE the ORG , PERSON , quashed the decision of CARDINAL DATE not to institute criminal proceedings . The prosecutor noted that the inquiry had been held only in respect of PERSON , that it was necessary to question the doctors who had examined the applicants on CARDINAL DATE and to question PERSON ’s neighbours . The material of the inquiry was returned to ORG of the ORG for an additional examination . It appears that subsequently criminal proceedings were instituted against police officer PERSON . on suspicion of having forged the ORG signatures during the investigation leading to the decision of CARDINAL DATE . The outcome of these proceedings remains unknown .", "On DATE the first applicant again addressed ORG complaining about lack of action in the case and expressing her distrust against ORG and ORG of the ORG .", "On DATE the ORG , PERSON , instituted criminal proceedings under LAW of LAW ( “ Beatings ” ) . The investigation department of ORG of the ORG was charged with the preliminary investigation of the case .", "DATE and DATE an investigator questioned the applicants , PERSON , and the applicants’ neighbours GPE . T. , An . T. and S. The applicants were questioned at ORG of the Interior in GPE ( СУ при ORG г. ORG ) . They submitted that the CARDINAL armed perpetrators wearing police jackets resembled district police officers PERSON . and As . of the ORG of the ORG .", "On DATE the investigation was suspended by investigator PERSON . of the investigation department of ORG of the ORG due to the impossibility of identifying the alleged perpetrators .", "On DATE ORG quashed the above decision due to incompleteness of the investigation . The prosecutor noted the necessity to question PERSON ’s relatives on the issue of his conflict with the first applicant , to verify the version of the attack on the applicants by PERSON ’s relatives , nephews or acquaintances from ORG of the ORG , GPE and ORG of the Interior , to establish whether S. kept bees and had in his possession GPE masks , and whether he could have borrowed the masks from somebody else . The prosecutor noted the necessity to carry out an investigative experiment in order to find out whether the applicants could have seen as they asserted the individual features of the assailants behind the GPE masks , to question police officers PERSON . and As . , to carry out confrontations between the above police officers and the applicants and identification parade with participation of the above police officers and PERSON prosecutor further noted the necessity to eliminate contradictions in the statements of the applicants as regards the date of their visit to the ORG , to appoint the applicants’ forensic medical examination , to question all medical staff who examined the applicants at the ORG , to enquire on individual characteristics of all the participants on the case , to widen the circle of witnesses and to carry out other investigative actions necessary for a comprehensive investigation .", "On DATE the investigation was again suspended by investigator PERSON . due to the impossibility of identifying the alleged perpetrators .", "On DATE the ORG quashed the above decision , noting the failure of the investigator to comply with the instructions of the prosecutor outlined in the decision of DATE and to carry out any of the investigating actions mentioned therein .", "DATE and CARDINAL DATE the investigator questioned PERSON , witnesses PERSON acquaintance ) , PERSON S. ’s nephew ) and PERSON ( S. ’s wife ) , chief district police officer PERSON . , police officers PERSON . and As . and the doctor who had been on duty at the ORG on CARDINAL DATE . The applicants were requested to appear at the ORG of the ORG for participation in confrontations and identification parades . However , they informed the investigator about their unwillingness to appear , relying on the death threats they had received during the incident of CARDINAL DATE .", "On DATE the investigation was for the third time suspended by investigator PERSON . due to the impossibility of identifying the alleged perpetrators .", "On DATE the ORG quashed the above decision and the criminal case was referred back to the investigation department of ORG of the ORG for additional investigation . The prosecutor instructed the investigator to join to the case - file material the results of the applicants’ forensic medical examination , to carry out a series of confrontations and identification parades with the applicants’ participation , and to study the issue of the applicants’ mental health ( no copy of the relevant decision was made available to ORG ) .", "On DATE the investigation was for the fourth time suspended due to the impossibility of identifying the alleged perpetrators .", "On DATE the Prosecutor of ORG quashed the above decision and ordered an additional investigation . He noted the failure of the investigator to comply with the instructions of the district prosecutor and the fact that the investigation had taken on a protracted character .", "On DATE the applicants were questioned as witnesses at the investigation department of the NORP ORG of the Interior in GPE . They refused to make any statements , explaining that first of all they considered themselves victims of PERSON ’s unlawful behaviour and not of the beatings , and that only when they received an official reply in connection with the former would they agree to make any submissions regarding the beatings . The applicants refused to sign the decision by which they were granted victim status in the proceedings , to hand to the investigator the technical documents of the camera allegedly seized from them on CARDINAL DATE and to provide the investigation with samples of their signatures which were necessary to check the authenticity of the signatures appearing on the records of their initial statements of CARDINAL DATE . They further refused participating in any investigative actions at the ORG of the ORG .", "Subsequently , DATE and DATE the investigation was suspended on CARDINAL occasions due to the impossibility of identifying the alleged perpetrators , and was subsequently resumed by the prosecutor with instructions to carry out additional investigations . On CARDINAL occasions during this period ( on DATE and DATE ) the proceedings were stayed due to the expiry of the procedural time - limit for prosecution , and later resumed ( on CARDINAL DATE and DATE ) . During this period the applicants were on several occasions requested to appear at the ORG of the ORG for participating in a series of confrontations and identification parades , to no avail .", "On DATE investigator L. of the investigation department of the ORG of the ORG discontinued the proceedings due to the expiration of the procedural time - limit for criminal prosecution .", "On DATE , however , the deputy head of the chief investigation department of PERSON quashed the above decision and resumed the investigation . The case file contains no further information about the results of the additional investigation , if any .", "LAW ( “ the Code ” ) in force as from DATE provides in its LAW that a person who has suffered damage as a result of a crime is granted victim status and may take part in the criminal proceedings . During the criminal investigation , the victim may submit evidence and lodge applications . Once the investigation is completed , the victim has full access to the case file .", "Articles CARDINAL and CARDINAL of the Code establish that prosecutors , investigators and inquiry bodies are obliged to consider applications and information about any crime committed or being prepared , and to take a decision on that information within DATE . In exceptional cases , this time - limit can be extended to DATE . The decision should be one of the following : ( a ) to institute criminal proceedings ; ( b ) to refuse to institute criminal proceedings ; or ( c ) to transmit the information to another competent authority .", "According to LAW , the criminal investigation should not normally exceed DATE . This time - limit can be extended for DATE . If the matter is of extreme complexity , the investigation can be extended for DATE .", "Article CARDINAL § CARDINAL of the LAW states that the criminal investigation can be suspended if the alleged perpetrator has not been identified .", "Article CARDINAL of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor . The investigator should also notify the victim and the complainant in writing of the termination of the proceedings .", "According to LAW , the prosecutor can reverse the decision of the investigator and reopen the proceedings . The proceedings can be re - opened until the time - limit for holding a person criminally responsible expires .", "Under LAW , the prosecutor is responsible for general supervision of the investigation . In particular , the prosecutor can order that specific investigative activities be carried out , transfer the case from one investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies ." ]

[ "3" ]

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[ "3" ]

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[ "The applicant is a NORP citizen , born in DATE and living in GPE .", "In DATE the applicant , then aged CARDINAL , moved , together with his mother , to the privately owned flat in GPE he still occupies . The applicant and his mother were tenants and in possession of the flat on the basis of a lease between the applicant 's mother and the owner . In DATE the flat in question was nationalised , but DATE , in DATE , returned to the previous owner . The applicant and his mother continued to live in the flat , and in DATE the owner of the flat leased the flat to the applicant 's mother . After the mother 's death in DATE , the applicant prolonged the lease under his name .", "On DATE , the ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) and on DATE , LAW ( Zakon o najmu stanova ) . While the first one regulates the sale of publicly - owned flats previously let under a specially protected tenancy , the second regulates the conditions of leasing privately - owned flats , including those previously let under a specially protected tenancy .", "The applicant , together with CARDINAL other applicants , lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , claiming that certain provisions of LAW and ORG violated the constitutional guarantees of the right to enjoy their possessions , the respect and protection for family life and discriminated against former holders of specially protected tenancies of privately - owned flats .", "ORG ruled on DATE , and its decision was published in ORG ( ORG novine ) . The ORG quashed several provisions of LAW and dismissed the request to examine the constitutionality of ORG . As to LAW , the ORG quashed LAW , which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another flat in adequate condition before cancelling the lease , if the owner intended to live in the flat himself or intended to install in the flat his children , parents or his dependants . ORG also quashed LAW , point CARDINAL , which excluded from the right to “ protected rent ” a lessee who had ceased to use the flat during DATE preceding the enactment of the LAW in question . Furthermore , the ORG quashed ORG DATE and CARDINAL § CARDINAL . Article CARDINAL restricted the lessor 's right to terminate the lease of a lessee who does not pay the rent and charges , and is over DATE of age or receiving social security benefits , only to cases where the municipality provides such a lessee with another adequate flat with a right to “ protected rent ” in an amount affordable to the lessee . LAW provided in substance the same as the above - mentioned LAW § CARDINAL .", "B. Relevant domestic law before amendments by ORG", "The Specially Protected Tenancies ( Sale to Occupier ) Act regulates the conditions of sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy on a publicly - owned flat to purchase it under favourable conditions of sale . However , the LAW excludes from such favourable treatment the holders of specially protected tenancies on most privately - owned flats .", "The provisions of the LAW challenged by the applicant before ORG provide as follows .", "Article CARDINAL § CARDINAL point QUANTITY provides , inter alia , that the LAW does not concern privately - owned flats let under specially protected tenancies .", "Article CARDINAL provides that where the tenant of a publicly - owned flat has not applied to purchase it under LAW , the tenant of any privately - owned flat may lodge a request to buy it . Furthermore , this provision establishes the criteria for priority in the purchase of such flats .", "Article CARDINAL regulates the spending of the funds collected through the sale of flats let under specially protected tenancies . It requires PERCENT on such funds to be used , inter alia , to provide flats for the former holders of specially protected tenancies of privately owned - flats , while PERCENT of the funds must be used to help providing flats for families with CARDINAL or more children . If the funds originate from the sale of flats in culturally protected buildings , PERCENT of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria .", "DATE provides that the private owners of rented flats may , within DATE of the LAW 's enactment , sell their flats to the municipality . The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality . The price of such a flat will be fixed according to the provisions for determining prices of publicly - owned flats let under specially protected tenancies .", "LAW in general regulates the legal relationship between lessee and lessor in regard to the lease of flats . It recognises a special category of lessees , those who were previously holders of specially protected tenancies on privately - owned flats . Such a category is , according to the LAW , subject to a number of protections , such as an obligation for the owners to contract a lease for an unlimited period of time , the payment of a so called “ protected rent ” , the amount of which is to be prescribed by the ORG , and strictly limited reasons for termination of the lease . This LAW abolishes the specially protected tenancy as such .", "Article CARDINAL § CARDINAL provides that the criteria for establishing the amount of “ protected rent ” are the condition of the flat in question , expenses for maintenance of the building and the lessee 's financial situation .", "DATE provides that , by enactment of the LAW in question , specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees .", "DATE provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time , and the lessee is entitled to pay the so - called “ protected rent ” , except where the lessee is using a part of the flat for some business - related activity ; or where the lessee is the owner of an inhabitable house or flat ; or where the flat has not been used by the lessee or any members of his family , during DATE preceding the entry into force of LAW , unless the owner had permitted their absence .", "Article CARDINAL provides that an owner is not obliged to lease a flat to a person who is renting CARDINAL flats . In that case the lessee is entitled to choose which flat he wants to keep as a lessee .", "Article CARDINAL obliges the owner to inform a lessee entitled to the “ protected rent ” that he is the owner of the flat , as well as of his personal address , within DATE of the LAW 's entry into force . Furthermore , the former holder of a specially protected tenancy is obliged to submit a request for a lease to the owner within DATE of the entry into force of LAW , or of a court 's decision recognising the right of the former holder of a specially protected tenancy to use the flat . If within a further period of DATE the owner does not sign the lease , the former holder of a specially protected tenancy may seek a court order imposing such an agreement . Such applications must be heard under the accellerated procedure . If the owner does not inform the former holder of a specially protected tenancy about his ownership , it is presumed that the owner is the person registered as such in the land registry .", "DATE provides that before the lease is signed , the former holder of a specially protected tenancy is obliged to pay the rent in the amount that he was paying before the entry into force of LAW .", "Article CARDINAL obliges a “ protected lessee ” to pay , besides “ protected rent ” , communal and other charges , if such charges are stipulated in the lease .", "Article CARDINAL provides that if the amount of the “ protected rent ” is changed , the lessee is obliged to pay this new rent , without a change of the relevant provision in the lease being necessary .", "Article CARDINAL provides that the names of family members sharing the same household as the former holder of a specially protected tenancy will be noted in the lease .", "Article CARDINAL transfers the legal position of a lessee to the persons referred to in the previous paragraph , in the event of the lessee 's death or relinquishment of the flat . The lessor is obliged to sign a new lease with such a person contracting a “ protected rent ” .", "DATE provides that the lessor may terminate the lease of a lessee in receipt of social security benefits or older than DATE of age , if such a person does not pay the rent or other charges , only where a municipality provides the lessee with another appropriate flat with a “ protected rent ” .", "DATE reiterates the basis on which a lessor may terminate the lease of a “ protected lessee ” , the conditions being : if the lessee does not pay the rent and charges ; if the lessee sublets the flat or part of it , without permission from the lessor ; if the lessee or other tenants in the flat disturb other tenants in the building ; if some other person , not noted in the lease , lives in the flat longer than DATE , without permission from the lessor , except where that person is a spouse , child or parent of the lessee or of the other legal tenants in the flat , or a dependant of the lessee or a person on whom the lessee is dependent if the lessee or other legal tenants do not use the flat as their home , but for other purposes ; if the lessor intends to move into the flat himself or install his children , parents or dependants there ; if the lessor does not have another flat and is entitled to social security benefits or is more than DATE of age . If the lessor intends to move into the flat , he is obliged to provide the lessee with another inhabitable and appropriate flat of at least equivalent quality . If the lessor has no other flat to live in , then the municipality is obliged to provide the lessee with another appropriate flat unless he owns another inhabitable and appropriate flat in the same municipality or town .", "Article CARDINAL provides that an appropriate apartment is one that provides CARDINAL room for each person , but the number of the rooms shall not exceed the number of the rooms in the previous flat . The new apartment has to be in the same municipality or town .", "Article CARDINAL enables persons who have acquired the right to purchase a flat pursuant to ORG , but for certain reasons have not been able to exercise that right , to purchase a flat until the expiration dates laid down by that LAW .", "Article CARDINAL obliges a lessor to sign a lease with a person who has purchased the flat under ORG , where the sale has been terminated or annulled .", "Article CARDINAL obliges a lessor who intends to sell a flat , to offer the flat for sale to the lessee .", "DATE invests a lessee who was not notified of the lessor 's intention to sell the flat with a right to apply for a judgment declaring the sale null and void and to purchase the flat under the same conditions .", "Article CARDINAL invests a protected lessee with a right to occupy the parts of a flat abandoned by CARDINAL or more other protected lessees in the same flat , unless the lessor decides to use the abandoned parts of the flat himself .", "Article CARDINAL provides that any person who was a tenant before the entry into force of LAW remains a tenant , whoever the lessor or lessee of that flat may be .", "Article CARDINAL invests the former holder of a specially protected tenancy on a flat in private ownership with a right to purchase it if the owner of the flat has already purchased some other flat under ORG and if the former holder of a specially protected tenancy does not own some other inhabitable flat or house ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant , who is a member of parliament for ORG , notified ORG ) under LAW ( Versammlungsgesetz ) that on DATE , DATE , from CARDINAL a.m. until TIME , he would be holding a meeting at the GPE municipal cemetery in front of the war memorial . He noted that the meeting would coincide with the gathering of ORG ( ORG ) , which he considered to be unlawful .", "The purpose of the meeting was to be to commemorate the GPE NORP killed by the ORG during the Second World War . The applicant expected CARDINAL participants , who would carry commemorative messages in their hands and attached to their clothes . The applicant stated that no other means of expression ( such as chanting or banners ) which might offend piety or undermine public order would be used .", "On DATE ORG , relying on section CARDINAL of LAW and on LAW , prohibited the meeting on the ground that it would endanger public order and security .", "The authority noted that GPE , also a member of parliament for ORG , had informed ORG of the allegedly illegal assembly of ORG in memory of the ORG soldiers killed in the Second World War which was to be held at the same time and place , but had refused to give an undertaking that the proposed meeting in memory of the murdered GPE NORP would not disrupt that gathering .", "NORP ORG noted that ORG was a registered association . Like a number of other organisations , it traditionally held a commemoration ceremony at the GPE municipal cemetery on DATE . Such commemorations qualified as popular ceremonies within the meaning of CARDINAL of LAW and thus did not require authorisation . The disruption of this and other commemoration ceremonies was likely to offend the religious feelings of members of the public visiting the cemetery and would indisputably be regarded as disrespectful towards the dead soldiers of both world wars and thus as an unbearable provocation . Accordingly , there was a risk of protests by visitors to the cemetery which could degenerate into open conflict between them and those participating in the assembly .", "ORG ordered that any remedies used against its decision should not have suspensive effect . Accordingly , the demonstration could not take place .", "On DATE ORG ) dismissed an appeal by the applicant .", "It noted that ORG was a registered association whose members were mainly former members of the ORG . For DATE they had commemorated ORG soldiers killed in the Second World War by gathering on DATE and laying a wreath in front of the war memorial at the GPE municipal cemetery . In DATE , a number of organisations had organised protest campaigns with the aim of disrupting the Comradeship IV commemoration ceremony . These protests had led to vehement discussions with members of ORG and other visitors to the cemetery and had required intervention by the police .", "ORG , referring to the submissions of GPE , found that the assembly planned by the applicant was also aimed at a confrontation with ORG and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the Comradeship IV commemoration ceremony .", "On DATE ORG Verfassungsgerichtshof ) dismissed a complaint by the applicant alleging violations of his rights to freedom of assembly , freedom of expression , freedom of religion and non - discrimination .", "The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to weigh the applicant ’s interest in holding the meeting against the public interests enumerated in LAW . It went on to say that the prohibition of the proposed meeting would not be justified if its sole purpose were to protect the LAW commemoration ceremony and expressed doubts as to the authorities’ assessment that the latter meeting was a popular ceremony within the meaning of section CARDINAL of LAW and therefore did not require authorisation . Nevertheless , the prohibition of the meeting proposed by the applicant was justified for other reasons .", "The authorities had also had regard to the fact that the gathering of ORG had in DATE been the target of activities aimed at disrupting it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention . The authorities had therefore correctly assumed that the prohibition of the assembly planned by the applicant was necessary to protect the general public against potential disturbances .", "ORG added further considerations in support of that conclusion . It observed that DATE was an important religious holiday on which the population traditionally visited cemeteries in order to commemorate the dead . As a religious tradition , the commemoration of the dead was protected by LAW , which contained a positive obligation for the ORG to protect persons manifesting their religion against deliberate disturbance by others . Thus , the prohibition of the assembly in issue was necessary under LAW for the protection of the rights and freedoms of others . It followed that it did not violate any other LAW right relied on by the applicant .", "NORP That decision was served on the applicant ’s counsel on DATE .", "LAW DATE ( PERSON ) regulates the exercise of the right to freedom of assembly . Section CARDINAL(CARDINAL ) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing CARDINAL in advance , indicating the purpose , place and time of the meeting .", "Pursuant to section CARDINAL , certain gatherings such as public entertainment , popular ceremonies or religious processions do not fall within the scope of LAW .", "Pursuant to section CARDINAL , the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security ." ]

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[ "The applicant , Mr PERSON , is a citizen of GPE who was born in DATE and lives in PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in PERSON . The respondent Government are represented by Ms Z. Ibrahimović , Agent , and PERSON , Deputy Agent .", "Relevant background to the applicant ’s case", "Following the declaration of independence in DATE by GPE ( the legal predecessor of DATE GPE ) , war broke out . It was characterised by ethnic conflict and discrimination , large scale displacement of people and the destruction or occupation of their homes . On DATE the CARDINAL principal parties to that war ( the then GPE , GPE and the then GPE ) signed a peace settlement DATE FAC for Peace in GPE ( hereinafter “ LAW ” ) . LAW set out provisions for the return of refugees and displaced persons to their homes of origin and the restitution of their property .", "Relevant facts of the applicant ’s case", "The facts of the applicant ’s case , as submitted by the parties , may be summarised as follows .", "Prior to the DATE - CARDINAL war in GPE the applicant and his wife lived in his wife ’s house in the vicinity of PERSON in what is now ORG ) . PERSON and FAC lived in PERSON in what is now PERSON ( the other Entity of GPE ) .", "On DATE the applicant and his wife concluded a contract with ORG and FAC exchanging his wife ’s house and other property in the vicinity of PERSON for a house and other property in PERSON belonging to ORG and M.M ( hereinafter “ the exchange contract ” ) . As a result , the applicant and his wife became the registered joint owners of the house and property in PERSON . However , it would appear that ORG and FAC did not register their ownership of the house and property in the vicinity of PERSON ( the applicant ’s wife remained the registered owner ) .", "On DATE CARDINAL ORG and FAC initiated proceedings before ORG seeking that the exchange contract be declared void .", "It would appear that in or around that date ORG also filed an application with ORG hereinafter “ the CRPC ” ) which was set up by LAW ( Annex CARDINAL to the DATE LAW ) .", "On DATE the ORG established that ORG was the pre - war owner of the house in PERSON and annulled any involuntary transfer of ownership after DATE .", "On DATE ORG obtained an order enforcing the ORG ’s decision from ORG of PERSON . The applicant and his wife were ordered to vacate the house within DATE and were entitled to alternative accommodation . They were instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to ORG ( pursuant to section DATE of the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE hereinafter “ the DATE LAW ) .", "On DATE ORG of PERSON issued another order which replaced that of DATE . Pursuant to the new order , the applicant and his wife were to vacate the house within DATE and were not entitled to alternative accommodation as the house in the vicinity of PERSON ( of which the applicant ’s wife remained the registered owner regardless of the impugned exchange contract ) was available to them . They were again instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to ORG within DATE ( pursuant to section DATE of the DATE Act ) .", "The applicant and his wife appealed against the order of DATE and applied for the suspension of the enforcement proceedings to ORG . It would appear that they have not received any response .", "On DATE the ORG rejected a request for the reconsideration of its decision of DATE which had been submitted by the applicant and his wife because they had not shown that ORG was not the former owner of the house in PERSON . As to their submissions regarding the exchange contract , the ORG referred them to the competent court .", "On DATE the applicant and his wife were evicted from the house in PERSON .", "On DATE the applicant complained about his eviction to ORG which was set up by ORG CARDINAL to the DATE LAW ) .", "On DATE the applicant ’s wife moved to her house in the vicinity of PERSON . It would appear that the applicant has not followed her .", "On DATE the Banja Luka Court of First Instance declared the exchange contract void ab initio as having been concluded under duress ( in the context of large scale displacement and discrimination ) .", "On DATE the applicant appealed to ORG against that judgment claiming that ORG and FAC had not been forced to conclude the contract . He noted that his mother - in - law had remained in his wife ’s house in the vicinity of PERSON after the conclusion of the contract where she had allegedly been killed . It would appear that the appeal is still pending .", "On DATE the applicant submitted an application for interim measures to GPE asking to be reinstated in the house in PERSON pending his appeal against the judgment of DATE . It would appear that he has not received any response .", "On DATE the applicant withdrew his application before ORG . Therefore , ORG within ORG the legal successor of ORG ) decided on DATE to strike out the application .", "On CARDINAL and CARDINAL DATE the relevant administrative authorities expropriated a plot of land in front of the house in PERSON indicated above for the purpose of building a public road .", "On DATE the Banja Luka District Court quashed the decision of CARDINAL and CARDINAL DATE , in an administrative dispute , as the proceedings before ORG concerning the validity of the exchange contract were still pending . The court also found that the contested decision did not establish certain relevant facts .", "On DATE ORG decided to suspend the expropriation proceedings pending the proceedings concerning the validity of the exchange contract .", "On DATE ORG upheld its ORG decision of DATE .", "On DATE the applicant instituted administrative proceedings before ORG of the Republika Srpska challenging the legality of the decision of DATE . He complained because the land at issue had not been immediately expropriated ( i.e. regardless of the proceedings concerning the validity of the exchange contract ) . It would appear that those proceedings are still pending .", "CARDINAL principal parties to the DATE - CARDINAL war in GPE ( the then GPE , GPE and the then GPE ) signed ORG on DATE . It entered into force on DATE . There are CARDINAL Annexes to the LAW , including LAW ) and LAW ( Annex CARDINAL ) .", "ORG was signed by GPE ( at the time , GPE ) , ORG and PERSON on DATE , when it entered into force . For its relevant provisions see PERSON v. GPE ( ( dec . ) , no . CARDINAL , ORG CARDINAL- ... ) .", "The former ORG was set up pursuant to LAW . On DATE it was replaced by ORG within ORG with a mandate to decide on cases received by ORG up to that moment .", "In DATE the former ORG delivered a decision in a case of an individual who had concluded a contract of exchange of houses with another individual during the DATE - CARDINAL war in GPE and who had been threatened with eviction from her home pending court proceedings relating to the validity of the contract of exchange ( see PERSON , decision no . CH/CARDINAL/CARDINAL of DATE ) . Pending the proceedings before it , the former ORG applied interim measures suspending the eviction . Its final decision further suspended the eviction until a final decision of the competent court on the validity of the contract of exchange . The following is its relevant part concerning ORG CARDINAL and CARDINAL of LAW :", "“ CARDINAL . This LAW of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees in Article LAW contains a mechanism that allows the court seized with the dispute about the validity of the exchange contract to decide whether , in the specific case before it , the general aim of expeditious repossession of pre - war homes should prevail over the rights asserted on the basis of the exchange contract or not ...", "The law appears to envision that the competent court , once it has been requested to issue an order provisionally halting the enforcement of the administrative repossession proceedings , will make a decision on the basis of the case file before it . The court will examine the prima facie strength of the arguments made and evidence presented by the CARDINAL parties , the CARDINAL asserting the validity of the exchange contract and the CARDINAL claiming that it was concluded under duress . In this respect the court will require the side asserting the validity of the exchange to , as a minimum , “ show evidence of a written contract ” on the exchange . The court will then take into account whether the party seeking suspension of the eviction can make credible that the deprivation of the possession of the home until the dispute about the contract is solved will cause irreparable harm to it . The ORG is of the opinion that the mechanism envisaged by the law may be seen to strike a fair balance between the CARDINAL parties to the dispute .", "NORP However , in the case before the Chamber , ORG in PERSON has failed until DATE to decide on the , manifestly urgent , request for provisional measures by the applicant . As a result , the balance crafted by the legislator is overthrown and the applicant de facto deprived of all procedural safeguards . Under these circumstances , the interference with the applicant ’s right to respect for her home does not comply with the requirement that it be “ necessary in a democratic society for the protection of the rights of others ” , in this case of the pre - war owner PERSON", "...", "In the present case , although the applicant has requested that ORG in PERSON issue an order for provisional measures to prevent her eviction pending court proceedings on the validity of the exchange contract as provided for in LAW , due to the silence of the first instance court , the applicant is left without any other remedy to seek suspension of her eviction . ORG has the power under LAW to order suspension , but it has failed to reply to the applicant ’s request for an interim measure . As of DATE the ORG has not given any decision on the request for provisional measures . The respondent ORG has confirmed the applicant ’s allegation that her case is just an instance of a general practice not to decide requests for provisional measures in cases like hers . The ORG is of the opinion that under such circumstances , the applicant was deprived of her right under LAW to an effective remedy against the violation of her right to respect for her home . ”", "Following this decision , the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE has been amended . The relevant authorities will now suspend ex officio execution of the decisions of ORG in cases of exchanged houses pending court proceedings about the validity of the exchange ( see “ Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE ” below ) .", "The Agreement on Refugees and Displaced Persons was signed by GPE ( at the time , GPE ) , ORG and PERSON on DATE , when it entered into force . The following are its relevant provisions :", "“ All refugees and displaced persons have the right freely to return to their homes of origin . They shall have the right to have restored to them property of which they were deprived in the course of hostilities since DATE and to be compensated for any property that can not be restored to them . The early return of refugees and displaced persons is an important objective of the settlement of the conflict in GPE . The Parties confirm that they will accept the return of such persons who have left their territory , including those who have been accorded temporary protection by third countries . ”", "“ The Parties hereby establish an independent ORG Displaced Persons and Refugees ( the “ Commission ” ) ... ”", "“ The Commission shall be composed of CARDINAL members . Within DATE after this Agreement enters into force , ORG GPE shall appoint QUANTITY members , CARDINAL for a term of DATE and the others for a term of DATE , and the Republika Srpska shall appoint CARDINAL members , CARDINAL for a term of DATE and the other for a term of DATE . The President of ORG shall appoint the remaining members , each for a term of DATE , and shall designate CARDINAL such member as the Chairman . The members of the Commission may be reappointed . ”", "“ The Commission shall receive and decide any claims for real property in GPE , where the property has not voluntarily been sold or otherwise transferred since DATE , and where the claimant does not now enjoy possession of that property . Claims may be for return of the property or for just compensation in lieu of return . ”", "“ In determining the lawful owner of any property , the Commission shall not recognize as valid any illegal property transaction , including any transfer that was made under duress , in exchange for exit permission or documents , or that was otherwise in connection with ethnic cleansing ... ”", "“ Commission ’s decisions shall be final ... ”", "Like ORG , on DATE the original ORG ceased to exist . It has been subsequently replaced by a homonymous ORG which is composed of entirely GPE citizens and financed by GPE .", "This Act was enacted by ORG ( an institution set up by ORG DATE LAW – to oversee the implementation of the civilian aspects of ORG on behalf of the international community ) . ORG of ORG ( a group of CARDINAL states and international organisations that sponsor and direct the peace implementation process ) nominates the High Representative . ORG , which approved LAW and the deployment of international troops in GPE , then endorses the nomination , acting thereby under LAW . ORG also provides ORG with political guidance . ORG is funded by ORG . The current High Representative , Mr ORG , is also ORG Special Representative in GPE ( as was DATE , Lord PERSON ) .", "The LAW has been in force since DATE . The following are the relevant provisions :", "“ This Act regulates the implementation of the decisions of ORG ( hereinafter “ the Commission ” ) , created under Annex CARDINAL to the [ GPE ] Agreement , by way of restitution of properties located in ORG . ”", "“ The ORG ’s decisions shall be final and binding from DATE of their adoption .", "The Commission ’s decisions shall confirm the real property rights of the persons indicated therein and shall require the competent enforcement authorities to take measures as set out in this LAW .", "The Commission ’s decisions shall be admissible as evidence in administrative , court or other legal proceedings . ”", "“ The administrative authorities shall execute a ORG ’s decision upon a request of a person referred to in section CARDINAL(CARDINAL ) [ of this Act ] ...", "The office of ORG in the municipality in which the property is situated shall execute a ORG ’s decision ... ”", "“ The following persons shall be entitled to request the enforcement of the ORG ’s decision dealing with private property :", "a. the property right holder indicated in the ORG ’s decision ,", "b. the heirs of the property right holder indicated in the ORG ’s decision . ”", "“ The right to request the enforcement of the ORG ’s decision dealing with private property shall not be subject to the statute of limitations . ”", "“ A competent administrative organ shall issue an order enforcing the ORG ’s decision within DATE from the filing of a request for its enforcement . ”", "“ Should a person claim a legal interest in the property or apartment at issue which was acquired after [ DATE ] and he or she can show a valid contract of exchange or transfer of rights , the competent administrative organ shall suspend proceedings and shall refer the parties to a competent court , according to the provisions of ORG ( ORG of ORG no . CARDINAL ) regulating preliminary issues , in order to rule on the allegation . ”", "“ Where , exceptionally , a person claims a legal interest in the property or apartment at issue which was acquired after [ DATE ] , in respect of which the competent administrative organ issued an order enforcing a ORG ’s decision prior to [ DATE ] as yet unexecuted , the competent administrative organ shall ex officio suspend enforcement proceedings pending a final judicial decision on the matter , under the condition that an interested party provides evidence that he or she has initiated proceedings before the competent court and can show a valid contract of exchange or transfer of rights . ”", "“ The competent administrative organ shall instruct the appellant to initiate proceedings before the competent court within DATE to prove that the property right holder indicated in the ORG ’s decision has voluntarily and lawfully transferred his or her rights to the appellant since [ DATE ] .", "The competent court may suspend the enforcement proceedings before the competent administrative organ pending the court ’s decision where the appellant is able to produce a written contract which is in accordance with the law and to show that he or she would suffer irreparable harm if the enforcement proceedings continued . ”", "“ The competent court shall determine whether the transfer of rights to the appellant has been conducted voluntarily and in accordance with the law .", "If the transfer of rights was conducted DATE and DATE and its validity is disputed by the defendant / respondent , the burden of proof shall lie upon the party claiming that the transfer was valid to demonstrate that the transfer was conducted voluntarily and in accordance with the law . Where CARDINAL of the transferred properties is situated in the territory of another republic of the former ORG , the burden of proof shall lie upon the party , claiming that the transfer was not conducted voluntarily or in accordance with the law , to demonstrate that the status of the parties prior to the transfer should be restored .", "...", "The court may make whatever orders are necessary to give effect to its decision , such as an order setting aside legal transactions , making or erasing entries in the appropriate public books / registers and lifting any order for the suspension of enforcement proceedings .", "The relevant parties shall notify the competent administrative organ of the court ’s decision .", "The competent administrative organ shall continue or discontinue the enforcement proceedings in accordance with the court ’s decision . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .", "The applicant was the executive director of an agricultural investment fund and a financial company . He also used to teach economics , an area in which he has a doctorate .", "On DATE a preliminary investigation ( no . CARDINAL/CARDINAL ) was opened by ORG against him and other persons in respect of a number of financial transactions . The applicant was charged under LAW and QUANTITY of LAW of dereliction of his professional duties with a view to obtaining an unlawful gain for himself and others .", "NORP In the course of the investigation the charges were altered several times . In all , CARDINAL persons were charged .", "During the investigation , which lasted DATE and DATE , the investigator heard CARDINAL witnesses , examined numerous financial and banking documents , commissioned reports , and undertook searches .", "On DATE the preliminary investigation was completed and the file was transmitted to the competent prosecutor .", "On DATE the prosecutor submitted a CARDINAL indictment to ORG , accompanied by CARDINAL binders of documents .", "The first hearing took place from DATE . ORG heard the accused persons , several witnesses and experts . Some witnesses did not appear . Both the prosecution and the defence requested an adjournment .", "The trial resumed on DATE . ORG heard several witnesses . CARDINAL other witnesses had not been summoned properly and others , although summoned , did not appear . The trial was adjourned until DATE .", "On DATE the court , sitting in private , granted a request by CARDINAL of the accused persons for additional questions to be put to the experts . The experts submitted their report on DATE .", "The trial resumed on CARDINAL and DATE . The court adjourned the hearing as some witnesses had not appeared and ordered an additional financial report .", "The hearing scheduled for CARDINAL DATE was put off until DATE and then until DATE due to the applicant 's ill health .", "On DATE ORG held its last hearing . It heard the final pleadings of the parties .", "On DATE the ORG found the applicant guilty of ordering money transfers abroad in breach of the relevant financial regulations . The transfers had been ordered without proof of a lawful purpose and on behalf of clients of the applicant 's financial company whom he had not fully identified . The applicant was also found guilty of issuing a power of attorney conferring wide - ranging powers to another person in breach of his duties as the manager of the financial company . The applicant was acquitted on the remainder of the charges against him and sentenced to DATE imprisonment .", "The reasoning of ORG judgment was served on the applicant on an unspecified date in DATE .", "NORP Several times during the proceedings the case file was unavailable as it was repeatedly transmitted to the competent court for examination of appeals by the applicant and his co - accused against their pre - trial detention . In practice , whenever such an appeal was lodged , the case file was transmitted together with the appeal .", "NORP Throughout the proceedings ORG and , later , ORG ( see below ) had to seek police assistance to establish the addresses of witnesses and bring them before the court .", "On DATE the applicant appealed against his conviction and sentence .", "On DATE ORG held its first hearing , which was adjourned to CARDINAL DATE , as one of the co - appellants had health problems .", "On DATE ORG quashed the applicant 's conviction and sentence and remitted the case to the preliminary investigation stage .", "ORG in GPE , considering that ORG judgment was unclear or erroneous , sought to appeal against it or request its interpretation . There ensued a dispute about the relevant time - limit , a question submitted by the prosecution authorities to ORG . On DATE that court dismissed the prosecution 's request .", "Nothing was done in the case thereafter , at least until DATE , the time of the latest information from the parties . The preliminary investigation in the applicant 's case was still pending before the prosecution authorities in GPE .", "On DATE the applicant was arrested and detained pending trial in connection with investigation no . CARDINAL by decision of an investigator , confirmed by a prosecutor .", "On DATE the applicant appealed against his pre - trial detention to ORG . He alleged , inter alia , that the acts on account of which he had been charged did not constitute a criminal offence ( under the banking and currency regulations in force at the relevant time ) and that he had therefore been charged unlawfully . He also alleged that there had been no danger of his absconding or committing further offences . On DATE the appeal was dismissed by ORG who stated , inter alia :", "“ Since ORG has been charged under LAW , pre - trial detention is mandatory in accordance with LAW . The possibility of not imposing pre - trial detention is to be considered by the preliminary investigation bodies only if , regard being had to the nature of the case and the particular circumstances relating to the accused , there is no danger that he might abscond , commit further offences , or obstruct the course of justice .", "The material in the case indicates that if ORG is released , there is a danger that he might abscond , commit further offences or obstruct the course of justice ... The preliminary investigation bodies are not under any obligation to set out the facts on the basis of which the above conclusions have been made . ”", "On DATE the applicant requested ORG to order his release on the ground that the charges laid against him did not contain particulars of the alleged offence and that the provisions invoked were inapplicable as he was not an employee or an officer of the bank whose funds were at stake . The parties have not provided further information on the examination of this appeal .", "On DATE a prosecutor from ORG upheld ORG decision of DATE while adding that the danger of absconding , committing offences or obstructing the course of justice stemmed from the fact that the applicant had financial and other relations with persons who had left the country . The arguments of the applicant , based on an analysis of the relevant banking and currency regulations , that he had not committed a crime , were to be assessed only by the investigator and then in the process of examination of the criminal case on the merits .", "On DATE a further appeal was dismissed by a higher ranking prosecutor at ORG on the ground that , as the preliminary investigation was still pending , there was a risk that the applicant would seek to obstruct the course of justice . Furthermore , arguments going to the substance of the charges could only be examined once the necessary evidence had been collected .", "On DATE the applicant submitted to ORG another request for release . He stated , inter alia , that he had been detained for DATE and that all the relevant evidence had been collected .", "On DATE the applicant asked to be examined by doctors as his health was deteriorating because of the long period of detention .", "On DATE the applicant lodged further applications for release with the District and Chief Public Prosecutors .", "On DATE ORG dismissed the applications noting , inter alia , that the applicant had been charged with a serious intentional offence and that another preliminary investigation was also pending against him . This was investigation no . CARDINAL/CARDINAL which had been opened on an unspecified date in DATE and was being dealt with by the authorities in separate criminal proceedings .", "On DATE the applicant complained to ORG that his pre - trial detention was unlawful .", "This complaint was dismissed on DATE on the ground that under paragraph CARDINAL of LAW release was not possible since a second preliminary investigation ( no . CARDINAL/CARDINAL ) was pending against the applicant . The detention of the accused person was thus mandatory . Moreover , the investigation in the case under examination , no . CARDINAL/CARDINAL , was progressing and was soon to be completed .", "On DATE the applicant complained against his pre - trial detention to ORG , on the ground that the statutory maximum period for the investigation had been exceeded and that , the accusation being based on documents already examined , there was no danger of him tampering with evidence . In addition , although he had been questioned on several occasions prior to his arrest , he had never attempted to abscond .", "The application was submitted to ORG which , according to the established practice , had to transmit it to ORG together with the case file . On DATE , when the applicant 's lawyer complained to ORG , his appeal had not yet been transmitted to the court .", "On an unspecified date the applicant complained to the prosecution authorities that his pre - trial detention ordered in connection with preliminary investigation no . CARDINAL , the second investigation pending against him , had been unlawful . On DATE ORG examined the above appeal and decided to terminate the applicant 's pre - trial detention in connection with investigation file no . CARDINAL/CARDINAL , as the applicant was detained pending trial in connection with the preliminary investigation no . CARDINAL .", "The applicant 's pre - trial detention ordered in connection with preliminary investigation no . DATE was extended by ORG on DATE .", "On DATE and DATE the applicant 's lawyer reiterated his request for a medical examination of his client . He stated that upon his visit on DATE he had found the applicant in an apparently bad state of health . It appears that a medical examination was carried out on an unspecified date in DATE .", "On DATE ORG refused to release the applicant . She took into consideration the medical report , which apparently concluded that the applicant suffered from high blood pressure , arterio - sclerosis , a kidney stone , diabetes , problems with his lungs and the prostate , problems with the blood vessels and depression . The prosecutor noted , after examining the treatment prescribed by the doctor , that the applicant could be treated in a pre - trial detention facility with a moderate risk for his health and that his state of health should be carefully followed . She also emphasised that the applicant had been charged with a serious offence which in her opinion made his release impossible .", "On DATE the applicant was committed for trial . On DATE he appealed against his pre - trial detention to ORG on the ground that the charges against him were weak . He further claimed that his detention had become unnecessary as all the evidence had been collected . He reiterated that he had a family and a permanent address , that he was a respected citizen , and that there had never been convincing evidence of a danger of absconding , committing offences or obstructing the course of justice . He further complained about his bad health and enclosed medical reports of DATE . The applicant 's lawyer also invoked the ORG and asked the court to give reasoned replies to each of his arguments .", "After examining the applicant 's case in private , ORG dismissed the application for release on DATE . The court stated :", "“ The defendant PERSON is indicted under section CARDINAL § CARDINAL of LAW with an aggravated case of dereliction of his professional duties . In accordance with LAW pre - trial detention must be imposed when a person is accused of having committed a serious intentional offence . In the case of the defendant ORG , he is suspected of having committed a serious intentional offence . The grounds for the exception provided for under paragraph CARDINAL [ of LAW ] [ allowing a detainee to be released from pre - trial detention ] are not present in the [ applicant 's ] case , since there exists a real danger of his obstructing the course of the proceedings or absconding . In addition , according to LAW , the exception laid down in its LAW can not avail a defendant in a case where preliminary investigations for another criminal offence are pending against him . It is apparent from the documents in the case that ORG had separated and transmitted to ORG material in relation to another offence . Therefore , there is no valid ground for the applicant 's release . ”", "On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private confirmed its refusal to release the applicant . On DATE the file was transmitted to ORG . On DATE ORG sitting in private dismissed the applicant 's appeal on the same grounds . After examining the medical report , that court held that the conditions of detention were not damaging for his health .", "At the first trial hearing before ORG on DATE the applicant appealed against his detention . The appeal was dismissed on the ground that the applicant had been charged with a serious intentional offence for which detention was mandatory and that the exception provided by LAW could not avail a defendant in a case where preliminary investigations for another criminal offence were pending against him .", "On DATE , at the second hearing before ORG , the applicant appealed against his detention on the ground that he could not obstruct the course of justice , as all the evidence and relevant testimony had already been examined by the court . He also stated that there was no danger of his absconding in view of his social status and family ties . The court dismissed his appeal on DATE , reasoning that the applicant had been charged with a serious intentional crime and that there were no new circumstances . On DATE the applicant appealed to ORG . On DATE that appeal was dismissed by ORG sitting in private on grounds that the applicant had been charged with a serious intentional crime and hence that his continued detention was justified , especially in view of the gravity of the alleged offence .", "The applicant 's renewed application for bail , in which he pleaded , inter alia , that there was no danger of him absconding , regard being had to his age , was dismissed by ORG at its hearing on DATE as he had been charged with a serious intentional crime and there was another case pending against him .", "On DATE the applicant appealed to ORG . Before transmitting that appeal , on DATE the ORG sitting in private re - examined and confirmed its refusal to release the applicant . On DATE ORG sitting in private dismissed the appeal .", "On DATE the applicant 's lawyer requested a medical examination for the applicant as his health had deteriorated and he had to spend DATE in hospital . On DATE the applicant was examined by a doctor who recommended that he should be sent to a hospital specialising in cardiology and that he should undergo specialised medical treatment .", "On DATE the applicant requested his release on the basis of that medical report . He further complained that there was no evidence of any danger that he might abscond or commit further offences .", "DATE the applicant was detained in a disciplinary isolation cell ( see below ) .", "On DATE ORG examined the appeal of DATE in the presence of the applicant . The court dismissed it holding that the health risk for the applicant was the same whether he was in prison or at home . On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private re - examined the matter and confirmed its refusal to release the applicant . The appeal was dismissed on DATE by ORG sitting in private . It found that there had been no change of circumstances or facts capable of demonstrating that the applicant would not commit offences , obstruct the course of justice or abscond if released .", "In the meantime , on DATE , the applicant was again examined by CARDINAL doctors who found that he was suffering from thrombosis which might endanger his life and recommended rest and regular check - ups by a specialist . On DATE the applicant was taken in hospital .", "On DATE the applicant submitted a renewed bail application mainly on the ground of his ill health . It was dismissed on DATE by ORG at a hearing at which the court heard evidence from CARDINAL doctors and found that the applicant 's health was adequately monitored and that he received medical treatment .", "On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private confirmed its refusal to release the applicant . The appeal was dismissed on CARDINAL DATE by ORG sitting in private . It held that there were no objective circumstances which could warrant the conclusion that the applicant would not interfere with the investigation . The court further found that “ the length of the detention could not serve as an argument for a deviation from the strict provisions of LAW and that the applicant 's medical problems could be adequately addressed by his transfer to FAC , where the medical service was presumably better . On DATE the applicant was transferred to FAC .", "On DATE the applicant was admitted to hospital .", "On DATE the applicant asked again to be released on bail , pleading his ill health and the excessive length of his detention .", "On DATE ORG held a hearing and decided to release the applicant on bail on health grounds . The applicant lodged a security and was released on DATE .", "On DATE , during a search of the applicant before a meeting with his lawyers , the prison administration seized typewritten material . According to the applicant , it was the draft of a book he had been writing , describing events concerning his detention and the criminal proceedings against him . He had intended to read some passages to his lawyers . According to the prison officer who seized the material , the applicant had intended to transmit it to his lawyer .", "The Government submitted several pages of the seized material . It transpires that the manuscript was in a rough form and was not ready for publication . Relevant passages read as follows :", "“ The charges against me did not contain any facts or evidence indicating any criminal intention on my part or an offence committed by me ... I can only regard the acts of the authorities against me as unjustified and unlawful ...", "The ... door clicked ... we stood up , hands behind our backs and backs to the warders : they are afraid that we might attack them , with our plastic cups ... I never understood why these well - fed idlers were afraid , always CARDINAL of them being present when the food was distributed ... I used to eat CARDINAL crusts of bread and as many spoonfuls of the slops they called soup . We used to hear how they diluted the soup ... How painful were these moments - to see the eyes of a hungry fellow prisoner ... to see how human beings are turned into beasts ... It is true that the economic situation in GPE was difficult ... But giving so little and such bad food to detained people was inhuman ... , even more so when we smelt the aroma of roasted or fried meat coming from the warders DATE . This is sadism ...", "It was very difficult when they prohibited meetings with relatives and friends . That was not done everywhere : in GPE magistrates had decided to break a record for the inhuman treatment of detainees ...", "[ In the beginning ] I did not know and never suspected what the investigative and judicial organs of democratic GPE were like . For a long time I hoped that there had been a misunderstanding ...", "The search [ in the apartment ] was conducted by police officer [ B. ] His inexperience was betrayed by his behaviour ; he was a provincial parvenu ...", "Could I imagine , when I worked TIME per day ... that the time would come when everything that I had done ... would be rejected ... by several powerful unscrupulous people , ' servants of law and order ' ?", "Toilet time is TIME ... If someone stays longer , there follow shouting , cursing , clattering on the door , truncheon blows ... You ca n't believe that ? Well , I did not believe either that such conditions of life could exist in this country ...", "The warders , most of whom are simple villagers and are paid ... better than teachers , doctors and engineers , ' work ' TIME and then have a QUANTITY rest ... They are the authority in prison , they are everything , we depend on them . It is true that there are younger and more intelligent boys , but they are a minority ...", "Whenever we complained about all these disgraceful matters , there was no effect ... Twice there were inspections .... , all the officers were running here and there , it was necessary to clean , to put the detention centre in a better shape ; they were afraid of complaints by prisoners . But the inspectors came , made a formalistic visit and went away . ”", "On DATE , after having heard the applicant and the prison officers involved , the Governor of ORG issued order no . CARDINAL which read as follows :", "“ In accordance with section CARDINAL(k ) of LAW , the detainee GPE PERSON shall be punished by DATE confinement in an isolation cell ... for having made offensive and defamatory statements against officers , investigators , judges , prosecutors and state institutions . ”", "DATE . Order no . CARDINAL was not served on the applicant . It was enforced immediately , on DATE .", "It appears that before his transfer to the disciplinary isolation cell the applicant was examined by a doctor .", "Also before being brought to the cell his hair was shaved off .", "According to the applicant , the solitary - confinement facility had no toilet and he had to use a bucket which was not emptied regularly . Hygiene was poor and there was insufficient light .", "On an unspecified date the applicant 's lawyers , having learned about the punishment , telephoned the General Director of Prisons and Detention Facilities , in whom appropriate powers are vested to examine appeals against confinement in an isolation cell .", "On DATE the applicant left the isolation cell .", "On DATE he appeared at an open hearing of ORG . The fact that his head had been shaved DATE was noticeable .", "On DATE the applicant 's lawyers complained against the prison governor to the Deputy Minister of ORG . They conveyed , inter alia , the applicant 's concern that the prison governor had repeatedly demonstrated personal hostility towards him and had acted unlawfully .", "DATE . On DATE the Deputy Minister of ORG replied to the applicant 's lawyers . She stated , inter alia :", "“ An inquiry was conducted in connection with your appeal against the allegedly unlawful acts of the [ prison governor ] ... By an order N/ CARDINAL of DATE ... the accused ORG was condemned to DATE confinement in an isolation cell . This disciplinary measure was imposed because the papers seized contained expressions and descriptions which were offensive for ORG employees , the investigation bodies , the judiciary , the prosecution , the prison authorities and state bodies and institutions ( section CARDINAL of the Regulations ) . He was not punished because he had written the paper in question and wanted to take it out from the prison , which is , indeed , his right . That paper was given back to the accused ORG .", "The accused suffers from a chronic disease - thrombophlebitis . He has been constantly supervised and treated in the prison . He was twice sent for outside treatment and he will be sent again for outside treatment if the need arises ” .", "Article CARDINAL § CARDINAL provides", "“ A person [ exercising the function of managing another person 's property or an official function ] , who acts in breach or dereliction of his professional duties , or exceeds his power or rights with a view to obtaining a material gain for himself or others or inflicting damage on others , and thus causes harm or substantial damage , shall be punished with DATE imprisonment ... ”", "The third paragraph of Article CARDINAL , read in conjunction with the first and the second paragraphs of the same provision , provides for a punishment of DATE imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high - ranking post .", "At the relevant time and until the reform of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator 's decision was subject to approval by a prosecutor . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG 's ORG v. GPE judgment ( [ ORG ] , no . ORG , ORG CARDINAL-II ) .", "At the relevant time paragraphs CARDINAL and CARDINAL of Article CARDINAL read :", "“ ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] a serious intentional offence .", "( CARDINAL ) In the cases falling under paragraph CARDINAL [ detention on remand ] shall not be mandatory if there is no danger of the accused evading justice , obstructing the investigation , or committing further offences . ”", "According to LAW a “ serious ” offence is one punishable by DATE imprisonment .", "According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of the amendments in force since DATE ) LAW required that a person charged with a serious intentional offence had to be detained on remand . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any danger of absconding or re - offending was objectively excluded as , for example , in the case of an accused who was seriously ill , elderly , or already detained on other grounds , such as serving a sentence ( DATE in case no . CARDINAL , Bulletin CARDINAL/CARDINAL , p. CARDINAL ; DATE no . CARDINAL of CARDINAL in case no . CARDINAL ; DATE no . CARDINAL of CARDINAL in case no . CARDINAL ; DATE no . CARDINAL in case no . CARDINAL/CARDINAL , ORG , p. CARDINAL ) .", "Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable crime were pending against the accused person , or where he was a recidivist .", "On DATE ORG examined a request by ORG for an interpretative decision on LAW . ORG considered that LAW was incompatible with LAW , the Convention and LAW . It therefore decided to submit the matter to ORG which is competent to rule on the compatibility of legislation with the LAW and international treaties . Ultimately , ORG did not decide the point , as the impugned provision was repealed with effect from DATE .", "At the relevant time ORG considered that it was not open to the courts , when examining an appeal against pre - trial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . Their task was only to examine the lawfulness of the detention order ( DATE no . CARDINAL of CARDINAL in case no . CARDINAL/CARDINAL , ORG , p. CARDINAL ) .", "According to the general rules laid down in ORG DATE and CARDINAL of the Code of Criminal Procedure and the existing practice , the detainee 's applications for release at the trial stage of the criminal proceedings are examined by the trial court , in private or at an oral hearing .", "The trial court 's decision is subject to appeal in the court above ( LAW ) . The appeal must be lodged within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL ) . According to Article CARDINAL , after receiving the appeal , the trial court , sitting in private , must decide whether there exist grounds to annul or vary its decision . If it does not find a reason to do so the trial court transmits the appeal to the court above .", "Article CARDINAL provides that the appellate court may examine the appeal in private or , if it considers it necessary , at an oral hearing .", "According to section CARDINAL(k ) of the LAW a prisoner who has committed a disciplinary offence may be punished by , inter alia , confinement in an isolation cell for DATE .", "Rule CARDINAL of the regulations provides that when a prisoner 's writings and appeals contain denigrating and offensive language he may be subject to disciplinary and criminal punishment .", "At the relevant time , according to Rules CARDINAL(CARDINAL ) and CARDINAL , a prisoner punished by confinement in an isolation cell could appeal to the General Director of ORG through the prison 's governor . All appeals had to be transmitted by the prison authorities within TIME , together with the governor 's comments . The General Director was required to reply within DATE . Filing an appeal did not suspend the execution of the punishment .", "In DATE the new section CARDINALb of the Act introduced the possibility of a judicial appeal against disciplinary confinement in an isolation cell .", "Section CARDINAL(CARDINAL ) provides :", "“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for :", "unlawful pre - trial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ... ”", "The reported case - law under section CARDINAL(CARDINAL ) of the LAW is scant . In CARDINAL recent judgments ORG held that pre - trial detention orders must be considered as being “ set aside for lack of lawful grounds ” - and ORG liability arises - where the criminal proceedings were terminated on grounds that the charges were not proven ( Decision no . CARDINAL , DATE , case no . CARDINAL ) or where the accused was acquitted ( Decision no . CARDINAL , DATE , case no . CARDINAL/CARDINAL ) . The view taken appears to be that in such cases the pre - trial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .", "On the other hand , the Government have not informed the ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pre - trial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pre - trial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .", "Under section CARDINAL(CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person was acquitted by a court or the criminal proceedings were discontinued by a court or by the prosecution authorities on grounds that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability under section CARDINAL(CARDINAL ) arises where the criminal proceedings were discontinued at the pre - trial stage on grounds that the accusation was not proven ( Decision No . DATE , DATE , case no . CARDINAL , ORG ) .", "Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL § CARDINAL of the Act ; DATE No . CARDINAL , DATE , civil case no . CARDINAL/CARDINAL г. , ORG ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pre - trial detention .", "In their report on the visit to the former GPE in DATE , published on DATE , the ORG noted :", "“ ... [ T]he ORG wishes to draw attention to ... practices observed by its delegation ... [in CARDINAL prison ] . The first was the shaving of the heads of newly - arrived residents and of those who had been returned to the institution after escapes . Senior staff at that establishment accepted that such a procedure has no medical justification and could be considered degrading ...", "The ORG recommends that the authorities of “ the former GPE ” put an end to these practices . ”" ]

[ "10", "13", "3", "5", "6" ]

[ "5-3", "5-4", "5-5", "6-1" ]

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[ "The applicants , Mr PERSON , Mr. PERSON and Mr. PERSON are NORP nationals who were born in DATE respectively and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP In DATE a private individual , ORG , started the construction of a residue - collecting basin in order to carry out the production of alcohol . The QUANTITY capacity basin was located in the centre of the village of GPE , QUANTITY from the applicants’ windows and close to a supermarket , school , church and the town hall .", "According to the information submitted by the ORG , the residue - collecting basin was located QUANTITY from the first applicant ’s property and QUANTITY from the second applicant ’s property . The third applicant had a property QUANTITY from the basin , but during the period within which the distillery operated he did not live there .", "B.P. started the production of alcohol without obtaining the necessary authorisations . Therefore , the mayor of the village imposed CARDINAL fines on him for this breach .", "On DATE the ORG granted an environmental permit for the operation of the distillery , although they had initially dismissed ORG ’s request for authorisation . In granting the permit , the issuing authority imposed on the beneficiary an obligation not to cause discomfort in the area and interdicted him from releasing residues directly into the village ’s water supply .", "On DATE the mayor of GPE authorised the operation of the distillery .", "In DATE the applicants lodged a civil action with ORG , seeking to obtain the cancellation of the environmental permit granted to ORG They contended that the operation of the distillery in the centre of their village , close to the school and church , had caused discomfort – not only to them , but also to other inhabitants of the village , had affected their health and had polluted the water passing through the village . They added that the residue - collecting basin was very close to the houses of the second and the third applicants , making their lives intolerable . They contended , in particular , that they had not been able to open their windows because of the smell and because of the countless flies that had been attracted by the residues collected in the basin .", "By a judgment rendered on DATE , ORG dismissed their action on the grounds that the environmental permit had been lawfully granted . It stated that a public meeting had been organised by the mayor and that CARDINAL people had attended it . It considered the applicants’ allegations concerning the insufficient number of attendees at the meeting to be unsubstantiated , noting that the law did not require a specific type of public meeting , consultation of the population or a minimum number of attendees at a public meeting . With regard to the location of the distillery in the centre of the village , the court noted that all the competent authorities had considered that the operation of the distillery would neither disturb its neighbours nor affect the environment .", "The applicants filed an appeal on points of law , claiming , inter alia , the absence of consent from neighbours located in close proximity to the distillery . On CARDINAL DATE ORG dismissed the appeal on points of law filed by the applicants , stating that according to PERSON no . CARDINAL of DATE , the consent of neighbouring proprietors was only necessary in the event of construction of new buildings or measures being taken that were necessary for their protection . It noted that the written consent of the inhabitants living in the region had been obtained , being mentioned in TIME drafted by the mayor of the village on DATE .", "The applicants continued to submit complaints regarding the allegedly illegal and damaging activities of the distillery to all competent authorities .", "Consequently , a review was carried out by the ORG ’s office ( ORG control PERSON ) on DATE . It concluded that the matters mentioned in the ORG complaints were not substantiated .", "According to a letter dated DATE , ORG informed the first applicant that in DATE ORG had cancelled an environmental health permit required for the operation of the distillery . Furthermore , from the documents submitted by the applicant it appears that on DATE the same authority had imposed a fine on the owner of the distillery for non­observance of the obligations established for the operation of the distillery .", "Based on the same source of information , it also appears that the tax authorities imposed a substantial fine on the distillery owner and ordered that the distillery ’s activities be ceased starting from DATE .", "The Government submitted that the functioning of the distillery had ceased in DATE .", "Provisions of domestic law relevant to the present case are to be found in PERSON v. GPE ( no . PERSON , ORG DATE ... ( extracts ) ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG opened an investigation against the applicant , who was a bank branch manager , and several others , in connection with a number of financial transactions effected by them allegedly in breach of the law ( see PERSON v. GPE , no . CARDINAL , LAW , DATE , and GPE v. GPE , no . CARDINAL , § DATE , DATE ) .", "On DATE the applicant was charged with having authorised CARDINAL wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others .", "In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank CARDINAL promissory notes issued by companies related to a Mr GPE , and of unlawfully possessing firearm ammunition .", "Eight persons were charged in all . The charges were modified several times in the course of the investigation .", "During the investigation , which lasted DATE , the investigator heard CARDINAL witnesses , examined numerous financial and banking documents , commissioned expert reports , and undertook searches .", "On DATE the investigation was completed and the case file was sent to the prosecutor .", "On DATE the prosecutor submitted to ORG a CARDINAL - page indictment accompanied by CARDINAL binders of documentary evidence .", "The first hearing took place from DATE . ORG heard the accused as well as several witnesses and experts . Some witnesses did not appear . Both the prosecution and the defence requested an adjournment .", "The trial resumed on DATE . ORG heard several witnesses . CARDINAL other witnesses were absent as they had not been subpoenaed properly and others , albeit subpoenaed , did not show up . The trial was adjourned until DATE .", "The trial resumed on DATE and DATE . The court adjourned it to CARDINAL DATE , as some witnesses did not appear , and ordered an additional financial report .", "The hearing listed for DATE was adjourned to DATE and then again to DATE by reason of the ill health of CARDINAL of the applicant 's coaccused .", "On DATE ORG held its last hearing . It heard the closing argument of the parties .", "On DATE ORG found the applicant guilty . It sentenced him to DATE imprisonment and banned him from holding the post of a director of a bank 's branch for a period of DATE .", "The reasoning of ORG judgment was deposited in the registry of that court on an unspecified date in DATE .", "NORP Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant 's coaccused against their detention . In practice , upon such an appeal , the entire case file would be transmitted together with the appeal .", "NORP Throughout the proceedings ORG and later ORG sought police assistance to establish the addresses of witnesses and ensure their attendance .", "On an unspecified date in DATE the applicant appealed against his conviction and sentence .", "DATE , on DATE , ORG held its first hearing , which was adjourned to CARDINAL DATE because of health problems of CARDINAL of the applicant 's coaccused .", "On CARDINAL and DATE ORG resumed its hearing in the case .", "On DATE ORG quashed the lower court 's judgment and remitted the case to the preliminary investigation stage .", "ORG , considering that ORG judgment was unclear or erroneous , sought to appeal against it or request its interpretation . There ensued a dispute about the time - limit for such an appeal , which was brought by the prosecution authorities to ORG . On DATE that court dismissed the prosecution 's request .", "Nothing was done in the case thereafter , at least until DATE , date of latest information from the parties . At that time the investigation in the applicant 's case was pending before the prosecution authorities .", "On DATE the applicant was arrested and brought before an investigator who decided to detain him . The decision was later confirmed by a prosecutor .", "On DATE , during the first trial hearing , the applicant applied to ORG for release . He submitted that he could not abscond because he had a wife and a child of whom he had to take care . He could not interfere with the investigation either , because all evidence had already been gathered . Finally , there was no risk of him committing an offence , because he had been dismissed from the bank where he had worked . The application was rejected by ORG with the following reasoning :", "“ [ The applicant ] has been charged with a serious intentional crime . There is still evidence to be gathered . [ T]he court therefore considers that there is a real risk that the [ applicant ] will hinder the investigation . ”", "On DATE the applicant appealed . On DATE ORG , finding no reasons to alter its decision , transmitted the appeal to ORG . On DATE ORG upheld the impugned decision , finding that that applicant had been charged with a serious intentional crime and hence had to be detained .", "On DATE , during the second trial hearing , the applicant made a fresh request for release . He argued that the facts of the case had been elucidated : there were CARDINAL more witnesses to be questioned . There was hence no risk of him obstructing the investigation . There was no risk of him re - offending either . ORG refused , reasoning succinctly that the applicant had been charged with a serious intentional crime , that there were no new circumstances , and that he should hence remain in detention . On DATE the applicant appealed , arguing that there was no indication that he would flee , obstruct the investigation – especially in view of the fact that the case had progressed to trial DATE , or try to suborn witnesses or experts . On DATE ORG , finding no reasons to alter its decision , transmitted the appeal to ORG . On DATE ORG dismissed the appeal , finding that the applicant had been charged with a serious intentional crime and that hence his remaining in detention was justified , especially in view of the gravity of the alleged offence .", "On DATE , during the third trial hearing , the applicant again requested release . He averred that in view of the adjournment of the case his detention should not be prolonged any further . There was no risk of him obstructing the investigation or fleeing . The obduracy of the court to refuse his release made pretrial detention a form of punishment . Indeed , the other accused persons were on bail . ORG refused in the following terms :", "“ The court finds the [ applicant 's ] request for release ill - founded . [ He ] has been charged with a serious intentional crime and thus has to be kept in detention . ... The fact that the other accused are not detained has nothing to do with the [ applicant 's ] detention . ”", "On DATE the applicant appealed , averring that the facts of the case had already been clarified , that he had a permanent address and that his family seriously suffered from his continuing detention . On DATE ORG confirmed its decision and transmitted the appeal to ORG . On DATE that court dismissed the appeal , holding that the applicant had been charged with a serious intentional crime . Detention was therefore lawful under LAW ( “ ORG ” ) , under which persons charged with serious intentional crimes had to be detained , barring special circumstances . There had to be real facts establishing that there was no risk of the applicant absconding , re - offending or hindering the investigation for the exception of LAW to apply . The applicant 's arguments relating to his lack of criminal record , permanent address etc . were not of a nature to prove the lack of such a risk .", "On DATE the applicant filed an application for release , arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation . On DATE ORG held a hearing on the application and denied it in the following terms :", "“ The court finds that the [ applicant 's ] request for release is ill - founded . The charges against [ him ] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[. ] ”", "NORP On DATE the applicant appealed , arguing that his lengthy detention DATE was not warranted . The following day ORG confirmed its decision and forwarded the appeal to ORG , which in turn dismissed it on DATE , holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation . The length of detention was no reason to deviate from the strict requirements of LAW ORG .", "During the trial hearing which took place on DATE the applicant again applied for release . He argued that there was no risk of him absconding , re - offending or fleeing . Moreover , given the adjournment of the case , his detention would exceed DATE , thus becoming a sort of punishment . ORG rejected the request , finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change of circumstances . On DATE the applicant appealed , asserting that the facts of the case had been established and that he had no criminal record . On DATE the ORG declined to alter its decision and forwarded the appeal to ORG . On DATE ORG dismissed the appeal in the following terms :", "“ [ The applicant is charged with ] a serious intentional crime . Under LAW [ of the ORG ] this is sufficient for the imposition of detention . The exceptions of LAW are not present , as [ the applicant ] may flee or obstruct the investigation . ”", "On DATE the applicant filed an application for release . He maintained that there were no facts indicating that he could abscond , reoffend or hinder the investigation . On DATE ORG held a hearing on the application and rejected it . It held that the applicant had been accused of a serious intentional crime and that there was a risk of him impeding the investigation or re - offending . Moreover , the trial was about to finish . The applicant did not appeal to ORG .", "All appeals filed by the applicant against the refusals of ORG to release him were examined by ORG in private , without the participation of the parties .", "The applicant has not alleged that his detention continued after ORG quashed his conviction by a judgment of DATE .", "Article CARDINAL § CARDINAL of LAW ( “ CC ” ) provides :", "“ A person [ exercising a function of managing another 's property or an official function ] , who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another , and thus causes significant harm , shall be punished by DATE imprisonment ... ”", "Article CARDINAL § CARDINAL , read in conjunction with the first and the second paragraphs of the same provision , provides for DATE imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post .", "Article CARDINAL § CARDINAL provides that whoever possesses firearm ammunition without a permit is punishable by DATE imprisonment .", "Pretrial detention was governed by LAW ORG , which read in relevant part :", "“ CARDINAL . Pretrial detention shall be imposed [ in cases where the charges concern ] a serious intentional crime .", "NORP In the cases falling under paragraph CARDINAL [ detention ] may be dispensed with if there is no risk of the accused evading justice , obstructing the investigation , or committing further crimes . ... ”", "A “ serious ” crime is defined by LAW as one punishable by DATE imprisonment .", "ORG has held that it was not open to the courts , when examining an appeal against pretrial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . The courts had to examine only the formal validity of the detention order ( опред. № CARDINAL от DATE г. по ORG № DATE г. на ВС NORP н.о. ) .", "According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments in force since DATE ) , LAW required that a person charged with a serious intentional crime be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or re - offending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly , or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .", "The detainee 's appeals against detention at the trial stage are examined by the trial court . Such appeals may be examined in private , without the participation of the parties , or at an oral hearing . The law does not require the court to decide within a particular time - limit .", "The trial court 's decision is subject to appeal to the higher court ( Article CARDINAL § CARDINAL of the ORG ) . The appeal must be filed within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL ) . After receiving the appeal , the trial court , sitting in private , decides whether there exist grounds to annul or vary its decision . If it does not find this to be the case , it forwards the appeal to the higher court ( Article CARDINAL ) .", "Before doing so , the trial court must communicate the appeal to the other party ( the prosecutor ) and receive its written observations ( Articles CARDINAL and CARDINAL in conjunction with LAW ) . The law does not provide for the prosecutor 's observations to be communicated to the appellant .", "The higher court may examine the appeal in private without the parties being present or , if it deems necessary , at an oral hearing ( Article CARDINAL § CARDINAL ) . The law does not require the court to decide within a particular timelimit .", "Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) provides , as relevant :", "“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for :", "NORP unlawful pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds[. ] ”", "The reported case - law under section CARDINAL(CARDINAL ) of the LAW is scant . In CARDINAL recent judgments ORG held that pretrial detention orders must be considered as being “ set aside for lack of lawful grounds ” – and that ORG liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven ( реш. № CARDINAL/ DATE г. от DATE г. PERSON № DATE г. на ВКС ) or where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от CARDINAL юли DATE г. по PERSON № CARDINAL г. на ORG ) . The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .", "On the other hand , the Government have not informed the ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .", "By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability arises under section CARDINAL(CARDINAL ) where the criminal proceedings were discontinued at the pretrial stage on the ground that the accusation was not proven ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ВКС GPE г.о. ) .", "Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pretrial detention ." ]

[ "5", "6" ]

[ "5-3", "5-4", "5-5", "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant ’s daughter , Y , was informed that she was DATE pregnant . Prior to or early in her pregnancy she developed ulcerative colitis ( “ ORG ” ) . The applicant ’s daughter began experiencing the symptoms of ORG , such as nausea , abdominal pains , vomiting and diarrhoea . Those symptoms were recurrent and caused pain and discomfort .", "Y was repeatedly admitted to a number of hospitals . Y , accompanied by the applicant , attended the following hospitals in GPE : CARDINAL DATE , ORG in GPE , ORG ( ORG w Pile , PERSON ) ; CARDINAL May toCARDINAL DATE and CARDINAL to CARDINAL June DATE , ORG in ORG ( ORG specjalistyczny w Pile , Oddział PERSON ) ( “ Piła Hospital ” ) ; DATE to DATE and CARDINAL July CARDINAL , ORG , ORG No . CARDINAL , H. Święcicki Medical Academy in GPE ( PERSON i m . PERSON w Poznaniu , Oddział PERSON , PERSON i PERSON ) ( “ ORG ” ) ; CARDINAL to DATE Obstetrics and ORG , ORG , ORG in ORG Położniczo - Ginekologiczny III , ORG Położniczy Szpital PERSON Akademii Medycznej w Poznaniu ) ; CARDINAL DATE , ORG in Piła ( Szpital ORG w Pile , Oddział Chirurgiczny ) ; CARDINAL DATE , ORG in FAC , General and ORG ( ORG Specjalistyczny i m . GPE w Łodzi , ORG i ORG ) ( “ PERSON Hospital ” ) ; CARDINAL DATE , PERSON Regional Specialist Hospital in FAC ( ORG Specjalistyczny i m . PERSON ) ; CARDINAL to CARDINAL September CARDINAL , ORG , PERSON ORG . CARDINAL in FAC ( ORG Kliniczny Nr CARDINAL i m . N. ORG , ORG i ORG ) ( “ ORG ” ) .", "The applicant ’s daughter was formally diagnosed with ORG during her stay in ORG DATE and DATE . She underwent a number of tests , including an endoscopy and a fibro - sigmoidoscopic examination of the anus .", "During the visits in the hospitals listed above , the applicant ’s daughter received some diagnostic tests and basic treatment . She was given pharmacological treatment ( for example , intravenous and oral administration of steroids and antibiotics ) .", "On DATE Y was admitted to ORG . DATE and DATE and DATE and DATE she was an inpatient in that hospital . On DATE she was diagnosed with an abscess .", "On DATE Y left the clinic .", "DATE , DATE , she was admitted to ORG , where she underwent an operation to remove the abscess .", "On DATE Y was admitted to ORG due to a new abscess and rectovaginal fistula . On the same date she was operated on to remove the abscess . Medical files confirm that at the time Y was admitted to hospital the doctors were aware of ORG ulcerative colitis .", "During the applicant ’s daughter ’s stay in GPE in DATE the doctor refused to perform a full endoscopy . In addition , no diagnostic imaging of the abdomen ( diagnostyka obrazowa jamy brzusznej ) was performed .", "On DATE Y ’s condition deteriorated . She was transferred to ORG . Immediately following her admission she was sent for a surgical operation to establish the cause of the apparent sepsis . During the operation the doctors removed her appendix . Y ’s condition deteriorated , consequently immediately after the operation she was transferred to the intensive care unit of ORG .", "On DATE the doctors removed the foetus , which was dead . On DATE the doctors removed Y ’s uterus . Altogether the applicant ’s daughter was operated on CARDINAL times in ORG . On DATE she died of septic shock caused by sepsis .", "NORP By letter , dated DATE , ORG brother asked the hospital not to perform an autopsy . He submitted that the cause of ORG death was known to him .", "The Government maintained that on DATE Y left the hospital at her own request due to a planned wedding ceremony . In this respect they submitted a copy of ORG ’s medical file , which in its relevant part reads as follows :", "“ DATE ... Due to a planned wedding ceremony , the patient is to be released DATE at her own request . ”", "The applicant disagreed . She maintained that Y had not requested to leave the hospital , but had been sent home .", "The applicant further submitted that during her daughter ’s stay in the surgical department of ORG the head of that department commented that “ it is absurd to spend DATE treating an abscess . [ Y ] is too busy with her bottom , instead of taking care of something else ” , referring to the pregnancy . The applicant stated that this comment and its context had humiliated and angered her and her daughter .", "The Government argued that ORG maintained that no such comment had been made , either by the head of the department or by any other doctor of that hospital . Also , ORG in GPE , in the course of disciplinary proceedings instituted against doctors who had treated Y , did not confirm the applicant ’s allegations .", "The applicant also submitted that the doctor at ORG had justified not performing a full endoscopy ( in DATE ) by referring to his fear of endangering the life of the foetus . The applicant submitted that the doctor had stated that “ my conscience does not allow me ” , but had not formalised his objection or directed Y to another doctor .", "The Government argued that during the investigation instituted by ORG in ORG it had been established that none of the doctors at ORG had based their refusal to perform a full endoscopy on a “ conscience clause ” ( klauzula sumienia ) . The decision not to perform a full endoscopy was taken because there were no medical grounds for such an examination , and not because of Y ’s pregnancy .", "On DATE the applicant ’s lawyer asked ORG to institute criminal proceedings in relation to the circumstances of the applicant ’s daughter ’s death . The lawyer submitted medical charts from CARDINAL hospitals and asked the prosecutor to obtain full medical documentation . The applicant was questioned by the prosecutor on DATE .", "On DATE the prosecution requested the Collegium PERSON in GPE and ORG in ORG to issue an opinion as to whether an exhumation would be possible in Y ’s case . Both universities replied that an exhumation of Y ’s body would not have enabled an opinion to be given on the cause of her death .", "On DATE the prosecutor opened an investigation of possible unintentional homicide of the applicant ’s daughter ( LAW ) .", "On DATE the prosecutor decided to appoint an expert from ORG of the Collegium PERSON in GPE , to evaluate the treatment provided to the patient , and to establish whether there was a direct causal link between any irregularities in ORG treatment and her death . However , PERSON informed the prosecutor that no autopsy was carried out following the applicant ’s daughter ’s death , and that exhumation of her body at a later stage would not have enabled an opinion to be given on the cause of death . A similar opinion was issued by ORG in ORG .", "On DATE ORG in Gdańsk , on DATE ORG in GPE , and on DATE ORG in GPE refused to provide an opinion in LOC case due to their workload in other cases and lack of staff .", "Meanwhile , on DATE the Minister of Health convened a special expert committee to investigate ORG treatment and the circumstances of her death . The aim of the committee was to inquire in respect of all the hospitals involved in ORG treatment as regards their organisation and methods of treatment and the availability of those methods . On DATE the committee concluded that the death had been directly caused by sepsis . The committee noted however , that during ORG stay in ORG , despite her history of inflammatory bowel disease the doctors failed to perform a diagnostic imaging test on her abdomen . In addition , an earlier diagnosis of sepsis and the establishment of its original cause in ORG ( most probably PERSON - Crohn disease ) and a possible decision about surgical treatment would have had an impact on ORG ’s situation . The committee ’s report was signed by several national consultants in various fields of health care . CARDINAL members of the committee , who were not medical experts , did not sign the report : professor of criminal law GPE , and GPE , the head of an NGO working in the field of reproductive rights .", "On DATE the prosecutor ’s office asked national consultants in gastroenterology , gynaecology and vascular surgery to submit opinions on ORG treatment .", "On DATE an expert gastroenterologist stated in her opinion that the original cause of sepsis could not be determined due to the fact that an autopsy had not been performed on Y ’s body .", "The investigation of the death of the applicant ’s daughter was extended several times . It was then suspended , on DATE . The prosecutor referred to the need to obtain expert opinions and the fact that the waiting time for such opinions was DATE .", "Subsequently CARDINAL medical opinions were submitted to the prosecutor ’s office on DATE , DATE , DATE , DATE , and CARDINAL DATE , and DATE . Altogether the prosecution obtained opinions from CARDINAL medical experts . The experts were subsequently heard by the prosecutor .", "During the investigation , there were several changes of prosecutor : CARDINAL prosecutors handled the investigation at different stages .", "On DATE PERSON , an expert gastroenterologist , considered it surprising that Y had not undergone an ultrasonographic examination of the abdomen . He further stressed that she could have had an MRI ( magnetic resonance imaging ) to determine the cause of the abscess . Lastly , an autopsy would have allowed the original cause of the sepsis to be determined . In an additional opinion of DATE PERSON considered that in both hospitals , Piła and PERSON , the doctors failed to do an MRI . However , he stressed that the lack of adequate examination in LOC case should be treated not as medical malpractice but as lack of due diligence .", "On DATE ORG resumed and discontinued the investigation . The prosecutor concluded that on the basis of the experts’ opinions there was no ground for any doubts or objections as to the treatment received by the applicant ’s daughter . Failure to conduct an MRI should be considered a lack of due diligence and not medical malpractice . It could no longer be said that an earlier operation would have saved Y ’s life . Consequently , no direct link had been established between the treatment and the death of the applicant ’s daughter .", "NORP The applicant appealed .", "On DATE ORG upheld the prosecutor ’s decision . The court referred to the complicated nature of the case and the fact that no autopsy was performed , and therefore it was impossible to establish whether Y suffered from PERSON disease . The court considered that there were no grounds for continuation of the investigation of ORG death .", "The applicant stated that the prosecutor had not obtained the necessary information , such as full medical records , to assist experts in forming their opinions . The ORG maintained that the prosecutor had obtained full medical records from all the hospitals attended by the applicant ’s daughter in GPE , ORG and FAC .", "The applicant also stated that the prosecutor had the applicant ’s daughter . The ORG argued that the prosecutor had examined the issue of colonoscopy and the investigation had been focused on Y ’s cause of death : in particular , on the question whether her treatment had been adequate to the diagnosis and whether further tests , such as a full endoscopy and a diagnostic imaging test , could have prevented ORG death .", "The applicant claimed that the CARDINAL members of the special expert committee ( see paragraph CARDINAL above ) who had not signed the report of DATE had not been allowed to participate in the committee ’s discussions and therefore did not have access to the medical files . The Government disagreed . They drew the ORG ’s attention to the fact that all the medical specialists had signed the report .", "On DATE the Łódź Regional Agent for Disciplinary Matters ( Okregowy PERSON ) ( “ Disciplinary Agent ” ) instituted disciplinary proceedings against the doctors who had treated PERSON After consulting several experts and hearing witnesses , he concluded that there was no evidence of medical malpractice . During the proceedings the applicant and ORG fiancé refused to testify before ORG . The proceedings were discontinued by a decision of DATE .", "In DATE the ORG instituted disciplinary proceedings against the doctors who had treated Y. On DATE CARDINAL specialists from ORG issued a medical opinion , that there was no evidence of medical malpractice . The proceedings were discontinued by a decision of DATE .", "The applicant did not appeal against the GPE and GPE Disciplinary Agents’ decisions to ORG in GPE ( PERSON ) .", "In DATE the applicant had brought a compensation claim in the ORG against ORG .", "DATE . On DATE the applicant modified her claim and asked for MONEY ( ORG ) in compensation . Consequently , the case was transferred to ORG .", "On DATE the ORG dismissed the applicant ’s claim for compensation . The applicant did not appeal against this judgment . In addition , none of the parties asked to be served with the written reasoning of the judgment .", "There is no indication in the medical files of ORG stay in ORG ( CARDINAL May-CARDINAL DATE ) that she had given permission for third parties to have access to these files . For these reasons , in DATE the hospital refused the applicant access to the medical files", "Medical files of ORG stay in ORG ( DATE to DATE and DATE ) indicate that Y specified that the applicant was entitled to obtain documentation on her stay in the hospital . The hospital granted access to these files to ORG ( on DATE and CARDINAL DATE and DATE ) and to ORG on DATE .", "Medical files in ORG do not indicate that Y allowed third - party access to her medical files . For this reason the hospital refused the applicant access to these files .", "The ORG maintained that the applicant had not requested the NORP hospital to give her access to Y ’s files . The applicant disagreed . She submitted , without specifying any details , that she had twice asked the hospital for these files but had not been granted access .", "The Government submitted that on DATE the prosecutor ’s office requested the relevant hospitals to provide files on ORG ’s treatment . In this connection they submitted copies of the prosecutor ’s decisions .", "The applicant disagreed : she claimed that the relevant files were requested only in DATE and DATE .", "Under section CARDINAL of LAW of DATE ( ustawa o zawodzie lekarza i lekarza dentysty ) ( “ the DATE LAW ) , as applicable at the material time , a doctor may refuse to carry out a medical procedure , citing her or his objections on the ground of conscience . He or she is obliged to inform the patient where the medical procedure concerned can be obtained and to register the refusal in the patient ’s medical records . Doctors employed in health - care institutions are also obliged to inform their supervisors of their refusal in writing .", "Sections CARDINAL of ORG of DATE ( ustawa o zakładach opieki zdrowotnej ) , as applicable at the material time , specified situations in which an autopsy is to be performed . In general , when a person died in a hospital , the authorities might carry out an autopsy unless that person ’s statutory representative objected or the patient expressed such a wish whilst alive . However , an autopsy was obligatory if the cause of the patient ’s death could not be unequivocally established or in situations specified in the code of criminal procedure .", "Under section CARDINAL of LAW and the ordinance of DATE on types of individual medical documentation , keeping them and detailed conditions of granting access to them ( ORG Zdrowia w sprawie rodzajów indywidualnej dokumentacji medycznej , sposobu jej prowadzenia oraz szczegółowych warunków jej udostepniania ) as applicable at the material time , a doctor was obliged to grant access to individual medical files to a patient , his statutory representative or a person authorised by the patient ; to another doctor or person authorised to conduct the patient ’s treatment ; other organs under separate legislation ( such as courts or a prosecutor ’s office ) .", "Under LAW of LAW Civil Code , the ORG is liable for damage caused by its agents in the exercise of their functions . There is established case - law of the NORP courts to the effect that this liability of the ORG also includes liability for damage caused by medical treatment in a public system of medical care , run either by the ORG or by the municipalities .", "LAW provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment DATE", "The Chambers of Physicians Act of DATE ( ustawa o izbach lekarskich ) ( “ The DATE LAW ) no longer in force , established ORG . The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before organs of the ORG , agents for disciplinary matters and disciplinary courts . Agents and members of the courts for each region are elected by members of a local chamber . The Chief Agent for ORG and ORG are elected by ORG , composed of delegates of local chambers .", "Pursuant to LAW , the following penalties may be imposed in disciplinary proceedings : a warning , a reprimand , suspension of the right to practise medicine for a period from DATE , and being struck off the register of physicians .", "The agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed . When investigating such a complaint , the agent may question a physician charged with professional misconduct , may appoint experts and question witnesses and take such other evidence as he or she sees fit . A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant .", "The agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed ." ]

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[ "2" ]

[ "2-1" ]

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[ "The applicant , PERSON , is a NORP national , born in DATE . He lives in the town of GPE .", "On DATE at TIME the applicant and his girlfriend PERSON arrived at the flat which they were sharing and which belonged to PERSON . The applicant then left the flat for TIME to get some money , as he and PERSON were planning to go out that TIME . However , when he came back , he found the door locked . He asked his neighbours whether they had seen PERSON , but was told that nobody had seen her . Fearing that she might have attempted to take her life , as she had already done in the past , the applicant forced open the door of the flat in the presence of his neighbour , PERSON He found nobody there , so decided to go to the police to enquire about her fate . As he was leaving the apartment block , he met PERSON 's brother - in - law , PERSON , accompanied by CARDINAL men armed with knives , who attempted to attack him , but from whom he managed to escape .", "On DATE at TIME called the police and lodged a complaint against the applicant . According to the complainant , the applicant had tried to break into ORG 's flat , but had run away when Crinel PERSON appeared . The complaint was certified by the police officer PERSON CA .", "Dumitru CA sent a police patrol to conduct an on - site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat . PERSON , who was present during the investigation , stated that the applicant had broken into the flat in her presence , fearing that PERSON might have committed suicide .", "A short time after he escaped from Crinel M. , that is , CARDINAL , the applicant learned that the police were looking for him and went to ORG , accompanied by his cousin PERSON L.", "He reported to the police officer on duty , PERSON CA . , that some individuals had attempted to beat him up as he was leaving his flat , and that although he had managed to escape , he was still afraid that Crinel M. might beat him up . After he presented his identity card , he was told to wait . Other policemen were also present .", "At around TIME police officers PERSON , PERSON and PERSON came back from the on - site investigation they had carried out at ORG 's flat . PERSON grabbed the applicant by his hair and pulled him upstairs to an office . PERSON and PERSON punched him in the head until his nose started to bleed , and he was thrown to the ground and kicked . A newspaper was placed on the back of his neck and he was hit with a wooden stick . CARDINAL plainclothes officers observed the assault , but took no steps to prevent or halt it . The police told the applicant that the fact that his father was the local leader of a GPE association would not help him and forced him to sign a statement according to which he had been beaten up by PERSON and other individuals . Then he was told to leave and to come back the next day . The police kept his identity card .", "The applicant left , but as he was feeling very weak , he stopped and sat in front of the police station . PERSON came out and told him to go home . Seeing that the applicant was in bad shape , ORG invited him back with her and offered him a coffee . The applicant showed her the bumps on his head and the other marks of the blows to his back .", "Later that evening the applicant was admitted to the emergency ward of ORG with injuries diagnosed as craniocerebral trauma . He was transferred to ORG where an X - ray was performed . He was informed that a further scan was necessary , but this was never performed .", "On DATE the applicant was discharged from hospital , allegedly at the request of someone whose name the hospital staff could not disclose .", "On DATE the applicant was examined by a forensic medical expert of ORG , who noted in his report that the applicant had severe headaches and stomachaches , difficulty in walking , bruises around both eyes , on his fingers , on the back of his right hand , on his chest , on his right thigh and calf , and a haematoma on his head . The report concluded that the injuries had been caused by being hit “ with painful and hard objects ” . The doctor said that the applicant would need DATE to recover .", "On DATE the applicant lodged a complaint with the head of ORG against police officers PERSON and PERSON .. He alleged that after he had managed to escape from Crinel M. and his friends , he had gone home , but as he had found out that the police were looking for him , he had gone to the police station . There , PERSON and ORG had beaten him and made him sign a statement , after which they had told him to go home and come back DATE .", "The complaint was registered on DATE and forwarded to Major P.", "On DATE Major PERSON took written statements from the police officers involved in the applicant 's questioning : PERSON , ORG ORG and PERSON All police officers denied , in succinct terms , having beaten the applicant . None of them mentioned having seen any bruises on the applicant 's face upon his arrival at the police station . The statements were dated DATE , but Major PERSON certified them as having been made on CARDINAL July .", "In a statement certified by Major PERSON as having been made on DATE PERSON CA . , a police officer on duty on DATE , explained that at TIME he had received a telephone call from PERSON , who had told him that the applicant had forcibly entered PERSON flat and had subsequently fled . The duty officer then sent to the flat a police patrol , composed of QUANTITY police officers : PERSON , PERSON and PERSON In the meantime the applicant arrived at the police station , accompanied by his cousin , PERSON told PERSON CA . that he had forcibly entered the flat because he thought his girlfriend was inside . On his way out , on the staircase of the building , a number of individuals had approached him and tried to catch him , but he had run away and come to the police in order to avoid being beaten up by them . The police officer told the applicant and his cousin to wait in the waiting room . Police officer PERSON was there as well . At TIME the police patrol returned from the flat and took the applicant to their office on the first floor for questioning . After TIME , the applicant was sent home and asked to come back the next morning . Dumitru CA . made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station .", "By a letter dated DATE Major PERSON forwarded the preliminary investigation file to ORG in GPE . The case file contained the following documents :", "( i ) an undated statement by the applicant according to which , after he had left ORG 's flat in TIME of DATE , he had met her relatives , who had beaten him up ;", "( ii ) the report dated DATE , TIME drawn up by police officer PERSON CA . stating that PERSON had complained to the police that the applicant had broken into PERSON 's flat ( see paragraph CARDINAL above ) ;", "( iii ) a statement dated DATE by Crinel M. from which it appeared that he had threatened the applicant in the evening of DATE and had even thrown a stone at him , which had missed its target , but that he had definitely not beaten him up ;", "( iv ) the on - site investigation dated DATE ;", "( v ) a statement dated DATE by PERSON , confirming the applicant 's allegation , namely that at TIME , he had broken into ORG 's flat in her presence , out of concern that she might have committed suicide , and that he had left when he had seen that PERSON was not there ; no mention was made of any physical assault against the applicant ;", "( vi ) a police report dated DATE issued by PERSON , listing the clothes belonging to ORG allegedly torn up by the applicant on DATE ;", "( vii ) a written notification issued on DATE by the police requesting that ORG examine PERSON , who “ had been beaten up by PERSON on DATE ” ;", "( viii ) PERSON 's statement dated DATE from which it appeared that on DATE the applicant had beaten her up while she was at his flat , and that on DATE he had taken her to her flat and told her not to leave ; as soon as he had gone , ORG had gone onto the roof of the building where she had remained for TIME ; from there she had seen the applicant come back and break into the flat ; as he had found nobody , he had gone away . ORG further stated that as the applicant was leaving the building , he had met PERSON , who “ had beaten him up , asking him why he had broken into the flat ” ; no details were given as to the alleged beating ; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour , but that when he saw PERSON , he had run away ;", "( ix ) a statement dated DATE by PERSON , PERSON 's mother , according to which the relationship between the applicant and PERSON had already deteriorated ; on DATE the applicant had torn up some clothes belonging to ORG and on DATE , while PERSON was on the roof of the building , the applicant had broken into the flat but had not stolen anything ;", "( x ) the statements dated DATE made by police officers PERSON , PERSON , PERSON and ORG . ( see paragraphs CARDINAL above ) .", "On DATE the applicant and his father , president of ORG in PERSON , lodged a complaint with ORG and requested an investigation in respect of the police officers who had beaten the applicant . They submitted a medical certificate issued on DATE , a copy of a newspaper article describing the applicant 's allegations of ill - treatment and the statements of ORG , who had accompanied the applicant to the police station on DATE and who had seen him coming out of the police station in excruciating pain . The complaint was forwarded to ORG in GPE on DATE .", "On DATE the applicant 's father lodged a complaint with ORG .", "On DATE the applicant lodged a separate criminal complaint with ORG . He also claimed pecuniary and non - pecuniary damages . The complaint was registered DATE with ORG and forwarded on DATE to ORG .", "On DATE the military prosecutor charged with the investigation interviewed the police officers and the applicant . Police officers PERSON and PERSON maintained their statements made before the PERSON police , and the applicant maintained his allegations of illtreatment . He complained , moreover , that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend 's other relatives .", "On DATE the military prosecutor took a statement from PERSON She stated that on DATE she and a friend , PERSON , had accompanied the applicant to the police station and that TIME the applicant had come out and complained to them that he had been beaten by the police with a wooden stick . He had also shown them the bruises on his hand , back and fingers .", "On DATE ORG in GPE urged the NORP military prosecutor in charge of the investigation to complete the investigation and render a final decision by DATE .", "On DATE the NORP military prosecutor went to ORG , where he took statements from the following witnesses :", "( i ) witnesses PERSON and PERSON stated that they had heard that an altercation had taken place between Crinel M. and the applicant ; PERSON further stated that he had seen PERSON chasing the applicant with a stone in his hand ;", "( ii ) NORP police officer PERSON CI . , who gave a written statement according to which he was at the police station on DATE when the applicant arrived there at TIME , and saw that the applicant had bruises on his face when he entered the police station ; he had explained to the duty police officer , PERSON CA . , that he had been hit by someone when breaking into the flat ;", "( iii ) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station , at TIME , he had bruises on his face and declared that he had been hit by someone when breaking into the flat ;", "( iv ) NORP police officer PERSON , who had also participated in the on - site investigation at ORG 's flat on DATE , stated that the applicant had arrived at the police station after the team of policemen had come back from the on - site investigation and that he had noticed that the applicant had obvious bruises on his face , which had been caused a short time beforehand ;", "( v ) Crinel M. confirmed that on DATE he had seen the applicant breaking into ORG 's flat and that after making an unsuccessful attempt to catch the applicant , he had only managed to throw some stones at him , which had missed their target ; he further confirmed that some neighbours had witnessed the incident , including PERSON", "The prosecutor did not put any questions to the police officers who had submitted written statements .", "On DATE the military prosecutor of GPE refused to open a criminal investigation in respect of the applicant 's complaints against police officers PERSON and PERSON , on the ground that the facts had not been established . The prosecutor noted that both the applicant and his father were known as “ antisocial elements prone to violence and theft ” , in constant conflict with “ fellow members of their ethnic group ” and that it was in this context that in TIME DATE the applicant had broken into his girlfriend 's flat and had destroyed many of her clothes . It further found that , according to various testimonies , including those of the police officers from ORG , the applicant 's girlfriend , her mother and PERSON , the applicant had been hit by PERSON for breaking into PERSON 's flat . The prosecutor found that it was for “ obvious reasons ” that PERSON , a “ gypsy as well ” , had denied having beaten the applicant . The prosecutor considered that the statement given by PERSON , from which it appeared that the applicant had come out of the police station with bruises on various parts of his body , could not be taken into consideration since she was also a gypsy DATE and , moreover , the applicant 's cousin DATE and therefore her testimony was insincere and subjective .", "By separate decisions of CARDINAL DATE and DATE the public prosecutor of the ORG discontinued the proceedings instituted against the applicant by his girlfriend and her brother - in - law for physical assault and material damage .", "On DATE the applicant lodged an appeal against the decision of CARDINAL DATE refusing to open a criminal investigation . The appeal was registered on DATE by the military section of ORG . They sent it to the military prosecutor of ORG , who , in turn , sent it back to ORG .", "On CARDINAL DATE ORG dismissed the applicant 's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant , “ a DATE gypsy ” “ well known for causing scandals and always getting into fights ” . He found that , on the contrary , the applicant 's injuries “ might have been caused during the altercation which he had had with fellow members of his ethnic group . As a matter of fact , there were indications that the young man 's father , who had been very insistent under the hypothetical title of a leader of an ethnic local association , had tried to use the complaint against the policemen to extinguish the other conflict ” .", "On DATE the applicant lodged an appeal with the military section of ORG .", "On DATE the Chief Prosecutor of the military section of ORG informed him that his appeal had been dismissed and that the decision was final .", "The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation , in particular by the applicant 's girlfriend , who had seen the applicant being beaten up by Crinel M. from the roof of the building , and by QUANTITY police officers , who had noted very recent marks of violence on the applicant 's face when he arrived at the police station . The Government pointed out in this connection that the applicant 's allegation that he had bruises on his face had been contradicted by the medical forensic examination , which did not reveal any such marks .", "The Government also denied that Major PERSON had pre - dated the statements given to him on DATE by the police officers questioned , and contended that the date of DATE which the police officers wrote in their statements was obviously a mistake .", "The relevant provisions of LAW in force at the time when the facts occurred read as follows :", "“ Criminal proceedings can not be instituted and , if instituted , can not be continued if", "( a ) the act was not committed at all ;", "( ... )", "( c ) the act was not committed by the defendant ;", "... ”", "“ The aim of the civil action is to establish the civil liability of the accused and the liability for damages of any other person who can be held legally responsible .", "The civil action can be brought together with the criminal action in a criminal trial , by way of joining the proceedings . ”", "“ The person who has suffered civil damage can join the criminal proceedings ...", "He or she can do so either during the criminal investigation ... or before the court ... ”", "“ The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act . ”", "“ ( CARDINAL ) The victim who has not joined the criminal proceedings instituted before the court can lodge an action with a civil court ...", "“ ( CARDINAL ) The civil proceedings will be suspended until the criminal case is decided .", "... ”", "“ Complaints about decisions and acts of the prosecutor ... shall be examined by the chief prosecutor at ORG . If it is the chief prosecutor who took the decision ... the complaint shall be examined by ORG ... ”", "“ In case of a conviction or an acquittal , or the termination of the criminal trial , the court shall deliver a judgment in which it also decides on the civil action .", "Civil damages can not be awarded if the accused is acquitted on the ground that the impugned act did not occur or was not committed by the accused . ”", "In its decision no . CARDINAL of DATE , ORG ruled that LAW was constitutional only in so far as it did not deny anyone who was dissatisfied with a decision of the ORG direct access to a court in accordance with LAW .", "Law no . CARDINAL of DATE amended LAW . It introduced , inter alia , LAW ) regulating appeals to the courts against the prosecutor 's decision . It prescribes the time - limit for lodging an appeal , the competent court and the procedure to be followed .", "The relevant provisions of LAW are worded as follows :", "“ Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”", "“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”", "The Government submitted a number of cases in which the domestic courts had decided that the prosecutor 's decision , based on LAW b ) of LAW , not to open a criminal investigation on account of the absence of intention – as an element of DATE did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question .", "The Government submitted a single case , dating back to DATE , in which ORG had decided that the prosecutor 's decision , based this time on DATE ( a ) and ( c ) of LAW , not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant , should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question . However , ORG decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action .", "The common view of the criminal - procedure specialists is that a civil court can not examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in LAW ) of LAW that the acts were not committed at all or were not committed by the defendant ( see LAW , PERSON and Others , p. CARDINAL , GPE DATE , and LAW , PERSON , pp . CARDINAL - CARDINAL , GPE DATE ) .", "The common view of the civil - procedure specialists and of some criminal - procedure specialists is that the prosecutor 's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph , does not prevent a civil court from examining a civil action brought against the defendant and from making its own assessment on the facts which were committed and by whom . However , the view is that when making this assessment , civil courts have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation ( see ORG and the Criminal Trial , PERSON , RRD no . MONEY , and Criminal Procedural Law , PERSON , p. CARDINAL , GPE DATE ) .", "In its Resolution No . DATE on the honouring of obligations and commitments by GPE , ORG of ORG urged ORG “ to promote a campaign against racism , xenophobia and intolerance and take all appropriate measures for the social integration of the GPE population ” .", "ORG noted in the DATE Regular Report on GPE 's progress towards Accession , that “ discrimination against the large GPE minority in GPE remains widespread ” and that in “ general terms , the protection of minorities in GPE remains satisfactory , with the major exception of GPE ” .", "In its Regular Report on GPE 's progress towards Accession of DATE , ORG stated , inter alia , that", "“ GPE remain subject to widespread discrimination througout NORP society . However , the ORG 's commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report ” .", "In its publication “ ORG Delayed , Justice Denied ” , issued in DATE , ORG reported cases of killings , beatings and other forms of ill - treatment of GPE and criticised the failure of law enforcement officers to protect GPE from racist violence in GPE .", "US Department Yearly Reports on GPE from DATE until DATE reported routine police brutality - including beatings - and racial harassment of the GPE population , and noted that investigations of police abuses generally were lengthy , inconclusive and rarely resulted in prosecution or punishment .", "In its second report on GPE adopted on DATE , ORG against Racism and Intolerance ( ECRI ) found that :", "“ Grave problems ... persist throughout the country as regards police attitudes and behaviour towards members of the Roma / Gypsy community . ECRI deplores in particular that cases of police violence against members of the Roma / Gypsy community , including the use of firearms , continue to occur , and have led to serious and sometimes lethal injuries ...", "Such abuses , although well - documented and reported to the authorities by the non - governmental organisations and individuals , do not appear to be thoroughly investigated or sanctioned : cases which are investigated are usually dismissed ... ”", "On DATE ECRI adopted a third report on GPE , in which it stated the following on the progress made by the NORP authorities in improving the situation of GPE :", "“ ... As regards the existence of a body responsible for looking into complaints made against police officers or law enforcement officials , the NORP authorities have told ORG that a procedure has been set in motion for that purpose within ORG itself . [ ... ] However , although the NORP authorities have acknowledged that large numbers of police officers have been arrested for wrongful behaviour , they have provided no information on the victims . Furthermore , ORG notes with concern that despite the existence of these procedures , the NORP authorities have stated that no complaints have been recorded against police officers or law enforcement officials for discriminatory acts . It therefore wonders whether this does not reflect a lack of confidence among the general public in the authorities ' capacity to punish the perpetrators of such acts . ”", "In a report on his first visit to GPE DATE , ORG PERSON for Human Rights stated , inter alia , with regard to the GPE community in GPE :", "“ DATE . The ORG community suffers greatly from poverty , unemployment , lack of schooling , lack of access to health care and justice and discrimination in all its forms . Likewise , according to ORG organisations , CARDINAL of this community 's growing concerns is the \" antiRoma / Gypsy phenomenon \" , which is gaining ground both in GPE and in LOC . ”", "In his follow - up report on GPE for the period DATE , the Commissioner described as follows the general situation of the GPE community :", "“ DATE . According to the DATE census , CARDINAL persons were registered as GPE , representing PERCENT of the NORP population . Nonetheless , the ORG estimated in DATE that the GPE population actually numbered CARDINAL persons .", "[ ... ]", "From a general point of view , the GPE situation continues to be a cause for concern . The NGOs and the representatives of the GPE community continue to report violence on the part of the police and discrimination and state that a negative image of the GPE is spread by the media and a part of the political class .", "[ ... ] ” ." ]

[ "13", "14", "3" ]

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[ "The applicants were born in DATE and DATE respectively and live in Şırnak . They stood for election in the parliamentary elections of DATE as candidates of ORG ( DEHAP ) in the province of PERSON , but neither of them was elected .", "Following the DATE earthquakes , GPE went through CARDINAL serious economic crises in DATE and DATE . There then followed a political crisis , due , firstly , to the state of health of the then Prime Minister and , secondly , to the numerous internal divisions within the governing coalition , a grouping of CARDINAL political parties .", "It was in that context that on DATE ORG of Turkey ( “ the ORG ” ) decided to bring forward the date of the next parliamentary elections to DATE .", "NORP In DATE left - wing political parties , ORG ( HADEP ) , ORG ( ORG ) and ORG ( ORG ) , decided to form a “ ORG ” and to form a new political party , DEHAP . The applicants began their electoral campaign as the new party ’s leading candidates in the province of Şırnak .", "Such pre - electoral alliances had already been formed in DATE : ORG ( MÇP – the successor to and predecessor of the ORG ) and ORG ( ORG ) had secured seats for their candidates by joining the list presented by ORG ) ; and ORG ( HEP – the predecessor of DEHAP ) had won CARDINAL seats in ORG by placing candidates on the list of ORG ( ORG ) . In that way some parties not likely to obtain PERCENT of the national vote sometimes manage to obtain parliamentary representation : they join the list of a larger party and then , once elected , leave it and go their own way , either with independent MPs or under the banner of another party .", "NORP The results of the elections of DATE in the province of PERSON gave the DEHAP list CARDINAL of the CARDINAL votes cast , a score of PERCENT . However , as the party had not succeeded in passing the national threshold of PERCENT , the applicants were not elected . The CARDINAL seats allocated to Şırnak province were shared as follows : CARDINAL seats for the ORG ( ORG ve GPE – the Justice and ORG , a party of the conservative right ) , which had polled PERCENT ( CARDINAL votes ) , and CARDINAL seat for PERSON , an independent candidate who had polled PERCENT ( CARDINAL votes ) .", "Of the CARDINAL parties which had taken part in the elections , only the ORG and the ORG ( PERSON – ORG , a left - wing party ) succeeded in passing the PERCENT threshold . With PERCENT of the votes cast , the ORG won CARDINAL seats , PERCENT of those in ORG . The ORG , which polled PERCENT , obtained CARDINAL seats , or PERCENT of the total . CARDINAL independent candidates were also elected .", "However , not only DEHAP , which polled PERCENT , but many other political parties were unable to obtain seats in ORG . These included ORG ( ORG , centre - right ) , ORG ( ORG , nationalist ) , ORG ( ORG , centrist ) and ORG ( ANAP , centre - right ) , which polled PERCENT , PERCENT , PERCENT and PERCENT of the votes cast respectively .", "The results of these elections were generally interpreted as a huge political upheaval . Not only did the proportion of the electorate not represented in ORG reach a record level in GPE ( PERCENT ) but in addition the abstention rate ( PERCENT of registered voters ) exceeded PERCENT for the first time since DATE . As a result , ORG which emerged from the elections was the least representative since DATE , DATE in which a multiparty system was first introduced . Moreover , for the first time since DATE , CARDINAL parties were represented in ORG .", "To explain ORG unrepresentativeness , some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold . For example , because of the protest - vote phenomenon linked to the economic and political crisis , the CARDINAL parties which had obtained seats in the DATE parliamentary elections DATE including the CARDINAL which had formed the governing coalition DATE were unable to reach the PERCENT threshold in DATE and were accordingly deprived of representation in ORG . Similarly , electoral fragmentation had an effect on the results in that numerous attempts to form pre - electoral coalitions had come to nothing .", "After these elections the ORG , which had an absolute majority in ORG , formed a government .", "In DATE ORG decided to hold early parliamentary elections , choosing CARDINAL DATE as the date . The decision followed a political crisis resulting from ORG ’s inability to elect a new President of the Republic to follow on from PERSON before the expiry of his single DATE term of office , on CARDINAL DATE . In the normal course of events , these elections should have been held on DATE .", "CARDINAL political parties took part in the elections , which were marked by CARDINAL characteristics . Firstly , a strong mobilisation of the electorate was observed following the presidential crisis , since the participation rate rose to PERCENT . Secondly , political parties used CARDINAL pre - electoral strategies to circumvent the national PERCENT threshold . ORG ) took part in the poll under the banner of the ORG , a rival party , and by that means managed to win CARDINAL seats . ORG , pro - NORP , left - leaning ) presented its candidates as independents using the slogan “ CARDINAL hopes ” ; it also supported certain left - wing NORP candidates . This movement was backed by other small left - wing groups such as the LAW , the ORG and the ORG ( the ORG and ORG , socialist ) . CARDINAL independent candidates stood for election in CARDINAL provincial constituencies .", "In the elections the ORG , the ORG and the ORG managed to get over the PERCENT threshold . With PERCENT of the votes cast , the ORG won CARDINAL seats , PERCENT of the total . The ORG , with PERCENT of the votes , won CARDINAL seats , PERCENT of the total ; however , the CARDINAL MPs mentioned in paragraph CARDINAL above subsequently resigned from the ORG and went back to the ORG , their original party . The ORG , which polled PERCENT of the votes , won seventyone seats , or PERCENT of the total .", "The strong showing by independent candidates was CARDINAL of the main features of the elections of CARDINAL DATE . There were none in ORG in DATE but DATE saw them return , when there were CARDINAL . In DATE CARDINAL independent MPs were elected from a national total of CARDINAL independent candidates . In the elections of CARDINAL DATE , CARDINAL independent MPs were elected . In particular , CARDINAL hopes ” candidates were elected , after obtaining PERCENT of the votes cast , and joined the ORG after the elections . The ORG , which had CARDINAL MPs , the minimum number to be able to form a parliamentary group , was thus able to do so . The independents also included a socialist MP ( the former president of the ORG ) , a nationalist MP ( the former president of ORG , nationalist ) and a centrist MP ( the former president of ANAP ) .", "A government was formed by the ORG , which again secured an absolute majority in ORG .", "Article CARDINAL of the LAW , as amended on DATE , provides :", "“ ORG shall have the right to vote , to stand for election , to engage in political activities independently or as members of a political party and to take part in referenda in accordance with the rules laid down by law .", "Elections and referenda shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free , equal , secret and universal suffrage , in a single round of voting , the votes cast being counted and recorded in public . Nevertheless , the law shall make suitable provision for NORP citizens resident abroad to be able to exercise their right to vote .", "Every NORP citizen of DATE of age shall have the right to vote and to take part in referenda .", "Exercise of these rights shall be regulated by law .", "Serving members of the armed forces , officer cadets and persons serving prison sentences , other than those convicted of an unintentional offence , shall be deprived of the right to vote .", "ORG shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres , and those operations shall be conducted in the presence of the competent judge , who shall take charge of and supervise them .", "Electoral laws must reconcile fair representation with governmental stability .", "Amendments to electoral laws shall not be applicable to elections taking place during DATE following their entry into force . ”", "Article CARDINAL of the LAW provides :", "“ Members of ORG of GPE shall represent the whole nation and not the regions or persons which have elected them . ”", "Under the terms of LAW and LAW no . CARDINAL on political parties , a political party which has CARDINAL MPs may form a parliamentary group .", "Law no . CARDINAL on the election of members of ORG , published in ORG on DATE , lays down the rules of the system for parliamentary elections .", "GPE ’s ORG is a single - chamber parliament which currently has CARDINAL members elected to serve for DATE . The elections are held in the constituencies formed by the CARDINAL provinces in a single round of voting . They take place throughout the national territory , on DATE ; suffrage is free , equal , universal and secret . Counting the votes and recording the results is done in public . Each province is represented in ORG by CARDINAL MP . The other seats are allocated in proportion with the local population . Provinces which have CARDINAL MPs form a single constituency ; those with DATE CARDINAL MPs are divided into CARDINAL constituencies ; while GPE , which has CARDINAL seats , is divided into CARDINAL constituencies .", "Section CARDINAL of Law no . CARDINAL provides :", "“ ... [ P]olitical parties may not present joint lists ... ”", "Section CARDINAL of Law no . CARDINAL ( as amended on CARDINAL DATE ) provides :", "“ In a general election parties may not win seats unless they obtain , nationally , PERCENT of the votes validly cast ... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the PERCENT national threshold ... ”", "In allocating seats the D’Hondt system of proportional representation is used . That method DATE under which the votes cast for each list are first divided by a series of whole numbers ( CARDINAL , CARDINAL , DATE , DATE , DATE , etc . ) and seats then allocated to the lists which have the highest quotients DATE tends to favour the majority party .", "Sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . CARDINAL read as follows :", "“ Persons wishing to stand as independent candidates shall deposit with the competent ORG authorities , as a guarantee , a sum equal to the gross DATE salary of a civil servant of the highest rank , and shall place a receipt for payment of that sum in the file presenting their candidature in the parliamentary election . ”", "“ ... if , in a parliamentary election , an independent candidate has not obtained sufficient votes to win a seat , the sum deposited as a guarantee shall be forfeited to the ORG . ”", "Section CARDINAL of Law no . CARDINAL on political parties ( published in ORG of DATE ) provides :", "“ In order to be able to take part in an election , a political party must have a seat in CARDINAL the provinces and have held its general meeting DATE before polling day , or must have a group within ORG . ”", "Section CARDINAL of Law no . PERSON provides :", "“ Political parties are not entitled to assert that there exist within the territory of GPE minorities based on a race , religion , sect , culture or language . ”", "Under the relevant legislation the name of independent candidates is not printed on the voting slips provided near the NORP borders . That means that NORP electors resident abroad may vote for only a political party when using the ballot boxes placed at border crossing - points or large airports . Similarly , whereas political parties have time allocated on television and radio for electioneering broadcasts , independent candidates do not .", "The Constitutional Court ’s case - law on the compatibility of electoral thresholds with the principle of a democratic ORG has been contradictory .", "At first , in a judgment delivered on DATE ( E. CARDINAL/CARDINAL , PERSON CARDINAL ) , ORG held to be contrary to the principle of a democratic ORG the “ ordinary threshold ” introduced by ORG in order to correct the effects of the proportional representation system . This is a threshold which varies in accordance with the number of seats to be filled in each parliamentary constituency . The threshold applied in a constituency is calculated by dividing the number of votes cast by the number of seats to be filled , and seats are awarded only to candidates who pass it . ORG held in particular that such a threshold , which could enable the representatives of a minority of electors to form a government , was likely to hinder the representation of all currents of thought .", "Later , after the adoption of LAW , the Constitutional Court gave its views on the question of electoral systems in a judgment delivered on DATE ( E. CARDINAL , PERSON ) , ruling as follows :", "“ The first paragraph of LAW provides that citizens are entitled to vote and stand for election in accordance with rules laid down by law . However , it does not grant an unlimited margin of appreciation to the legislature . By virtue of LAW , elections are conducted under the administration and scrutiny of the judicial power and according to the principles of free , equal , secret and universal suffrage in a single ballot , the votes being counted and recorded in public . Provided those rules are complied with , the legislature may therefore adopt whatever electoral system it deems most appropriate . If the constituent assembly had had a particular system in mind , it would have adopted a binding rule . As it did not do so , the legislature is free to adopt the system it considers best adapted to the country ’s political and social conditions ...", "Provided that it does not enact measures tending to restrict the free expression of the people , or subject political life to the hegemony of a single party , or destroy the multiparty system , ORG can put in place one of the existing electoral systems . ”", "In a judgment of CARDINAL DATE ( PERSON , PERSON ) , ORG had the opportunity to rule on the constitutionality of section CARDINAL/A of PERSON no . CARDINAL . That section , which referred to section CARDINAL of the same PERSON , also imposed the electoral threshold of PERCENT for the allocation of the seats for ORG members elected in the “ national constituency ” . ORG declared the provisions establishing the national constituency null and void , but held that the PERCENT national threshold could be regarded as compatible with LAW .", "The relevant passages of the judgment read as follows :", "“ ... [ T]he LAW defines ORG as a Republic ... The constitutional structure of the ORG , which is based on national sovereignty , is a product of the nation ’s will , mediated through free elections . That choice , emphasised in the various Articles of the LAW , is set forth clearly and precisely in LAW , entitled ‘ The right to vote , to be elected and to engage in political GPE . Paragraph CARDINAL of LAW , as amended , provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘ fair representation’ and ‘ governmental ORG . The aim is to ensure that the electors’ will is reflected as far as possible [ in ] the legislature . ... [ In order to ] choose the system the methods of which are most conducive to the expression of the collective will and the taking of collective decisions in the legislature , ... enacting the appropriate legislation in the light of the country ’s specific circumstances and the requirements of the LAW , it is necessary to opt for [ the system ] which is most compatible with the LAW or to reject any system incompatible with it .", "The impact of a representative democracy is visible in various fields . The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments . ... Where representation is concerned , the importance attached to fairness is the main condition for governmental stability . Fairness ensures stability . However , the idea of stability , in the absence of fairness , creates instability . The principle of ‘ fair representation’ with which the LAW requires [ compliance ] consists in free , equal , secret and universal [ suffrage ] , with CARDINAL round of voting and public access to the counting of votes and the recording of results , and produces a number of representatives proportional to the number of votes obtained . The principle of ‘ governmental ORG is perceived as a reference to methods designed to reflect votes [ within ] the legislature so as to guarantee the strength of the executive power . The ‘ governmental ORG which it is sought to ensure through the threshold ( described as a ‘ hurdle’ ) , just like ‘ fair representation’ ... , is protected by the LAW . In elections ... importance must be attached to combining these CARDINAL principles , which seem antinomic in certain situations , in such a way [ as to ensure ] that they counterbalance and complement each other ...", "In order to achieve the goal of ‘ governmental ORG , set forth in the LAW , a national [ threshold ] has been introduced ...", "Clearly , the [ threshold ] of PERCENT of the votes cast nationally laid down in LAW of PERSON no . CARDINAL ... came into force with the approval of the legislature . Electoral systems must be compatible with constitutional principles ... , and it is inevitable that some of these systems should contain strict rules . Thresholds which result from the nature of the systems and [ are expressed ] in percentages , and [ which ] at national level restrict the right to vote and to be elected , are applicable [ and ] acceptable ... provided that they do not exceed normal limits ... The [ threshold ] of PERCENT is compatible with the principles of governmental stability and fair representation ... ”", "CARDINAL judges of ORG out of CARDINAL disagreed with the arguments of the majority , considering that the PERCENT national threshold was incompatible with LAW .", "In the same judgment , however , ORG declared null and void an electoral threshold of PERCENT for the allocation of seats within provinces ( provincial threshold ) . Holding that such a threshold was inconsistent with the principle of fair representation , it observed :", "“ Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘ governmental ORG , imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘ fair representation’ . ”", "The elections of DATE , DATE and CARDINAL – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in ORG and the opposition . This imbalance was CARDINAL of the main reasons for the DATE coup ORG . Following the intervention of the armed forces , ORG adopted proportional representation , using the D’Hondt method , to strengthen pluralism and the political system . As a result , the elections in DATE and DATE produced stable majorities in ORG while enabling small parties to be represented . However , in the elections of DATE and DATE the main political movements were unable to establish stable governments , although they had wide electoral support . That period of government instability was marked by the formation of CARDINAL coalition after another , each made fragile by the disproportionate influence of the small parties on government policy .", "Following the military regime DATE , Law no . CARDINAL on the election of members of ORG , enacted on CARDINAL DATE , re - established proportional representation , with CARDINAL electoral thresholds . To the PERCENT national threshold was added a provincial threshold ( the number of electors divided by the number of seats to be filled in each constituency ) ; in DATE ORG declared the provincial threshold null and void . In the DATE parliamentary elections ORG ( ANAP ) obtained an absolute majority in ORG .", "The parliamentary elections of CARDINAL DATE likewise enabled the PERSON , with PERCENT of the vote , to form a stable parliamentary majority . CARDINAL other parties also won seats . In the elections of DATE , CARDINAL parties gained seats in ORG . This result was due in particular to the fact that CARDINAL small political parties ( ORG , ORG and ORG ) had taken part in the elections under the banner of other political parties with the aim of circumventing section CARDINAL of Law no . CARDINAL , which makes it illegal to form joint lists before elections . The government was based on a coalition of CARDINAL parties . In those elections the CARDINAL candidates of the HEP ( ORG , pro - NORP ) were elected to ORG on the list of the ( social - democratic ) ORG ; they later resigned from the ORG to join the ranks of their own party , the ORG .", "In the general election of DATE , CARDINAL parties gained seats in ORG . However , as none of them had a parliamentary majority , a coalition was formed .", "The DATE parliamentary elections again resulted in no party having a parliamentary majority . CARDINAL political parties won seats in ORG . A coalition of CARDINAL parties formed a government .", "Before the election on DATE , DATE which had seen the highest proportion of votes going to parties not ultimately represented in ORG was DATE , with PERCENT of the votes cast . In DATE , owing to the participation of CARDINAL pre - electoral coalitions , CARDINAL between the ORG , the MÇP and the ORG and the other between the ORG and the ORG , that proportion was brought down to PERCENT . After the elections on DATE it was PERCENT .", "As indicated above ( see paragraphs CARDINAL - CARDINAL ) , the elections of DATE enabled the ORG to form a stable government which lasted until DATE , notwithstanding the fact that PERCENT of the votes – CARDINAL votes DATE were not reflected in the composition of ORG .", "ORG has not laid down binding rules on the question of electoral thresholds .", "The relevant part of LAW ( DATE ) on the state of human rights and democracy in LOC , adopted by the ORG on DATE , reads as follows :", "“ CARDINAL . In well - established democracies , there should be no thresholds PERCENT during the parliamentary elections . It should thus be possible to express a maximum number of opinions . Excluding numerous groups of people from the right to be represented is detrimental to a democratic system . In well - established democracies , a balance has to be found between fair representation of views in the community and effectiveness in ORG and government . ”", "In its LAW ( DATE ) on the state of human rights and democracy in LOC , adopted on DATE , the ORG recommended that ORG take measures to remedy the deficiencies noted in the above - mentioned ORG . With regard to electoral thresholds , it recommended that ORG urge member States to :", "“ CARDINAL consider decreasing thresholds PERCENT for parliamentary elections and ... consider the balance between fair representation and effectiveness in ORG and government . ”", "The Code of good practice in electoral matters , adopted by ORG in DATE , emphatically states : “ The CARDINAL principles underlying LOC ’s electoral heritage are universal , equal , free , secret and direct suffrage . ” “ Within the respect of ” those principles , “ any electoral system may be chosen ” .", "The relevant part of ORG Report on electoral law and electoral administration in LOC , of DATE , reads as follows :", "“ [ T]he effects of CARDINAL particular electoral system can be different from country to country , [ and ] we must appreciate that electoral systems can pursue different , sometimes even antagonistic , political aims . CARDINAL electoral system might concentrate more on a fair representation of the parties in ORG , while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of CARDINAL party in ORG . CARDINAL electoral system encourages a close relationship between voters and ‘ their’ constituency representatives , while another makes it easy for the parties to specifically introduce women , minorities or specialists into ORG by way of closed party lists . In some countries , complicated electoral systems are accepted in order to combine several political aims . In other countries , it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate . The appropriateness of an electoral system is determined according to whether it will do justice , bearing in mind the local conditions and problems . In particular , transparency of the elaboration of the list should be ensured . Thus , the electoral system and proposals to reform should be assessed in each individual case . ”", "In its Report on electoral rules and affirmative action for national GPE participation in decision - making process in NORP countries , of DATE , ORG , having analysed the practices of certain member GPE , recommended CARDINAL specific measures to promote the representation of minorities . CARDINAL of the measures concerned have a bearing on the question of electoral thresholds :", "“ ...", "d. Electoral thresholds should not affect the chances of national minorities to be represented .", "e. Electoral districts ( their number , the size and form , the magnitude ) may be designed with the purpose to enhance the GPE participation in the decision - making processes . ”", "The Government referred to the report of the ad hoc Committee for the Observation of Parliamentary Elections in GPE ( DATE ) , produced on DATE . The relevant parts of the report read as follows :", "“ As widely reported by the media , CARDINAL parties only out of CARDINAL found their way into the new ORG [ ORG of GPE ] : the ORG ( ORG and ORG ] ) and ORG ( ORG ) , leaving out all other parties , which had been represented so far in the ORG because they could not meet the PERCENT threshold . The party in government until the elections received PERCENT of the votes . Economic and corruption problems were determining in the elections .", "A clear and absolute majority has emerged with CARDINAL seats for the ORG , CARDINAL seats for the opposition and CARDINAL seats for independent members . ( These independent members are elected in small towns where they have a good reputation . ) It should be recalled that ORG had CARDINAL seats in the previous ORG , and the CHP CARDINAL ( DATE elections ) .", "This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions . On DATE ORG went up by PERCENT .", "However , it also means that PERCENT of the voters have no representation in the ORG .", "The results must thus be considered as a clear protest vote against the ORG as a whole , since none of the CARDINAL parties in the old governing coalition got enough votes for a single seat ! ”", "Paragraphs CARDINAL and CARDINAL of Resolution CARDINAL ( DATE ) on the honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , are worded as follows :", "“ CARDINAL . With regard to pluralist democracy , the ORG recognises that GPE is a functioning democracy with a multiparty system , free elections and separation of powers . The frequency with which political parties are dissolved is nevertheless a real source of concern and the ORG hopes that in future the constitutional changes of DATE and those introduced by the DATE legislation on political parties will limit the use of such an extreme measure as dissolution . The ORG also considers that requiring parties to win PERCENT of the votes cast nationally before they can be represented in ORG is excessive and that the voting arrangements for NORP citizens living abroad should be changed .", "...", "The ORG therefore invites GPE , as part of its authorities’ current reform process , to :", "...", "ii . NORP amend the electoral code to lower the PERCENT threshold and enable NORP citizens living abroad to vote without having to present themselves at the frontier ;", "... ”", "The relevant parts of the Report on observation of the parliamentary elections in GPE , produced by an ad hoc ORG of ORG , read as follows :", "“ XII . Conclusions and recommendations", "NORP The parliamentary elections in GPE , on DATE , were generally in compliance with GPE ’s ORG commitments and NORP standards for free elections .", "NORP Overwhelmingly , the voting was well organised and conducted in an orderly and professional fashion , which testifies to a long - standing tradition of democratic elections in GPE .", "The high voter turnout shows that confidence in the democratic process exists in GPE .", "Electoral administrators at all levels dispatched their duties effectively and in good faith .", "NORP However , the Rapporteur believes that GPE could do more in terms of organising even better elections that would guarantee a genuinely representative parliament . The PERCENT threshold requirement could be lowered , in accordance with ORG ) and DATE ( DATE ) . The fact that the new ORG elected on DATE is far more representative than the outgoing ORG , representing PERCENT of the opinions of the electorate , is due to the fact that CARDINAL instead of CARDINAL parties are represented and to the ploy of opposition parties to launch party - sponsored independent candidates and not to any steps taken by the NORP authorities themselves .", "The NORP authorities may wish to consider seizing ORG on this issue , as well as on simplifying electoral legislation . ”", "NORP Moreover , in reply to a question from a parliamentarian following his address to ORG on DATE , the President of GPE said that the PERCENT threshold met a real need , but might in due course be dispensed with ( see the verbatim record of the sitting on DATE ) . The relevant parts of his reply read as follows ( Registry translation of summary in NORP in the verbatim record of the sitting on DATE ) :", "“ PERSON explained that the PERCENT threshold had been introduced to remedy the instability of DATE , in which there had been a large number of coalition governments in close succession . The threshold did not prevent independent candidates from standing . In the latest parliamentary elections , in DATE , voter turnout had been PERCENT , which showed how representative ORG was . Now that political stability had been restored the PERCENT threshold could be reconsidered . ”", "Although there is no uniform classification of types of ballot and electoral systems , it is usual to distinguish CARDINAL main types : majority vote systems , proportional systems and mixed systems . In majority vote systems , the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting . This type of ballot makes it possible to vote in governments with clear parliamentary majorities , but at the same time it militates against the representation of minority political parties . Thus , for example , in GPE the use over DATE of a single round of voting in a single - member majority vote system ( “ first past the post ” ) , combined with the existence of CARDINAL dominant political parties , has had the effect of giving few seats to other parties in relation to the number of votes that they obtain . There are other similar cases , in GPE for instance , where there is a majority vote system spread over CARDINAL rounds of voting . At the opposite extreme , the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats . Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces . However , the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities .", "NORP Currently , proportional systems are the most widely used in LOC . By way of example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE have opted for CARDINAL or other variant of proportional representation . There are also mixed systems containing various combinations of the CARDINAL types of ballot ( in GPE , GPE and GPE , for example ) .", "In some proportional systems statutory thresholds are used to correct the negative effects of proportional voting , and in particular to ensure greater parliamentary stability . These thresholds , generally expressed as a percentage of the votes cast , are “ limits , fixed or variable , defined in terms of the electoral result , which determine the share of a list or candidate in the distribution of seats ” . However , the role played by thresholds varies in accordance with the level at which they are set and the party system in each country . A low threshold excludes only very small groupings , which makes it more difficult to form stable majorities , whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation .", "Analysis of the electoral thresholds adopted in the member GPE which have proportional representation shows that CARDINAL States have opted for high thresholds : GPE has the highest , at PERCENT ; GPE has an PERCENT threshold ; and GPE and GPE a PERCENT one . CARDINAL of the States impose a PERCENT threshold and CARDINAL of them have chosen a lower figure . The other member GPE ( CARDINAL in number ) do not use thresholds . Moreover , in several systems the thresholds are applied only to a restricted number of seats ( in GPE and GPE , for example ) . Thresholds for parties and thresholds for coalitions may be set at different levels . In GPE , for example , the threshold for CARDINAL party is PERCENT , whereas in the case of a coalition it is raised by PERCENT for each of the constituent parties . In GPE , the threshold for coalitions is PERCENT whatever the number of constituent parties . There are similar variations among the thresholds for independent candidates : in GPE , for example , the relevant threshold is PERCENT ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "On DATE the applicant instituted proceedings in ORG against ORG , her former employer , seeking recovery of salary arrears and compensation for unused leave .", "On DATE the court rejected the applicant ’s claims as unsubstantiated .", "On DATE the ORG of Appeal quashed that judgment and remitted the case to the first - instance court for fresh consideration .", "On DATE the first - instance court left the applicant ’s claims without consideration , holding that she had repeatedly failed to appear at court hearings .", "On DATE the court of appeal quashed that decision , finding that there was no proof that the applicant had been duly informed about the date and place of the first instance court ’s hearing , and remitted the case to the first instance court for consideration on the merits .", "On DATE the court ordered modification of the record concerning the applicant ’s dismissal and ordered the respondent to pay her certain sum , having rejected the remainder of her claims . On DATE ORG upheld that judgment .", "On DATE ORG rejected the applicant ’s appeal in cassation .", "Out of CARDINAL hearings scheduled in the applicant ’s case CARDINAL were adjourned due to the applicant ’s absence or upon her request , CARDINAL hearings were adjourned due to the absence of the respondent or his representative or upon their requests , CARDINAL were adjourned due to both parties’ failure to appear . CARDINAL hearings were adjourned due to the judge ’s illness , CARDINAL were adjourned due to the judge ’s absence , and CARDINAL was adjourned due to the liquidation of the court dealing with the applicant ’s case ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , an appeals tribunal representative in PERSON . The ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits , namely ORG and ORG . On DATE 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 DATE . 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 GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "PERSON , a NORP national , is an aeronautical engineer . At the material time he was a captain in the air force .", "As the officer in charge of a project for the design and production of a guided missile , he submitted , in DATE , a report to ORG ( \" K.E.T.A. \" ) on the missile on which he had been working . In DATE he communicated to a private company ( \" ORG \" ) another technical study on guided missiles , which he had prepared himself .", "On DATE a chamber of ORG of GPE ( PERSON ) charged the applicant and another person with disclosing military secrets ( LAW , see paragraph CARDINAL below ) .", "On DATE the court found PERSON guilty of having transmitted to PERSON a series of CARDINAL items of information together with \" all the technical and theoretical data \" appearing in the GPE report . It sentenced him to DATE and CARDINAL months’ imprisonment .", "The applicant and the prosecutor at ORG ( PERSON tou PERSON ) appealed from that judgment .", "Following a hearing held on DATE and DATE , ORG appointed CARDINAL experts - professors at ORG - who , with CARDINAL other experts , designated by the applicant , compared the CARDINAL studies .", "In their report of CARDINAL DATE the CARDINAL professors concluded as follows :", "\" ... in our opinion , the CARDINAL studies , for the GPE and PERSON , follow different methods , the CARDINAL missiles are different and the second is not a copy of the first ... . Nevertheless , some transfer of technical knowledge inevitably occurred ... . It is not possible to determine the extent of such transfer beyond what is mentioned above under ( b ) , ( c ) and ( d ) , because the PERSON study and even more so the GPE report were shoddily drafted and were full of imprecisions and omissions ; it should be stressed that in both studies the aerodynamic data are erroneous ... \"", "They noted that PERSON had some technical knowledge , acquired during his studies in GPE . However , his participation in the GPE project had enriched his experience . The components of the missile and some of the theoretical data contained in the CARDINAL studies could be found in various manuals included in the file and regarded as \" available literature \" . These manuals were not classified as \" secret \" , but it was not established that they were accessible to private individuals .", "At a new hearing held on DATE and CARDINAL DATE ORG took evidence from CARDINAL witnesses on whether the CARDINAL studies contained common data , whether the information which had formed the basis of the studies was freely available in scientific literature and whether the GPE study had been classified as a \" military secret \" .", "After the hearing ORG deliberated in private and considered the following questions formulated by its President :", "\" CARDINAL . Is PERSON guilty of having , between DATE , unlawfully and intentionally communicated and disclosed to third parties military plans and information classified as secret and which had to remain secret in the military interests of ORG ? [ In particular , is he guilty of having ] ... , in DATE , after having contacted the company ORG ... with a view to preparing and drawing up for the latter ’s benefit a study on guided missiles , for a financial consideration to be agreed with the said company when the work was in progress , unlawfully and intentionally , ( a ) communicated to the above - mentioned company general information concerning the guided missile which was being designed at the GPE and its technical characteristics , although as project officer for the K.E.T.A. missile he knew that such information was secret and that the military interests of ORG required that it be kept secret ; ( b ) transmitted to the same company several elements deriving from the study , relating to the project and on the same subject - matter , of the GPE and from the whole production programme of the NORP guided missile ( \" laser kit \" ) which existed at the centre and which concerned principally the dimensional diagram of the missile , its external geometry , its perimetric plan , its aerodynamic elements , its Nd - YAG laser type , its dynamic model , its dome , its schematic diagram , its seeker ’s fairing , its basic electronics data , as well as any other theoretical or technical elements contained in the ELFON Ltd study ... , which was elaborated entirely on the basis of the information transmitted and disclosed by him to the company and derived from the corresponding GPE project and study , although he knew , in his capacity as project officer ... , that the information was secret and that the military interests of ORG required that it be kept secret ?", "Has it been established ... that , when he disclosed these military secrets , the accused believed , erroneously , that he was entitled to proceed in such a way or [ , on the other hand , ] that he reasonably believed that , having drawn up the GPE study and used his own knowledge , he was entitled to elaborate a new study and submit it through the intermediary of the company ORG to ORG ? Was this belief justifiable ?", "Has it been established ... that the military secrets thus disclosed , namely the general information which [ the accused ] communicated to the PERSON company concerning the guided missile ... and its technical characteristics , were of minor importance ?", "Should certain factors be taken into account in mitigation , namely that , prior to committing the above- mentioned act , the accused had led an honest and well - ordered private , family and professional life ?", "... \"", "According to the record of the deliberations , the Courts- ORG replied in the affirmative to questions CARDINAL ( a ) ( CARDINAL votes to CARDINAL ) , CARDINAL and DATE ( unanimously ) and in the negative to questions CARDINAL ( b ) ( CARDINAL votes to CARDINAL ) and CARDINAL ( CARDINAL votes to CARDINAL ) .", "Giving judgment in PERSON presence on DATE , it sentenced him for disclosure of military secrets of minor importance ( Article CARDINAL para . CARDINAL of LAW , see paragraph CARDINAL below ) to a suspended term of CARDINAL months’ imprisonment , from which it deducted DATE and DATE which he had spent in detention on remand .", "The President of ORG read out the judgment , which did not refer to the questions put to the members of the court .", "In order to obtain the text of these questions and the replies given , the applicant asked , on DATE , to see the record of the hearing . The registrar allegedly told him that he would have to wait for the \" finalised version \" of the judgment .", "On DATE - within DATE prescribed in LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) - PERSON appealed to ORG ; in his appeal , which was a page long , he alleged \" the erroneous application and interpretation of the provisions under which he [ had been ] convicted , namely Article CARDINAL para . CARDINAL of LAW \" .", "He received a copy of the appeal judgment on DATE ; it was very short and did not state the grounds on which it was based , merely referring to the fixing of sentence .", "On DATE the applicant again demanded that the record be communicated to him ; he received it on DATE . This document , which was detailed and reproduced in full the CARDINAL questions and the replies obtained , ended as follows :", "\" ...", "The ORG , by CARDINAL votes to CARDINAL ... , finds the accused NORP guilty of disclosing military secrets , which offence was committed in GPE DATE .", "By CARDINAL votes to CARDINAL ... , the ORG dismisses the defence request that LAW para . CARDINAL of LAW ( not guilty in the event of mistake ) be applied .", "The ORG unanimously accepts that the military secrets communicated are of minor importance .", "The ORG unanimously accepts the factors pleaded in mitigation ( Article CARDINAL para . CARDINAL ( a ) of LAW ) .", "Having regard to the following Articles : ... Article CARDINAL para . CARDINAL taken in conjunction with paragraph CARDINAL and with LAW ) ... , Articles CARDINAL , CARDINAL ... of LAW , ... ;", "... having regard to the gravity of the acts carried out , to the accused ’s personality , to the damage caused by the offence , to the specific nature of the offence , to the specific circumstances under which the offence was committed , to the degree of criminal intent on the part of the accused , to his character , to his personal and social situation , and to his conduct before and after the commission of the offence ;", "The ORG sentences the accused to CARDINAL months’ imprisonment and orders him to pay the costs ...", "It deducts from the above - mentioned term ... DATE and DATE spent in detention on remand and sets at DATE the term still to be served .", "In view of the fact that the accused has no previous convictions and has never been sentenced to prison , and having regard to the circumstances under which the offence was committed , the ORG considers it appropriate to suspend the remainder of the sentence ...", "For these reasons ,", "Having regard to Articles CARDINAL , CARDINAL and ORG of LAW ,", "The ORG orders that the outstanding term of imprisonment be suspended for DATE .", "... \"", "The hearing in ORG ( PERSON ) took place on DATE .", "On DATE Mr PERSON filed a memorial in support of his oral pleadings . In his submission the wording of his appeal was sufficient to rule out any danger of its being dismissed for lack of precision . He complained of the shortness of the time - limit for appealing against the decisions of the military courts and the fact that it was impossible for the persons concerned to gain access , in good time , to the contents of the contested judgments . He also challenged the ground on which his conviction rested : the communication of \" general information \" on the K.E.T.A. missile , the charge which ORG found to be proved , did not justify the application of LAW as that provision concerned the disclosure of secret information of military importance , a charge of which ORG had acquitted him by its reply to question CARDINAL ( b ) ( see paragraph CARDINAL above ) . In his view , at the most his case might fall under LAW ( see paragraph DATE below ) .", "On DATE ORG declared the appeal inadmissible on the following grounds :", "\" By the appeal before the ORG ... , in which it is sought to have judgment no . CARDINAL of ORG set aside , the [ applicant ] challenges the aforesaid judgment on the ground of erroneous application and interpretation of the provisions under which he was convicted , namely LAW para . CARDINAL of LAW . However , this sole ground of appeal , as formulated above , is vague inasmuch as it does not identify any concrete and specific error in the contested judgment which could constitute the basis of the complaint alleging the erroneous application and interpretation of the above - mentioned provision ; the appeal must therefore be declared inadmissible by virtue of Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of the Code of Criminal Procedure . \"", "LAW provides as follows :", "\" Communication of military information", "Any serviceman or any person employed by the armed forces who , without the consent of the military authorities , communicates or makes public by any means whatsoever information or assessments concerning the army shall be sentenced to a term of imprisonment not exceeding DATE . \"", "\" Disclosure of military secrets", "Any serviceman or any person employed by the armed forces who unlawfully and intentionally gives or communicates to others documents , plans , or other objects or secret information of military importance or allows such documents , plans , objects or information to be given or communicated to others , shall be sentenced to a term of imprisonment ( katheirxi ) , or , where the above has been given or communicated to a foreign ORG or to an agent or a spy of a foreign ORG , to dishonourable discharge and death .", "... where the [ information ] communicated is of minor importance , the convicted person shall be sentenced to a term of imprisonment ( filakisi ) of not DATE ... \"", "\" Secret information", "‘ Secret information of military importance’ means information concerning ORG or its allies which relates to :", "...", "( e ) any object officially classified as secret .", "... \"", "The relevant provisions of LAW are worded as follows :", "\" All court judgments must be specifically and thoroughly reasoned and shall be pronounced in a public sitting ... \"", "\" ...", "Special laws may provide for :", "( a ) Questions relating to the army , navy and air force tribunals , which shall have no jurisdiction over civilians .", "( b ) Questions relating to prize courts .", "The courts specified under sub - paragraph ( a ) of the preceding paragraph shall be composed of a majority of members of the judicial branch of the armed forces , who enjoy the guarantees of independence , as regards their person and their office , provided for in LAW para . CARDINAL of the present LAW . The provisions of paragraphs LAW CARDINAL of Article CARDINAL shall be applicable to the hearings and judgments of these courts . The detailed rules for the implementation of the provisions of the present paragraph and the date of their entry into force shall be specified by statute . \"", "According to the consistent case - law of ORG , the failure to give reasons in the decisions of the military courts does not render them void . The application to these courts of Article CARDINAL para . CARDINAL of the LAW requires , under the terms of Article CARDINAL para . CARDINAL , the adoption of special laws , and this has not yet happened ( judgments FAC . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL/CARDINAL ( PERSON DATE , p. CARDINAL ) and DATE ) . It is sufficient that such a decision answers the questions put by the President ; the questions must indicate accurately all the offences of which the defendant is accused so as to make it possible for a subsequent review by ORG to ensure that the provisions of the criminal law have been properly applied to the facts in question as found by the military courts of first or second instance ( judgments ORG . CARDINAL and DATE ) .", "The following texts are relevant here :", "\" Formulation of questions . Principal question", "The President shall put the questions concerning each accused .", "The principal question shall be based on the operative part of the committal decision ... and shall include the question whether the accused is guilty ... as charged ... \"", "\" Supplementary questions ( GPE zitimata )", "In order to supplement the principal question or the alternative question , supplementary questions may be put concerning the accusation and factors aggravating , mitigating or expunging ( exalipsin ) the offence . \"", "\" Time - limit", "Any appeal to ORG ( anairesi ) must be filed within DATE of the delivery of the judgment or , where the judgment has been delivered in the absence of the person convicted or his representative , of its notification ... \"", "\" Grounds for appeal to ORG", "Only the following grounds of appeal may be relied upon :", "...", "( B ) The erroneous application or interpretation of the substantive provisions of the criminal law . \"", "LAW provides , inter alia , as follows :", "\" Time - limit for appealing", "The time - limit for filing an appeal with ORG begins to run on the date on which the final text of the judgment is entered into the register of the criminal court in question . It shall be so entered within DATE , failing which the President of the criminal court shall be liable to disciplinary sanctions . \"", "\" PERSON for an appeal to ORG", "In addition to the grounds invoked in the appeal ... , further submissions may be made in a supplementary memorial , which must be lodged with the office of the principal public prosecutor at ORG not DATE before the hearing ... ; once this time - limit has expired such memorials shall be inadmissible ... \"", "According to the case - law of ORG ( judgments FAC . TIME ( PERSON DATE , p. CARDINAL ) , DATE , CARDINAL/CARDINAL ( PERSON DATE , p. CARDINAL ) and CARDINAL/CARDINAL ) , Article CARDINAL para . CARDINAL of LAW does not apply to appeals on points of law from the decisions of the military courts , as the time - limit for such appeals is fixed by LAW ( see paragraph CARDINAL above ) .", "The grounds of appeal to ORG must be set out in the initial appeal memorial . As regards \" the erroneous application and interpretation of the substantive provisions of the criminal law \" , the appeal must specify clearly the errors which are alleged to have been made in the contested judgment ( judgments nos . CARDINAL , TIME , DATE ( PERSON DATE , p. DATE ) and DATE , as well as the judgment given by ORG in the present case ) .", "Finally , supplementary submissions may be taken into account only if the initial appeal memorial sets out CARDINAL ground which is found to be admissible and sufficiently substantiated ( judgments nos . CARDINAL , CARDINAL/CARDINAL , ORG , DATE , CARDINAL , ORG ( PERSON , p. CARDINAL ) , CARDINAL , DATE and DATE ) ." ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-b" ]

[ "10" ]

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[ "The applicant is a GPE national , born in the GPE in DATE . He is in prison in GPE ( the GPE ) . He was formerly resident in the town of GPE .", "He is represented before the ORG by Ms Ties Prakken , a lawyer practising in GPE .", "A." ]

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[ "On DATE , the applicant sold a horse to ORG DATE the buyer returned the horse claiming that it was ill . The applicant was therefore forced to pay the costs of the horse ’s upkeep during DATE . As ORG constantly refused to take the horse back , the applicant sold it to another buyer , as he could not afford the costs of upkeep .", "On DATE ORG lodged a suit against the applicant with ORG , claiming payment of the price .", "On DATE the applicant lodged a counter - claim for costs of the upkeep of the horse .", "During the first hearing on DATE the court admitted witness evidence and adjourned the case .", "On DATE the court heard witnesses and adjourned the case .", "On CARDINAL DATE the court admitted in evidence an opinion of a veterinary surgeon and adjourned the case .", "On DATE the expert submitted the opinion , stating that the horse was well and had never been ill .", "On DATE the court called an expert in agriculture , who estimated that the costs of upkeep of the horse had greatly exceeded its value . The court adjourned the case .", "On DATE the court heard the parties .", "On DATE the court delivered a judgment . Both parties appealed .", "On DATE ORG returned the case file to ORG to have it completed .", "On DATE ORG quashed the first - instance judgment and remitted the case for re - examination .", "On DATE the parties declared that they could not reach a friendly settlement .", "On DATE the court admitted the evidence of a witness and adjourned the case .", "On DATE a witness was heard and the case was adjourned .", "On DATE further witnesses were heard .", "On DATE the court admitted in evidence another expert ’s opinion .", "On DATE the expert submitted the opinion .", "On DATE the court summoned the expert and adjourned the case .", "On DATE the court found that the plaintiff had not paid an advance for the expert ’s opinion and adjourned the case until DATE . The expert failed to attend the hearing on DATE and the case was adjourned until DATE .", "On DATE ORG delivered a judgment , ordering ORG CARDINAL,CARDINAL to be paid by the applicant with interest from DATE , and CARDINAL PLN to be paid by ORG to the applicant .", "On DATE ORG dismissed the appeals of both parties .", "Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .", "In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :", "“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”", "Article CARDINAL of LAW , as applicable until DATE , provided for the following exception in cases where damage resulted from the issue of a decision or order :", "“ CARDINAL . If , in consequence of the issue of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person .", "The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of the [ statutory ] exception to prosecution or disciplinary actions . ”", "On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments have in essence been aimed at enlarging the scope of ORG liability for tort under LAW of LAW – which included adding a new LAW tortious liability for its omission to enact legislation ( the so - called “ legislative omission ” ; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings .", "Following LAW , Article DATE , in so far as relevant , reads as follows :", "“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”", "NORP However , under the transitional provisions of LAW , LAW as applicable before DATE shall apply to all events and legal situations that subsisted before that date .", "On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of Article CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW .", "On DATE the Constitutional Court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage with the personal culpability of the state official concerned , established in criminal or disciplinary proceedings .", "On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :", "“ The elimination of LAW from the legal system ... means that ORG liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the ORG liability laid down in LAW . This , however , does not rule out the application in the present legal system of other , not necessarily only those listed in LAW , principles of the ORG liability laid down in specific statutes . ”", "On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .", "A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with LAW .", "Article CARDINAL , in so far as relevant , reads as follows :", "Article CARDINAL provides , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Article CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of Article CARDINAL in the following terms :", "“ A party which has not lodged a complaint about the unreasonable length of the proceedings under LAW ) may claim – under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended . ”", "Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :", "“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage had occurred . ”", "DATE Act lays down the following transitional rules in relation to the applications already pending before the Court :", "“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .", "A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .", "The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant bought part of a plot of land ( plot no . CARDINAL ) in LOC of GPE . In implementation of a reconstruction plan ( imar şuyulandırılması ) , on DATE a part of the applicant 's plot ( QUANTITY m. ) was joined to another plot which had been used by ORG since DATE . This plot was given the number CARDINAL/CARDINAL and registered in the applicant 's name .", "NORP Since this land was occupied by ORG , the applicant filed various petitions requesting the ORG to expropriate it . On DATE the ORG informed the applicant that her land would be expropriated in DATE .", "On DATE , relying on LAW no . ORG , ORG lodged an application with ORG for the annulment of the title deed of the applicant to plot no . CARDINAL/CARDINAL and its registration in the ORG 's name . In response , the applicant lodged an application with the same court for compensation for the de facto expropriation . On an unspecified date , the case files were joined .", "NORP Before the court , ORG submitted that it had occupied the disputed plot of land since DATE and that , therefore , it should be registered under its name pursuant to LAW no . ORG . In reply , the applicant stated that the date of de facto expropriation in respect of her plot of land was DATE and that , therefore , LAW no . ORG was not applicable in her case .", "On DATE ORG annulled the title deed of the applicant and ordered that the land be registered in the name of the ORG . The court dismissed the applicant 's request for compensation on the ground that it was time - barred . It held that ORG had had de facto possession of the property in question since DATE , and that the applicant should have brought a case within DATE from this date in accordance with LAW no . ORG .", "On DATE ORG upheld the judgment of the first - instance court . The applicant 's request for the reversal of its decision was dismissed by ORG on DATE . The applicant was notified of this decision on DATE .", "A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

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[ "The applicant was born in DATE . He is currently serving a prison sentence .", "On DATE a criminal investigation was started in respect of the murder of a taxi driver whose body had been found DATE in a forest . His car had been set on fire .", "On DATE the criminal investigation was suspended as the identity of the perpetrator could not be established .", "On DATE the investigation was resumed , PERSON being a suspect . On DATE the applicant was interviewed as a witness . He said that he had not used a taxi to get from GPE to GPE in DATE , had not sold a mobile phone to F. and had heard nothing about the murder of a taxi driver from GPE . The interview lasted for TIME .", "On DATE the investigation was again suspended .", "On DATE a resumption of the investigation was ordered .", "Also on DATE the chairperson of ORG ( halduskohus ) authorised the installation of covert listening devices in T. ’s home and covert audio recording of conversations . The authorisation was for a DATE period and remained valid until DATE . According to a report concerning the surveillance activity , on CARDINAL DATE the applicant and T. talked about the murder of the taxi driver .", "On DATE a police investigator drew up a decision by which the offence , initially qualified as manslaughter , was requalified as murder . PERSON and the applicant were identified as suspects . The investigator ordered that they should be taken to the police station the following day .", "On DATE the investigator requested that the applicant and PERSON be detained in case they attempted to leave the country .", "On DATE the police attempted to arrest the applicant , who was not at home . His neighbour had not seen him for DATE .", "On DATE the investigator drew up charges against the applicant . He was charged , together with PERSON , with murder , aggravated robbery and destruction of property . According to the charges the offences had been committed on TIME CARDINAL DATE . As the applicant was evading the criminal investigation , he was declared a fugitive and the investigation was suspended .", "Also on CARDINAL DATE ORG ( maakohus ) authorised , at the investigator ’s request , the applicant ’s detention for DATE after his arrest .", "On DATE a criminal investigation was started in respect of T. , who was charged with failure to report the murder of the taxi driver .", "On DATE the applicant was arrested .", "On DATE he was presented with the charges drawn up on DATE .", "On DATE ORG ( linnakohus ) authorised his detention for DATE . Subsequently , the court regularly extended his detention ( on DATE and on DATE , DATE , CARDINAL May , CARDINAL DATE and CARDINAL DATE ) .", "In the meantime , on DATE , the criminal case concerning the failure by T. to report a crime was joined to the case in which the applicant and PERSON were defendants .", "On DATE the bill of indictment was drawn up and the criminal case file was sent to ORG .", "By a decision of CARDINAL DATE ORG committed the applicant for trial together with PERSON and GPE applicant and PERSON were charged with murder and destruction of property ; PERSON was charged with failure to report a crime . ORG endorsed the preventive measures previously applied in respect of the defendants : it extended the applicant ’s detention and PERSON ’s prohibition on leaving his place of residence . No preventive measure was applied in respect of T. as he was serving a DATE prison sentence at the time .", "Hearings at ORG and ORG , which was dealing with the case after a reorganisation of the court system , were scheduled for DATE both in DATE and DATE . Of these ten hearing days , scheduled hearings were adjourned on QUANTITY occasions , mainly because of the illness of a judge or a lay judge and because of the failure of witnesses to appear in court . In DATE the judge hearing the case died . The court proceedings were recommenced with another judge . On DATE the presiding judge withdrew from hearing the case as he had ordered the applicant ’s detention at an earlier stage of the proceedings . On the same date another judge withdrew for the same reason . The case was then assigned to the fourth judge , who conducted the proceedings until the end .", "NORP In DATE and DATE court hearings were scheduled for DATE . In fact , hearings took place on DATE and were adjourned on CARDINAL occasions for reasons such as the illness of the judge , the prosecutor and a lawyer and , on QUANTITY occasions , the failure of witnesses to appear .", "On DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE ORG rejected the applicant ’s request to release him and to apply a signed undertaking not to leave his place of residence as the preventive measure instead of detention . The courts noted that the applicant was charged with a serious offence ; he had been in hiding for a long time ( from DATE to DATE ) , during which time he had been well aware that the police were looking for him . However , he had gone to GPE and had returned , crossing the border illegally , DATE , because his NORP visa had expired . The courts also found that the applicant had no close ties in GPE as he was a stateless person , was not married and had no family . It was considered that in view of the severe punishment the applicant was facing according to the charges , there were grounds to believe that he could again abscond . The courts also considered that it was not excluded that if at liberty the applicant could exert pressure on the victim and witnesses .", "On DATE the ORG delivered its judgment . The applicant , together with PERSON , was convicted of murder and destruction of property . He was sentenced to DATE and CARDINAL years’ imprisonment respectively ; the composite sentence for the CARDINAL offences was set at DATE . The time spent in detention was counted towards the sentence already served . The preventive measure applied in respect of the applicant was not amended – he was to remain in custody until the judgment became final .", "On DATE ORG decided to terminate the criminal proceedings against T. due to inappropriateness of the penalty , as he had been convicted in another criminal case and a composite sentence of CARDINAL years’ imprisonment had been imposed on him .", "The applicant appealed against ORG judgment , referring , inter alia , to a violation of the reasonable time requirement enshrined in LAW . He also pointed out that he had been in detention for DATE and DATE .", "By a judgment of DATE ORG ( ringkonnakohus ) quashed ORG judgment in so far as the punishment was concerned . ORG referred to LAW and noted that what was reasonable for the lengthconsidered that failure to conduct criminal proceedings within a reasonable time did not necessarily require the person ’s acquittal ; depending on the circumstances it could also be proportionate to terminate criminal proceedings for reasons of inappropriateness or to take unreasonable length of proceedings into account in the imposition of a punishment . ORG found that the criminal proceedings in the present case had lasted for DATE and DATE . It considered it “ not unimportant ” that the applicant had been kept in detention for DATE . It held that the proceedings had not been conducted within a reasonable time . Considering the above , ORG found it appropriate to reduce the applicant ’s sentence . He was sentenced to DATE imprisonment for murder and DATE imprisonment for destruction of property and the composite sentence was set at DATE .", "On DATE ORG ( NORP ) declined to hear the applicant ’s appeal .", "Article CARDINAL of the Code of Criminal Procedure ( ORG seadustik ) provides that a ruling whereby a court reviews the well - foundedness of pre - trial detention is not subject to a separate procedural appeal . According to Article CARDINAL § CARDINAL of the Code , such a ruling can be challenged in an appeal against the judgment in the main proceedings .", "In a decision of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG of ORG dealt with a complaint concerning length of criminal proceedings . It rejected the complaint , considering that the complainant could have had recourse to another effective remedy . ORG held :", "“ CARDINAL . The Chamber is of the opinion that [ the complainant ’s ] right to proceedings within a reasonable time has been violated and that [ the complainant ] is entitled to submit a relevant complaint as part of the proceedings pending before ORG . The court is under the obligation to adjudicate such a complaint at any stage of proceedings , not only when rendering a judgment . If necessary , the court must proceed from the LAW and the practice of application thereof , which DATE pursuant to LAW constitute a source of criminal procedural law . The LAW is an international agreement ratified by the PERSON , which – proceeding from LAW has priority over NORP laws or other legislation ( see ORG en banc judgment of DATE in case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL – RT III CARDINAL , CARDINAL , CARDINAL , § DATE ) .", "According to the case - law of ORG case - law , in particular the complexity of the case , the applicant ’s conduct and the conduct of the competent authorities ( see , for example , PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR DATE ) . ORG , too , has pointed out that upon assessing whether a reasonable time has been exceeded a court must take into account the gravity of the criminal offence , the complexity and volume of the criminal case , and other concrete circumstances , including the course of proceedings ( see ORG judgment of DATE in case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL – RT III CARDINAL , CARDINAL , DATE , § DATE ) .", "If the court comes to the conclusion that [ the complainant ’s ] right to proceedings within a reasonable time has been violated , the court can , in the light of all the circumstances and on the basis of LAW , terminate criminal proceedings due to inappropriateness , render a judgment of acquittal or take the fact that reasonable time was exceeded into account upon imposition of punishment .", "As regards the referred possibilities ORG has pointed out that the expiry of reasonable length of criminal proceedings need not necessarily and always bring about the acquittal of a person . Depending on the circumstances a proportional result of the expiry of reasonable time of criminal proceedings may be , for example , the termination of criminal proceedings for reasons of inappropriateness or taking the referred fact into account upon imposition of punishment ( see FAC judgment of DATE in case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL – RT III CARDINAL , CARDINAL , DATE , § CARDINAL ) . With regard to taking into account the unreasonable length of proceedings upon imposition of punishments ORG has pointed out that on the basis of LAW and pursuant to LAW the courts have the right to impose a less onerous punishment than the minimum term or rate provided by law ( see ORG judgment of DATE in case no . DATE not yet published in RT III , § CARDINAL ) .", "...", "In the examination of [ the complainant ’s ] request for compensation for the damage caused by the violation of fundamental rights , the ORG agrees with the opinion expressed in the written opinions of the participants in the proceeding that [ the complainant ] can demand compensation for damage in an administrative court on the bases and pursuant to the procedure established in LAW . ”" ]

[ "5" ]

[ "5-3" ]

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[ "The application was lodged by CARDINAL applicants , namely Mr PERSON and Mr PERSON , both NORP nationals , PERSON , a NORP national , and PERSON PERSON Dennis Bell , a national of GPE . They were born in DATE , DATE , DATE and DATE respectively . They are represented before the ORG by PERSON Menno T. Kamminga , professor of law .", "The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .", "In DATE ORG conducted , with CARDINAL of its vessels FAC and ORG , registered in the GPE , and fast rubber dinghies stationed on board the ships , a campaign against NORP whaling in the exclusive economic zone south - west of LOC . The first applicant was Director of ORG in the GPE , and formally in charge as campaign leader on board the Solo as from DATE . The other CARDINAL applicants were respectively captain , deckhand and assistantengineer on board that vessel . For a month they followed the movements and catching activities of a whaling ship , the PERSON . According to its captain , the campaign had had as a consequence that the hunt was prolonged by a fortnight . The PERSON was the only vessel pursuing whales in the area in question on DATE , the dates on which the incidents giving rise to the present case occurred .", "The Solo arrived in the area where the PERSON was hunting in TIME DATE , just after the ORG had been put under arrest by the ORG ) . TIME a whale was shot from the PERSON . While it was lying on deck being cut up , a new whale was observed . The PERSON then manned the harpoon gun and followed the whale . This was observed by the applicants on board the Solo . Shortly thereafter , a dinghy was launched from the LAW and positioned in front of the bows of the PERSON where it drove in zigzag and otherwise consistently manoeuvred towards the last place where the whale had been seen on the surface .", "The Coastguard forced the dinghy away , and the Solo therefore launched another one with the third and fourth applicants on board , together with a camera man from a NORP television company . The ORG seized the second dinghy immediately but the third and fourth applicants were allowed to board the Solo again . They then launched a third dinghy ( this time without the cameraman ) on the other side of the Solo , unhindered by the FAC . The third applicant was navigating and she manoeuvred the dinghy up to the starboard side of the PERSON , then alongside until it was positioned across the bows of the ship . The distance to the PERSON during these manoeuvres varied from CARDINAL - CARDINAL to QUANTITY . The third and fourth applicants kept the dinghy in position in front of the bows and in so doing forced the PERSON to change course . The noise of the dinghy 's engine was such as to frighten the whale away .", "On TIME DATE , the second applicant , the Solo 's captain , acting on the instructions given by the first applicant as the responsible campaign leader , manoeuvred the Solo in such a way as to force the ORG to change course when chasing a whale which it had observed . Moreover , the Solo 's water canons were used in a manner impeding visibility from the PERSON and thereby shielding the whale . The intended purpose and effect of these measures was to prevent the ORG from shooting the whale .", "Following the above incidents the CARDINAL applicants were arrested and were held in detention on remand for DATE before being released .", "After hearings on CARDINAL and DATE , ORG ( herredsrett ) , by judgments of DATE , convicted the applicants , under LAW ( CARDINAL ) ( CARDINAL ) and CARDINAL ( CARDINAL ) of FAC CARDINAL ( LAW of DATE No . CARDINAL ) and LAW of DATE , for having obstructed lawful whaling . It sentenced the first and second applicants to pay a fine of respectively ORG CARDINAL and CARDINAL , or CARDINAL days’ imprisonment in default . Moreover , under LAW ( CARDINAL ) and CARDINAL C of LAW , it ordered the confiscation of a dinghy belonging to the first applicant . The third and fourth applicants were each sentenced to pay a fine of ORG CARDINAL,CARDINAL , or CARDINAL days’ imprisonment in default .", "The second applicant then appealed on points of law and sentencing , while the other applicants sought to obtain a new trial before ORG ( lagmannsretten ) , or alternatively to appeal on points of law and sentencing to ORG ( PERSON ) . The first applicant also challenged the confiscation order . ORG ( kjæremålsutvalg ) refused the request for a new trial but allowed a joint appeal on points of law and sentencing , as well as the appeal against confiscation .", "By judgment of CARDINAL DATE ORG upheld the applicants ' convictions but limited the sentences to the fines imposed . It also upheld the confiscation of the dinghy .", "In upholding the applicants ' convictions , ORG observed that it was satisfied that the measures had a legal basis in Sections DATE , as extended by LAW of DATE . This was not prevented by DATE LAW on the Law of the LOC , which did not contain a general prohibition on whaling . Nor was it prevented by the moratorium in DATE for all whaling or the moratorium in DATE to classify minke whale as a threatened species , decided by ORG established under the DATE International Convention for the Regulation of Whaling . In accordance with Article V no . CARDINAL of the Convention , GPE had protested and exempted itself from these decisions by way of reservation , as ORG noted , on the ground that there was no scientific basis for upholding a total ban .", "ORG further considered whether the convictions were compatible with Articles CARDINAL and CARDINAL of the Convention . While leaving open whether the acts concerned , in particular those by the first and second applicants , could be regarded as falling within the notions of freedom of expression in LAW in LAW , ORG found that the conditions for restricting these freedoms under the second paragraphs of these provisions had been fulfilled . Firstly , it was satisfied that the requirement of lawfulness had been fulfilled , as the interference not only had a legal basis but the law in question was also accessible and foreseeable . LAW of DATE had in fact been aimed at the specific campaign conducted by ORG ; the matter had attracted media attention and , according to the findings of fact made by ORG , the applicants had been aware of the amendments in question . Even if they had not , one could have expected them to acquaint themselves beforehand with the relevant legislation , under which the proscribed conduct was illegal even before the decree . Moreover , the measure had been necessary in a democratic society in order to protect the rights of others . ORG had demonstrated against whaling over a long period with a large amount of media attention , but its freedom to demonstrate had not been impaired by the disputed measures which related to CARDINAL isolated incidents where attempts had been made to protect the whalers ' lawful exercise of their right to catch whales .", "As regards sentencing ORG recalled that , under LAW ( CARDINAL ) of FAC , prison sentences should not apply to offences committed by foreign vessels in the exclusive economic zone , and that , under LAW ) of the DATE United Nations Convention on the Law of the LOC , prison sentences should not be imposed for contraventions of fishery legislation . It further observed that GPE had not ratified this LAW . Nonetheless , having regard to the preparatory work for LAW ( CARDINAL ) of FAC , which referred to the provision of LAW , ORG quashed the sentences in so far as they imposed imprisonment in default of the payment of the fines .", "As regards the confiscation of the dinghy belonging to the first applicant , ORG recalled that this had been used by the third and fourth applicants in connection with the acts leading to their arrest . On CARDINAL occasions they had , by the manner in which they had manoeuvred the dinghy in front of the PERSON , hindered the exercise of lawful whaling . Although a special provision on confiscation was contained in LAW , ORG was satisfied that LAW were applicable . The confiscation was also justified in the interests of ensuring the effective enforcement of LAW of FAC .", "According to LAW , vessels in a fishing zone must not manoeuvre so as to damage or needlessly endanger catching gear or reduce catching opportunities . This provision applies to all vessels , not only fishing and catching vessels .", "Under LAW , LAW , a person who by intent or negligence violates the provisions of the LAW may be liable to fines and , in the event of a previous conviction under the LAW or aggravating circumstances , up to DATE imprisonment . LAW , LAW , authorises the confiscation of , inter alia , vessels used in violating the provisions of the LAW . General provisions on confiscation of objects used in the perpetration of crime are contained , inter alia , in LAW of LAW . Under LAW such confiscation may be effected with regard to the possessions of foreigners who are not resident in GPE if it is deemed reasonable .", "Pursuant to LAW of DATE , LAW of ORG should apply to sealing and whaling activities and the provisions in , inter alia , Sections CARDINAL and DATE in LAW of the LAW should , as appropriate , apply to all activities other than fishing .", "According to LAW , its provisions do not affect the right of navigation in the exclusive economic zone under LAW DATE , and are subject to the limitations which follow from public international law and agreements with other GPE .", "In the proceedings the applicants referred to the following provisions of the Convention on the Law of the Sea , which entered into force in DATE and which were ratified by GPE in DATE :", "Article CARDINAL", "Rights , jurisdiction and duties of the coastal ORG in the exclusive economic zone", "\" CARDINAL . In the exclusive economic zone , the coastal ORG has :", "( a ) sovereign rights for the purpose of exploring and exploiting , conserving and managing the natural resources , whether living or non - living , of the waters superjacent to the seabed and of the seabed and its subsoil , and with regard to other activities for the economic exploitation and exploration of the zone , such as the production of energy from the water , currents and winds ;", "( b ) jurisdiction as provided for in the relevant provisions of this LAW with regard to :", "( i ) the establishment and use of artificial islands , installations and structures ;", "( ii ) marine scientific research ;", "( iii ) the protection and preservation of the marine environment ;", "( c ) other rights and duties provided for in this Convention . \"", "Article CARDINAL", "Rights and duties of other GPE in the exclusive economic zone", "\" CARDINAL . In the exclusive economic zone , all GPE , whether coastal or land - locked , enjoy , subject to the relevant provisions of this LAW , the freedoms referred to in LAW and use of airspace and of the laying of submarine cables and pipelines , and other internationally lawful uses of the sea related to these freedoms , such as those associated with the operation of ships , aircraft and submarine cables and pipelines , and compatible with the other provisions of this Convention . \"", "Article CARDINAL", "NORP mammals", "“ Nothing in this Part restricts the right of a coastal ORG or the competence of an international organisation , as appropriate , to prohibit , limit or regulate the exploitation of marine mammals more strictly than provided for in this Part . States shall co - operate with a view to the conservation of marine mammals and in the case of cetaceans shall work in particular through the appropriate international organisations for their conservation , management and study . ”", "Article CARDINAL", "Enforcement of laws and regulations of the coastal State", "“ CARDINAL . The coastal ORG may , in the exercise of its sovereign rights to explore , exploit , conserve and manage the living resources in the exclusive economic zone , take such measures , including boarding , inspection , arrest and judicial proceedings , as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention .", "Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security .", "ORG penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment , in the absence of agreements to the contrary by the GPE concerned , or any other form of corporal punishment .", "In cases of arrest or detention of foreign vessels the coastal ORG shall promptly notify ORG , through appropriate channels , of the action taken and of any penalties subsequently imposed . ”", "Article CARDINAL", "GPE jurisdiction in matters of collision or any other incident of navigation", "“ CARDINAL . In the event of a collision or any other incident of navigation concerning a ship on the high seas , involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship , no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag ORG or of the ORG of which such person is a national .", "In disciplinary matters , the ORG which has issued a master 's certificate or a certificate of competence or licence shall alone be competent , after due legal process , to pronounce the withdrawal of such certificates , even if the holder is not a national of the ORG which issued them .", "No arrest or detention of the ship , even as a measure of investigation , shall be ordered by any authorities other than those of ORG . ”" ]

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[ "The applicant , Mr PERSON , is a citizen of GPE who was born in DATE and lives in GPE .", "On DATE the applicant was involved in a serious car accident in which CARDINAL person died .", "Consequently , criminal proceedings were instituted against the applicant and , on DATE , ORG ( PERSON sodišče v GPE ) ordered him to pay a bail of CARDINAL ORG .", "During the investigation , the investigating judge acquired forensic expert reports and examined a witness .", "On DATE ORG filed an indictment against the applicant for causing the accident by negligent driving . On DATE the ORG dismissed the applicant 's objection against the indictment .", "On DATE the applicant assigned a new lawyer to represent him in the proceedings and informed the court about his address in GPE .", "On DATE , a hearing was cancelled due to the applicant 's absence . Subsequently , the court examined several witnesses in the presence of the applicant 's representative .", "On DATE the applicant 's lawyer proposed that the next hearing be held in the absence of the applicant .", "On DATE , further to the court 's request , the applicant 's lawyer informed the court that he had lost contact with the applicant . On DATE the court asked the local police to inquire about the applicant 's address . The police did not reply .", "On DATE the ORG entered into force in respect of GPE .", "On DATE ORG ( Okrožno sodišče v GPE ) gained jurisdiction in the case due to the reform of the NORP judicial system . The case was assigned to a judge , who did not deal with it .", "On DATE the case was assigned to a new judge .", "On DATE ORG inquired about the applicant 's address . The lawyer knew that the applicant had moved to GPE but was not aware of his new address . It appears that the applicant notified his lawyer about his address on DATE .", "On DATE the applicant was summoned for a hearing through an assistance of ORG . On DATE a hearing was held in the absence of the duly summoned applicant . The only witness examined at the hearing referred to his testimony given in the earlier stages of the proceedings and was not asked any further questions . No other evidence was taken at the hearing . The court subsequently convicted the applicant . A written judgment was served on him on CARDINAL DATE .", "On DATE the applicant appealed to ORG ( PERSON sodišče v PERSON ) .", "On DATE ORG acquitted the applicant . The judgment was served on the applicant on DATE .", "On DATE the applicant asked ORG to reimburse him the bail ( see paragraph CARDINAL above ) together with the default interest and sought reimbursement of the costs and expenses he had incurred in the proceedings .", "On DATE ORG ordered the reimbursement of the costs and expenses .", "On DATE ORG , relying on LAW ( see paragraph CARDINAL below ) , ordered the reimbursement of the bail , but refused to reimburse the interests .", "On DATE the applicant appealed against that decision .", "On CARDINAL DATE ORG rejected the appeal . The decision was served on the applicant on DATE .", "On DATE the applicant instituted civil proceedings in ORG ( PERSON sodišče v PERSON ) seeking reimbursement of the interests incurred in respect of the bail paid in DATE . The proceedings are currently pending on appeal .", "The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) became operational on DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .", "Section CARDINAL lays down the following transitional rules in relation to applications already pending before the ORG :", "“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney 's ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney 's ORG within DATE of receipt of the proposal of the ORG Attorney 's ORG . The State Attorney 's Office shall decide on the proposal as soon as possible and within DATE at the latest . ...", "( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the ORG Attorney 's ORG reply that the party 's proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for the ORG Attorney 's ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”", "Section CARDINAL of LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL ) provides that the bail should be reimbursed once the criminal proceedings terminate with a final decision or a final judgment ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The case was referred to the ORG by ORG ( \" the Commission \" ) in CARDINAL stages , first on DATE and then on DATE , on each occasion within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in CARDINAL applications ( nos . CARDINAL and CARDINAL ) against GPE lodged with ORG LAW ( article CARDINAL ) by a NORP national , Mr PERSON , on CARDINAL DATE and DATE . ORG ordered the joinder of the CARDINAL applications on DATE .", "By judgment of CARDINAL DATE ( \" the principal judgment \" ) , the ORG found a violation of LAW para . CARDINAL and Article CARDINAL para . CARDINAL ( article CARDINAL , article DATE ) of the LAW on the ground that the length of the applicant ’s detention on remand and of the criminal proceedings instituted against him had exceeded a \" reasonable time \" ( Series A no . CARDINAL , pp . DATE , paras . CARDINAL - CARDINAL and point CARDINAL of the operative provisions ) .", "The only outstanding matter in the present case is the question of the application of LAW ) . As regards the facts , reference should be made to paragraphs CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .", "As the issue of the award of just satisfaction was not ready for decision , the criminal proceedings having not yet reached a conclusion , the ORG , in the principal judgment , reserved the whole of this question . It invited the ORG and the applicant to submit to it in writing , within DATE of the conclusion of the relevant criminal proceedings , their observations and in particular to inform it of any agreement reached between them ( p. CARDINAL , para . CARDINAL and point CARDINAL of the operative provisions ) .", "The domestic proceedings conducted subsequent to the principal judgment included the following decisions :", "( a ) on DATE the judgment of ORG of DATE sentencing Mr Kemmache to CARDINAL years’ imprisonment and fining him MONEY was quashed ;", "( b ) on DATE ORG , to which the case had been remitted , adopted a judgment sentencing the accused to DATE imprisonment and fining him MONEY for aiding and abetting the importation and use on NORP territory of counterfeit foreign banknotes and the unlawful circulation of such notes within the customs area ;", "( c ) on DATE the applicant ’s appeal on points of law was dismissed by ORG .", "Mention should also be made of various letters sent by the Registrar to the participants in the proceedings ( DATE , DATE and DATE ) , as well as letters received by him from a Government lawyer ( DATE , DATE and DATE ) , from the applicant ’s lawyer ( DATE and DATE , DATE and DATE ) and from the Secretary to ORG ( DATE ) .", "On DATE the Registrar reminded the participants in the proceedings of the invitation in point CARDINAL ( b ) of the operative provisions of the principal judgment ( see paragraph CARDINAL above ) .", "The Government ’s memorial reached him on DATE , the applicant ’s memorial on DATE and the observations of the Delegate of the Commission on DATE .", "CARDINAL ." ]

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[ "ORG ( “ the ORG ” ) is a company incorporated under NORP law , whose head office is in GPE . On DATE its capital amounted to MONEY ( ORG ) , divided into CARDINAL shares of a nominal value of GRD CARDINAL each .", "On DATE the Governor of ORG , exercising the powers conferred on him by Presidential Decree no . CARDINAL , ratified by PERSON no . CARDINAL , in conjunction with PERSON no . DATE , placed the ORG under the control of a temporary administrator ( ORG ) . The Governor took this decision in the light of the following circumstances : ( CARDINAL ) the result of an inquiry conducted by the competent authorities of ORG , who had concluded that a series of illegal transactions had been carried out by the ORG ’s directors ; ( CARDINAL ) the fact that the ORG ’s directors had attempted to obstruct the inquiry ; and ( CARDINAL ) “ the urgency of the situation , the public interest and that of the ORG , its shareholders and the third parties concerned ” . Pursuant to paragraph CARDINAL of this decision of the Governor of ORG ( decision no . CARDINAL/CARDINAL.CARDINAL.CARDINAL ) , from the time when decision no . CARDINAL was published in ORG ( PERSON ) , the ORG ’s organs lost all their previous powers , which were transferred , together with responsibility for the bank ’s administration , to the temporary administrator . The latter was ordered to submit to the Governor of ORG , within DATE , a detailed report on the ORG ’s finances , accounts and management .", "On DATE the temporary administrator ( Mr I. PERSON ) submitted his report and tendered his resignation , with effect from DATE . On that date the Governor of ORG appointed a second temporary administrator ( Mr I. Papakonstantinos ) , who submitted his report on DATE .", "On DATE the Governor of ORG invited the ORG to increase its capital within DATE to GRD CARDINAL,CARDINAL,CARDINAL,CARDINAL , by issuing new fully paid - up shares . On DATE the temporary administrator , exercising powers normally conferred at the general meeting of shareholders , decided , by decision no . CARDINAL , to increase the ORG ’s capital to FAC CARDINAL,CARDINAL,CARDINAL,CARDINAL , at the same time amending the relevant provision ( LAW its articles of association . By a notice published in a DATE newspaper , the ORG invited its shareholders to exercise by CARDINAL DATE the option to purchase the new shares which they were guaranteed under the articles of association and to pay CARDINAL of the value of these shares within DATE ( first increase in capital ) .", "On DATE the temporary administrator adopted decision no . CARDINAL , modifying decision no . CARDINAL . The only notable change was that those who were interested in purchasing the new shares were invited to pay for them in full by DATE . Considering that this new decision ORG introduced only “ changes of form ” , the temporary administrator expressly provided therein that it was to apply retrospectively from the date of publication of decision no . CARDINAL . As a result , in accordance with the decision ’s express wording , the time - limit for exercising the ORG option was still CARDINAL DATE . The applicants did not exercise that option .", "On DATE the Governor of ORG approved decision no . CARDINAL and on DATE the Prefect of GPE approved the necessary amendment to the ORG ’s articles of association . On DATE the temporary administrator decided to allocate the new shares to : ( a ) G. GPE , ( b ) “ Edrassi – X. Psallidas Ate ” , ( c ) PERSON PERSON , ( d ) M. NORP and ( e ) NORP PERSON . However , Mr PERSON GPE became the ORG ’s majority shareholder ( with CARDINAL of the CARDINAL shares ) .", "On DATE the Governor of ORG appointed a new temporary administrator ( Mr PERSON ) , on the ground that the previous one had contravened the law in his decision as to how the new shares were to be allocated .", "On DATE the new temporary administrator rescinded the decision taken by his predecessor on DATE and decided to allocate the shares previously transferred to PERSON to ORG , a public - sector company , which accordingly became the ORG ’s majority shareholder . However , existing shareholders were not invited to exercise their option .", "On DATE the Governor of ORG appointed an administrator to run the ORG , stipulating in the appointment decision that the administrator was to hand over management to an elected board of directors as soon as possible . On DATE a new board of directors was elected by the general meeting of ORG shareholders .", "On DATE ORG enacted Law no . DATE , pursuant to which a number of administrative decisions concerning the ORG , including all those mentioned above , acquired the force of law . PERSON no . DATE also amended the articles of association of ORG , which had been laid down by a previous law , so as to enable it to take part in the increases in the share capital of other banks .", "On DATE the general meeting of ORG shareholders decided to increase the capital to GRD CARDINAL,CARDINAL,CARDINAL,CARDINAL ( second increase ) .", "On DATE ORG enacted Law no . DATE , which applied retrospectively and established an authoritative interpretation of Presidential Decree no . CARDINAL . According to this interpretation , temporary administrators had the power to increase the capital of the banks they had been appointed to run .", "On DATE the ORG ’s capital was increased by a further FAC CARDINAL ( third increase ) .", "On DATE the general meeting of ORG shareholders decided to apply to have its shares listed on the GPE stock exchange , to increase its capital by GRD CARDINAL,CARDINAL,CARDINAL,CARDINAL , to offer the new shares for sale on the stock market and to amend LAW ORG ’s articles of association accordingly ( fourth increase ) .", "On DATE the Monetary and Financial Affairs Committee ( Epitropi nomismaton kai pistotikon thematon ) of ORG approved the above - mentioned amendment of the ORG ’s articles of association . On DATE ORG ( Epitropi kefaleagoras ) authorised the ORG to allocate the new shares by offering them for sale on the stock market .", "On DATE and CARDINAL DATE the ORG ’s capital was increased by GRD CARDINAL ( fifth increase ) .", "On DATE and CARDINAL DATE the ORG ’s capital was increased by GRD CARDINAL,CARDINAL,CARDINAL,CARDINAL ( sixth increase ) .", "On DATE some of the applicants challenged in ORG decisions ORG . GPE and CARDINAL/CARDINAL.CARDINAL.CARDINAL by which the Governor of ORG and ORG had approved the first increase in the ORG ’s capital . In their application for judicial review they alleged that the temporary administrator was not empowered under NORP law to order an increase in capital , which should have been done by a resolution of the general meeting of shareholders .", "On DATE the President of ORG decided to hear the case on DATE .", "On DATE ORG decided of its own motion to adjourn until DATE consideration of the application for judicial review lodged on DATE . On DATE ORG decided of its own motion to adjourn the case until DATE and later until DATE . According to the Government , the reason for all these adjournments was the importance and complexity of the legal questions which the reporting judge had to consider .", "On DATE ORG heard the application for judicial review . On DATE it held , in decision no . CARDINAL , ( a ) that the temporary administrator had not been empowered under NORP law to order the increase in capital of DATE ; ( b ) that PERSON no . GPE could not be taken into account because it had been enacted after the application for judicial review had been made , contrary to the constitutional principle of the separation of powers ; ( c ) that the CARDINAL applicants could not challenge the administrative decisions in question because before DATE they had held PERCENT of the capital ; and ( d ) that because of its importance the case should be referred to the plenary court .", "On DATE the President of ORG decided that the application for judicial review would be heard on DATE . On that date ORG decided of its own motion to adjourn the case until DATE and later until DATE . On DATE ORG decided of its own motion to adjourn the case until DATE and later until CARDINAL DATE . According to the ORG , all these adjournments were prompted by the same considerations as those referred to above .", "On DATE ORG decided of its own motion to adjourn consideration of the application for judicial review until DATE . According to the applicants , this adjournment was accepted by all the parties . The ORG maintained that it was requested by the applicants and supplied a certificate to that effect from the registry of ORG .", "On DATE ORG again decided to adjourn the case , this time until DATE . According to a certificate from the registry of ORG , the court decided of its own motion to adjourn the hearing . According to the Government , record no . CARDINAL/CARDINAL of the plenary court proves that the applicants requested the adjournment concerned pending the judgment of ORG of ORG in a similar case and that the respondents opposed that request . The reporting judge considered that the case should be adjourned .", "On DATE ORG decided of its own motion to adjourn consideration of the application for judicial review until DATE . On that date it once again adjourned the case , until CARDINAL DATE . The applicants maintained that all parties had been present at the hearing on CARDINAL DATE and that they had requested that the case be tried . However , as the respondents objected , ORG had adjourned the case of its own motion . According to ORG , the case could not be heard on CARDINAL DATE because of a strike by lawyers , as attested by a certificate issued by ORG . They also submitted in that connection a certificate from the registry of ORG , dated DATE .", "On DATE the application for judicial review came before ORG . However , ORG ) , which had intervened in the proceedings , requested an adjournment . ORG allowed this request and adjourned the case until DATE . According to the applicants , the request was supported by the respondents , whereas they themselves had insisted that the hearing should take place . The ORG authorities had themselves requested this adjournment , as was proved by , inter alia , a written request submitted on CARDINAL DATE by the Minister for ORG , who had intervened in the proceedings concerning the application to ORG for judicial review .", "On CARDINAL DATE the application lodged on DATE was finally considered . On CARDINAL DATE , in judgment no . DATE , the plenary of ORG dismissed the application . It observed that , pursuant to PERSON no . DATE , a decision taken by the general meeting of shareholders of a company set up in accordance with that PERSON could be challenged only by shareholders who held PERCENT of the capital , had been present at the meeting when the decision was taken and had opposed it . ORG had had good reasons to restrict the right of access to the courts in such a way . The right to challenge decisions of the general meeting should be vested only in shareholders who were closely associated with the company ’s activities , in which small shareholders were usually not interested . In addition , the company ’s competitors could very easily acquire a small number of shares and attempt to harm its interests . The same restrictions applied to the right of access to a court for the purpose of challenging administrative decisions approving those of the general meeting of shareholders . Shareholders who held PERCENT of the capital could challenge an administrative decision of this type only if they could prove that it affected them personally . An increase in the company ’s capital could not in itself harm the interests of a shareholder who held PERCENT of the capital . Moreover , the same rules were applicable where the decision to increase the capital had been taken by a temporary administrator . In the instant case , on DATE the applicants had held PERCENT of the ORG ’s capital ( CARDINAL having PERCENT and the other PERCENT ) and would therefore not have been able to challenge the increase in capital if it had been decided upon by a resolution of the general meeting of shareholders . The applicants could not rely on the fact that they now held a lower proportion of the shares in order to establish that their personal interests had been harmed by the decision to increase the capital . Nor had they pleaded any other fact which could warrant such a conclusion . Accordingly , ORG decided by a majority to dismiss the application for judicial review , on the ground that the applicants did not have locus standi .", "On DATE some of the applicants brought action no . CARDINAL/CARDINAL against the ORG and others in ORG , seeking a declaration ( a ) that the first increase in capital was null and void on the ground that the second temporary administrator ( Mr I. Papakonstantinos ) had not been empowered under NORP law to take such a decision , which was the prerogative of the general meeting of shareholders , and ( b ) that the allocation of CARDINAL new shares to the defendant shareholders by the third temporary administrator ( Mr S. GPE ) had been unlawful and was null and void , and that in law it had not conferred on any of these persons the status of shareholder , a right to attend general meetings of ORG ’s shareholders or any other right vested in its shareholders . A hearing was listed for DATE .", "However , on DATE of the applicants withdrew from action no . CARDINAL/CARDINAL . In their notice of discontinuation ( no . DATE ) , they declared to the court that they expressly , unreservedly and irrevocably recognised as absolutely legal , valid and unchallengeable all the transactions carried out by the CARDINAL temporary administrators concerned ( see paragraph CARDINAL above ) .", "On DATE ORG decided to adjourn consideration of action no . CARDINAL/CARDINAL until DATE . According to the applicants , this adjournment was ordered at the GPE request .", "On DATE ORG tried action no . CARDINAL/CARDINAL . In its decision no . CARDINAL of CARDINAL DATE , the court decided to stay the proceedings pending delivery of ORG judgment on the related application for judicial review lodged on DATE ( see paragraph CARDINAL above ) . According to the applicants , the court took this decision at the GPE request . On the other hand , the Government referred to the text of the decision , which stated that it was necessary to adjourn consideration of action no . CARDINAL/CARDINAL because its outcome depended on the validity of the appointment of the third temporary administrator ( Mr S. GPE ) and the legality of the decision taken by the previous temporary administrator ( Mr I. Papakonstantinos ) on the increase in capital , these being matters in issue in another case then pending in ORG ( Article CARDINAL of the Code of Civil Procedure ) .", "On DATE some of the applicants brought action no . DATE against the ORG in ORG , seeking a declaration that the second increase in capital had been in breach of NORP law and was null and void . They argued that , because the first increase in capital was not legally valid , the general meeting of shareholders which had passed the resolution authorising the second increase had not been duly and properly constituted . A hearing was listed for DATE .", "On DATE ORG decided to adjourn consideration of action no . DATE until DATE . According to the applicants , this adjournment was ordered at the defendant ’s request .", "At the hearing on DATE the case was not called because it had not been placed on the court ’s list , as certified by its registrar . According to the Government , this delay was imputable to the applicants , who had not taken the necessary steps to have their action placed on the court ’s list .", "On DATE some of the applicants brought action no . DATE against the ORG in ORG , seeking a declaration that the fourth increase in capital ( resolution of the general meeting of shareholders on DATE see paragraph CARDINAL above ) had been in breach of NORP and ORG law and was null and void . Again it was contended that the first increase and the allocation of the CARDINAL new shares to new shareholders – ordered by the then temporary administrator – had been unlawful and were null and void . A hearing was set down for DATE .", "On DATE ORG hearing on action no . DATE was adjourned because of a ORG strike on DATE .", "On DATE some of the applicants brought action no . CARDINAL against the ORG in ORG , seeking a declaration that the third increase in capital ( resolution of the general meeting of shareholders on DATE ) had been in breach of NORP and ORG law and was null and void . They put forward the same arguments as had been used in the previous civil cases . A hearing was set down for DATE .", "On DATE the plaintiffs in actions nos . CARDINAL/CARDINAL ( concerning the first increase in capital ) , DATE ( concerning the second increase ) and DATE ( concerning the fourth increase ) , including some of the applicants , asked ORG to fix a new hearing date for these cases . The court decided to hear the cases on DATE .", "On DATE the ORG decided to adjourn consideration of action no . CARDINAL/CARDINAL ( concerning the third increase in capital ) until DATE .", "On DATE ORG decided to adjourn consideration of actions FAC . CARDINAL/CARDINAL , DATE , DATE and DATE until DATE and on the latter date it ordered a further adjournment until DATE . According to the Government , these adjournments were necessary in view of the fact that ORG had not yet given judgment on the application for judicial review , a precondition that had been laid down in the decision ( no . CARDINAL ) to adjourn consideration of the first action ( no . CARDINAL/CARDINAL ) .", "On DATE some of the applicants intervened in the proceedings concerning action no . CARDINAL/CARDINAL , supporting the plaintiffs . A hearing was set down for CARDINAL DATE .", "On DATE , although ORG judgment no . DATE had been delivered on CARDINAL DATE ( see paragraph CARDINAL above ) , the hearing arranged for trial of all the actions was adjourned because of another strike by members of ORG .", "On DATE the plaintiffs , including some of the applicants , asked ORG to fix a new hearing date for actions nos . CARDINAL/CARDINAL , DATE , DATE and DATE . The court decided to consider these actions on DATE .", "DATE . On DATE , however , the hearing in respect of the CARDINAL pending actions was adjourned on account of the strike by GPE lawyers . On DATE the plaintiffs asked for a new hearing date to be fixed and the court decided to hear these cases on CARDINAL JanuaryCARDINAL . The applicants asserted in their memorial to the ORG that their object in taking out all the above - mentioned summonses ( klissis ) had been to expedite the proceedings in the civil courts ( LAW ) .", "On DATE the ORG again decided to adjourn consideration of actions ORG . CARDINAL/CARDINAL , DATE , DATE and DATE until DATE .", "In the meantime , on CARDINAL DATE , some of the applicants brought action no . DATE in ORG , in support of the actions brought on DATE ( no . CARDINAL/CARDINAL ) and CARDINAL DATE ( no . DATE ) . In their third - party action they sought a declaration that the decisions concerning the first and second increases in capital had been taken in breach of Articles CARDINAL § CARDINAL and CARDINAL of the Second Directive of the Council of the European Communities ( Directive CARDINAL/CARDINAL/EEC ) . A hearing was set down for DATE .", "On DATE ORG tried cases nos . CARDINAL/CARDINAL , DATE , DATE , DATE and DATE .", "On DATE the ORG gave its judgment no . CARDINAL/CARDINAL on the above - mentioned cases . Considering that some of the applicants had not given the lawyers who had appeared in court to represent them valid authority to act , it gave judgment against them . It also decided not to entertain the applicants’ arguments concerning the impossibility in practice of exercising their option , since they had not been raised in time . It likewise dismissed the CARDINAL actions in so far as they concerned the allegation that the decisions concerning the increases in capital had not been taken in accordance with NORP law . However , the court referred to ORG of ORG , for a preliminary ruling , the questions of Community law raised by the cases . It reserved its decision on the GPE objection concerning the GPE abuse of rights ( Article CARDINAL of LAW ) until it had learned how ORG of ORG had applied NORP law . On DATE ORG gave notice that it would give judgment on DATE .", "On DATE some of the applicants brought action no . CARDINAL against the ORG and others , asking ORG to refer another question to ORG of ORG for a preliminary ruling , namely whether the objection based on LAW , concerning abuse of rights , could render inapplicable the provisions of Community law , those being , in the instant case , LAW and CARDINAL of Directive CARDINAL/CARDINAL/EEC on companies . The hearing to consider their action was set down for DATE .", "On DATE some of the applicants brought action no . CARDINAL in ORG , seeking a declaration that the fifth increase in capital ( resolutions of DATE and DATE ) had been in breach of NORP and ORG law and was null and void . The arguments submitted were the same as in the previous actions . The hearing was likewise set down for DATE .", "On DATE ORG intervened in the proceedings concerning action no . CARDINAL . A hearing was set down for CARDINAL DATE .", "Although LOC had called on its members to strike , the applicants’ lawyers informed the defendants on DATE that the Bar had authorised them to appear in LOC on DATE to request an adjournment of cases nos . CARDINAL and CARDINAL . On DATE the court did adjourn these cases until LAW DATE . According to the applicants , that decision was taken at the GPE insistent request .", "On DATE the applicants asked the court to consider actions nos . CARDINAL and CARDINAL on DATE . Their request was granted .", "Although LOC had called on its members to strike , the applicants’ lawyers informed the defendants on DATE that the Bar had authorised them to appear in LOC on DATE . On DATE , however , ORG decided to rescind that authorisation . According to the applicants , this decision was taken at the request of ORG , who had intervened in the proceedings . The hearing listed to take place on DATE in cases nos . CARDINAL and DATE was , in the event , adjourned .", "On DATE the union of ORG employees intervened in the proceedings concerning action no . CARDINAL . A hearing was set down for CARDINAL DATE .", "On DATE the hearing concerning action no . CARDINAL was cancelled because the plaintiffs had not taken the necessary steps to have the case placed on the court ’s list . According to the applicants , their lawyers were not present at the hearing on DATE because ORG had again called on its members to strike and their opponents had used improper manoeuvres to obtain the cancellation of the hearing concerning action no . CARDINAL and the adjournment of case no . CARDINAL .", "On DATE case no . CARDINAL was adjourned until DATE .", "On DATE the applicants asked the court to fix a new hearing date in order to expedite the proceedings relating to actions nos . CARDINAL and CARDINAL . The court set down a hearing for DATE . However , the applicants did not appear on DATE and consideration of these actions was adjourned .", "On DATE the applicants asked for a new hearing date to be fixed for their third - party action no . CARDINAL and ORG decided to resume consideration of the case on DATE .", "On DATE the applicants asked for an earlier date to be fixed for the hearing in their action ( no . CARDINAL ) concerning the fifth increase in the ORG ’s capital . The court decided to hear the case on DATE .", "In the meantime , on DATE , some of the applicants brought action no . CARDINAL/CARDINAL against the ORG and others in the GPE ORG seeking a declaration that the sixth increase in capital had been in breach of NORP and ORG law and was null and void . The ORG arguments submitted were the same as in the previous actions . A hearing was likewise set down for DATE .", "On DATE , at the GPE request , the court decided to adjourn the hearing concerning action no . CARDINAL until DATE ; it also adjourned to the same date consideration of action no . CARDINAL/CARDINAL . Still on DATE it tried case no . CARDINAL . Its judgment was given on DATE . The court held that it could not rule on that part of the action which concerned the claim submitted by PERSON , on the ground that he had not been one of the applicants who had asked the court , on DATE , to resume consideration of the case . The court decided to dismiss the claims of the other applicants concerned , holding that the action raised no problem regarding the interpretation of Community law and that the NORP courts alone had jurisdiction to rule on the GPE objection concerning the GPE abuse of rights ( Article CARDINAL of LAW ) .", "On DATE ORG , at the applicants’ request , decided to resume consideration of actions nos . CARDINAL and CARDINAL/CARDINAL on DATE . According to the Government , it was not legal to bring the trial in the present case forward in this way .", "DATE . On DATE and DATE the applicants’ lawyer complained to ORG of the improper manoeuvres allegedly used by the GPE lawyers on CARDINAL DATE .", "On DATE the applicants again asked the court to try action no . CARDINAL/CARDINAL on DATE .", "On DATE ORG decided to adjourn consideration of the pending actions nos . CARDINAL and CARDINAL/CARDINAL until DATE .", "On DATE the GPE ORG heard these CARDINAL cases . In a decision ( no . DATE ) of CARDINAL DATE it ordered a stay of the proceedings concerning actions nos . CARDINAL and CARDINAL/CARDINAL pending the judgment of ORG of ORG on the questions for a preliminary ruling submitted to it on DATE and the court ’s own judgment on the previous actions nos . CARDINAL/CARDINAL , DATE , DATE , DATE and DATE . The court was obliged to order this adjournment because the last CARDINAL actions , nos . CARDINAL and CARDINAL/CARDINAL , challenging the fifth and sixth increases in the ORG ’s capital , had the same factual and legal basis as DATE above - mentioned actions . It was therefore necessary to adjourn the cases until the conclusion of the proceedings on the first CARDINAL actions , which raised exactly the same issues .", "On DATE ORG of ORG held a hearing on the questions for a preliminary ruling referred to it by ORG on DATE .", "On DATE it gave judgment on the reference for a preliminary ruling , holding that an increase in the capital of a bank constituted in the form of a public limited liability company by administrative measure was contrary to LAW on companies , which guaranteed each shareholder the right to vote on the issue . It also rejected the ORG ’s new board of ORG argument that the applicants’ civil action constituted an abuse of rights , declaring : “ … the uniform application and full effect of ORG law would be undermined if a shareholder relying on LAW were deemed to be abusing his rights merely because he was a minority shareholder of a company subject to reorganization measures or had benefited from the reorganization of the company . Since LAW applies without distinction to all shareholders , regardless of the outcome of any reorganization procedure , to treat an action based on LAW as abusive for such reasons would be tantamount to altering the scope of that provision . ”", "On DATE the applicants again asked ORG to fix a hearing date for all their actions . A hearing was listed for DATE . However , this summons to fix an earlier hearing was never served on the defendants .", "On DATE the applicants , by CARDINAL further summonses , ( nos . DATE and GPE ) , asked ORG to bring forward the date of the hearing for all their actions , on the ground that ORG of ORG had given an ad hoc interlocutory decision on certain legal aspects of the case . A hearing was set down for CARDINAL DATE .", "DATE . On DATE the court decided , in response to a summons ( klissis ) from the defendants , to resume consideration of actions nos . CARDINAL/CARDINAL , DATE , DATE , DATE and DATE on DATE .", "On DATE CARDINAL former shareholders lodged an additional third - party application in support of the ORG . ORG decided to hear the case on DATE .", "On DATE the court adjourned the cases pending before it until the hearing on DATE , the date already fixed for consideration of the third - party application lodged in support of the ORG . It ruled that this application had not been lodged in order to prolong the proceedings .", "In the event , it was not possible to hold the hearing on DATE , as the NORP courts did not sit DATE on account of a general election .", "Following CARDINAL summonses ( nos . ORG and CARDINAL ) taken out by the applicants on CARDINAL DATE , ORG tried cases nos . CARDINAL/CARDINAL , DATE , DATE , DATE , DATE and cases nos . CARDINAL and CARDINAL/CARDINAL on DATE . On DATE final decisions nos . DATE and DATE , which dismissed all these actions , were published . The applicants asserted that the court dismissed all their claims “ without taking into account the decisions of ORG of ORG and that this , which was unprecedented in NORP law , constituted a serious breach of Community law . They asserted that the defendants – represented by the Minister for ORG and other parties under his control – had asked ORG in their written submissions to ignore completely ORG ad hoc judgment .", "NORP However , the proceedings in the civil courts are still pending on account of an appeal ( anairessi ) to ORG lodged by the applicants ." ]

[ "6" ]

[ "6-1" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr E. ORG , a lawyer practising in GPE . The Government did not appoint an agent to represent them .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is the owner of the publishing company “ PERSON İletişim ORG ( PERSON ) ” . In DATE he published the NORP translation of the book entitled “ PERSON Amply Rewarded ” by ORG .", "On DATE ORG laid a criminal information regarding the book , alleging that it undermined public morals , in breach of LAW .", "On DATE , at the request of ORG , the judge at ORG ordered the seizure of copies of the book , holding that it provoked and exploited feelings and thus undermined public morals . On DATE , the decision of the criminal court was communicated to the security directorates , criminal courts and public ORG offices of the district and it was notified to the applicant .", "The seizure protocol drafted by the police and signed by an employee of the publishing company on DATE , recorded that copies of the book were not found in the publishing house , as they had already been distributed to the book shops . According to the applicant the latter , informed of the seizure order , returned the copies of the book to him .", "On DATE after taking the applicant ’s statements , ORG issued an advance payment order for CARDINAL NORP Liras ( GPE ) . According to this order , in case of payment of the due amount within DATE from the date of issue , no criminal charges would be brought against the applicant .", "On DATE the applicant filed an objection against the seizure order , arguing that there was an unjustified interference with his rights guaranteed by Articles CARDINAL and CARDINAL of the Convention . On DATE ORG dismissed his objection .", "The applicant did not pay the amount due . Consequently , on DATE ORG filed an indictment , charging the applicant under LAW , for publishing indecent or obscene material .", "On DATE ORG Instance noted that , following an amendment which had come into force on DATE , literary works were excluded from the sphere of application of LAW . It consequently acquitted the applicant and ordered the restitution of the books .", "LAW provided that those who published offensive , indecent or obscene materials and thereby tended to corrupt public morals , would be sentenced to a fine .", "Following the adoption of law no . DATE , which came into force on DATE , LAW was amended . Accordingly , scientific and artistic works and any work of literary value was excluded from the sphere of application of the Article ." ]

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[ "The applicant was born on DATE and lives in GPE .", "NORP On DATE at TIME , the applicant was taken into custody by police officers from the anti - terrorism branch of ORG on suspicion of having participated in an unlawful demonstration in support of an illegal organisation , namely the ORG ( ORG . The applicant was also accused of hanging an illegal banner from a bridge in LOC on DATE .", "At TIME on CARDINAL DATE the applicant was taken to PERSON ORG , where he was examined by a doctor . The medical report stated that there was no trace of ill - treatment on his body .", "Subsequently , at TIME , the applicant was interrogated at the anti - terrorism branch in the absence of a lawyer . According to a form explaining arrested ORG rights which the applicant had signed , he had been reminded of the charges against him and of his right to remain silent . In his statement , the applicant admitted his involvement in the youth branch of ORG ) . He gave the names of several persons who worked for the youth branch of ORG . He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood . He further stated that it had been part of his job to assign duties to other members of the youth branch . He admitted that he had participated in the demonstration on DATE organised by HADEP in support of the imprisoned leader of the ORG . He said that there had been CARDINAL demonstrators present and that the group had shouted slogans in support of Öcalan and the ORG . He had been arrested on the spot . He also admitted that he had written “ Long live leader PERSON on a banner which had been hung from a bridge on DATE . The police took samples of the applicant ’s handwriting and sent it to the police laboratory for examination .", "On DATE ORG issued a report after comparing the applicant ’s handwriting to that on the banner . It concluded that although certain characteristics of the applicant ’s handwriting bore similarities to the handwriting on the banner , it could not be established whether or not the writing on the banner was in fact his .", "At TIME on DATE the applicant was again examined by a doctor , who stated that there were no traces of ill - treatment on his body .", "On DATE , the applicant was brought before the public prosecutor and subsequently the investigating judge . Before the public prosecutor , he explained that he was not a member of any political party , but had taken part in certain activities of HADEP . He denied fabricating an illegal banner or participating in the demonstration on DATE . He stated that he was in the NORP neighbourhood to visit a friend when he was arrested by the police . The applicant also made a statement to the investigating judge , in which he retracted his statement to the police , alleging that it had been extracted under duress . He claimed that he had been beaten and insulted while in police custody . He again denied engaging in any illegal activity and explained that on DATE he had gone to the NORP neighbourhood to visit a friend and had not been part of the group shouting slogans . After the questioning was over , the investigating judge remanded the applicant in custody , having regard to the nature of the offence of which he was accused and the state of the evidence . The applicant was then allowed to have access to a lawyer .", "On DATE the public prosecutor at ORG filed an indictment with that court accusing the applicant and CARDINAL other accused of aiding and abetting the ORG , an offence under LAW and LAW no . ORG ) .", "On DATE ORG held a preparatory hearing . It decided that the applicant ’s detention on remand should be continued and that the accused be invited to prepare their defence submissions .", "On DATE ORG held its first hearing , in the presence of the applicant and his lawyer . It heard evidence from the applicant in person , who denied the charges against him . The applicant also rejected the police statement , alleging that it had been extracted from him under duress . He explained that while he was in custody , police officers had ordered him to copy the words from a banner . He also stated that he had witnessed the events that had taken place on DATE ; however , he had not taken part in the demonstration as alleged . Instead , he had been in the neighbourhood to visit a friend named ORG . He also denied hanging an illegal banner from a bridge on DATE .", "At the next hearing , which was held on DATE , the applicant and his lawyer were both present . The court also heard from other accused persons , all of whom denied having participated in the illegal demonstration on CARDINAL DATE and retracted statements they had made previously . The prosecution then called for the applicant to be sentenced pursuant to LAW and the applicant ’s lawyer requested time to submit the applicant ’s defence submissions .", "On DATE the applicant made his defence submissions . He denied the charges against him and requested his release . On DATE , ORG delivered its judgment . It acquitted CARDINAL of the accused and convicted the applicant and CARDINAL other accused as charged . It sentenced the applicant to DATE and CARDINAL months’ imprisonment , which was reduced to DATE as the applicant had been a minor at the time of the offence .", "In convicting the applicant , ORG had regard to the applicant ’s statements to the police , the public prosecutor and the investigating judge respectively . It also took into consideration his co - defendants’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of CARDINAL DATE . The court noted that the co - defendants had also given evidence that the applicant had been in charge of organising the demonstration . It further took note of the expert report comparing the applicant ’s handwriting to that on the banner and of the fact that , according to the police report on the arrest , the applicant had been among the demonstrators . It concluded :", "“ ... in view of these material facts , the court does not accept the applicant ’s denial and finds that his confession to the police is substantiated . ”", "On DATE the applicant ’s lawyer appealed against the judgment of ORG . In her notice of appeal , she alleged a breach of ORG CARDINAL and CARDINAL of the LAW , arguing that the proceedings before the first - instance court had been unfair and that the court had failed to assess the evidence properly .", "On DATE ORG at ORG lodged a written opinion with ORG in which he submitted that the ORG should uphold the judgment of ORG . This opinion was not served on the applicant or his representative .", "On DATE ORG of ORG , upholding ORG reasoning and assessment of the evidence , dismissed the applicant ’s appeal .", "The relevant provisions of the former Code of Criminal Procedure ( Law no . DATE ) , namely Articles CARDINAL , CARDINAL and CARDINAL , provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody . Article CARDINAL clearly stipulated that for juveniles , legal assistance was obligatory .", "According to LAW no . CARDINAL of DATE , which amended the legislation on criminal procedure , the above - mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of ORG .", "On DATE , by Law no . DATE , the restriction on an accused ’s right of access to a lawyer in proceedings before ORG was lifted .", "On DATE a new Code of Criminal Procedure entered into force . According to the relevant provisions of the new Code ( Articles CARDINAL and CARDINAL ) , all detained persons have the right of access to a lawyer from the moment they are taken into police custody . The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of DATE imprisonment .", "Finally , section CARDINAL of LAW ( Law no . ORG ) , as amended on DATE , provides that for terrorist - related offences , the right of access to a lawyer may be delayed for TIME on the order of a public prosecutor . However , the accused can not be interrogated during this period .", "The Recommendation of the Committee of Ministers to member ORG concerning new ways of dealing with juvenile delinquency and the role of juvenile justice ( Rec(CARDINAL)CARDINAL ) , adopted on DATE at the ORG meeting of ORG , in so far as relevant , reads as follows :", "“ CARDINAL . Where juveniles are detained in police custody , account should be taken of their status as a minor , their age and their vulnerability and level of maturity . They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding . While being questioned by the police they should , in principle , be accompanied by their parent / legal guardian or other appropriate adult . They should also have the right of access to a lawyer and a doctor ... ”", "The Recommendation of the Committee of Ministers to member ORG on social reactions to juvenile delinquency ( Recommendation No . R ( CARDINAL ) CARDINAL ) , adopted on CARDINAL DATE at the CARDINALth meeting of ORG , in so far as relevant , reads as follows :", "“ Recommends the governments of member GPE to review , if necessary , their legislation and practice with a view :", "to reinforcing the legal position of minors throughout the proceedings , including the police interrogation , by recognising , inter alia :", "– the right to the assistance of a counsel who may , if necessary , be officially appointed and paid by the ORG . ”", "Article CARDINAL of the Convention on the Rights of the Child ( CRC ) , in so far as relevant , reads as follows :", "“ GPE Parties shall ensure that : ...", "( d ) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance , as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent , independent and impartial authority , and to a prompt decision on any such action . ”", "The relevant part of this text concerning legal assistance to minors in police custody provides as follows :", "“ DATE . The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his / her defence . ORG does require that the child be provided with assistance , which is not necessarily under all circumstances legal but it must be appropriate . It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ...", "...", "The ORG recommends that the GPE Parties set and implement timelimits for the period between the communication of the offence and the completion of the police investigation , the decision of the prosecutor ( or other competent body ) to bring charges against the child , and the final adjudication and decision by the court or other competent judicial body . These time - limits should be much shorter than those set for adults . But at the same time , decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected . In this decision - making process without delay , the legal or other appropriate assistance must be present . This presence should not be limited to the trial before the court or other judicial body , but also applies to all other stages of the process , beginning with the interviewing ( interrogation ) of the child by the police . ”", "The relevant part of this text provides as follows :", "“ CARDINAL . The ORG recommends that ORG continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the LAW [ on the Rights of the LAW ] , in particular ORG DATE , as well as with other relevant international standards in this area , such as ORG for ORG ( the Beijing Rules ) and LAW for ORG ( ORG ) , with a view to raising the minimum legal age for criminal responsibility , extending the protection guaranteed by ORG to all children up to DATE and enforcing this law effectively by establishing juvenile courts in every province . In particular , it reminds ORG that juvenile offenders should be dealt with without delay , in order to avoid periods of incommunicado detention , and that pre - trial detention should be used only as a measure of last resort , should be as short as possible and should be no longer than the period prescribed by law . Alternative measures to pre - trial detention should be used whenever possible . ”", "Rule CARDINAL of the Standard Minimum Rules for the Treatment of Prisoners ( Resolution ( CARDINAL ) CARDINAL of ORG ) provides :", "“ An untried prisoner shall be entitled , as soon as he is imprisoned , to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive , confidential instructions . At his request , he shall be given all necessary facilities for this purpose . ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing , either direct or indirect , of a police or institution official . ”", "Furthermore , the Recommendation of the Committee of Ministers to member ORG on ORG ( Rec(CARDINAL)CARDINAL ) , adopted on DATE at the PERSON meeting of ORG , in so far as relevant , reads as follows :", "“ Legal advice", "CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice .", "CARDINAL Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .", "...", "CARDINAL A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security . ”", "Following its visit to GPE in DATE , the ORG published its report dated DATE ( CPT / Inf(CARDINAL)CARDINAL ) . It stated :", "“ CARDINAL . Despite the many changes to legislation in DATE , certain weaknesses remain as regards formal safeguards against ill - treatment . Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of ORG are still not entitled to access to a lawyer during DATE of their custody . Further , despite earlier affirmations to the contrary , the NORP authorities made clear in their response to the report on DATE visit that such persons are being denied during DATE of their custody the possibility to inform a relative of their situation . Such incommunicado detention can only facilitate the infliction of ill - treatment .", "The ORG must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies , including persons suspected of offences falling under the jurisdiction of ORG , be granted as from the outset of their custody the right of access to a lawyer . The ORG recognises that in order to protect the legitimate interests of the police investigation , it may exceptionally be necessary to delay for a certain period a detained person ’s access to a lawyer of his choice ; however , in such cases , access to another independent lawyer should be arranged .", "The implementation of the above recommendation will require legislative measures . However , in the meantime , immediate steps should be taken to ensure that existing legal provisions are complied with . Indeed , the information gathered during the DATE ad hoc visit clearly indicates that even after DATE of police custody , access to a lawyer for persons suspected of ORG offences is in practice the exception rather than the rule . The ORG recommends that the officials responsible for carrying out checks and inspections under the previously - mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of ORG are being informed of their right to have access to a lawyer after DATE of their custody and are being placed in a position effectively to exercise that right . ”", "NORP The ORG visited GPE again in DATE and in its report dated DATE ( CPT / Inf(CARDINAL)CARDINAL ) stated :", "“ CARDINAL . The amendments made to LAW have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of ORG . For such persons , the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond TIME ; in other words , they are now denied access to a lawyer only for DATE as compared to DATE under the previous law .", "Whilst welcoming this step forward , the ORG regrets that the opportunity was not taken to guarantee to persons detained for collective ORG offences a right of access to a lawyer as from the very outset of their custody ( and hence align their rights in this respect with those of ordinary criminal suspects ) . The ORG trusts that the NORP authorities will in the near future implement the ORG ’s long - standing recommendation that all persons deprived of their liberty by law enforcement agencies , including persons suspected of offences falling under the jurisdiction of ORG , be granted as from the outset of their custody the right of access to a lawyer .", "...", "Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one ’s custody notified to a relative ( cf . paragraphs CARDINAL to CARDINAL ) . They have further improved an already impressive legal and regulatory framework to combat torture and ill - treatment . Nevertheless , the ORG remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of ORG are still denied access to a lawyer during DATE of their custody ; its position on this point has been made clear in paragraph CARDINAL .", "Further , the actual content of the right of access to a lawyer for persons suspected of ORG offences remains less well developed than in the case of ordinary criminal suspects . In particular , as far as the ORG can ascertain , it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by ORG is not applicable to them . Similarly , the provision making obligatory the appointment of a lawyer for persons DATE still does not apply to juveniles who are detained on suspicion of ORG offences . In this regard , the ORG reiterates the recommendation already made in the report on the DATE visit , that the relevant provisions of ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of ORG . ”", "Article CARDINAL § CARDINAL ( b ) of LAW provides that everyone charged with a criminal offence is to be entitled “ [ t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing ” .", "In its Conclusions and Recommendations on GPE , dated DATE ( CAT / C / CR/CARDINAL/CARDINAL ) , the ORG stated the following :", "“ CARDINAL . The ORG expresses concern about", "...", "( c ) NORP allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention ;", "...", "The ORG recommends that ORG", "( a ) NORP ensure that detainees , including those held for offences under the jurisdiction of ORG , benefit fully in practice from the available safeguards against ill - treatment and torture , particularly by guaranteeing their right to medical and legal assistance and to contact with their families ;", "... ”", "In its General Comment No . CARDINAL , dated DATE ( CAT / C / GC/CARDINAL ) , the ORG stated :", "“ CARDINAL . Certain basic guarantees apply to all persons deprived of liberty . Some of these are specified in the Convention , and the ORG consistently calls upon the GPE Parties to use them . The ORG ’s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive . Such guarantees include , inter alia , ... the right promptly to receive independent legal assistance ... ”", "Article CARDINAL of the Charter of Fundamental Rights states that “ [ r]espect for the rights of the defence of anyone who has been charged shall be guaranteed ” . Article CARDINAL further states that the meaning and scope of the right guaranteed under LAW are the same as the equivalent right laid down by LAW ." ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-c" ]

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[ "The applicant is an NORP national born in DATE and currently residing in GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE , pending proceedings for the applicant 's parents ' judicial separation , counsel for the applicant 's father in a letter addressed to counsel for the applicant 's mother stated that the applicant had assaulted and injured his father .", "The applicant , who firmly denied these accusations , requested his father and his counsel to rectify the above statement , failing which he would file a complaint for defamation .", "On DATE , the applicant filed a criminal complaint against his father and the latter ’s lawyer with ORG attached to ORG , reserving his possibility to lodge a civil party application .", "On DATE , ORG , noting that the facts as alleged by the applicant might have raised an issue under LAW ( defamation ) , invited the applicant , his father and the latter ’s lawyer to appear before him on DATE with a view to trying to settle the case pursuant to LAW .", "The parties having failed to appear before ORG on the scheduled date , the latter invited them to appear before him on DATE . Once again , the parties did not respond to the invitation .", "On DATE , ORG requested the Rome Magistrate to fix a date for the trial .", "On DATE the applicant was officially informed that , by an act of DATE , ORG had summoned the applicant ’s father and the latter ’s lawyer to appear before the Rome Magistrate on DATE and requested that they be committed to trial for defamation against the applicant . He was also informed that the date of the hearing had later been changed to DATE .", "On DATE the Rome Magistrate ruled that the proceedings be discontinued , the prosecution being time - barred .", "B. Relevant domestic law", "According to Article CARDINAL of the NORP Civil Code , “ whoever , intentionally or negligently , commits a wrongful act , must compensate for any unjust damage thereby caused ” .", "According to Articles DATE of LAW and CARDINAL of LAW , compensation for moral damage can only be sought if the facts which have caused it constitute a criminal offence .", "According to the established case - law ( cf . , inter alia , ORG , judgment no . CARDINAL of CARDINAL DATE ; ORG , judgment of CARDINAL DATE , ORG v. PERSON . PERSON . PERSON . PERSON ) , when the offence is time - barred , the civil courts are competent to assess and award the moral damage on the basis of the facts of the case .", "According to the first paragraph of LAW , the injured party is entitled , at any stage of the proceedings and before any level of jurisdiction , to submit memorials and also , except before ORG , to seek to adduce evidence .", "According to LAW , in cases in which the prosecution is conditional upon a relevant request by the injured party , the public prosecutor can summon the latter and the accused to appear before him with a view to enquiring whether the injured party would withdraw the criminal complaint and the accused would accept such withdrawal . The parties can be assisted by a lawyer ." ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant lodged an action before ORG of LOC against the head of the local administration , a transport company and a private individual for compensation for damage .", "The Severo - Evenkiyskiy District Court disallowed the action because it should have been lodged before ORG which had territorial jurisdiction over it .", "On DATE the applicant lodged the action before ORG . She asked the court to examine her claim in her absence , as she lived in GPE .", "As the applicant ’s claim had not been examined from DATE , she complained to various officials about the court ’s inactivity .", "On DATE the Deputy President of ORG informed the applicant that it was impossible to expedite the proceedings because the judges were overburdened with cases .", "On DATE the applicant increased her claim .", "A hearing was fixed for DATE and adjourned due to the defendants’ absence .", "On DATE ORG dismissed the applicant ’s action .", "On DATE a copy of the judgment was sent to the applicant .", "On DATE the applicant appealed against the judgment of DATE .", "On DATE ORG stayed the appeal proceedings and requested the applicant to submit by DATE CARDINAL copies of her statement of appeal and to pay RUR CARDINAL in a court fee .", "On DATE the judgment of CARDINAL DATE became final because the applicant had not paid the fee .", "On DATE ORG returned the statement of appeal .", "On DATE the ORG of ORG , by way of supervisory review , quashed the judgment of DATE and remitted the case for a new examination .", "On DATE the case - file was sent to the town court .", "On DATE the judge PERSON was assigned to the case .", "On DATE the case was transferred to the judge D.", "Of CARDINAL hearings listed DATE , CARDINAL hearings were adjourned . CARDINAL hearings were adjourned due to the applicant ’s absence . The other hearings were adjourned because the parties did not attend , although the applicant repeatedly asked the court to hold hearings in her absence .", "In DATE the applicant moved from GPE to the Primorye Region . She submits that promptly after the move she advised by post ORG of her new address .", "On DATE the ORG requested the applicant to submit additional documents . It appears that the instructions were successfully fulfilled by the applicant .", "On DATE ORG , in the applicant ’s absence , dismissed her action .", "On DATE the registry of ORG sent a copy of the judgment to the applicant ’s old address in GPE .", "On DATE the applicant complained to ORG about the town court ’s inactivity in her case .", "On DATE the President of ORG replied by a letter that the case had been decided on DATE . The President also acknowledged that , although the applicant had advised the court of her new address , on DATE a copy of the judgment had been mistakenly sent to the applicant ’s previous address .", "On DATE the registry of the town court sent a copy of the judgment of DATE to the applicant ’s address in GPE .", "On DATE the President of ORG informed the applicant that a copy of the DATE judgment had been twice sent to the applicant ’s address in GPE and that ORG was told to send a copy of the judgment to her current address in GPE .", "On DATE ORG sent a copy of the judgment of DATE to the applicant ’s address in GPE . She received it on DATE .", "On DATE the applicant requested ORG to extend the time - limit for lodging an appeal against the judgment of DATE . The request enclosed a statement of appeal .", "On DATE the ORG extended the time - limit and accepted the applicant ’s statement of appeal .", "On DATE ORG , in the applicant ’s absence , upheld the judgment of DATE .", "On DATE a copy of the judgment of CARDINAL DATE was sent to the applicant ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants were born in DATE , DATE and DATE respectively and live in GPE . They are officials of ORG", "By Presidential Decree no . CARDINAL/CARDINAL of CARDINAL DATE , ORG was dissolved and a general election was called for DATE .", "In a fax dated DATE to the NORP Ambassador in GPE , the applicants , as permanent residents in GPE , expressed the wish to exercise their voting rights in GPE in the elections to be held on DATE .", "In his reply of CARDINAL DATE the Ambassador , relying on the instructions and information provided by ORG , stated as follows :", "“ [ ORG ] confirms its wish DATE expressed frequently at the institutional level – to enable NORP citizens resident abroad to vote at their place of residence . However , it is clear that this matter requires regulation by means of legislation which does not currently exist . In fact , such regulation could not be brought about by a simple administrative decision , given that special measures would be required for the setting - up of polling stations in LOC In the light of the above and despite the wish expressed by the ORG , your request concerning the forthcoming elections can not be granted for objective reasons . ”", "The general election took place on DATE . The applicants , who did not return to GPE , did not exercise their right to vote .", "The relevant provisions of LAW read as follows :", "“ ...", "Popular sovereignty is the foundation of government .", "All powers derive from the People and exist for ORG ; they shall be exercised as specified by LAW . ”", "“ ...", "The Members of ORG shall be elected through direct , universal and secret ballot by those citizens who have the right to vote , as specified by law . The law can not curtail the right to vote except in cases where the statutory minimum age has not been attained or in cases of legal incapacity or as a result of a final criminal conviction for certain offences .", "Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute .", "The exercise of the right to vote is compulsory . Exceptions and criminal sanctions shall be specified in each case by law . ”", "Following the Constitutional revision of DATE , LAW was amended as follows :", "“ CARDINAL . Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute , adopted by a majority of CARDINAL of the total number of Members of ORG . Concerning such persons , the principle of simultaneously holding elections does not rule out the exercise of their right to vote by postal vote or by other appropriate means , provided that the counting of votes and the announcement of the results is carried out at the same time as within the country . ”", "“ CARDINAL . The ORG must be attentive to the situation of emigrant NORP and to the maintenance of their ties with the LOC . The ORG shall also attend to the education and the social and professional advancement of NORP working outside the ORG .", "The law shall lay down arrangements relating to the organisation , operation and competences of ORG , whose mission is to allow the full expression of NORP worldwide . ”", "At the time of the parliamentary elections in issue , Presidential Decree no . PERSON , which was the electoral legislation then in force , provided as follows :", "“ Any NORP national aged CARDINAL or over is entitled to vote . ... ”", "“ The following persons are not entitled to vote :", "( a ) Persons who have been placed under guardianship , in accordance with the provisions of LAW .", "( b ) Persons finally convicted of CARDINAL of the offences provided for in LAW or LAW , for the duration of their sentence . “", "“ CARDINAL . The right to vote in a constituency is reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency .", "Voting is mandatory . ”", "NORP The report on that bill placed before ORG by the Ministers of the ORG , ORG and ORG DATE indicated that the purpose of the bill was to fulfil “ one of the ORG ’s major historical obligations , one which undeniably reinforces NORP expatriates’ ties with the homeland ” . The report stated that the right to vote of NORP nationals living abroad arose out of both LAW and LAW . In particular , as regards LAW , the report pointed out that it “ affords NORP expatriates a ‘ social right’ . The provision obliges the NORP State to take all necessary measures to maintain NORP expatriates’ ties with GPE , to ensure they have access to NORP education and to make provision , as a matter of ORG duty , for the social and professional advancement of NORP working outside GPE . Regulating the conditions for the exercise by NORP expatriates of their right to vote in NORP parliamentary elections will undeniably contribute to real ties being forged between NORP expatriates and their homeland ” . Moving on to the constitutional provision on this specific subject , namely LAW , the report stated that the law to which that Article referred had the status of an implementing law of LAW . Finally , the report considered that “ in these times of globalisation , NORP expatriates must be able to have a decisive political say in the development of their own country ” .", "ORG ( ORG ) of ORG , a consultative body reporting to the Speaker of ORG , produced a report dated DATE on the aforementioned bill . That report noted that in the past , some legal authorities had argued that LAW imposed upon ORG an obligation to grant expatriate NORP the right to vote from outside GPE . However , referring to other legal authorities and the preparatory work for LAW , ORG stated that it was an option rather than a duty of the legislature to grant the right to vote from abroad . It observed , further , that the optional nature of the aforementioned provision of the LAW had not been affected by the LAW revision of DATE .", "On DATE the bill was rejected by ORG since it failed to gain the majority of CARDINAL of the total number of Members of ORG required under LAW .", "According to the information provided on the website of ORG of the ORG concerning NORP nationals living abroad , elections to ORG are organised as follows :", "“ NORP citizens who have their residence in the other CARDINAL countries of ORG and NORP who happen to be in another Member State of ORG are entitled to participate in the election process in GPE in parallel with NORP voters throughout the NORP State . These results will be incorporated into the general voting results achieved in the NORP State overall .", "...", "In order to exercise their right to vote at their place of residence NORP resident abroad should :", "be registered in an electoral roll of a municipality or community in GPE ;", "be entitled to vote and not have been deprived of that right ;", "submit a statement to the local ORG ( in the area where they intend to exercise their voting rights ) that they wish to vote at their place of residence . ... ;", "have their residence in a Member State of ORG . Based on this statement they will be entered in special electoral rolls prepared by ORG .", "...", "Buildings belonging to ORG , buildings of other NORP authorities or services , independent offices of ORG and buildings or other premises belonging to NORP communities , associations or other NORP organizations may be used as polling stations ( to be decided on by the Minister of Interior ) , which will form electoral departments . In case these buildings are inadequate to meet election needs , buildings belonging to the ORG Member ORG may be used .", "The number of electoral departments ( to be decided on by the Minister of ORG ) , which will be established for each ORG or Consulate depends on the number of voters stating their intention to vote in that area", "...", "Voting at each electoral department will take place under the supervision of a returning board which will consist of ... a Chairman and CARDINAL voters from those included in the special electoral rolls . The [ Chairman ] will be appointed by ORG . The other members of the returning board drawn from persons registered in the special electoral rolls will be appointed by the local Ambassador or Consul following a public draw of lots at the Embassy or Consulate . The date and time of such drawing of lots shall be notified by ORG by displaying a notice to this effect at their offices .", "ORG functionaries , court employees and attorneys at law from GPE may be appointed as [ Chairmen ] of the returning boards . If inadequate numbers of such persons are available to cover the needs of all electoral departments , at exception ORG I of ORG may appoint the following persons ... : permanent ORG and Consul attachés and secretaries ... of higher or tertiary level education employed in the post of ORG or above ) serving within the area covered by the Embassy or Consulate . ”", "The relevant texts adopted by the competent bodies of ORG provide as follows :", "“ ...", "NORP In accordance with the opinion of ORG ) adopted in DATE , it therefore invites the member and observer states of the ORG to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim .", "The ORG considers that , as a rule , priority should be given to granting effective , free and equal electoral rights to the highest possible number of citizens , without regard to their ethnic origin , health , status as members of the military or criminal record . Due regard should be given to the voting rights of citizens living abroad .", "...", "Given the importance of the right to vote in a NORP society , the member countries of ORG should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems . They should take appropriate measures to facilitate the exercise of such voting rights as much as possible , in particular by considering absentee ( postal ) , consular or e - voting , consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on legal , operational and technical standards for evoting . Member states should co - operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories .", "...", "The ORG therefore invites :", "i. ORG member and observer states concerned to :", "...", "b. grant electoral rights to all their citizens ( nationals ) , without imposing residency requirements ;", "c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ( postal and/or consular voting ) and considering the introduction of e - voting consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG and to co - operate with one another to this end ;", "... ”", "“ CARDINAL . Referring to its Resolution CARDINAL ( DATE ) on the abolition of restrictions on the right to vote , ORG calls upon ORG to :", "i. NORP appeal to member and observer states to :", "a. sign and ratify the DATE ORG on the Participation of Foreigners in Public Life at Local Level ( ETS No . CARDINAL ) and to grant active and passive electoral rights in local elections to all legal residents ; and", "b. reconsider existing restrictions on electoral rights of prisoners and members of the military , with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim ;", "ii . invite the competent services of ORG , in particular ORG ) and its ORG , to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties , such as expatriates , prison inmates , persons who have been convicted of a criminal offence , residents of nursing homes , soldiers or nomadic groups ;", "iii . review existing instruments with a view to assessing the possible need for a ORG convention to improve international co - operation with a view to facilitating the exercise of electoral rights of expatriates . ”", "“ ...", "CARDINAL Freedom of voters to express their wishes and action to combat electoral fraud", "i. NORP voting procedures must be simple ;", "ii . NORP voters should always have the possibility of voting in a polling station . Other means of voting are acceptable under the following conditions :", "iii . NORP postal voting should be allowed only where the postal service is safe and reliable ; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad ; fraud and intimidation must not be possible ;", "iv . NORP electronic voting should be used only if it is safe and reliable ; in particular , voters should be able to obtain a confirmation of their votes and to correct them , if necessary , respecting secret suffrage ; the system must be transparent ;", "v. very strict rules must apply to voting by proxy ; the number of proxies a single voter may hold must be limited ;", "... ”", "“ ...", "Although LAW is not a binding document , it does nonetheless set out a NORP standard which could influence the interpretation of treaty - based rules , in particular LAW CARDINAL ( see infra CARDINAL . ) .", "Guideline I.CARDINAL.CARDINAL of the LAW states that electronic voting should be accepted only if it is secure and reliable . In particular , electors must be able to obtain confirmation of their vote and correct it if necessary , while respecting secret suffrage . The system ’s transparency must be guaranteed . Any violation of secret suffrage should be sanctioned ( guideline I.CARDINAL.d ) .", "In paragraph DATE onwards of the explanatory report , this guideline is clarified as follows :", "Although mechanical and electronic voting methods present clear advantages when several elections are taking place at the same time , certain precautions are needed to minimise the risk of fraud , for example by enabling the voter to check his or her vote immediately after casting it . In order to facilitate verification and a recount of votes in the event of an appeal , it may also be provided that a machine could print votes onto ballot papers ; these would be placed in a sealed container where they can not be viewed . All the methods used should enable the confidentiality of the ballot to be guaranteed ( see explanatory report , § DATE ) . Electronic voting methods are ‘ secure’ if the system can withstand deliberate attack ; they are ‘ reliable’ if they can function on their own , irrespective of any shortcomings in the hardware or software ( § CARDINAL ) . The system ’s transparency must be guaranteed , in the sense that it must be possible to check that it is functioning properly ( § CARDINAL ) .", "According to guideline I.CARDINAL.a . , democratic elections are not possible without respect for human rights , in particular freedom of expression and of the press , freedom of circulation inside the country , freedom of assembly and freedom of association for political purposes , including the creation of political parties . Restrictions of these freedoms must be in conformity with the ORG and , more generally , have a basis in law , be in the public interest and comply with the principle of proportionality ( cf . § CARDINAL of the explanatory report ) .", "It may be concluded that , on the one hand , the institutionalisation of postal voting and e - enabled voting is , in principle , compatible with LAW . On the other hand , their compatibility depends primarily on adequate provision , through national legislation and legal practice , of the prescribed conditions , taking particular account of technical and social conditions . ”", "External voting rights , e.g. granting nationals living abroad the right to vote , are a relatively new phenomenon . Even in long - established democracies , citizens living in foreign countries were not given voting rights until DATE ( e.g. GPE , GPE ) or DATE ( e.g. , GPE , GPE ) . In the meantime , however , many emerging or new democracies in LOC have introduced legal provisions for external voting .... Although it is yet not common in LOC , the introduction of external voting rights might be considered , if not yet present . However , safeguards must be implemented to ensure the integrity of the vote ...", "...", "Postal voting is permitted in several established democracies in LOC , GPE , GPE , GPE , GPE and , for voters abroad , the GPE , GPE , and GPE ... It was also used , for example , in GPE and the GPE in order to ensure maximum inclusiveness of the election process ( ORG ( CARDINAL ) DATE ) . However , it should be allowed only if the postal service is secure and reliable . Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting .", "... ”", "Having carried out a comparative study of the domestic law of PERCENT ORG member GPE based primarily on data gathered by ORG and by ORG , the ORG notes that the great majority of those countries have implemented procedures to allow their nationals living abroad to vote in parliamentary elections . In particular , CARDINAL countries make provision , without restriction as to the persons concerned , for the right to vote from abroad ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . CARDINAL member States impose certain restrictions on their nationals’ right to vote from abroad ( GPE , GPE and GPE ) . Finally , CARDINAL member GPE make no provision for their nationals living abroad to vote in parliamentary elections ( GPE , GPE , GPE and GPE ) ." ]

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[ "The first to fifth applicants were born in DATE , DATE and DATE respectively and live in GPE .", "During DATE the applicants lent various sums of money to a number of agencies that were supposed to pay back the loans within periods ranging from DATE and at interest rates ranging from PERCENT per month ( so called “ financial engineering ” ) . As these agencies failed to re - pay the loans , the applicants instituted civil proceedings against the agencies and their alleged owners .", "On DATE the applicant filed an action with ORG ( PERSON ) seeking payment of his loan in the amount of CARDINAL NORP PERSON ( ORG ) .", "The preliminary hearing scheduled for DATE was adjourned .", "As on DATE the presiding judge resigned from her office , the case was transferred to another judge in DATE .", "The next hearing scheduled for DATE was adjourned because the presiding judge was absent .", "The hearing scheduled for DATE was adjourned because PERSON did not appear . As the documents indicated that she had been released from detention on remand , the court invited the applicant to submit her new address . When the applicant informed the court that he did not know PERSON ’s new address , the court requested ORG ( ORG unutarnjih poslova PERSON ) to submit PERSON ’s new address . ORG informed the court that PERSON had changed her name into GPE", "The hearings scheduled for DATE and DATE were adjourned because PERSON had not collected a notice of the hearing date .", "It appears that the proceedings are pending before the court of first instance .", "On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .", "Before the period to be examined by the ORG several hearings were held and several adjourned . The hearing scheduled for DATE was adjourned because PERSON did not appear . The court invited the applicant to submit the number of the case - file concerning criminal proceedings against PERSON before the same court .", "As the applicant failed to do so , the court itself found the file number , but was unable to review that file because it was sent to ORG ( Županijski sud u GPE ) on DATE . The court repeated its request to examine the file on DATE , DATE and CARDINAL DATE .", "As neither party appeared at the hearing scheduled for DATE the court found that the applicant had withdrawn his claim .", "The applicant appealed against that decision stating that he had been ill on the date of the hearing . On DATE the court invited the applicant to submit evidence as to the fact that he had been ill . The applicant appeared before the court on DATE and stated that he had no medical documentation .", "On DATE the court sent the case - file to ORG as the appellate court . However that court found that the applicant ’s appeal in effect had been a request to resume the proceedings . Consequently , on DATE the case - file was returned to ORG .", "It appears that the proceedings are pending before ORG .", "On DATE the applicant , together with CARDINAL other plaintiffs , filed an action for re - payment of their loans with ORG . The applicant claimed a sum of DEM CARDINAL,CARDINAL .", "NORP Before the period to be examined by the Court QUANTITY hearings were held .", "On DATE the court dismissed the claims of CARDINAL plaintiffs , but not in respect of the second applicant . As on DATE the plaintiffs whose claims were dismissed appealed against that decision , the case file was sent to ORG ( Županijski sud u GPE ) on DATE , for consideration on appeal .", "On DATE ORG upheld the first instance decision except in respect of CARDINAL of the plaintiffs .", "On DATE ORG invited the plaintiffs’ counsel to submit a certificate from the registry of ORG ( PERSON ) regarding the legal status of F.I.M.", "On DATE the ORG counsel withdrew the claim in respect of F.I.M.", "The next hearing took place on DATE .", "At the hearing on DATE the court heard GPE and then adopted judgment rejecting all claims . The judgment was served on the GPE counsel on DATE . On DATE the plaintiffs’ counsel appealed against the judgment .", "ORG , as the appellate court , found that the appeal was submitted by PERSON on behalf of all plaintiffs although he had not had a power of attorney . The case file was therefore returned to ORG on DATE . On DATE ORG invited PERSON to submit a power of attorney to represent the other plaintiffs .", "It appears that the proceedings are pending on appeal before ORG .", "On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG for re - payment of their loans . The applicant claimed PERSON CARDINAL .", "Before the period to be taken into account CARDINAL hearing was held and CARDINAL was adjourned .", "At the next hearing on DATE the court invited the plaintiffs to submit additional documentation .", "Although they failed to submit that documentation , the next hearing was held on DATE . The plaintiffs asked the court to hear several witnesses but were unable to submit their addresses .", "On DATE the court invited the plaintiffs to submit further evidence necessary to proceed with the case . The plaintiffs claimed that they were members of ORG Investors QUANTITY ” , but did not submit either its registration certificate or its articles of association . Furthermore , CARDINAL plaintiffs failed to submit evidence as to their investments into the “ financial engineering ” and CARDINAL plaintiffs failed to submit their addresses .", "At the hearing on DATE the plaintiffs’ counsel submitted the registration certificate and the articles of association as well as the addresses of the witnesses to be heard .", "At the hearing on DATE the court heard CARDINAL witness . It invited again the GPE counsel to submit evidence in respect of CARDINAL plaintiffs as to their investments into the “ financial engineering ” as well as the addresses of CARDINAL plaintiffs .", "On DATE the plaintiffs submitted the requested addresses and asked the court to allow them an additional period of DATE to submit evidence in respect of CARDINAL plaintiffs as to their investments into “ financial engineering ” .", "On DATE the plaintiffs submitted evidence in respect of CARDINAL plaintiffs as to their investments but were unable to produce such evidence for the third plaintiff . They also changed their claims .", "At the next hearing scheduled for DATE the court stayed the proceedings because the plaintiffs’ representative did not appear .", "On DATE the applicant filed a request to resume the proceedings .", "It appears that the proceedings are pending before the court of first instance .", "On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of NORP Francs ( CHF ) CARDINAL .", "Before the period to be examined by the ORG CARDINAL hearings were adjourned . It turned out that F.I.S. had ceased to exist and that PERSON had changed her address . In DATE the court invited the applicant to submit her correct address within DATE .", "On DATE the court repeated its request .", "On DATE the applicant submitted PERSON ’s new address .", "On DATE the court ordered the applicant to request ORG ( NORP za socijalnu skrb ) to appoint a legal representative for PERSON", "On DATE ORG informed the court that by a decision of DATE it had appointed a legal representative for PERSON", "At the next hearing on DATE the representative gave her reply to the applicant ’s claim . The applicant informed the court that he had obtained PERSON ’s new address and asked the court to invite PERSON to the next hearing .", "At the next hearing on CARDINAL DATE the applicant was heard . PERSON failed to appear . Her representative asked the court to enclose the case - file concerning the criminal proceedings against PERSON before the same court .", "However , the court was unable to enclose the criminal case file as the criminal proceedings against PERSON were still pending .", "According to the Government , on DATE the court requested ORG registry to submit a certificate regarding the legal status of F.I.S. It turned out that on DATE ORG had instituted ex officio proceedings for liquidation of F.I.S.", "At the next hearing on DATE the court concluded the proceedings .", "On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG for re - payment of their loans . The applicant claimed a sum of ORG CARDINAL .", "Before the period to be examined by the ORG one hearing was adjourned .", "A hearing scheduled for DATE was adjourned because the defendants did not appear . T.I.A. had ceased to exist and GPE had failed to collect the notice of the hearing date .", "At the hearing on CARDINAL DATE the GPE counsel gave his reply to the plaintiffs’ claim . The court invited GPE to give his additional detailed reply to the GPE claim within DATE .", "The next hearing scheduled for DATE was adjourned because CARDINAL plaintiffs , including the applicant , who were supposed to be heard , failed to appear . It turned out that the applicant had failed to collect the notice of the hearing date as well as another plaintiff , while CARDINAL other plaintiffs had changed their addresses .", "On DATE the plaintiffs’ counsel submitted their addresses .", "The next hearing scheduled for DATE was adjourned because ORG did not appear .", "At hearing on DATE the court heard one of the plaintiffs and then asked the plaintiffs to specify their claims and submit further documents .", "It appears that the proceedings are pending before the court of first instance .", "On DATE the applicant , together with CARDINAL other plaintiffs , filed an action for re - payment of their loans with ORG . The applicant claimed a sum of DEM CARDINAL,CARDINAL .", "Before the period to be examined by the ORG one hearing was adjourned .", "On DATE the court requested ORG to submit PERSON ’s correct address .", "On DATE ORG informed the court that PERSON ’s address was unknown .", "The next hearing scheduled for DATE was adjourned as PERSON did not appear . The documents showed that she was unknown at the address indicated . According to the registry of ORG , however , she remained registered at the same address .", "On DATE the plaintiffs’ counsel asked the court to request ORG to appoint a legal representative for PERSON", "On DATE the court invited again ORG to submit PERSON ’s address .", "On DATE the court ordered ORG FAC uprava CARDINAL ) to make an on the spot inquiry about PERSON ’s address . The police found out that she had left the address where she was registered and that her new address was unknown .", "It appears that the proceedings are pending before the court of first instance .", "DATE . On DATE the applicant , together with CARDINAL other plaintiffs , filed an action for re - payment of their loans with ORG . The applicant claimed a sum of DEM CARDINAL,CARDINAL .", "Before the period to be examined by the ORG CARDINAL hearings were adjourned .", "The court scheduled the next hearing for DATE and invited PERSON to submit the evidence he relied on in his written reply to the plaintiffs’ claims . However , he failed to do so and also did not appear at the hearing . The plaintiffs’ counsel submitted that PERSON was found guilty for fraud in criminal proceedings conducted before the same court in connection with the GPE loans . On DATE the plaintiffs’ counsel submitted the number of the criminal case - file against PERSON", "On DATE the court requested the criminal case - file against PERSON from the criminal division of ORG , but the case - file was at the ORG pending decision on appeal .", "The court repeated its request to enclose the criminal case - file on DATE , DATE and CARDINAL DATE and DATE , but the case - file was at ORG ( Ured državnog odvjetništva ) .", "At the next hearing on DATE the court invited the applicant to submit a copy of the judgment finding PERSON guilty for fraud .", "On DATE the applicant informed the court that the first instance judgment in the criminal proceedings against PERSON had been quashed and the case remitted to the court of first instance for re - trial .", "It appears that the proceedings are pending before the court of first instance .", "On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .", "Before the period to be examined by the ORG one hearing was held and one was adjourned .", "On DATE the court invited the applicant ’s counsel to submit ORG ’s address within DATE .", "On DATE the applicant ’s counsel submitted ORG ’s new address .", "On DATE the court invited the applicant ’s counsel to submit within DATE a notice from the registry of ORG concerning the legal status of ORG", "It appears that the proceedings are pending before the court of first instance .", "On DATE the applicant filed an action for re - payment of his loan , in the amount of DEM CARDINAL,CARDINAL , with ORG .", "Before the period to be examined by the ORG , first instance judgment awarding the applicant ’s claim in part and rejecting it in part was adopted . This judgment was quashed on appeal in the part rejecting the applicant ’s claim and the case was remitted for re - trial to the court of first instance .", "The hearings scheduled for DATE , DATE and DATE before ORG were adjourned since GPE failed to appear .", "At the next hearing on CARDINAL DATE the court adopted a judgment awarding the rest of the applicant ’s claim . The judgment became final on DATE .", "According to the Government , the applicant has not sought to enforce the judgment .", "On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .", "Before the period to be examined by ORG several hearing were held and several adjourned and on DATE the court adopted judgment rejecting the applicant ’s claim .", "On DATE the applicant appealed against the judgment .", "On DATE the proceedings ended by ORG decision upholding the first instance judgment .", "On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL ; CARDINAL HRK ; and CHF CARDINAL .", "The preliminary hearings scheduled for DATE , CARDINAL DATE , DATE , DATE , DATE and DATE and CARDINAL DATE were adjourned as PERSON failed to appear .", "At the hearing on DATE PERSON replied to the applicant ’s claim .", "On DATE the applicant specified his claim .", "At the hearing on DATE the applicant and a witness were heard .", "From DATE to CARDINAL DATE the court unsuccessfully attempted on many occasions to consult the case - file concerning criminal proceedings against PERSON before the same court .", "At the hearing on DATE the court adopted a judgment finding in favour of the applicant . The judgment became final on DATE .", "According to the Government , the applicant has not sought the enforcement of the judgment .", "On DATE the applicant filed an action for re - payment of his loan in the amount of DEM CARDINAL with ORG .", "DATE . Before the period to be examined by the ORG several hearings were held and several adjourned .", "The hearing scheduled for DATE was adjourned because the witnesses invited did not appear .", "At the hearing on DATE CARDINAL witness was heard . The court requested ORG FAC uprava varaždinska ) to submit the address of another witness .", "On DATE ORG submitted the requested address .", "At the hearing on DATE CARDINAL PERSON gave her testimony . The court invited ORG to submit a certificate from its registry regarding the legal status of PERSON and decided to examine the criminal case - file against GPE However , the criminal case - file could not be consulted because the criminal proceedings were pending .", "The hearings scheduled for DATE and CARDINAL DATE were adjourned because DATE did not appear .", "At the next hearing the court heard the applicant and Ð. M.", "At the next hearing on DATE the court stayed the proceedings because the applicant did not appear .", "On DATE the applicant filed a request to resume the proceedings .", "It appears that the proceedings are pending before the court of first instance .", "Section CARDINAL ( CARDINAL ) of LAW on LAW ( which entered into force on DATE hereinafter “ LAW ” – PERSON o PERSON ) reads as follows :", "“ ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party ’s constitutional rights and freedoms and that , if it does not act , a party will risk serious and irreparable consequences . ”", "Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE hereinafter “ LAW DATE ” – PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new Section CARDINAL ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :", "( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...", "( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...", "( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment ." ]

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[ "NORP The applicant , PERSON , is a NORP citizen of NORP ethnic origin , who was born in DATE and lives in PERSON . She is represented before the Court by PERSON , a lawyer practising in PERSON .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE a bomb was thrown at a house owned by the applicant ’s parents - in - law . A close relative of the applicant ’s husband was killed and another injured .", "In DATE and DATE fires were started at a house and adjacent premises owned by the applicant ’s husband , B.", "On DATE while the applicant and her husband were returning from a funeral in GPE , PERSON was shot in the back . He was taken to a hospital in PERSON , where he died on DATE .", "On DATE of the shooting of the applicant ’s husband the police arrived at the scene and carried out a crime scene inspection , which was continued the following day . The crime scene was photographed . The police examined the scene and recovered samples of earth , clothes and biological traces . The footprints found at the scene were not susceptible to forensic examination . A sniffer dog was also used and it was concluded that the perpetrator had walked for QUANTITY and had then driven away in a motor vehicle . A special team was formed in the ORG Gradiška Police Station which carried out further investigation . In DATE they interviewed CARDINAL potential witnesses , including the applicant . However , all these steps were fruitless .", "On DATE an autopsy of B. ’s body was carried out .", "On DATE the ORG Gradiška Police Station lodged a criminal complaint against an unknown perpetrator with the GPE ORG Attorney ’s ORG . On DATE the case was transferred to PERSON State Attorney ’s Office . However , on DATE the criminal complaint was dismissed on the grounds that the prosecution had become time - barred .", "On an unspecified date the applicant and her CARDINAL children brought a civil action against the ORG in ORG , seeking compensation in connection with the death of B.", "On DATE ORG awarded each claimant MONEY ( HRK ) .", "This judgment was altered by ORG on DATE . The court lowered the compensation awarded to each child to HRK CARDINAL but upheld the sum awarded to the applicant .", "The applicant and her children lodged an appeal on points of law with ORG . In respect of the applicant ’s children , the appeal was declared inadmissible ratione valoris . As regards the applicant , ORG reversed the lower courts’ judgment and found that the claim had become time - barred in DATE ." ]

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[ "ORG The applicant , Mr. PERSON , is a NORP citizen born in DATE .", "ORG On DATE , then aged DATE , he pleaded guilty at GPE PERSON to armed robbery , assaulting a police officer and being in the unlawful possession of a firearm . In respect of the first offence , he was sentenced to life imprisonment ; for the second and third offences he received CARDINAL and CARDINAL years’ imprisonment respectively , all sentences to run concurrently .", "ORG The applicant had committed the robbery on DATE when he entered a pet shop in GPE , GPE , with a starting pistol loaded with blank cartridges , pointed it at the owner and told her to hand over the till . He stole a sum of MONEY which was later found on the shop floor .", "DATE , he telephoned NORP police station to say that he would give himself up . He was apprehended in FAC by CARDINAL police officers . He took the starting pistol from his pocket and it went off . In the ensuing struggle , CARDINAL more blanks were fired , CARDINAL of which caused a powder burn to the wrist of CARDINAL of the police officers . It emerged that the applicant had committed the robbery because he wanted to pay back £ MONEY which he owed his mother , who had told him that morning to find lodgings elsewhere .", "ORG At the trial , a prison medical officer testified that he could find no evidence of mental instability which would justify sending the applicant to a mental institution . However , a probation report , which had been prepared by a probation officer who had supervised the applicant for a period of DATE , characterised him as being susceptible to fluctuation of mood and emotionally immature , and as having a morbid interest in the literature of violence and a fascination for guns . The report also stated that he had taken to drinking heavily from time to time and that he had a high potential for aggression . No psychiatric report was available to the court .", "ORG In passing sentence , Mr. PERSON said :", "\" ... [ T]he facts of the offence and the evidence of the character and disposition of the accused ... satisfy me that ... he is a very dangerous young man . ... I think an indeterminate sentence is the right sentence for somebody of this age , of this character and disposition , who is attracted to this form of conduct . That leaves the matter with the Secretary of ORG who can release him if and when those who have been watching him and examining him believe that with the passage of years he has become responsible . It may not take long . Or the change may not occur for a long time - I do not know how it will work out . ... So far as the first count of the indictment is concerned , I think the right conclusion , terrible though it may seem , is that I pass the sentence that the law authorises me to pass for robbery and for assault with intent to rob with arms , that is life imprisonment . The Secretary of ORG can act if and when he thinks it is safe to act . \"", "ORG Mr. DATE applied for leave to appeal against the sentence to ORG ) which , on DATE , dismissed the application . Lord ORG upheld the view of the sentencing judge in the following terms :", "\" Now at the trial it appears that the prison doctor said that there was no evidence of any mental disorder then apparent which would have justified his detention in a mental institution . The Learned Judge , quite rightly in the view of this ORG , took the view that this was not a case for borstal because borstal for CARDINAL reason would not be a sufficiently secure place to send such a dangerous young man . The Judge was therefore - since he could not send him to a mental institution for lack of evidence - faced with a difficult decision on whether he should give him what he did , namely life imprisonment , or sentence him to some long term , some definite term of imprisonment for DATE . As he was at pains to point out , he in mercy really to the boy took the former course . Now life imprisonment in this case at any rate means an indeterminate sentence . If when he gets to prison it then appears after he has been there some time that there are grounds for transferring him to a mental institution for treatment , there are ample powers under LAW which will enable the Home Secretary to do so . Moreover , as soon as it becomes apparent , and it is to be hoped that it may not be long , but one can not tell , that it is safe from the public point of view and from his own point of view to do so , this boy will be released . At first sight a sentence of life imprisonment , particularly having regard to his age , sounds terrible , but when the factors to which reference has been made are considered it will be seen that this is really in mercy to the boy and will perhaps enable him to be released much sooner than if a long term of imprisonment had been imposed , which was the only other alternative . \"", "ORG In DATE , the applicant was transferred to PERSON , a psychiatric prison . However , it was found that he did not respond to the regime and after CARDINAL months’ treatment , he was transferred back to FAC until his release on licence in DATE . He had originally been given a release date for DATE but had absconded from a prison hostel during DATE . He later surrendered to the police , but on his return to prison was violent and refused food for a time . On the recommendation of ORG , a further release date was set for DATE . However , this date was again rescinded when the applicant returned to a prison hostel drunk , tried to escape while being escorted to the main prison and was recaptured only after a chase and a violent struggle . His case was once more referred to ORG and , on its recommendation , he was released on licence by decision of the Secretary of ORG for ORG ( \" the ORG Secretary \" ) on DATE .", "ORG On DATE , the applicant pleaded guilty at ORG to burglary and driving while uninsured and without a licence . It appears he had broken into a beach hut and stolen a pullover . He was given a conditional discharge for DATE and fined . The probation report described the applicant as having frequent disagreements with members of his family , with whom he lived in turn , and drinking to excess in times of stress . Following this incident , a letter warning that his licence could be revoked was issued by ORG and served on him on DATE .", "At DATE , the applicant was given accommodation and employment as a labourer at FAC . On DATE he was arrested , having damaged a car in the village while driving a dumper truck without permission . He was granted bail . DATE he visited a public house and became drunk and abusive . He was escorted by police back to the Priory where he became agitated , particularly at the prospect of being sent back to prison again , and produced an air pistol , threatening to commit suicide . A priest in the PERSON remonstrated with him , the gun was fired and a lead pellet hit the ceiling . DATE he was found to be very drunk and in possession of a quantity of bottles of spirits which had been stolen from a store . He was arrested and taken to the police station where he became abusive and violent and during the night tried to hang himself . Following his arrest , he was remanded in custody by NORP ORG .", "ORG On DATE , whilst Mr. PERSON was still in custody on remand , the Home Secretary ordered that his licence be revoked ( section CARDINAL(CARDINAL ) of LAW DATE , hereafter referred to as \" LAW \" - see paragraph CARDINAL below ) . His case was referred to ORG ( section CARDINAL ) of the Act - ibid . ) , which decided to defer consideration of his case until the outcome of his appearance in court , in connection with the above offences , was known .", "ORG On DATE , he was convicted by ORG at GPE on charges of taking a dumper truck for his own use , being in possession of an air pistol as a prohibited person , theft of some alcohol and damaging a police blanket . He was given a conditional discharge for DATE by a judge ( Judge PERSON ) assisted by CARDINAL lay magistrates . Judge PERSON indicated that he did not consider that the applicant ’s case was \" a typical case of someone given a sentence such as a life sentence , released on parole and then reverting straight into crime , reverting back to usual or true colours \" . He then left it to ORG to consider whether to release the applicant once more on parole , with the suggestion that he be allowed his liberty again . Judge PERSON himself had no competence to restore the applicant ’s licence or to order release , although he could have revoked the licence had it still been in force ( section CARDINAL(CARDINAL ) of LAW - see paragraph CARDINAL below ) .", "ORG The applicant ’s case was considered by ORG in DATE . ORG took the view that the applicant was still a danger to himself and to the public and confirmed his recall to prison . It recommended that the case be referred to ORG , the first stage of a formal review by ORG ( see paragraph CARDINAL below ) , in DATE .", "ORG reviewed the case again in DATE , when it recommended that he be released on licence once more . The Home Secretary , after consultation with the Lord Chief Justice and the trial judge , did not accept ORG recommendation and decided that the applicant should be transferred to an open prison . In DATE , he absconded from the open prison to GPE , but surrendered himself to the police in DATE . In DATE , ORG recommended that he be released on licence as soon as resettlement arrangements could be made . The ORG Secretary accepted this recommendation and decided upon a provisional release date of DATE , subject to pre - release employment at FAC . However , in DATE , when in a drunken and agitated state , he was involved in a violent struggle with the hostel wardens during which CARDINAL officer was injured on the thumb with a knife . On DATE , he was found guilty at ORG of the offence of malicious wounding and sentenced to CARDINAL months’ imprisonment .", "In DATE , the case was again referred to ORG , which recommended that preparation should be made for the applicant to be released directly from prison to a hostel . He was released on licence on DATE . As in the case of every life licensee , his licence included conditions requiring him , inter alia , to place himself under the supervision of a nominated probation officer ; to keep in touch with his supervising officer in accordance with that officer ’s instructions ; to reside only where approved by his supervising officer ; and not to travel outside GPE without the prior permission of his supervising officer .", "ORG On DATE , at ORG , the applicant pleaded guilty to driving a motorcycle whilst unfit through drink and driving without insurance . He was fined a total of £ MONEY and disqualified from driving for DATE . On DATE , at ORG , he pleaded guilty to the charge of being in unlawful possession of a shotgun . He was sentenced to CARDINAL months’ imprisonment suspended for DATE . On DATE , the police reported that he had been apprehended whilst driving in GPE and charged with a number of motoring offences including fraudulent use of a road fund licence and driving whilst disqualified .", "The case was referred to ORG for its consideration . On DATE , ORG decided not to recommend the revocation of the applicant ’s licence but asked for a letter to be sent to his supervising officer ( and to be shown to the applicant ) saying that the ORG was aware of his offences and asking to be notified if any further cause for concern was shown . In DATE , the applicant wrote to ORG acknowledging his irresponsible behaviour and agreeing to heed ORG warning .", "On DATE , at ORG , he pleaded guilty to the fraudulent use of an excise licence and driving whilst disqualified and was fined a total of £ MONEY .", "ORG In DATE , ORG reported that the applicant was out of touch with his supervising officer , had vacated his flat and was believed to have gone abroad . He had in fact moved his residence to GPE . The case was referred to ORG which , on DATE , recommended that his licence should be revoked on the ground that he was in breach of its conditions . The ORG ’s recommendation was accepted by the Secretary of ORG and the licence was revoked on DATE .", "He was arrested by the police on DATE , having returned to GPE from GPE to visit his family .", "ORG Following consideration by ORG of his representations with respect to his recall ( section CARDINAL ) of LAW - see paragraph CARDINAL below ) , Mr. PERSON was again released on licence on DATE . He subsequently failed to keep appointments with his supervisory probation officer and was found to have left his lodgings , his whereabouts being unknown . In the light of these facts ORG recommended on DATE that his licence be revoked on the same ground as in DATE . The ORG Secretary acted on this recommendation on CARDINAL DATE . As at DATE , the applicant was still at large , having once more moved his residence to GPE .", "ORG By virtue of section PERSON ) of LAW , the maximum penalty for robbery with violence was imprisonment for life . This was the provision in force at the time of the applicant ’s conviction in DATE . It has now been replaced by section CARDINAL(CARDINAL ) of the Theft Act DATE , which came into force on DATE . DATE and DATE , of the CARDINAL persons convicted of robbery CARDINAL have been sentenced to life imprisonment ( ORG , vol . CARDINAL , no . CARDINAL , DATE , col . CARDINAL - written answer by the Secretary of ORG for ORG ) .", "There is no definitive statement , statutory or otherwise , as to the principles governing the imposition of life sentences in GPE . However , certain guidelines have from time to time been given in judgments of ORG . Broadly speaking , according to these guidelines , apart from such crimes as murder where a life sentence is mandatory , life sentences should be reserved for exceptional cases , for example ( a ) where the offence committed is in itself grave enough to require a very long sentence ; ( b ) where it appears from the nature of the offence or from the defendant ’s history that he is a person of unstable character likely to commit such offences in the future . In relation to the latter category , ORG has stated that a sentence of life imprisonment should not be imposed unless there is clear evidence of mental instability ( as opposed to mental disorder ) which indicates that the person is likely to be a danger to the public .", "ORG At the time of Mr. GPE conviction in DATE , the relevant statutory provision governing the release on licence and recall to prison of persons serving life sentences was section CARDINAL of the Prison Act DATE , which read :", "\" CARDINAL . ( CARDINAL ) The Secretary of ORG may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions , if any , as the Secretary of ORG may from time to time determine .", "( CARDINAL ) The Secretary of ORG may at any time by order recall to prison a person released on licence under this section , but without prejudice to the power of the Secretary of ORG to release him on licence again ; and where any person is so recalled his licence shall cease to have effect and he shall , if at large , be deemed to be unlawfully at large . \"", "This provision was qualified by LAW DATE which provided that no person convicted of murder could be released under section CARDINAL of the DATE Act unless the Home Secretary had prior to release consulted the Lord Chief Justice and , if available , the trial judge .", "ORG A new system was introduced by sections CARDINAL and CARDINAL of LAW DATE ( \" LAW \" ) :", "\" CARDINAL . ( CARDINAL ) The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE together with the trial judge if available .", "...", "( CARDINAL ) Where ORG recommends the recall of any person who is subject to a licence under section CARDINAL of this LAW , the Secretary of ORG may revoke that person ’s licence and recall him to prison .", "( CARDINAL ) The Secretary of ORG may revoke the licence of any such person and recall him as aforesaid without consulting ORG , where it appears to him that it is expedient in the public interest to recall that person before such consultation is practicable .", "( CARDINAL ) A person recalled to prison under the foregoing provisions of this section may make representations in writing with respect to his recall and shall on return to prison be informed of the reasons for his recall and of his right to make such representations .", "( CARDINAL ) The Secretary of ORG shall refer to the ORG the case of a person recalled under subsection ( CARDINAL ) of this section who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection ( CARDINAL ) of this section .", "( CARDINAL ) Where the ORG recommends the immediate release on licence of a person whose case is referred to it under this section , the Secretary of ORG shall give effect to the recommendation , and where it is necessary for that purpose to release that person under subsection ( CARDINAL ) of the last foregoing section , the Secretary of ORG shall do so without the consultation required by that subsection .", "...", "( CARDINAL ) If a person subject to a licence under LAW or CARDINAL of this LAW is convicted on indictment of an offence punishable on indictment with imprisonment ... , the court by which he is convicted ... may , whether or not it passes any other sentence on him , revoke the licence .", "...", "( CARDINAL ) On the revocation of the licence of any person under this section , he shall be liable to be detained in pursuance of his sentence , and , if at large , shall be deemed to be unlawfully at large . \"", "ORG Once an offender is sentenced to life imprisonment , then , subject to any variation of the sentence by the sentencing court upon reconsideration within DATE or to variation of it by ORG , he may be detained by virtue of the original order of the court in prison for the rest of his life . A sentence of life imprisonment can never be altered , substituted or terminated , save if there is a free pardon or an exercise of the Royal Prerogative remitting the remainder of the sentence . Such use of the prerogative power could be contemplated only in the most exceptional circumstances , as it would have the effect of overriding the decision of the court ; it has not been considered in Mr. GPE case . As far as offenders sentenced to life imprisonment are concerned , any release ordered by the ORG Secretary under LAW is always conditional and can never become unconditional .", "ORG Relevant provisions concerning ORG are also contained in section CARDINAL of LAW :", "\" CARDINAL . ( CARDINAL ) For the purposes of exercising the functions conferred on it by this part of this LAW as respects GPE and GPE there shall be a body known as ORG ... consisting of a chairman and not CARDINAL other members appointed by the Secretary of ORG .", "...", "( CARDINAL ) It shall be the duty of the ORG to advise the Secretary of ORG with respect to :", "( a ) the release on licence under LAW ) or DATE , and the recall under section DATE , of this LAW of persons whose cases have been referred to the ORG by the Secretary of ORG ;", "( b ) the conditions of such licences and the variation or cancellation of such conditions ; and", "( c ) any other matter so referred which is connected with the release or recall of persons to whom the said section CARDINAL or CARDINAL applies .", "( CARDINAL ) The following provisions shall have effect with respect to the proceedings of ORG on any case referred to it , that is to say :", "( a ) the ORG shall deal with the case on consideration of any documents given to it by the Secretary of ORG and of any reports it has called for and any information whether oral or in writing that it has obtained ; and", "( b ) if in any particular case ORG thinks it is necessary to interview the person to whom the case relates before reaching a decision , ORG may request CARDINAL of its members to interview him and shall take into account the report of that interview by that member ; ...", "( CARDINAL ) The documents to be given by the Secretary of ORG to the ORG under the last foregoing subsection shall include :", "( a ) where the case referred to the ORG is CARDINAL of release under section CARDINAL of this Act , any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection ;", "( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representations made under that section .", "... \"", "As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :", "\" CARDINAL . ORG shall include among its members :", "( a ) a person who holds or has held judicial office ;", "( b ) a registered medical practitioner who is a psychiatrist ;", "( c ) a person appearing to the Secretary of ORG to have knowledge and experience of the supervision or aftercare of discharged prisoners ; and", "( d ) a person appearing to the Secretary of ORG to have made a study of the causes of delinquency or the treatment of offenders . \"", "ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , each of which in the case of life prisoners includes a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL(CARDINAL ) of LAW ) after consultation with the Lord Chief Justice .", "ORG A recalled prisoner , as well as being entitled to make written representations to ORG under section CARDINAL ) of LAW and possibly being interviewed by a member of ORG under section CARDINAL(CARDINAL)(b ) ( see paragraphs CARDINAL and CARDINAL above ) , also has the opportunity of making oral representations to a member of ORG . The prisoner may seek legal advice in preparing his representations to ORG and ORG .", "ORG is a body independent of ORG , and is constituted by way of statutory instrument . It has the duty of reviewing the cases of , amongst others , life prisoners and of reporting to the Home Secretary on their suitability for release on licence ( section CARDINAL(CARDINAL ) of LAW ) . ORG rules provide that there must be a ORG for every prison , consisting of a minimum of CARDINAL members , not CARDINAL of whom must be members of the general public . In every case of a life prisoner who is recalled , it is CARDINAL of the CARDINAL independent members of ORG who will interview the prisoner , and the prisoner has the right to make oral representations to him .", "Furthermore , the GPE courts have made it clear that , for the purposes of section CARDINAL ) , the prisoner must be furnished with full and sufficient reasons for his recall in order to enable him to make sensible representations to ORG ( judgment of ORG in PERSON v. The Chairman of ORG and the Secretary of ORG , DATE ; judgment of ORG in NORP v. ORG and the Secretary of ORG for ORG , ex parte PERSON , DATE ) .", "There is no entitlement to an oral hearing before ORG or the full local ORG .", "ORG Where the remedy of judicial review of administrative action lies , ORG of ORG will quash decisions of an administrative authority if those decisions are taken in breach of the relevant statutory requirements or if the decisions are otherwise tainted by illegality , irrationality or procedural impropriety . The scope of judicial review was explained as follows by Lord PERSON in his speech in the case of ORG Unions v. Minister for ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL - CARDINAL ) :", "\" ... Judicial review has I think developed to a stage DATE when , without reiterating any analysis of the steps by which the development has come about , one can conveniently classify under CARDINAL heads the grounds on which administrative action is subject to control by judicial review . The first ground I would call ‘ ORG , the second ‘ ORG and the third ‘ procedural impropriety’ . That is not to say that further development on a case - by - case basis may not in course of time add further grounds . I have in mind particularly the possible adoption in the future of the principle of ‘ proportionality’ which is recognised in the administrative law of several of our fellow members of ORG ; but to dispose of the instant case the CARDINAL already well - established heads that I have mentioned will suffice .", "By ‘ ORG as a ground for judicial review I mean that the decision - maker must understand correctly the law that regulates his decision - making power and must give effect to it . Whether he has or not is par excellence a justiciable question to be decided , in the event of dispute , by those persons , the judges , by whom the judicial power of the ORG is exercisable .", "By ‘ irrationality’ I mean what can by now be succinctly referred to as ‘ Wednesbury unreasonableness’ ( see ORG v. ORG All England Law Reports CARDINAL , CARDINAL CARDINAL King ’s Bench Reports CARDINAL ) . It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it .", "...", "I have described the third head as ‘ procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision . This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred , even where such failure does not involve any denial of natural justice .", "... \"", "ORG According to the Government , a decision of ORG or of the ORG Secretary which violates any of those requirements may be quashed by the courts . Thus , in CARDINAL recent cases , the courts have examined , under the head of procedural impropriety , whether adequate reasons for recall were given for the purposes of section CARDINAL ) of LAW and have , in CARDINAL case , quashed on that ground a decision of ORG refusing to recommend release from prison on licence pursuant to its powers under section CARDINAL(CARDINAL ) of LAW ( see respectively the PERSON and PERSON cases - paragraphs CARDINAL and CARDINAL above ) . In the PERSON case , ORG also considered the extent to which the rules of natural justice apply to proceedings before ORG . Lord Justice Eveleigh stated :", "\" ... I agree with what was said by Lord Justice PERSON in his judgment in ORG . He quoted the words of Lord Justice PERSON in the case of ORG v. Lord ORG , DATE , CARDINAL Weekly Law Reports CARDINAL , at page CARDINAL , where he said : ‘ The scope and extent of the principles of natural justice depend on the subject matter to which they are sought to be applied : see Reg . v. ORG for GPE , ex parte GPE and GPE DATE CARDINAL Queen ’s Bench Reports CARDINAL , CARDINAL . They apply to the present case , as conceded , to the extent that they impose on ORG , and each member of it , a duty to act fairly . That duty does not , in my judgment , require that any disclosure is made to the prisoner of adverse material which ORG have in their possession to assist them in their advisory and reporting functions.’", "[ Counsel for the applicant for judicial review ] submitted that there is a difference in this case and that case , because that case was dealing with an initial release on parole and not with a consideration of the matter by ORG after recall . It is true factually that there is that distinction , but in my judgment that distinction results in CARDINAL difference and CARDINAL difference only from the point of view of the consideration of the matter by ORG ; that is that the prisoner himself , in the case of recall , is entitled to have been told the reasons for his recall . So there is some information to which he is entitled , but to my mind that is the only distinction between the CARDINAL cases . The principle of natural justice upon which reliance has been placed in this case , i.e. an alleged principle of full disclosure , does not in my judgment apply . \"" ]

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[ "5-1" ]

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[ "The applicant is a NORP national , born in DATE , and was detained at the time of the introduction of the application . He is represented before the ORG by PERSON , a lawyer practising in GPE .", "A.", "In its judgment of CARDINAL DATE , ORG ( Arrondissementsrechtbank ) of ORG convicted the applicant of homicide and of hiding and/or removing a body with the aim to conceal the fact and/or the cause of death . It sentenced the applicant to CARDINAL years’ imprisonment . In addition , it ordered the measure that the applicant be placed at the Government ’s disposal ( terbeschikkingstelling ) in order to receive mental treatment at the ORG ’s expense . The applicant filed an appeal with ORG ( Gerechtshof ) of ‘ s - Hertogenbosch . The prosecution did not appeal .", "On DATE , following adversarial proceedings , ORG delivered its judgment in public . With the exception of the qualification and the determination of sentence , ORG upheld the judgment of CARDINAL DATE . It convicted the applicant of homicide and of hiding and removing a body with the aim to conceal the fact and/or the cause of death . ORG sentenced the applicant to CARDINAL years’ imprisonment . It further ordered the measure that the applicant be placed at the ORG ’s disposal .", "As regards the determination of the applicant ’s sentence of imprisonment , ORG stated :", "< Translation >", "“ In the court ’s opinion another or lighter sanction than a punishment which entails unconditional deprivation of liberty of a duration stated hereinafter does not suffice . On this point , the seriousness of what has been found proven in relation to other punishable facts as , inter alia , expressed by the statutory defined maximum punishment for this and by the punishments imposed for similar facts , has been taken into account .", "The court is of the opinion that a punishment as imposed by the first instance court and as sought by the procurator - general does not suffice in that it insufficiently expresses ;", "- the fact that the victim PERSON was a girl of DATE and the fact that she was related to the accused ;", "- the extent to which the facts found proven caused personal suffering in the victim ’s family circle and to extent to which society has been rocked ;", "- the violent character of what has been found proven and the social unrest of which this is also a consequence . ”", "The applicant filed an appeal in cassation with ORG ( PERSON ) . Relying on LAW , he complained , inter alia , that it did not appear from the judgment of ORG whether or not it had decided unanimously to increase his sentence . He submitted that , pursuant to LAW ) , such an increase could only be decided unanimously by ORG . In his opinion , a convicted person should be able to verify whether this rule had in fact been respected .", "The Procurator - General ( Procureur - Generaal ) to ORG , in his advisory opinion to ORG , considered on this point that it can not be derived from the GPE case - law under the Convention that there is an obligation that judgments must reflect whether the rule set out in Article CARDINAL § CARDINAL of LAW has been respected . In his opinion , it concerns a rule of domestic procedural law and it is to the domestic legislator to decide whether and , if so , to what extent compliance with this rule must be apparent . Although the Procurator - General agreed with the applicant that it would be desirable that ORG , in a situation referred to in Article CARDINAL § CARDINAL , would make it clear in its judgment that an increase of sentence had been decided unanimously . However , he did not consider that a failure to do so should result in nullity of the judgment concerned . In his opinion , there was insufficient reason for departing from the established case - law . On this point , he found that - given the explicit reasons stated for the increase of sentence - there were no reasons to doubt whether ORG had unanimously decided to increase the applicant ’s sentence .", "In its judgment of DATE and referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG rejected the applicant ’s appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development .", "B. Relevant domestic law and practice", "With the exception of LAW of LAW , which concerns decisions of ORG in relation of revision requests , there is no explicit statutory general rule in NORP law to the effect that judicial decisions must be taken by a majority . This principle is considered to be inherent in the NORP judicial system insofar as cases are not determined by a single judge .", "A reference to judges’ deliberations is contained in LAW , pursuant to which provision the President of a chamber of the court must , during the judges’ deliberations , ask each of the judges individually to state his or her opinion . The President will be the last person to state his or her opinion . According to LAW , each of the sitting judges must participate in the decision making .", "However , according to LAW , a unanimous decision of the judges concerned is required in CARDINAL specific situations , including the situation described in paragraph CARDINAL of this provision , which reads :", "< Translation >", "“ Where only the accused has filed an appeal , he can - as to what has been found proven against him in the first instance proceedings - only by a unanimous vote be given a higher sentence than the sentence given by the first instance court . ”", "Article CARDINAL § CARDINAL of LAW stipulated initially that , where only the accused had filed an appeal , no higher sentence could be imposed . This protection did , however , not apply where the appeal court reached different findings than the first instance court in relation to what facts were considered proven ( bewezenverklaring ) . As it was felt incompatible with the public law character of criminal proceedings to restrict the appeal judge in the assessment of the seriousness of the offence of which an accused had been found guilty , this provision was amended on DATE to its current wording .", "In CARDINAL cases , ORG rejected a complaint that the unanimity required under LAW did not appear from the wording of the judgment of ORG . ORG held that there is no statutory provision to the effect that an appeal judgment must explicitly mention that the requirement under LAW has been respected ( PERSON DATE , PERSON , nr . CARDINAL ; and HR DATE , GPE DATE , nr . CARDINAL ) .", "Article PERSON of LAW provides :", "< Translation >", "“ If ORG considers that a complaint submitted can not lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development , it can limit itself to this finding when giving the reasons of its decision on that point . ”" ]

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[ "The first applicant , who was born in DATE , is a journalist by profession . At the relevant time she was employed at ORG , a leading national DATE newspaper , as a journalist and deputy editor in the newspaper ’s criminal department . In DATE or DATE she started working for TIME , another leading national DATE newspaper .", "The second applicant was born in DATE . At the relevant time he was ORG ’s editorinchief .", "On CARDINAL DATE the press service of ORG announced the arrest of PERSON , a former employee of ORG and of ORG . The press release specified that he had been detained and charged under LAW DATE with abusing his office with a view to obtaining pecuniary gain , which had led to serious negative consequences . In particular , it stated that he had misappropriated , concealed and used secret official documents . The investigation against him was ongoing . The same day this information was relayed to many newspapers by ORG .", "Shortly after receiving the news , the first applicant went to the premises of FAC , where , along with journalists from other newspapers , she tried to obtain more information about the case . TIME , in line with the established practice at that time , a military prosecutor showed up before the journalists to make a statement about the case and answer questions . In addition to the information in the press release , the prosecutor said that a bag with secret documents had been found during a search of PERSON ’s home , that PERSON ’s wife had also been implicated in the affair , and that by using those documents , which contained information about the ORG metallurgical plant “ GPE , PERSON ’s wife had engaged in lucrative business ventures involving metals .", "DATE several national newspapers ran stories about the case . The applicant also covered it in an article which appeared in the CARDINAL DATE issue of ORG . It bore the caption “ Private company ’s shady iron business discovered ” , the headline “ Former police officer arrested over bag with secret documents ” , and the applicant ’s byline , and read :", "“ A former officer was arrested after the metropolitan police found in his home a bag with secret documents , it became clear DATE .", "[ N.T. ] , former officer of ORG and investigator in ORG , was put behind bars for misappropriating , concealing and using secret documents , the [ Ministry ] announced DATE . He has been charged under LAW of LAW with abusing his office with a view to enriching himself , which has led to serious negative consequences . The law provides for up to DATE imprisonment if the accused is found guilty .", "The documents that [ N.T. ] took relate to the operations and the business of the ‘ GPE metallurgical plant , the law enforcement people said . He gave the secret information to his wife , who had a private irontrading company . Her business thus thrived and she amassed a substantial capital , the initial investigation found .", "The arrest took place DATE , ORG specified . The handcuffs clicked on [ N.T. ] ’s wrists DATE before he was set to become a practising lawyer . Originals of secret documents , obtained by him probably while an operative of the former CARDINALth district police department , were found during a search of his home .", "The whole family of [ N.T. ] was implicated in the affair , say persons close to the investigation . The detainee ’s father used to be the head of the CARDINALrd district police department , but it is unclear whether he was aware of his son ’s deeds .", "[ PERSON ] formerly worked as an investigator in CARDINAL of the district investigation services in GPE for DATE . On paper he quit of his own free will DATE . In reality , he was asked to go because he lacked the requisite qualities for the office he occupied , said people from ORG DATE .", "The ‘ National NORP service of the [ GPE ORG ] and ORG are making additional inquiries to uncover [ N.T. ] ’s criminal activities , said the [ Ministry ] ’s press service DATE . The investigation has been entrusted to ORG . ”", "On DATE ORG published another article entitled “ ORG wo n’t let former officer out of arrest ” . The article was authored by the first applicant but did not bear her byline . It read as follows :", "“ The former ORG officer and investigator [ PERSON ] , who was detained at DATE on charges of misappropriating , concealing and using secret documents , will remain in detention , we learned DATE . His [ detention ] was upheld in a prosecutor ’s decision issued DATE , said to ORG the lieutenant colonel [ TIME ] of ORG .", "[ N.T. ] was charged under LAW of LAW with abuse of office . A bag with secret documents relating to the business of the ‘ GPE metallurgical plant was found during a search of his home . [ PERSON ] obtained them while an operative of the former CARDINALth district police department . He gave the information to his wife , who had a private irontrading company . Before the investigation she said that she had carried out CARDINAL transaction . ”", "In DATE the prosecuting authorities brought PERSON to trial CARDINAL times , but each time the Sofia Military Court referred the case back for rectification of procedural errors . Eventually , on DATE the court discontinued the proceedings under a newly introduced rule of criminal procedure allowing accused persons to seek discontinuance of the proceedings against them if the case had not proceeded to trial for DATE after the bringing of charges ( for more details on that rule , see PERSON and GPE v. GPE , nos . CARDINAL and DATE , § § CARDINAL , CARDINAL DATE ) .", "On DATE N.T. brought a civil claim against the CARDINAL applicants and ORG ’s publisher , ORG . He alleged that the CARDINAL articles had defamed him by making injurious and untrue allegations which had not been based on a proper journalistic enquiry . They had affected gravely both him and his family . He sought compensation for nonpecuniary damage in the sum of CARDINAL old NORP levs ( ORG ) , plus interest , in respect of the first article , and BGL CARDINAL , plus interest , in respect of the second article . He also claimed costs .", "The Sofia City Court held QUANTITY hearings , CARDINAL of which was adjourned because the CARDINAL applicants had not been properly summoned . In a judgment of DATE it dismissed PERSON ’s claim . It found that the first applicant , like many other journalists , had based her article on reliable official sources . This excluded any wrongful conduct on her part . The second applicant was therefore not liable either .", "N.T. appealed . ORG held a hearing on DATE . On DATE it upheld the lower court ’s judgment . It found that at the time when the CARDINAL articles had been published there had not existed any statutory rules governing journalistic enquiries . Journalists , including the first applicant , had been bound to adhere to the de facto rules of the profession . The first applicant had not breached those rules in researching the CARDINAL articles . She had used many independent sources to elucidate the facts covered in both articles . She had based her allegations on information from ORG and ORG , and a statement made by a public prosecutor . Both she and the second applicant had thus fulfilled their professional duties , which excluded any negligence on their part . Strict liability in tort did not exist under NORP law .", "N.T. appealed on points of law . ORG heard the appeal at a hearing held on DATE . On DATE it quashed ORG judgment and remitted the case . It found that that court , whose task had not simply been to review the firstinstance court ’s judgment but to decide the case de novo , had not gathered all available evidence – in particular evidence relating to the identity of the public prosecutor cited in the first article and any evidence concerning the truthfulness of the second article – and had not properly analysed it . Its findings that the allegations in the articles were true did not correspond to the material in the case . The cassation court went on to say that in order to determine whether or not the applicants were liable in tort the court of appeal should have ascertained the truth or the falsity of the assertions made in the CARDINAL articles , because the right to freedom of expression could not be used to infringe the reputation of others .", "NORP On remittal , ORG held CARDINAL hearings . At the second of those , which took place on DATE , the court decided to stay the proceedings pending the outcome of the criminal proceedings against PERSON of the parties appealed against that decision . After criminal proceedings against PERSON came to an end in DATE ( see paragraph CARDINAL above ) , the court decided to resume the examination of the case , and held a hearing on DATE .", "In a judgment of DATE the ORG allowed PERSON ’s claim . It ordered the CARDINAL applicants and ORG to pay him CARDINAL new NORP levs ( ORG ) , plus interest , in nonpecuniary damages in respect of the first article . The court also ordered the second applicant and ORG to pay PERSON CARDINAL , plus interest , in nonpecuniary damages in respect of the second article . Lastly , the court ordered the CARDINAL applicants and ORG to pay PERSON in respect of costs . It specified that they were jointly liable to pay those amounts .", "The court held that in preparing the articles the first applicant had acted tortiously because she had not followed the customary rules governing journalistic enquiries . Those rules required that any information , even that coming from official sources , be checked against CARDINAL independent sources . The first applicant had not done that with regard to the information received from a public prosecutor whose identity she had been unable to establish . The resulting articles had contained defamatory and injurious statements about PERSON and his family which went beyond the information in the press release issued by the authorities : that the “ business of [ the applicant ’s wife had ] thrived and she [ had ] amassed a substantial capital ” , that the “ whole family [ had been ] implicated in the affair ” , and that the authorities had found “ a bag with secret documents relating to the business of the ‘ GPE metallurgical plant ” . By writing and publishing unverified defamatory allegations about PERSON the applicants had acted in breach of the general duty under LAW DATE ( see paragraph CARDINAL below ) not to infringe the rights of others . They could have anticipated the damaging result of their actions and could have averted it by taking additional steps to verify the accuracy of the statements in the articles . They had not done so , and had therefore acted negligently . The second applicant had been under a duty to do so by virtue of his position as the newspaper ’s editorinchief , especially with regard to an article that did not bear a byline . As for the first applicant , she had made untrue and uncorroborated injurious remarks and allegations about PERSON ’s personal and professional life , without taking into account the negative consequences that could flow from them . ORG was vicariously liable for the applicants’ actions .", "The court determined the quantum of the award in equity , as required under LAW of LAW DATE ( see paragraph CARDINAL below ) . It took into account ORG ’s circulation , the number of potential readers and the degree of moral suffering sustained by PERSON", "The applicants appealed on points of law , arguing , among other things , that the court of appeal ’s judgment was in breach of LAW . On DATE a threemember panel of ORG refused to hear their appeal . It observed that PERSON had brought CARDINAL claims of BGN CARDINAL each . Those claims had been triable at first instance not by GPE , but by GPE . By accepting to hear the case , GPE , which had the rank of a regional court , had in effect exercised its powers under LAW of LAW DATE to take up and examine at first instance a case falling within the jurisdiction of CARDINAL of the district courts in its region ( see paragraph CARDINAL below ) . That had in turn led to an appellate judgment by ORG . Had the procedure ran its normal course , the case would have been examined at first instance by GPE and on appeal by ORG . The case thus fell within the ambit of Article CARDINALa § CARDINAL ( a ) of the LAW ( see paragraph CARDINAL below ) , with the result that no appeal lay against ORG judgment .", "On an appeal by the applicants , in a final decision of CARDINAL DATE a fivemember panel of ORG upheld the threemember panel ’s decision . It fully agreed with its reasoning and went on to say that the examination of the case at second instance by ORG due to the irregular manner in which the proceedings had unfolded in terms of which court had jurisdiction could not render a judgment concerning claims of MONEY amenable to appeal on points of law . The threshold for lodging such an appeal was primarily a function of the amount in dispute . It could not be circumvented through the application of LAW of the abovementioned LAW and the resulting examination of the case at first instance by ORG .", "The relevant provisions of the DATE LAW read as follows :", "“ The private life of citizens shall be inviolable . All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour , dignity and reputation . ”", "“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , whether written or oral , sounds or images , or in any other way .", "NORP That right shall not be exercised to the detriment of the rights and reputation of others , or for incitement to forcible change of the constitutionally established order , perpetration of a crime or enmity or violence against anyone . ”", "“ The press and the other mass media shall be free and not subject to censorship . ”", "“ CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals .", "NORP Citizens shall have the right to information from ORG bodies or agencies on any matter of legitimate interest to them , unless the information is a ORG secret or a secret protected by law or it affects the rights of others . ”", "“ Rights shall not be abused , nor shall they be exercised to the detriment of the rights or the legitimate interests of others . ”", "NORP The general rules of the law of tort are set out in sections CARDINAL of ORG DATE ( “ the DATE LAW ) . Section CARDINAL(CARDINAL ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . Under section ORG ) , fault is presumed until proved otherwise . Section CARDINAL provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Section CARDINAL provides that the amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity . If a tort has been committed by several persons , they are jointly liable for the resulting damage ( section CARDINAL ) .", "Article CARDINAL § CARDINAL ( b ) of ORG Procedure DATE ( superseded on DATE by LAW DATE ) , as in force between CARDINAL DATE and DATE , provided that money claims of up to ORG CARDINAL were triable by the district courts and those exceeding ORG CARDINAL by the regional courts . Under LAW , a regional court could take up and examine at first instance a case falling within the jurisdiction of CARDINAL of the district courts in its region .", "Article CARDINALa § CARDINAL ( a ) of DATE , as in force DATE , provided that regional court judgments concerning money claims of up to BGN CARDINAL were not subject to appeal on points of law . An amendment which came into force in DATE increased that threshold to BGN CARDINAL,CARDINAL ." ]

[ "10" ]

[ "10-1" ]

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[ "The applicant is a NORP national , born in DATE . He resides in GPE , GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "At the material time the applicant was employed as a baker by ORG ( fællesforeningen af PERSON ) . He was also a member of the trade union ORG ( Nærings- og GPE ) and his employment was governed by a collective labour agreement between the ORG and the ORG .", "On DATE the applicant left his place of work in circumstances which remain in dispute . The following day he received a letter from his employer by which his employment was terminated . The applicant protested against the dismissal and contacted his trade union . Following a discussion with the applicant the ORG sent a letter to the ORG on CARDINAL DATE protesting against the applicant ’s dismissal .", "Subsequently the ORG discussed the settlement with the applicant who , following consultations with his lawyer , could not approve the text but requested certain additional guarantees as to employment , wages and seniority .", "On DATE another meeting was held between the representatives of the ORG and the ORG . The applicant was aware of the date of this meeting but did not participate this time either . According to TIME of this meeting the above settlement was upheld with CARDINAL additional guarantees in respect of the applicant ’s salary and seniority . The settlement was approved and signed by the representatives of the ORG and the ORG on DATE .", "On DATE ORG Civilretten i Glostrup ) received a writ by which the applicant instituted proceedings against the ORG claiming CARDINAL ORG representing his salary from DATE until DATE . It appears that at this moment in time the applicant still considered himself employed by the ORG . However , subsequently he refused the ORG ’s offer of reemployment in accordance with the above settlement since he had found other employment .", "In the proceedings before ORG the ORG maintained , in particular , that the applicant could not submit further claims as he was bound by the settlement reached between the ORG and the ORG . The applicant maintained , however , that this argument would , if upheld by the court , amount to a violation of his rights as secured to him by LAW .", "ORG held an oral hearing in the case where the applicant , assisted by counsel , was heard . The court furthermore heard CARDINAL witnesses . On the basis of an evaluation of the available evidence ORG pronounced judgment in favour of the ORG on CARDINAL DATE . The judgment reads , in its relevant part as follows :", "( Translation )", "“ The settlement between the ORG and the ORG is final and it has been approved by [ the representative of the ORG ] on behalf of [ the applicant ] . It is noted in this connection that the ORG by virtue of the [ collective labour ] agreements has a standing and irrevocable authorisation to reach such settlements on behalf of its members .", "On the basis of the evidence submitted the terms of the settlement must be considered fulfilled .", "Accordingly , the court finds in favour of the defendant .", "It is noted in this respect that [ the applicant ] will not be precluded from claiming damages from the ORG during a possible lawsuit , if [ he ] finds that during the settlement negotiations the ORG did not take proper care of [ his ] interests . Thus , the settlement ought not to be set aside with reference to LAW ] . ... ”", "The applicant appealed against the judgment to ORG of Eastern GPE ( PERSON landsret ) which also held a hearing during which the applicant and the witnesses were heard again . On DATE ORG upheld ORG judgment . The judgment reads , in its relevant parts , as follows :", "( Translation )", "CARDINAL judges ... opine as follows :", "We find it established that [ the applicant ] himself requested his union ORG to secure that the dispute concerning his dismissal should be solved by negotiations between the ORG and the ORG . It must have been clear to [ the applicant ] that a solution in the case would hereafter be found in accordance with the rules governing labour disputes . Furthermore , we find it established that between the parties in question agreement was reached on the disputed settlement .", "We find hereafter that , also without [ the applicant ’s ] acceptance of the settlement , the ORG has had authorisation to reach it with binding effect for [ the applicant ] . With this reasoning we vote for [ upholding the judgment ] .", "Judge ... opines as follows :", "First , I do not find that the ORG by virtue of the collective labour agreements has a standing and irrevocable authorisation to enter into an agreement as the CARDINAL in question which does not concern a labour market dispute .", "Second , I find it established that the reservation in the draft settlement referred to the ORG 's approval as well as that of [ the applicant ] . ... I do not find it established that , when he received confirmation of [ the ORG 's ] approval of the settlement , [ the representative of the ORG ] believed or had any reason to believe that the agreement had not been approved by [ the applicant ] ... . Thus , the agreement is binding on [ the applicant ] . With this reasoning I vote as the majority . ... ”", "On DATE ORG ( Procesbevillingsnævnet ) rejected the applicant 's request for leave to appeal to ORG ( Højesteret ) .", "B. Relevant domestic law and practice", "The NORP labour market is to a high extent governed by collective agreements concluded between the labour market parties . About CARDINAL per cent of all employees are organised and nearly CARDINAL per cent of all employees are covered by collective agreements .", "As a consequence of the high rate of organisation , pay and working conditions in GPE are mainly regulated by collective agreements between labour market partners .", "Pay and working conditions may further be agreed individually between the individual employee and the employer .", "There is an interaction among the CARDINAL elements - collective agreements , individual agreements and legislation - when it comes to identifying the rights of an employee in relation to the employer .", "A collective agreement has effect within the occupation field covered by the agreement . An employer who has concluded or adhered to a collective agreement has a duty in relation to the trade union to pay the employees the wage and salary fixed in the collective agreement whether the employee is or is not a member of the organisation concerned . However , a non - organised employee may not invoke rights under the collective agreement , but only under his or her individual agreement . On the other hand employees have no independent and direct rights which can be invoked under the collective agreement . Through the membership of a trade union , the union is considered empowered to act on behalf of its members .", "As regards cases settled within the machinery set up for settlement of labour disputes , i.e. by arbitration or by ORG , the right to take legal action is vested in the organisation which is a party to the agreement . It is also the organisation which decides about the subject - matter of the case . Before the ordinary courts of law it is the individual employee who has the right to sue .", "As regards rights based on legislation the rule is that such rights may always be enforced by the ordinary courts of law . The courts will hear the case whether or not the employee is a member of a trade union or other organisation . In such cases it is always the individual employee who is entitled to bring the action and who may dispose of the subjectmatter of the case .", "If the rights of the employee are based on a collective agreement , the legal situation may be summarised as follows :", "If the employee is not organised and thus not attached to any organisation , but his or her rights are , nevertheless , based on a collective agreement , the practice is that the ordinary courts of law will hear the case . Reference is made to ORG and U CARDINAL/CARDINALH.", "If the employee is organised , the starting point is that the matter should be settled by the special machinery for settlement of labour disputes , i.e. by arbitration or by ORG . In such cases the general rule is that the organisations have the full disposal of the subject - matter and the right to take legal action . An exception from this general rule follows from LAW , subsection CARDINAL , of LAW which reads as follows :", "( Translation )", "“ An employee shall , however , be entitled to bring an action for award of outstanding wages in the ordinary courts of law unless the organisation , in proceedings before ORG , has waived this right on behalf of the employee or when the failure to pay wages is related to a labour market dispute . ”", "The ordinary courts of law have , inter alia on the basis of this provision , heard cases involving collective agreements , even if the organisation has failed to proceed with the case within the framework of the machinery set up for the settlement of labour disputes , cf . UCARDINAL/CARDINALØ , PERSON and GPE in which express reference was made to the right of access to court under LAW .", "Any decision ( judgment ) of ORG is final . ORG is the first and only level of jurisdiction , since no appeal lies against its decisions . Consequently , the judgments of ORG are directly enforceable in accordance with the rules of ORG relating to enforcement of judicial awards , cf . LAW ." ]

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[ "The applicants were born in DATE and DATE , respectively , and live in GPE , GPE . They represent their minor daughter , PERSON . PERSON before the ORG . PERSON . PERSON was born in DATE .", "In DATE PERSON . PERSON suffered paralysis as a consequence of a compulsory polio inoculation . In DATE the applicants , as her representatives , brought an action against the NORP State claiming compensation and a DATE allowance . The parties reached a friendly settlement . On the applicants ' request , in DATE the compensation and the allowance were raised . In DATE ORG partly accepted their claim for the value of a special car .", "On DATE the applicants brought an action before ORG , sitting as a first instance court , claiming a raise in the DATE allowance as a result of inflation and the high cost of schooling .", "Following the court 's order , on DATE an expert submitted an opinion on the matter .", "On DATE the applicants modified their action .", "On DATE ORG partly granted the applicants ' claims .", "Upon the applicants ' appeal , on DATE ORG quashed the first - instance judgment and remitted the case to ORG .", "In the resumed proceedings , on DATE the expert submitted another opinion . On DATE the applicants clarified their claims about inflation .", "On DATE ORG partly accepted the applicants ' claims .", "On DATE the applicants appealed to ORG for the full claim .", "On DATE the applicants requested the court to deliver a judgment , and modified their claims in view of the lapse of time since their appeal had been lodged .", "On DATE the applicants again requested the court to deliver a judgment and modified their claims , given the time lag .", "On DATE and DATE ORG held hearings . In a judgment of DATE , ORG partly modified the first - instance decision .", "On the applicants ' petition for review , on DATE ORG review bench increased the award ." ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON O’Sullivan , a lawyer practising in GPE , GPE .", "A.", "The applicant is a medical doctor . In DATE ORG ( “ the ORG ” ) was informed of a number of complaints against the applicant by QUANTITY female patients . In DATE the police informed the ORG that they were investigating allegations of indecent assault by the applicant . On DATE the ORG received written complaints from the CARDINAL patients to which the information of DATE referred . The complaints included allegations of sexual assault and blackmail .", "On DATE ORG ( “ the Committee ” ) of the ORG decided that there was a prima facie case for the holding of an inquiry . On DATE ORG made an order restraining the applicant from practising medicine pending the outcome of the proposed inquiry . That order was not published . However , a further order of ORG dated DATE , removed the applicant ’s name from the register of practitioner ’s and restrained him from practising medicine pending the inquiry and all consequent proceedings . ORG also agreed that the ORG could make public the “ sequence of events ” including the orders of DATE and CARDINAL DATE . ORG issued a press release on DATE which included the applicant ’s name , the terms of those CARDINAL ORG orders and details as to how an individual can complain to the ORG about a medical practitioner . Further complaints were then received from former female patients of the applicant . The applicant also claims that the chairperson of the ORG also made public statements about the case and that newspaper articles appeared which could only have emanated from the ORG .", "On DATE the oral hearing before the ORG commenced . The applicant applied to have the inquiry held in public , stating that he wished to redress the damage done to his reputation by the publicity to which the case had already been subject . In exercising its discretion on the subject , the inquiry considered , inter alia , the necessity to ensure that members of the public could freely and without repercussions make complaints regarding their medical practitioners ; the necessity to protect the confidentiality of the doctor / patient relationship ; the nature of the allegations made ; the likely affect on the administration of justice of a hearing in public ; the powers of the ORG to protect the private lives of individuals even if the inquiry was held in public ; the protection against bias offered by a public hearing and the guarantees offered to the practitioner by the appeal to ORG . ORG found that the principles of natural justice and fair procedures required the inquiry to be held in private .", "The applicant sought leave to apply to ORG by way of an application for judicial review for an order of certiorari quashing the above decision of ORG . ORG refused leave . On DATE ORG gave leave to so apply to ORG on CARDINAL grounds . In the first place , to inquire whether the ORG was entitled to rule that the whole of the inquiry be held in private , the applicant arguing that this was contrary to ORG DATE ( “ the DATE LAW ) , to the LAW and to LAW . Secondly , to enquire as to whether the proceedings were prosecuted , and the decision ( that the inquiry was to be held in private ) was made , in circumstances which were inconsistent with the objective separation of the functions of prosecutor and adjudicating tribunal . Included in this latter ground , were the propositions that the proceedings before the ORG were unfair and that the ORG ’s impartiality had been compromised .", "On DATE ORG rejected the application and awarded costs against the applicant . ORG noted in its judgment that , when it considers decisions of the ORG brought before it , it was not exercising an appellate jurisdiction as ORG will “ hear all the evidence as if it was a court sitting at first instance ” . ORG rejected the applicant ’s appeal by judgment dated DATE and costs were awarded against the applicant . In its judgment , that court noted that only ORG can decide to remove a practitioner ’s name from the register and that the applicant would be “ entitled to a full rehearing and possibly to a rehearing in public ” if and when the ORG ’s decision was brought before ORG , ORG adding that when the procedure has been exhausted in the ORG , in the ORG and in ORG , a final appeal would lie to ORG , but it was not the function of ORG to monitor the proceedings as they unfolded . Costs were awarded against the applicant .", "The proceedings against the applicant under LAW have not yet terminated and have been adjourned pending the determination of criminal proceedings against him .", "B. Relevant domestic law and practice", "The Medical Practitioners Act DATE established the ORG and provided for the establishment of the ORG . It is the ORG which decides whether it is necessary to hold an inquiry into the conduct of a registered medical practitioner . If the ORG is satisfied that it is in the public interest to do so , it may apply to ORG for an order that the registration of any practitioner shall not have effect pending that inquiry . On completion of the inquiry , ORG reports to ORG . Where it is found that the practitioner has committed acts of professional misconduct or is unfit to engage in the practise of medicine by reason of an alleged physical or mental disability , the ORG may decide that that person ’s name be erased from the register , that his or her registration be suspended for a certain period of time or that certain conditions be attached to the retention in the register of that person .", "In any of the above cases , the practitioner in question can apply to ORG to cancel the decision of the ORG and that court may either cancel the ORG ’s decision , direct the erasure or suspension of the practitioner ’s registration or attach such conditions to retention of the practitioner ’s name on the register as it thinks fit . In the absence of such an application by the practitioner , the ORG may apply to ORG for confirmation of its decision . In such circumstances , and unless it sees good reasons to the contrary , the High Court shall confirm the decision of ORG . A High Court hearing on such an application by a practitioner is conducted as an entire trial of the issues involved and is not a mere appeal from the combined decisions of ORG . The hearing , save in exceptional circumstances , is in public and the onus of proof lies on the ORG .", "Accordingly , the ORG ’s findings have no legal effect on the practitioner ’s right to practice and the ORG ’s decision has no legal effect until confirmed by ORG , which court may cancel the decision of the ORG or vary it ." ]

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[ "The applicant was born in DATE and lives in GPE - on - Don .", "In DATE the applicant took part in the cleaning - up operation at the GPE nuclear disaster site . He was subsequently granted Category CARDINAL disability status and became entitled to various social benefits . The subjects of the present case are the disputes concerning these benefits .", "In DATE the applicant lodged a complaint before the ORG of PERSON - on - PERSON alleging a failure of the authorities to comply with the pension law . On DATE ORG upheld the complaint , noting the authorities ' unlawful inactivity .", "On DATE ORG upheld the applicant 's action against the authorities and awarded him DATE payments of MONEY ( RUB ) in compensation for health damage and as food allowance . ORG also awarded him a lump sum of RUB CARDINAL in outstanding compensation . The judgment was not appealed against and became final . The authorities did not pay the applicant the lump sum , and made the DATE payments only until DATE .", "On DATE the ORG of ORG , by way of supervisory - review proceedings , quashed the judgment of DATE and remitted the case for re - examination to ORG .", "The hearings were adjourned on DATE and on DATE due to the authorities ' failure to appear .", "The next hearing was fixed for DATE when it was again postponed as the applicant had amended his claims .", "On DATE the applicant lodged additional claims .", "On DATE the court granted the authorities ' request for stay in the proceedings on the grounds that there were pending related proceedings in ORG of GPE and in LAW . The proceedings in ORG had been initiated by the applicant ( see para . CARDINAL below ) . The applicant appealed against the decision to stay the proceedings , to no avail .", "On DATE the case was reopened and assigned for hearing for DATE .", "On DATE the authorities failed to appear and the proceedings were adjourned .", "On DATE the ORG accepted the applicant 's claims in part . It ordered that ORG should pay him a lump sum of RUB CARDINAL in compensation for health damage , DATE payments of RUB CARDINAL and a lump sum of RUB CARDINAL in compensation for damage caused by a delay in the payment of DATE benefits . ORG also noted that the amount of DATE payments was to be index - linked in accordance with the law . The judgment was upheld on appeal and became final on DATE .", "NORP In DATE the authorities , as well as the applicant , requested reopening of the proceedings by way of supervisory review .", "On DATE the Presidium of the Rostov ORG quashed the judgments of DATE and CARDINAL DATE and sent the case for a fresh examination . The ORG held that the lower court had not calculated the sums of compensation and adjustment of DATE payments in accordance with the relevant law provisions , considering it as mistakes in implementation of substantive , as well as procedural , law .", "On DATE the authorities failed to appear in court and the hearing was adjourned .", "On DATE the applicant specified his claim .", "On DATE the case was postponed as the authorities were not properly informed about the hearing .", "On DATE the authorities failed to appear and the hearing was adjourned .", "On DATE the examination of the case was postponed as the judge was considering another case .", "On DATE the case was adjourned because of default in appearance of the applicant .", "On DATE the ORG dismissed the applicant 's action in full . The applicant appealed . However , on DATE ORG adjourned the examination of the appeal because the applicant had only submitted a short version of his appeal statement . On DATE the Rostov ORG quashed the decision of CARDINAL DATE as unlawful .", "The applicant contested the accuracy of TIME of the hearing of DATE . On DATE the ORG dismissed the claim without consideration on the merits . The applicant appealed and on DATE the Rostov ORG quashed the decision of CARDINAL DATE and remitted the matter for fresh consideration . On DATE the applicant 's claim concerning the minutes was dismissed on the merits .", "On DATE the Rostov ORG , acting on appeal , quashed the judgment of DATE and remitted the case for a fresh examination .", "On DATE the case was assigned to examination for DATE . On that date the applicant asked the court to request some documents from the defendant . The hearing was adjourned to CARDINAL DATE .", "Upon the applicant 's requests the subsequent hearings were adjourned until DATE .", "On DATE the case was adjourned due to the absence of a prosecutor .", "On DATE the case was not tried again due to the applicant 's failure to appear .", "On DATE ORG partly upheld the applicant 's action and awarded him a lump sum of RUB CARDINAL,CARDINAL.CARDINAL in outstanding compensation for health damage , DATE payments of RUB CARDINAL in compensation for health damage and RUB CARDINAL in compensation for damage caused by a delay in payment of DATE sums . Thus , as compared with the quashed final judgment of DATE , the court awarded a lesser lump sum but higher DATE payments .", "On DATE ORG upheld the judgment on appeal .", "As to the enforcement of the judgment , the DATE payments were made regularly and the lump sum was transferred to the applicant 's account by DATE .", "On DATE the NORP ORG of GPE - on - PERSON granted the applicant 's request and quashed the judgment of DATE as upheld on DATE due to newly - discovered circumstances .", "On DATE and on DATE the applicant unsuccessfully requested suspension of the proceedings as the same claims were considered by another court ( see para . CARDINAL below ) .", "On DATE the Proletarskiy District Court of GPE - on - PERSON discontinued the proceedings as the applicant failed to appear before the court and did not request the case to be tried in his absence .", "In DATE the applicant lodged an action against ORG complaining that the lump sum awarded under the judgment of DATE had never been paid to him . He sought compensation for pecuniary and non - pecuniary damage .", "On DATE ORG stayed the proceedings because the President of ORG had lodged an application for a supervisory review of the judgment of DATE .", "The decision of DATE was quashed on appeal on DATE and the proceedings were resumed .", "On DATE ORG disallowed the applicant 's action against the ORG . That decision was quashed on DATE and the action was sent to ORG for an examination on its merits .", "On DATE ORG dismissed the applicant 's action on the ground that the judgment of DATE had been quashed by way of supervisory review on DATE and that on DATE the applicant had obtained another judgment in his favour . On DATE ORG upheld the judgment of DATE .", "In DATE the applicant brought proceedings against authorities demanding adjustment of his DATE payments .", "On DATE ORG of Rostov - on - Don dismissed the applicant 's action . The judgment was upheld on appeal and became final on DATE .", "On DATE the applicant requested the case to be reopened due to newly discovered circumstances .", "On DATE ORG granted the claim and quashed the judgment of CARDINAL DATE .", "After the resumption of the proceedings the applicant amended his claims several times . Eventually he claimed damages for the delays in payments and failures to adjust them , making the claims similar to those considered in another case ( see para . CARDINAL above ) .", "On DATE ORG granted the applicant 's claims in part . It made the relevant adjustments and awarded the applicant compensation for the underpaid sums in the amount of RUB ORG , DATE payments of RUB MONEY and DATE payments of RUB MONEY .", "On DATE ORG upheld the judgment on appeal .", "The DATE payments were made without delay . As to the lump sum , it was received by the applicant in DATE .", "In DATE the applicant lodged another action seeking adjustment of his DATE payments to take account of increases of the minimum DATE wage .", "On DATE ORG upheld the action . That judgment was quashed on appeal on DATE and the case was remitted for a fresh examination .", "On DATE ORG dismissed the claims in full . On DATE the Rostov ORG upheld the judgment .", "In DATE the authorities , by a unilateral decision , reduced the amount of DATE payments to the applicant . DATE he lodged an action against the authorities complaining about the reduction and seeking compensation for damage .", "On DATE the ORG of ORG held that the authorities the applicant sued were not the proper respondent and disallowed the action against them . However , ORG ordered another authority , the local ORG , to join the proceedings as a respondent party and to resume payments of DATE sums to the applicant in accordance with the judgment of DATE .", "On DATE the Rostov ORG , acting on appeal , upheld the judgment of CARDINAL DATE in the part concerning the disallowance but quashed the remaining part of the judgment and sent the matter for a fresh examination .", "On DATE , as a result of the re - examination , ORG dismissed the applicant 's claims in full . The applicant did not appeal .", "The applicant lodged an action before ORG asking for information to be disclosed about local judges who had not been provided with housing LOC in accordance with the law . By the final judgment of DATE ORG dismissed the action , noting that the information was confidential .", "In DATE the applicant unsuccessfully asked the authorities to provide him with information concerning the representation of their interests in courts . He complained about the refusal to a court .", "On DATE ORG , in the final instance , dismissed the complaint , noting that the applicant 's rights and freedoms had not been infringed by the refusal .", "On DATE the applicant brought proceedings before ORG of GPE claiming unconstitutionality of some of the law provisions concerning payments for disability caused by the GPE nuclear disaster .", "On DATE ORG found the provisions constitutional , thus rejecting the applicant 's claim . At the same time it noted that by these norms the ORG took an obligation to make the relevant payments within a specified period of time . It underlined , with the reference to the practice of ORG , that when an award is made by a final judgment , it should be enforced without delay .", "The applicant , relying on the decision of DATE of ORG , asked ORG to review its final judgment of DATE due to newly discovered circumstances .", "On DATE ORG dismissed the request . That decision became final on DATE when ORG upheld it on appeal .", "Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .", "The relevant domestic law governing the supervisory review procedure in the material time is summed up in the ORG 's judgment in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL , NORP , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , PERSON and PERSON , § § ORG , CARDINAL DATE ) ." ]

[ "13", "6", "P1" ]

[ "P1-1" ]

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[ "6" ]

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[ "The applicant , Mr Franciszek Gongor , is a NORP national who was born in DATE and is currently serving a prison sentence in FAC . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "The applicant has been detained continuously since DATE .", "On DATE he was committed to ORG , where he remained for DATE . On DATE he was transferred to FAC , where he was held until DATE . It appears that , subsequently , the applicant was transferred to ORG and ORG for medical treatment . From DATE until DATE the applicant was again held in FAC . On DATE he was transferred to ORG where he received dental treatment . On an unspecified date he was once more transferred to FAC .", "On an unspecified date , presumably in DATE , the applicant was committed to FAC .", "The applicant provided a detailed description of the conditions of his detention only in respect of FAC . He submitted , however , that the overall conditions in FAC , FAC and , more recently , ORG , were similar .", "The applicant claimed that the cells in FAC were overcrowded and not ventilated . The opportunities for ensuring personal hygiene were scarce . There was a sink with cold water inside the cell . The toilet annex was insufficiently separated . As a result , there was a constant foul odour in the air . Even though a shower was allowed once DATE , most detainees did not have a chance to wash . The bathroom was equipped with CARDINAL shower cabins and it was used for TIME inmates at a time . As a result , only those who were placed high in the prison hierarchy got to take a shower . To make things worse , there were frequent water cuts . The water pressure was often too low or there was either only cold or hot water in the shower .", "There was no social or cultural programme for detainees . The entertainment room was small and equipped with a broken ORG and a table to play tennis but no rackets . The detainees had no access to current newspapers and limited access to the law library .", "The conditions described led to frustration and tension among the prisoners .", "Furthermore , the applicant maintained that the quality of food offered to the detainees was substandard . The meals were always served cold and their main ingredient was canned meat , full of chemical preservatives . As a consequence , many detainees , including the applicant , suffered from digestive problems .", "The applicant also submitted that the medical care provided within the penitentiary system was insufficient . It was very difficult to obtain an appointment with a doctor . In this respect the applicant submitted that he had had to wait DATE before he could be examined by an inhouse ophthalmologist , DATE before he could be admitted to ORG , and DATE before he could be examined by a doctor in FAC . Moreover , a general practitioner was present in the applicant ’s ward DATE .", "In his letter of CARDINAL DATE the applicant informed ORG that he had been committed to FAC . He made a general statement that living conditions and medical care in that establishment were bad . He claimed that his cell was overcrowded , dirty and infested with bugs .", "The Government essentially acknowledged that the applicant had been placed in overcrowded cells in ORG and in GPE and ORG . They submitted , however , that in FAC the applicant was detained in a cell in which the statutory minimum standard of CARDINAL m² per person was respected .", "The applicant lodged numerous complaints with the penitentiary authorities about the medical care provided within the penitentiary system and about the overall conditions in ORG .", "In a letter of DATE the Head of ORG stated that during the first period of the applicant ’s detention , from DATE to CARDINAL DATE , the population rate was PERCENT , whereas during DATE from DATE to DATE it peaked at PERCENT . He added that the current population level had reached PERCENT and was rising .", "On DATE the Deputy Head of ORG GPE stated in his memorandum that the meals served to the detainees were of sufficient nutritional value and quality . Their temperature was measured at the time of distribution and was sustained thanks to the thermos containers used . The order of the cells in which the food was distributed was changed everyday .", "On DATE the Head of ORG GPE submitted that at least twice DATE various sociocultural activities were proposed to the detainees . The entertainment room was equipped with a ORG , tennis table , and board games although the capacity of the room was limited to CARDINAL persons . Consequently , the CARDINAL detainees held in the ward could have access to it only on a rotation basis . Moreover , various national radio programmes were broadcast TIME via the prison radio station . The administration bought CARDINAL issues of a DATE newspaper to be distributed among all the wards .", "In a memorandum of DATE ORG doctor stated that the applicant received systematic medical care . He was often examined by a general practitioner , as well as by specialists in urology , dermatology , neurology , ophthalmology , and psychiatry .", "On DATE ORG ( PERSON ) , acting as a penitentiary court , examined the applicant ’s complaint about the conditions in ORG , in particular overcrowding , lack of sociocultural activities , poor diet and overall conditions of detention . The court acknowledged the problem of overcrowding resulting from the rapid rise in the facility ’s population level . It was pointed out that the centre ’s administration had complied with the applicable domestic law and had made efforts to deal with the problem , for example by turning an entertainment room into cells . The court further noted that the cells were properly equipped and that the detainees were supplied with necessary hygiene products . The applicant ’s cell was ventilated and cleaned regularly . The meals served were of sufficient nutritional value and quality . The detainees had access to the library . They could subscribe to DATE newspapers or magazines . Finally , they could listen to the radio . The court held that the applicant ’s complaint was manifestly illfounded .", "The applicant did not lodge similar complaints with the penitentiary authorities in connection with the more recent period of his detention and with the living conditions in the other prisons and remand centres .", "The applicant filed a civil action in tort to seek compensation for the infringement of his personal rights on account of the living conditions in FAC .", "On DATE ORG dismissed the applicant ’s civil claim . The applicant did not appeal .", "Moreover , the applicant did not bring a similar civil action in relation to the remaining period of his detention .", "( See PERSON and CARDINAL other applications v. GPE , no . CARDINAL/CARDINAL ) ." ]

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[ "The applicant was born in DATE and lives in the town of GPE , GPE . He is a military serviceman .", "On DATE and CARDINAL DATE ORG ( “ the ORG ” ) , sitting in GPE , in the final instance dismissed the applicant 's claims against his commanding officers .", "On DATE ORG in the final instance allowed the applicant 's other claim . It made the following order :", "“ The commanding officer of military unit no . DATE shall provide [ the applicant ] with data about the constitutive elements of his monetary allowance paid to him from DATE until DATE , as well as about reasons and grounds for him being deprived of bonus in DATE ” .", "ORG judgment of DATE was final and immediately enforceable .", "On DATE the bailiffs of ORG of ORG ( “ the ORG ” ) commenced the enforcement proceedings . They requested the commanding officer to enforce the judgment of DATE in the applicant 's favour voluntarily within DATE .", "Meanwhile , on DATE the CARDINALth ORG ( “ the Garrison Court ” ) , sitting in LOC , allowed another claim lodged by the applicant . It ordered the commanding officer of the military unit no . DATE to provide the applicant with an DATE leave starting from DATE . The judgment of DATE was not appealed against and became final and enforceable on DATE .", "On DATE the bailiffs of ORG commenced the enforcement proceedings . They requested the commanding officer to enforce the judgment of DATE in the applicant 's favour voluntarily within a DATE period . The judgment was enforced before DATE .", "On DATE the commanding officer of the military unit no . DATE wrote to the applicant providing him with the relevant information , as he had been ordered to do by ORG judgment of DATE . The letter of CARDINAL DATE indicated that it was sent in compliance with the judgment of DATE . It was received by the applicant on DATE .", "Domestic law and practice on execution of the judgments delivered against the ORG and its entities are summarised in PERSON ( no . CARDINAL ) v. GPE ( no . CARDINAL , § § DATE , ORG CARDINAL- ... ) .", "The DATE legislation introducing a new domestic remedy in respect of an alleged violation of one 's right to enforcement of a judgment within reasonable time is summarised in GPE and PERSON v. GPE ( dec . ) , nos . CARDINAL and CARDINAL , § § DATE , DATE , and GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .", "On DATE the Joint Plenary of ORG of GPE and ORG of GPE adopted a resolution interpreting the above - mentioned legislative provisions . It is reiterated in the resolution that the legislation in question is applicable only in respect of the monetary awards payable from the public funds pursuant to a contractual or legal provision ( paragraph CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON NORP and PERSON PERSON .", "The applicant was born in DATE and lives in GPE .", "In DATE she instituted proceedings in ORG against Mr M. , seeking recovery of a debt and compensation for non - pecuniary damage . The applicant submitted that on DATE Mr PERSON had borrowed USD MONEY from her , which he had undertaken to give back in DATE . In DATE the applicant asked him to return the money , but Mr PERSON refused .", "In the course of the proceedings , Mr M. confirmed that he had received the money from the applicant . He however stated that the applicant had given him the money for the use in commercial transactions under the condition that he would pay her PERCENT of his DATE income . Mr PERSON further stated that by DATE he had given the full amount back to the applicant .", "On DATE the court ruled in part for the applicant . It found that the parties had reached an oral agreement on the money loan , which was evidenced by their submissions before the court . The court also noted that in DATE Mr PERSON had made similar written submissions to the police , confirming that he had taken the money from the applicant for the use in his commercial transactions .", "The court further found that the submissions of PERSON M. that he had paid back the money were unsubstantiated , as they were not supported by any documentary evidence .", "It ordered Mr M. to pay the applicant the equivalent of ORG CARDINAL in the NORP national currency ( hryvnya ) . The court also awarded her ORG CARDINAL in compensation for non - pecuniary damage .", "Mr PERSON appealed , alleging that the first instance court had erred in establishing the facts of the case . In particular , he stated that , since the court had found that there had been a debt without having any documentary evidence before it , it should not have rejected his submissions that the debt had been paid in full .", "On DATE ORG ( ORG ) quashed the judgment of DATE . It held , referring to LAW of LAW of DATE , that PERSON PERSON should not have been required to provide documentary evidence to establish that he had fulfilled the obligation deriving from the contract which had been concluded orally . Such a requirement existed in respect of written contracts . Since the applicant failed to provide any documentary evidence to demonstrate that there was an outstanding debt , which was contested by Mr M. , her claim for the recovery of that debt was rejected as unsubstantiated .", "By the same judgment , the court of appeal ordered the applicant to pay the ORG the court fee of ORG MONEY .", "The applicant appealed in cassation , alleging that the judgment of ORG was arbitrary . On DATE the panel of CARDINAL judges of ORG rejected the applicant ’s appeal , finding that the judgment of the court of appeal was lawful .", "On DATE ORG adopted a supplementary decision , by which it rejected the applicant ’s claim for compensation for non - pecuniary damage as unsubstantiated . The applicant did not appeal in cassation against that decision , as , according to her , it was not to be appealed under NORP law .", "The relevant provisions of the LAW read as follows :", "“ [ The following ] should be concluded in writing :", "CARDINAL ) NORP agreements between citizens concerning a sum of CARDINAL karbovantsiv [ ] ...", "CARDINAL ) NORP other agreements between citizens which the law requires to be concluded in a written form ... ”", "“ The parties shall have no right to refer to witnesses’ statements to prove the existence of a contract in case of a dispute , if that contract was not put in writing , which was required by the law[. In ] cases specifically mentioned in the law , [ the failure to observe the requirement of written form ] entails the nullity of a contract ... ”", "“ Pursuant to a contract of loan , a party ( the lender ) gives [ a sum of ] money ... to another party ( the debtor ) , and the debtor undertakes to return the same sum of money ...", "A contract of loan shall be considered as concluded at the time of the money transfer ...", "“ A contract of loan for CARDINAL karbovantsiv shall be concluded in writing . ”", "“ A debtor has a right to deny a contract of loan ... by proving that the money ... was not in fact received by him ... or that [ he ] received less money than mentioned in the contract .", "If a contract of loan must be concluded in writing ( LAW ) , [ the parties ] are not allowed to deny [ that the money were transferred or received ] on the basis of ORG statements , except if the matter involves an act punishable under criminal law . ”", "The relevant provisions of the LAW read as follows :", "“", "“ The court , who delivered a judgment [ in the case ] , may , upon an application of persons who take part in the case or upon its own motion , adopt a supplementary decision in [ the following ] cases :", "CARDINAL ) NORP if any of the claims , concerning which the parties submitted evidence and observations , was not adjudicated ;", "...", "The question concerning [ possible ] adoption of a supplementary decision may be raised within DATE of the date of the judgment .", "The court adopts a supplementary decision after the question was considered in a hearing to which the parties were summoned .", "An appeal may be lodged against a supplementary decision within DATE following its adoption ... ”", "The relevant extracts from paragraph CARDINAL of the ORG read as follows :", "“ ... According to LAW of [ LAW ] the existence of legal relations , concerning which there is a requirement of written form ( LAW of [ LAW ] ) , may not be established on the basis of ORG statements .", "At the same time , the fact that such a contract was executed can be established on the basis of any evidence ... , including ORG statements . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "In the context of a real estate dispute , the applicant and her late husband brought an action before the Buda ORG apparently in DATE . The action concerned their claim to possess part of a disputed real estate and their request that the relevant land registry entry be rectified .", "On DATE ORG gave a partial decision as to the boundaries of the disputed land . As regards the land registry entry , ORG ordered that this question be severed and dealt with by ORG .", "On DATE the Pest County Regional Court suspended the appellate proceedings concerning the partial decision , pending the proceedings before ORG . The latter held hearings on DATE and DATE and CARDINAL DATE . On that date it rejected part of the action and suspended the examination of another aspect of the case .", "Meanwhile , the applicant and her late husband filed an application ( no . CARDINAL ) with ORG ( “ the Commission ” ) complaining in essence about the protraction of the proceedings . On DATE the application was declared partly admissible . On DATE ORG adopted its ORG under former LAW , observing that the parties had concluded a friendly settlement .", "On DATE the Pest County Regional Court dismissed the plaintiffs’ appeal against the decision of CARDINAL DATE . On DATE ORG dismissed their petition for review .", "Following the subsequent adjudication of the question whose examination had been suspended on DATE in those proceedings ORG held a hearing on DATE and gave judgement on DATE – the proceedings resumed in their part suspended on DATE .", "ORG held hearings on DATE , DATE and DATE . On DATE it accepted the plaintiffs’ claims and ordered the land registry to restore the original situation . On DATE it rejected the ORG request for rectification .", "In the resumed administrative proceedings , on DATE the ORG refused to restore the original situation , observing that this was impossible because of the physical and legal changes concerning the disputed land in the meantime .", "On DATE the Pest County Land Registry dismissed the applicant ’s administrative appeal .", "On DATE the applicant brought an action for judicial review . A first hearing was scheduled by ORG for DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , the former Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a shareholder of a private company . During the period of his absence , a general meeting of shareholders decided to sell the company ’s property . On DATE he brought proceedings before a court of general jurisdiction against CARDINAL private companies and CARDINAL individuals contesting the decision of the general meeting and seeking nullity of the sale .", "On DATE the law on the entry into force of a new Code of Commercial Procedure was adopted . It expanded the jurisdiction of commercial courts and established that the cases pending before courts of general jurisdiction but falling into jurisdiction of commercial courts should be transferred to commercial courts within DATE , provided that the plaintiff consented . If the plaintiff did not agree to the transfer , the proceedings on the case were to be discontinued .", "By decision of DATE , ORG of the GPE ( GPE Republic discontinued the proceedings on the applicant ’s claim . He appealed on the ground that ORG had not inquired whether he had consented , or not , to the transfer of the case . By decision of DATE , ORG of the GPE quashed the decision of DATE and remitted the case to the first - instance court for a fresh examination .", "On DATE ORG held a new hearing . The applicant agreed to the transfer , the defendants objected claiming that the DATE time - limit established for the transfer had expired . ORG decided to transfer the case to ORG of GPE .", "On DATE , on appeal by the defendants , ORG of the GPE quashed the decision of DATE and discontinued the proceedings on the ground that courts of general jurisdiction no longer had authority over the claim and that the time - limit for transfer had expired . The applicant was not present at the hearing as a summons had been dispatched by the court ’s registry on DATE , the following day after the hearing , and had reached him on DATE . The adversary party to the proceedings attended the hearing and made oral submissions .", "The applicant lodged several requests for supervisory review proceedings . On DATE ORG of the Russian Federation quashed the decision of CARDINAL DATE and remitted the case to ORG of GPE for a fresh examination . It held in particular that the belated notification of the appeal hearing had deprived the applicant of an opportunity to argue his position in adversarial proceedings and , for that reason , had breached his right to a court .", "On DATE ORG of GPE held a new appeal hearing that was attended by the applicant ’s representative . The appeal court upheld the decision of DATE by which the applicant ’s case was to be transferred to ORG of GPE for the examination on the merits .", "By decision of CARDINAL DATE , ORG discontinued the examination of the applicant ’s case on the ground that on DATE one of the respondents , a private company , had become insolvent and that the applicant ’s claim could not be determined without that participant . It is unknown whether the applicant appealed against that decision ." ]

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[ "The applicant company is the publisher of a newspaper ( GPE ) with its registered office in GPE .", "On DATE , DATE , DATE and DATE , as well as on CARDINAL and DATE May and DATE , the applicant company published , in its NORP regional edition ( PERSON ) , articles on the financial situation of a certain Mr PERSON who , at that time , was employed as a teacher and , at the same time , was a member of ORG ( PERSON ) and ORG . The articles commented on these professional tasks and , in harsh terms , alleged that he received CARDINAL salaries unlawfully as , according to NORP law , he was not entitled to a teacher ’s salary during his membership of ORG . He was , inter alia , referred to as someone unjustly enriching himself . These articles were accompanied by photographs of PERSON .", "On DATE Mr PERSON applied for an injunction under LAW ) to ORG against the applicant company . He requested that the applicant company be ordered to refrain from publishing his picture in connection with statements describing him as somebody who received his salaries unlawfully and who benefited from unlawful privileges . Furthermore , he requested an order for the publication of the judgment in the applicant company ’s newspaper , indicating the grant of damages and the injunction ( einstweilige GPE ) .", "On DATE the applicant company filed a statement of defence ( Klagebeantwortung ) in which it argued , inter alia , that the publication of the impugned articles had been justified under LAW .", "On DATE ORG granted an interim injunction . It found the measure justified because the plaintiff ’s interest in prohibiting the publication of his photograph outweighed the applicant company ’s interest in the publication of the illustrated articles , in particular as the publication of the pictures per se had no special information value ( ORG ) .", "On DATE ORG granted the permanent injunction prohibiting the applicant company from publishing the plaintiff ’s picture in connection with the above mentioned or similar articles . It dismissed the remainder of the action . The court found that LAW prohibited publishing a person ’s picture if the publication violated that person ’s legitimate interests . When considering such interests , account had to be taken of whether the person concerned was known to the public , because the publication of the photographs of unknown persons made it possible to identify them later . The court found that PERSON face was not generally known , despite his membership of ORG . Therefore , his legitimate interests had been infringed by creating the possibility of identifying him . The applicant company was of course entitled to report on the plaintiff ’s activities and financial situation , but there was no legitimate interest in publishing his picture as it had , per se , no information value . Furthermore , it was irrelevant for this specific question whether the content of the articles was true or false .", "On DATE the applicant company appealed . It argued that the court had erred when it found that the plaintiff ’s interests outweighed the applicant company ’s interests , as the public in GPE , who had elected PERSON , were interested in his sources of revenue . Therefore the court should have also taken evidence – as had been offered by the applicant company DATE in order to prove the truth of the articles . Furthermore , the plaintiff was known to the public as he was NORP and had participated in several events during the election campaign there . Thus it was incorrect that Mr PERSON ’s face was unknown .", "On DATE the ORG dismissed the appeal . It found that the publication of the pictures together with the articles had been unnecessary . In any case , the information value of the pictures could not outweigh Mr PERSON ’s interests . It also confirmed the legal opinion of ORG that , for the purposes of Section CARDINAL of LAW , it was irrelevant whether or not the publication contained true information .", "On DATE ORG declared inadmissible the applicant company ’s extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ) . It confirmed the findings of ORG , observed that the publication of the plaintiff ’s pictures had no additional information value , and therefore concluded that it had been unnecessary . On DATE this decision was served upon counsel for the applicant company .", "Section CARDINAL of LAW , in so far as relevant , reads as follows :", "“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor in any way made accessible to the public , where injury would be caused to the legitimate interests of the persons concerned or , in the event that they have died without having authorised or ordered publication , those of a close relative . ”" ]

[ "10" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits namely ORG . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant appealed ; however , his appeal was stayed together with other appeals relating to the said benefit . 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 benefits were payable to widowers under GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and lives in GPE , a town in LOC .", "NORP The applicant owned a flat in a decrepit house . The local council decided to demolish the house , and on DATE the applicant sued the council for a replacement flat .", "On DATE ORG ordered the council to provide the applicant with a flat in Okha of the same quality as his demolished flat . This judgment became binding on DATE but was never enforced .", "Under LAW of DATE , a bailiff must enforce a judgment within DATE ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant and his relatives claimed before ORG that several plots of land had been owned by his late father and belonged to his estate . In the course of the proceedings the plaintiffs specified the subject - matter of their action .", "On DATE ORG ruled on part of the claims and decided to deal separately with the remainder of the action .", "On DATE ORG invited an expert to submit an opinion and ordered the parties to pay an advance on the expert ’s costs .", "On DATE the ORG quashed the decision to the extent that it related to the expert ’s costs .", "DATE and DATE ORG held CARDINAL hearings and obtained further evidence .", "Further evidence was obtained DATE . On DATE the case was assigned to a different judge .", "On DATE the ORG dismissed the action . It held that the defendant company lacked standing in the proceedings as it did not possess the land in question .", "The applicant appealed on DATE . On DATE ORG ordered the applicant to pay the fees for the appellate proceedings .", "On DATE the ORG quashed both the judgment of CARDINAL DATE and ORG decision of CARDINAL DATE .", "On DATE the applicant and the other plaintiffs re - stated the subject - matter of the action . They indicated a ORG - owned company and an administrative authority as defendants in the case .", "On DATE the ORG refused to exempt the applicant from the obligation to pay the court fee .", "DATE the court obtained further evidence .", "On DATE the case was adjourned .", "On DATE ORG found that the CARDINAL plots of land in question belonged to the estate of the applicant ’s late father .", "On DATE the applicant appealed . He claimed that ORG judgment did not cover CARDINAL other plots of land which his father had also owned . After having taken further procedural steps , ORG submitted the case to the court of appeal on DATE .", "On DATE the ORG sent the case back to ORG with the instruction to decide on the outstanding claim within DATE .", "On DATE ORG issued a supplementary judgment in which it dismissed the action to the extent that it concerned one of the CARDINAL defendants in the case . On DATE the applicant appealed . The file was submitted to ORG in Prešov on DATE .", "On DATE ORG asked an administrative authority to submit documentary evidence to it . On DATE it ordered ORG to decide on the applicant ’s claim that several other plots of land also belonged to his father ’s estate . After complying with the instruction ORG was to return the file to the appellate court for further proceedings in the case .", "On DATE ORG dismissed the applicant ’s request for the judgment of DATE to be completed to include CARDINAL different plots of land . That decision became final on DATE .", "On DATE ORG in Prešov did not allow the applicant ’s request for amendment of the action and it dismissed his appeal against the first instance judgment of DATE as modified by the judgment of DATE .", "On DATE ORG in GPE issued a decision in which it corrected an error in the operative part of its judgment of DATE .", "In a letter of DATE ORG informed the applicant of the ORG ’s practice requiring that applicants in a similar position should use the remedy under LAW available as from DATE .", "On DATE the applicant complained to ORG , inter alia , about the length of the proceedings before ORG .", "In a letter dated DATE a constitutional judge informed the applicant that his submission fell short of the formal requirements , thus preventing ORG from dealing with it .", "In addition , the letter contained the following information :", "“ To the extent that your submission concerns delays in proceedings before an ordinary court , it should be noted that ... LAW that a complaint must be filed against a current and continuing interference by public authorities with the plaintiff ’s fundamental rights . This view is based on the fact that a complaint [ to ORG ] plays an important preventive role , namely as an effective remedy preventing an interference with fundamental rights and , in cases where such an interference has occurred , its role is to put an end to a violation of such rights .", "Therefore , in cases where it is obvious that no further delays can occur in proceedings at the moment when a complaint is filed with ORG ( even in cases where no final decision has been given ) , such a complaint can be rejected as being manifestly ill - founded . ”", "Article CARDINAL ( CARDINAL ) provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Prior to DATE there was no “ effective remedy ” within the ORG meaning in GPE as regards this right ( see , mutatis mutandis , NORP v. GPE ( dec . ) , no . MONEY , CARDINAL DATE ) .", "With effect from DATE , the LAW has been amended in that , inter alia , natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision , ORG has the power , in the event that it finds a violation of LAW ( CARDINAL ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .", "It has been ORG practice to entertain complaints about excessive length of proceedings only where the proceedings complained of were pending at the moment when such complaints were lodged ( see , for example , decisions file nos . I. ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL or ORG CARDINAL/CARDINAL ) .", "In proceedings file number I. ÚS CARDINAL/CARDINAL ORG examined an individual complaint under LAW of delays in enforcement proceedings concerning a minor ’s claim for maintenance . The enforcement commenced in DATE in GPE ORG and , from DATE , continued in GPE I ORG where it was still pending . In a judgment ( nález ) of CARDINAL DATE ORG found that there had been unjustified delays in the proceedings before both ORG and awarded the minor complainant non - pecuniary damages to be paid by both courts .", "In proceedings file number I. ÚS CARDINAL/CARDINAL ORG examined a complaint by an individual under LAW of delays in proceedings in his civil action of DATE . The action was partially granted at first instance in DATE . That judgment was however quashed on appeal in DATE and the matter was remitted to the first instance court where it was still pending . In a judgment of DATE ORG found that there had been unjustified delays in the proceedings before the first instance court and awarded the complainant non - pecuniary damages . ORG also examined the phase of the proceedings before the court of appeal but found no unjustified delays . A similar approach was adopted in proceedings number ORG .", "In proceedings file number III . ÚS CARDINAL/CARDINAL ORG examined a complaint by an individual under LAW of delays in proceedings in a civil action against him . The action was lodged in DATE with ORG which , shortly after , transferred it to a ORG for reasons of jurisdiction . The action was then pending before ORG until DATE when ORG ruled that it should be determined at first instance by ORG . The action was eventually withdrawn and the proceedings were consequently discontinued by a final decision of DATE . In a judgment of DATE ORG found that there had been unjustified delays in the proceedings both before ORG and ORG . The complainant was awarded non - pecuniary damage to be paid by both courts .", "In proceedings file number PERSON . ÚS PERSON ( decision of DATE ) , ORG took a different approach . The plaintiff complained to ORG , inter alia , about the length of proceedings concerning her maintenance . The action was originally filed with the PERSON ORG in DATE . The question arose whether the first instance and the second instance court judges were impartial . On DATE ORG decided that the question of impartiality of the judges at the first instance would be determined by ORG . The latter decided on DATE that the action would be examined at first instance by ORG which determined it on DATE . On DATE ORG upheld the first instance judgment . In her complaint to ORG of DATE the plaintiff alleged that the ordinary courts had violated her right to a hearing without undue delay . ORG declared this complaint manifestly ill - founded . The decision stated that , insofar as the complaint related to the part of the proceedings leading to ORG decision of CARDINAL DATE , it had been filed out of time since , at the moment of the introduction of the constitutional complaint , the relevant part of the proceedings was no longer pending . For similar reason ORG rejected the complaint in respect of the subsequent proceedings before ORG which had ended on DATE . As to the appellate proceedings before ORG , ORG noted that they had lasted DATE and found that this period was not excessive ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "She is a widow of a military officer . She sued the military commissariats of GPE and GPE for recalculation of her pension on account of the increase of the monetary compensation paid in respect of a food allowance .", "On DATE the Justice of the Peace of the CARDINALth ORG granted her claim and ordered the military commissariat of GPE to pay the applicant MONEY ( RUB ) in pension arrears , as well as to readjust future payments in line with the increase of the food allowance . The claim against the commissariat of GPE was dismissed .", "The judgment was not appealed against and entered into force . It has not been executed .", "According to the Government , at some point the military prosecutor ’s office started an inquiry into lawfulness of several sets of court proceedings concerning military pension arrears throughout the GPE region .", "On DATE the defendant lodged a request for supervisory review of the case .", "On DATE the Presidium of the Rostov ORG quashed the judgment on the ground of a violation of substantive law and remitted the case to the President of ORG for the transfer to a different court for a fresh examination . The ORG found , in particular , that the Justice of the Peace incorrectly calculated the amount of the food allowance , having thus misinterpreted the material law .", "On DATE the Justice of the Peace of the CARDINALth Court Circuit of Novocherkassk discontinued the proceedings on the ground of the applicant ’s repeated failure to appear . The applicant did not appeal against the decision , and it entered into force .", "According to the Government , at some point several unspecified military officials of GPE had been charged with and convicted of negligent attitude to duties which had caused damage to ORG ) . The Government did not provide any documents or further details in this respect ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Üröm . He is represented before the ORG by Ms Sz . ORG , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Agent , ORG and Law Enforcement .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested on the charge of having stolen a car . He was in pre - trial detention until DATE .", "On DATE a bill of indictment was preferred . The applicant was charged with having trafficked in stolen goods .", "After having held several hearings and obtained the opinions of experts , on DATE the ORG found the applicant guilty as charged and sentenced him to CARDINAL months’ imprisonment , the execution being suspended for DATE .", "On appeal , on DATE the Pest County Regional Court re - characterised the applicant ’s offence as complicity , an offence punishable with up to DATE imprisonment . The court appreciated the long time which had elapsed since the commission of the offence as an important mitigating factor and decided to dispense with imposing a punishment . Instead , it formally reprimanded the applicant ." ]

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[ "The applicants are CARDINAL female NORP nationals of GPE ethnic origin .", "The applicants were treated at gynaecological and obstetrics departments in CARDINAL hospitals in eastern GPE during their pregnancies and deliveries . Despite continuing to attempt to conceive , none of the applicants has become pregnant since their last stay in hospital , when they delivered via caesarean section . The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned . Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents .", "The applicants , together with several other GPE women , granted powers of attorney to lawyers from ORG , a non - governmental organisation based in ORG . The lawyers were authorised to review and photocopy the women ’s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment . The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages , and to ensure that such documents and evidence were not destroyed or lost . The photocopies were to be made by the lawyers with a portable photocopier at the expense of ORG .", "The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in DATE and DATE . The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so .", "On DATE representatives of ORG expressed the view that section ORG ) of the Health Care Act DATE did not permit a patient to authorise another person to consult his or her medical records . The above provision was to be interpreted in a restrictive manner and the term “ legal representative ” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted .", "The applicants sued the hospitals concerned . They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records .", "CARDINAL applicants brought an action against ORG nemocnica PERSON ) in Prešov ( “ the ORG ” ) on DATE .", "On DATE the ORG delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof . The relevant part of the judgment became final on DATE and enforceable on DATE .", "With reference to section CARDINAL(CARDINAL ) of the Health Care Act DATE ORG dismissed the request to photocopy the medical documents . The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse . It was not contrary to the plaintiffs’ rights and freedoms guaranteed by the LAW . The applicants appealed against that part of the judgment .", "On DATE ORG in Prešov upheld the first - instance decision , according to which the applicants were not entitled to make photocopies of their medical files . There was no indication that the applicants’ right to have any future claim for damages determined in accordance with the requirements of LAW had been jeopardised . In particular , under the relevant law the medical institutions were obliged to submit the required information to , inter alia , the courts , for example in the context of civil proceedings concerning a patient ’s claim for damages .", "GPE and GPE , the CARDINAL remaining applicants , brought an identical action against ORG ( GPE s poliklinikou ) in PERSON ( “ the GPE ” ) on DATE .", "On DATE ORG in GPE ordered the defendant to allow the ORG representative to consult their medical records and to make excerpts thereof . It dismissed the claim concerning the photocopying of the medical documents . The court referred to section FAC ) of the Health Care Act DATE and noted that even courts or other authorities were not entitled to receive photocopies of medical records . Such a restriction was necessary in order to prevent abuse of personal data contained therein .", "The applicants appealed against the decision concerning the photocopying of the documents . They relied on Articles DATE and CARDINAL of the LAW and argued that , unlike public authorities and the medical institutions concerned , they had only limited access to their medical records , which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages .", "On DATE ORG in PERSON upheld the first - instance decision to reject the claim concerning the photocopying of the medical records .", "On DATE the CARDINAL applicants who had sued the ORG lodged a complaint under LAW . They alleged that ORG , ORG and ORG in Prešov had violated , inter alia , their rights under LAW and CARDINAL of the Convention .", "As regards LAW the applicants argued that , in practice , handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could . However , preventing the applicants from making photocopies of those documents put them at a disadvantage vis - à - vis the ORG , to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages . Furthermore , the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies . This would enable an independent expert , possibly abroad , to examine them , and also provide a safeguard in the event of the possible destruction of the originals .", "Under LAW the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them .", "On DATE ORG ) rejected the complaint . It found no appearance of a violation of LAW in the proceedings leading to ORG judgment of CARDINAL DATE . As to the alleged violation of LAW , ORG held that ORG had correctly applied section ORG ) of LAW of DATE and that a fair balance had been struck between the conflicting interests . Reference was made to the explanatory report to that LAW Furthermore , LAW did not encompass a right to make photocopies of medical documents .", "On DATE the remaining CARDINAL applicants lodged a similar complaint under LAW alleging a violation of , inter alia , Articles CARDINAL § CARDINAL and CARDINAL of the ORG as a result of the conduct of the representatives of ORG and in the proceedings leading to ORG judgment of DATE .", "On DATE ORG ( Second Chamber ) rejected the complaint as being premature . The decision stated that the plaintiffs had lodged an appeal on points of law against the part of ORG judgment by which the first - instance decision to grant their claim for access to medical records had been overturned .", "Subsequently CARDINAL applicants were able to access their files and to make photocopies thereof under the newly introduced LAW CARDINAL ( see paragraph CARDINAL below ) in circumstances which are set out in the decision on the admissibility of the present application .", "As regards the eighth applicant , PERSON , the ORG only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure . On DATE the Director of the ORG informed the applicant that her complete medical file had not been located and that it was considered lost . On DATE ORG admitted that ORG had violated LAW in that it had failed to ensure the proper keeping of the medical file of PERSON", "Article CARDINAL guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated .", "Under LAW , courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of ORG rights .", "Article CARDINAL § CARDINAL provides that , prior to starting proceedings on the merits , courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later .", "Article CARDINAL § CARDINAL obliges a plaintiff to submit the documentary evidence relied upon in an action , with the exception of evidence which the plaintiff is unable to submit for external reasons .", "Pursuant to LAW , parties are obliged to produce evidence in support of their arguments . The decision as to which evidence will be taken lies with the court . GPE , courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue .", "Until DATE , the following provisions of LAW CARDINAL/CARDINAL ( Zákon o zdravotnej starostlivosti – “ LAW DATE ” ) were in force :", "“ Section DATE Medical records", "The keeping of medical records shall form an inseparable part of health care .", "All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated , signed by the person who established them , stamped and numbered on each page ...", "Medical records shall be archived for DATE after the patient ’s death . ...", "A medical institution shall be obliged to provide medical records on a specific written request and free of charge , to a public prosecutor , investigator , police authority or court in the form of excerpts , to the extent that they are relevant in the context of criminal or civil proceedings . The medical records as a whole can not be put at the disposal of the above authorities .", "A patient , his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [ where the records are kept ] ...", "A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...", "An excerpt from a person ’s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established . It shall be established in writing on numbered pages . ”", "The relevant part of ORG to LAW DATE reads as follows :", "“ Medical records remain the property of the medical institution concerned . They contain data about the patient and often also about the members of his or her family or other persons . That information being of a strictly confidential and intimate nature , the obligation of non - disclosure extends to them in their entirety . It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information . ”", "Law no . CARDINAL on health care and health care services and on the amendment and completion of certain Acts ( PERSON o zdravotnej starostlivosti , službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “ LAW CARDINAL ” ) came into force on DATE and became operative on DATE . It repealed , inter alia , section CARDINAL of LAW DATE . Its relevant provisions read as follows :", "“ Section CARDINAL – Access to data included in medical records", "ORG included in medical records shall be made available by means of consultation of the medical records to :", "( a ) NORP the person concerned or his or her legal representative , without any restriction ; ...", "( c ) any person authorised in writing by the person mentioned in point ( a ) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation ; ...", "( g ) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ... ; the extent of data necessary for preparing the opinion shall be determined by the expert ...", "The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph CARDINAL . ”", "Point CARDINAL of the Recommendation adopted on CARDINAL DATE deals with the rights of persons whose medical data have been collected . The relevant part provides :", "“ Rights of access and of rectification", "Every person shall be enabled to have access to his / her medical data , either directly or through a health - care professional or , if permitted by domestic law , a person appointed by him / her . The information must be accessible in understandable form .", "CARDINAL.CARDINAL Access to medical data may be refused , limited or delayed only if the law provides for this and if :", "a. this constitutes a necessary measure in a NORP society in the interests of protecting state security , public safety , or the suppression of criminal offences ; ... ”" ]

[ "6", "8" ]

[ "6-1" ]

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[ "The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in the village of PERSON . They were represented before the Court by PERSON , a lawyer practising in GPE .", "ORG ( “ the Government ” ) were represented by their Agent , first PERSON , and then PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants’ DATE son , PERSON , and a friend of his , PERSON , entered a building housing an electric power transformer in the vicinity of their village . PERSON left the building first and immediately afterwards heard a blast . On looking inside , he saw PERSON sprawled on the ground ; he appeared to have been struck by high - voltage electricity . PERSON ran off and returned with the second applicant , GPE ’s father . At this point an ambulance arrived and took the boy to hospital . DATE GPE died .", "The electric power transformer was situated close to a road and to an animal feed factory owned by a company , M. Until DATE it had served the needs of the factory ; however , due to repeated thefts of equipment , in DATE the company ceased using it and had abandoned it . Even though the company had dismantled the rest of the equipment , a feeder cable of QUANTITY which served other plants and factories in the area had remained in use .", "Criminal proceedings were opened on DATE against an unknown perpetrator for negligently causing the death of PERSON by the careless performance of a dangerous activity .", "An inspection of the site of the incident was carried out on DATE . It was established that the building had a low - voltage and a high - voltage chambers , accessible through separate doors . The main door leading to the high - voltage chamber was closed and locked ; there was a warning sign on it . However , the door leading to the low - voltage chamber was missing and there was a hole in one of the chamber ’s brick walls measuring CARDINAL by QUANTITY . It was through that hole that GPE PERSON and PERSON had entered the high - voltage chamber .", "A post - mortem examination of GPE ’s body was carried out on DATE . It found burns and other traces of electric shock and established that the immediate cause of death was severe cerebrocranial trauma , which could have been caused by DATE to the ground after an electric shock .", "Numerous witnesses were interviewed in the course of the criminal proceedings . Among them were several neighbours who had been nearby at the time of the incident , some of whom had seen the CARDINAL boys enter the building housing the transformer and PERSON exit in a hurry . They had approached the scene , found GPE lying in a pool of blood and called an ambulance .", "Several witnesses said that the door leading to the low - voltage chamber had been missing for DATE prior to CARDINAL DATE . They had also seen the hole in the wall of the high - voltage chamber . They had assumed that the transformer was not functioning .", "NORP In fact , the electricity supply to the transformer was cut , following a request by company PERSON addressed to ORG ( “ the ORG ” ) , on DATE , DATE after the incident involving the applicants’ son .", "NORP In CARDINAL letters dated DATE and DATE , the PERSON informed the investigation authorities that the transformer at issue was not its property , but the property of company PERSON employees , when interviewed as witnesses , made statements to the same effect .", "The investigators collected documentary evidence concerning the nature of the duties of a number of employees at company LOC tasked with the maintenance of its electrical installations . It was established that after DATE the plant ’s department responsible for the maintenance of its electric installations had been headed by a Mr V.P. ; he was interviewed , as were several other employees of M.", "An expert report commissioned by the investigation authorities detailed numerous breaches of the relevant safety rules at the factory , such as a lack of regular checks of the installations . It has not been established whether the factory ’s installations had ever been inspected by the relevant ORG bodies . The report found also that Mr GPE , head of the department responsible for the maintenance of the company ’s electric installations , had not had the professional qualifications required by law .", "The investigators worked on the case until DATE , after which they took no further investigative action and the case remained dormant .", "Until DATE the applicants were active in the proceedings , filing requests and complaints . In DATE , following a request by the second applicant , a new investigator was appointed to deal with the case , as the previous one had died . It appears that after the appointment of the new investigator the applicants took no further initiative and remained passive .", "On DATE a prosecutor at the GPE regional public prosecutor ’s office discontinued the criminal proceedings as the statutory limitation period had expired . In a final decision of DATE ORG upheld the prosecutor ’s decision .", "The applicants have not sought damages from company LOC in respect of their son ’s death .", "LAW of DATE , in force until DATE , provided in section CARDINAL that all electricity power stations , electrical installations and networks belonged to the ORG . Cooperatives and other organisations could acquire such electrical facilities following an authorisation by ORG ( “ FAC ” ) .", "By section CARDINAL of the same LAW and section CARDINAL(CARDINAL ) of the LAW on its implementation ( “ the LAW ” ) , in force until DATE , the good technical repair of electrical installations and equipment was supervised by ORG . Such supervision could also be exercised by the electricity - supply organisations ( section CARDINAL(CARDINAL ) of the Regulations ) or by other bodies and organisations in the field of their competency ( section CARDINAL of the Act ) .", "The supervising bodies of ORG had the right ( “ имат право ” ) to carry out inspections and issue binding instructions to the users of electrical installations and equipment ( section CARDINAL of the Regulations ) . In cases of shortcomings or failures in electrical installations which could endanger the lives of personnel or the proper functioning of the whole electrical system , the supervising bodies were to take preventive measures and , if necessary , switch off the installation in question ( section CARDINAL of the Regulations ) .", "By section CARDINAL of the Act , administrative bodies and other organisations had to ensure the good technical repair and the safety of the electrical installations which they used .", "Section CARDINAL(CARDINAL ) of the Regulations provided that the owners and the users of electrical installations and networks were liable for any damage caused by bad technical repair and inadequate safety ; paragraph CARDINAL of section CARDINAL specified that the electricity - supply organisations would not be liable for damage caused by the bad technical repair of consumers’ electrical installations and networks .", "The Regulations on the state of electrical installations , in force until DATE , provided in section I-CARDINAL - CARDINAL that electrical installations , including electric power transformers and buildings housing them , had to be located so as to prevent unauthorised access , with locked doors and warning signs in place . High voltage areas of electric installations had to be isolated to avoid accidental access or contact ( section I-CARDINAL - CARDINAL ) .", "Sections CARDINAL - CARDINAL of that Decree provide for periodic checks of electrical installations and networks , which is to be carried out by bodies appointed by ORG . The same bodies are required to investigate grave incidents and serious breaches of the safety regulations .", "Article CARDINAL § CARDINAL of the Criminal Code provides that an individual who has negligently caused the death of another , through lack of knowledge or the careless exercise of a profession or a dangerous activity regulated by law , is to be punished by a term of imprisonment of DATE .", "Under NORP law , tort liability is provided for in LAW of DATE . In particular , section CARDINAL of the PERSON provides that the owner of and the person supervising an object are jointly liable for any damage caused by that object . In its constant practice ORG has held that liability under section CARDINAL does not require proof of “ fault ” and covers damages caused by “ objectively existing properties , qualities or defects of the object ” ( see , for example , judgment no . CARDINAL of CARDINAL DATE , case no . CARDINAL/CARDINAL ) ." ]

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[ "The applicant was born in DATE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a former Chairman of ORG and majority shareholder in ORG Most , a private NORP media holding company , which owned ORG , a popular television channel .", "On DATE the applicant was interviewed by Mr ORG , senior special cases investigator at ORG ( “ the ORG ” ) . It appeared from the transcript of this interview that it concerned an investigation into a ORG - owned company known as ORG RGK NORP Video ( “ LANGUAGE Video ” ) in respect of the transfer of a broadcasting licence to a limited liability company , PERSON ( “ OOO Russian Video ” ) , in violation of various provisions of LAW .", "After the interview , a witness statement was completed and signed by both the applicant and Mr Nikolayev . The applicant was allowed to check the notes made of the interview and to add his own comments . The investigating officer noted down on the statement that the applicant had been awarded the Friendship of the Peoples Order .", "NORP In DATE Media Most was involved in a bitter dispute with ORG , a natural gas monopoly controlled by the ORG , over ORG debts to ORG .", "After ORG had discontinued the negotiations on the debts , ORG offices in GPE were searched by special units from the ORG and ORG . A number of documents and other materials were seized as evidence in the framework of an investigation into alleged infringements of privacy by ORG security staff .", "On DATE Mr Nikolayev opened a criminal investigation in respect of the applicant ( criminal case no . CARDINAL - CARDINAL ) concerning allegations of fraud . This case was joined to a criminal investigation ( case no . CARDINAL - CARDINAL ) in respect of NORP , an executive of ORG , which concerned allegations of embezzlement . In both cases the allegations related to the business relations between ORG and ORG and , in particular , ORG inclusion into ORG and an increase in the latter 's authorised capital , which resulted in a redistribution of each shareholder 's ' stake .", "On DATE the applicant was summoned to attend the ORG on DATE at TIME to be questioned as a witness in relation to another criminal case . At the time of the summons by the ORG , the applicant was out of the country , but he nevertheless made arrangements to return to GPE . On arrival at the ORG on DATE , he was arrested and imprisoned in FAC pursuant to an order issued on DATE by Mr PERSON .", "The order stated that , on the basis of ORG DATE of LAW ( “ the ORG ” ) , Mr Nikolayev considered that the crime of fraud , of which the applicant was suspected , constituted a serious public threat punishable by imprisonment alone , and that the applicant might obstruct the establishment of the truth in the case and attempt to elude the investigation and trial .", "The applicant remained in custody until DATE , during which time he was interrogated twice , on DATE .", "The interrogation on DATE took place in the presence of the applicant 's lawyers . It was explained to the applicant before the interview that he was suspected of committing large - scale fraud within the meaning of LAW ( b ) of LAW . More specifically , the charges were based on an allegation that in DATE , through the establishment of various commercial entities ( including Media Most ) , broadcasting functions were fraudulently transferred from ORG , a ORG - owned company , to ORG , a private company , thereby depriving ORG CARDINALth Channel , which was valued at MONEY ( ORG ) . It was alleged that in DATE the applicant , in concert with NORP , began using the CARDINALth Channel for his own purposes , without payment to the ORG .", "The applicant declined to comment in detail on the investigation , other than to state that he found that it demonstrated an ignorance of NORP law and that a “ political contract ” had been taken out against him .", "Mr PERSON noted down in the record of the interview that the applicant had been awarded the Friendship of the Peoples Order .", "On DATE the applicant 's lawyers lodged a petition with Mr ORG , complaining that the applicant 's arrest was unlawful in that it did not comply with LAW ORG , that he was entitled to benefit from an amnesty exempting him from imprisonment on account of the award of the Friendship of the Peoples Order and LAW of DATE , and that the suspicions against him were inconsistent , absurd and false .", "In addition , the applicant 's lawyers lodged a complaint with ORG in GPE under LAW of the ORG , claiming that the applicant 's detention was unlawful and requesting his immediate release . They argued that the arrest order had been issued in violation of LAW , CARDINAL of the ORG , since there were no exceptional circumstances justifying the applicant 's detention before the charges had been laid or any grounds for imprisonment on the basis of the charges brought . The arrest order appeared to have been politically motivated and imprisonment was unnecessary and constituted an excessive restraint . Furthermore , there were no grounds to suspect that the applicant intended to elude the investigation or any reason to believe that he would obstruct it . Finally , the applicant was subject to an amnesty exempting him from punishment and preliminary imprisonment due to having been awarded the Friendship of the Peoples Order .", "On DATE Mr Nikolayev charged the applicant with fraud under LAW ( b ) of LAW . On DATE the applicant was interrogated in the presence of his lawyers . The applicant refused to sign the record of the interrogation because he did not understand the charges laid . He noted down on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them . He again declared that the investigation was being used by the authorities to discredit him and demanded his immediate release .", "On DATE , DATE , Mr ORG ordered the applicant 's release from custody in exchange for an undertaking not to leave the country . The applicant was released at TIME on DATE .", "After the applicant 's release , Mr ORG issued summonses for the applicant to appear for further questioning on DATE and CARDINAL , DATE and DATE . The applicant attended for questioning but refused to answer the questions that were put to him .", "The applicant asked Mr Nikolayev on a number of occasions to allow him to leave the country for personal and business reasons . Mr ORG refused without giving detailed reasons .", "During the applicant 's detention CARDINAL and DATE , the Acting Minister for ORG , PERSON , offered to drop the criminal charges against the applicant in connection with the NORP Video case if the applicant sold ORG to ORG , at a price to be determined by ORG .", "While the applicant was in prison , ORG asked him to sign an agreement in return for which the applicant was told that all criminal charges against him would be dropped . The agreement between ORG and the applicant was signed on DATE ( the “ DATE agreement ” ) . It included a provision in Annex CARDINAL calling , inter alia , for the termination of the applicant 's criminal prosecution in relation to ORG and for an undertaking regarding his security . This provision read as follows :", "“ The Parties realise that successful implementation of the Agreement is possible only if the individuals and legal entities concerned acquire and exercise their civil rights of their own free will and in their own interests , without compulsion by any other party to act in any particular way . In the current situation , this implies that certain interrelated conditions must be met , namely :", "– termination of the criminal prosecution against Mr PERSON in connection with the criminal case initiated against him on DATE , his reclassification as a witness in the said case and suspension of the precautionary measure prohibiting him from leaving [ the country ] . Should this condition not be met , the Parties are relieved of their obligations hereunder ;", "– provision to Mr PERSON and other shareholders ( stockholders ) and executives of the [ ORG subsidiaries ] of guarantees regarding their security and protection of their rights and freedoms , including the right to travel freely , to choose their place of stay and residence , to leave GPE freely and to return to GPE without hindrance ;", "– renunciation of all steps , including public statements or dissemination of information by the organisations , their shareholders and executives , which would damage the foundations of the constitutional regime and violate the integrity of GPE , undermine the security of the ORG , incite to social , racial , national and religious discord or lead to the discrediting of the ORG institutions of GPE . ”", "Annex DATE was signed by the parties and endorsed by Mr GPE 's signature .", "Following the signing of the DATE agreement , the criminal prosecution against the applicant in connection with ORG was stopped by a stay of prosecution and an order cancelling the precautionary measure , issued by Mr PERSON on DATE . The order read as follows :", "“ Analysis of the evidence confirms the illegal nature of [ the applicant 's ] doings . However , the actions of the head of ORG Most , PERSON , contain elements belonging to substantive law as well as elements relating to criminal - law provisions . In view of the specific nature of the act committed , it is impossible to attribute it to separate legal spheres .", "In the course of the investigation , Mr Gusinskiy understood the unlawfulness of acquiring the right to another 's property and , in this connection , he has provided reimbursement for the damage he caused by assigning his share in the statutory capital of ORG to the ORG . In addition , he has significantly compensated for the harm caused to the interests of the ORG by voluntarily transferring ORG Most shares to a legal entity controlled by the ORG .", "The steps taken by the accused are extenuating circumstances and attest to his sincere repentance which , in conjunction with other positive characterising details and the absence of a previous criminal record , enables a decision to be taken to exempt Mr Gusinskiy from criminal prosecution . ”", "At the same time the precautionary measure forbidding the applicant to leave the country was lifted . On DATE the applicant left GPE and on DATE he went to his villa in LOC , GPE .", "Following the applicant 's departure from the country , ORG refused to honour the DATE agreement , claiming that it had been entered into under duress .", "On DATE the ORG closed the proceedings initiated following the applicant 's complaint about the unlawfulness of his detention . The court found that the complaint could not be examined since the detention order had by that time been cancelled , and only those actually detained could appeal against detention .", "On appeal , this decision was upheld by ORG on DATE .", "On DATE Mr Nikolayev initiated a further criminal investigation in respect of the applicant . The new charge was brought under LAW ( b ) of LAW and concerned the fraudulent obtaining of loans by ORG . The applicant was not provided with a copy of the order initiating the proceedings . However , according to the information gathered by the applicant 's lawyers , the criminal investigation was opened on the basis of an application filed by ORG with the ORG on DATE . ORG asked the ORG to investigate the spending of funds obtained by ORG Most and , in particular , to find out whether the use of the loans were in line with the activities permitted by ORG charter , whether the funds were used for their intended purpose , and whether the management of ORG Most had violated any law in relation to the loans . ORG , a ORG - controlled company , was involved as a guarantor of the loans .", "On DATE Mr Nikolayev issued a further summons for the applicant to attend the ORG on DATE , to be informed of the charges against him and interrogated .", "As the applicant did not attend the ORG , Mr ORG amended the order for the applicant 's prosecution . He re - instigated the charges for fraud under LAW of LAW , this time in connection with another incident , and imposed the precautionary measure of detention . The order was transmitted to ORG . The charges alleged that the applicant had fraudulently obtained loans .", "The applicant was arrested in GPE on DATE pursuant to an international arrest warrant and imprisoned in that country on DATE . On DATE the applicant was released from prison on bail of MONEY and placed under house arrest in his villa in LOC .", "Following an application by the applicant 's lawyers , ORG in GPE ruled on DATE that the initiation of the ORG Most loan investigation had been unlawful because the evidence gathered by the investigating authorities had not disclosed sufficient elements of fraud to institute criminal proceedings .", "On DATE ORG set aside the judgment of DATE on the ground that no appeal lay against investigating authorities ' decisions to institute criminal proceedings .", "Following proceedings in the NORP courts , on DATE a judgment was given in the applicant 's favour refusing the request by the NORP authorities for the applicant 's extradition from GPE . In refusing the extradition request , the NORP court ( Audiencia Nacional ) stated :", "“ [ I]t is possible to observe in the documents furnished by [ the applicant ] ... certain noteworthy and peculiar circumstances which are unusual in the sphere of judicial claims for fraud and which , although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose , compel the ORG to consider [ the applicant 's ] argument as not completely without foundation as far as the facts and interferences are concerned and as not inconceivable or discountable on the basis of logical criteria and experience .", "The agreement of DATE ... of sale by [ the applicant ] to ORG of a parcel of shares ... [ Annex DATE a supplementary agreement which is not common in relationships between sellers and purchasers of securities – concludes with CARDINAL signatures , CARDINAL of which is the habitual signature of the representative of ORG ... which appears in the body of the contract and in other annexes and another signature which at first sight does not coincide with [ the applicant 's ] normal signature – in the agreement , annexes and stamps in this extradition procedure . [ The applicant ] claims that this is the signature of a member of the NORP government .", "NORP ... DATE after the date of the agreement , [ the applicant ] , who stood accused in the proceedings [ concerning NORP Video ] and had undertaken not to leave the country , was exempted from liability in the said proceedings and the measure restricting his freedom was lifted ...", "NORP [ The applicant 's ] statements at the extradition hearing with regard to the pressure and coercion suffered , which he gives as the reasons prompting him to sign the agreement of DATE ...", "The judgment of ORG of DATE ...", "These peculiarities of the case must inevitably have legal significance for the judicial ruling on this extradition request since the fact that the ORG has perceived them ... obliges it , for reasons of legal security and effective judicial protection ... to stretch to the extreme the judgment of double incrimination , analysing the grounds for the accusation in view of the need to provide due legal protection ... ”", "On DATE Judge PERSON , a Deputy President of ORG , lodged an application for supervisory review of the decisions of ORG of DATE and ORG of DATE . The judge maintained that it was the lawfulness of detention rather than detention itself which should have been the subject of the judicial review . He requested the ORG of ORG to remit the case for a fresh examination by ORG .", "On DATE the ORG of ORG granted the application .", "On DATE the Tverskoy District Court examined the substance of the complaint in respect of detention . At the hearing , the representative of the ORG ( the defendant ) argued that at the time of the applicant 's arrest he could have obstructed the course of justice because he had been the head of ORG Most and , accordingly , had unlimited opportunities to influence witnesses and had access to written evidence . Furthermore , as the applicant had dual citizenship and a travel passport , he could have escaped abroad . With regard to the applicant 's allegation that he had been entitled to an amnesty , the prosecutor noted that documentary proof that the applicant had indeed held the award in question had been submitted only on DATE , that is to say , after the arrest , and the applicant had been released on DATE . ORG accepted the ORG 's arguments . It found that , in the light of the explanations provided by the ORG 's representative , the wording of the detention order of CARDINAL DATE could not be regarded as strained and hypothetical . As to the award , the court found that the law on criminal procedure contained no restriction on the application of precautionary measures to a person subject to an amnesty .", "“ A criminal prosecution may not be started , or , if already started , shall be stopped if", "...", "( CARDINAL ) an amnesty law has been passed which relieves [ the person concerned ] from punishment ... ”", "“ If there are sufficient reasons to believe that the accused will elude the investigation or evade justice , obstruct the establishment of the truth in the case or engage in criminal activities ... , CARDINAL of the following precautionary measures may be imposed : an order not to leave the place of residence , a personal undertaking or an undertaking from a non - governmental organisation , taking into custody ... ”", "“ In exceptional circumstances , a precautionary measure may be imposed on a suspect who has not been charged . In such a case , charges must be brought against the suspect within DATE of the precautionary measure being imposed . If no charges are brought within that period , the precautionary measure shall be lifted . ”", "“ When considering the need to impose a precautionary measure and the nature of the precautionary measure to be imposed ... , the factors to be taken into account are ... the seriousness of the charges brought and the suspect 's or defendant 's personality , occupation , age , health , family status and other circumstances . ”", "“ A precautionary measure shall be imposed by means of an order issued by an inquiry officer , investigator , prosecutor , or a reasoned decision delivered by a court , which must specify the offence of which the person is suspected or accused and the grounds for imposing the precautionary measure . The person concerned must be informed of the order or decision and , simultaneously , of the procedure for bringing a complaint against the decision to impose such a measure .", "A person on whom a precautionary measure has been imposed shall be provided immediately with a copy of the order or decision . ”", "“ Taking into custody shall be imposed as a precautionary measure ... for offences punishable by imprisonment of DATE . In exceptional circumstances , this precautionary measure may also be applied to offences punishable by imprisonment of DATE ... ”", "The relevant parts of LAW ( b ) of LAW of DATE provide :", "“ Fraud , namely , theft or acquisition of another 's property by misrepresentation or abuse of trust ... [ committed on ] a large scale ... shall be punishable by DATE imprisonment with or without expropriation . ”", "On DATE ORG declared an “ amnesty in commemoration of the CARDINALth anniversary of the victory in the Great Patriotic War of DATE ” . The corresponding text ( “ the LAW ” ) came into force on DATE . It provided as follows :", "“ ...", "NORP [ Convicted persons ] shall be exempted from serving a prison sentence , irrespective of its length :", "...", "( b ) [ if they have been ] awarded orders or medals of the GPE or GPE ;", "...", "Criminal proceedings pending before investigating authorities and courts which concern offences committed before the entry into force of the present Act shall be terminated in respect of :", "...", "( b ) the persons indicated in [ section CARDINAL ( b ) ] of the present Act ;", "... ”", "On CARDINAL May ORG also adopted an instruction on the application of LAW . The instruction provided as follows :", "“ CARDINAL . The [ LAW ] shall be implemented by :", "...", "( b ) investigating authorities in respect of persons suspected or accused of crimes , if these authorities are conducting proceedings in respect of the said crimes ;", "...", "NORP The decision on the application of LAW shall be taken individually in respect of each person . If the information on the person is insufficient , the decision on the application of the amnesty may be postponed until additional documents are received ... ”" ]

[ "18", "5" ]

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[ "The applicant , Mr Yngvar Storbråten , is a NORP national who was born in DATE and lives in PERSON . He is represented before the ORG by Mr PERSON , a lawyer practising in the same town . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Attorney at the Attorney ORG ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant opened a restaurant at ORG , in southern GPE . The restaurant was shut down in DATE and the applicant was declared bankrupt in DATE . This was the fifth time a business run by him had ended in this way .", "In the course of DATE the tax authorities reassessed the applicant 's liability to pay value - added tax , investment tax and income tax for certain parts of DATE . In this connection , on an unknown date during DATE or DATE , the said authorities imposed PERCENT tax surcharges on him .", "In the relevant bankruptcy report , the Administrator of the estate recommended that the applicant be disqualified from further business ( konkurskarantene ) . In the ORG 's view , both grounds for imposing a disqualification order under LAW ) of LAW DATE ( konkursloven ) had been fulfilled , namely , the existence of a reasonable suspicion against the applicant that criminal conduct had led to the bankruptcy and that he had displayed carelessness in his business practices making him unfit to establish a new company or to serve as a board member or as DATE manager of such a company .", "On DATE the Eidsvoll Probate and Bankruptcy Court ( skifterett ) disqualified the applicant under section CARDINAL ) , points CARDINAL and CARDINAL , and ORG ) for DATE . The decision contained the following reasons :", "“ The criminal offences referred to here are listed in LAW , items DATE , of the preliminary report , and are as follows : failure to submit a self - employed income declaration to the tax authorities , failure to keep accounting records , failure to register employees in the register of employees , failure to submit value - added tax returns , and contravention of LAW , see FAC , of LAW , relating to the essential disregard of provisions governing accounting , DATE reports and accounts , and the keeping of accounting records .", "[ The applicant ] was notified of the proposal to disqualify him by the court 's letter of DATE . [ He ] was given until DATE to submit any objections in this matter . The court has not received any objections from the debtor .", "The police ( Romerike Police District ) have been advised of the proposal to impose a disqualification order and of the fact that they are entitled to act as a party to the proceedings . No reply has been received indicating that they wish to exercise this right .", "Under section CARDINAL of LAW , a disqualification order may be imposed on a debtor if there are reasonable grounds for suspecting him or her of having committed offences in connection with the activities that led to insolvency , or if he or she is unfit , on grounds of unsound business conduct , to serve as a director etc . in a new company .", "The court finds that there are reasonable grounds for suspecting [ the applicant ] of having committed criminal offences in connection with the establishment of ORG . The matters listed in the trustee 's report may , in addition to constituting criminal offences , also be characterised as unsound business conduct . [ The applicant ] has entirely disregarded his duties to keep accounting records and submit returns to the authorities , including DATE reports and accounts , ORG returns and reports to the register of employees . These transgressions have made subsequent control of his business operations impossible .", "The court finds that a person who disregards his duties to the public authorities to such an extent can not be considered fit to manage a business or to serve on the board or the management of a company .", "The court finds that there is no doubt that the conditions for imposing a period of disqualification under section CARDINAL ) , points CARDINAL and CARDINAL , of LAW are fulfilled .", "In so far as the court is aware , [ the applicant ] does not currently hold any managerial responsibilities in other companies , and there are no other circumstances that would make it unreasonable to disqualify him . The court therefore finds , after an assessment , that a disqualification order should be imposed as proposed by the trustee .", "Since in this case it is DATE since the commencement of bankruptcy proceedings , the court finds that the disqualification period is to run from the date of this ruling , cf . GPE no . CARDINAL , page CARDINAL . ”", "The disqualification order became final as the applicant did not lodge an appeal .", "Subsequently , on DATE , ORG ( herredsrett ) convicted the applicant on CARDINAL counts , all of which were connected to the bankruptcy , namely , failure to comply with the book - keeping requirement in breach of LAW and of the relevant provisions of LAW DATE ( regnskapsloven DATE ) ; failure to declare business turnover in violation of section CARDINAL(CARDINAL ) of ORG DATE ( merverdiavgiftsloven ) ; and failure to submit tax declarations in breach of section CARDINAL - CARDINAL(CARDINAL)D of LAW DATE ( ligningsloven ) . He was sentenced to DATE imprisonment and tax surcharges were imposed on him . In those proceedings the applicant unsuccessfully relied on LAW .", "On an appeal by the applicant to ORG ( lagmannsrett ) , the latter , referring to more recent ORG case - law under LAW No . CARDINAL , quashed ORG judgment on DATE in so far as it concerned the conviction and tax surcharges in respect of the tax and NORP offences ( apparently not a subject of complaint in his application under the Convention ) . Moreover , the applicant was partly acquitted and partly convicted of the book - keeping offences . On the other hand , the High Court agreed with the lower court that the imposition of a disqualification order did not preclude subsequent prosecution . In the light of the foregoing , it reduced the sentence to DATE imprisonment .", "The applicant appealed to ORG on the ground that the criminal case against him entailed double jeopardy in violation of LAW No . CARDINAL and for this reason should have been dismissed .", "On DATE the ORG unanimously rejected the applicant 's appeal . In his reasoning , approved in the main by the other four Justices sitting in the case , the first voting judge , Mr Justice PERSON , stated :", "“ ( CARDINAL ) In the current proceedings , it is of key importance that a disqualification order may be imposed if either of the CARDINAL conditions specified in the first sub - section is met . Pursuant to point CARDINAL , there must be reasonable grounds for suspecting that a criminal act has been committed in connection with the bankruptcy or the activities that led to insolvency . Pursuant to point CARDINAL , an assessment of suitability is to be made . The effects of a disqualification order are the same in both cases , with the exception that sub - section CARDINAL also authorises disqualification from the debtor 's existing offices in other companies . This applies only to a disqualification order imposed pursuant to point CARDINAL of the first sub - section .", "( CARDINAL ) Disqualification after bankruptcy was first introduced into the DATE LAW . Sections CARDINAL - CARDINAL(CARDINAL ) introduced an automatic DATE disqualification period for board members and managing directors of limited liability companies and also for all personal debtors in bankruptcy . During this period , a disqualified person was not permitted to form a new limited liability company , take up any new office on a board or become a managing director in any other limited liability company .", "( CARDINAL ) Although the general rule was that a DATE disqualification period was mandatory , section CARDINAL - CARDINAL(CARDINAL ) authorised the probate and bankruptcy court , on an application , to decide that all or part of the disqualification period was to be remitted . Such a decision was to be made if there was no suspicion that the debtor had contravened any penal clause in connection with the bankruptcy or the company 's activities , and there was no doubt about the soundness of the debtor 's conduct as a manager or in another position he or she held in the company . The probate and bankruptcy court could also decide that a disqualification period was to be remitted if it found that no reasonable or public interest militated against this .", "( CARDINAL ) On the other hand , the effect of disqualification pursuant to sections CARDINAL could be made more severe . If there were reasonable grounds for suspecting the debtor of having committed offences in connection with the bankruptcy or the company 's activities , the probate and bankruptcy court could decide that he or she was also to be removed from any position on a board or as a managing director of another company during the disqualification period , in other words the provision that we also find in section CARDINAL ) of LAW .", "( CARDINAL ) The preparatory works for LAW ( Proposal No . DATE ) to the PERSON [ the larger division of ORG ] , p. CARDINAL ) explain the purpose of introducing provisions relating to disqualification as follows :", "' There are several arguments for preventing a person who is involved in a bankruptcy from holding managerial responsibilities . If the bankruptcy is the result of dishonesty or other errors on the part of the company 's management , it will be desirable to ensure that the same people are not involved in the management of other limited liability companies . In other cases too , there can be reasons for introducing a certain disqualification period pending investigation of the circumstances of the bankruptcy with a view to revealing any irregularities or other inappropriate conduct . Even if the question of possible irregularities is disregarded , CARDINAL other important considerations are society 's interest in ensuring that resources are soundly managed and the interests of the creditors . Moreover , it is not in the interests of the company 's shareholders or helpful to its reputation for it to be managed by persons whose fitness for the position or solvency can be questioned . '", "( CARDINAL ) ORG commented on the need for rules on disqualification in Recommendation O. No . DATE ) , p. CARDINAL :", "' In the committee 's opinion , there is particular reason to withdraw the right to form new companies or take up new positions . It is particularly in this connection that we find the typical cases that disqualification is intended to deal with . The position with regard to offices that a person already holds is somewhat different . Disqualification from these can easily have unintended and negative effects both for the individuals targeted and for companies that lose a board member or managing director . The committee has therefore concluded that disqualification from already existing positions should be treated separately and made dependent on an individual evaluation , with a view to dealing with the cases where the need for disqualification is most obvious , that is , those where the circumstances suggest that offences have been committed in connection with the bankruptcy or the company 's activities . '", "( CARDINAL ) The provisions on disqualification were later transferred from LAW to LAW , and later amendments have resulted in the current wording . Proposal No . CARDINAL ( DATE ) to the PERSON , p. CARDINAL , describes the purpose of these provisions as follows :", "' The purpose of these provisions is to ensure that certain persons who have been involved in an earlier bankruptcy ( either personally or as part of the management of an insolvent limited liability company ) are not involved in forming or managing other limited liability companies for a certain period ( DATE ) .", "...", "The enactment of the provisions relating to disqualification periods in the new LAW will make it easier to stop serial bankrupts who , after being involved in CARDINAL or more bankruptcies , start up new companies and continue in business until these also fail , and who are suspected of irregularities in connection with their business activities .", "The imposition of a disqualification order pursuant to the provisions of LAW is additional to other possible measures based for example on criminal liability , liability for damages , or the voidability of transactions . There is particular reason to note that the provisions of LAW relating to the stripping of rights are not made superfluous by the disqualification provisions . In practice , LAW is seldom used , but in cases where it is , it can be an advantage that the debtor is already subject to a disqualification order from the time of the bankruptcy and thus can not take up the types of positions to which the provisions of the new LAW apply , since it will generally take some time before a case can be tried pursuant to LAW . '", "( CARDINAL ) Proposal no . CARDINAL ( DATE ) to the PERSON was not debated by the PERSON ( ORG ) , and the bill was put forward again , see Proposal no . CARDINAL ( DATE ) to the PERSON . This time , the Government proposed that disqualification should not be automatic , see section CARDINAL of the current LAW . The reason for this was partly to improve security under the law . The original wording of sections CARDINAL of LAW concerning exemptions from disqualification was characterised by the fact that the person in question was expected to prove his or her own innocence . It was also partly for practical reasons : as disqualification applied automatically , it was difficult to find qualified people who were willing to become board members or managing directors , particularly in cases where the goal was to save a company that was in difficulties .", "( CARDINAL ) It was also proposed that the trustee 's first report to the probate and bankruptcy court , which must be submitted DATE after his or her appointment , should include an evaluation of whether any circumstances in the case come under the rules on disqualification , see section CARDINAL , point CARDINAL , of LAW . ORG submitted the following comments on this provision :", "' ORG is of the opinion that this provision will help to make the rules on disqualification after a bankruptcy more effective . Such reports will provide probate and bankruptcy courts with material that will enable them to evaluate whether disqualification orders should be imposed at an early stage of the proceedings . A ruling can of course also be made before a report is received . It is important that a ruling on disqualification is made as promptly as possible if this provision is to stop serial bankrupts who are suspected of irregularities in connection with their business activities . '", "( CARDINAL ) Under LAW of DATE No . CARDINAL , a central Disqualified Directors Register was established as part of ORG , see section CARDINAL(CARDINAL ) of the current LAW . This was done as a means of ensuring compliance with disqualification orders . In the preparatory works , Proposal no . DATE ) to the PERSON , p. CARDINAL , the Ministry commented that although consideration for the right to privacy of the person disqualified was an argument against an ' open ' register , this was less important than ensuring a real possibility for enforcing disqualification orders .", "( CARDINAL ) Thus , on the basis of the preparatory works , it can be established that the purpose of the provisions relating to disqualification orders is to prevent a debtor in bankruptcy or the company managers from forming or managing new limited liability companies . The underlying consideration is that there are risks involved in the operation of a limited liability company , and that others must be protected against misuse of this form of business organisation by dishonest or irresponsible people . CARDINAL considerations are particularly emphasised , namely , sound management of resources and the interests of creditors and shareholders . The preparatory works emphasise that a decision to impose a disqualification order must be taken as soon as possible in order to prevent continued irregularities . Disqualification is not considered to be a penal measure ; on the contrary , it is emphasised that disqualification and penal sanctions supplement each other .", "( CARDINAL ) Such interactions between disqualification and criminal prosecution are also laid down in the provisions of the LAW . By virtue of section CARDINAL(CARDINAL ) , the prosecuting authority is entitled to act as a party in cases concerning disqualification in the probate and bankruptcy court , and may apply for the disqualification period to be extended until there is a legally enforceable judgment in a criminal case in which the prosecuting authority has proposed , or is contemplating proposing , that the bankrupt be stripped of his or her rights under LAW . It is not possible to strip the bankrupt of his or her rights under LAW at an earlier stage than this . On the other hand , in ORG Reports DATE , p. CARDINAL , ORG established that if the police withdraw a charge for the offences that formed the basis for imposing disqualification , it is not possible to maintain the disqualification order under LAW ( CARDINAL ) , point CARDINAL , of LAW .", "( CARDINAL ) LAW in relation to section CARDINAL(CARDINAL ) , point CARDINAL , of LAW", "( CARDINAL ) I shall now return to the question of how the disqualification provisions are to be evaluated in relation to the LAW and the prohibition against double jeopardy in LAW and will first consider a disqualification order pursuant to the provision of section CARDINAL ( CARDINAL ) item DATE on the grounds that unsound business conduct makes the person in question unfit to form or manage a company . With CARDINAL minor reservation , which I shall discuss later , the parties in our cases agree that disqualification imposed under the first sub - section , point CARDINAL , is not a penalty and does not entail double jeopardy . Here , there is case - law from ORG dealing with the NORP provisions on disqualification . These are very similar to the NORP provisions in section CARDINAL ) , point CARDINAL . The NORP provisions are set out in LAW DATE . They stipulate , among other things , that a person who has been a director of an insolvent company and whose conduct is found to make him or her unfit to manage a company is to be disqualified ( the court issues a disqualification order ) from setting up or managing a company for a period of DATE . The court can make exemptions from disqualification . The public authorities must institute legal proceedings within DATE after the company is declared insolvent , and the decision is made by the ordinary courts .", "( DATE ) ORG has examined the NORP rules on disqualification under the ORG in CARDINAL cases . In PERSON v. GPE ( no . CARDINAL/CARDINAL , judgment of DATE ) the parties agreed , and the ORG was of the same opinion , that proceedings concerning a decision on disqualification determined ' civil rights ' pursuant to LAW . The case concerned whether the legal proceedings had taken an unreasonably long time , and the ORG found that there had been a violation of the LAW . I note here that ORG ( see ORG ( PERSON ) DATE , p. CARDINAL ) has also found that decisions on disqualification in connection with a bankruptcy concern a ' civil right ' pursuant to LAW .", "( CARDINAL ) In the case GPE , GPE and GPE v. GPE DATE . ) no . CARDINAL , decided on DATE , the applicants claimed that the decision to disqualify them determined a criminal charge . The ORG replied :", "' The criteria for ascertaining whether a ' criminal charge ' has been determined are the domestic classification of the ' offence ' , the nature of the ' offence ' , and the nature and degree of severity of the potential and actual penalty ( see , for example , the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL with further references ) . In the present case , the proceedings were classified as civil in domestic law , the disqualification of directors is a matter which is regulatory rather than criminal , and the ' penalty ' is neither a fine nor a prison sentence , but rather a prohibition on acting as a company director without the leave of the court . Whilst a great deal was undoubtedly at stake for the applicants , it can not be said that what is inherently a regulatory matter can thereby become a ' criminal charge ' within the meaning of LAW . Thus , none of these criteria indicates that the applicant was charged with a ' criminal offence ' , and the ORG considers that the proceedings in the present case did not determine a criminal charge within the meaning of LAW ( see also No . CARDINAL , ORG . DATE ) . '", "( CARDINAL ) On the basis of this decision , I presume that the same applies to a NORP decision to impose a disqualification order under section CARDINAL ) , point CARDINAL , that is , it is not to be construed as a criminal charge within the meaning of LAW . This means that LAW will not bar subsequent criminal prosecution .", "( DATE ) I would like to mention that in case no . CARDINAL , the defence counsel claimed that disqualification imposed under the first sub - section , point CARDINAL , must also be considered to determine a criminal charge if the grounds for considering a person unfit are suspicion that specific offences have been committed . I do not agree with this distinction . The basis for disqualification under section CARDINAL ) , point CARDINAL , is that the court has found the person in question to be unfit to form a new company or take part in the management of a new company . This is the case regardless of the further grounds cited by the court for judging the person unfit to take up such functions .", "( CARDINAL ) LAW in relation to section CARDINAL(CARDINAL ) , point CARDINAL , of LAW", "( DATE ) I shall now consider whether a disqualification order imposed under section CARDINAL ) , point CARDINAL ( reasonable ground for suspecting the person concerned of offences in connection with the bankruptcy ) , precludes subsequent criminal prosecution .", "( CARDINAL ) For LAW to preclude subsequent criminal prosecution , the person charged must already have been ' finally acquitted or convicted ' . The first question here is whether it is the decision to impose a disqualification order that must be ' final ' , which it clearly is , or whether the requirement for a final decision refers to the offences that are the grounds for issuing the order . The real question in the present case is whether the imposition of a disqualification order precludes subsequent criminal prosecution of these underlying offences . In my opinion , it follows directly from the wording of LAW that the final decision relates to the offences that are the grounds for disqualification ; see the text of the LAW , ' tried or punished again ... for an offence for which he has been finally acquitted or convicted ' .", "( CARDINAL ) There is no doubt that by issuing a disqualification order the adjudicating court expresses a view on whether the person in question may have committed the offences that constitute the grounds for imposing disqualification . But does it make sense to claim that when the court has decided whether or not to impose a disqualification order , the person has been finally acquitted or convicted of these offences ? In my opinion , it does not .", "( CARDINAL ) Firstly , I refer to the requirement of guilt for the criminal offences in question here . A finding that there is reasonable ground for suspicion is not a final conviction , either literally or according to NORP legal tradition . The concept of just cause for suspicion is associated particularly with the conditions in which coercive measures – arrest , custody , search , and so on DATE may be used pursuant to LAW , and a decision to use such measures clearly does not constitute a final decision on guilt . These are of course temporary measures directly related to the criminal investigation . Coercive measures are used for the purpose of the investigation , and must be construed as ceasing to apply if the investigation is discontinued . However , as I have described above , the imposition of a disqualification order is also linked to the investigation of the case . ORG of ORG has established that if the prosecuting authority withdraws a charge in respect of the offences that were the basis for issuing a disqualification order , the disqualification order must also be withdrawn ( see ORG Reports DATE , p. CARDINAL ) . The same must apply in the event of an acquittal .", "( CARDINAL ) Furthermore , the purpose of disqualification is an argument against the interpretation that a disqualification order constitutes a final decision regarding the underlying offences . In the preparatory works it is stated several times that the purpose of imposing a disqualification order is to prevent the person in question from continuing to misuse the company form through irregularities or other misconduct , and that disqualification orders must be issued swiftly . Use of the criterion ' reasonable ground for suspicion ' is related to the need for a rapid response , which is expected before investigation of the case is completed . This is not in keeping with the interpretation that disqualification constitutes a final decision on guilt . The preparatory works point to the fact that the completion of the investigation of a criminal case will take longer , and is thus something that will be considered later .", "( DATE ) Finally , the procedural rules militate against regarding a decision to impose a disqualification order as a ' final conviction ' . The DATE amendments reversed the provisions on disqualification , so that instead of disqualification being automatic , it required a ruling by the probate and bankruptcy court , and at the same time a provision was introduced requiring the trustee to evaluate whether there were any circumstances in the case that came under the rules on disqualification , see section CARDINAL item CARDINAL of LAW , in the first report to the probate and bankruptcy court , which must be submitted DATE after appointment . In the report , the trustee gives a survey of possible criminal offences , but is unlikely to be able to assess the strength of the suspicion in relation to each offence . In general , the district court too has only limited opportunities for making a closer assessment of guilt as regards each offence . Since disqualification requires only that there is a reasonable ground for suspecting the person in question of CARDINAL offence , there is little reason for a debtor in bankruptcy to object to a single count , unless he or she claims not to have committed any offences at all . This means that there is little focus on specific offences . Thus , a ruling from the district court is not a suitable basis for determining which specific offences can be construed as having been finally adjudicated .", "( CARDINAL ) In my opinion , these CARDINAL elements – the form of guilt , the purpose of disqualification and the rules of procedure – considered together lead to the conclusion that the imposition of a disqualification order can not be interpreted as a final conviction for the offences on which the decision is based .", "( DATE ) It is of course the case that the phrase ' finally .... convicted ' is to be interpreted as an autonomous concept within the framework of the Convention . However , in my view , the raw material for the analysis must be the domestic legal system . On this basis , it seems to be reasonably clear that a debtor in bankruptcy has not been ' finally acquitted or convicted ' of the offences that form the basis of a decision to impose a disqualification order , and that LAW therefore does not apply .", "( CARDINAL ) However , I would like to point out that in the limited case - law from ORG relating to LAW , I have not found any material from the ORG 's own legal system that can clarify the meaning of the term ' finally acquitted or convicted ' .", "( CARDINAL ) In the decision of inadmissibility in the case of ORG v. GPE on DATE ( application FAC ) , the question was whether the temporary withdrawal of a driving licence for DATE for driving under the influence of alcohol and causing injury precluded subsequent criminal prosecution for the same offence . The withdrawal was a temporary measure involving no assessment of guilt . It could apply for a maximum of DATE and would cease to have effect if the person was convicted . ORG established that LAW did not preclude subsequent criminal prosecution , but reasoned that the withdrawal of the driving licence was a traffic safety measure and thus was not a ' criminal charge ' . ORG also referred to a ORG judgment DATE , on DATE , relating to LAW LOC v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALVII ) , which concerned the immediate withdrawal of a driving licence for DATE , without any finding of guilt . In this case too , it was found that the withdrawal of the driving licence ought to be regarded as a preventive measure for the safety of road - users .", "( DATE ) On this basis , there is reason to consider whether , in the alternative , a disqualification pursuant to section CARDINAL ) item CARDINAL of LAW can be construed as a criminal punishment under LAW . A similar question has been of central importance in several of ORG decisions relating to LAW . I refer for example to ORG Reports DATE , p. CARDINAL and DATE , p. CARDINAL , both of which include a thorough discussion of the term ' punishment ' in this connection .", "( CARDINAL ) There are strong indications that an evaluation of the legal institution of disqualification under the LAW must lead to the same conclusion for both the conditions laid down in section CARDINAL ( CARDINAL ) of LAW , which in practice are often invoked together . In the preparatory works , the purpose of disqualification is described in the same terms for both conditions . The primary purpose is to satisfy a non - penal need for protection in cases where bankruptcy is related to criminal or unsound business conduct on the part of a manager or board member , indicating that he or she is unfit to engage in such business activities . The person in question should therefore , for a period of time , be excluded from holding managerial responsibilities in limited liability companies . The condition set out in item DATE reasonable ground for suspicion of a criminal offence – can be regarded as a special case of the general criterion of fitness set out in item CARDINAL . Even if section CARDINAL ) item CARDINAL , is viewed separately , an evaluation relative to the Convention must be based on the common purpose of these CARDINAL provisions .", "( CARDINAL ) In the above - cited GPE , GPE and GPE v. GPE , the key sentence in the reasoning is as follows ,", "' In the present case , the proceedings were classified as civil in domestic law , the disqualification of directors is a matter which is regulatory rather than criminal , and the ' penalty ' is neither a fine nor a prison sentence , but rather a prohibition on acting as a company director without the leave of the court . '", "( DATE ) In my opinion , these CARDINAL criteria are applicable in exactly the same way to a NORP disqualification order pursuant to section CARDINAL ) item CARDINAL of LAW . Thus , there is no doubt that disqualification is classified as a civil matter in NORP domestic law . The next criterion is often described as the nature and purpose of the measure . Here , ORG emphasises that disqualification is a matter that is regulatory rather than criminal . It is presumably of key importance here that the provisions relating to the disqualification of directors in GPE DATE and also in GPE – govern a very narrow field of business activities , namely , forming and managing limited liability companies . The nature of the measure can not be said to be significantly influenced by the fact that it is grounded on suspicion of offences rather than an assessment of unfitness . In any event , the fact that the main reason for disqualification is to protect others , not to punish , is a factor that weighs more heavily here . I would also like to mention one particular feature of the NORP provisions , which is that an assessment of whether disqualification is reasonable in the circumstances is always required before a decision is made , see section CARDINAL(CARDINAL ) . This also tends to strengthen the conclusion that disqualification is a means of regulating business activities rather than a punishment .", "( CARDINAL ) Finally , as regards the severity of the measure , disqualification entails a prohibition against forming or managing new limited liability companies for DATE . It does not entail a general prohibition against engaging in business activities . As ORG stated in its judgment in the present case ,", "' A person who is subject to a disqualification order is not prevented from running a general partnership , but is merely DATE for a relatively short period of time DATE prevented from using a form of business organisation in which personal liability is limited , and where there may therefore be less incentive to operate according to sound business principles . '", "( DATE ) As regards the severity of the measure , particular attention has been paid to the provisions of section CARDINAL ) . In cases where this provision applies , disqualification may also apply to current positions and offices held in other companies . It is quite clear that this form of disqualification has a greater effect , see the comments in Recommendation O. No . DATE ( DATE ) , at the time when the provision was incorporated into LAW . The question is whether its effects are so severe that a different conclusion must be drawn with respect to the term ' punishment ' as used in the LAW . In my opinion , this is out of the question . As I understand the NORP rules , a disqualification order always applies to current positions held in other companies . Despite DATE and the fact that the disqualification period is longer than in GPE – ORG did not consider that the disqualification determined a ' criminal charge ' .", "( CARDINAL ) Further , it has been claimed that recording disqualifications in an open register is particularly defamatory and thus increases the severity of the measure . As I have shown earlier , the purpose of establishing a register was to enforce disqualification orders more effectively . The Ministry considered that the need for effective enforcement overrode the interests of protection of privacy . In my view , no particular importance can be attached to such registration when evaluating the severity of disqualification as a measure .", "( CARDINAL ) In accordance with the above , I am of the opinion that given the nature of disqualification orders , their purpose , and the fact that this is not a particularly severe encroachment on a person 's rights , a disqualification order can not be construed as a punishment within the meaning of the Convention . Therefore , and also because disqualification does not entail a criminal charge , LAW Protocol No . is not applicable .", "( CARDINAL ) In the light of these conclusions , I will not discuss the third question in this case , namely , whether the offences that were the basis for the disqualification order pursuant to section CARDINAL ( CARDINAL ) item CARDINAL , are identical to the offences for which PERSON has been prosecuted and convicted . ”", "On DATE ORG pronounced judgment in a similar case , which also became the subject of an application ( no . CARDINAL/CARDINAL ) lodged under LAW Per PERSON against GPE and which is being dealt with simultaneously with the present case .", "In so far as relevant , section CARDINAL of LAW of DATE No . CARDINAL LAW ) read :", "Section CARDINAL -Conditions for imposing a disqualification order", "“ If a debtor 's estate is the subject of bankruptcy proceedings , the district court may impose a disqualification order on the debtor if", "CARDINAL ) there are reasonable grounds for suspecting the person concerned of a criminal act [ straffbar handling ] in connection with the bankruptcy or the activities that led to insolvency , or", "CARDINAL ) if it must be presumed that , for reasons of unsound business conduct , the person in question is unfit to establish a new company or to serve as a director or general manager ( managing director ) of such a company .", "In taking a decision on this matter , importance shall be attached to whether , having regard to the debtor 's conduct and the circumstances as a whole , it appears reasonable to impose a disqualification order .", "The imposition of a disqualification order means that , for DATE from the opening of bankruptcy proceedings , the debtor may not establish such a company as mentioned in the fifth sub - section , or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company . The district court may decide that the DATE period shall start from the date when the court takes its decision .", "In the cases mentioned in the first sub - section , item CARDINAL , the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub - section held in such companies as mentioned in the fifth sub - section .", "The term company in sub - sections CARDINAL and CARDINAL means a limited liability company , a public limited liability company , a branch office of a foreign company , a business foundation , a housing construction cooperative , a housing co - operative , a company aimed at promoting its members ' consumer interests ( consumer co - operative ) , a mutual insurance company or a ORG company . ”", "For a summary of the legislative history of the provisions on disqualification under NORP law , reference is made to paragraphs DATE of ORG judgment quoted under Part A , sub - title CARDINAL , above .", "In the parallel case of PERSON , in which the ORG delivered a decision on DATE as the present decision , ORG stated that in the assessment of reasonableness , emphasis should be placed on whether the conditions in both item CARDINAL and item CARDINAL were fulfilled .", "The Government provided certain additional information , some of which is summarised below .", "In the individual assessment of reasonableness to be carried out under LAW ) , account was to be had to such factors as the cause of the bankruptcy , the debtor 's conduct during the bankruptcy proceedings and the time element . In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order , the court might conclude that it would be unreasonable to impose a disqualification order .", "In the preparatory works to LAW DATE , ORG had stressed that the rules would make it possible to put a stop to the activities of persons who were repeatedly involved in limited liability companies which became insolvent , and where there was reason to suspect improper business conduct . It had also been emphasised that disqualification orders should function as a supplement to stripping the offender of his or her rights ( rettighetstap ) , which was a punitive measure imposed under LAW . In this context , the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings , whilst it would normally take longer to investigate and prosecute possible criminal offences . The possibility of swift action was necessary to achieve the preventive purpose of the measure .", "The duration of the disqualification DATE usually DATE could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to strip the person in question of their rights under LAW . The disqualification period could then be extended until the court had decided the criminal case .", "The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information . If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for the disqualification order , or further investigation showed that no such criminal offence had been committed , the public prosecutor was to request that the disqualification order be lifted ( PERSON , ORG of ORG ) .", "A disqualification order could be imposed by a court of first instance ( tingretten ) or by the probate and bankruptcy courts ( skifteretten ) . Such a measure was usually taken on the basis of written proceedings . However , the parties had the right to request an oral hearing . In his or her report to the probate and bankruptcy court , the liquidator was to provide information on whether , in his or her opinion , there were circumstances suggesting that a disqualification order should be imposed . Both the bankrupt 's estate ( represented by the liquidator ) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order . The opposing party would be the debtor , board member or other person against whom the order would apply . It was rare that the prosecution or the bankrupt 's estate intervened as a party to the proceedings . The court 's decision would , accordingly , normally be taken only on the basis of the information and recommendation in the liquidator 's report , and the information and objections provided by the defendant .", "Under section CARDINALA of LAW , a failure to comply with a disqualification order was a criminal offence punishable by DATE imprisonment and/or fines ." ]

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[ "The applicant , who was born in DATE , is a judge . After DATE he applied for membership of ORG d’Italia di PERSON . On CARDINAL DATE he became a member of ORG in GPE .", "During DATE the applicant read in the national press that certain ORG prosecutors , in particular the state prosecutor of GPE ( GPE di GPE ) , had begun inquiries , which , according to certain rumours , also concerned lodges associated with ORG d’Italia di PERSON .", "In DATE the applicant asked to distance himself from the organisation and on DATE he was made a “ dormant member ” .", "The GPE public prosecutor ’s office sent ORG ( Consiglio Superiore della Magistratura ) a list of judges who were PERSON . ORG then sent it to the Minister of ORG and ORG at ORG , who instituted disciplinary proceedings against the judges . The list was then made public – at least in part – by the press .", "In DATE , after an inquiry had been commenced , the applicant was questioned by an inspector from ORG for ORG . Subsequently , in DATE , he was questioned by ORG at ORG .", "NORP In DATE he was summoned to appear before the disciplinary section of ORG . He was accused of having undermined the prestige of the judiciary by committing a serious breach of his duties , and thus being unworthy of the trust that must be had in a judge .", "In his address , counsel for the applicant referred to a decision of the same section , given DATE , which drew a distinction between secret associations – of which judges were forbidden from being members – and discreet associations . Counsel for the applicant also noted that the guidelines of ORG , which stated that judicial office was incompatible with membership of the NORP , had been adopted during DATE , which was DATE after the applicant had left the organisation of his own accord .", "At the end of the proceedings the disciplinary section found that the applicant had breached LAW no . CARDINAL of CARDINAL DATE ( “ the DATE decree ” ) and gave him a warning .", "NORP The applicant appealed on points of law to ORG , which examined the case in plenary session on DATE . It dismissed the appeal in a judgment of DATE .", "On DATE ORG indicated again ( having already made a similar recommendation on an unknown date ) that it was not in favour of the applicant ’s promotion – for which the requisite conditions had been fulfilled since DATE in view of the disciplinary sanction that had been imposed on him .", "NORP The particular provisions of LAW referred to by the Government are the following :", "“ All citizens shall have the duty to be loyal to the Republic and to comply with the LAW and the laws .", "ORG to whom public offices are entrusted shall perform them with discipline and honour , and take an oath where it is required by law . ”", "“ Public officials shall be at the exclusive service of the nation .", "If they are members of ORG they shall be promoted only by seniority .", "The right to become members of political parties may be limited by law in the case of members of the judiciary , professional members of the armed forces on active duty , police officials and officers , and diplomatic and consular representatives abroad . ”", "“ Reasons shall be stated for all judicial decisions .", "An appeal on points of law to ORG for a breach of the law shall always be allowed against sentences and measures concerning personal freedom delivered by the ordinary or special courts . The provision may be waived only in the case of sentences pronounced by military courts in time of war .", "Appeals to ORG against decisions of the PERSON and ORG shall be allowed only on grounds inherent to jurisdiction . ”", "Under LAW no . CARDINAL of CARDINAL DATE , any judge who “ fails to fulfil his duties or behaves , in or outside the office , in a manner unworthy of the trust and consideration which he must enjoy ” will incur a disciplinary sanction .", "Being called upon to judge the constitutionality of LAW decree with regard to LAW , ORG ruled that , in disciplinary proceedings against judges , the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by LAW ( judgment no . CARDINAL of CARDINAL DATE , § CARDINAL ) .", "However , with regard to the fact that DATE did not specify the types of conduct which might be regarded as unlawful , ORG pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision : trust and consideration which a judge must enjoy and the prestige of the judiciary . Indeed , according to ORG , those values constituted principles of professional conduct which could not be included in “ pre - prepared guidelines because it [ was ] not possible to identify and classify every example of inappropriate conduct which might provoke a negative reaction in society ” ( ibid . , § CARDINAL ) . The court subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct , that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories . It concluded that “ the provisions in this area [ could ] not but be of general scope because a specific directive would have the effect of legitimising conduct which had not been foreseen , but nonetheless attracted society ’s opprobrium ” . It added that those considerations justified the wide scope of the rule and the wide margin of appreciation conferred on a body which , acting within the guarantees inherent in any judicial procedure , was – by virtue of its composition – particularly well - qualified to judge whether the conduct considered in each case did or did not undermine the protected values ( ibid . , § CARDINAL ) .", "ORG stated , lastly , that this interpretation accorded with its case - law on the subject of lawfulness ( ibid . , § CARDINAL ) .", "Law no . CARDINAL of DATE on the implementing provisions of LAW ( right of association ) of the LAW concerning secret associations and the dissolution of the association called PCARDINAL provides that membership of a secret association is a criminal offence ( section CARDINAL ) . With regard to civil servants , section CARDINAL provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules . However , in respect of judges of the judicial , administrative and military courts , jurisdiction remains vested in the respective disciplinary bodies .", "On DATE ORG , which had convened following a message from ORG who is its president DATE to discuss the incompatibility between the exercise of judicial functions and membership of the NORP , passed guidelines . The TIME ( discussion and text of the guidelines ) of that meeting were published in the Official Bulletin ( PERSON consiliari , pp . CARDINAL - CARDINAL ) and sent to the presidents of the ORG , ORG and ORG .", "According to those guidelines , “ judges’ membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment , by solemn oaths , of bonds such as those required by ORG lodges , raises delicate problems as regards observance of the values enshrined in LAW ” .", "ORG added that it was “ evidently [ within its ] powers to ensure compliance with the fundamental principle of LAW , according to which ‘ judges are beholden only to the law’ ” . In its words , “ this scrutiny include[d ] ... thorough care to ensure that , in the exercise of his functions , every judge respect[ed ] DATE and appear[ed ] to respect – the principle of being beholden to the law alone ” .", "ORG subsequently referred to a judgment of CARDINAL DATE of ORG in which the court had undertaken a balancing exercise between judges’ freedom of thought and their obligation to be impartial and independent .", "It added : “ it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirement of the exercise of the administrative activity peculiar to the ORG , there is also , beyond the limit laid down by PERSON no . CARDINAL of DATE , the acceptance of constraints which ( a ) are superimposed on the obligation of loyalty to the LAW and of impartial and independent exercise of judicial activity and ( b ) undermine the confidence of citizens in the judiciary by causing it to lose its credibility ” .", "Lastly , ORG considered it “ necessary to suggest to the Minister of Pardons and ORG that it might be advisable to consider including among the restrictions on judges’ rights of association reference to all associations which – for their organisation and ends – impose particularly strong bonds of hierarchy and solidarity on their members ” .", "On DATE ORG passed further guidelines stating that the exercise of judicial functions was incompatible with membership of the NORP ." ]

[ "11" ]

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[ "8" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested and placed in police custody on suspicion of attempted homicide .", "On DATE ORG ordered that the applicant be detained on remand on suspicion of robbery .", "The court based its detention order on a reasonable suspicion that the applicant had committed the offence and the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings .", "The applicant appealed against the detention order , but his appeal was dismissed .", "DATE and DATE the applicant was serving a prison sentence in respect of another conviction .", "In DATE the police established the applicant ’s true identity as at the time of arrest he had been using another person ’s identity card . The applicant acknowledged that he had been sought pursuant to a wanted notice since in DATE he had failed to return to prison after CARDINAL days’ leave .", "Subsequent decisions extending the applicant ’s pre - trial detention were taken on DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE .", "In their decisions the courts referred to the need to conduct further investigations , a reasonable suspicion that the applicant had committed the offence and the risk of the applicant ’s obstructing the proper course of the proceedings . The courts took into account new elements which emerged in the course of the proceedings and specified the actions which needed to be taken . In particular , new investigative measures appeared necessary in view of the fact that the applicant had used a forged identity card at the time of his arrest . Accordingly , the person whose identity the applicant had used had to be heard and the applicant ’s true identity had to be established .", "On DATE a bill of indictment was filed with ORG against the applicant and CARDINAL co - accused . The applicant was charged with several robberies , failure to return to prison from leave and forgery of identity documents . The prosecutor requested the court to hear CARDINAL witnesses .", "The applicant appealed against several of the decisions extending his detention on several occasions , namely the decisions of DATE , DATE , CARDINAL DATE and DATE . All of his appeals were dismissed .", "On many occasions the applicant requested that his detention pending trial be lifted . On each occasion his requests were dismissed . His appeals against the dismissals were also dismissed .", "Hearings were held on : DATE ( adjourned ) , DATE , DATE , DATE , CARDINAL DATE ( when the court decided to conduct the proceedings anew since the composition of the court had to be changed due to the prolonged illness of a lay judge ) , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE and DATE .", "The applicant and the Government differed as to whether disciplinary measures were imposed on witnesses who had failed to appear at hearings .", "On DATE the applicant was released from detention . The court found that at this stage of the proceedings his release under police supervision would secure the proper conduct of the proceedings .", "On an unknown date in the course of the proceedings the applicant gave the authorities a false address for his place of abode .", "On DATE ORG gave a judgment and sentenced the applicant to DATE and CARDINAL months’ imprisonment . The applicant appealed .", "On DATE ORG upheld the judgment . The judgment is final .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) , are stated in the ORG ’s judgments in cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ." ]

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[ "The applicant was born in DATE . He is currently serving a prison sentence at FAC ) No . DATE , GPE ( “ the LOC ” ) .", "On DATE the Deputy Prosecutor of PERSON initiated criminal investigations into the murder of PERSON", "On DATE the applicant ’s wife was arrested on suspicion of the murder of PERSON On DATE she was released .", "On DATE the prosecutors placed Mr ORG on the list of persons suspected of the crime . The investigations were suspended .", "On DATE the applicant was arrested following the issue of a warrant by the Head of ORG of ORG on suspicion of the murder of PERSON , and the criminal investigations resumed . The applicant chose Mr Shelepa to defend him in the proceedings .", "On DATE the ORG remanded the applicant in custody in view of the pending criminal investigations against him . The applicant remained in detention throughout the proceedings .", "On DATE the applicant and Mr V. were charged with aggravated murder .", "On DATE the ORG extended the maximum period of the applicant ’s pre - trial detention to DATE .", "On DATE the investigations were completed and the applicant , together with his lawyer , was given access to the case file .", "On DATE the applicant and his lawyer completed their study of the case file .", "On DATE the prosecutors referred the case together with the indictment , containing charges of aggravated murder and theft , to ORG ( “ the ORG ” ) . The latter received the case file on DATE .", "On DATE the court remitted the case for additional investigation as it was incomplete . It also ordered the applicant to remain in detention . On DATE the prosecutors received the case file .", "On DATE the prosecutors resumed the pre - trial investigations .", "On DATE ORG extended the maximum period of the applicant ’s detention to DATE on the ground that it was not possible to complete the investigation .", "On CARDINAL DATE the investigations were completed and the applicant , together with his lawyer , was given access to the case file . On DATE the latter finished consulting the file .", "On DATE the prosecutors referred the case to ORG .", "On DATE the court received the case file and on DATE it remitted the case for additional investigation . The court refused to change the applicant ’s preventive measure .", "On DATE the prosecutors received the case file .", "On DATE ORG extended the maximum period of the applicant ’s detention to DATE .", "On DATE the Deputy Prosecutor General of GPE extended the maximum period of the applicant ’s detention to DATE .", "On DATE the investigations were completed and the applicant , together with his lawyer , was given access to the case file . On DATE they completed their study of the case file .", "On DATE the case was referred to ORG .", "On DATE the Deputy Prosecutor of the Chernivtsi Region withdrew the case from the court and resumed the investigations .", "On DATE the applicant was informed that the investigations were complete and that he was charged with concealment of crime .", "On DATE the applicant and his lawyer were given access to the case file . On DATE they completed consulting the case file .", "On DATE the case was referred to ORG .", "On DATE the court received the case file .", "On DATE the court remitted the case for additional investigation . The applicant was ordered to remain in detention .", "On DATE the prosecutors received the case file .", "On DATE the applicant was informed that the investigations were complete , and was given a copy of the indictment , in which he was charged with aggravated murder and robbery . DATE and DATE the applicant and his lawyer consulted the case file .", "On DATE the case was referred to ORG . On DATE the court received the case file .", "On DATE the prosecutors withdrew the case and resumed the investigations . On DATE they issued an indictment , containing the same charges and based on the same facts as the indictment of DATE .", "On DATE the applicant was informed that the investigations were complete and he was given a copy of the indictment of DATE . On DATE the applicant was provided with another lawyer , Mr B. , whom the prosecutors gave access to the case file .", "According to the applicant , he had agreed to have another lawyer , as the prosecutors told him that Mr Shelepa had not been able to participate in the proceedings due to his illness . From DATE to CARDINAL DATE Mr PERSON was having medical treatment in a hospital in GPE . The latter was not informed that the investigations were complete on DATE .", "On DATE the applicant and his new lawyer finished consulting the case file and on CARDINAL DATE the case was referred to ORG , the latter having received it on DATE .", "On DATE Mr PERSON was again admitted to participate in the proceedings .", "NORP In the course of the investigations , in particular on DATE and DATE , and DATE the applicant ’s lawyer made CARDINAL requests to the prosecutors that the proceedings against the applicant be discontinued for absence of elements of a crime in his actions . The requests were dismissed as unfounded by the ORG decisions of DATE and DATE and DATE .", "In the course of the trial , the applicant and his lawyer argued that some of the evidence submitted by the prosecutors had been collected after the expiry of the statutory terms of the investigation and the applicant ’s detention and therefore should not be admitted by the court .", "On DATE the court found the applicant and PERSON guilty of aggravated murder and sentenced the applicant to DATE imprisonment . It rejected the applicant ’s and his lawyer ’s argument concerning the admissibility of evidence , holding in particular that the maximum statutory terms of the investigation and pre - trial detention envisaged by LAW had not expired in the case , and that those terms had ceased to run during the periods when the applicant and his lawyer were studying the case file , when it had been referred to the court , and when the lawyer ’s petitions had been considered by the prosecutors . The court , relying on LAW and CARDINAL of the same Code , also noted that the terms of the investigation and detention had actually been extended DATE , as the case had been remitted for additional investigation on CARDINAL occasions .", "In his appeal in cassation , the applicant complained about the wrongful assessment of the facts and a violation of his procedural rights in the course of the investigation and trial .", "On DATE ORG rejected the applicant ’s appeal in cassation as unsubstantiated .", "The relevant provisions of the LAW read as follows :", "“ Every person has the right to freedom and personal inviolability .", "No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ... ”", "“ ... CARDINAL . The existing procedure for the arrest , custody and detention of persons suspected of committing an offence , and the procedure for carrying out an inspection and search of a person ’s home and other property , shall be retained for DATE after the entry into force of the present LAW ... ”", "The relevant provisions of the LAW , as worded at the material time , read as follows :", "“ An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code . ”", "“ Pre - trial investigation in criminal cases shall be completed within DATE . The [ running of this ] term shall commence from the moment the criminal proceedings are initiated up to the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment , or until the proceedings are suspended or discontinued . If it is impossible to complete the investigation , this term may be extended to DATE by district , city prosecutor , military prosecutor of the army , fleet , military districts ( commands ) , garrisons , and prosecutors of equal rank . The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre - trial investigation .", "In especially complicated cases the term of pre - trial investigation set by part CARDINAL of this Article may be extended to DATE by ORG , prosecutors of regions , the prosecutor of GPE , military prosecutors of the military district ( command ) , navy and prosecutors of equal rank or their deputies on the basis of a reasoned resolution of the investigator .", "Further extension of the term of pre - trial investigation may only be enacted by ORG GPE or by his deputies .", "Where the case has been remitted for additional investigation , or if the discontinued proceedings have resumed , the term of additional investigation shall be established by the prosecutor who supervises the investigation , and shall not exceed DATE from the moment when the investigation is resumed . Further extension of this term shall be enacted on general grounds .", "The rules set in this Article shall not be applicable to criminal proceedings where the person having committed the crime has not been identified . The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified . ”", "“ If there are sufficient grounds to consider that the accused , if at liberty , will abscond from the investigation or trial , or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities , and if it is necessary to ensure the execution of a sentence , the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by LAW ...", "In exceptional cases a preventive measure may be applied in respect of a person suspected of having committed a crime before the charges are brought against that person . In such a case the charges shall be brought [ against the suspect ] within DATE of the application of the preventive measure ... ”", "“ The preventive measures shall be as follows :", "( CARDINAL ) a written undertaking not to abscond ;", "( CARDINAL ) personal surety ;", "( CARDINAL ) the surety of a non - governmental organisation or labour collective ;", "( DATE ) NORP bail ;", "( CARDINAL ) placement in custody ;", "( CARDINAL ) NORP supervision by the command of a military unit . ”", "“ Placement in custody as a preventive measure shall be applied in cases concerning criminal offences for which the law envisages a punishment of DATE imprisonment . In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law envisages a punishment of DATE imprisonment ... ”", "“ Pre - trial detention during the investigation of criminal offences in criminal cases shall not DATE . This term may be extended to DATE by district , city prosecutors , military prosecutors of the army , fleet , military districts ( commands ) , garrisons , and prosecutors of equal rank , if it is not possible to complete the criminal investigation and there are no grounds for changing the preventive measure . Further extension of this term to DATE from the moment of the arrest may only be enacted if the case is exceptionally complex by ORG , prosecutors of regions , the prosecutor of GPE , military prosecutors of the military district ( command ) , navy and prosecutors of equal rank .", "The DATE term of pre - trial detention may be extended to DATE by the Deputy Prosecutor General of GPE and to DATE by ORG .", "No further extension of the term of pre - trial detention is allowed ; an accused held in detention must be immediately released .", "If it is impossible to complete the investigation within the terms set by the law for pre - trial detention and there are no grounds for changing the preventive measure , ORG or his Deputy shall have the power to approve the referral of the case to the court in the part relating to proven charges . The part of the case relating to criminal offences , the investigation of which has not been completed , shall be disjoined from the proceedings and completed in accordance with the general rules .", "The accused and his defence shall be provided , not DATE before the expiry of the term of pre - trial detention set by part CARDINAL of the LAW , with the materials of the part of the criminal case in respect of which the investigation has been completed , so that they can familiarise themselves with [ those materials ] .", "The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account in the calculation of the term of pre - trial detention .", "If the court remits the case for a new investigation , and where the term of pre - trial detention has ended , and the preventive measure of pre - trial detention may not be changed , an extension , for DATE following the receipt of the case , of the term of pre - trial detention shall be enacted by the prosecutor supervising investigation . Further extension of this term shall be enacted according to the procedure envisaged by DATE , CARDINAL and CARDINAL of the LAW , taking into account the period the accused has been held in detention . ”", "“ Pre - trial detention during pre - trial investigation shall not last DATE .", "When it is impossible to complete the investigation within the period provided for in part CARDINAL of the LAW and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure , [ the term of pre - trial detention ] may be extended :", "( CARDINAL ) DATE upon a request approved by the prosecutor supervising the compliance with the laws by the bodies of inquiry and investigation , or at the same prosecutor ’s [ own request ] , by a judge of the court , which adopted a resolution on the application of the preventive measure ;", "( CARDINAL ) DATE upon a request approved by ORG , ORG , prosecutors of regions , prosecutors of GPE and PERSON , and prosecutors of equal rank , or at the same prosecutor ’s [ own request ] in cases concerning serious and particularly serious crimes , by a judge of a court of appeal ;", "( CARDINAL ) DATE - upon a request approved by ORG and his Deputy , or at the same prosecutor ’s [ own request ] in particularly complex cases concerning particularly serious crimes , by a judge of ORG of GPE ;", "In each case , when it is impossible to complete the investigation within the terms specified in parts CARDINAL or CARDINAL of the Article and there are no grounds for changing the preventive measure , the prosecutor supervising the compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges . In such an event , the part of the case relating to criminal offences or episodes of criminal activities , the investigation of which has not been completed , shall be disjoined from the proceedings pursuant to the requirements of LAW and completed in accordance with the general rules .", "The term of pre - trial detention shall be calculated from the moment when the person was placed in custody , or , if his placement in custody was preceded by his arrest [ within the meaning of LAW ] , from the moment of the arrest . The term of pre - trial detention shall include the time during which the person underwent in - patient expert examination at a psychiatric medical institution of any type . If the person is repeatedly placed in custody in the framework of the same proceedings ... or if new charges are brought against him , the time the person has spent in detention before this shall be taken into account when calculating the term of pre - trial detention .", "The term of pre - trial detention shall end on DATE the court receives the case file ; however , the time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account when calculating the term of pre - trial detention as a preventive measure . If the case is withdrawn by the prosecutor from the court pursuant to LAW , the running of the term shall resume from DATE on which the prosecutor receives the case .", "If the case is returned by the court to the prosecutor for additional investigation , the term of pre - trial detention shall be calculated from the moment the case is received by the prosecutor and shall not exceed DATE . Further extension of that term shall be enacted in accordance with the procedure envisaged by part CARDINAL of the LAW and the time the accused was held in detention before the referral of the case to the court shall be taken into account .", "If the term of pre - trial detention ... envisaged by parts CARDINAL and CARDINAL of the LAW has ended and if this term was not extended in accordance with the procedure envisaged by the LAW , the body of inquiry , investigator , or prosecutor shall immediately release the person from detention .", "Governors of pre - trial detention centres shall immediately release from detention any accused in whose respect no court resolution extending the term of pre - trial detention has been received on DATE of expiry of the terms of pre - trial detention envisaged by parts CARDINAL , CARDINAL , and CARDINAL of the Article . They shall notify accordingly the person or authority before whom the case is pending and the prosecutor supervising the investigation . ”", "“ Having found the collected evidence to be sufficient for formulating charges and having satisfied the requirements of LAW , the investigator shall notify the accursed of the completion of the investigation in his case and of his right to familiarise himself , personally or with the assistance of defence , with the materials of the case ...", "The accused and his defence shall not be limited in the time which they require to familiarise themselves with the materials of the case file . However , if the accused and his defence are obviously trying to delay the completion of the case , the investigator shall have the right to set , by a reasoned resolution , a certain time - limit for study of the case file . Such a resolution shall be approved by the prosecutor . ”", "The relevant extracts from the Reservation contained in the instrument of ratification deposited by GPE on DATE ( period covering DATE ) provide as follows :", "“ ... CARDINAL . NORP The provisions of LAW of DATE shall apply in the part that does not contravene paragraph CARDINAL of LAW of the Transitional Provisions of the LAW of GPE and ORG CARDINAL and CARDINAL of the Code of Criminal Procedure of GPE concerning the detention of a person and the issue of an arrest warrant by a public prosecutor .", "Such reservations shall be in force until appropriate amendments to LAW are introduced or until the adoption of LAW , but not DATE ...", "The provisions of LAW of DATE shall apply in the part that does not contravene Articles DATE , CARDINAL DATE of LAW concerning the imposition of arrest as a disciplinary sanction . ”", "The relevant extracts from LAW , the LANGUAGE translation of which was provided in the appendix to the reservation of GPE , read as follows :", "“ A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed , subject to the existence of CARDINAL of the following grounds :", "NORP if the person is discovered whilst committing an offence or immediately after committing one ;", "NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;", "NORP if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home .", "If there are other data which constitute grounds for suspecting the person of committing an offence , he may be detained only if he attempts to escape , or if he has no permanent place of residence , or if the identity of the suspect has not been established .", "For each case of detention of a person suspected of committing an offence , the body of inquiry shall be required to draw up a record setting out the grounds , the reasons , DATE , time , DATE , the place of detention , the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time , in accordance with the procedure provided for in Part CARDINAL of Article CARDINAL of the present Code . The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within TIME and , at his request , give him the documents constituting the grounds for detention . The record of detention shall be signed by the person who drew it up and by the detained person . Within TIME of receipt of the notification of detention , the public prosecutor shall authorise the person detained to be taken into custody or order his release .", "The body of inquiry shall inform the suspected person ’s family of his detention if his place of residence is known . ”", "The relevant extracts from LAW , which set out the specific duties of a public prosecutor when issuing a warrant for arrest , provide as follows :", "“ The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law . When deciding whether to issue a warrant for arrest the public prosecutor shall be required to study conscientiously all the relevant documents and , where necessary , question the suspect or accused personally . In the case of a suspect or accused who has not attained the age of majority , such questioning shall be mandatory .", "The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of GPE , the public prosecutors of GPE , the regional prosecutors , the prosecutors of the cities of GPE and PERSON , and other equal - ranking prosecutors . The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding CARDINAL , unless otherwise stipulated in a special order of ORG . ”" ]

[ "5" ]

[ "5-1" ]

[ "5-1-c" ]

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[ "The applicant is a NORP national , born in DATE , and currently serving a prison sentence in the GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .", "On DATE , the applicant and PERSON were present in the home of PERSON On DATE , PERSON was killed by CARDINAL stab wound in his chest . In TIME DATE , the applicant went the police and stated that he had killed PERSON It appeared that , when making this statement , the applicant had an alcohol level of QUANTITY in his blood .", "On DATE , the police arrested the co - suspect PERSON , whose statement of DATE to the police confirmed the applicant 's account . The police further took samples of and secured material found under the CARDINAL suspects ' finger nails . The police further seized and secured the suspects ' coats and outer layer of their clothes . In the course of his pre - trial detention , the applicant withdrew his earlier statement that he had killed Mr M. By summons of DATE , the applicant was summoned to appear before ORG ( Arrondissementsrechtbank ) on charges of murder .", "By letter of DATE , the applicant 's lawyer , referring to previous telephone messages , requested the investigating judge ( rechter - commissaris ) dealing with the case to provide him with further information in relation to the samples taken by the technical criminal investigation department ( technische recherche ) as well as the secured clothes of the applicant and GPE", "In the course of a hearing held on DATE before ORG , the defence stated that there were CARDINAL persons in the victim 's home , namely GPE , PERSON and the applicant and that their statements were not consistent . The defence requested that the case be referred back to the investigating judge in order to hear PERSON , PERSON and QUANTITY police officers involved in the investigation . ORG further took evidence from the applicant .", "After having deliberated , ORG decided to refer the case back to the investigating judge in order to take evidence from the CARDINAL witnesses proposed by the defence . On CARDINAL , DATE and DATE , statements were taken from the witnesses and the applicant by the investigating judge .", "On DATE , the applicant 's lawyer was told by the public prosecutor that it was unclear what had happened with the material taken from the suspects ' finger nails and of their clothes and that , therefore , no forensic reports on these materials would be submitted to the court .", "On DATE , a further hearing took place before ORG . As the court 's composition had changed , it fully recommenced its examination . It took evidence from the applicant , considered the other evidence before it and heard the parties ' final pleadings .", "By judgment of DATE , ORG convicted the applicant of murder and sentenced him to DATE imprisonment . The applicant filed an appeal with ORG ( Gerechtshof ) .", "In the course of a hearing held on DATE , ORG heard the applicant as well as the witnesses PERSON and PERSON The latter witness stated , inter alia , that he had been convicted of being an accessory to the murder of M and that he had not filed an appeal against this conviction . ORG further heard the parties ' final pleadings .", "In its judgment of DATE , ORG convicted the applicant of murder and sentenced him to DATE imprisonment . On the basis of the findings of a psychiatric report on the applicant , ORG accepted that the applicant had to a certain extent a diminished responsibility and took this into account in the determination of its sentence .", "As to the argument submitted by the defence that the prosecution should be declared inadmissible as the clothes and the samples taken from material under the fingernails of the suspects had gone lost thereby rendering a - for the applicant possibly exculpating - forensic examination thereof impossible , ORG held that :", "< Translation >", "“ The formal police records mention that , pending a possible further investigation , the secured items at issue have been entrusted to the technical criminal investigation [ department ] of the GPE - Rijnmond Regional Police . It appears from appendices to counsel 's written pleadings that the suspect 's former defence counsel has requested the investigating judge to have these materials examined . A reply to that request is not included in the documents . The written pleadings of the defence counsel in the first instance proceedings only mention that this counsel has been told by the public prosecutor “ that no clarity can be obtained what [ has ] happened with this ” .", "Assuming that the materials referred to have in fact gone missing , the ORG considers this indeed regrettable , but , noting the other investigation results contained in the case - file , not an omission of such importance that this should result in the sanction of inadmissibility of the prosecution . The objection is therefore rejected . ”", "ORG based the applicant 's conviction on his statement of DATE to the police and his statement of DATE to the investigating judge , the statement of CARDINAL DATE by GPE to the police , the formal police records of the finding of the victim 's body , and the report on the autopsy of the victim 's body .", "The applicant 's subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . As to the applicant 's complaint of the rejection by ORG of his argument that the prosecution should be declared inadmissible , ORG held at the outset that unlawful activities of criminal investigation officials could under circumstances result in such a serious violation of the principle of a fair trial that this should lead - also in cases where there is sufficient other lawfully obtained evidence - to the inadmissibility of the prosecution . However , such a far reaching sanction could only follow where it would concern serious violations of those principles by , deliberately or with gross negligence , disrespecting the suspect 's interest in his right to a fair hearing of his case . Due to the impossibility of giving a general rule , this question needed to be examined on a case by case basis .", "Turning subsequently to the instant case , ORG held that :", "< Translation >", "“ ... ORG has at the outset - correctly - expressed that the circumstance that the secured traces have gone lost violates the principles of fair proceedings . ORG further held that the present case does not concern a case of a serious violation of the principles of fair proceedings as a result of which , deliberately or with gross negligence , the suspect ' interest in his right to a fair trial of his case has been disrespected This finding does not disclose an incorrect conception of the law and is also not incomprehensible taking into consideration :", "a ) that it has not been argued and that the case - file contains nothing from which it could be concluded that the fact the investigation material has gone lost is the result of a deliberate action and", "b ) that ORG has apparently assessed this violation [ of the principles of fair proceedings ] in the light of the harm that this , also taking into account of what the defence has submitted on this point , could reasonably have caused the interests of the defence , in which [ assessment ] ORG with [ the phrase ] “ the investigation results contained in the case - file ” apparently referred to the facts and circumstances on which it based the conviction ( “ voor het bewijs redengevend geachte feiten en omstandigheden ” ) as set out in the evidence described under CARDINAL . and the possibly exculpating material contained in the case - file .", "The complaint therefore fails . ”" ]

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[ "The applicant was born in DATE and lives in PERSON .", "NORP In DATE the applicant requested ORG “ GPE ” ( the “ Association ” ; Державно-кооперативне об'єднання по агропромисловому будівництву “ NORP ” ) , his employer at the material time , to grant him and his family priority in the allocation of housing to employees . Subsequently his request was allowed on account of the fact that his father had fought and perished in World War II .", "In DATE the ORG attributed the applicant apartment no . CARDINAL in a new building being constructed by several investors , including the ORG . However , in DATE the ORG transferred this apartment to another investor , as the value of its contribution into the construction project had been reassessed at a lower level .", "On DATE the ORG transferred its assets to ORG “ Vinelevatorbud ” ( the “ Company ” ; CARDINAL підприємство “ LOC ) and ceased carrying out any business . However , the liquidation formalities were not completed .", "On DATE the applicant instituted civil proceedings in the Staromisky District Court of Vinnytsya ( the “ ORG ” ; ORG районний суд ORG ) against the ORG , asserting his rights to apartment no . CARDINAL .", "DATE the court adjourned CARDINAL hearings on account of the ORG 's absence , and CARDINAL on account of the court 's relocation to another building .", "On DATE ORG allowed the applicant 's claims and allocated him apartment no . CARDINAL , having found that the re - distribution of the apartment between the investors was flawed and that the applicant 's family were entitled to priority allocation of housing . The ORG lodged an appeal in cassation .", "On DATE ORG ( the “ ORG ” ; GPE обласний суд ) quashed this judgment , having found that the analysis of facts and law by ORG was insufficient and remitted the case to ORG for a fresh consideration .", "On DATE ORG dismissed the applicant 's claims , having found that the re - distribution process was not in breach of applicable law . The applicant lodged an appeal in cassation .", "On DATE ORG quashed this judgment and remitted the case to ORG for a fresh consideration . In particular , it found that ORG analysis was insufficient .", "DATE ORG held QUANTITY hearings , CARDINAL of them being adjourned on account of the parties ' failure to appear .", "On DATE ORG found that , since the applicant was entitled to priority housing , the ORG should have redistributed another apartment to the investors . The court further obliged the ORG to provide the applicant with an apartment of equal value at its own expense . This judgment was not appealed against and became final in DATE .", "On an unspecified date ORG initiated the enforcement proceedings in respect of the judgment of DATE and requested ORG to provide instructions as to the execution of the judgment , given that the ORG had transferred all its assets to the Company .", "On DATE ORG found the Company to be the ORG 's successor in respect of the judgment of DATE and ordered it to pay the applicant CARDINAL NORP hryvnyas ( ORG ) instead of providing an apartment . This decision was not appealed against and became final in DATE .", "On DATE the Presidium of ORG quashed the ruling of DATE following a “ protest ” instituted by the court 's President and ordered ORG to re - consider the request of ORG . In particular , the ORG noted that ORG had not requested any liquidation documents and had insufficiently explored whether the ORG had been succeeded by the Company . Furthermore , in breach of applicable law , the court had neither heard nor summoned the parties concerned .", "On DATE ORG found that the ORG had not been formally liquidated and ordered it to purchase an apartment for the applicant . This decision became final in DATE .", "On DATE the applicant petitioned ORG to re - open the proceedings in connection with a “ newly disclosed circumstance ” ( перегляд за нововиявленими обставинами ) , namely that the ORG had , in fact , ceased to exist .", "On DATE ORG allowed the applicant 's petition . It annulled the judgment of DATE and remitted the case for a fresh consideration , having summoned the Company as the defendant in the ORG 's stead .", "On DATE ORG allowed the applicant 's claims and ordered the Company to provide him with an apartment . The Company appealed in cassation .", "On DATE ORG , by a final decision , upheld the judgment of DATE .", "On DATE the ORG of ORG quashed the judgment of CARDINAL DATE , following a “ protest ” lodged by the Deputy President of ORG , and remitted the case for a fresh consideration .", "DATE ORG adjourned CARDINAL hearings , CARDINAL of the adjournments being attributable to the applicant ( amendment of claims ) .", "On DATE ORG partly allowed the applicant 's claims . It obliged the ORG and the ORG jointly to provide an apartment to the applicant . The ORG appealed .", "On DATE ORG quashed this judgment and remitted the case for a fresh consideration , having found that ORG had still failed to explore a number of issues , including that of succession between the ORG and the Company .", "On DATE ORG dismissed the applicant 's claims , having found that the defendants had no apartments for distribution and the applicable law did not provide for monetary compensation in this event . Moreover , the applicant no longer qualified for priority treatment either by the ORG or the Company , since he no longer worked for them and his living conditions were satisfactory . The applicant appealed .", "On DATE ORG upheld this judgment . The applicant appealed in cassation .", "On DATE ORG returned the applicant 's appeal in cassation as “ not lodged ” on account of his failure to abide by the court 's order to pay a court fee . The applicant appealed , seeking to be relieved of the obligation to pay the fee .", "On DATE ORG dismissed the applicant 's appeal against the decision of CARDINAL DATE . The applicant did not appeal in cassation ." ]

[ "6" ]

[ "6-1" ]

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[ "Mr PERSON , a university lecturer in law , is a NORP citizen and lives in PERSON in GPE .", "From TIME the applicant held a power of attorney from his adoptive mother , PERSON , and , on DATE , he was appointed administrator ( god man ) for her friend , PERSON . As both PERSON and PERSON became unable to care for themselves because of their advanced age , they were placed in a nursing home by GPE . The nursing home charged them for medical care and the applicant effected the relevant payments .", "When he subsequently realised that the nursing home was a charitable association , he stopped paying the fees on the ground that the institution in question was not entitled to charge them . A dispute arose between the applicant and the nursing home and the latter brought a court action .", "On DATE , while the above - mentioned proceedings were pending , ORG the Board \" ) in GPE asked ORG ( tingsrätten ) in the same town to appoint an administrator for PERSON . The applicant , on his own and PERSON ’s behalf , filed a counter - claim and sought the immediate dismissal of the members of ORG . Referring to Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , he asked for a public hearing .", "On CARDINAL occasions in the course of the ensuing proceedings the applicant was ordered by the relevant courts , under LAW , LAW ( rättegångsbalken ; see paragraphs CARDINAL below ) , to pay fines for improper ( otillbörliga ) statements made in his written observations . The orders were made in the form of decisions ( beslut ) . He appears to have paid the fines .", "In his written observations of CARDINAL DATE to ORG he stated , inter alia , that the ORG could be described as \" a basket of municipal rotten eggs of different colours with a common denominator and overriding ideology , namely fascism \" . Accordingly , the rights and legitimate interests of individuals within the municipality - if these were taken into account at all , so intoxicated were the authorities with power - were never given proper consideration amounting to an effective examination of the needs of the community . As a result , such needs were defined by so - called democratically elected \" peoples’ courts \" - officially named \" boards \" and \" councils \" of the municipality of GPE - the members of which \" consist[ed ] to a surprising degree of the local public mob \" or \" pure rotten eggs \" .", "ORG , considering the applicant ’s statements \" improper \" within the meaning of LAW , LAW , ordered him , at a sitting on CARDINAL DATE , to pay a fine of MONEY . It did not hold a hearing and adjourned its examination of the merits of the case ( see paragraph CARDINAL below ) .", "On DATE the applicant appealed from the above decision to ORG for Western Sweden ( ORG NORP ) . He asked for an oral hearing and complained of not having had the possibility to defend himself orally before ORG .", "In his written observations , the applicant informed ORG that , should it refuse his demands , he intended to lodge a further appeal ( presumably to ORG ) in order to bring his case to the Commission in GPE or to ORG in GPE . He expressed the opinion that the likelihood of his being granted leave to appeal was very small in view of the \" generally lethargic [ , ] ... lax and allergic attitude of the final instance \" , which resulted from the \" anti - human rights indoctrination received by its members during their many years’ service in public administration \" .", "On DATE , without holding an oral hearing , ORG confirmed ORG decision and ordered the applicant to pay a further fine of MONEY , finding that his written observations of CARDINAL DATE also contained improper remarks prejudicing the good order of court proceedings .", "The applicant then applied to ORG for leave to appeal , alleging that the lower and appellate courts had not only denied him a fair trial but had also violated his right to freedom of expression . Such leave was refused on DATE .", "In the meantime , on DATE , ORG , without holding a hearing , accepted the applicant ’s and PERSON objection against the ORG ’s request for the appointment of an administrator , but rejected their demand for the dismissal of the members of ORG ( see paragraph CARDINAL above ) .", "On DATE the applicant , on his own and PERSON behalf , lodged an appeal with ORG , seeking to have the case referred back to ORG for reconsideration , as well as an oral hearing before the lower court .", "On this occasion , he asked that his case be heard by a specially composed ORG as he wished to have certain members disqualified from sitting . He alleged that CARDINAL of its members , whom he named , had a \" far - reaching tendentiously fascist way of presiding \" over the court and was \" grossly partial in favour of municipal interests , collegiate corruption and abuse of public power through high - handedness , terror and reactionary principles \" . When composed of the said judge and certain other members , who were also mentioned by name , ORG had been generally autocratic and had applied the law in a manner which had been heavily in favour of the municipal authorities .", "On DATE , in a separate decision from the one mentioned in paragraph CARDINAL above , ORG rejected the appeal . In addition , it again ordered the applicant to pay MONEY for improper remarks in his appeal . It did not hold a hearing .", "The applicant , on his own behalf and on that of PERSON estate ( the latter had died on DATE ) , applied to ORG for leave to appeal , which was refused on DATE ( in a different decision from that referred to in paragraph CARDINAL above ) .", "Pursuant to LAW ( brottsbalken ) :", "\" A crime ( brott ) is constituted by any act for which the present code or other LAW provides punishment ( straff ) as stated below . \"", "According to LAW , a reaction to crime ( påföljd för brott ) is understood in the code to mean the ordinary forms of punishment , notably fines and imprisonment .", "LAW , LAW , as applicable at the material time , read :", "\" A person who , at a court sitting , disturbs the proceedings or takes photographs in the courtroom , or fails to comply with directions or prohibitions imposed LAW , Article CARDINAL , shall be ordered to pay a fine . The same punishment ( straff ) may be imposed on a person who , in his oral or written observations to the court , expresses himself in an improper manner . \"", "LAW , Article CARDINAL , provides inter alia that the presiding judge may order a person who disturbs the proceedings or behaves in an improper manner to leave the courtroom .", "Fines imposed under LAW could not exceed MONEY ( Article CARDINAL in LAW , as applicable at the relevant time ) , unlike ordinary criminal - law fines which were income - based .", "The question as to which court has jurisdiction in cases concerning offences against the good order of court proceedings ( rättegångsförseelser ) is governed by LAW . On the procedure in criminal cases \" ( \" II . Om rättegangen i brottmål \" ) - of LAW . Under LAW it is for the court sitting in the proceedings - whether civil , criminal or other - in which the improper conduct has occurred to examine of its own motion whether it constitutes such an offence .", "LAW of the code ) reads :", "\" The court may not examine a question of criminal liability in the absence of a criminal charge . However , it may deal with issues of offences against the good order of court proceedings without a charge being brought . \"", "In the proceedings under consideration , the courts followed the procedure laid down in LAW on ORG ( lagen om handläggning av domstolsärenden CARDINAL - \" LAW \" ) . Section CARDINAL provides :", "\" The present Act shall apply to matters relating to the administration of justice with which the ordinary lower courts must deal of their own motion or on application and which , according to statute or other regulation , do not fall to be examined under the procedure provided for in civil or criminal cases ; however , it shall not apply to questions of punishment or other consequences of a criminal offence . \"", "If the court in question finds that a person has contravened LAW , LAW , it may immediately order him to pay a fine . Such a measure is not entered in the police register .", "Pursuant to paragraph CARDINAL of section CARDINAL of LAW , a hearing may be held if the court in question considers that the person concerned should be heard orally . Should the court decide to hold one , it is , pursuant to section CARDINAL of LAW , governed by the same provisions as apply to hearings in civil cases .", "A fine imposed LAW , LAW may , subject to the conditions laid down in LAW on GPE ( bötesverkställighetslagen CARDINAL - \" LAW \" ) , as amended in DATE ( DATE : CARDINAL ) , be converted into a prison sentence .", "According to sections CARDINAL and QUANTITY of LAW , ORG must , upon the request of the public prosecutor , convert - by way of a decision ( beslut ) - uncollected fines into a term of imprisonment if it is obvious that the person concerned has intentionally failed to pay them or if there are other special reasons in the public interest for so converting them . A term of imprisonment imposed on this ground should be not DATE and not DATE .", "In proceedings concerning a request for the conversion of a fine into a prison sentence , ORG must summon the prosecution and the defendant to appear at a hearing ( section CARDINAL ) ." ]

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[ "6" ]

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[ "The applicant lives in GPE .", "The applicant is a practitioner of general medicine . He has an individual contract ( ORG ) with ORG ( ORG ) . The applicant has also obtained special diplomas in the areas of echocardiology and sonography and performs these types of examination on his patients .", "CARDINAL part of the individual contract between the applicant and ORG is LAW Honorarordnung ) which states that certain types of examinations will only be reimbursed if they are performed by a specialist doctor .", "ORG refused to reimburse echocardiologic and sonographic examinations as the applicant was not a specialist doctor but a general practitioner .", "On DATE the applicant claimed payment for echocardiologic and sonographic services amounting to MONEY ( ORG ) for DATE before ORG ( Paritätische Schiedskommission ) ; on DATE he submitted another claim for payment amounting to ORG CARDINAL,CARDINAL.CARDINAL for DATE ; at an unknown date this claim for payment was increased to ORG CARDINAL . On DATE the applicant submitted a claim for payment of ORG CARDINAL,CARDINAL.CARDINAL for DATE .", "ORG held hearings on DATE and DATE .", "As ORG did not reach a decision because of a tie , the applicant filed an application for transfer of jurisdiction ( PERSON ) to ORG Landesberufungskommission ) on DATE and DATE , respectively .", "Meanwhile , on DATE the applicant had claimed payment for echocardiologic and sonographic services amounting to ORG CARDINAL,CARDINAL.CARDINAL for DATE . At DATE this claim was reduced to ORG CARDINAL,CARDINAL.CARDINAL .", "On DATE ORG refused to grant the applicant ’s claims concerning DATE and DATE .", "On DATE the applicant complained to ORG ) which , on DATE , set aside the decision of ORG of DATE . It found that the applicant ’s right to have his case heard by an impartial tribunal had been violated as CARDINAL of the assessors nominated by ORG had negotiated the disputed clause of LAW . Consequently , ORG did not appear independent and impartial .", "As regards the claim for DATE , the applicant had filed an application for transfer of jurisdiction to ORG on DATE owing to a tie in ORG . As at that time the applicant ’s complaint against the decision of CARDINAL DATE was pending before ORG , ORG decided to stay the proceedings until ORG had given its decision . On an unknown date ORG decided to join the proceedings in respect of all the applicant ’s claims , that is to say ; those for DATE and for DATE .", "After ORG had set aside ORG decision of CARDINAL DATE , the newly composed ORG again rejected the applicant ’s claims on DATE .", "The applicant complained to ORG that there had not been a public hearing . ORG set aside the contested decision for the lack of a public hearing in a decision of DATE .", "On DATE ORG held a public hearing . On DATE ORG rejected the applicant ’s claims , holding that it was up to the parties to the general agreement to limit direct reimbursement of certain services to specialist doctors . Such limitations served the planning and administration of affordable healthcare services and were objectively justified .", "On DATE the applicant complained to ORG , alleging a breach of the principle of equal treatment and lack of independence and impartiality of ORG .", "On DATE ORG found no violation of the right to a fair hearing and upheld the contested decision . It held that the assessors of ORG were independent in exercising their duties and that no circumstances giving rise to doubts about their impartiality or independence had arisen in the present case . In particular , none of the assessors of ORG had been involved in the conclusion of the general agreement or of the individual contract at issue in the proceedings . The mere fact that the assessors were members of ORG which had provisions of the same content in their general agreements was not sufficient to cast doubt on their impartiality . This decision was served on counsel on DATE .", "NORP The relevant provisions of LAW ( Allgemeines Sozialversicherungsgesetz ) read as follows :", "“ CARDINAL . ( CARDINAL ) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the ORG [ of ORG ] on behalf of the insurance boards . General agreements shall require the consent of the health insurance boards on behalf of which they are concluded . ORG may conclude the general agreements on behalf of the medical associations concerned , with their consent ...", "( CARDINAL ) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice . Any provisions of the individual contract which are contrary to the provisions of the general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect . ...", "( CARDINAL ) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract , a ORG shall be established in each Land in individual cases . ...", "( CARDINAL ) ORG shall consist of CARDINAL members , CARDINAL of whom shall be appointed by the local ORG and CARDINAL by ORG , which is a party to the individual contract . ...", "( CARDINAL ) An appeal can be lodged with ORG against a decision given by ORG . ... ”", "Section CARDINAL(CARDINAL ) governs the composition of ORG :", "“ CARDINAL . ( CARDINAL ) For each Land , a permanent ORG shall be established . It shall consist of a professional judge as Chairman and of CARDINAL assessors . The Chairman shall be appointed by the Federal Justice Minister . The Chairman must be a judge who , at the time of his appointment , is working at a court trying cases under labour and social insurance legislation . The Federal Minister of ORG shall appoint CARDINAL assessors upon proposal of ORG respectively and CARDINAL upon proposal of ORG Representatives and employees of ORG and members and employees of ORG who are parties to the general agreement on which the individual contract subject to the dispute is based , must not be assessors in the respective proceedings . ”", "The above version of CARDINAL ) of LAW entered into force on DATE . Before that date ORG and ORG each appointed CARDINAL assessors to ORG and there had been no provision that members and employees of the parties to the general agreement would be excluded .", "NORP Under section CARDINAL(CARDINAL ) of LAW , ORG decides by a simple majority of votes ; abstention from voting is not possible .", "NORP The assessors of ORG are appointed for a renewable period of DATE . They are not subject to the hierarchical authority of the bodies which proposed their appointment ( LAW ) .", "Decisions of ORG are excluded from the competence of ORG ( Verwaltungsgerichtshof ) by LAW ." ]

[ "6" ]

[ "6-1" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , claims to be a ORG national who was born in DATE . At the time when the application was lodged he was held in detention in PERSON . He is represented before the ORG by PERSON P.A. Blaas , a lawyer practising in ‘ s - Hertogenbosch . The respondent Government are represented by their Agent , Mr R.A.A. PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant entered the GPE DATE before the events complained of . He lodged a request for asylum and was met with a refusal . He remained in the GPE as an illegal alien .", "On DATE the applicant was apprehended . An officer of ORG ) , acting on behalf of the Minister for ORG and Integration ( Minister PERSON ) and in accordance with LAW ( Vreemdelingenwet ) , placed the applicant in GPE detention ( vreemdelingenbewaring ) for expulsion purposes on public order grounds , namely the suspicion that the applicant was seeking ways to evade expulsion as he had no identity papers , he had failed to leave the country within the time allowed him for that purpose , he had no fixed abode , was suspected of having committed a criminal act , had no adequate means of subsistence and was not lawfully staying in the GPE .", "ORG of The Hague was notified by the Minister of the detention order on DATE . In accordance with LAW , this counted as an automatic appeal .", "This notification - appeal was heard before ORG on DATE . On DATE a single - judge Chamber of ORG gave a decision dismissing the appeal . The decision noted that the applicant had relied on ORG judgment in the case of PERSON v. GPE ( nos . CARDINAL and CARDINAL , CARDINAL DATE ) , but held that , given the provisions of LAW , there was an adequate guarantee that the judge would take a speedy decision about the lawfulness of the applicant ’s detention and order his release if his detention was found unlawful . Given the reasons on which it was based , the applicant ’s placement in aliens detention was found justified , and it was further found that the GPE authorities were pursuing the applicant ’s effective removal from the GPE with the required diligence , given that in the meantime the procedure for obtaining a laissez - passer from the ORG authorities had been set in motion .", "The applicant lodged an appeal against the decision of DATE with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) on DATE . Again relying on the ORG ’s Shamsa judgment , he only raised CARDINAL complaint , namely that ORG had unjustly failed to acknowledge that persons placed in GPE detention must – like persons detained in the context of criminal proceedings – be heard promptly , that is DATE and TIME , before an independent tribunal . As he had only been heard after DATE , ORG should have found this delay too long and , consequently , should have ordered his release .", "On DATE , following a hearing held on DATE , ORG dismissed the further appeal and upheld ORG decision . This ruling , in so far as relevant , reads :", "“ The appellant has been placed in GPE detention for expulsion purposes , in accordance with LAW ( a ) of LAW . Therefore and on a statutory basis , an expulsion procedure within the meaning of LAW ( f ) of the LAW was pending against him . Pursuant to LAW , the placement in GPE detention at issue has been submitted for examination before ORG within a delay of DATE .", "The judgment of ORG [ in the case of PERSON v. GPE ] of CARDINAL DATE , invoked by the [ appellant ] , concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending , for which continued detention there was no legal basis . Consequently , the detention had lost its lawful character and thus did not fall within the scope of CARDINAL of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in LAW . In this light , ORG understands the judgment and in particular the reasoning set out in paragraph CARDINAL in the sense that the Court – in assessing such detention – incorporates the rationale of Article CARDINAL taken as a whole and , in that context , also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [ LAW ] . Noting this as well as the [ decisions on admissibility taken by ] ORG in the case PERSON GPE [ no . MONEY , DATE ] and ORG and Others v. GPE [ CARDINAL , DATE ] , ORG is of the opinion that the ORG did not have the intention to consider LAW applicable by analogy to the detention of aliens in accordance with [ LAW ( f ) of the LAW ] , which would also be at variance with the wording of [ LAW ] . In this connection ORG also finds of relevance that the ORG , in its [ decision on admissibility ] in the case of GPE v. the GPE ( no . CARDINAL , DATE ) found that there was no reason for holding that there was a violation of LAW , as the alien concerned who had been placed in GPE detention under LAW [ as in force until DATE ] could at any point in time challenge the lawfulness of [ that ] detention before the judge who should determine [ this issue ] speedily . ORG did not conduct an additional examination of the matter under [ LAW ] . In accordance with LAW an alien can also at present file an appeal at any point in time against a decision imposing deprivation of liberty .", "ORG therefore agrees with ORG that the applicant ’s reliance on [ the ORG ’s Shamsa judgment ] fails ... ”", "This ruling was published in LAW ( ORG ; “ JV ” ) DATE .", "Until DATE , the admission , residence and expulsion of aliens were regulated by the DATE LAW ( ORG ; “ the DATE LAW ” ) . Further rules were set out in the DATE LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( ORG ) and LAW DATE ( PERSON ) . LAW ( PERSON ) applied to proceedings under LAW , unless indicated otherwise in this LAW .", "On DATE , the DATE LAW and the pertaining regulations were replaced by QUANTITY , the CARDINAL Aliens Decree , the DATE Regulation on Aliens and the CARDINAL LAW . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .", "At the time of the events complained of , the CARDINAL Aliens Act , as relevant to the case , provided as follows :", "“ CARDINAL . If necessary in the interests of public order or national security so requires , [ the competent Minister ] may , for the purpose of expulsion ( uitzetting ) , order the detention of an alien who :", "( a ) is not lawfully resident ; ... ”", "“ In deviation from LAW on ORG ( PERSON ) , no appeal lies against a decision of ORG ... :", "a. about a decision or act based on ... [ LAW ] ... ”", "“ CARDINAL . Our [ competent ] Minister shall notify ORG of a decision to impose deprivation of liberty as referred to in Article ... DATE ... [ of the DATE LAW ] DATE after communication of the decision , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty . The appeal shall also constitute a request for the award of damages .", "The Regional Court shall immediately fix the time of a hearing . The hearing shall take place no later than DATE after the receipt of the written statement of appeal or the notification . ... In deviation from LAW , the delay referred to in that Article can not be prolonged .", "The Regional Court shall give judgment orally or in writing . A written judgment shall be given within DATE of the conclusion of the hearing . In deviation from Article QUANTITY of LAW , the delay referred to in that LAW can not be prolonged .", "NORP If ORG finds on appeal that the application or implementation of the decision [ to impose deprivation of liberty ] is contrary to this LAW or is – on consideration of all the interests involved – not reasonably justified , it shall accept the appeal . In such a case the ORG shall order that the deprivation of liberty be terminated or the manner of its implementation altered . ”", "Article CARDINAL", "“ CARDINAL . In deviation from DATE under a. , a ruling given by ORG as referred to in LAW can be appealed before ORG of ORG . ... ”", "Article CARDINAL", "“ CARDINAL . In case ORG has rejected as unfounded an appeal within the meaning of LAW and the deprivation of liberty continues , Our Minister shall notify ORG of the continuation of the deprivation of liberty DATE after the ruling within the meaning of LAW has been given , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty . ”", "Article CARDINAL was amended with effect from DATE . It now requires ORG to be notified of the detention decision within DATE after its issuance unless the alien has lodged an appeal first , and the hearing of the appeal must take place DATE after ORG has received the written statement of appeal or the Minister ’s notification . This amendment meant in practice a revival of the legal situation that existed before DATE in respect of these CARDINAL time - limits under the former DATE LAW and pertaining regulations ( for further details , see PERSON the GPE ( dec . ) , nos . CARDINAL and CARDINAL , DATE , under “ Relevant domestic law and practice ” ) .", "LAW CARDINAL of the LAW stipulates that there is no time - limit for filing an appeal within the meaning of ORG CARDINAL and CARDINAL of the DATE LAW and that an appeal referred to in Article CARDINAL must be filed within DATE . Accordingly , a person placed in GPE detention can in principle file as many appeals against this placement as he or she sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention . Pursuant to LAW , no appeal to ORG lies against a decision by ORG on such a subsequent appeal ( ORG , DATE , case no . CARDINAL/CARDINAL ) . The hearing and determination of such a subsequent appeal are subject to the same mandatory time - limits as those for a first appeal ( ORG of GPE sitting in GPE , DATE , case no . ORG CARDINAL/CARDINAL ) .", "According to a ruling given by ORG on DATE ( JV CARDINAL/CARDINAL ) , the time - limit set out in LAW is of a strict mandatory nature . In the event that this time - limit has not been respected , the placement in GPE detention becomes unlawful on DATE following DATE on which this time - limit expired .", "As there is no statutory fixed maximum duration of a placement in GPE detention for expulsion purposes , an alien whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time provided there are reasonable prospects for expulsion within the foreseeable future . However , it has been established in domestic caselaw that the interest of an alien to be released from GPE detention increases with the passage of time .", "Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later when an exclusion order ( ongewenstverklaring ) has been imposed or where the alien concerned frustrates the determination of his identity or nationality , and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his or her control ( see , ORG ( ORG ) of ORG of the GPE , case no . ORG CARDINAL , DATE ; and ORG of The GPE sitting in GPE , case no . ORG CARDINAL/CARDINAL , DATE ) ." ]

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[ "The applicant was born in DATE . She lived in the village of PERSON in the PERSON district of ORG , GPE . Currently she lives abroad after seeking asylum . The applicant is the mother of PERSON ( also spelled ORG ) PERSON , born in DATE .", "At TIME on DATE approximately CARDINAL men in QUANTITY APCs ( armoured personnel carriers ) and a white VAZ CARDINAL Niva car with the registration plate CARDINAL QUANTITY arrived at the applicant 's house in PERSON .", "The men were armed and equipped with portable radio sets . They neither introduced themselves nor produced any documents . The applicant thought that they were ORG servicemen . It appears that the servicemen arrived to apprehend the applicant 's husband and CARDINAL men who were staying in the house that night . The men broke into the applicant 's house and opened gunfire . The applicant 's husband shouted to the servicemen : “ Do not shoot ! There are children in the house . ” In spite of the warning the servicemen continued shooting . They took the applicant 's husband outside ; the applicant 's CARDINAL children remained in their rooms and the applicant was in the corridor .", "During the shooting the applicant 's CARDINAL sons PERSON ( born in DATE ) and PERSON ( born in DATE ) ran out from their bedrooms into the corridor . At some point PERSON ran out of his sister 's bedroom , screaming that PERSON had been wounded and was bleeding . It appears that PERSON had been hit by a fragment of a rifle grenade .", "The applicant tried to go into her daughter 's room , but the servicemen pushed her outside the house into the yard . When the applicant asked them to let her go inside , the servicemen forbade her under gun point . She was made to lie down on the ground with her hands behind her head .", "When the shooting was over , their neighbour PERSON went into the house and carried out the body of PERSON .", "As a result of the shooting the CARDINAL men who were staying in the applicant 's house were killed , and the applicant 's husband was taken to ORG of the PERSON district ( “ the PERSON ROVD ” ) .", "After the shooting the applicant saw that her house , as well as her family possessions in it , had been damaged by the gunfire . In addition , the family 's identity documents , including passports and birth certificates , had been taken away by the servicemen .", "The applicant submitted that after the shooting , the servicemen had taken away CARDINAL plastic bags with the applicant 's family documents and valuables , including the applicant 's golden bracelet and CARDINAL rings .", "The applicant 's description of the events of DATE is based on several undated accounts provided by her to her representatives and on the letters which the applicant sent to the authorities . The applicant also submitted articles published in the newspaper “ PERSON ” ( ORG ) on DATE and on DATE and an article published in the newspaper “ Niyso - Dagestan ” ( Нийсо-Дагестан ) on DATE .", "The Government submitted , with reference to the documents from the criminal investigation file ( see below ) , that the CARDINAL men who had been at the applicant 's house on TIME DATE had been suspected of the armed robbery of a woman and of an attack on a serviceman of the traffic police , PERSON , who had later died . The crimes had been committed by QUANTITY persons on DATE , and on DATE the PERSON district prosecutor 's office ( the district prosecutor 's office ) opened a criminal investigation into the incident . The investigation was assigned file number DATE . It has been established that during the attack the criminals took hold of PERSON 's police identity document and his PM service pistol with a known serial number .", "The police obtained information that CARDINAL suspects , Mr GPE . and PERSON R.Yu . , had found refuge at the applicant 's house and that they had stored weapons and armaments there , including the PERSON pistol . On DATE the investigator of the district prosecutor 's office decided to carry out an urgent search at the applicant 's house with the aim of finding the CARDINAL suspects and the weapons . Since the suspects could have been armed , the prosecutor had been assisted by servicemen of the PERSON and of the special police force of ORG .", "Upon arrival at the applicant 's house , police officers Mr P.A. and Mr S.O. informed the applicant and her husband about the aim of their visit and suggested that they evacuate the building for their own safety . The applicant , her husband and their CARDINAL sons PERSON and PERSON came out of the house . Then the applicant informed the policemen that her daughter PERSON had remained in the house . Mr P.A. and Mr S.O. returned to the house in order to take the child out , but Mr GPE . and Mr DATE . , who had taken refuge in the house , threw hand grenades at them . Both policemen were injured . Their colleagues , in order to cover them , opened gunfire and killed both suspects .", "After the skirmish was over , the site was inspected by the investigator of the district prosecutor 's office and by forensic and medical experts , in the presence of CARDINAL attesting witnesses . They discovered the bodies of Mr GPE . and Mr R.Yu . and of the applicant 's daughter , PERSON . In the room where the CARDINAL fugitives had been hiding , they also found safety pins from hand grenades and a PM hand pistol with the serial number corresponding to the CARDINAL stolen from GPE", "Shortly after the shooting had ended , experts from the PERSON took pictures of PERSON and wanted to take her body to the morgue for an autopsy . The applicant and her relatives refused to give their permission and wrote down an official statement of refusal .", "From the beginning of her correspondence with the authorities the applicant was assisted by PERSON , head of the local human rights organisation ORG ( PERSON ) . The applicant and PERSON contacted various official bodies , including the NORP President , ORG , the PERSON district administration , the mass media and prosecutors ' offices at different levels , describing the circumstances of PERSON killing and requesting an investigation into the crime . The applicant retained copies of a number of their letters and submitted them to the ORG . The relevant information is summarised below .", "On DATE the applicant wrote to a number of the ORG authorities , including the district prosecutor 's office , the ORG prosecutor 's office and ORG . She described the events of DATE and requested an investigation into the death of her daughter and prosecution of the culprits . The applicant also complained that her property had been unlawfully destroyed during the special operation and requested compensation for the pecuniary and non - pecuniary damage caused by the actions of the servicemen .", "In DATE or DATE the applicant informed the ORG prosecutor 's office that servicemen of the PERSON had participated in the special operation on DATE .", "On DATE the ORG prosecutor 's office informed the applicant that her complaint about unlawful actions of servicemen of the PERSON during her husband 's apprehension had been forwarded to the district prosecutor 's office for examination .", "On DATE the district ORG registry office ( NORP ) issued a statement confirming the death of PERSON on DATE .", "On DATE the NORP village administration issued a death certificate for PERSON .", "On DATE the applicant again wrote to the authorities , including the district prosecutor 's office , the ORG prosecutor 's office and ORG . In her letter she pointed out that on DATE she had already complained about her daughter 's killing , but the authorities had failed to initiate a criminal investigation into the death . She requested explanations concerning the reasons for the failure to initiate the investigation and to prosecute the perpetrators .", "On DATE and DATE the ORG prosecutor 's office informed the applicant that her complaint about the death of PERSON had been forwarded to the district prosecutor 's office for examination .", "On DATE the Khasavyurt ORG sentenced the applicant 's husband to DATE imprisonment for harbouring CARDINAL criminals . In its judgment the court stated , inter alia , that his “ minor daughter PERSON had been killed in the course of a special operation aimed at apprehending the criminals who had been hiding in the house ” . The applicant 's husband accepted his guilt and did not appeal against the sentence .", "It appears that PERSON , who had assisted the applicant in the preparation of her complaints to the domestic authorities , was arrested in DATE on suspicion of illegal possession of weapons . Following allegations of torture and ensuing public pressure , he was released and acquitted . He left GPE in DATE and sought asylum in another country .", "On DATE a commission of the administration of PERSON , including the head of the administration , the chief accountant and the applicant 's CARDINAL neighbours , visited the applicant 's house . They examined the scene and drew up the following report on damage :", "“ During the special operation on DATE the house ... was practically destroyed ; as a result of gunfire and explosions the windows and doors were blown out , the roof was damaged by shots , a powerful blast resulted in cracks in the walls and in the ceiling ; the furniture in the living room and in the kitchen , the refrigerator and the TV set were rendered unusable . ”", "According to the report , the applicant 's house was uninhabitable and required major repairs . The report further estimated the cost of repairs at CARDINAL MONEY ( RUB ) , without specifying additional details .", "NORP In response to a specific request from ORG , the ORG submitted CARDINAL pages of documents from the criminal investigation files mentioned above . Although this was not marked on many documents , it appears that the Government submitted copies of the decisions to open the criminal proceedings in the cases assigned file numbers DATE , DATE and DATE .", "The Government submitted that on DATE the district prosecutor 's office had opened criminal investigation no . CARDINAL into the attack on the police officers and the unlawful purchase and storage of arms and ammunition . The investigation was opened in view of the wounding of CARDINAL policemen , PERSON and Mr S.O. The decision did not mention the suspects ' and the applicant 's daughter 's deaths . The investigation obtained information that Mr GPE . and Mr DATE . had been involved with illegal armed groups and had fought against the authorities in GPE . Thus , on DATE , the district prosecutor 's office opened a new investigation file concerning participation in illegal armed groups , which was assigned number CARDINAL .", "On DATE the investigator of the district prosecutor 's office , assisted by medical and forensic experts , in the presence of CARDINAL witnesses , examined the body of PERSON . They noted CARDINAL large open wounds : CARDINAL measuring QUANTITY by QUANTITY to the head and CARDINAL measuring QUANTITY by QUANTITY to the upper part of the torso . The ORG submitted a copy of the expert report . The experts also took photographs ; however , as follows from subsequent documents and the ORG 's submissions , the photographs could not be developed because the film was defective .", "On DATE criminal investigation files nos . CARDINAL and DATE were joined and assigned number CARDINAL . The decision did not refer to the death of the applicant 's daughter or to the deaths of the suspects .", "No separate criminal investigation was opened into the applicant 's daughter 's death . The Government submitted that in the course of the investigation of file no . DATE the authorities had established that PERSON had died of splinter wounds caused by hand - grenade explosions . The police officers had not used grenades and had only employed hand guns . The forensic reports on the bodies of Mr GPE . and PERSON R.Yu . concluded that they had died as a result of bullet wounds . Seeing that no autopsy had been carried out on the body of PERSON owing to her relatives ' refusal to submit it for such an examination , the investigation relied on the description of her body , which referred to splinter wounds . It concluded that her death had resulted from the explosion of hand grenades thrown by the suspected criminals .", "On DATE the criminal proceedings against Mr GPE . and PERSON R.Yu . were terminated on account of their deaths . The investigation of criminal case no . DATE continued .", "On DATE the district prosecutor 's office took statements from CARDINAL investigators , medical and forensic experts who had examined the child 's body and CARDINAL attesting witnesses . The Government submitted copies of their testimonies , except for the medical expert 's statement and CARDINAL witness 's statement . The forensic expert explained that he had taken photographs of the house , of CARDINAL male bodies in the courtyard and of the girl 's body in the neighbouring house . Once the film was developed , some photographs were spoiled because the film was defective . Thus , no photographs of the girl 's body came out .", "According to the Government , the medical expert stated that he had examined the girl 's body in the neighbouring house and noted CARDINAL large open wounds to the head and upper part of the torso . These wounds could have been caused by splinters from an explosive device . The body had then been transferred to the relatives , who had refused to submit it for an autopsy .", "The investigator submitted that TIME on DATE he had been alerted that the suspects in the murder of Inspector PERSON were hiding in the house of the imam of PERSON . TIME he went to the scene , accompanied by servicemen of the PERSON and of the special police unit of ORG . They also invited CARDINAL witnesses residing in PERSON , PERSON . Once at the house , the servicemen surrounded the house . After that the police ordered everyone to leave the house . A woman , a man and CARDINAL children came out into the entry hall and the police led them outside the house . The woman said that another child remained in the house . CARDINAL servicemen of the special police unit entered the house and immediately afterwards there came the sound of explosions . Several policemen ran to the house and started to shoot in order to cover up their colleagues . The persons taking refuge in the house fired back and threw hand grenades , some of which exploded outside the house , and some inside the house . As soon as the QUANTITY policemen were led out of the building , other servicemen shot at the doors and windows of the house with machine guns and automatic rifles . When the shooting from inside the house subsided , the policemen went in and brought out CARDINAL male bodies . They said that there was a child 's body in the house . A neighbour walked in and carried the body to the nearby house . Then the body was examined by the officials from the prosecutor 's office , in the presence of CARDINAL witnesses . They noted CARDINAL large open splinter wounds CARDINAL to the front of the head and another near the shoulder blade . The investigator added that the police had not used hand grenades ; they had fired from machine guns and automatic rifles . The investigator also answered a number of questions concerning the missing property and identity documents and the damage caused to the applicant 's house . He stated that they had collected and seized CARDINAL yellow rings and the applicant 's passport . No other documents or valuables had been found or seized . As to the state of the house , the investigator specified that the window glazing , furniture and parts of the roof had been damaged . The walls had not been damaged . Some parts of the house were in any event unfinished and were not inhabitable . The state of the house could be ascertained from the photographs taken immediately after the attack .", "Another investigator , a member of the team working on ORG murder , stated that he had arrived at the applicant 's house at TIME on DATE . There he was instructed to examine the child 's body , together with the criminal and forensic experts . They noted CARDINAL large wounds , caused by splinters from an explosive device . The mother of the child refused to submit the body for an autopsy and signed a document to that effect . After the body was examined , the relatives took it for burial . The criminal expert later informed the investigator that the film had been defective and no photographs could be developed .", "The witness PERSON stated that he and his friend PERSON had been doing their TIME jogging when the police asked them to be witnesses to a search in PERSON . When the CARDINAL men arrived at the house , it was surrounded by police . They saw a man , a woman and QUANTITY children come out , accompanied by servicemen . The woman said that another child remained in the house . QUANTITY police officers went in and there followed several explosions . Then several more policemen ran to the house and the witnesses were taken away to a safe distance , from where they could not see the house . They could hear shots being fired and explosions . Once the shooting was over , the witnesses were invited by the investigator to be present during the search . In front of the house there were CARDINAL male bodies . Someone brought out a child 's body , which was taken to the neighbouring house . The investigator found and seized CARDINAL yellow rings and a woman 's passport . The investigator also noted and seized a number of safety pins from hand grenades and empty cartridges , as well as a hand pistol . The rooms were first inspected by a bomb expert and then by the investigators and witnesses . The house was partially damaged , but the load - bearing walls and the roof were intact . Some rooms were unfinished . The Government submitted a copy of PERSON testimony and stated that PERSON had made similar statements .", "In their observations the Government extensively cited an undated statement by Mr PERSON , the head of the criminal investigation department of the PERSON , no copy of which has been submitted . According to the Government , Mr PERSON stated that the department had been tipped off about the location of the suspects in GPE 's murder . TIME on DATE he had arrived at the applicant 's house , accompanied by servicemen of the special police force . The servicemen surrounded the house . CARDINAL serviceman of the special police force walked up to the house and knocked on the door . He was let inside . TIME later he came out of the house , together with a man , a woman and CARDINAL children . The woman said that a third child remained in the house . She wanted to return to the house , but was not allowed to . CARDINAL servicemen of the special police force went to the house in order to retrieve the child . As soon as they had gone in , there came the sounds of explosions . Several more servicemen ran to the house to help their colleagues . They were shot at from inside the house and more grenades were thrown . The CARDINAL wounded policemen were assisted in leaving the house , and the servicemen shot at the windows and doors of the house . The policemen were not equipped with grenades . When the shooting from inside the house subsided , several policemen went into the house . They found the bodies of CARDINAL men and a girl . The male bodies were taken into the courtyard . A local resident took out the child 's body and took it to the neighbouring house . Mr PERSON was told by his colleagues that the body had CARDINAL large splinter wounds . An expert in explosives examined the house , following which an investigator conducted a search in the presence of CARDINAL witnesses . Mr PERSON also stated that he had seen the seized pistol with the serial number corresponding to that taken from FAC and a number of empty cartridges . The investigators put them in bags and sealed off the courtyard of the house .", "The Government submitted a note dated DATE , in which PERSON . stated that the family had refused to submit the body of PERSON for an autopsy with the aim of establishing the cause of her death . The note stated that the family knew the cause of the child 's death and that they wanted to proceed with the burial in accordance with religious rites .", "The Government submitted an undated note signed by the applicant to the effect that she had received from the investigator of the district prosecutor 's office CARDINAL golden rings and her passport , which had been seized at her house on DATE .", "The Government also submitted a number of letters sent by the district prosecutor 's office to the applicant . On DATE the investigator informed the applicant that the investigation had established that her daughter had died as a result of grenade explosions caused by GPE . and R.Yu . The criminal proceedings against the CARDINAL men had been terminated on account of their deaths . CARDINAL rings had been returned to the applicant . She could seek compensation for other damage through the Khasavyurt ORG . The decisions of the investigators could be appealed against to a higher - ranking prosecutor or to a court .", "From the documents submitted it does not appear that the investigators attempted to take statements from the applicant , her husband or their neighbours .", "The Government stated that the investigation of criminal case file no . DATE was in progress and that disclosure of other documents would be in violation of LAW , since the files contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .", "On DATE the applicant complained to the Khasavyurt ORG of Dagestan ( “ the district court ” ) about the destruction of her property during the special operation conducted on DATE and the failure of the authorities to initiate criminal proceedings into the death of PERSON . She sought a ruling obliging the district prosecutor 's office to initiate an investigation into the crime and to prosecute the perpetrators .", "DATE . On DATE the district court refused to examine her complaint . It stated that the applicant was entitled to appeal against actions of the district prosecutor 's office only within the course of an ongoing criminal investigation or that she could appeal against the authorities ' refusal to initiate criminal proceedings . The court pointed out that she had failed to submit any evidence of an ongoing criminal investigation or of the authorities ' refusal to initiate criminal proceedings .", "The applicant did not appeal against that decision .", "For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

[ "13", "2" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was employed in the Zjednoczone PERSON in GPE , a state owned company , which was subsequently acquired by ORG ( “ LCP ” ) .", "In DATE the applicant and his colleague PERSON invented a new , modernised system of water management for their company ( projekt racjonalizatorski pt . ORG gospodarki wodnej w ORG ) . The system came into use in DATE .", "Under the relevant legislation the applicant and PERSON should have been remunerated for their project . They had reached the settlement with the company in respect to the payment but it was not effected .", "Subsequently , the applicant and PERSON sued the company for payment . They filed their statement of claim with ORG ( Sąd Wojewódzki ) on DATE .", "On DATE ORG ordered the applicant to pay court fees . Later , on an unspecified date the court granted him an exemption from court fees .", "On DATE the applicant modified his claim .", "On DATE the court held a hearing . The Government submit that the applicant asked the court to adjourn the hearing . The applicant argues that he had never asked for the hearing to be adjourned .", "On DATE the applicant submitted a settlement proposal . In a letter of CARDINAL DATE “ ORG ” informed that the applicant ’s claim was partially granted and asked him to submit further documentary evidence .", "On DATE the applicant filed another statement of claim .", "On DATE the applicant filed with ORG yet another statement of claim . On DATE he also withdrew his statement of claim of DATE .", "On DATE the court held a hearing but the applicant failed to appear .", "The court held further hearings on DATE , CARDINAL DATE and CARDINAL DATE , DATE , DATE . It heard evidence from the applicant and CARDINAL witnesses .", "The applicant submits that on an unknown date in DATE or DATE the court held yet another hearing .", "The applicant was not present during the hearing held on DATE . On that date the court heard evidence from an expert .", "On DATE the court ordered that expert evidence be obtained . On DATE CARDINAL expert returned the case - file submitting that he was not competent to prepare a report . On DATE the court transferred the file to another expert , who again was not competent to deal with case . On CARDINAL DATE ORG asked yet another expert to prepare a report . In his letter of CARDINAL JuneCARDINAL the applicant asked the court to reverse its decision to obtain expert evidence and to determine the claim on the basis of evidence as it stood at that time . Despite that , on DATE , the court ordered that evidence from a new expert be obtained .", "On DATE the report was submitted to the court . The applicant contested the report .", "On DATE the court held a hearing . It closed the examination of the case and informed the parties that the final decision would be delivered on DATE . The applicant was present during that hearing .", "ORG gave judgment on DATE in the applicant ’s absence . The applicant appealed but he failed to comply with formal requirements which resulted in his appeal being eventually rejected by ORG on DATE ." ]

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[ "The applicant was born in DATE and is serving his prison sentence in the Gaziantep H - type Prison .", "On DATE the applicant was taken into custody during a military operation carried out by the NORP armed forces on suspicion of being a member of an illegal armed organisation , namely the ORG ( ORG . The applicant was detained at a gendarme station , where he was questioned in the absence of a lawyer and his detailed statement was recorded verbatim .", "In the statement the applicant was quoted as having said that he had joined the ORG on CARDINAL DATE and that he had carried out a number of armed activities since DATE .", "On DATE the applicant was brought before the public prosecutor and subsequently the investigating judge . When questioned by the prosecutor and the judge , in the absence of a lawyer , the applicant confirmed the accuracy of the information contained in the statement he had made at the gendarme station , and repeated that he had carried out a number of armed activities . The applicant was placed in detention on remand on the order of the investigating judge .", "On DATE the public prosecutor at ORG filed an indictment , charging the applicant with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory . He sought the death penalty under LAW .", "The trial of the applicant and his CARDINAL co - defendants began on DATE before ORG . In the course of the trial , the applicant was represented by his lawyer . He informed the court that he had joined the ORG in DATE and had received military training . He further admitted to certain charges brought against him . The applicant also stated , during the hearings , that he had been forced to put his thumbprint on the statement taken from him at the gendarme station .", "On DATE ORG found the applicant guilty as charged and sentenced him to death . The death penalty was commuted to a life sentence . The court found it established , on the basis of , inter alia , the statements taken from the applicant after his arrest and the testimony given by him during the trial , that he had carried out a number of illegal activities and had been involved in the killing and kidnapping of a number of village guards .", "On DATE ORG dismissed the applicant ’s appeal .", "A description of the relevant domestic law may be found in PERSON v. GPE ( [ ORG ] no . CARDINAL , § § DATE , DATE ) ." ]

[ "6" ]

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[ "The applicant was born in DATE and is currently detained in FAC .", "On DATE the applicant was convicted of murder by ORG , sitting as an assize court , and sentenced to life imprisonment .", "On DATE the applicant filed an objection ( PERSON ) against the local electoral register ( NORP ) with ORG ( PERSON ) , complaining that his name had not been entered in the register although he met the general conditions such as minimum age , citizenship and residence in the community . He alleged that his exclusion from the electoral register under LAW of LAW ( Nationalratswahlordnung ) was unlawful as this provision was unconstitutional . He invoked , inter alia , LAW No . CARDINAL to the Convention .", "ORG dismissed the applicant 's objection on DATE and , referring to section CARDINAL of LAW , refused to enter the applicant 's name in the electoral register . On DATE the applicant appealed .", "On DATE ORG ( GPE - behörde ) dismissed the appeal . It found that ORG had acted correctly in refusing to enter the applicant 's name in the electoral register and that it was not the task of these authorities to express a position on the alleged unconstitutionality of the law applied .", "On an unspecified date the applicant requested ORG to grant him legal aid to lodge a complaint with that court against ORG decision .", "On DATE ORG refused to grant legal aid as it found that the applicant 's complaint lacked any prospect of success . It referred in that connection to a previous decision of DATE in which it had found that section CARDINAL of LAW was not unconstitutional .", "Article CARDINAL of LAW , as in force at the time of the events and in so far as relevant , reads as follows :", "“ ( CARDINAL ) ORG is elected by the nation in accordance with the principles of proportional representation on the basis of an equal , direct , secret and personal vote for men and women who by the date of the election have completed DATE .", "...", "( CARDINAL ) All men and women who on the date of the election are in possession of NORP nationality and have completed DATE shall be eligible for election .", "( CARDINAL ) DATE Forfeiture of the right to vote and to stand for election can only ensue from a court sentence .", "...", "( CARDINAL ) The electoral register shall be drawn up by the municipalities as part of their assigned sphere of competence . ”", "Section CARDINAL of the LAW reads as follows :", "“ ( CARDINAL ) Anyone who has been convicted by a domestic court of CARDINAL or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of DATE shall forfeit the right to vote . Disenfranchisement shall end DATE . Time shall start to run once the sentence has been enforced and any preventive [ detention ] measure combined with the deprivation of liberty has been enforced or dropped ; if the sentence is enforced with the period of detention on remand being counted towards the sentence , time shall start to run when the judgment becomes final .", "( CARDINAL ) NORP If the legal consequences [ of a conviction ] are suspended under other legal provisions or have lapsed or if all legal consequences or the forfeiture of the right to vote have been pardoned , the convicted person shall not forfeit the right to vote ; nor shall he or she forfeit the right to vote if the court has imposed a conditional sentence . If the condition is revoked , disenfranchisement shall take effect from DATE that decision becomes operative . ”", "Section CARDINAL of LAW , entitled “ conditional suspension of concurrent sanctions ” ( PERSON mehrerer GPE ) , as in force until DATE , read as follows :", "“ ( CARDINAL ) If a term of imprisonment and a fine are imposed concurrently , both sanctions shall be conditionally suspended if the relevant requirements are met . If it can be expected that enforcement of CARDINAL sanction alone or of part of CARDINAL sanction will suffice , sections CARDINAL [ conditional remission of sentence ] and DATE [ conditional remission of part of a sentence ] may be applied .", "( CARDINAL ) Confiscation can not be the subject of conditional remission . If another subsidiary sanction is imposed it shall be conditionally suspended if the main sanction is also conditionally suspended and independent enforcement of the subsidiary sanction is not necessary . The same shall apply in respect of the legal consequences of a conviction . ”", "By LAW , ORG no . CARDINAL ( DATE , BGBl . Nr . CARDINAL/CARDINAL ) , paragraph CARDINAL of Section CARDINAL was replaced by the following wording :", "“ ( CARDINAL ) ORG sanctions and the legal consequences of a conviction may be the subject of conditional remission of a sentence independently from the main sanction . ”", "In its decision of CARDINAL DATE ( ORG . DATE ) ORG examined the constitutionality of the conditions of the disenfranchisement under section CARDINAL of LAW of a person convicted of aggravated fraud and serving a DATE prison term .", "ORG held in particular as follows :", "“ The enactment of legislation providing for disenfranchisement under section CARDINAL(CARDINAL ) of the [ LAW ] on the basis of a final sentence ( imposed by a domestic court for CARDINAL or more offences committed with intent ) carrying a term of imprisonment of DATE lies , in ORG view , within the margin of appreciation afforded to the legislature in matters of election of the legislature . The fact that as a consequence of this rule citizens who are sentenced to DATE imprisonment for an offence committed with intent are stripped of their right to vote , whereas citizens who are sentenced to just under DATE imprisonment ( for an intentionally committed offence ) are not , does not make the legal provision in question unconstitutional ( cf . PERSON . MONEY ) . Nor do the factual submissions advanced by the complainant in this connection ( for instance with reference to FAC ) alter this conclusion in any way . ”", "In its decision of DATE ( BCARDINAL/CARDINAL ) ORG again examined the constitutionality of section CARDINAL of LAW . The complainant had been convicted of aggravated robbery and kidnapping and sentenced to DATE imprisonment respectively . In its decision , after referring at length to the judgment of ORG in the case of ORG v. GPE ( no . CARDINAL ) ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALIX ) , it held that in view of that judgment it maintained the findings adopted in its decision of CARDINAL DATE . It stated in particular as follows :", "“ In respect of the present complaint it is established that the legal position in GPE at issue in the judgment in the PERSON case differs decisively from the CARDINAL in GPE that is relevant here : section CARDINAL of the National Assembly Election Act does not provide for blanket forfeiture of the right to vote in respect of all convicted prisoners , irrespective of the type or seriousness of the offence they have committed or their individual circumstances . The precondition for imposing forfeiture of the right to vote is a final sentence for one or more intentionally committed offences carrying a prison sentence of DATE ; sentences to a fine , sentences to DATE imprisonment and conditional prison sentences do not result in forfeiture of the right to vote . Moreover , section CARDINAL(CARDINAL ) allows the judge to conditionally suspend the legal consequences of the conviction , including therefore disenfranchisement ; in this respect the NORP legal system also makes legal provision for consideration to be given to the individual circumstances of the person concerned . ”" ]

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[ "The applicant was born in DATE and lives in the GPE region .", "On an unspecified date in DATE the former owners of the land belonging to the LOC settlement , situated on the territory of ORG ( “ the ORG ” ) , filed claims for restitution of their ownership rights .", "On DATE the ORG settlement local council assigned a plot of land for the applicant ’s use and for construction of a private house . On DATE the applicant paid MONEY ( RUR ) for the use of that plot .", "On CARDINAL DATE a meeting of ORG took place attended by the applicant , acting on behalf of the ORG , a representative of the pre - nationalisation owners who sought to restore their property rights to the land assigned to the territory of the new ORG settlement , and representatives of various municipal and ORG institutions . It was decided to organise another meeting to discuss the possibility of restoring property rights to the land in GPE settlement in kind and to propose to the Government that plots of QUANTITY be allocated to the former owners for the construction of private houses .", "DATE the Government enacted several decrees allowing persons in the applicant ’s position to acquire ownership of the land they had been using .", "On DATE the applicant and the NORP municipality signed a land - purchase agreement which specified that on DATE the applicant had paid MONEY ( LTL ) for the plot of land . On DATE the plot of land was registered in ORG in the applicant ’s name and , in accordance with NORP law , the applicant became its owner .", "On DATE , civil proceedings were brought by a group of CARDINAL private individuals for annulment of the land - purchase agreements , including that of the applicant . The plaintiffs claimed restitution of their property rights to the land in question , which the ORG had allocated for the building of private houses and which had been nationalised by the NORP occupying power in DATE . The dispute involved a total of CARDINAL co - defendants , including the applicant .", "On DATE ORG ordered the seizure of the applicant ’s land . The order was later upheld by ORG and ORG , and specified that the applicant could grow only plants with a DATE lifespan on the land at issue . Moreover , the applicant was forbidden from carrying out any construction activities on the land pending the court proceedings .", "On DATE ORG dismissed the action as unsubstantiated .", "On DATE the ORG quashed the decision , noting that the lower court had failed to properly inform CARDINAL defendants in the case about the forthcoming hearing . The case was returned for fresh examination at first instance .", "On DATE ORG again dismissed the action .", "On an unspecified date the case was transferred to ORG , which examined it on appeal .", "On DATE ORG stayed the proceedings , deciding to submit a question as to the constitutionality of the Government decrees on the basis of which the land had been sold to the applicant .", "On DATE the GPE Governor ’s Office informed the applicant that despite the courts’ ban on pursuing any activities on the plot of land , “ at present there are perennial plants and there is also a pond ” . The applicant was requested to “ bring the illegal actions to an end ” . On DATE the applicant informed the local authorities that “ it was only from your letter that I learned about the seizure of my plot of land . The pond was dug , the plants were planted and other works were done in DATE , DATE and DATE ” .", "On DATE ORG adopted a ruling , finding that the Government decrees in question violated the rights of the former owners of the land , who had the right to restitution of their property . The decrees were declared unconstitutional as contradicting LAW and , inter alia , LAW ( CARDINAL ) of the PERSON on the procedure and conditions governing the restoration of rights of ownership to existing real property ( FAC dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų ) ( “ the LAW ” ) . The ruling read in part as follows :", "“ ... although the legislature enjoys a certain discretion in establishing the conditions and procedure for the restoration of rights of ownership , in doing so it must take account of the constitutional principle of protection of the right of ownership . This principle also presupposes that , unless it is necessary for the needs of society , land unlawfully nationalised by the occupying government must be returned to its owners in kind under the procedure and conditions established by law ...", "... given that Government Decree no . CARDINAL of CARDINAL DATE and Government Decree no . CARDINAL of DATE established that the land allocated to the ORG also included an area designated for building private dwelling houses , and that it was established that the status of the land , subject to being bought out by the ORG , was granted because that land was on territory allocated to the scientific and educational establishment , and given also that Government Decree no . CARDINAL of DATE permitted natural persons to acquire private ownership of the plots of land on the territory attributed to the educational - production base of the ORG , the right of the owners to restore their ownership rights over the said land has been denied ” .", "As a result , on DATE ORG reversed the decision of ORG of DATE . It was noted that the Government decrees on the basis of which the applicant had signed the land - purchase agreement had been declared unconstitutional . Consequently , the administrative acts whereby the land had been sold to the applicant were declared null and void . The court also observed that “ the defendants [ CARDINAL of them being the applicant ] have for the most part not started the construction works . Not all the defendants have bought out the plots of land which were assigned to them for construction of private houses and not all the [ defendants ] who signed land - purchase agreements have had them registered ” . The court applied Article CARDINAL of LAW and ordered restitution , obliging the local authorities to return to the applicant the sum of LTL MONEY which he had previously paid for the plot of land at issue . As some of the defendants had paid for their plots of land in DATE with “ single - use investment vouchers ” ( vienkartinėmis išmokomis ) , the court ordered that those sums be repaid to them .", "The defendants , including the applicant , lodged an appeal on points of law . They alleged , inter alia , that ORG had examined the case in the absence of their lawyer . The defendants further argued that it would be impossible to execute the appellate court ’s decision since it ordered restitution in “ single - use investment vouchers ” , which no longer had any pecuniary value in GPE . Lastly , they contended that the annulment of the land - purchase contracts was contrary to the right to protection of private property and would amount to re - privatisation .", "On DATE ORG upheld the decision . It stated that the annulment of the impugned acts was necessary to protect the legitimate interests of the pre - nationalisation owners . The court acknowledged that the “ single - use investment vouchers ” had in the meantime ceased to exist as a means of payment . ORG noted , however , that the subject matter of the proceedings was the annulment of the land - purchase contracts and that the assessment of possible compensation for the investment vouchers had not been its subject matter . Finally , the court found that on DATE the applicant ’s lawyer had been duly notified of the appellate court hearing which was to take place on DATE , and that she had requested that the hearing be postponed , given that she had to attend another court hearing at the same time . ORG , however , noted that the applicant ’s lawyer had failed to provide any proof of that hearing . The court ruled that , taking into account the need to ensure the speediness of the proceedings and the high number of participants in the case , the appellate court had taken a reasonable decision to hear the case in the lawyer ’s absence .", "By a decision of DATE the Deputy Governor of GPE restored the former ORG title to the plot of land on the ORG settlement of which the applicant had acquired ownership under the annulled land - purchase agreement of CARDINAL DATE .", "The LAW of GPE provides :", "“ Property shall be inviolable . Rights of ownership shall be protected by law . Property may be expropriated only for the needs of society and in accordance with the procedure established by law , and shall be justly compensated . ”", "The Restitution Law , adopted on DATE and amended on numerous occasions , provided that , in restoring property rights , priority was to be given to restitution in kind . The ORG retained the right to buy out the property from the previous owners if the current social conditions and relations so required ( atsižvelgiant į visuomeninius santykius ) . In particular , LAW ( CARDINAL ) of the PERSON provided that the ORG could buy out land which had been allocated to scientific or educational institutions for carrying out experiments or for other scientific purposes .", "On DATE the Government adopted decree no . CARDINAL on the status of land used by ORG and approval of the zoning scheme for its use . In an attempt to create better conditions for the ORG to address scientific , educational and social issues , it was decided that the land , which was used by the ORG and which the ORG ’s management had earmarked for the construction of private housing , could be bought out by the ORG .", "On DATE the Government adopted decree no . CARDINAL and partially amended decree no . CARDINAL , specifying that part of the total area of land used by the ORG was to be set aside for building private houses on campus . On DATE the Government enacted decree no . CARDINAL , which granted natural persons the right to acquire private ownership of the plots of land which were on the territory of the ORG and which had been allocated to them by the ORG settlement local council prior to DATE for the building of dwelling houses .", "On DATE ORG examined the issue of compatibility with LAW of the domestic laws on the restitution of property rights . In its decision ORG held , inter alia , that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated that , if possible , the property rights should be restored in kind . It further ruled that buying out land in the countryside for the purpose of building private housing served no public interest , since after such land was bought out it could be privatised , thereby breaching the previous ORG right to restitution .", "The PERSON on the initial privatisation of ORG property ( PERSON turto pirminio privatizavimo įstatymas ) , adopted on DATE and amended on numerous occasions , provided that NORP citizens would be granted “ single - use investment vouchers ” ( vienkartinės išmokos ) , for amounts ranging from RUR CARDINAL,CARDINAL to RUR CARDINAL , for the initial privatisation of ORG property .", "On DATE ORG adopted decision no . CARDINAL , pursuant to which the rouble as a currency unit was to be withdrawn from monetary transactions with effect from CARDINAL DATE . A new temporary currency , the talonas , was to be used instead of the rouble , the exchange rate between the CARDINAL being CARDINAL .", "Under the DATE Committee ’s decision of DATE the talonas ceased to exist and was replaced by a new permanent currency , the NORP litas . The exchange rate was CARDINAL talonai to MONEY .", "The Civil Code , in force since DATE , provides insofar as relevant as follows :", "“ CARDINAL . Any transaction that fails to comply with the mandatory statutory provisions shall be null and void .", "When a transaction is declared null and void , each party shall be required to restore to the other party everything he or she has received by means of that transaction ( restitution ) . Where it is impossible to restore in kind the items received , the parties shall be required to compensate each other in money , unless the law provides for other consequences as a result of the transaction ’s being declared void .", "... ”", "“ CARDINAL . In claiming an item as stipulated by LAW , the owner shall have the right to demand : from the person who knew or should have known that his possession was illegal ( possessor in bad faith ) , that he or she reimburse or provide compensation for all income he or she received or should have received during the entire period of possession ; from an illegal possessor in good faith – all income which such possessor received or should have received since the time when he or she found out or should have found out about the possession being illegal or found out about the commencement of a civil case concerning restitution of the item concerned .", "An illegal possessor in bad faith shall have the right in his or her turn to claim from the owner necessary expenses related to the item concerned from the time the owner receives income from it .", "An illegal possessor in good faith shall have the right to claim from the owner compensation for all his expenses incurred in connection with the item concerned that have not been covered by income received from it .", "An illegal possessor in good faith shall have the right to keep those parts that have been added to improve the item concerned , provided these can be removed without causing damage to it . If the parts added as improvement can not be removed or if the item was improved in a different manner , the illegal possessor in good faith shall have the right to claim a compensation for the expenses arising from such improvement , in an amount not greater than the increase in value . ”", "“ CARDINAL . Restitution shall take place where a person is required to return to another person the property he or she has received either unlawfully or by error , or as a result of the transaction whereby the property was received by him or her being annulled ab initio , or as a result of the obligation becoming impossible to perform because of force majeure . ... ”", "“ Restitution shall be made in kind , except in cases where this is impossible or would cause serious inconvenience to the parties . In the latter case , restitution shall be effected by means of an equivalent monetary payment . ”", "“ CARDINAL . The monetary equivalent shall be estimated on the basis of the prices valid at the time when the debtor received the items he is required to restore . ”", "“ The repayment of expenses for the care and custody of the property subject to restitution which have been incurred by the person who is required to return the property shall be carried out in accordance with the provisions of Book IV of this Code , applicable in respect of possessors in good faith and possessors in bad faith . ”", "“ CARDINAL . The fruits and revenues accruing from the property subject to restitution shall belong to the person required to make restitution . This person shall bear all the expenses incurred in the production of those benefits and revenues . ... ”", "Article CARDINAL of the Code of Civil Procedure , in force until DATE , provided that a court could suspend proceedings in a case , at the request of the participants in the proceedings or of its own motion , when it submitted a request to ORG to resolve a question as to the constitutionality of the act applicable in that particular case . Under LAW , the proceedings were suspended until ORG had given its ruling ." ]

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[ "The applicant arrived in GPE in DATE as an asylum seeker from PERSON . Although her asylum claim was refused , she was granted exceptional leave to remain and then , in DATE , indefinite leave to remain . After she obtained indefinite leave to remain , she applied to have her son PERSON , a ORG national born in DATE , join her in GPE . Her son arrived in DATE , with conditional leave to remain in GPE , the condition being that he must not have recourse to public funds . He is considered as being “ subject to immigration control ” within the meaning of ORG , as is the applicant ( see paragraph CARDINAL below ) .", "At the time of her son ’s arrival in GPE , the applicant was renting a room in a private home . However , her landlord was unwilling to accommodate her son as well , and informed the applicant shortly after her son ’s arrival that they would have to move out by DATE . The applicant applied to ORG for assistance on DATE , on the basis that she had become unintentionally homeless . An unintentionally homeless person with a minor child would ordinarily qualify as being in priority need pursuant to section CARDINAL of LAW ( see paragraph CARDINAL below ) , and would thus be provided with suitable housing , usually within the locality . Those in priority need are considered to be a class of persons to whom reasonable preference must be given in the allocation of social housing . As there is a significant shortage of social housing in GPE , those in priority need would generally be placed in temporary accommodation until appropriate social housing became available . In the case of the applicant , however , as her son was subject to immigration control , he was disregarded by the ORG in the determination of whether the applicant was in priority need , in accordance with section CARDINAL ) of LAW . On DATE the ORG decided that the applicant was not therefore in priority need and not entitled to social housing .", "The applicant requested a review of this decision , which was carried out by a senior officer , who reiterated that persons subject to immigration control are not eligible for housing assistance and that persons who are not eligible for housing assistance shall be disregarded when determining whether another person has a priority need for accommodation . As the applicant ’s son was not eligible , the applicant did not have a priority need . Consideration was also given to the question of whether the applicant was vulnerable for any other reason ; however , it was found that the applicant was not hindered in the performance of everyday tasks by any medical problems and that she was no less able to fend for herself than the average person . There was therefore no special reason to find that she was entitled to homelessness assistance due to vulnerability . On CARDINAL DATE the original decision was upheld .", "The ORG assisted the applicant to find a private - sector tenancy in DATE , which she accepted . The applicant and her son were not therefore at any point actually homeless . However , the private tenancy was more expensive than a social tenancy would have been , and was outside GPE and therefore far from the applicant ’s previous employment and her son ’s school . The applicant claimed that she had to give up her job after DATE of commuting as she was unable to cope with the travel required , and that her son spent TIME per day travelling to and from school .", "The applicant , who had remained on the waiting list for social housing in GPE , obtained an offer of a social tenancy of a CARDINAL - bedroom flat in DATE . She and her son therefore moved back to GPE .", "Section CARDINAL , subsections CARDINAL and CARDINAL , of ORG provide :", "“ ( CARDINAL ) Each housing authority shall secure that , so far as practicable , no tenancy of , or licence to occupy , housing accommodation provided under the accommodation Part is granted to a person subject to immigration control unless he is of a class specified in an order made by the Secretary of ORG .", "( CARDINAL ) A person subject to immigration control—", "( a ) shall not be eligible for accommodation or assistance under the homelessness Part ; and", "( b ) shall be disregarded in determining , for the purposes of that Part , whether another person—", "( i ) is homeless or is threatened with homelessness ; or", "( ii ) has a priority need for accommodation ,", "unless he is of a class specified in an order made by the Secretary of ORG ... ”", "Section CARDINAL(CARDINAL ) of the same Act defines “ a person subject to immigration control ” as being a person who under LAW DATE requires leave to enter or remain in GPE ( whether or not such permission has been given ) .", "The Housing Act DATE , as amended by Schedule CARDINAL to ORG DATE , provides , in its relevant parts , as follows :", "“ ( CARDINAL ) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness , they shall make such inquiries as are necessary to satisfy themselves—", "( a ) whether he is eligible for assistance ; and", "( b ) if so , whether any duty , and if so what duty , is owed to him under the following provisions of this Part .", "...", "( CARDINALA ) If the authority decide that a duty is owed to the applicant under section CARDINAL(CARDINAL ) or CARDINAL(CARDINAL ) but would not have done so without having had regard to a restricted person , the notice under subsection ( CARDINAL ) must also—", "inform the applicant that their decision was reached on that basis ,", "include the name of the restricted person ,", "explain why the person is a restricted person , and", "explain the effect of section CARDINAL(CARDINALAD ) or ( as the case may be ) section CARDINAL(CARDINALA )", "...", "( CARDINAL ) In this Part ‘ a restricted person’ means a person—", "( a ) who is not eligible for assistance under this Part ;", "( b ) who is subject to immigration control within the meaning of ORG ; and", "( c ) NORP either—", "( i ) who does not have leave to enter or remain in GPE ; or", "( ii ) whose leave to enter or remain in GPE is subject to a condition to maintain and accommodate himself , and any dependents , without recourse to public funds .", "( CARDINAL ) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance .", "( CARDINAL ) A person who is subject to immigration control within the meaning of ORG is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of ORG .", "...", "( CARDINAL ) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether a person falling within subsection ( CARDINAL ) —", "( a ) is homeless or threatened with homelessness ; or", "( b ) has a priority need for accommodation .", "( CARDINAL ) A person falls within this subsection if the person –", "( a ) NORP falls within a class prescribed by regulations made under subsection ( CARDINAL ) ; but", "( b ) is not a national of an ORG or GPE .", "...", "( CARDINAL ) The following have priority need for accommodation –", "( a ) a pregnant woman or a person with whom she resides or might reasonably be expected to reside ;", "( b ) a person with whom dependent children reside or might reasonably be expected to reside ;", "( c ) a person who is vulnerable as a result of old age , mental illness or handicap or physical disability or other special reason , or with whom such a person resides or might reasonably be expected to reside ;", "( d ) a person who is homeless or threatened with homelessness as a result of an emergency such as flood , fire or other disaster .", "...", "( CARDINAL ) This section applies where the local housing authority are satisfied that an applicant is homeless , eligible for assistance and has a priority need , and are not satisfied that he became homeless intentionally .", "( CARDINAL ) Unless the authority refer the application to another local housing authority ( see section CARDINAL ) , they shall secure that accommodation is available for occupation by the applicant .", "( CARDINAL ) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section .", "...", "( CARDINALB ) In this case ‘ a restricted ORG means a case where the local housing authority would not be satisfied as mentioned in subsection ( CARDINAL ) without having had regard to a restricted person .", "...", "( CARDINALAA ) In a restricted case the authority shall also cease to be subject to the duty under this section if the applicant , having been informed of the matters mentioned in subsection ( CARDINALAB)—", "( a ) accepts a private accommodation offer ; or", "( b ) refuses such an offer .", "( CARDINALAB ) The matters are—", "( a ) the possible consequence of refusal of the offer ; and", "( b ) that the applicant has the right to request a review of the suitability of the accommodation . ”", "The Regulations , made by the Secretary of ORG in the exercise of powers conveyed by certain sections of LAW , referred to above , provide in their relevant parts as follows :", "“ The following classes of persons subject to immigration control are persons who are eligible for an allocation of housing accommodation under Part CARDINAL of the DATE Act—", "( a ) Class A – a person who is recorded by the Secretary of ORG as a refugee within the definition in LAW and who has leave to enter or remain in GPE ;", "( b ) Class B – a person—", "( i ) who has exceptional leave to enter or remain in GPE granted outside the provision of ORG ; and", "( ii ) who is not subject to a condition requiring him to maintain and accommodate himself , and any person who is dependent on him , without recourse to public funds ;", "( c ) Class C – a person who is habitually resident in GPE , GPE , GPE and whose leave to enter or remain in GPE is not subject to any limitation or condition , other than a person—", "( i ) who has been given leave to enter or remain in GPE upon an undertaking given by his sponsor ;", "( ii ) who has been resident in GPE , GPE , GPE for DATE beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him , whichever date is the later ; and", "( iii ) whose sponsor or , where there is CARDINAL sponsor , CARDINAL of whose sponsors , is still alive ;", "...", "( CARDINAL ) The following classes of persons subject to immigration control are persons who are eligible for housing assistance under LAW Act—", "( a ) Class A – a person who is recorded by the Secretary of ORG as a refugee within the definition in LAW and who has leave to enter or remain in GPE ;", "( b ) Class B – a person—", "( i ) who has exceptional leave to enter or remain in GPE granted outside the provision of ORG ; and", "( ii ) who is not subject to a condition requiring him to maintain and accommodate himself , and any person who is dependent on him , without recourse to public funds ;", "( c ) Class C – a person who is habitually resident in GPE , GPE , GPE and whose leave to enter or remain in GPE is not subject to any limitation or condition , other than a person—", "( i ) who has been given leave to enter or remain in GPE upon an undertaking given by his sponsor ;", "( ii ) who has been resident in GPE , GPE , GPE for DATE beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him , whichever date is the later ; and", "( iii ) whose sponsor or , where there is CARDINAL sponsor , CARDINAL of whose sponsors , is still alive . ”", "On DATE ORG handed down its judgment in this case , which involved a woman who was a NORP citizen and her daughter who was subject to immigration control . The local authority had refused to treat mother and daughter as being in priority need of homelessness assistance when they became unintentionally homeless , due to the daughter ’s immigration status . ORG held that Part VII of LAW and specifically sections CARDINAL , CARDINAL and CARDINAL were designed to protect the family lives of the homeless by ensuring that families who became unintentionally homeless were accommodated together . It therefore fell within the ambit of LAW . A majority of ORG found that the basis of distinction between PERSON , on the one hand , and the parent of a child who was not subject to immigration control , on the other , was either the national origin of the child , or a combination of statuses including nationality , immigration status , settled residence and social welfare . It was not considered necessary to decide finally whether there was CARDINAL sole factor on which the distinction was based ; the important point was that nationality was among the factors . As such , very weighty or solid justification was required if the distinction was to be found to be compatible with the Convention . ORG found that , regardless of the precise basis of the differential treatment , the justification offered by the Government – the need to preserve immigration control and to prevent “ benefits tourism ” – was not sufficiently weighty , nor was it a proportionate and reasonable response to the perceived problem . The discouraging of “ benefits tourism ” or the “ over - staying ” of dependent relatives was an intelligible policy goal , but was not served by legislative measures which discouraged NORP citizens or those with a right of abode from coming to or remaining in GPE , because they could not accommodate their dependent relatives who were also lawfully permitted to be in GPE . Section CARDINAL(CARDINAL ) was found not to be a proportionate or even logical response to the perceived problem . ORG observed that it was not apparent that the ORG or ORG had considered the potentially discriminatory impact of the legislation ; however , even if such impact had been considered , it could not be considered to fall within even the very wide margin of appreciation that the ORG enjoyed with regard to such matters .", "The Court of Appeal therefore made a declaration of incompatibility in the following terms :", "“ That [ section ] CARDINAL ) of LAW is incompatible with [ LAW to the extent that it requires a dependent child of a NORP citizen , if both are habitually resident in GPE , to be disregarded when determining when a NORP citizen has a priority need for accommodation when that child is subject to immigration control . ”", "The case of PERSON was considered by ORG alongside that of PERSON , who had indefinite leave to remain in GPE but was considered by the court to have “ equivalent status ” to NORP citizenship ( see paragraph CARDINAL of ORG judgment ) . He too was excluded by section CARDINAL(CARDINAL ) from establishing a priority need for housing assistance because his child was subject to immigration control . Unlike PERSON , however , at the time of ORG judgment , he had an ongoing need for assistance , being still prospectively homeless . This situation would not be alleviated by the declaration of incompatibility , since the impugned provision would remain in force until changed by ORG . PERSON case was therefore remitted by ORG to the relevant local authority for reconsideration , with specific regard to whether he could be provided with accommodation under powers conferred upon the authority by other legislation .", "As a result of the declaration of incompatibility in ORG v. PERSON , the ORG amended LAW by means of Schedule DATE , as noted above . The changes addressed the incompatibility in so far as NORP citizens are concerned but meant that a person such as Mr PERSON or indeed the applicant in this case , with indefinite leave to remain , would still not be considered to be in priority need of housing assistance if his or her eligibility was dependent on another person who was from abroad and subject to immigration control , such as the applicant ’s son . Moreover , in the case of a NORP citizen like PERSON or ORG ( ORG ) or NORP national , where the priority need resulted from a dependent child who was subject to immigration control , the local authority ’s duty to provide accommodation would be satisfied by the local authority procuring an offer of a tenancy from a private landlord , whether or not the applicant chose to accept such an offer . In cases where there was a dependent child who was not subject to immigration control , by contrast , the local authority ’s duty would not be discharged by procuring such an offer if the applicant chose not to accept it ." ]

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[ "The applicants , who are brothers , were born in DATE and DATE respectively and at present reside in the town of PERSON in GPE .", "In DATE the bodies of CARDINAL persons were found in a street in GPE .", "On DATE the second applicant was charged with CARDINAL counts of manslaughter and unlawful possession of weapons . DATE , a deputy prosecutor of LOC of PERSON discontinued the criminal proceedings against the second applicant because he was found to have acted in self - defence and the use of force had been justified .", "On DATE the second applicant was charged with having severely injured a Mr M.", "In DATE ORG reopened the criminal proceedings against the second applicant on the charges of manslaughter and arms possession and remitted the case for further investigation . On CARDINAL DATE the investigator at the LOC prosecutor ’s office dropped the armspossession charge .", "NORP In DATE the CARDINAL sets of criminal proceedings were joined and the second applicant was issued with the bill of indictment . He was charged with CARDINAL count of manslaughter , causing severe bodily injuries , and unlawful restriction of liberty .", "On DATE the first applicant was also charged with unlawful restriction of liberty .", "On DATE the prosecution concluded the investigation and transmitted the case for an examination on the merits to the ORG of PERSON . On DATE the case was assigned to a judge of that court . The applicants were committed for trial and on DATE the court listed the first hearing for DATE .", "At the hearing of CARDINAL DATE the applicants were initially represented by lawyer NORP The chamber consisted of CARDINAL lay assessors and presiding judge PERSON The applicants challenged the presiding judge , alleging bias . The lay assessors examined and rejected the challenge as unfounded .", "Thereafter the applicants informed the court that they had dismissed lawyer NORP and appointed lawyer PERSON . as a replacement . Lawyer PERSON . was not present at the hearing .", "After lawyer NORP had been dismissed , the prosecutor made a request for the applicants to be detained pending trial , which ORG examined and accepted with the following reasoning :", "“ [ the applicants are ] charged with murder , the intentional infliction of severe injuries ... and unlawful confinement ...", "Before the hearing they unsuccessfully sought the removal of the presiding judge and influenced participants in the proceedings , including the victim , PERSON , who asked the court not to examine the case because the defendants had not committed any criminal offence against him . They also appealed against the decision by which the court hearing had been fixed .", "[ The applicants are ] charged with serious and especially serious criminal offences ... When they were under a written undertaking not to leave the town , they attempted to obstruct the thorough and full examination of the case . The prosecutor has lodged a request in that connection ; having regard to the above - mentioned considerations , the court finds it to be substantiated and authorises ... [ the applicants’ ] placement in custody . ”", "The applicants were taken into custody on DATE . They appealed against the decision ordering their detention , arguing that their procedural rights had been breached as a result of the absence of their lawyer at the hearing . Among other things , they requested the court to secure their attendance during the appeal hearing .", "ORG listed the next hearing for DATE .", "The decision of DATE was upheld on appeal on CARDINAL November CARDINAL by ORG . The hearing took place with the participation of the prosecutor , the alleged victim and the applicant ’s lawyer PERSON . The applicants were detained in the remand prison and were not taken to the hearing . Their request for personal attendance remained unanswered .", "At the hearing of DATE the applicants and their lawyer requested the removal of the entire bench including the presiding judge . ORG dismissed their requests and adjourned the proceedings until DATE because the victim had arrived at the hearing in an inebriated state .", "On DATE ORG , in the presence of the applicants’ lawyer , upheld that decision . The applicants were neither invited , nor present at the hearing .", "On DATE the presiding judge , in an interlocutory decision , extended the applicants’ detention and withdrew from the proceedings because he felt offended by the conduct of the applicant ’s lawyer . No reasons or time - limit for the extension were given . The judge noted that the decision was not amenable to appeal .", "According to the ORG , the second applicant brought an appeal against that decision . Since it had been lodged too late and the applicant never asked for restoration of the time - limit , the appeal court never examined it .", "The second applicant disagreed with the Government on that point . He submitted a copy of a letter from the Deputy President of ORG dated DATE informing the President of ORG that the second applicant had requested a copy of the decision of DATE and the restoration of the time - limit for appeal .", "According to the second applicant , he had appealed against the decision of DATE once in receipt of a copy of it , and had complied with the time - limit for appeal .", "On DATE a new presiding judge listed a hearing for DATE and extended the applicants’ detention , without citing any grounds or setting a time - limit .", "The applicants alleged that they had not received that decision . Nonetheless , they appealed against it on CARDINAL and CARDINAL DATE . In their appeals they disagreed with the decision to list a hearing for DATE and argued that the case ought to be sent for an additional investigation to the prosecutor . The appeals did not contain any complaints concerning the ORG continued detention .", "On DATE ORG upheld the decision , rejecting the applicants’ arguments concerning the decision to list a hearing for DATE . By this time the first applicant had already been released ( see paragraph CARDINAL below )", "The Government submitted that the second applicant and his lawyer had not taken part in the hearing .", "On DATE the ORG dismissed the applicants’ request for an additional investigation . The applicants’ appeal against that decision was dismissed by ORG on DATE .", "On DATE the first applicant was released on an undertaking not to leave his place of residence .", "On DATE the applicants asked ORG to adjourn the proceedings because their lawyer was on holiday . The court acceded to the request , adjourned the proceedings and extended the second applicant ’s detention on remand ; no reasons or time - limit for the extension were given .", "The second applicant appealed against the decision , claiming that it had not been given by a lawful tribunal .", "On DATE ORG dismissed the appeal . The second applicant was not present at the appeal hearing .", "On DATE PERSON was appointed to act as the applicants’ counsel .", "At the hearing held on DATE the second applicant , assisted by PERSON , asked ORG to release him against a written undertaking not to leave the town and to replace PERSON with Mr NORP and PERSON , representatives of a certain NGO . ORG dismissed his application for release on the grounds that he was charged with serious criminal offences and was pleading not guilty . ORG held that “ there were no grounds to change the preventive measure ” . It refused to accept the appointment of Mr NORP and PERSON because they had not produced any written authority to act .", "On DATE the applicants again asked the court to appoint PERSON and PERSON The hearing was postponed to allow the applicants to find new lawyers .", "According to the second applicant , on DATE he submitted a statement of appeal against the decision of DATE to the administration of the remand facility where he was being held . On DATE he sent a letter by registered mail to ORG .", "In support of his allegations , the second applicant submitted a note ( no . CARDINAL - CARDINAL ) issued by the prison administration of ORG dated DATE which confirmed that in DATE the second applicant had dispatched a complaint dated DATE to ORG . According to the second applicant , his appeal was left unexamined .", "The Government submitted that the second applicant had never properly filed an appeal against the decision of DATE and that the statement of appeal had only been received by the court after DATE as an annex to another document . They conceded that the appeal had been left unexamined .", "According to the ORG , DATE and DATE there were repeated delays in the criminal proceedings due to changes of lawyers , their failure to appear and sickness on the part of the parties .", "At the hearing of DATE the second applicant successfully requested an adjournment because his lawyer had failed to appear . The hearing was postponed until DATE .", "On DATE ORG , at the second applicant ’s request , adjourned the proceedings until DATE to enable the applicant and his new lawyer to study the case file together .", "The subsequent hearings scheduled for CARDINAL and DATE were postponed because the lawyer for the first applicant had failed to appear . The proceedings were stayed until DATE . The applicants claimed that on DATE they had appealed against the decisions of CARDINAL and DATE , but that their appeals had not been examined .", "At the hearing of DATE the second applicant ’s lawyer asked ORG to remit the case for further investigation and release the applicant on bail or on a written undertaking not to leave the town . ORG refused the requests , on the ground that the applicant was charged with a serious criminal offence and was pleading not guilty .", "On DATE the second applicant appealed against the decision of DATE , but the appeal was never examined .", "The Government submitted that on DATE the ORG had extended the time - limit for lodging an appeal against the decision of DATE . According to them , there was no evidence in the case file that such an appeal was subsequently lodged .", "On DATE the ORG gave interlocutory decisions whereby it dismissed the applicants’ request for the bench to stand down , remitted the case for further investigation and extended the second applicant ’s detention on remand . As regards the grounds for the extension , ORG noted that the second applicant was charged with a serious criminal offence and that he was pleading not guilty and had threatened the victim .", "By the same decision the court also charged the first applicant for the services of a legal - aid lawyer whom he had allegedly never accepted as his counsel .", "On DATE ORG returned the case file to ORG for the correction of certain procedural defects . ORG also noted that in the course of the appeal hearing the applicants’ lawyer had complained that on DATE he had lodged an appeal against the decision of ORG of DATE . The lawyer had provided ORG with a copy of his statement of appeal bearing the stamp of ORG and showing that it had received the statement on DATE . ORG instructed ORG to investigate whether that statement had been lodged in accordance with the requirements established by law .", "On DATE ORG upheld the decisions of CARDINAL DATE concerning the request for the bench to stand down and the extension of the applicant ’s detention . However , it did not accept ORG view that the case should be returned for further investigation , but instructed it to examine the merits of the charges . The applicants’ lawyer was not summoned to the hearing .", "On DATE a new Code of Criminal Procedure became effective .", "On DATE the Ordzhonikidzevskiy ORG extended the applicant ’s detention until DATE , holding that the second applicant was charged with a serious criminal offence and that he was pleading not guilty and had threatened the victim . The second applicant and his lawyer had not been summoned to the hearing . The representative of the prosecution authorities did not attend .", "The second applicant appealed against the decision of DATE , also alleging that he had only received a copy of that decision on DATE . The applicant provided the ORG with a copy of his statement of appeal . The document bore the stamp of ORG indicating that the appeal had been lodged on DATE .", "On DATE ORG refused to examine the second applicant ’s appeal against the decision of DATE and remitted the matter to ORG . ORG held as follows :", "“ In a decision [ of DATE ] [ the second applicant ’s ] detention on remand was extended until DATE .", "[ T]he second applicant ] lodged several appeals against that decision ; [ these ] were lodged outside the time - limit established by the law . From the case file it can not be established when [ the second applicant ] learned about the decision . Moreover , his lawyer , Mr Kh . , ... learned about that decision only while taking part in the hearing and has expressed his wish to appeal against it ...", "In view of the foregoing , [ the court ] decides to stay the appeal proceedings , establish the date when [ the second applicant ] was issued with the decision [ of DATE ] , include that notification in the case file , invite him to apply for extension of the time - limit for lodging an appeal against that decision ... , accept an appeal from Mr Kh . , and subsequently fix an appeal hearing . ”", "DATE ORG received an application from the second applicant ’s lawyer seeking an extension of the time - limit for lodging an appeal against the decision of DATE . According to the Government , there was no indication in the case file that the request was examined .", "On DATE ORG extended the second applicant ’s detention for DATE , that is , until DATE . The court cited the same grounds for the extension as those in the detention orders of CARDINAL May and DATE . Neither the second applicant nor his lawyer was present at the hearing .", "On DATE the GPE ORG quashed the decision of DATE and remitted the matter for fresh examination to ORG . ORG reasoned that , in breach of the rules of criminal procedure , ORG had not ensured the presence of the second applicant and his lawyer at the hearing of DATE . It held that the second applicant ’s detention “ should remain unchanged ” in the meantime , because it had not established any ground to release him . The second applicant was not taken to the appeal hearing , even though he had sought leave to appear . His lawyer attended that hearing .", "On DATE the ORG listed a hearing for DATE and extended the second applicant ’s detention , without citing any grounds or setting a time - limit . The second applicant and his lawyer were not summoned to the hearing .", "On DATE ORG dismissed the second applicant ’s appeal against the decision of DATE because no procedural or substantive violations had been established .", "On DATE ORG re - examined the question of the second applicant ’s detention ( which it had previously examined on DATE ) and retrospectively extended his detention for DATE , until DATE . It held that the second applicant was charged with serious criminal offences and that , if released , he could pervert the course of justice . A new lawyer , PERSON . , and the second applicant attended the hearing .", "The second applicant and PERSON . , his other lawyer , appealed against that decision . The second applicant also sought leave to appear before the appeal court .", "According to the Government , ORG fixed CARDINAL trial hearings DATE . They were adjourned because the second applicant ’s lawyer failed to appear .", "On DATE ORG examined the grounds of the second applicant ’s appeal against the decision of DATE and upheld the decision . According to the second applicant , neither he nor his lawyer was summoned to the appeal hearing . According to the Government , the second applicant ’s lawyer was given notice of the appeal hearing but failed to appear or to notify ORG of the reasons for his absence . The Government provided the ORG with a copy of the notice addressed to the prosecutor and to the second applicant ’s lawyer . The notice did not bear the signature of any court official .", "On DATE the ORG ordered that the second applicant should pay MONEY ( RUB ) ( MONEY ( ORG ) ) in legal fees . It appears that the second applicant did not appeal against that order .", "On DATE ORG dismissed requests by the applicants and their co - defendants for the removal of the prosecutor , the presiding judge and CARDINAL of the applicants’ lawyers , PERSON The applicants alleged that they had not received that decision and , therefore , could not appeal against it .", "On DATE the ORG extended the second applicant ’s detention to DATE . It held that the second applicant was charged with serious criminal offences , the victims and witnesses had not yet been questioned , and that , therefore , the detention should be extended . The second applicant and his lawyer Mr Kh . attended the hearing .", "DATE . From DATE ORG fixed CARDINAL hearings which were adjourned owing to the absence of the second applicant ’s lawyer . On DATE , at the second applicant ’s request , he was assigned new counsel . The proceedings were stayed until DATE to allow the new lawyer time to study the case file .", "The hearings of CARDINAL and DATE never took place because the second applicant was ill .", "On DATE ORG rejected appeals by the second applicant and his lawyer against the extension order of DATE because they had been lodged outside the time - limit . It asked ORG to determine whether the time - limit could be extended . According to the second applicant , ORG did not take any action on the matter . The Government did not comment on this .", "On DATE the ORG extended the second applicant ’s detention to DATE . The court noted that he had no criminal record , that he had a permanent place of residence and work , that he was the breadwinner of a family with CARDINAL minor children and that he suffered from several illnesses . On the other hand , he was charged with serious criminal offences , victims and witnesses had not yet been heard , and the case had been pending for a long time , owing mostly to the second applicant ’s conduct . The second applicant , if released , might therefore obstruct the proceedings .", "According to the second applicant , on DATE he and his lawyer lodged an appeal against that decision . The appeal was never examined .", "According to the ORG , no appeal was ever lodged .", "The hearing on the merits was postponed again until DATE , and then on CARDINAL further occasions until CARDINAL , DATE and DATE .", "On DATE the applicants sought the removal of the entire bench and the prosecutor . The court dismissed these requests .", "DATE . On DATE the ORG discontinued the criminal proceedings against the first applicant in full as time - barred , and ruled out certain evidence as inadmissible . In the same decision the trial court discontinued the criminal proceedings against the second applicant in respect of the manslaughter charges because the statutory limitation period had expired , and extended his detention to CARDINAL October CARDINAL . The court noted that the second applicant was charged with serious criminal offences and that the trial was pending .", "The applicants and their lawyer appealed against the decision of CARDINAL DATE but subsequently withdrew their appeals .", "On DATE the ORG discontinued the criminal proceedings against the second applicant in respect of the charges of unlawful confinement because the conduct in question could not be classed as a criminal offence .", "On DATE ORG found the second applicant guilty of causing bodily injuries and sentenced him to DATE imprisonment . He was released on a written undertaking not to leave the town pending the appeal proceedings .", "On DATE and CARDINAL DATE the second applicant lodged appeals against the conviction . On an unspecified date his lawyer appealed against the judgment of DATE .", "On DATE the second applicant and his lawyer withdrew their appeals .", "On DATE the GPE ORG accepted the withdrawal and discontinued the appeal proceedings . On DATE the applicant ’s written undertaking not to leave the town was cancelled .", "The second applicant submitted that DATE and DATE he had been kept in a cell measuring QUANTITY . The number of inmates at times reached CARDINAL and since the number of beds was insufficient the inmates had to take turns to sleep . The cell also had no proper ventilation .", "The Government responded by producing a certificate ( no . CARDINAL/ICARDINAL - CARDINAL ) issued by the head of prison IZ-CARDINAL/CARDINAL in PERSON dated DATE . The certificate confirmed that the second applicant had been detained in that prison on CARDINAL occasions : DATE and DATE and DATE and DATE . During the period from DATE the applicant had been held in correctional facility FGU IK-CARDINAL of GPE .", "The certificate stated that the second applicant had been detained in the following cells : no . CARDINAL ( measuring QUANTITY and containing PERCENT ) , no . CARDINAL ( measuring QUANTITY and containing QUANTITY beds ) , no . CARDINAL ( measuring QUANTITY and containing CARDINAL beds ) , no . CARDINAL ( measuring QUANTITY and containing seven beds ) , and no . CARDINAL ( measuring QUANTITY and having QUANTITY beds ) .", "According to the certificate , all the cells had glazed windows , adequate sleeping arrangements , ventilation and were regularly disinfected . The inmates , including the second applicant , never made any complaints about the conditions of their detention .", "The Government were unable to provide specific figures concerning the number of inmates in that prison for DATE because the relevant logs had been destroyed after expiry of the time - limit for storage . As to DATE , they provided the following data concerning the number of inmates in the cells in question :", "According to the ORG , the second applicant had a shower on a DATE basis for TIME . The temperature in the cells was no more that QUANTITY in DATE and CARDINAL QUANTITY in DATE . All cells had a toilet , separated from the rest of the cell by a partition , and a sink .", "The second applicant submitted that all the cells in which he was detained had been heavily overcrowded and that the Government ’s description of the sleeping arrangements and partitioned toilets was false .", "He submitted a witness statement dated DATE by PERSON , an inmate in cell no . CARDINAL , which confirmed that DATE and DATE the cell had contained CARDINAL inmates .", "The second applicant alleged that on DATE the prison authorities had refused to certify the authority forms for his lawyer to represent him before the ORG , citing its incompetence to perform the requested actions . The case file contains an authority form dated DATE signed by the second applicant and an authority form dated DATE signed by the first applicant .", "On DATE , DATE and DATE the second applicant was conveyed to the court room and back to the remand centre . According to him , the prison vehicle had no heating and he was not provided with any warm clothing . In addition , he had no opportunity to use toilet facilities for TIME while in transit and was given no meals during DATE at the court .", "Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . On DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .", "Upon receipt of the case file , the judge must determine , in particular , whether the defendant should be held in custody or released pending the trial hearings ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) , and rule on any application by the defendant for release ( LAW CCrP ) .", "At any time during the court proceedings the court may order , vary or revoke any preventive measure , including detention on remand ( Article CARDINAL of the old CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges on the bench ( LAW ORG , LAW ) .", "An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against a judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP ) .", "Under the old ORG , within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for further investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In the latter case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .", "There is no time - limit for the duration of the proceedings as a whole .", "Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE after it was lodged . In exceptional circumstances or complex cases , or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .", "The new ORG establishes that the appeal court must start the examination of the appeal DATE after it is lodged ( Article CARDINAL ) .", "Rule CARDINAL provided that all inmates , whether suspects or defendants , had to be given , among other things : a sleeping place ; bedding consisting of CARDINAL mattress , CARDINAL pillow and one blanket ; bed linen consisting of CARDINAL sheets and a pillowcase ; a towel ; crockery and cutlery , including a bowl , a mug and a spoon ; and seasonal clothes ( if the inmate had no clothes of his own ) .", "Rule CARDINAL stated that cells in pre - trial detention centres must be equipped with , among other things , a table and benches with enough seating space for the number of inmates , sanitation facilities , tap water , day lamps and nighttime lighting .", "Rule CARDINAL provided that prisoners were to receive food CARDINAL times a day , with warm meals provided in accordance with the norms laid down by the Government of GPE .", "Under Rule CARDINAL , inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh bed linen after they had taken a shower .", "Rule CARDINAL provided that an inmate could receive visits from his lawyer , family members or other persons , subject to written permission from an investigator or an investigative body , the number of visits being limited to CARDINAL per month .", "Order no . CARDINAL of ORG for the Execution of Sentences of DATE deals with the implementation of the “ ORG - trial detention centres DATE ” programme .", "NORP The programme is aimed at improving the functioning of pre - trial detention centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem .", "NORP The programme mentions pre - trial detention centre IZ-CARDINAL/CARDINAL in the town of PERSON as being amongst the ones affected . In particular , the programme states that on DATE the detention centre had a capacity of CARDINAL inmates but in fact accommodated CARDINAL detainees , in other words , PERCENT more than the permitted number .", "The relevant extracts from ORG of ORG for the prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) read as follows :", "“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .", "A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...", "Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...", "Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...", "The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .", "It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”", "“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .", "The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”", "“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...", "In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .", "The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”" ]

[ "3", "5", "6" ]

[ "5-4", "6-1" ]

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[ "The applicant , Mr ORG , is a NORP national of NORP origin , who was born in DATE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant arrived in GPE on DATE but continued immediately to GPE where he was stopped at the border . He applied for asylum but was sent back to GPE in accordance with ORG . He then applied for asylum in GPE .", "The applicant claimed that he is an intelligence officer at ORG of GPE and that he has taken part in the hostilities between NORP and NORP forces , including the NORP defence of the city of PERSON . He stated that he had sent several letters to President PERSON and other NORP politicians , protesting against the war and calling the President , inter alia , a bandit and a criminal . He left GPE to escape from the NORP security police which , allegedly , had threatened his life and was searching for him . During DATE , he had been arrested by the NORP police and detained in a psychiatric clinic for DATE . Also , on CARDINAL occasion , the flat where he lived had been under fire . He continued to send letters to President PERSON while waiting for his asylum application to be determined . He maintained that he would be arrested and executed upon his return to GPE .", "On DATE ORG ( Migrationsverket ) rejected the asylum application and ordered the applicant ’s expulsion to GPE . ORG considered that the applicant ’s fears were exaggerated and that his political activities were not such as to constitute a ground for asylum or otherwise demonstrate that he was in need of protection in GPE .", "The applicant appealed , adding to what he had previously stated that he would risk imprisonment for DATE due to the contents of the letters he had sent .", "On DATE ORG ( Utlänningsnämnden ) rejected the appeal . ORG considered that the letters in question could have given the NORP security police occasion to check the applicant , maybe even to keep him under surveillance . However , no further interest from the security police could be expected . ORG concluded that neither the nature of the applicant ’s activities , his possible encounters with the security police nor the possible future trial and sentence under ordinary NORP law for statements made in the letters could be considered as grounds for asylum .", "On DATE the ORG indicated to the respondent Government , under LAW , that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE pending clarification of the facts submitted by the applicant .", "DATE the ORG was informed by ORG that the applicant , on DATE , had returned to GPE voluntarily .", "Following the ORG ’s request for certain factual information , under Rule CARDINAL § CARDINAL ( a ) of ORG , the respondent Government submitted that the applicant had voluntarily attended a meeting with ORG on DATE to discuss his return to GPE . As the applicant expressed hesitation about the return , it was decided that he was to be accompanied to the airport on DATE of departure by CARDINAL officials from ORG . These officials were not authorised to compulsorily enforce the deportation , however . The applicant was at the time staying at one of ORG reception centres but was not detained or subjected to other restrictions . On DATE , at TIME , the applicant , who had a valid NORP passport , travelled by plane to GPE . He was supposed to continue the journey to his home town NORP DATE by plane and bus .", "In reply , the applicant claimed that he was deported to GPE by force . Upon arrival in GPE he was arrested but he was released after he bribed the border guards . He then returned to ORG . By a letter of CARDINAL December CARDINAL he informed the ORG that he had travelled without a visa to GPE , where he was detained with a view to his deportation back to GPE . On DATE ORG ( Amtsgericht ) of Güstrow prolonged his detention until DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was employed by a construction co - operative ; his duty was to disinfect pieces of wood with chemicals . On account of various illnesses which the applicant alleged were caused by this activity , he suffered a PERCENT disability . In DATE he instituted proceedings in ORG . He claimed that his diseases had been caused by the chemicals and that his former employer should pay him compensation . On DATE ORG dismissed the action . This judgment was quashed by ORG on DATE . The case was remitted to the first instance court .", "In the resumed proceedings , the respondent employer was replaced by its successor . DATE and DATE , ORG held CARDINAL hearings and obtained an opinion from ORG . On that date it delivered a judgment and dismissed the applicant ’s action . On DATE the applicant appealed .", "After a hearing on DATE , on DATE ORG dismissed the applicant ’s appeal .", "Following the applicant ’s successful request of CARDINAL DATE to have his case re - opened , ORG held hearings on DATE , and DATE and DATE . By CARDINAL DATE the opinions of further CARDINAL experts were obtained . Another hearing was held on DATE .", "On DATE ORG dismissed the applicant ’s action , holding that the respondent was not liable for the applicant ’s sickness .", "On DATE ORG dismissed the applicant ’s appeal . On DATE the applicant filed a petition for review . On DATE ORG appointed a legal - aid lawyer for him . On DATE it scheduled a hearing for DATE .", "On DATE the liquidator of the successor to the applicant ’s former employer informed ORG that the respondent had been liquidated on DATE and deleted from the company register on DATE . On DATE ORG interrupted the proceedings until the respondent ’s successor joined the proceedings .", "On DATE the applicant requested that the liquidator be allowed to join the proceedings as the defendant ’s successor .", "On DATE ORG dismissed the applicant ’s request , observing that the liquidator was not the successor .", "In separate proceedings , on DATE the applicant requested that the proceedings resulting in the defendant ’s liquidation be re - opened , since he had never been informed of them . On DATE ORG Economic Collegium dismissed this request . On DATE ORG dismissed his appeal since the request was incompatible ratione materiae with the relevant provisions of LAW no . PERSON of DATE ( “ LAW ” ) . In its reasoning , ORG made reference to the fact that , under sections CARDINAL and CARDINAL(g ) of Act no . ORG of DATE on ORG - operatives , the respondent had ceased to exist ipso iure without a successor ( section CARDINAL(CARDINAL ) of LAW ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in ORG . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .", "The Government submit the following in the light of the intelligence reports concerning the applicant :", "The applicant , a non - commissioned officer , was a member of ORG ( Devrim Yanlısı PERSON ) . He was involved in disseminating the extreme religious ideology together with his wife . He established contacts with persons who adopted this ideology . He had an antisocial character and his wife carried an NORP scarf .", "The applicant was considered as an undisciplined and insubordinate soldier . He received a written warning for being undisciplined and was sentenced to CARDINAL days’ confinement for disobedience .", "A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .", "The relevant provisions of the LAW are as follows :", "“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”", "“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...", "No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”", "“ All acts or decisions of the administration are subject to judicial review ...", "Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .", "... ”", "Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .", "Section CARDINAL ( c ) of ORG provides :", "“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .", "...", "Where their conduct and attitude reveal that they have adopted unlawful opinions . ”", "Section CARDINAL ( c ) of LAW provides :", "“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”", "Section CARDINAL ( b ) of LAW provides :", "“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :", "Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”", "LAW on assessment of officers and non - commissioned officers provides :", "“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :", "...", "( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”" ]

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[ "The applicant was born in DATE and lives in PERSON . On DATE he was charged with unlawful fishing and misappropriation of QUANTITY of fish .", "On DATE ORG , in a closed sitting , heard an application to remand the applicant in custody , which it granted . The reasons for remanding him in custody relied upon by the court were that he had changed his address and that he might re - offend . Neither the applicant nor his lawyer was present at the hearing and they found out about the detention order DATE , when the applicant was arrested .", "On DATE at TIME the applicant was arrested at his home in PERSON and taken to ORG where an investigating judge saw him and confirmed the detention warrant of DATE . He was then taken to the ORG detention centre .", "According to the applicant , he was kept in a small cell called the “ aquarium ” until TIME DATE , when he was moved to cell no . CARDINAL . The “ aquarium ” was QUANTITY long and QUANTITY wide and did not have a bed , chair , toilet or sink . It was intended for periods of detention not longer than TIME . Cell no . CARDINAL was located below floor level and did not have windows . There was no ventilation . The electric light was always on , although it was so weak that it was difficult to distinguish the faces of the co - detainees . The cell was QUANTITY long and QUANTITY wide and there were QUANTITY detainees in it . The cell was not equipped with a toilet but instead had a big bucket in a corner which was not separated from the rest of the cell . There was no sink and the detainees had to keep water in plastic bottles which they were allowed to refill once in a while outside the cell . There were no beds , but only a brick shelf a little higher than the floor on which CARDINAL people could sleep . The cell was not provided with any bedding and the applicant alleged that he was only able to sleep for TIME per day . The cell was infested with insects , with the result that the applicant was covered with painful bites , some of which later became wounds . The applicant sent the ORG photographs showing the bites on his body . The food was insufficient and of very poor quality . The detainees were fed only once a day from dirty plates and the applicant was permanently hungry . His relatives were not allowed to bring him food because he would not confess to the charges against him . The applicant was unable to have any contact with his relatives and the outside world . He did not have any paper , pen or envelopes . The room was not provided with a radio or television and due to the lack of natural light the applicant never knew what time of day it was .", "On DATE the applicant ’s wife hired a lawyer and learned about the detention warrant of DATE . On DATE the applicant ’s lawyer challenged the detention order before ORG . He complained , inter alia , LAW , of the inhuman and degrading conditions of the applicant ’s detention . After giving a detailed description of the conditions in which the applicant was being detained , he asked the court to find that the applicant ’s rights guaranteed by LAW had been breached and to award him compensation .", "On DATE the applicant ’s lawyer repeated the habeas corpus request and the complaint under LAW before the Chişinău Court of Appeal . The above complaints have never been examined by ORG .", "In the meantime the applicant complained on several occasions to the prison authorities and to the sanitation department about the poor conditions of detention . However , his complaints were unsuccessful .", "On DATE the applicant ’s lawyer complained to the ORG district prosecutor about the applicant ’s poor conditions of detention . As a result of that complaint the prison authorities moved the applicant to another cell without disinfecting it and reported to the prosecutor that the problem had been remedied . According to the applicant , the only shower in the prison was fixed then .", "On DATE the detention warrant expired and the applicant was released .", "The criminal proceedings against the applicant ended with the judgment of ORG of DATE , by which the applicant was ordered to pay a fine of CARDINAL NORP lei ( the equivalent of MONEY ( ORG ) ) .", "The relevant findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG , unofficial translation ) read as follows :", "“ B. Establishments visited", "... - EDP of ORG ( Follow - up visit )", "... b. remand centres ( EDPs )", "In its report on the DATE visit ( paragraph CARDINAL ) , the ORG was forced to conclude that material conditions of detention in the remand centres ( EDPs ) visited amounted in many respects to inhuman and degrading treatment and , in addition , constituted a significant risk to the health of persons detained . While recognising that it was not possible to transform the current situation in these establishments TIME , the ORG recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity .", "NORP Unfortunately , during the DATE visit , the delegation found barely any traces of such palliative measures , in fact quite the opposite . ...", "One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the NORP authorities have paid no attention to the ORG recommendations . In fact , this state of affairs strongly suggests that , setting aside economic considerations , the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty .", "Turning to the other EDPs visited across GPE , with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions . A detailed description is superfluous , since it has all been highlighted already in DATE of the report on the DATE visit .", "In PERSON , these conditions were exacerbated by serious overcrowding . At the time of the visit , there were CARDINAL prisoners for CARDINAL places , requiring QUANTITY persons to cram into a cell measuring QUANTITY into cells of CARDINAL m² .", "The delegation also received numerous complaints about the quantity of food in the EDPs visited . This normally comprised tea without sugar and a slice of bread in the morning , cereal porridge at lunch time and hot water in TIME . In some establishments , food was served just once a day and was confined to a piece of bread and soup . ...", "... Concerning the issue of access to toilets in due time , the ORG wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of CARDINAL or several other persons , in a confined space such as the ORG cells which also serve as their living space , is in itself degrading , not only for the individual concerned but also for those forced to witness what is happening . Consequently , the ORG recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should DATE if they so request – be taken out of their cell without delay during DATE in order to go to the toilet .", "The ORG also recommends that steps be taken to :", "- reduce the overcrowding in PERSON as rapidly as possible and to comply with the official occupancy level ;", "- supply persons in custody with clean mattresses and clean blankets ;", "- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter .", "In the light of certain observations made , particularly in the ORG of ORG , the ORG also reiterates its recommendation concerning strict compliance , in all circumstances , with the rules governing separation of adults and minors . ”", "“ CARDINAL . Conditions of detention .", "a. Institutions of ORG", "Since DATE , when it first visited GPE , the ORG has serious concern for the conditions of detention in the institutions of ORG .", "The ORG notes that CARDINAL out of CARDINAL EDPs have been subjected to “ cosmetic ” repair and that CARDINAL have been equipped with places for DATE walks . Nevertheless , the DATE visit did not allow lifting the concern of ORG . In fact , most recommendations made have not been implemented .", "Whether CARDINAL refers to the police stations or EDPs visited , the material conditions are invariably subject to the same criticism as in the past . Detention cells had no access to daylight or a very limited such access ; artificial light – with rare exceptions – was mediocre . Nowhere did the persons obliged to pass TIME in detention receive mattresses and blankets , even those detained for prolonged periods . Those who had such items could only have obtained them from their relatives ...", "As for food ... in the EDPs the arrangements made were the same as those criticised in DATE ( see paragraph CARDINAL of the report on that visit ) : generally CARDINAL modest distributions of food per day including tea and a slice of bread in the morning , a bowl of cereals at TIME and tea or warm water in TIME . Sometimes there was CARDINAL distribution of food per day . Fortunately , the rules for receiving parcels have been relaxed , which allowed detainees with relatives outside to slightly improve these meagre DATE portions .", "In sum , the material conditions remain problematic in the police stations ; they remain disastrous in EDPs , continuing in many aspects to amount , for the detainees , to inhuman and degrading treatment . ”", "“ II . Institutions of ORG", "In so far as the conditions of detention in the police establishments are concerned , it appears that this is the field in which the least progress has been achieved . It is not necessary to enumerate here in detail all the shortcomings observed by the delegation , which are more or less the same as those observed during past visits ( and of which ORG is perfectly aware ) . ... Numerous persons are still detained overnight in police establishments , in cells which should not be used to detain persons for TIME . It is high time to remedy these problems , in particular by placing accused persons under the supervision of institutions of ORG and building new prisons corresponding to ORG standards and to the norms laid down by the NORP legislation . ”", "According to LAW , a party to criminal proceedings can contest the actions or inactions of the criminal investigator before the investigating judge ." ]

[ "13", "3", "5" ]

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[ "PERSON was born in DATE . He has been a GPE national since CARDINAL DATE although he has retained his original NORP nationality . PERSON currently resides in GPE . He is a trader .", "Souffiane ( or PERSON ) PERSON is PERSON son . PERSON was born on DATE in GPE . He is a NORP national . He currently resides in GPE .", "PERSON married PERSON DATE . CARDINAL children were born to them , namely PERSON ( on DATE ) , PERSON ( on DATE ) , ORG ( on DATE ) , PERSON ( on DATE ) and ORG . The applicants have stated that the marriage was dissolved in DATE . However , this statement is not corroborated by documentary evidence . In any event , the children remained with their mother after PERSON moved to the GPE .", "Salah Ahmut migrated to the GPE in DATE . In DATE he married a GPE national , PERSON , who already had QUANTITY children from a previous marriage . Her marriage with PERSON remained childless .", "The DATE ’s file contains a sworn translation into LANGUAGE of Ms F.A. ’s death certificate , from which it would appear that PERSON died as a result of a traffic accident on DATE . The ORG ’s file also contains a sworn translation into NORP of a notarial statement which was dated DATE and countersigned by a judge , from which it appears that ORG , PERSON and ORG are indeed the issue of the marriage of PERSON and PERSON and that PERSON is their legal guardian under NORP and NORP law .", "ORG After their mother ’s death the children were cared for by PERSON mother , PERSON", "Salah PERSON ’s eldest son , PERSON , entered the GPE without a provisional residence visa ( machtiging tot voorlopig verblijf - see paragraph CARDINAL below ) in DATE . He was expelled in DATE after a residence permit ( vergunning tot verblijf - see paragraph CARDINAL below ) was refused him . He has since resided in GPE where he is a trader .", "The DATE ’s file contains a document in NORP from a bank in GPE from which it appears that from DATE until DATE PERSON received financial support in the amount of CARDINAL NORP dirhams per year . Although these sums were paid to her through an account with a bank in GPE in the name of a person with the same family name as PERSON second wife , it is not contested that the money was supplied by PERSON . However , PERSON never applied to ORG for child benefits ( kinderbijslag ) for ORG .", "PERSON and his second wife , PERSON , separated in DATE . Following divorce proceedings , their marriage was dissolved on DATE . On DATE PERSON married PERSON , a NORP national , in the GPE . PERSON had been living in the GPE since DATE . She was granted a residence permit for the purpose of living with her husband on CARDINAL DATE .", "Salah PERSON ’s second and third sons , PERSON and Chaouki Dayaf , entered the GPE in DATE and DATE respectively . In DATE they were granted residence permits to enable them to prepare for entrance examinations at ORG .", "The DATE ’s file contains a document in NORP claimed to be a sworn translation of a statement by a ORG physician dated DATE to the effect that on that date PERSON , who was then DATE , was suffering from respiratory problems and kidney failure and was receiving treatment as an out - patient .", "ORG The applicants state that DATE ( when PERSON migrated to the GPE - see paragraph CARDINAL above ) and DATE ( the date of ORG ’s arrival in the GPE - see paragraph CARDINAL below ) NORP visited the GPE CARDINAL times , each time for a period of DATE .", "Souffiane arrived in the GPE on DATE , in the company of his sister ORG . Neither held a provisional residence visa .", "Souffiane was enrolled at a primary school in GPE , which he attended until his eventual return to GPE in DATE ( see paragraph CARDINAL below ) .", "ORG On DATE , PERSON , PERSON and ORG appeared before the officer of the GPE police in charge of matters concerning aliens . As PERSON ’s legal representative , PERSON applied to the GPE police for a residence permit for NORP . ORG filed a similar application for herself . The stated purpose of both applications was to enable ORG and PERSON to reside with their father , who had by then become a GPE national ( see paragraph CARDINAL above ) .", "ORG The same day the GPE police forwarded the applications to the Deputy Minister of Justice ( Staatssecretaris van Justitie ) with an accompanying note . According to the police , neither the death of PERSON nor the fact of her divorce from PERSON had been proved by means of documentary evidence . Nor could PERSON show that he was the children ’s legal guardian . For these reasons it was recommended that the Deputy Minister reject the application in respect of NORP as inadmissible . It was also recommended to reject ORG ’s application on substantive grounds , namely that she had not been part of PERSON family since DATE nor had she apparently received financial support from him and that there were other relatives who could take care of her in GPE .", "ORG On DATE the Deputy Minister gave reasoned decisions rejecting the applications on substantive grounds . The Deputy Minister found that actual family ties between PERSON on the one hand and PERSON and PERSON on the other had been broken DATE , that PERSON moral or financial responsibility for ORG had not been established and that it had not been shown that their grandmother or other relatives could not care for them . He noted in addition that this decision did not constitute a violation of the PERSON family life , protected by LAW ( article CARDINAL) : to the extent that such family life existed , adherence to a policy restricting immigration was necessary in a NORP society in the interests of the economic wellbeing of the country . In the same decision he ordered the expulsion of ORG from the GPE .", "ORG On DATE PERSON , PERSON and ORG lodged requests with the Deputy Minister for revision ( herziening ) of his decision , reserving the right to state their grounds for so doing at a later stage . On DATE the Deputy Minister acknowledged the receipt of these requests and decided that they should have suspensive effect with regard to ORG ’s and ORG ’s expulsion ( see paragraph CARDINAL below ) .", "ORG On DATE PERSON , PERSON and ORG filed statements of their grounds for requesting revision . They stated that the Deputy Minister ’s establishment of the facts had been incorrect ; in support of their position they submitted copies of the documents mentioned in DATE above . They also observed that CARDINAL of ORG ’s and ORG ’s brothers , PERSON and Chaouki Dayaf , were in the GPE for study purposes and submitted statements from ORG to the effect that they had applied for admission .", "ORG The Deputy Minister referred the matter to ORG ( PERSON vreemdelingenzaken - see paragraph CARDINAL below ) for advice on DATE .", "ORG As the Deputy Minister did not decide within DATE , PERSON PERSON , PERSON and ORG , acting on the legal assumption that their requests had been refused , lodged an appeal with the PERSON on DATE . They based their appeal on the grounds put forward in support of their request for revision , to which the Deputy Minister had not responded .", "In view of this appeal , the Deputy Minister took no further action with regard to the request for revision of his original decision although he did not withdraw his request to ORG for advice .", "ORG held a hearing on DATE , during which both PERSON ORG ’s legal representative - and PERSON were heard . During this hearing it emerged , inter alia , that PERSON PERSON had CARDINAL brothers living in GPE and that ORG had become pregnant in the GPE by a trader who , although he lived in GPE , made frequent visits to the country .", "ORG submitted its advice to the Deputy Minister in a document dated DATE . Not finding it established that PERSON PERSON had been divorced from Ms F.A. , it concluded that PERSON and ORG had never belonged to the family which PERSON had established in the GPE with ORG had reached an age at which she no longer needed to be cared for and she could , if necessary , take care of NORP . To the extent that ORG and ORG needed additional care , this could be supplied , if not by PERSON mother , then at least by PERSON or by their CARDINAL uncles . PERSON could continue to provide financial support from the GPE if necessary .", "A decision rejecting the applications for a residence permit would not , in the ORG ’s view , violate LAW ( article CARDINAL) . Although the bond between PERSON on the one hand and PERSON and PERSON on the other amounted to \" family life \" , there would be no \" interference \" with it since it could be continued as before . Moreover , any \" interference \" could be considered \" necessary in a NORP society \" in the interests of the economic well - being of the country .", "ORG On DATE the Deputy Minister notified the GPE police that PERSON , PERSON and ORG had filed an appeal to the PERSON and that they would be allowed to await the outcome in the GPE .", "ORG The Deputy Minister filed statements of defence to the single - judge Chamber of the PERSON on DATE . His arguments corresponded to the grounds on which ORG had based its advice ( see paragraph CARDINAL above ) .", "ORG Following a hearing on DATE , the single - judge Chamber of the PERSON dismissed the appeals by an oral judgment on DATE . Its grounds for so doing were essentially those suggested by the Deputy Minister . It noted in addition that in its view the GPE were not under a positive obligation to grant ORG or PERSON a residence permit , since the latter ’s interests had to be balanced against the general interest served by the implementation of a restrictive immigration policy .", "Its reasoning included the following :", "\" [ The decision not to admit NORP ] does not violate LAW article CARDINAL) of ORG . It can not be said that there is an interference with family life [ familie- of gezinsleven ] as NORP is not being deprived of residence rights [ verblijfstitel ] which formerly enabled him to carry on his family life with the appellant , his father . Nor can any positive obligation incumbent on the respondent to grant him residence rights be derived from LAW , since ORG ’s above - described circumstances must be balanced against the general interest , which the respondent must uphold , which requires the maintenance of a restrictive immigration policy . \"", "Souffiane left the GPE on DATE . As from the same date his name was removed from the municipal population register ( bevolkingsregister ) of the municipality of GPE .", "He has been at a boarding - school in GPE ever since . The applicants state that he has made frequent visits to his father in the GPE , and that the latter has visited him in GPE .", "ORG The introductory application to the Commission , which was lodged on DATE , gives ORG ’s and ORG ’s place of residence on that date as ORG . Other members of the PERSON family at present living in GPE are PERSON eldest son PERSON and CARDINAL of PERSON brothers . It is not known whether PERSON mother is still alive .", "ORG The following is a description of the regime governing the admission of aliens to GPE territory which applied , at the time of the events complained of , to aliens in general . Binding rules were , and are , laid down in LAW ( Vreemdelingenwet ) , LAW ( Vreemdelingenbesluit ) and PERSON ( Voorschrift Vreemdelingen ) .", "ORG Until DATE , the ORG ’s policy was defined in the CARDINAL Aliens Circular ( Vreemdelingencirculaire DATE ) and the DATE Border Guarding Circular ( Grensbewakingscirculaire ) . The competent tribunals have consistently held that it was incompatible with general principles of good governance ( algemene beginselen van behoorlijk bestuur ) to deviate from the policy rules set out in these documents to the detriment of an alien .", "ORG Special regimes , not relevant to the present case , applied to nationals of ORG or GPE member GPE , to nationals of certain other GPE ( not including GPE ) under bilateral treaties and to refugees as defined in LAW A of LAW of DATE relating to ORG - no . CARDINAL , vol . CARDINAL , pp . CARDINAL et seq . ) and LAW relating to LAW DATE ( ORG no . DATE . ORG , pp . CARDINAL et seq . ) .", "ORG Under LAW ( CARDINAL ) of LAW , to be allowed access to the GPE an alien had to qualify for admission - that is , either fulfil the requirements of section CARDINAL of LAW ( see paragraph CARDINAL below ) , or possess a residence or settlement permit ( see paragraphs CARDINAL and DATE below ) - and hold a valid passport or equivalent identity document containing a visa if a visa requirement applied ( see paragraphs CARDINAL and DATE below ) .", "ORG An alien who was refused access to GPE territory had to leave the country as soon as possible and could , if necessary , be forcibly removed ( section CARDINAL of LAW ) .", "ORG An alien who had been granted access but did not , or no longer , qualify for admission could be expelled ( section CARDINAL of LAW ) .", "ORG Under LAW taken together with section CARDINAL of LAW , aliens who , upon entering the country , had complied with the required formalities at the border were admitted if and for so long as they conformed with LAW and delegated legislation , had sufficient means to cover the cost of living in the GPE and of the return journey , and did not threaten public peace , public order or national security . The right to admission based on section CARDINAL was a temporary right based directly on the law and therefore not conditional on the grant of any permit . However , in principle , a visa was required ( see paragraph CARDINAL below ) and the duration of the right was limited : to the period of validity of the visa , or to DATE in the case of those aliens not subject to visa requirements .", "Subject to certain exceptions not relevant to the present case , to be granted access to the GPE aliens had to hold a valid passport containing a transit visa ( transitvisum ) , valid for DATE , or a travel visa ( reisvisum ) , valid for DATE ( section CARDINAL ( CARDINAL ) of LAW ) .", "ORG To obtain access to the GPE with a view to remaining for DATE , aliens who had not already been granted a residence permit had to hold a valid passport containing a provisional residence visa ( section CARDINAL ( CARDINAL ) of LAW ) . A provisional residence visa was valid for a period of DATE ( section CARDINAL of LAW ) .", "ORG A provisional residence visa could be applied for abroad , through a consular or diplomatic representative , or in the GPE , via the head of the local police . Applications were decided on by the Minister for ORG ( section CARDINAL of the Aliens Ordinance and section CARDINAL of the Sovereign Ordinance ( PERSON ) of CARDINAL DATE ) after consultation with the Minister of Justice ( Minister PERSON ) . Applications for such a visa were considered according to the same criteria as those applying to applications for a residence permit , since such a visa would only be issued if the alien concerned was expected to be granted such a permit .", "ORG Aliens wishing to reside in the GPE for DATE ( see paragraph CARDINAL above ) , had to hold a residence permit ( section CARDINAL of LAW ) . Such a permit was applied for to , and granted by , the Minister of Justice ( LAW ( CARDINAL ) of LAW ) . It was valid for DATE and renewable ( section CARDINAL of the Aliens Schedule ) .", "ORG A residence permit could be applied for either in the GPE ( through the head of the local police - section CARDINAL of LAW ) or abroad ( through a diplomatic or consular representative ) . The application had to be submitted by the alien him or herself or , if he or she was a minor , by his or her legal representative ( LAW ( CARDINAL ) of PERSON ) .", "ORG The granting of a residence permit was delegated by the Minister of Justice to the head of the local police in certain cases , including cases where the alien applying for such a permit already held a provisional residence visa . In principle , a residence permit was refused an alien who did not already hold a provisional residence visa ( DATE Aliens Circular , LAW , para . CARDINAL ) .", "ORG A residence permit could be made subject to restrictions ( LAW ( CARDINAL ) of LAW ) .", "ORG An alien holding a valid residence permit was allowed to re - enter GPE territory after having left it .", "ORG The Minister of ORG could grant a settlement permit ( vergunning tot vestiging - section CARDINAL of LAW ) ; such a permit was normally granted only after the alien had been legally resident in the GPE for DATE . After such an initial period , a settlement permit would be granted unless there was no reasonable certainty that the alien would be able to meet the costs of living , or if he or she had committed serious breaches of public peace or public order or constituted a serious threat to national security .", "ORG Given the situation obtaining in the GPE with regard to population size and employment , government policy was , and remains , aimed at restricting the number of aliens admitted to the GPE . In general , aliens were only granted admission for residence purposes if :", "a ) the GPE were obliged under international law to do so , as in the case of citizens of ORG or GPE member GPE and refugees covered by LAW relating to LAW ;", "b ) this served \" essential interests of the GPE \" ( wezenlijk Nederlands belang ) , e.g. economic or cultural interests ;", "c ) there were \" cogent reasons of a humanitarian nature \" .", "In addition , aliens who , under this policy , were eligible for admission were in principle expected to have sufficient means at their disposal to cover the costs of living and not to threaten public peace or public order or national security . These were general rules which did not apply in the same way to all categories of aliens , specific criteria having been developed applicable to certain categories ( DATE Aliens Circular , LAW , para . CARDINAL.CARDINAL.CARDINAL.CARDINAL ) .", "Specific criteria applied to the admission of aliens in connection with the reunification or establishment of families involving spouses , partners or close relatives of GPE nationals or aliens holding residence or settlement permits . Under these criteria , it was possible that admission could be granted for the purpose of reuniting or establishing a family even if the applicable conditions had not all been met , if there were \" cogent reasons of a humanitarian nature \" ( DATE Aliens Circular , LAW , para . CARDINAL ) .", "ORG Government policy with regard to the admission of aliens with a view to continuing or establishing family life in the GPE ( gezinshereniging ) was defined in LAW of FAC .", "This chapter contained an express reference to LAW ( article CARDINAL) . It was stated in paragraph QUANTITY that the refusal of a residence permit did not constitute an \" interference \" with the right to family life if the relative with whom the alien wished to continue or establish family life could reasonably be expected to follow the alien to a place outside the GPE . There might , however , be a positive obligation incumbent on the GPE authorities to grant a residence permit . To determine whether this was the case , the interests of the ORG in denying such a permit should be weighed against the individual ’s interests , taking into account the age of the persons involved , their situation in their country of origin , their degree of dependence on relatives in the GPE and , if applicable , the GPE nationality of any persons involved . If a residence permit was refused after an examination for compliance with the requirements of DATE ( article CARDINAL) , this fact was to be mentioned in the decision .", "Minor children - minority being determined according to GPE law ( LAW PERSON , para . CARDINAL.CARDINAL.CARDINAL.CARDINAL ) - who \" actually belonged to the family \" ( feitelijk behoren QUANTITY ) , for instance children from a previous marriage of a person lawfully resident in the GPE , were granted a residence permit ( LAW , para . CARDINAL.CARDINAL.CARDINAL ) .", "ORG Until LAW entered into force on DATE , an alien could , in the event of a refusal to grant a residence permit , apply in writing to the Minister of ORG for administrative revision of his decision ( section CARDINAL ( CARDINAL ) of LAW ) . If such an application was not decided on DATE , it was deemed to have been refused ( section CARDINAL ( CARDINAL ) ) . Such a request for revision did not suspend the alien ’s expulsion unless it was made DATE before the expiry of the period during which the alien was allowed to remain in the GPE ( section DATE ( CARDINAL ) ) . It was , however , open to the Minister to decide that the request would have \" suspensive effect \" .", "ORG The advice of ORG had to be obtained if a request was made for revision of a decision to expel an alien whose main place of residence for DATE or more had been in the GPE and who had complied with the formalities required by LAW ( section CARDINAL ( CARDINAL ) ( c ) taken together with LAW ( CARDINAL ) ( g ) of LAW ) .", "ORG In the event of a negative decision , or of failure to decide within due time , an appeal lay to ORG of the Raad van State ( section CARDINAL ( CARDINAL ) of LAW ) . However , no application could be made to the President of ORG for a provisional measure or for acceleration of the proceedings ( section CARDINAL ( CARDINAL ) ) ." ]

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[ "8" ]

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[ "ORG The applicant is a NORP citizen and was born on DATE . Following the death of his mother , he was received into care by ORG under section CARDINAL of the Children Act DATE ( \" LAW \" ) on DATE . Save for CARDINAL periods varying DATE and DATE when he was discharged to the care of his father , the applicant remained in voluntary care until DATE . On DATE the applicant appeared before ORG and pleaded guilty to a number of offences including burglary and theft . The court made a care order in respect of him under section CARDINAL of the Children and Young Persons Act DATE . The applicant ceased to be in the care of ORG on attaining the age of majority ( CARDINAL ) on DATE .", "During the major part of the period while he was in care the applicant was boarded out with various foster parents , subject to the provisions of the Boarding - Out of Children Regulations DATE ( \" LAW \" ) . Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care ( see paragraph CARDINAL below ) .", "The applicant contends that he was ill - treated in care , and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past .", "ORG On DATE , the applicant was permitted by a social worker in the employment of ORG to see the case records relating to him kept by ORG of the ORG in accordance with its statutory duty . He removed those records without the ORG ’s consent , retaining them in his possession until he returned them to ORG on DATE .", "ORG It is the practice of the local authorities to keep a case record in respect of every child in care . In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of LAW , which were made under LAW of GPE , so far as relevant , provides that :", "\" PERSON ) A local authority shall compile a case record in respect of -", "( a ) every child boarded out by them ;", "( b ) ...", "( c ) ... and the said records shall be kept up - to - date .", "( CARDINAL ) ...", "( CARDINAL ) Every case record compiled under this ORG or a microfilm recording thereof shall be preserved for DATE after the child to whom it relates has attained DATE or has died before attaining that age , and such microfilm recording or , where there is none , such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of ORG . \"", "In DATE the applicant , wishing to bring proceedings against the local authority for damages for negligence , made an application under LAW of ORG DATE ( \" LAW \" ) for discovery of the local authority ’s case records made during his period in care . LAW provides , inter alia , that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries .", "The application was heard by ORG on DATE . The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest . The principal contributors to those case records were medical practitioners , school teachers , police and probation officers , social workers , health visitors , foster parents and residential school staff . Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible . If discovery were ordered , the public interest in the proper operation of the child - care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future .", "The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery , for the purpose of his proposed proceedings for personal injuries against the local authority . He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available .", "The judge did not read the records in question , but balanced the public interest in maintaining an efficient child - care system with the applicant ’s private interest in receiving access to his case records for the purpose of the proposed litigation . After referring to the case of Re D ( infants ) [ DATE ] CARDINAL Weekly Law Reports ( \" ORG \" ) CARDINAL , in which Lord PERSON , Master of the Rolls , held that case records compiled pursuant to LAW of the DATE Regulations were regarded as private and confidential , he concluded :", "\" I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved . This is a very important service to which the interests - also very important - of the individual must , in my judgment , bow . I have no doubt that the public interest will be better served by refusing discovery and this I do . \"", "The applicant appealed from this decision to ORG . On DATE the ORG unanimously dismissed the appeal . In ORG view , ORG , in its judgment , had correctly balanced the competing interests . It added that the inspection of a document is a course which it is proper for a court to take in certain cases , for example where grave doubt arises and the court can not properly decide upon which side the balance of public and private interests falls without itself inspecting the documents . However , this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents . ORG decision was accordingly affirmed and leave to appeal to ORG was refused ( PERSON v. ORG [ DATE ] CARDINAL WLR CARDINAL ) .", "ORG On DATE , ORG set up ORG ( \" ORG \" ) to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant .", "On DATE , ORG recommended making available case records to ex - clients of the social services , subject to certain safeguards and restrictions relating in particular to medical and police information . As to the applicant , ORG viewed with concern the number of placements which he had while in care , and which they recognised could be detrimental to a young person ’s development , but found no evidence to suggest that \" the officers carried out their duties in other than a caring manner \" . The applicant was to be allowed access to , and to make photocopies of , his case records , subject however to the exclusion of medical and police information .", "On DATE , ORG recommendations , subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed , were embodied in a resolution of ORG . However , PERSON , a dissenting member of ORG , brought an action challenging the resolution and obtained an interlocutory court order preventing ORG from implementing it until the trial of the action or until further order .", "On DATE , ORG passed a further resolution . As regards future records this reiterated the general terms of the resolution of DATE and added certain further restrictions to protect information given in confidence and to provide for the non - disclosure of the whole or part of the personal record in particular cases , but as regards information obtained and compiled before CARDINAL March CARDINAL it was resolved that this should be disclosed only with the consent of the suppliers thereof . Pursuant to this policy the resolution went on to instruct the ORG ’s officers to contact the various suppliers of information to the PERSON file immediately with a view to disclosure . The local authority ’s officers were , however , ordered not to implement this resolution pending the outcome of the legal action brought by PERSON . This action was discontinued on CARDINAL DATE and on DATE the local authority confirmed a further resolution to the effect that the resolution of DATE would be implemented as from DATE .", "On DATE ORG issued Circular LAC ( ORG ) ( CARDINAL ) CARDINAL to local authorities and health authorities pursuant to section CARDINAL of ORG DATE setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records . The general policy laid down in paragraph CARDINAL of the circular was that persons receiving personal social services should , subject to adequate safeguards , be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto . Paragraph CARDINAL set out under CARDINAL headings the reasons for withholding information . These included the protection of third parties who contributed information in confidence , protecting sources of information , and protecting social service department staff ’s confidential judgments . Paragraphs CARDINAL to CARDINAL set out in more specific terms the policy governing client access to case records . Paragraph CARDINAL in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access , the most relevant for the purposes of the present case being that \" information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party \" . However , it was then provided in paragraph CARDINAL that since existing records had been compiled on the basis that their contents would never be disclosed , material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information .", "On DATE , ORG granted the Attorney General leave to apply for judicial review of the resolution of CARDINAL DATE as amended by that of DATE on the ground that it went beyond what were considered to be the proper limits and , in particular , omitted certain important safeguards which were contained in Circular LAC ( CARDINAL ) CARDINAL . Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of CARDINAL DATE .", "ORG On DATE , ORG confirmed a further resolution of its ORG of DATE setting out certain additional grounds on which information should be withheld . The resolution provided that the information in the applicant ’s file should be made available to him if the contributors to the file ( or as regards some information ORG ) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information . Following the passing of this resolution , which was in line with Government Circular LAC ( CARDINAL ) CARDINAL ( see paragraph CARDINAL above ) , the Attorney General withdrew his application for judicial review .", "The applicant ’s case record consisted of some CARDINAL documents contributed by CARDINAL persons . On DATE copies of CARDINAL documents supplied by CARDINAL persons were sent to the applicant ’s solicitors . These were documents whose authors had consented to disclosure to the applicant . The size of each contribution disclosed varied from CARDINAL letter to numerous letters and reports .", "ORG Those contributors who refused to waive confidentiality , although not asked to give reasons , stated , inter alia , that third - party interests could be harmed ; that the contribution would be of no value if taken out of context ; that professional confidence was involved ; that it was not the practice to disclose reports to clients ; and that too great a period of time had elapsed for a letter or report still to be in the contributor ’s recollection .", "Furthermore , in DATE , CARDINAL contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant ’s interests .", "ORG In a letter of CARDINAL DATE , ORG wrote to the applicant ’s solicitors in the following terms :", "\" I refer to your letter dated DATE .", "I would wish to be as helpful as possible to you , but at DATE suspect that we may have genuine differences of opinion . At least I take that to be the implication of the questions you asked .", "I do not think therefore , that we can take this correspondence further in a profitable way because , as I have said , it is , in the last analysis , for the provider of information , retrospectively collected , to release or refuse to release , in their absolute discretion , the information supplied from the ‘ confidential’ embargo originally accorded to it . The reasons for releasing or not releasing are irrelevant whether they are good , bad or indifferent .", "I regret I do not feel able to help you further . \"", "On DATE the ORG Regulations DATE came into force . These regulations , made under ORG DATE and further explained in ORG ( CARDINAL ) CARDINAL , impose upon social services departments a duty to give to any individual access to personal information held concerning him , except for personal health information which originated from a health professional and subject to the exceptions in LAW . This latter provision exempts from the obligation of disclosure , inter alia , any information from which the identity of another individual ( other than a social service employee ) , who has not consented to the disclosure of the information , would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it .", "According to the Government , the effect of LAW ( CARDINAL ) is that , in future , case records will be compiled on the basis that the information contained therein is liable to be disclosed , except in so far as disclosure would be likely to reveal the identity of the informant or another third party . However , by virtue of section CARDINAL ( CARDINAL ) of ORG , the DATE Regulations apply only to information recorded after the ORG came into force , that is , after DATE . As in the case of Circular LAC ( CARDINAL ) DATE , which governed the adoption of the resolution mentioned in paragraph CARDINAL above and the subsequent partial release of documents to PERSON , ORG Regulations DATE do not have retrospective effect ." ]

[ "8" ]

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[ "10" ]

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[ "The applicant , PERSON společnost GPE , a.s . , is a joint - stock company with its seat in GPE . It was represented before the Court by PERSON R. Tunklová , practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr. PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "By ORG no . CARDINAL of CARDINAL DATE of ORG of GPE and the decision of ORG ( ministerstvo pro správu národního majetku a jeho privatizaci ) of DATE , privatisation project no . CARDINAL of the ORG enterprise GPE státní lesy PERSON was approved . On the basis of that project , the applicant company was founded on CARDINAL DATE . In accordance with the privatisation project approved by ORG , the property transferred to it included the building in issue .", "On DATE , further to the applicant company 's notification ( oznámení ) , its title to the building was recorded in ORG .", "On DATE ORG Město Přimda ) brought a civil action against the applicant company , seeking to determine that it was the owner of the building . It referred to LAW no . CARDINAL/CARDINAL ) which provided that certain property was to be ipso jure transferred to municipalities with effect from the date on which the law came into force , that was , on DATE .", "Judgments of ORG ( okresní soud ) of DATE and of DATE in favour of the Municipality were quashed by ORG ( krajský soud ) on DATE and on DATE respectively . ORG held that the first - instance court had failed to establish the facts of the case properly , and instructed it to supplement the evidence .", "On DATE ORG again allowed the GPE 's action , holding that the conditions set forth in section CARDINAL(CARDINAL)(c ) of Act no . CARDINAL/CARDINAL were met , specifically that the plaintiff had been the owner of the property in issue as of DATE and that the property was in ORG ownership on the date on which the LAW entered into force . Responding to CARDINAL of the applicant company 's objections and with reference to the conclusions of an expert opinion drawn up on the court 's request of CARDINAL DATE , it concluded that the building owned by the Municipality as of DATE was the CARDINAL in issue . Notwithstanding the reconstruction works carried out by the applicant company 's legal predecessor , the building had not lost its character , that is , it had not ceased to exist and a new building had not been created .", "In an appeal of DATE the applicant company argued that the reasoning of ORG did not comply with the statutory requirements . It further challenged the court 's interpretation of section CARDINAL ) of Act no . CARDINAL/CARDINAL and its finding that a new building had not been created .", "In a judgment of DATE ORG upheld the first - instance judgment finding that its reasoning had been in compliance with LAW since it referred , inter alia , to the expert opinion and it had therefore been possible to ascertain the evidence on which the court had based its decision . It further rejected the applicant company 's interpretation of the provision cited above and accepted the interpretation given by ORG . Lastly , it upheld the conclusion that the original building had never ceased to exist . ORG judgment became final on DATE .", "On DATE ORG ( PERSON ) , holding that the courts had decided in compliance with the established case - law and that therefore no issue of crucial legal importance arose , rejected an appeal on points of law ( dovolání ) by the applicant company as inadmissible .", "On DATE a constitutional appeal ( ústavní stížnost ) by the applicant company alleging a violation of the right to a fair hearing and its property rights was dismissed as manifestly ill - founded . ORG ( PERSON ) found that the applicant company had merely disputed the ordinary courts ' findings of fact and law and had presented the same legal opinion again . However , its status as a party to the proceedings had been respected and the courts had examined enough evidence and reasoned their decisions . As to the alleged violation of property rights , the court held that ownership that was merely the subject of legal proceedings did not enjoy constitutional protection . The decision was served on the applicant 's legal representative on DATE .", "On DATE , pursuant to Act no . TIME on LAW , the applicant company brought an action in the GPE CARDINAL ORG ( obvodní soud ) against ORG ( ministerstvo financí ) . The damages sought consisted of ( i ) the price of the building in issue which had been transferred to it under the privatisation project and in respect of which it had later been established that it had been the property of ORG , ( ii ) legal costs incurred in the proceedings for a determination of ownership , and ( iii ) costs incurred for the upkeep of the property .", "On DATE ORG excluded the first CARDINAL claims for a separate hearing and transferred the case to ORG ( Vrchní soud ) for a decision which level of courts had jurisdiction to hear the case . In a judgment of DATE , ORG dismissed the applicant company 's third claim .", "On DATE ORG remitted the case to ORG . It appears that the proceedings are still pending before that court .", "On DATE ORG judgment concerning the third claim was upheld by ORG ( městský soud ) . On DATE the applicant company lodged an appeal on points of law ( dovolání ) in which it submitted , inter alia , that should it not have been possible to infer the ORG 's liability under Act no . MONEY no . DATE , its liability should have been given under general provisions of civil law . The proceedings appear to be pending before ORG .", "At the material time , the relevant provisions of Act no . CARDINAL/CARDINAL as amended read as follows :", "“ ( CARDINAL ) As of the date when this law comes into force , the following property shall be transferred to municipalities : ...", "( c ) Buildings with land constituting a single functional unit with the building , ...", "which were owned by municipalities as of DATE and provided that they are owned by GPE ... ”", "“ Within DATE after acquiring the ownership of real estate in accordance with this law , municipalities shall be obliged to lodge an application with FAC to record [ the title to ] such real estate in ORG . ”", "At the material time , the relevant provision of Act no . CARDINAL/CARDINAL , on the conditions of transfer of ORG property to other persons LAW ) read as follows :", "“ ( CARDINAL ) Privatisation proceedings are not subject to general rules on administrative proceedings and a privatisation decision is not subject to judicial review . ”", "Act no . TIME on State liability for damage caused by a ORG body 's decision or its incorrect administrative procedure . As of CARDINAL DATE it has been replaced by Act no . CARDINAL/CARDINAL .", "Resolution of the Constitutional Court no . III . ÚS CARDINAL/CARDINAL", "“ ... a decision ( of the ORG ) on privatisation , under LAW on the conditions of transfer of ORG property to other persons ( Law no . CARDINAL/CARDINAL , as amended ) is a decision of the ORG , however not in its capacity as the holder of public power , but in its capacity as the owner of the privatised property ; it follows ... that any disposition of ( decision on ) the property in the framework of the above - mentioned law is an expression and a consequence of the owner 's will and that the liability of any authority empowered to carry out privatisation falls outside the scope of general liability under domestic legislation . ”", "Resolution of the Constitutional Court no . III . ÚS CARDINAL/CARDINAL", "“ The activity of privatisation commissions ... has the character of decision - making by the owner of property on the manner in which the property will be treated , and the ORG does not act as a superior subject . ... A prerequisite for application of PERSON no . PERSON is that the ORG , through its bodies , must act as the holder of public power and exercise that power . If [ in the context of the activity of privatisation commissions ] the ORG acts as the owner of the property and disposes of its property in the framework of civil - law relation , it is clear that the ORG 's liability can not be based on Law no . TIME . ”", "Resolution of the Constitutional Court no . III . ÚS CARDINAL", "“ In the instant case the ordinary courts ... referred to the established case - law of ORG and ORG and held that a decision of the ORG in the context of privatisation is one of the owner , not the holder of public power . ... On the other hand they did not rule out a ORG 's mistake from the point of view of statutory provisions in making a decision . They merely ruled out that such mistakes would be covered by special laws on the ORG 's liability . ”" ]

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[ "The applicant was born in DATE and lives in PERSON . He is a selfemployed entrepreneur . In that capacity he had dealings with a private company PERSON which included arranging insurance for its vehicles .", "On DATE S. brought a civil action against the applicant in the ORG ( then ORG súd , at present ORG súd ) claiming a sum of money in connection with their previous business .", "On DATE the ORG found that the action fell within the jurisdiction of ORG and decided to transmit the case to the latter .", "On DATE the ORG quashed its above decision of CARDINAL DATE on the ground that , according to up - to - date information , the defendant ’s business was within its judicial district . The case thus remained with the Košice II ORG .", "On DATE and DATE ORG requested the defendant to pay court fees and to specify its claim for legal costs . The defendant replied on DATE and DATE , respectively .", "On DATE , in summary proceedings , ORG issued a payment order ( platobný rozkaz ) against the applicant for the amount claimed .", "On DATE the applicant successfully appealed ( protest ) . The order was ex lege vacated and the matter fell to be determined in ordinary proceedings .", "On DATE and DATE ORG requested the applicant to pay court fees for his appeal . The applicant replied that he could not pay as he had no money , but he eventually paid on DATE .", "ORG held hearings on DATE and DATE . Both hearings were adjourned , the former due to the absence of the plaintiff ’s lawyer , the latter at the plaintiff ’s request since he wished to explore the possibility of settling the case out - of - court .", "On DATE the applicant counterclaimed that the defendant owed him money and sought an order for repayment .", "Another hearing was scheduled for CARDINAL DATE but did not take place because the judge was absent for health reasons .", "On DATE ORG ( PERSON súd ) declared the plaintiff company insolvent and appointed a receiver . As a result , by operation of LAW ( d ) of LAW ( Law no . PERSON . , as amended ) , all actions by and against the plaintiff were automatically stayed . However , under that provision , actions by the insolvent entity could resume if their defendants so required .", "In a letter of DATE ORG informed the applicant that the proceedings had been stayed .", "The proceedings are still stayed .", "The insolvency order was issued on DATE and , in the absence of an appeal , it became final on DATE .", "On DATE ORG appointed a new receiver as the original one had resigned due to a conflict of interests .", "The applicant registered his claim ( see paragraph CARDINAL above ) in the insolvency proceedings .", "On DATE ORG held a meeting of creditors ( schôdza veriteľov ) . At the meeting the creditors approved a summary of the insolvency estate and the proposal for its sale . ORG subsequently held a hearing ( prieskumné pojednávanie ) with a view to establishing the claims of the different creditors in the insolvency proceedings . At the hearing , which the applicant did not attend , the receiver rejected his claim . It was decided that the applicant and other creditors whose claims had been rejected and who had been absent would be informed in writing that they could seek judicial recognition of their claims by way of a separate action ( incidenčná žaloba ) under LAW of LAW .", "In a letter of CARDINAL DATE ORG informed the applicant of the above possibility . The applicant then brought proceedings for recognition of his claim . They are described in detail below .", "The receiver subsequently held CARDINAL rounds of sales of items belonging to the estate . The sales were supervised by ORG .", "On DATE the receiver filed a report with ORG on the progress of the proceedings . He stated inter alia that it had not been possible to conclude the proceedings thus far because the estate was involved in CARDINAL other court proceedings which were all still pending .", "The insolvency proceedings are still pending .", "On DATE the applicant responded to ORG above letter of DATE . From the contents of his letter it can be understood that he insisted on his claim and disagreed with its rejection .", "In a letter of DATE ORG informed the applicant that his submission did not meet the formal requirements for an action for recognition of a claim in insolvency and advised him in detail of the relevant requirements .", "On DATE the applicant resubmitted the action .", "On DATE ORG discontinued the proceedings observing that the applicant had withdrawn the action .", "On DATE ORG ( Najvyšší súd ) upheld the decision on the applicant ’s appeal .", "On DATE the applicant filed a complaint under Article CARDINAL of the LAW with ORG ( Ústavný súd ) about the length of the above proceedings before LAW .", "On DATE ORG declared the complaint inadmissible . In line with its established practice it held that , as the proceedings had been lawfully stayed for a legitimate reason ( the insolvency ) , no unjustified delays could be imputed to the Košice II District Court at that time . The part of the proceedings before ORG before they had been stayed could not be reviewed because they had been stayed outside the statutory DATE time - limit for lodging a constitutional complaint . It was noted that the applicant had not complained of delays in the insolvency proceedings which were pending before ORG .", "As regards any delays in the proceedings which might have occurred prior to the decision of DATE to stay the proceedings in the ORG , the applicant had filed his constitutional complaint after the expiry of the statutory DATE time - limit ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE .", "He is represented before the ORG by PERSON , a lawyer practising in PERSON .", "A.", "On DATE the applicant and the CARDINAL other employees of a PERSON association promoting the interests of foreigners elected their works council ( PERSON ) , which , having regard to the number of employees , comprised CARDINAL persons . The employees elected PERSON and the applicant .", "On DATE PERSON instituted proceedings with ORG ( PERSON ) challenging the applicant 's election as member of the works council on account of his NORP nationality .", "On DATE ORG , sitting as the labour and social court ( Arbeits- und ORG ) , deprived the applicant of his membership of the works council . It found that , as a NORP national , the applicant was not eligible to stand for election to this council , pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( GPE - verfassungsgesetz ) .", "On DATE ORG ( Oberlandesgericht ) dismissed the applicant 's appeal . As regards the applicant 's argument that section CARDINAL(CARDINAL)(CARDINAL ) of LAW amounted to a breach of LAW , ORG considered that the restriction of the right to stand for election to a works council of an enterprise did not interfere with the right to form or to join trade unions .", "On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant 's appeal on points of law . It also rejected CARDINAL procedural requests concerning a procedure before ORG Verfassungsgerichtshof ) , for the purpose of challenging part of section CARDINAL(CARDINAL ) of LAW , and a case before ORG of ORG . As regards LAW , ORG observed that freedom of association included the right to form and join associations of workers which , as compared to associations in general , pursued special aims and purposes , namely the promotion of working conditions . Trade unions are representative examples of such associations which are formed for a trade or profession ( “ überbetrieblich ” ) . The works council , set up as a statutory organ of staff , could not be regarded as an association within the meaning of LAW . In particular , the works council was not an association formed on a voluntary and private basis , but its organisation and functions were determined by law . In that respect , ORG , referring to a decision of ORG DATE , found that it was comparable to chambers of trade . Moreover , the staff as such did not constitute an independent association within the meaning of LAW , as they were not a group of persons associated on a voluntary basis . As regards the question of discrimination between foreigners , ORG considered that the accession to ORG had required the extension of eligibility to citizens of member GPE of ORG ; and the difference in treatment between NORP nationals and foreigners was generally justified on account of the particular relationship between nationals and their home ORG . Furthermore , as the stay of foreigners other than nationals of Member States of ORG , could be limited in time , the statutory period of their membership in a works council were subject to an administrative decision .", "The decision was served on DATE .", "B. Relevant domestic law", "LAW ) concerns collective agreements ( Part I ) and the works constitution ( GPE ) , i.e. the statutory framework for the rights of employees at work ( Part II ) . Part III relates to ORG ( GPE ) and arbitration committees ( ORG ) .", "The representative bodies of staff ( Organe der Arbeitnehmerschaft ) have to promote the economic , social , health and cultural interests of the staff in a work place ( section CARDINAL ) . The legal provisions on the works constitution and their application aim at balancing competing interests to the benefit of the staff and the work place , and these bodies are called upon to cooperate , inter alia , with the competent collective public - law bodies of staff or voluntary staff associations .", "Section CARDINAL provides that , in any work place with CARDINAL or more permanent members of staff eligible to vote , representative bodies should be set up : as a rule , a general works meeting ( GPE ) , group meetings of the workers and of the employees ( ORG der PERSON ) , the works council electoral committee ( PERSON für die Betriebsratswahl ) , the respective works councils of the workers and the employees , the works committee ( PERSON ) and the auditor ( PERSON ) .", "Section CARDINAL fixes the number of members of a works council in relation to the number of staff at the date of election : in a work place with CARDINAL employees , the works council consists of CARDINAL person , in a work place with CARDINAL employees , it consists of QUANTITY persons , in a work place with CARDINAL employees , it consists of QUANTITY persons , and in a work place with CARDINAL employees , it consists of QUANTITY persons . The number of members then increases by CARDINAL per further CARDINAL employees , and in work places with CARDINAL employees by CARDINAL per further CARDINAL employees . Men and women shall be represented in proportion to their numbers amongst the employees .", "Section CARDINAL lays down the principles of equal , direct and secret elections . All members of staff , irrespective of their nationality , are eligible to vote ( section CARDINAL ) . As regards the eligibility to stand for election , section CARDINAL(CARDINAL ) requires that the member of staff is", "- an NORP national or national of a member ORG of ORG ,", "- DATE at the time of the declaration of the election ,", "- employed for DATE at the work place concerned , and", "- apart from the requirement of nationality , not ineligible for the national assembly .", "Sections CARDINAL to CARDINAL concern the rights of the works council , in particular its supervisory powers regarding compliance with work conditions , the right to intervene on behalf of staff members , the right to be generally informed about matters affecting the interests of staff and the right to regular meetings with the owner of the business ." ]

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[ "On DATE the applicant was convicted of manslaughter and sentenced to DATE in prison . He was released on parole on DATE . On DATE he was arrested on suspicion of incest and indecent assault involving CARDINAL of his daughters . On DATE he was arrested on suspicion of other offences of rape and assault in relation to CARDINAL of his daughters . On DATE ORG approved further remand of the applicant and on DATE he was charged with CARDINAL offences of rape and CARDINAL offence of indecent assault concerning CARDINAL of his daughters . Ultimately , the indictment preferred against him contained CARDINAL counts of rape , CARDINAL counts of indecent assault and CARDINAL count of indecency with a child .", "On DATE the applicant applied for bail to ORG . The court did not appreciate that section CARDINAL of ORG and LAW DATE ( “ the DATE LAW ) applied and a full bail application was heard . The court refused bail on the basis that it was feared that he might commit further offences and that he might interfere with witnesses or obstruct justice given the nature and seriousness of the charges . On DATE he again appeared before ORG and was remanded in custody . No bail application was made .", "A further date was fixed for a bail application on DATE , the applicant having obtained an assurance of a surety from a captain in the territorial army with whom he could reside during his trial . On DATE , ORG was made aware of the applicability of section CARDINAL of the CARDINAL LAW and the hearing did not take place . On CARDINAL or DATE , DATE and DATE and on DATE the applicant appeared before ORG . ORG record for DATE hearing noted , in the schedule dealing with exemptions to the right to bail , “ no power to grant bail sCARDINAL CJPOA CARDINAL ” . The applicant was tried on DATE , when he was acquitted on all charges and released .", "Section CARDINAL of LAW DATE as amended ( “ the DATE LAW ) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule CARDINAL to the Act . Paragraph CARDINAL of Schedule CARDINAL provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant , if released on bail , would fail to surrender to custody , commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person .", "Pursuant to paragraph CARDINAL of Schedule CARDINAL to the CARDINAL Act , in taking the above decision , the court was to have regard to such of the following considerations , as well as to any other considerations , as appeared to that court to be relevant :", "– the nature and seriousness of the offence or default ( and the probable method of dealing with the defendant for it ) ;", "– the character , antecedents , associations and community ties of the defendant ;", "– the defendant ’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings ; and", "– except in the case of a defendant whose case was adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted .", "According to paragraph CARDINALA of Schedule CARDINAL to the CARDINAL Act , if a defendant ( who had been charged with murder , manslaughter , rape , attempted murder or attempted rape ) was granted bail and representations had been made as regards the matters mentioned in paragraph CARDINAL of Schedule CARDINAL , the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings .", "Section CARDINAL of the Criminal Justice and Public Order Act DATE ( “ the DATE LAW ) came into force on DATE and provided as follows :", "“ CARDINAL . A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings .", "NORP This section applies , subject to subsection CARDINAL below , to the following offences , ... –", "( a ) NORP murder ;", "( b ) NORP attempted murder ;", "( c ) manslaughter ;", "( d ) NORP rape ; and", "( e ) NORP attempted rape .", "This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of GPE of any such offence or of culpable homicide and , in the case of a previous conviction of manslaughter or culpable homicide , if he was then sentenced to imprisonment or , if he was then a child or young person , to long - term detention under any of the relevant enactments . ”", "Section CARDINAL of the CARDINAL Act has been amended by section QUANTITY of LAW DATE , which entered into force on DATE . LAW reads as follows :", "“ In sub - section ( CARDINAL ) of LAW ( no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences ) , for the words ‘ shall not be granted bail in those proceedings’ there shall be substituted the words ‘ shall be granted bail in those proceedings only if the court or , as the case may be , the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’ . ”" ]

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[ "5-3", "5-5" ]

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[ "13" ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP The legal system of the former GPE ( SFRY ) distinguished CARDINAL types of ownership : private ownership ( privatno vlasništvo ) and social ownership ( društveno vlasništvo ) . While owners of property in private ownership were private individuals ( natural persons ) and some private legal entities called “ civil legal entities ” ( građanske pravne osobe ) such as foundations , associations and religious communities , property in social ownership , according to the official doctrine , had no owner . Nevertheless , the federal ORG , the constituent Republics , municipalities being local government units and other various legal entities called “ social legal entities ” ( društvene pravne osobe ) , among which the most important ones were companies , known at the time as “ organisations of associated labour ” ( organizacije udruženog rada ) and later on as “ socially owned companies ” ( društvena poduzeća ) , were during the socialist period given certain quasi - ownership rights over property in social ownership , such as the right to use it ( pravo DATE ) , the right to administer it ( pravo upravljanja ) or the right to dispose of it ( pravo raspolaganja ) . Private individuals could also acquire certain rights over property in social ownership . Notably , many individuals living in socially owned flats had specially protected tenancies ( stanarsko pravo ) in respect of those flats .", "The LAW of GPE of DATE ( ORG , ORG , no . DATE with subsequent amendments ) acknowledged CARDINAL type of ownership : private ownership . Therefore , in order to bring the country ’s legal system in conformity with its LAW , in the period DATE ORG adopted several legislative acts with a view to transforming social ownership into private ownership .", "NORP In particular , ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with subsequent amendments – “ the Sale to Occupier Act ” ) , which entered into force on DATE , enabled the holders of specially protected tenancies to purchase their flats which were in social ownership under favourable conditions and thereby become their owners .", "ORG o pretvorbi društvenih poduzeća , ORG no . CARDINAL/CARDINAL with subsequent amendments ) , which entered into force on DATE , provided that all “ socially owned companies ” had to transform into commercial companies , in particular into either limited liability companies or joint stock companies .", "On DATE both the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette no . CARDINAL/CARDINAL of CARDINAL DATE – “ the DATE LAW ” ) , and LAW for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , with subsequent amendments DATE “ LAW ” ) , entered into force . By entry into force of these two Acts the transformation of social ownership into private ownership was largely completed .", "The DATE LAW provided that by its entry into force the holders of the rights to use , administer and dispose of socially owned property ( see paragraph CARDINAL above ) were to become the owners of that property . As regards , in particular , commercial companies created through transformation of socially owned companies pursuant to ORG , the DATE LAW provided that those companies were already from the moment of their transformation to be considered the owners of socially owned property in respect of which they previously held the rights to use , administer and dispose of it ( see section CARDINAL(CARDINAL ) of DATE LAW in paragraph CARDINAL below ) .", "The Denationalisation Act provided that in respect of certain property that had been through nationalisation or confiscation appropriated from its former owners during socialism and transferred into social ownership there was to be restitution in kind . It thereby enabled some former owners or their heirs to obtain ownership of such property which had until then been socially owned property .", "The legislation of the former SFRY , in particular section CARDINAL of LAW of DATE ( see paragraph CARDINAL below ) , prohibited the acquisition of ownership of socially owned property by adverse possession ( dosjelost ) .", "When incorporating the DATE LAW into the NORP legal system on DATE , ORG repealed that provision ( see paragraph CARDINAL below ) .", "Subsequently , the new LAW of DATE provided in section CARDINAL ) that the period prior to CARDINAL DATE was to be included in calculating the period for acquisition of ownership by adverse possession of socially owned immovable property ( see paragraph CARDINAL below ) .", "Following several petitions for constitutional review ( prijedlog za ocjenu ustavnosti ) submitted by the former owners of property that had been appropriated during socialism , on DATE ORG ( Ustavni sud PERSON ) accepted the initiative , and decided to institute proceedings to review the constitutionality of section CARDINAL ) of the DATE LAW ( decision FAC . ORG , U - I-CARDINAL/CARDINAL , PERSON , U - I-CARDINAL/CARDINAL and LAW of DATE , ORG no . CARDINAL of DATE ) .", "On DATE ORG abrogated section CARDINAL ) of the DATE LAW ( decisions FAC . ORG , U - I-CARDINAL/CARDINAL , PERSON , U - I-CARDINAL/CARDINAL and LAW of CARDINAL DATE , ORG no . CARDINAL/CARDINAL of DATE ) . It held that the impugned provision had retroactive effects with adverse consequences for the rights of third persons and was therefore unconstitutional .", "ORG decision in its relevant part reads as follows :", "DECISION", "I.", "The provisions of section ... CARDINAL paragraph CARDINAL of the [ DATE LAW ] are hereby abrogated .", "II .", "...", "Reasons", "I.", "The petitioners consider that the impugned provision tends to favour various users of property , who used it without any title , by enabling them to acquire ownership at the expense of [ former ] owners from whom it was taken during Communism ... They also point out that retroactive [ application of the rules of ] adverse possession should not be allowed .", "...", "The petition [ for constitutional review ] is well founded .", "The impugned provision attributes a common quality to a certain state of facts even in respect of the period during which that quality was expressly excluded by law .", "Namely , section CARDINAL of the [ DATE LAW ] provided that ownership of socially owned property could not be acquired by adverse possession . That provision was repealed by LAW on the Incorporation of the [ DATE LAW ] ( ... ) , as a result of which all immovable property which had been in social ownership before the adoption of the [ new DATE ] LAW , regardless of its status in the transitional period , came under the general regime also as regards [ the acquisition of ownership by ] adverse possession .", "Since , in the court ’s view , repealing in the particular case amounts only to abrogation ex nunc [ ukidanje ] and not to annulment ex tunc [ poništavanje ] , it has to be concluded that the period of possession of the socially owned property before DATE ( DATE of entry into force of the Act on the Incorporation of the [ DATE LAW ] ) can not be taken into account for the purposes of acquiring ownership by adverse possession ...", "Namely , the possessors of the property , in respect of which the acquisition of ownership by adverse possession was expressly excluded by law , were aware that this property was not susceptible to [ acquisition of ownership by ] adverse possession , which was also known to the holders of [ various ] rights over the same property ( the right to administer , use and dispose of it ) , who therefore did not [ have to ] use relevant remedies against the risk of losing the property on account of its acquisition by its possessors through adverse possession . Therefore , in the application of the impugned provision it may happen that holders of certain property rights lose these rights , which the LAW allows only exceptionally and with compensation .", "What is more , the impugned provision makes possible the acquisition of ownership of certain property even before the time - limits for acquisition by adverse possession started to run , while [ at the same time ] the time - limits for acquisition by adverse possession of many types of former socially owned property are actually being extended ( the property owned by GPE , counties and units of local self - government ... ) .", "[ For these reasons ] , the court finds that the impugned provision is not , in the substantive sense [ substantive unconstitutionality ] , in conformity with the highest values [ of the constitutional order ] of equality , inviolability of property and the rule of law enshrined in LAW , and the guarantee of property enshrined in LAW paragraph CARDINAL of the LAW .", "Furthermore , the court concludes that the impugned provision has retroactive effects , for which reason it is not in conformity with the provision of LAW paragraph CARDINAL of the LAW either .", "...", "... , [ T]he court finds that while determining the retroactive effects of the said provision of section CARDINAL paragraph CARDINAL of the [ DATE LAW ] , the procedure prescribed by LAW was not observed .", "For the court , when [ in the legislative process ] the legislator breaches its self - prescribed rules of procedure .... ... the legislative act adopted in such improper way , is not in accordance with ... the [ principle of the ] rule of law enshrined in LAW .", "This further means that ... the impugned provision ... is not even in the formal sense [ formal unconstitutionality ] in compliance with LAW .", "In DATE the applicant instituted civil proceedings before ORG ( PERSON ) against GPE ) and the ORG seeking a declaration of his ownership of certain plots of land and their registration in his name in the land register . The applicant claimed that the property at issue had been owned by his late uncle and confiscated in DATE by the socialist authorities . The applicant ’s late mother had been in possession of the land since DATE , as the applicant had continued to be after her death on DATE . Given that the prescribed period for acquisition of ownership by adverse possession had elapsed , the applicant claimed to have acquired ownership of the land .", "On DATE ORG ruled for the applicant and ordered that he be recorded in the land register as the owner of the property . The court held :", "“ After finding that the plaintiff ’s mother was a bona fide possessor of the immovable property in question , it needs to be established whether she possessed it during the statutory period necessary to acquire ownership by adverse possession .", "Once section CARDINAL of the DATE LAW was repealed ... it has become possible to acquire ownership by adverse possession of socially owned immovable property ... [ Also ] , under section CARDINAL(CARDINAL ) of the DATE LAW , in calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , the period before that date has also to be taken into account .", "Section CARDINAL ) of the DATE LAW was abrogated by a decision of ORG ... , which means that , in the period prior to its abrogation , that provision was in force , that is until DATE ...", "In order to acquire ownership by adverse possession of ORG - owned immovable property , under section CARDINAL(CARDINAL ) of the DATE LAW , a period twice as long as that set out in DATE and CARDINAL of that section is required , which means that in respect of the land at issue a continuous undisturbed possession in good faith over a period of DATE is needed .", "Having regard to the fact that ... the plaintiff was , through his mother , in continuous possession of the land in question since DATE , it has to be concluded that he acquired ownership by adverse possession ... ”", "On an appeal by both respondents , on DATE ORG ( PERSON ) reversed the first - instance judgment and dismissed the applicant ’s claim on the following grounds :", "“ It is undisputed between the parties that :", "- the immovable property at issue was confiscated from the plaintiff ’s legal predecessor ... in DATE ;", "- the respondent was recorded [ as owner ] in the land register on the basis of the confiscation decision ;", "- the plaintiff and his legal predecessor have had continuous possession [ thereof ] since DATE ...", "The first - instance court erred in finding that the plaintiff had acquired ownership by adverse possession of the immovable property at issue because he and his legal predecessor had had continuous possession since DATE , on the basis of section CARDINAL ) of the DATE LAW , which was subsequently abrogated by a decision of ORG ... In its decision ORG held that the unconstitutionality of the abrogated provision existed already prior to it being abrogated , that is , since its entry into force , a conclusion that is also accepted by this court . Consequently , irrespective of the fact that section CARDINAL ) was in force until the publication of ORG decision in ORG , the [ first - instance court ’s ] decision could not be based on an unconstitutional provision . ”", "NORP The applicant lodged a constitutional complaint against that judgment , claiming , inter alia , an infringement of his property rights . On DATE ORG dismissed the applicant ’s complaint , finding that :", "“ During the ... proceedings ... ORG has established that [ the second - instance judgment ] was reached in application of the relevant provisions of substantive law , and that the legal findings of the second - instance court were well reasoned , and that therefore there has been no infringement of the complainant ’s ownership rights ... ”", "In DATE the applicant requested the reopening of criminal proceedings which had ended in DATE and in which his uncle had been convicted .", "On DATE the ORG declared the applicant ’s request inadmissible , finding that he had not been entitled to make such a request . On appeal , ORG ( PERSON ) upheld the first - instance decision on DATE .", "Subsequently , on DATE ORG declared the applicant ’s complaint inadmissible for lack of jurisdiction .", "On DATE the applicant applied to the competent administrative authority seeking restitution of the above plots of land that had been confiscated from his late uncle in DATE by the socialist authorities . In doing so he relied on LAW . It appears that the proceedings were later on stayed and that they are formally still pending .", "The DATE LAW on FAC of GPE ( PERSON o PERSON , ORG no . CARDINAL of DATE , which entered into force on DATE – “ LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE , which entered into force on DATE ) , in its relevant part reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall abrogate [ ukinuti ] a statute or its provisions if it finds that they are incompatible with the LAW ...", "( CARDINAL ) Unless the Constitutional Court decides otherwise , the abrogated [ ukinuti ] statute or its provisions shall cease to have legal force on the date of publication of ORG decision in ORG [ i.e. ex nunc ] .", "( CARDINAL ) ... ”", "“ ( CARDINAL ) The final sentence for a criminal offence based on a statutory provision that has been abrogated as contrary to the LAW shall cease to produce legal effects from DATE of the entry into force of ORG decision abrogating the statutory provision on the basis of which the sentence was delivered and may be set aside by [ a petition for ] reopening of criminal proceedings .", "( CARDINAL ) Every natural or legal person who has lodged with ORG a petition to review constitutionality of a statutory provision , or a constitutionality or legality of a provision of subordinate legislation , and whose petition has been accepted by ORG and [ that ] provision abrogated [ ex nunc ] , has a right to lodge with the competent authority [ a petition for reopening of proceedings ] and ask that the decision based on the abrogated ... provision ... be set aside .", "( CARDINAL ) ...", "( CARDINAL ) [ The petition for reopening of the proceedings ] referred to in CARDINAL of this section may be lodged within DATE of the publication of ORG decision in ORG .", "( CARDINAL ) In proceedings in which no final decision has been adopted before the date of the entry into force of ORG decision abrogating a statute , [ ... ] or its provisions , and this statute [ ... ] is directly applicable in the case , the abrogated statute [ ... ] or its provisions shall not be applied from DATE of the entry into force of ORG decision . ”", "Section CARDINAL of LAW ( Zakon o osnovnim vlasničkopravnim odnosima , ORG of ORG nos . CARDINAL/CARDINAL and ORG , which entered into force on DATE – “ the DATE LAW ” ) prohibited the acquisition by adverse possession of ownership of socially owned property .", "Section CARDINAL of the Act on the Incorporation of the Act on Basic Ownership Relations ( Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima , ORG no . CARDINAL of CARDINAL DATE ) repealed section QUANTITY of LAW .", "The relevant part of the Ownership and Other Rights In GPE ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no . CARDINAL/CARDINAL of DATE , which entered into force on DATE – “ the DATE LAW ” ) , as in force at the material time , read as follows :", "Part CARDINAL", "RIGHT OF OWNERSHIP", "...", "LAW .", "ACQUISITION OF OWNERSHIP", "“ ( CARDINAL ) Ownership may be acquired by legal transaction , by decision of a court or other public authority , by succession , or by the operation of law . ”", "...", "“ ( CARDINAL ) Ownership may be acquired by adverse possession on the basis of the exclusive possession of a certain property ... if such possession has lasted continuously for a period of time determined by law and if the possessor is capable of being the owner of such property .", "( CARDINAL ) An exclusive possessor who possesses under just title , in good faith and whose possession is free of vice shall acquire ownership of movable property after DATE and of immovable property after DATE .", "( CARDINAL ) An exclusive possessor who possesses at least in good faith shall acquire ownership of movable property after DATE and of immovable property after DATE of continuous exclusive possession .", "( CARDINAL ) An exclusive possessor of a property owned by GPE ... shall acquire ownership by adverse possession once his or her ... possession has lasted continuously for a period twice as long as that set out in CARDINAL of this section . ”", "Part CARDINAL", "TRANSITIONAL AND ORG PROVISIONS", "LAW .", "ORG", "“ ( CARDINAL ) ...", "( CARDINAL ) The right of ownership and other rights in rem acquired under the provisions of this LAW on transformation of the rights to administer , use or dispose of socially owned property ... shall be considered acquired under the condition that they are not in collision with the rights of other persons over [ such ] property under the denationalisation legislation .", "“ ( CARDINAL ) The right to administer , use or dispose of socially owned property became by the transformation [ privatisation ] of its holder the right of ownership of that person who through the transformation became the former holder ’s universal legal successor ...", "( CARDINAL ) The right to administer , use or dispose of socially owned property which before the entry into force of this LAW was not transformed into a subject of the right of ownership , shall by this LAW ’s entry into force become [ its ] right of ownership ...", "( CARDINAL ) The provisions of paragraph CARDINAL and CARDINAL of this section shall be applied , mutatis mutandis , to other rights in rem .", "( CARDINAL ) Registration of the right to administer , use or dispose of [ socially owned property ] in the land register ... shall be considered registration of the right of ownership . ”", "“ ( CARDINAL ) It is considered that the owner of a socially owned immovable property is a person registered in the land register as a holder of the right to administer , use or dispose of that immovable property .", "( CARDINAL ) ... ”", "“ ( CARDINAL ) Person whose right of ownership is derived from the former right to administer , use or dispose of socially owned property ... shall have the right to protect it as any owner ... ”", "...", "LAW .", "“ ( CARDINAL ) The acquisition , modification , legal effects or termination of rights in rem after the entry into force of this LAW shall be assessed on the basis of its provisions ...", "( CARDINAL ) The acquisition , modification , legal effects and termination of rights in rem until the entry into force of this LAW shall be assessed on the basis of rules applicable at the moment of the acquisition , modification or termination of those rights or of their legal effects .", "( CARDINAL ) If the prescribed time - limits for the acquisition and termination of rights in rem set out in this LAW started to run before its entry into force , they shall continue to run pursuant to paragraph CARDINAL of this section ...", "( CARDINAL ) In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , and for the acquisition of [ other ] rights in rem over such property , the period before that date shall also be taken into account . ”", "The relevant part of LAW to the DATE LAW ( Zakon o izmjeni i dopuni PERSON vlasništvu i drugim stvarnim pravima , Official Gazette no . CARDINAL of DATE , which entered into force on DATE ) that were enacted following the abrogation of section CARDINAL ) of the DATE LAW by ORG on DATE , reads as follows :", "“ In section CARDINAL , a new paragraph CARDINAL shall be added after paragraph CARDINAL , to read :", "‘ In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , and for the acquisition of [ other ] rights in rem over such property , the period before that date shall not be taken into account.’ ”", "The Act on Compensation for , and ORG of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL and DATE ( corrigendum ) , which entered into force on DATE – “ the DATE LAW ” ) enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and a spouse ) , to seek under certain conditions either restitution of or compensation for the appropriated property .", "The DATE LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , ORG and CARDINAL/CARDINAL and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL and CARDINAL , which entered into force on DATE – “ LAW ” ) , as amended by LAW ( Official Gazette no . CARDINAL , which entered into force on DATE ) in its relevant part reads as follows :", "“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the finality of the judgment of ORG , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .", "( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .", "( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom ." ]

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